Senior Citizens: Rights and Remedy From Legal Point of View By Awanish Srivastava


The Maintenance and Welfare of Parents and Senior Citizens Act[1] was enacted in 2007, majorly to ensure that senior citizens (Citizens who are 60 years or older)[2] and elderly parents (Can also be non-citizens)[3] receive maintenance and support when they cannot fend for themselves out of their own income. It was enacted by the Ministry of Social Justice and Empowerment for the purpose of providing quick and effective remedies to the elderly who have, on numerous instances, and still, are being robbed of their possessions by their own children. They are subjected to various injustices, are often left marginalized and in various situations are left with no source of income to live ‘a normal life’.

In India, where the elderly population, as per the 2011 census, grew by almost 36%[4], while the general population grew by only 18%[5], the need for such an act becomes clear. Further, with the popularity of the Nuclear family system, the elderly, many-a-times are forced to live alone, with their families completely neglecting their health and well-being. Population aging is a cause for concern for policy drafters all over the world.

The Act provides for setting up of special Maintenance Tribunals by the States. An aggrieved ‘Parent’[6] can decide to file for maintenance either under Section 125, Code of Criminal Procedure (CrPC), 1973 or under this Act, but not both. The Tribunals were set up specifically for the purpose of providing remedies to the elderly and hence are much more effective and efficient in doing so, than the procedure mentioned under Section 125 of CrPC. Therefore, in a situation that a person has already filed for maintenance under Section 125, he can file a request for withdrawal of such application and then apply with the Maintenance Tribunal.

Who can claim Maintenance under the Act and against Whom?[7]

The only condition for making an application under the Act is that the affected party must be in a situation wherein he is unable to maintain himself from his own earnings or out of the property owned by him”. With respect to this any person who

  1. Is a parent (biological, adoptive or even step-mother/father), irrespective of age or nationality[8]; or
  2. Is a grand-parent; or
  3. Is a Senior Citizen (A citizen of India being 60 years or older),
can apply for maintenance under the Act.

Such Maintenance can be claimed:

  1. In case of a Parent/Grandparent, against one or more children or grandchildren (excluding minors);
  2. In case of a Childless Senior Citizen, against any relative(s) as defined under Section 2(g) of the Act.
How much maintenance can be claimed?

The amount of maintenance that can be claimed under this Act should be such that it allows the elderly to lead a normal life but such an amount cannot exceed Rupees ten thousand per month.[9]

Advantages/Benefits provided to the Elderly through the Act

Benefits which the Act provided:

  1. Maintenance will not be limited to the elderly only but will extend to such a citizen so as to allow the senior citizen/parent to lead a normal life.[10]
  2. An application of maintenance made to the Maintenance Tribunal must be disposed off within 90 days from the date such application. This period can be extended by 30 days, but only [11] Furthermore, the Act provides for a summary procedure if “deemed fit” by the Tribunal. Hence, it is beneficial for elderly to file for maintenance under the Act as it’s a quick process.[12]
  3. Obligations of the State Governments[13] as per the Act:

    • State Governments have to establish and maintain old-age homes (At least one in each district with a capacity of at least 150 people).[14]
     
    • State Governments shall provide for medical facilities to the elderly such as, government-funded hospitals, whether fully or partially funded, shall provide for beds for senior citizens as far as possible, facilities for geriatric patients in every district hospital, etc.[15]
     
    • State Governments shall ensure that the provisions of this Act are given wide publicity, government officers should be periodically sensitized regarding the issues under the Act and that there is effective co-ordination among various government departments towards the social welfare of the elderly.[16]
     
    • State Governments shall prescribe a comprehensive action plan for providing protection of life and liberty of the elderly.[17]
  4. Parents can now evict their children out of the house if they have been treated badly by their children. Such an eviction can be upheld by the concerned officer.[18]
Procedure for Application to the Maintenance Tribunal

An application for maintenance under this Act can be made by, a senior citizen or parent; or if they are incapable then by any other person or organization authorized by him.[19] Such an application must be filed before the tribunal in a district where the affected elderly resides or has last resided or where the person, against whom the maintenance claim is made, resides.[20] The maintenance tribunal, if it feels, can take cognizance of any case suo moto.[21]

