Quick Summary: Maternity and Paternity Leave in India
Key Takeaways: Foreign employers with 10 or more employees in India must fund 26 weeks of fully paid maternity leave for the first two children, with no government offset unless the employee is ESI-covered. The Code on Social Security, 2020 replaced the Maternity Benefit Act in November 2025. The March 2026 Supreme Court ruling removed the age cap on adopted children for maternity leave eligibility. Paternity leave remains entirely discretionary in the private sector.
India’s maternity leave rules sit among the most demanding employer obligations in Asia. Under the Code on Social Security, 2020, which came into force on 21 November 2025, any company with ten or more employees in India must provide up to 26 weeks of fully paid maternity leave, fund crèche facilities once headcount reaches 50, and maintain a hard prohibition on dismissal throughout the leave period.
Paternity leave is a different story: there is still no private sector statutory floor, and only around 14% of Indian companies have a formal policy.
This page covers what the law requires, how pay is calculated, what the November 2025 Labour Codes changed, where the March 2026 Supreme Court ruling expanded adoptive mothers’ rights, and what a compliant India leave policy looks like for a foreign employer.
For a ranked comparison of EOR providers that handle all of this on your behalf, see the India EOR guide.
India Maternity and Paternity Leave: Key Numbers at a Glance
The legal framework as of 2026
From the Maternity Benefit Act to the Social Security Code
India’s maternity leave law operated under the Maternity Benefit Act, 1961 for over six decades. The 2017 amendment was the most significant update in that period: it extended paid leave from 12 weeks to 26 weeks for the first two children, introduced rights for adoptive and commissioning mothers for the first time, and made crèche facilities mandatory for larger establishments.
On 21 November 2025, the Government of India notified all four new Labour Codes, bringing the Code on Social Security, 2020 into force. The Code repeals the Maternity Benefit Act, 1961 and consolidates its provisions under Chapter VI, Sections 59 to 72.
For employees in the organised sector, the core entitlements did not change. What changed is scope: the Code is designed to extend maternity protection to gig and platform workers through state-notified social security schemes, though those schemes are still being finalised as of mid-2026.
For foreign employers hiring Indian employees directly or through an EOR, the operative rules are in Chapter VI of the SS Code. Central draft rules were published in December 2025 for consultation, and state-level rules are being notified progressively. Employers operating across multiple states should monitor each state’s notification timeline.
A separate development came on 17 March 2026, when the Supreme Court of India struck down the provision limiting adoptive mothers’ maternity leave to cases where the child was below three months of age.
The Court treated maternity leave as a constitutional right linked to the child’s welfare, not a conditional benefit. Any India maternity policy drafted before March 2026 needs to reflect this ruling.
Who is covered and who is not
The 10-employee threshold
The Code applies to every factory, mine, plantation, shop, and establishment employing 10 or more persons. For a foreign company, that count includes remote employees working from India on a direct employment agreement, employees engaged through a staffing vendor, and workers hired via an EOR.
The 10-person threshold applies to the establishment as a whole, not per city or state. A company with 7 employees in Bangalore and 5 in Pune crosses it.
Below 10 employees, the statutory maternity obligation does not apply, though employment agreements may still create contractual entitlements. The SS Code creates a mechanism to extend benefits to unorganised workers through government-funded schemes, but those are not yet in operation.
ESI-covered employees vs direct employer liability
How maternity pay is funded depends on whether the employee falls under the Employees’ State Insurance scheme. ESI applies to employees earning up to Rs. 21,000 per month (Rs. 25,000 for persons with disabilities).
For ESI-covered employees, maternity benefits are paid by the ESI Corporation, not the employer. The employer’s obligation is to ensure correct registration and contribution.
For employees earning above Rs. 21,000 per month, which covers most professionals that foreign companies hire in India, ESI does not apply. The employer bears the full cost of maternity pay.
That means 26 weeks of full salary per eligible employee with no government offset. For a non-ESI employee earning Rs. 1.5 lakh per month, one maternity leave costs approximately Rs. 9 lakhs in salary alone.
ESI-covered vs employer-funded maternity pay
Maternity leave entitlements in full
26 weeks for the first two children
A woman employee is entitled to 26 weeks of paid maternity leave for her first and second child. Up to 8 weeks of that can be taken before the expected delivery date. The mandatory post-delivery rest is 6 weeks: a woman cannot be required to work in the 6 weeks immediately after delivery under any arrangement. The remaining weeks can be distributed within the 26-week total as needed.
