A brief note on the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 N.

Murali Krishna, Chief Law Superintendent, South Central Railway, Secunderabad

The joys of parents are secret, so are their grieves and fears Francis Bacon Abandoned parents provided succor under Senior Citizens Act, is the headline of a news item in the Hindu1. A poignant tale where parents were abandoned by their children for their fate in the twilight period of their life after taking away the property and other assets. The saying that the one thing children wear out faster than shoes is parents2 is apt to refer to the love and affection that parents bestow on their children and make many sacrifices for giving a better life to their children. Societal morals have touched their nadir in these materialistic life of the people of the country that remedy only lies in enacting statute for fixing liability rather than imbibing the inherent cultural values. Traditionally, it has been part of Indian culture that society and the family take care of older persons. Senior Citizens are held in high esteem and are given priority and respect in all matters. However, rapid urbanization and the breakdown of the traditional joint family system resulting in the growth of nuclear families, have lead to negligence of senior citizens3. In old age physical strength deteriorates, mental stability diminishes; earning capacity diminishes coupled with negligence from the younger generation. According to an estimate nearly 40% of senior citizens living with their families are reportedly facing abuse of one kind or another, but only 1 in 6 cases actually comes to light. After a certain age health problems begin to crop up leading to losing control over one's body. It is then children began to see their parents as burden. Consequently, many older persons, particularly widowed women are now forced to spend their twilight years all alone and are exposed to emotional neglect and to lack of physical and financial support. This clearly reveals that ageing has become a major social challenge and there is a need to give more attention to the care and protection for the older persons4. Code of Criminal Procedure, 19735 provides for persons who have sufficient means to take care of his or her parents if they are unable to take care of themselves and Hindu Adoption and Maintenance Act, 1956 requiring Hindu sons and daughters to maintain their elderly parents when they (parents) are unable to maintain themselves. However, they do not give the required succor to the senior citizens in view of the procedural rigmarole involved which takes eons to get their due. Hence, there requires a quick, effective and less cumbersome method to provide the needy senior citizens the required financial assistance.
____________________ 1.http://www.thehindu.com/todays-paper/tp-national/tp-andhrapradesh/article2524735.ece?css=print. 2. John J Plomp 3. http://india.gov.in/spotlight/spotlight_archive.php?id=33 4. Reasons and 5. Code of Criminal Procedure, 1973, S.125(1)(2)

Further, neither Cr.PC, 1973, nor the Hindu Adoptions and Maintenance Act, 1956 do not render any assistance to childless senior citizens. They do not protect the property of senior citizens from any fraud or mischief. Hence, there requires a simple, inexpensive and speedy provisions to claim maintenance for parents. In order to rectify the deficiencies in the existing statues and to secure financial stability for parents who are unable to maintain themselves, the Government enacted the The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 under Art 41 of Constitution of India6. The Act does not offer the worldly happiness to senior citizens and parents who languish for the presence and care of their children, near and dear, relatives in and around, but provide for financial independence to look after themselves in the wee hours of their life. The Preamble of the Act states that it is an Act to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognized under the Constitution and for matters connected therewith or incidental thereto. The Act seeks to impose a legal obligation on children and relatives (heirs) to provide maintenance to senior citizens. It also permits state governments to establish old age homes in every district. Senior citizens who are unable to maintain themselves shall have the right to apply to a maintenance tribunal seeking a monthly allowance from their children or heirs. It also provides for punishment for not paying the required monthly allowance shall be Rs 5,000 or up to three months imprisonment or both7. The Act also provides for (a) appropriate mechanism to be set up to provide need-based maintenance to the parents and senior citizens, (b) providing better medical facilities to senior citizens (c) for institutionalization of a suitable mechanism for protection of life and property of older persons. (d) setting up of old age homes in every district. One of the essential features of the Act is that it provides for a summary procedure in deciding the application of Senior Citizen(s) for maintenance. The Act extends to the whole of India except the State of Jammu and Kashmir and it applies also to citizens of India outside India8. Some of the important definitions under the Act are: Senior Citizen means any person being a citizen of India, who has attained the age of sixty years or above. Maintenance includes provision for food, clothing, residence and medical attendance and treatment and welfare means provision for food, health care, recreation centres and other amenities necessary for the senior citizens. ___________________
6. Article 41 of constitution of India: The State shall, within the limits of its economic capacity and development, make effective provision forold age, sickness and disablement, and in other cases of undeserved want. 7. Preamble to the Act, 2007 8. Section 1(2)

