The honest answer is that you almost certainly cannot, and that the cases where you can are narrower than the ones employers usually have in mind.
India protects pregnancy and maternity through three overlapping layers: an express statutory prohibition on dismissal for absence during pregnancy, constitutional protection against arbitrary and discriminatory treatment, and the ordinary termination rules that apply to everyone. A termination has to survive all three, and the first one is close to absolute.
| Governing law since 21 Nov 2025 | Code on Social Security, 2020, Chapter VI |
| Maternity benefit | Up to 26 weeks (s.60) |
| Qualifying service | 80 days in the preceding 12 months |
| Dismissal for absence during pregnancy | Prohibited (s.68) |
| Creche facility | 50 or more employees (s.67) |
| Constitutional backdrop | Articles 14, 15, 21 |
Position stated as at July 2026. The Maternity Benefit Act, 1961 was repealed and its subject matter absorbed into Chapter VI of the Code on Social Security, 2020.
Where the law now sits
The Maternity Benefit Act, 1961 is gone. Its provisions are now Chapter VI of the Code on Social Security, 2020, at sections 59 to 72. If your policies cite the 1961 Act, they cite a repealed statute. The section map:
| Section | Provision |
|---|---|
| s.59 | Employment of, or work by, women prohibited during certain periods — no work in the six weeks immediately following delivery, miscarriage or medical termination |
| s.60 | Right to payment of maternity benefit — at the average daily wage for the period of actual absence; 80 days' qualifying service in the preceding twelve months; maximum 26 weeks, of which not more than 8 may precede the expected delivery date, reduced for a woman with two or more surviving children |
| s.61 | Continuance of payment in certain cases |
| s.62 | Notice of claim and payment |
| s.63 | Payment in case of the woman's death |
| s.64 | Medical bonus |
| s.65 | Leave for miscarriage and medical termination |
| s.66 | Nursing breaks |
| s.67 | Creche facility — establishments with 50 or more employees |
| s.68 | Dismissal for absence during pregnancy |
| s.69 | No deduction of wages in certain cases |
| s.70 | Forfeiture of maternity benefit |
| s.71 | Duties of employer |
Section 68: the hard stop
The protection operates in two ways that employers regularly underestimate.
First, a woman absent from work in accordance with the maternity provisions cannot be dismissed or discharged on account of that absence. Second — and this is the part that catches people — a notice of termination given at such time that it would expire during her absence is caught as well. You cannot serve notice before the leave starts and let the clock run out during it.
Discharging or dismissing a woman during pregnancy also does not, by itself, extinguish her entitlement to the maternity benefit and medical bonus.
The constitutional layer
Behind the statute sits Air India v Nergesh Meerza, AIR 1981 SC 1829. Air India's service regulations required air hostesses to retire on marriage within four years of joining, on first pregnancy, or at 35, whichever came first. Male cabin crew faced no equivalent.
The Supreme Court struck down the pregnancy and early-marriage bars as manifestly unreasonable and arbitrary, violating Article 14. It observed that termination on first pregnancy was an extreme step taken without considering alternatives such as temporary grounding or leave, and that a rule impeding a woman's decision to have children offends human values.
But the judgment is more nuanced than the summaries, and the nuance matters:
| Challenged | Outcome |
|---|---|
| Termination on first pregnancy | Struck down — grossly unreasonable and arbitrary, violating Article 14 |
| Retirement on marriage within four years of joining | Struck down |
| Managing Director's unguided discretion to extend service | Struck down — excessive delegation open to discrimination |
| Lower retirement age for air hostesses than for male flight pursers | Upheld — treated as a reasonable classification given the nature of the work and the different service conditions of the two cadres |
The case is not authority for a general prohibition on sex-differentiated service conditions. It is authority that a rule terminating employment on pregnancy or early marriage is arbitrary. If you cite it, cite it accurately — the audience for this material will know.