To qualify, the employee must have worked for at least 80 days in the 12 months before her expected delivery date. That is roughly 3.5 months of continuous employment, a low bar by international standards.
Fixed-term employees, contractual workers, and those hired through third-party contractors all count toward eligibility, provided the establishment has 10 or more employees.
12 weeks for the third child or more
Where a woman already has two surviving children at the time of delivery, the entitlement reduces to 12 weeks, with a maximum of 6 weeks before the expected delivery date. The distinction is based on the number of surviving children at the point of delivery, not the total number of pregnancies.
Adoptive and commissioning mothers
A woman who legally adopts a child is entitled to 12 weeks of paid maternity leave from the date the child is handed over to her. The same applies to a commissioning mother, defined as a biological mother who uses a surrogate to carry the pregnancy.
Until March 2026, both entitlements were conditional on the child being under three months of age at the time of adoption or handover.
The Supreme Court struck down that condition on 17 March 2026, ruling that restricting maternity leave based on the child’s age at adoption violated the child’s right to care and the mother’s constitutional rights. Employers must treat adoptive mother maternity leave as applicable regardless of the child’s age. Any India leave policy drafted before this ruling needs to be updated.
Leave for miscarriage and medical termination
A woman who suffers a miscarriage or undergoes a medical termination of pregnancy is entitled to 6 weeks of paid leave from the date of the event, with no 80-day minimum employment requirement. A tubectomy entitles the employee to 2 weeks of paid leave post-operation.
Leave for illness arising from pregnancy, delivery, or miscarriage can be extended further on medical certification.
How maternity pay is calculated
Maternity pay equals the employee’s average daily wage for each day of leave taken. The average is calculated on wages actually paid in the three calendar months immediately preceding the expected delivery date.
Under the Code on Social Security, 2020, the definition of “wages” follows the Code on Wages, 2019, which includes basic pay and dearness allowance. Discretionary bonuses, overtime, and reimbursements are excluded.
This wage definition has a practical consequence for employers. The Labour Codes require that allowances cannot exceed 50% of total wages, meaning basic pay must constitute at least half the CTC. For employees historically structured with a low basic and high allowances, the effective wage base for maternity pay has increased.
Employers who have restructured salary to comply with the new definition may find their maternity liability higher than it was under the old Act.
Payment for the pre-delivery period is due in advance once the employer receives written notice of the pregnancy and intended leave dates. Payment for the post-delivery period is due on production of proof of delivery. Withholding maternity pay on the grounds that documentation was delayed is not a permitted reason for non-payment.
Employer obligations beyond leave duration
Medical bonus
If the employer does not provide free pre-natal and post-natal care, the employee is entitled to a medical bonus of Rs. 3,500 under Section 64 of the Code on Social Security, 2020.
This replaces the Rs. 1,000 figure in the original 1961 Act, and the Central Government can revise it further up to a ceiling of Rs. 20,000. Employers who provide comprehensive healthcare including ante-natal and post-natal care are exempt from the cash payment.
Crèche requirement
Establishments with 50 or more employees must provide crèche facilities within a prescribed distance of the workplace. The facility can be standalone or shared with neighbouring employers. Women employees must be permitted to visit the crèche four times a day, including during rest intervals.
Some employers provide a cash crèche allowance instead of a physical facility, though the legislative intent favours an accessible physical facility.
Work-from-home provision
Once the maternity leave period ends, the employer may allow the employee to work from home if the nature of work permits. This requires mutual agreement: it is not an entitlement the employee can exercise unilaterally.
For foreign companies with remote-first policies, formalising a WFH return plan for every returning employee is straightforward to implement and expected by most candidates.
Nursing breaks
After returning from maternity leave, a woman employee is entitled to two nursing breaks per day until the child reaches a specified age. These breaks are in addition to standard rest intervals. Employers cannot count nursing breaks as absence or deduct pay for the time.
Notice, documentation, and display obligations
A woman intending to take maternity leave must give advance written notice to the employer specifying the intended start date. Employers must maintain registers showing maternity benefits granted and must display an abstract of the applicable provisions in a conspicuous place at the establishment.
Employers are also required to inform every woman employee of her maternity entitlements at the time of appointment. Failure to do this is a violation in its own right, separate from any failure to provide the leave itself.
Prohibition on dismissal
An employer cannot discharge or dismiss a woman during maternity leave, or give notice of dismissal during leave such that the notice expires while she is still on leave.
