The Void Between Return And Retention: Deconstructing Motherhood Penalty In India

In the era of women empowerment, our country is making significant strides with progressive Constitutional amendments like the Nari Shakti Vandan Adhiniyam, 2023 providing 33% reservation frameworks. India's constitutional commitment to equality and dignity, encouraging increasing women participation in the public arena has often been lauded. Yet, a persistent hindrance pervasive across sectors remains largely unaddressed. It is a matter of grave national concern that a significant number of women face structural obstacles after return post childbirth and many exit the workforce even in highly skilled and professional sectors, despite the existence of statutory mechanisms like the Maternity Benefit Act, 1961.

These exits are often regarded as matters of personal conviction where women prioritise caregiving, family life and personal fulfilment. While such choices undoubtedly exist, this narrative obscures the structural constraints that shape them.

Our country boasts of robust statutory maternity benefits that with recent – 2017 amendment goes on to surpass the international average threshold of 18 weeks of paid leave. In addition to that, Corporates are increasingly being mindful of diversity and inclusion. The persistence of significant number of exits at the outset of such developments underscores a systemic loophole that remains unaddressed.

When 'choice' is not free

Choice in constitutional terms is unconstrained if that's not influenced by systemic compulsion. The decision to leave workplace by many women is shaped by inflexible workplace structures, removal from key projects, an assumption of reduced commitment, absence of breastfeeding facilities and uneven distribution of care-giving tasks. The Supreme Court in the case of Air India v. Nergesh Meerza^[1] has emphasized that employment policies that fails to recognise biological and social realities of women may violate equality guarantees. Decades after this judgement, workplaces still continue to be centred around structures that proves to be unsustainable, eventually resulting in a trade-off between personal and professional commitments. 'Exit' there becomes a compelled outcome rather than a voluntary preference.

Motherhood penalty across different sectors -

According to Periodic Labour Force Survey (PLFS) 2023-2024, India's Female Labour Force Participation Rate (FLFPR) has witnessed a rise, up from 23.3% in 2017-18 to 41.7%.

According to a NASSCOM report, the IT industry has 36% women in workforce. Yet, their representation in the leadership roles remains less than 10%. While the numbers remain significantly higher during entry levels, it drops down significantly especially during life-events like childbirth. In HR nomenclature, this is termed as 'leaky pipeline,' sometimes sought to be addressed by returnship programmes. While return rates remain commendably high, the retention rate paints a dull picture. Women who continue to remain in the office beyond one or two years post returning from maternity leave remains significantly low. The problem does not stem from a loss of ambition but from an absence of supportive structure, an assumption of reduced commitment and a near absence of a society that walks on the path of shared parenting.

Infosys for example in FY24, posed a strong Return to work rate (RTWR) of 99.2% but retention posited only to 74%^[2].

A recent survey conducted among 301 female legal professionals from the Delhi-NCR region by the Supreme Court Bar Association (SCBA), unveils persistent gender bias faced by women advocates. Nearly one-third of the respondents have encountered gender bias and many found it difficult to strike a work-life balance especially with responsibilities associated with marriage and motherhood. The survey underscored motherhood related difficulties with 56.8% of women reporting hurdles faced while resuming work post-pregnancy. 31.3% of them faced difficulties in securing case deferment during this period.

The plight of Women Healthcare Professionals (WHP) is not far behind. The benefits extended by statutory provisions sometimes gets eclipsed by advanced contract clauses of private employers. The designation accorded to 'resident doctors' in various States is a matter of debate. While some recognise them as 'employees,' others as 'students.' This categorisation is important. The absence of which may place them in a grey area. Depending upon the State regulation and institutional policy, some are entitled to maternity benefits while others are not.^[3]Recently, the Telangana Senior Residents Doctors Association (T-SRDA) has flagged concerns after female PG doctors were asked to deposit a controversial 'rejoining fee' of Rs.15000 post maternity leave. Calling it 'unjustified,' they identified it as a symptom exposing deeper systemic gaps prevalent across government medical colleges while handling maternity leave.^[4]

The legal protection and its reach

Maternity benefit flows from the right to life and dignity under Article 21 as held by the supreme court in Municipal Corporation of Delhi v. Female Workers (Muster roll)^[5].

The Maternity Benefit Act,1961 is the primary Indian legislation safeguarding motherhood rights to working women. The amendment Act, 2017 extended paid maternity leave from 12 weeks to 26 weeks. While the framework is progressive yet, it remains incomplete. While it mandates paid leave to expecting mothers, it does not expressly address the challenges faced by them in their workplaces after return.

Workplace discrimination post childbirth is rarely explicit and manifests in subtle forms which are difficult to challenge without any proper law addressing them. It is disguised as stalled career growth, slower promotions, among many others; subsequently weakening the female leadership pipeline in key positions. Such disparities result in an erosion of core fundamental values of equality under Article 14 and prohibition of discrimination under Article 15 of the constitution.