The narrow space where termination is possible
Not zero, but narrow, and every one of these carries real risk:
| Situation | Position |
|---|---|
| Proven gross misconduct, unrelated to the pregnancy | Available in principle. The protection is against dismissal on account of maternity absence, not an immunity from discipline. Expect the process to be examined with unusual care, and expect the timing to be the first question. |
| Genuine closure of the entire establishment | Available, but maternity benefit entitlement may survive the closure. |
| Expiry of a genuine fixed-term contract | Fact-sensitive. Courts have held that a woman who satisfies the qualifying service is entitled to the benefit even where her contract ends before the leave period is complete, so the entitlement can outlive the engagement. |
| Documented performance failure predating the pregnancy | Weakest of the four in practice. Only viable where the performance record, warnings and improvement plan are all contemporaneous and all predate disclosure. |
What to do instead
- Separate the decision from the disclosure in time and in the record. If a restructure was decided in March and the pregnancy disclosed in April, the March board pack is your evidence. If the order is reversed, you have a problem no drafting will fix.
- Keep the role open and backfill on a fixed term. The Code now recognises fixed-term employment with benefit parity, which makes this cleaner than it used to be.
- Do not treat the leave period as an evaluation window. Performance conversations paused before the leave should resume after it, on the same terms.
- Handle return-to-work properly. Nursing breaks under s.66, creche access under s.67 where the 50-employee threshold is met, and a genuine discussion about arrangements rather than a demotion dressed as flexibility.
- Watch the constructive-dismissal risk. Removing responsibilities, changing reporting lines or relocating someone on return is a familiar route to a claim that the resignation was not voluntary.
Consequences of getting it wrong
Unlike most Indian labour provisions, the maternity chapter carries imprisonment as well as fines for specified contraventions, including failure to pay maternity benefit and unlawful discharge or dismissal. Unpaid benefit can be recovered as an arrear of land revenue. Beyond the statute there is the ordinary exposure — a challenge to the termination, potential reinstatement, and for a listed or investor-backed company, a disclosure and diligence problem that outlasts the dispute.
A record-keeping point
Every defence in this area is a chronology: when the restructure was approved, when the disclosure was made, when leave started, when notice was served, what the performance record said and on what date. Helion keeps employment events, leave, performance records and approvals on one timeline against the same employee, so the sequence can be reconstructed as it happened rather than assembled from four systems after a claim arrives.
Frequently asked questions
Can you terminate an employee who is on maternity leave in India?
Section 68 of the Code on Social Security, 2020 prohibits dismissing or discharging a woman for absence in accordance with the maternity provisions, and also catches a notice of termination given at such time that it would expire during her absence. Dismissal during pregnancy does not by itself extinguish her entitlement to maternity benefit and medical bonus.
Is the Maternity Benefit Act, 1961 still in force?
No. It was repealed and its subject matter is now Chapter VI of the Code on Social Security, 2020, at sections 59 to 72, which came into force on 21 November 2025.
How much maternity leave is an employee entitled to?
Up to 26 weeks under Section 60, of which not more than 8 weeks may precede the expected date of delivery, with a reduced period for a woman who already has two or more surviving children. She must have worked at least 80 days in the twelve months preceding the expected delivery date.
Can we make a pregnant employee redundant in a genuine restructure?
A genuine restructure is not automatically unlawful, but the timing and the contemporaneous record will be examined closely — when the decision was taken relative to the disclosure, who else was in the affected pool, and whether the selection criteria predated the disclosure. A record created after the event is unlikely to succeed.
What is the penalty for dismissing a pregnant employee?
The maternity provisions of the Code on Social Security carry both fines and imprisonment for specified contraventions, including failure to pay maternity benefit and unlawful discharge. Unpaid amounts can be recovered as arrears of land revenue, and the termination itself remains open to challenge.
Does Air India v Nergesh Meerza prohibit all sex-based service conditions?
No. The Supreme Court struck down the bars on continued service on first pregnancy and on marriage within four years, and the Managing Director's unguided discretion, as arbitrary under Article 14 — but it upheld the differential retirement age as a reasonable classification given the nature of the work. It is authority against pregnancy and marriage bars specifically, not a general rule.
Do maternity protections apply to fixed-term and contract employees?
The qualifying condition is 80 days of work in the preceding twelve months, not a particular contractual form. Courts have held that a woman meeting the qualifying service is entitled to the benefit even where her engagement ends before the leave period is complete.