While filing such maintenance proceedings, no legal practitioners are allowed to argue on behalf of the parties, but if necessary, parents or senior citizens can use State appointed maintenance officers to present their case.[22]

Remedies & their Enforcement (Punitive powers)

The Maintenance tribunal has been given various punitive and enforcing powers to ensure that maintenance is paid to the elderly and that their well-being is taken care of. It has all the powers of a civil court with respect to the procedure for deciding on the maintenance application (taking of evidence, compelling witnesses’ attendance, etc.).[23] As mentioned above, the maintenance tribunal has the power to summarily try and decide a case if deemed necessary. The Maintenance Tribunal has the powers, subject to any rules made by State Governments, to award the following remedies:

  • Maintenance tribunal, on being satisfied that the parents or senior citizens are not being maintained but neglected by the children or relatives, can pass an order for monthly maintenance which shall not exceed Rs.10,000 per month.[24]
    After passing of such an order, the maintenance amount must be deposited within 30 days of such passing of the order in any manner as the tribunal may direct.[25]
  • The Maintenance tribunal, if required, may even pass an order for temporary maintenance till the pendency of the application.[26]
  • If such an order of maintenance is passed, the maintenance tribunal can also pass an order for providing (simple) interest on the maintenance amount at a rate of minimum 5% and maximum 18%, from the date when the maintenance application was made.[27]
  • If the children or relatives, fail to comply with such an order passed by the maintenance tribunal without any sufficient cause, the tribunal can issue warrants or levy fines for such breach and enforce payment of maintenance and if the defaulter still fails/refuses to pay, the tribunal can imprison him for up to a month.[28]
  • Tribunal has the power to alter or even cancel the maintenance amount if it is proved that there was a misrepresentation or a mistake of fact or that there is a material change in the circumstances of the claimant.[29]
  • If aggrieved by the decision of the maintenance tribunal, senior citizens and parents can appeal to the appellate tribunal within 60 days from the order date, provided that they can appeal post the expiry of such 60 days if it is proved that they had “sufficient cause”.[30] Broad powers for such an appellate tribunal are given under Section 16 of the Act.
  • Any transfer of property by a senior citizen or parent on the condition that the transferee shall maintain and provide for the transferor and the transferee fails or refuses to do the same will be held to be made under fraud, coercion or undue influence and shall be voidable at the option of the transferor.
    Provided, such transfer must be after the commencement of the Act.[31]
  • If the right of maintenance is attached to an estate and such an estate is transferred, wholly or partially, the transferee will have a legal obligation to provide such maintenance, provided he had notice of the right or that the transfer was gratuitous.[32]
  • Any person who has the responsibility of protection and maintenance of a senior citizen or a parent, if leaves such senior citizen or parent with the intention of abandoning him, shall be imprisoned for up to 3 months or be fined for up to Rs.5000 or both.[33]
Powers of the Tribunal

The Maintenance tribunal under the Act, has been given wide powers so as to provide efficient and quick remedies to the affected people. Like other courts, the Maintenance tribunal has the power to take cognizance of a matter suo moto if required.[34] It has the power to allow for a summary procedure if it deems fit.[35]

If any application for monthly maintenance is pending before the tribunal, it can issue an order for interim monthly maintenance, till the application is adjudicated and decided upon by it.[36] An application filed under the Act, has to be processed and decided upon by the maintenance tribunal within 90 days, but it has the power to extend such time period by 30 days, under “exceptional circumstances” and justification for such extension has to be recorded in writing.[37] After passing of an order of maintenance by the tribunal, it, on application within 3 months from when the maintenance became due, if there is a default in such payment of maintenance, can issue a warrant for such payment or can even sentence such defaulter to prison for up to a month or until payment is made, whichever is sooner.[38]

