In 1977, the Supreme Court decided a case about a plantation worker and twelve Sundays. Her employer had paid maternity benefit for the 72 working days within twelve weeks of her absence, leaving out the Sundays. She claimed for all 84 days, and the Court held in B. Shah v. Presiding Officer, Labour Court (AIR 1978 SC 12) that maternity benefit must be paid for every day of absence. Under the Code on Social Security, 2020 (“Code”), the question is no longer about Sundays but about the measure of every day's benefit.

Section 60(1) of the Code, like Section 5(1) of the Maternity Benefit Act, 1961 (“1961 Act”), provides for maternity benefit “at the rate of the average daily wage for the period of her actual absence”. The average is drawn from “the woman's wages” over the three preceding calendar months. The words are largely the same, but they no longer mean the same thing. “Wages” is now defined not by Section 3(n) of the 1961 Act, which Section 164(1) of the Code repealed, but by the uniform definition in Section 2(88). This change can produce a smaller wage base, in some salary structures by as much as one-half. Judicial interpretation is unlikely to undo this, and the remedy lies with Parliament.

SAME WORD, DIFFERENT MEANING: “WAGES” UNDER SECTION 3(n) AND SECTION 2(88)

Under Section 3(n) of the 1961 Act, wages meant all remuneration paid or payable in cash under the contract of employment, and expressly included “such cash allowances (including dearness allowance and house rent allowance) as a woman is for the time being entitled to” and incentive bonus. In B. Shah, the Supreme Court read this definition as giving wages “a composite meaning”. It held that maternity benefit must be computed so that the woman gets “the amount equaling 100 per cent of the wages which she was previously earning in terms of section 3 (n)”.

Section 2(88) starts from all remuneration and then excludes the payments it lists. Basic pay, dearness allowance (“DA”) and retaining allowance are expressly included, and any other remuneration paid or payable in money, including allowances, remains wages unless the list excludes it. Some exclusions, such as overtime allowance, employer contributions to provident fund and gratuity, were excluded under Section 3(n) as well. The change that matters most here is that house rent allowance (“HRA”), which Section 3(n) named expressly, is now excluded. Conveyance allowance, which Section 3(n) did not expressly exclude, is now excluded by sub-clause (d).

Two provisos soften these exclusions, but only partly. Under the first, if the payments excluded under sub-clauses (a) to (i) together exceed one-half of all remuneration, or such other percentage as the Central Government may notify, the excess is added back. So long as the one-half figure stands, these exclusions can reduce the wage base by up to one-half, but no more. Under the second, the emoluments in sub-clauses (d), (f), (g) and (h), which include HRA, conveyance allowance, overtime allowance and remuneration under awards, settlements or orders, “shall be taken for computation of wage”, but only “for the purpose of equal wages to all genders and for the purpose of payment of wages”. Maternity benefit is not named there; had it been, HRA would count for it too.

WHAT THE CHANGE COSTS: AN ILLUSTRATION

Consider a woman whose pay of Rs. 60,000 a month consists only of Rs. 30,000 in basic pay and DA and Rs. 30,000 in HRA. Under Section 3(n), her wages were Rs. 60,000. Under Section 2(88), HRA is excluded and, since it does not exceed one-half, nothing is added back; her wages are Rs. 30,000. Had the same Rs. 60,000 comprised Rs. 24,000 of basic pay and DA and Rs. 36,000 of HRA, the excess of Rs. 6,000 would be added back. Her wages would still be Rs. 30,000. Over a benefit period of up to twenty-six weeks under Section 60(3), her maternity benefit is halved.

WHO BEARS THE LOSS

Not every woman bears this loss. Chapter VI is the employer-paid limb of maternity protection. Under Section 41(7)(b), a woman eligible for maternity benefit under Chapter IV cannot claim it under Chapter VI, although Section 61 preserves her Chapter VI entitlement until she qualifies under Section 32. The Labour Ministry's FAQs of March 2026 stated that the Rs. 21,000 ceiling notified for ESI coverage would apply, with wages defined by Section 2(88). Chapter VI therefore matters chiefly for women whose wages exceed that level, and for those employed where Chapter IV does not apply. Because the ceiling now applies to wages so defined, the exclusion of HRA may itself bring some women within the ESI wage ceiling. Under the proviso to Section 161(1), a woman entitled to a broader base under an award, agreement, contract of service or otherwise retains it. The reduction falls on women whose entitlement rests on the statute alone. Whether the uniform definition has a similar effect on maternity benefit under Chapter IV is a separate question.

CAN COURTS OR THE GOVERNMENT UNDO IT? READING, NOT REWRITING

The protective purpose recognised in B. Shah, read with Article 42 of the Constitution, invites the argument that courts should count HRA for maternity benefit. Such a reading would face considerable difficulty.

