Section 5 — Right to payment of maternity benefit.

5. Right to payment of maternity benefit.—
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[(1) Subject to the provisions of this Act, every woman 

shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the 

average daily wage for the period of her actual absence, that is to say, the period immediately preceding 

the day of her delivery, the actual day of her delivery and any period immediately following that day.] 

Explanation.—For the purpose of this sub-section, the average daily wage means the average of the 

woman’s wages payable to her for the days on which she has worked during the period of three calendar 

months immediately preceding the date from which she absents herself on account of maternity, 
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[the 

minimum rate of wage fixed or revised under the Minimum Wages Act, 1948 (11 of 1948) or ten rupees, 

whichever is the highest]. 

(2) No woman shall be entitled to maternity benefit unless she has actually worked in an 

establishment of the employer from whom she claims maternity benefit, for a period of not less 

than 
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[eighty days] in the twelve months immediately preceding the date of her expected delivery: 

                                                           
1. Subs. by Act 29 of 1995, s. 3, for “or her miscarriage” (w.e.f. 1-2-1996).  

2. Subs. by Act 61 of 1988, s. 4, for the opening paragraph (w.e.f. 10-1-1989). 

3. Subs. by s. 4, ibid., for “or one rupee a day, whichever is higher.” (w.e.f. 10-1-1989).  

4. Subs. by s. 4, ibid., for “one hundred and sixty days” (w.e.f. 10-1-1989).  



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Provided that the qualifying period of 
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[eighty days] aforesaid shall not apply to a woman who has 

immigrated into the State of Assam and was pregnant at the time of the immigration. 

Explanation.—For the purpose of calculating under this sub-section the days on which a woman has 

actually worked in the establishment, 
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[the days for which she has been laid off or was on holidays 

declared under any law for the time being in force to be holidays with wages] during the period of twelve 

months immediately preceding the date of her expected delivery shall be taken into account. 

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[(3) The maximum period for which any woman shall be entitled to maternity benefit shall be 

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[twenty-six weeks of which not more than eight weeks] shall precede the date of her expected delivery:] 

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[Provided that the maximum period entitled to maternity benefit by a woman having two or more 

than two surviving children shall be twelve weeks of which not more than six weeks shall precede the 

date of her expected delivery:] 

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[Provided further that] where a woman dies during this period, the maternity benefit shall be payable 

payable only for the days up to and including the day of her death: 

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[ 

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[Provided also that] where a woman, having been delivered of a child, dies during her delivery or 

during the period immediately following the date of her delivery for which she is entitled for the 

maternity benefit, leaving behind in either case the child, the employer shall be liable for the maternity 

benefit for that entire period but if the child also dies during the said period, then, for the days up to and 

including the date of the death of the Child.] 

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[(4) A woman who legally adopts a child below the age of three months or a commissioning mother 

shall be entitled to maternity benefit for a period of twelve weeks from the date the child is handed over 

to the adopting mother or the commissioning mother, as the case may be.  

(5) In case where the nature of work assigned to a woman is of such nature that she may work from 

home, the employer may allow her to do so after availing of the maternity benefit for such period and on 

such conditions as the employer and the woman may mutually agree.]