Reconceptualising the Maternity Benefit Policy in India: Examining the Count of Surviving Children and Suggesting Reforms

[Priyanshu and Ayush are students at Tamil Nadu National Law University.]

In November 2025, the government notified the implementation of the new labour codes, which empower women with greater safety, equality, and workplace flexibility. The legislation was enacted to augment maternity support, including 26 weeks’ leave, simplified certification, crèche facilities, and nursing breaks. The legislation prima facie affirms various facilities as rights of a working woman, but becomes uncertain when it comes to the ground realities of childbirth.

On a plain reading, Section 60(3) (relevant section) of Chapter VI of the Code on Social Security 2020 (Code) grants maternity benefits of up to twenty-six weeks to a woman with fewer than two surviving children. The legislation appears equitable for a woman in ordinary deliveries, but it does not address cases involving twin births in the first and second deliveries, resulting in such women being excluded from claiming maternity benefits at the time of the second delivery. The limited maternity benefits operate to the detriment of women in such situations, undermining the protective and welfare-oriented purpose of the legislation. The absence of legal recognition for such cases reveals a disconnect between the statutory criteria for entitlement and the realities of working women.

Limitations of Maternity Law in India

Statutory construction and multiple births: Evaluating Section 60(3)

Subsection 3 of Section 60 of the Code entitles a woman to have a maximum of 26 weeks of paid maternity leave for a single pregnancy. Out of the said 26 weeks, the initial 8 weeks are for pre-delivery from the estimated date. The woman is not required to take all 8 weeks beforehand, but exceeding the limitation is not allowed. The rest of the weeks are reserved post-delivery. However, if a woman chooses to work to her due date and only takes 2 weeks of pre-delivery leave, she can use the remaining 24 weeks after the birth.

The explanation to this subsection is silent on how multiple births arising from a single pregnancy should be counted. The term “child” is inclusive of a stillborn child, treating each child as an independent unit of computation. The provision, if literally interpreted, would be used against a woman who has twins and trigger a reduction in benefits even though she has been through only one delivery. Further, the proviso fails to consider a woman who gave birth to twins in her first delivery or in her second delivery. Again, curbing welfare measures under subsection 3 to a limited extent. The courts have pointed out a few shortcomings in the provision and interpreted the law in a welfare-oriented manner, which is discussed further.

The two-children limitation: What does the law actually count?

The relevant section of the Code adopts the number of “surviving children” as the decisive criterion for determining the duration of maternity benefit. The provision permits up to twenty-six weeks where a woman has two or more surviving children. Thus, the statutory trigger is not the number of pregnancies or deliveries experienced by the woman, but the number of children surviving at the relevant time. This distinction becomes important in cases of multiple births, where a single delivery may result in two surviving children and consequently exhaust the statutory threshold for the longer benefit in a subsequent pregnancy.

In Deepika Singh v. Central Administrative Tribunal (Deepika Singh case), the Supreme Court adopted a purposive approach to a “two surviving children” restriction, holding that maternity leave provisions must be interpreted in light of their object of enabling women to continue in employment and recognising childbirth as a natural incident of life.

Judicial preview on maternity benefit

In India, the courts have evolved and viewed maternity leave as more of a social justice issue, a necessary period for women to recover from post-parturition and attend to their infant, irrespective of the total number of surviving children. The same courts were pushed to deal with twins resulting in divergent judicial pronouncements. In T Priyadharsini v. State of Tamil Nadu (Priyadharsini case), the Madras High Court felt that twins arrive one after the other, so they ought to be treated like two separate deliveries, and that interpretation ended up working against mothers of multiples.   

Over time, that position has been weakened. The Bombay High Court, in the Airports Authority of India Workers Union v. Under Secretary, noted that those rules are more or less meant to give women leave twice during their service, rather than serving as a strict population control mechanism. The Supreme Court then went further in  K Umadevi v. Government of Tamil Nadu (Umadevi case), and it held that maternity leave really comes from a woman’s right to dignity under Article 21. It also pointed out that Tamil Nadu’s service rules already treat twins born together as a single delivery but not as two surviving children.