Moreover, it's implementation in informal and unorganised sector remains relatively weak^[6]. According to PLFS 2022-23 report, agriculture is the largest sector engaging more than 60% of the female workforce in India. The Maternity benefit Act, 1961 only mandates paid maternity leave for industries or firms with more than 10 workers. Thus small industries and other setups with lower strength below the threshold can escape from making such provisions. Henceforth, there is a failure in extending the benefits to women employed in the informal economy – particularly as domestic workers where official figures range from about 4.2 million to far higher unofficial estimates of more than 50 million workers, where women or children (especially girls) comprise of nearly 90% of the workforce^[7]. Based on Periodic Labour Force Survey (PLFS) data, policy researchers at ORF find domestic work as the second largest sector for female employment in urban India^[8]. This workforce draws employment mostly from economically marginalised strata and works without formal protection, highlighting a stark divide between formal workplace policies and the ground realities of many working women.

Loss beyond statistics

The Supreme Court has recognised the right to livelihood as an integral part under Article 21 in its landmark judgement in the case of Olga Tellis v. Bombay Municipal Corporation^[9].

Employment is intrinsically linked to one's identity, autonomy and financial independence. Moreover, such withdrawal is not only limited to individual loss. It is a shared loss whereby nation loses its able workforce, organisation loses skilled professionals and economic productivity is severely hit. According to a report by International Monetary Fund (IMF), closing the gender gap in workforce can boost India's GDP by 27% (Ostry et al. 2018).

Need of the hour

Despite the obstacles, there is a looming hope. An inspiring 58.9% of the women surveyed by SCBA expressed a desire to pursue leadership roles in the Bar while over 95% of the respondents believe that supportive institutional policies including but not limited to maternity leave, crèche facilities and health insurance, play a crucial role in furtherance to better professional outputs. This calls for a robust policy implementation to bridge the gap from aspirations to reality. This can include-

• Flexible working structures offering hybrid work and flexible timing during early childcare phases. This should not be viewed as a special grant but a legitimate organisational provision that recognises caregiving as a social responsibility.
• Comprehensive maternity framework that covers women across both organised as well as unorganised sectors including those engaged in gig economy.
• Internal audit and retention disclosures for post-maternity employees in ESG reporting.
• Stricter implementation of crèche facilities and dedicated breast-feeding support spaces. These are basic necessities for mothers to participate in workforce with dignity.
• Shared parental regime offering paternal leave – It's high time that society normalise caregiving for men and policies must appreciate that by strengthening paternal leave.

Caregiving must be treated as a shared responsibility and not a women's burden – only then workplaces would stop penalising mothers for choosing both career and family.

Till the time there is a comprehensive framework, the present statutory mechanisms would remain as a half-baked solution. Law and policy must look beyond maternity leave to full caregiving cycle. Without structural reforms, returnship programmes would remain as a temporal remedial patch rather than durable solutions. Motherhood does not demand only paid leave. It appreciates compassion and humane adjustments. 'Exits' post childbirth does not reflect lack of ambition rather a system that fails them. Retention should equally be a concern as that of return. Until that is addressed, postpartum attrition would be veiled under sheer veneer of 'choices' – masking a deeper failure of constitutional governance. A constitutional commitment to equality must accompany women through caregiving and employment so that motherhood does not become the price of ambition.

End Notes

1. Air India v. Nergesh Meerza AIR 1981 SC 1829 ↑

2. Infosys Gender Pay Report 2024 ↑

3. Indian Journal of Medical and Paediatric Oncology (2022) - Maternity and Childcare Domain of Women in Medical Profession by T S Shylasree, Rohini Kulkarni and Lavanya Gurram ↑

4. Maternity leave turns costly for PG doctors; doctors' body seeks waiver of rejoining fee – published on December,15, 2025 The Hindu ↑

5. Municipal Corporation of Delhi v. Female workers (Muster Roll and Another) AIR 2000 SC 1274 ↑

6. Wage-linked Maternity Entitlements for Women Workers in the Informal Sector by NIDAN ↑

7. The State of Domestic Workers in India, National Domestic Workers' Movement ↑

8. Empowering domestic workers in urban India by Meghana Lakkireddy and Anusha Kesarkar Gavankar, Observer Research Foundation ↑

9. Olga Tellis & Others v. Bombay Municipal Corporation & Others 1985 SCC (3) 545 ↑

References

Aon plc, Voice of Women study, (2024)

J. D. Ostry, J. Alvarez, R. Espinoza and C Papageorgiou, Economic Gains from Gender Inclusion: New Mechanisms, New Evidence, (International Monetary Fund, Staff Discussion Note SDN/18/06, 2018)

NASSCOM Foundation, EmPowerHer: Nasscom Foundation's Women Wizards Unleashed

Supreme Court Bar Association, survey – 'We- Women Empowerment in Law: A Panel Discussion on Struggle and Success' presented in December, 2025

T S Kavita Rajeshwari & Avanindra Nath Thakur & Manini Ojha & IndiaSpend, 94% working Indian Women without workplace maternity benefits, NEWSLAUNDRY (2024)

Shani Orgad, – Women who Quit: Media and Policy Discourse about Gender and Work, 3 LSE Public Policy Rev. 4 (2025

The Author Is A Law Student At National Law University Jodhpur

Views Are Personal