Children includes son, daughter, grandson and grand-daughter but does not include a minor. Relative is defined as any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death. Parent means father or mother whether biological, adoptive or step father or step mother, as the case may be, whether or not the father or the mother is a senior citizen. Hence, a childless stepmother may claim maintenance from her step-son provided she is a widow or her husband, if living, is also incapable of supporting and maintaining her. In the context of S.125 of Cr.PC, 1973 the Supreme Court held that, no intention of Legislature can be read in Section 125 of the Code that even though a mother has her real and natural born son or sons and a husband capable of maintaining her, she could still proceed against her step-son to claim maintenance9. Act to have overriding effect: The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act, or in any instrument having effect by virtue of any enactment other than this Act10. Any senior citizen who is unable to maintain himself from his own earning or out of the property owned by him, shall be entitled for maintenance to the extent of the needs of such parent so that he or she or both may lead a normal life. In case of parent or grandparent, an application can be made against one or more of his children not being a minor; In case of a childless senior citizen, an application can be against such of his relative who is in possession of the property of such senior citizen or he would inherit the property of such senior citizen. However, where more than one relatives are entitled to inherit the property of a senior citizen, the maintenance shall be payable by such relative in the proportion in which they would inherit his property. Such an application for maintenance may be made (a) by a senior citizen or a parent, as the case may be; or (b) if he is incapable, by any other person or organisation authorised by him; or (c) the Tribunal may take cognizance suo motu. The Act empowered the Tribunal to grant an interim monthly allowance for the maintenance of the senior citizen(s) during the pendency of the proceeding for maintenance and order such children or relative to make a monthly allowance. The maximum maintenance allowance which may be ordered by such Tribunal shall be such as may be prescribed by the State Government which shall not exceed ten thousand rupees per month. ____________
9.Kirtikant D. Vadodaria Vs. State of Gujarat and Anr., 1996 (1) ALT(Cri) 729 = (1996) 4 SCC 479 10. Section 10

Constitution of Maintenance Tribunal: The State Government shall within a period of six months from the date of the commencement of the Act constitute for each Subdivision one or more Tribunals as may be specified for the purpose of adjudicating and deciding

upon the order for maintenance. The Tribunal shall be presided over by an officer not below the rank of Sub-Divisional Officer of a State. Declaring Transfer of Property Void11: The Act has incorporated a very important and welcome provision to protect nave senior citizens from exploitation by relatives who got the property of senior citizens transferred on their name by way of gift or otherwise on the promise that shall provide the basic amenities and basic physical needs to the senior citizen and later renege on their promise subsequently. If said relative refuses or fails to provide such amenities and physical needs, Section 23 (1) insists that the said transfer of property shall be declared void by the Tribunal, if the senior citizen so desires. Another stringent provision which protects the hapless senior citizens from abandoning by their children or relatives is Section 2412. This section provides for penal action against those under whose care or protection of senior citizen leaves, such senior citizen in any place with the intention of wholly abandoning such senior citizen, shall be punishable with imprisonment of either description for a term which may extend to three months or fine which may extend to five thousands rupees or with both. Further, the Act bars interference of civil courts with any matter to which this Act applies, is another welcome step to avoid delay, multiplicity and prolongation of the litigation13. Other provisions for elderly care : Old age homes: The Act also fastened the State Governments with the responsibility of establishing and maintaining at least one old age home per district with a minimum capacity of 150 senior citizens per home available to indigent persons. The State Government may, prescribe a scheme for management of old age homes, including the standards and various types of services to be provided by them which are necessary for medical care and means of entertainment to the inhabitants of such homes.
___________ 11. Section 23. Transfer of property to be void in certain circumstances : (1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal. (2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right. (3) If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of section 5. 12. Section 24: Exposure and abandonment of senior citizen : Whoever, having the care or protection of senior citizen leaves, such senior citizen in any place with the intention of wholly abandoning such senior citizen, shall be punishable with imprisonment of either description for a term which may extend to three months or fine which may extend to five thousand rupees or with both. 13. Section 27. Jurisdiction of civil courts barred : No Civil Court shall have jurisdiction in respect of any matter to which any provision of this Act applies and no injunction shall be granted by any Civil Court in respect of anything which is done or intended to be done by or under this Act.

Medical support for senior citizen : The State Government shall ensure that the Government hospitals or hospitals funded fully or partially by the Government shall provide beds for all senior citizens as far as possible, facility for treatment of chronic, terminal and degenerative diseases is expanded for senior citizens. Conclusion: The purpose of the enactment is laudable. As can be seen from the title and preamble of the Act, the purpose of the enactment is maintenance and welfare of Parents and Senior Citizens. The Act provides for financial assistance to those parents who have children or senior citizens having property and relatives to inherit their property by fixing responsibility on them. Though, such a provision is not available with respect of childless parents and senior citizens, old age pension schemes by various State Governments would cover the gap to some extent. Hence, State shall take full responsibility by establishing old age homes and to provide medical facilities. For, old age homes and medical facilities go a long way in providing necessary help not only those senior citizens who are abandoned, but also who are childless/relativeless, poor and destitute. In a country where circumventing the law is taken for granted, it is felt that the Act should have provided for certain measures for registration and periodical verification of the status of the senior citizens, parents where the tribunal passed an order. Further, States should encourage NGOs to establish old age homes by reducing the entire burden of establishing old age homes on its own. If necessary, State may impose a certain tax to generate funds instead of depending on the regular budgetary allocation, which it is felt would not be opposed by any section. It is felt that the purpose of the enactment would be fully effective only when States take proactive role in implementation of the present Act, which is more akin a social security statute for the benefit of all the needy senior citizens. ***