Then by 2026, both the Madras High Court and the Telangana High Court had picked up this reasoning, and they ruled, plainly, that a twin birth counts as one delivery, not two. Around the same period, in Hamsanandini Nanduri v. Union of India, the Supreme Court invalidated another part of the Code, Section 60(4). That decision suggests the Court is prepared to scrutinise these provisions against the Constitution, while Section 60(3) still has not been tested in that way.

Purpose of Maternity Benefits and Changes Required

Birth realities and unequal legal matrix

The case of J Sharmila v Secretary to Government (Sharmila case) directly confronts the twin-birth in the first instance and distinguishes delivery from the number of children. The petitioner gave birth to twins in the first delivery and then one child in the subsequent delivery, which created a hurdle in claiming the legal facilities. The Madras High Court suggested regulating the maternity benefits with reference to deliveries. In another case from the Madras High Court, M Asiya Begum v. Union of India (Asiya Begum case) highlights that the law is intended to provide maternity leave for two deliveries, rather than to calculate entitlement simply by counting the number of children born in each delivery as conferred in the Priyadharsini case.

In recent cases, the Umadevi Case and the Deepika Singh Case, the Supreme Court evaluated the policy of two surviving children by emphasising that a literal interpretation of the law, which is welfare-oriented and aimed at maternity protection, can also defeat the object of the law, and in such cases, the law should not be read rigidly.

Consequently, the prevailing judicial consensus indicates that the number of surviving children should not be interpreted in the literal sense. The inference is that the deliveries were counted in a manner that resulted in the birth of twins in the first delivery or in the second delivery, and such deliveries do not result in the death of infants. Therefore, it is important to appreciate the difference between the “two surviving children” policy and the “number of fit deliveries”.

Differentiating number of surviving child and number of deliveries

Umadevi case and Deepika case provide grounds for women who are giving birth to twins in their first or in their second deliveries to claim their right to maternity benefits. Whereas, the Sharmila case and Asiya Begum case go to the root cause of the issue, which is the number of deliveries behind the number of surviving children.

In the policy on the number of surviving children, the law counts the number of children, although the High Courts interpret the number of surviving children with respect to the number of deliveries. Whereas, a few High Courts, while interpreting the number of surviving children concept, underline the fundamental of childbirth, i.e. the count of fit deliveries. If the law confers the right to claim the benefits under the relevant section of the Code by virtue of the number of fit deliveries, the ambiguity can be curbed.

Conclusion and Way Forward

The aim of the maternity benefit is to protect women in their pregnancy and childbirth, but the applicable provisions of the Code are ambiguous. The current code deals with the number of surviving children, but it should deal with the number of fit deliveries. The law assumes that each pregnancy gives only one child, and it has built maternity entitlements on that same idea. This makes a hurdle for women whose pregnancies are more demanding, such as cases involving multiple births. Recent judicial decisions have started moving away from a rigid child-counting way of looking at it, however, these rulings mostly deal with service rules for government employees, and this does not definitely resolve the statutory ambiguity under the Code for private sector employees. 

The current proviso mandates that the reduction in benefits be computed based on the number of fit deliveries rather than counting surviving children. An amendment to substitute “surviving children” with “fit deliveries” would ensure that reduced benefits are calculated based on the number of times a woman has delivered, irrespective of the number of children born during a single delivery. Further, the amendment can be read as:

“Provided that the maximum period entitled to maternity benefit by a woman who has undergone two or more fit deliveries shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery.”

Therefore, this targeted legislative amendment to the relevant section is required to cure this ambiguity. Since a woman who has twins in her first delivery would remain within the 26-week bracket for her next pregnancy, as she has already undergone one fit delivery and not two, the reduction would apply only once she has actually been through childbirth twice.