Last Updated on September 9, 2018 by Legalseva.net
A person is entitled to basic amenities of life like food, clothing, shelter and other necessary requirements to live a dignified life. Under the principles of social justice, it is the natural duty of a man to provide these amenities to his wife, parents, and children in form of maintenance. The Indian law laws down the duty of a man to provide maintenance to his parents, wife, and children when they are unable to maintain themselves.
Maintenance means the provision of financial support for a person’s living expenses, or the support so provided. It’s everyday living which is required for maintaining one’s life. It is very important for people who are dependent on others like mentally or physically challenged, wife, parent or minor children.
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Section 125 of the Code of Criminal Procedure, 1973 lays down the concept of maintenance in India, along with the different personal laws that extend the right of maintenance to not only the wife but also to the parents, children as well as divorced wife. Personal laws relating to maintenance in India are applicable to people belonging to that religions, whereas the maintenance claim under Section 125 of the CrPC can be filed by anyone regardless of religion or caste. Law of maintenance in India gives the procedure as to how to claim maintenance for a child in India and also for the wife.
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Old age people are neglected by their children and ultimately they put their parent in the old age home which is an evil practice towards the parent and the society. In this note, we will discuss maintenance for Parents and senior citizens. The Act which we are concerned are may be called the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. This act talks about 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. It extends to the whole of India except the State of Jammu and Kashmir and it applies also to citizens of India outside India. It shall come into force in a State on such date as the State Government may, by notification in the Official Gazette, appoint.
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This Act gave the definition of-
a. “children” includes a son, daughter, grandson and grand-daughter but does not include a minor;
b. “maintenance” includes provision for food, clothing, residence and medical attendance and treatment;
c. “minor” means a person who, under the provisions of the Indian Majority Act, 1875, (9 of 1875) is deemed not to have attained the age of majority;
d. “parent” means father or mother whether biological, adoptive or stepfather or stepmother, as the case may be, whether or not the father or the mother is a senior citizen;
e. “property” means property of any kind, whether movable or immovable, ancestral or self -acquired, tangible or intangible and includes rights or interests in such property;
f. “relative” means 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;
g. “senior Citizen” means any person being a citizen of India, who has attained the age of sixty years or above;
This 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 Act. This simply means this act will be given more weight than any other Act related to it.
Section 4 of this act talks about Maintenance of parents and senior citizens. A senior citizen including the parent who is unable to maintain himself from his own earning or out of the property owned by him shall be entitled to make an application under section 5 in case of—
i. parent or grand-parent, against one or more of his children not being a minor;
ii. a childless senior citizen, against such of his relative, referred to in clause (g) of section 2.
The obligation of the children or relative, as the case may be, to maintain a senior citizen extends to the needs of such citizen so that senior citizen may lead a normal life. The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be, so that such parent may lead a normal life. Any person being a relative of a senior citizen and having sufficient means shall maintain such senior citizen provided he is in possession of the property of such senior citizen or he would inherit the property of such senior citizen:
Provided that 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.
Section 5 talks about Application for maintenance.-
An application for maintenance under section 4, 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 moto.
For the purposes of this section “organisation” means any voluntary association registered under the Societies Registration Act, 1860, (21 of 1860) or any other law for the time being in force.
The Tribunal may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this section, order such children or relative to make a monthly allowance for the interim maintenance of such senior citizen including parent and to pay the same to such senior citizen including parent as the Tribunal may from time to time direct. On receipt of an application for maintenance under sub-section (1) after giving notice of the application to the children or relative and after giving the parties an opportunity of being heard, hold an inquiry for determining the amount of maintenance.
An application filed under sub-section (2) for the monthly allowance for the maintenance and expenses for proceeding shall be disposed of within ninety days from the date of the service of notice of the application to such person: Provided that the Tribunal may extend the said period, once for a maximum period of thirty days in exceptional circumstances for reasons to be recorded in writing. An application for maintenance under sub-section (1) may be filed against one or more persons. Provided that such children or relative may be impaled the other person liable to maintain parent in the application for maintenance.
Where a maintenance order was made against more than one person, the death of one of them does not affect the liability of others to continue paying maintenance. Any such allowance for the maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or expenses of proceeding, as the case may be. If, children or relative so ordered fail, without sufficient cause to comply with the order, any such Tribunal may, for every breach of the order, issued a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person for the whole, or any part of each month’s allowance for the maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made whichever is earlier:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless an application is made to the Tribunal to levy such amount within a period of three months from the date on which it became due.
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Section 6 talks about Jurisdiction and procedure.-
1. The proceedings under section 5 may be taken against any children or relative in any district—
a. where he resides or last resided; or
b. where children or relative resides.
2. On receipt of the application under section 5, the Tribunal shall issue a process for procuring the presence of children or relative against whom the application is filed.