If a woman is dismissed during pregnancy before leave begins, and she would have otherwise been entitled to maternity benefit, the entitlement survives the dismissal unless it was for a prescribed act of gross misconduct. Any variation to her conditions of service that disadvantages her during maternity leave is also unlawful.
Key dates in India’s maternity law
Penalties for non-compliance
Non-compliance with maternity benefit obligations carries criminal liability under the Code on Social Security, 2020. An employer who fails to pay maternity benefit, or who dismisses a woman in violation of the Code, faces imprisonment of not less than three months, extendable to one year, plus a fine of not less than Rs. 10,000, extendable to Rs. 50,000. Both apply simultaneously.
The enforcement mechanism under the new Code has shifted from the old Inspector model to an Inspector-cum-Facilitator system. In practice this means employers who maintain proper documentation, inform employees of their entitlements, and pay correctly are less likely to face punitive action on first contact.
Employers who have no records, have withheld benefits after a complaint, or dismissed a pregnant employee are a different matter. A single maternity leave complaint generates significant legal exposure for a foreign employer with no India HR infrastructure in place.
Maternity compliance: penalties under the Code on Social Security, 2020
| Violation | Imprisonment | Fine |
|---|---|---|
| Failure to pay maternity benefit or medical bonus | 3 months to 1 year | Rs. 10,000 to Rs. 50,000 |
| Dismissal or discharge during maternity leave | 3 months to 1 year | Rs. 10,000 to Rs. 50,000 |
| Failure to maintain required registers or records | N/A | Up to Rs. 50,000 |
| Failure to inform employees of entitlements at appointment | N/A | Up to Rs. 50,000 |
| Creche obligation failure (50 or more employees) | N/A | Up to Rs. 50,000 |
Paternity leave — the private sector gap
What the law actually says
There is no national law mandating paternity leave for private sector employers in India. The only statutory entitlement sits in Central Civil Services (Leave) Rule 551(A), 1972, which grants 15 days of paid paternity leave to central government employees within 6 months of the child’s birth or adoption.
This rule does not extend to state government employees, public sector undertakings, or any private company.
A Paternity Benefit Bill was introduced in Parliament in 2017, proposing 15 days of paid paternity leave across sectors. It was not passed.
The Code on Social Security, 2020 uses gender-neutral parental leave language and the Supreme Court’s March 2026 ruling included an observation on the need for a statutory paternity leave framework, but as of June 2026 no private sector obligation exists.
What competitive employers actually offer
Only around 14% of Indian private companies have a formal, documented paternity leave policy. Among those that do, the range is typically 5 to 15 days of paid leave. Large tech employers set a higher bar: Wipro offers 8 weeks, Zomato matches maternity leave at 26 weeks, and Tata Consultancy Services offers 15 days. These are voluntary policies, not statutory requirements.
For a foreign employer, the absence of a legal minimum creates an opportunity. Companies that offer 10 to 15 days of paid paternity leave immediately differentiate themselves from the majority of the Indian private sector.
In tech hiring especially, where paternity leave has become a standard candidate expectation at the senior level, having no policy at all is a meaningful disadvantage in offer negotiations.
What the Labour Codes may change
The SS Code does not mandate private sector paternity leave, but it uses parental leave language that could serve as a legislative foundation. State-level rules are being notified through 2026, and some states may go further than the central framework.
Employers who build a documented paternity leave policy now face no adjustment cost if a statutory floor is introduced. Those who wait will have to retrofit it under pressure.
What foreign employers should build into their India leave policy
A compliant India maternity and parental leave policy needs to cover at minimum: 26 weeks paid for the first two children, 12 weeks paid for the third child or more, 12 weeks for adoptive and commissioning mothers with no restriction on the child’s age, 6 weeks for miscarriage, the Rs. 3,500 medical bonus where no ante-natal care is provided, nursing breaks post-return, crèche provision if the team exceeds 50, a mutual WFH arrangement post-leave, and a written reinstatement guarantee.
On paternity leave, the competitive floor for foreign employers in India is 10 to 15 days paid. Companies with global parental leave policies should extend those to India rather than treating India as a no-policy jurisdiction.
For companies hiring through an India EOR provider, the EOR holds the legal employer status and manages statutory compliance, but the commercial client should confirm the EOR’s leave policy reflects the March 2026 Supreme Court ruling on adoptive mothers, not just the pre-ruling framework.
Budget for maternity leave in your India headcount plan from day one. ESI applies only below Rs. 21,000 per month, so for most professional hires the cost falls entirely on you. Some EOR providers include maternity leave cost modelling in their employer cost calculators, which is worth asking about before you sign.
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