The maintenance tribunals, under the act, have the power of a Judicial Magistrate of First Class as provided under the Code of Criminal Procedure, 1973 (Cr.P.C.) for ensuring attendance of the children or relatives.[39] It can even conduct the proceedings ex parte if it feels that the children or relatives have been avoiding or neglecting the summons of the tribunal on purpose.[40]

The Tribunal has to be presided by an officer not below the rank of Sub-divisional Officer of a State[41] and it shall have all the powers of a Civil Court for the purpose of taking evidence, summoning of a witness, compelling discovery and production of documents and for such other purposes as may be prescribed.[42] It shall be considered to be a Civil Court for the purposes of Section 195 and Chapter XXVI of the Cr.P.C., 1973.[43] Tribunal has the powers to alter or cancel the maintenance amount under certain conditions as mention in Section 10 of the Act. The Appellate tribunal as formed under the Act, has to be presided over by an officer not below the rank of a District Magistrate.[44]

With respect to matters relating the provisions of the Act, only the Maintenance and Appellate tribunal as formed under the Act have jurisdiction, a Civil Court doesn’t.[45] The powers of the tribunal are subject to any rules or provisions made by the respective states.[46]

Conclusion

It has been generally presumed that Family is supposed to take care of the needs of the elderly, but the trend in India, with a shift to nuclear families, more and more elderly people are being left alone and abandoned with sometimes no means whatsoever to look after themselves. According to a study[47], in India, out of the people living in urban areas, every sixth older person does not get proper food, every third old person does not get proper medicine or health care during their old age and every second old person is not treated properly or with respect by the family members.[48] If the elderly are treated in such a manner then a law like the Maintenance & Welfare of Senior Citizens and Parents Act becomes extremely important and relevant.

There still is a need for its promotion and publicity so as to increase awareness amongst the elderly about their legal and fundamental rights considering how elder abuse is sometimes not even acknowledged or realized by senior citizens and parents themselves.
 
[1] From here on now to be referred to as ‘The Act’.
[2] Section 2(h), The Act.
[3] Hamina Kang vs. District Magistrate (U.T.), Chandigarh and Ors. [2016 (1) RCR (Civil)]
[4] Census of India, 2011
[5] Ibid
[6] S125, CrPC refers to “Maintenance of wife, children, and parents”.
[7] Section 4(1), The Act.
[8] Supra note 3
[9] Section 9(2), The Act
[10] Section 4(2), The Act
[11] Section 5(4), The Act
[12] Section 8, The Act
[13] Here, “State Governments” include Union Territories.
[14] Section 19, The Act
[15] Section 20, The Act
[16] Section 21, The Act
[17] Section 22(2), The Act
[18] Manjit Singh vs. District Magistrate-cum-Deputy Commissioner, Karnal & Ors. [2016 (3) RCR (Civil) 832], Savita Sharma & Ors. Vs, District Magistrate & Ors. [2016 (2) RCR (Criminal) 931, Sunny Paul & Ors. Vs. State of NCT of Delhi & Ors. [2017(2)RCR(Civil)404]
[19] Section 5(1), The Act
[20] Section 6(1), The Act
[21] Supra note 19
[22] Section 17, The Act
[23] Section 8(2), The Act
[24] Section 9, The Act
[25] Section 13, The Act
[26] Section 5(2), The Act
[27] Section 14, The Act
[28] Section 5(8), The Act
[29] Section 10, The Act
[30] Section 16(1), The Act
[31] Section 23(1), The Act
[32] Section 23(2), The Act
[33] Section 24, The Act
[34] Section 5(1)(c), The Act
[35] Section 8(1), The Act
[36] Section 5(2), The Act
[37] Section 5(4), The Act
[38] Section 5(8), The Act
[39] Section 6(3), The Act
[40] Section 6(4), The Act
[41] Section 7(2), The Act
[42] Section 8(2), The Act
[43] Ibid
[44] Section 15(2), The Act
[45] Section 27, The Act
[46] Section 32(2)(a),(b),(c),(e) & (g), The Act
[47] Agewell Study on Human Rights of Older Persons in India (April 2011), Click Here
[48] Ibid

Click here to read the disclaimer


Write a Comment