3. For securing the attendance of children or relative the Tribunal shall have the power of a Judicial Magistrate of first class as provided under the Code of Criminal Procedure, 1973. (2 of 1974)
4. All evidence to such proceedings shall be taken in the presence of the children or relative against whom an order for payment of maintenance is proposed to be made, and shall be recorded in the manner prescribed for summons cases:
Provided that if the Tribunal is satisfied that the children or relative against whom an order for payment of maintenance is proposed to be made are willfully avoiding service, or willfully neglecting to attend the Tribunal, the Tribunal may proceed to hear and determine the case ex parte.
Where the children or relative is residing out of India, the summons shall be served by the Tribunal through such authority, as the Central Government may by notification in the official Gazette, specify in this behalf. The Tribunal before hearing an application under section 5 may refer the same to a Conciliation Officer and such Conciliation Officer shall submit his findings within one month and if an amicable settlement has been arrived at, the Tribunal shall pass an order to that effect. For the purposes of this sub-section “Conciliation Officer” means any person or representative of an organisation referred to in Explanation to sub-section (1) of’ section 5 or the Maintenance Officers designated by the State Government under subsection (1) of section 18 or any other person nominated by the Tribunal for this purpose.
Section 7 talks about Constitution of Maintenance Tribunal.
The State Government shall within a period of six months from the. Date of the. commencement of this Act, by notification in the Official Gazette, constitute for each Subdivision one or more Tribunals as may be specified in the notification for the purpose of adjudicating and deciding upon the order for maintenance under section 5The Tribunal shall be presided over by an officer not below the rank of Sub-Divisional Officer of a State. Where two or more Tribunals are constituted for any area, the State Government may, by general or special order, regulate the distribution of business among them.
Section 9 talks about Order for maintenance.
If children or relatives, as the case may be, neglect or refuse to maintain a senior citizen being unable to maintain himself, the Tribunal may, on being satisfied of such neglect or refusal, order such children or relatives to make a monthly allowance at such monthly rate for the maintenance of such senior citizen, as the Tribunal may deem fit and to pay the same to such senior citizen as the Tribunal may, from time to time, direct. 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.
Section 13 talks about Deposit of maintenance amount.-
When an order is made under this Chapter, the children or relative who is required to pay any amount in terms of such order shall, within thirty days of the date of announcing the order by the Tribunal, deposit the entire amount ordered in such manner as the Tribunal may direct.
Section 16 talks about Appeals
Any senior citizen or a parent, as the case may be, aggrieved by an order of a Tribunal may, within sixty days from the date of the order, prefer an appeal to the Appellate Tribunal :Provided that on appeal, the children or relative who is required to pay any amount in terms of such maintenance order shall continue to pay to such parent the amount so ordered, in the manner directed by the Appellate Tribunal: Provided further that the Appellate Tribunal may, entertain the appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time..
Section 18 talks about Maintenance Officer.-
The State Government shall designate the District Social Welfare Officer or an officer not below the rank of a District Social Welfare Officer, by whatever name called as Maintenance Officer
19 talks about Establishment of old age homes.-
The State Government may establish and maintain a such number of old age homes at accessible places, as it may deem necessary, in a phased manner, beginning with at least one in each district to accommodate in such homes a minimum of one hundred fifty senior citizens who are indigent. 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. Explanation.- For the purposes of this section, “indigent” means any senior citizen who is not having sufficient means, as determined by the State Government, from time to time, to maintain himself.
Section 20 talks about 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;
- separate queues are arranged for senior citizens;
- facility for treatment of chronic, terminal and degenerative diseases is expanded for senior citizens;
- research activities for chronic elderly diseases and aging are expanded;
- There are earmarked facilities for geriatric patients in every district hospital duly headed by a medical officer with experience in geriatric care.
Section 21 gives emphasis to public awareness and measures taken for the welfare of senior citizen.-The State Government shall take all measures to ensure that—
i. the provisions of this Act are given wide publicity through public media including the television, radio and the print, at regular intervals;
ii. the Central Government and State Government Officers, including the police officers and the members of the judicial service, are given periodic sensitization and awareness training on the issues relating to this Act;
iii. effective co-ordination between the services provided by the concerned Ministries or Departments dealing with law, home affairs, health, and welfare, to address the issues relating to the welfare of the senior citizens and periodical review of the same is conducted.
Section 25 talks about Cognizance of offenses.
Every offense under this Act shall be cognizable and bailable. An offense under this Act shall be tried summarily by a Magistrate.
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Old age, also called senescence, in human beings, the final stage of the normal lifespan. Definitions of old age are not consistent with the standpoints of biology, demography (conditions of mortality and morbidity), employment and retirement, and sociology. For statistical and public administrative purposes, however, old age is frequently defined as 60 or 65 years of age or older. In old age, the parent is fragile like a child and they need the care and support which a young born baby requires. Many a times parents are thrown to old age homes, considering them as a burden, then this act comes into the picture so that parent and senior citizens can fight for their rights.
This post is written by Aishwaraya Pal, a student of Bharati Vidyapeeth University. For any subject specific advice, please dial 99888-17966 for LegalSeva.