First, the opening words of Section 2, “unless the context otherwise requires”, offer limited assistance. The Supreme Court recently reiterated that “a defined term must ordinarily bear the meaning assigned to it”, and that it keeps that meaning in the “absence of any contextual indicia to the contrary”. In that case (Jagdeep Chowgule v. Sheela Chowgule, 2026 INSC 92), some High Courts had departed from the statutory definition of “Court” because applying it seemed to create a “jurisdictional anomaly”; the Supreme Court rejected that approach. A Constitution Bench in Bajaj Alliance General Insurance Co. Ltd. v. Rambha Devi (2024 INSC 840) relied on the statement that a definition gives way to contrary context when applying it to a provision “makes it unworkable and otiose”, and that those who say otherwise must “show that the context in fact so requires”. Section 60 is neither unworkable nor otiose on the Section 2(88) base. The context, if anything, supports the definition. Where Parliament wanted a term to bear a different meaning for particular Chapters, it said so: the provisos to Section 2(26) give “employee” a distinct meaning for Chapters IV and VII and, in part, Chapter III, and the proviso to Section 2(91) defines an “insured woman” for Chapter IV. It made no such provision for “wages” in Chapter VI. The Explanation to Section 60(1) defines the average daily wage by reference to “the woman's wages”, subject only to “the minimum rate of wage”, and restores none of the excluded allowances.

Second, counting HRA would require a court to look beyond the Code itself and supply an omission. An omission in a statute, a casus omissus, “cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself”. The Supreme Court reiterated this in Sangeeta Singh v. Union of India (2005 INSC 369). Here the four corners point the other way: as seen above, the second proviso to Section 2(88) leaves maternity benefit out. Courts proceed on the assumption that the legislature “did what it intended to do” (Dadi Jagannadham v. Jammulu Ramulu, 2001 INSC 388).

Third, B. Shah's reading of wages was a reading of Section 3(n), which no longer exists. The leading opinion in a recent nine-judge decision of the Supreme Court (State of Uttar Pradesh v. Jai Bir Singh, 2026 INSC 897) observed that the Industrial Relations Code, 2020 “must be interpreted on its own terms, having regard to its text, scheme, and object”. It confined that judgment to the Industrial Disputes Act, 1947, and stated that Bangalore Water Supply “shall not be regarded as the sheet anchor for the interpretation of the IR Code”. The same approach points towards applying Section 2(88) as enacted.

Fourth, Article 42 speaks of maternity relief but does not prescribe its measure. It may guide the choice between permissible readings; it would be difficult to invoke it to displace an express statutory exclusion.

The day of delivery shows where reading ends and rewriting begins. Section 5(1) of the 1961 Act expressly included “the actual day of her delivery”; Section 60(1) omits those words. Counting that day is harder because Section 60(1) defines the period with the words “that is to say”. But B. Shah read “period” in the same phrase as emphasising “the continuous running of time”, and a reading in that spirit may still count it. HRA stands differently: Section 2(88) excludes it by name.

Nor is there an executive route. Section 163 permits the Central Government to remove difficulties only by provisions “not inconsistent with the provisions of this Code”. An order restoring HRA or conveyance allowance for Chapter VI would contradict sub-clauses (d) and (f) of Section 2(88). Its counterpart in the Occupational Safety, Health and Working Conditions Code, 2020, Section 132, likewise cannot be used to rewrite a definition.

The constitutional route stands apart. In Hamsaanandini Nanduri v. Union of India (2026 INSC 246), the Supreme Court held that Section 60(4), insofar as it confined maternity benefit for adoptive mothers to children below three months of age, violated Articles 14 and 21. It directed that the sub-section “should now be meaningfully read” without that limit, so that a woman who legally adopts a child of any age is entitled to maternity benefit for twelve weeks. Chapter VI is thus open to constitutional scrutiny, though a challenge to the wage base would raise different questions, with an outcome that cannot be predicted.

THE WAY FORWARD: PARLIAMENT, NOT LITIGATION

Litigation is not a practical answer either. A constitutional challenge, by petition or on a court's own motion, would take time to be heard and decided. Maternity benefit does not wait: a woman on leave today is likely to exhaust her benefit period of up to twenty-six weeks long before any judgment. If maternity protection is to be inclusive in practice, Parliament should make the change, and can do so without that delay. Article 37 of the Constitution places on the State the duty to apply the Directive Principles, including Article 42, “in making laws”. Parliament could, for instance, add a sub-section to Section 60 on the lines of Section 3(n) of the 1961 Act:

“(6) For the purposes of this Chapter, notwithstanding anything contained in clause (88) of section 2, 'wages' shall include such cash allowances, including house rent allowance but not overtime allowance, as the woman is for the time being entitled to.”

Adding maternity benefit to the second proviso of Section 2(88) would be less precise, since it would also bring in overtime allowance, which Section 3(n) had excluded. Until Parliament acts, more favourable terms preserved by Section 161 remain the only certain safeguard.

B. Shah required a beneficent construction that would enable a woman worker “not only to subsist” but also to “nurse her child”. Hamsaanandini Nanduri describes maternity benefit as “providing economic security” when women “are most engaged in the care and nurture of a young child”. The Code keeps the rate but changes the measure, computing the benefit on a base that may be one-half of what she earns. Whether or not Parliament intended that result, a reduction of this order in a welfare entitlement should be an express legislative choice, not the by-product of a uniform definition. Until that choice is made, the Code preserves every week of maternity benefit, but not every rupee of it. The price of uniformity should not be paid by women on maternity leave.

Author is an Advocate practicing at Patna High Court. Views are personal.