Maintenance of Parents

Introduction

Ageing is a natural phenomenon!
But what if in one’s twilight years one’s own children don’t take care of a
person or even worse subject him / her to mental and physical abuse and agony?
There have been cases where the children have not provided even for basic
maintenance and daily needs of their parents. In such a scenario, the
Government of India thought it fit to introduce a legislation to provide
simple, inexpensive and speedy provisions which would enable the suffering
parents to claim maintenance from their children. Accordingly, “The
Maintenance and Welfare of Parents and Senior Citizens Act, 2007” was
enacted on 31^st December, 2007 as a Central Act to provide for more
effective provisions for the maintenance and welfare of parents and senior
citizens guaranteed and recognised under the Constitution of India. Let us
consider some of the provisions of this social welfare statute.

Maintenance of Parents and Senior
Citizens

The Act provides for the setting
up of a Maintenance Tribunal in every State which shall adjudicate all matters
for maintenance, including provision for food, clothing, residence and medical
attendance and treatment. The following persons can make an application to the
Tribunal for maintenance of such needs so that he can lead a normal life:

(a) A parent (whether biological,
adoptive or step) or a grandparent can make an application against one or more
of his major children. Interestingly, the parents need not be senior citizens,
i.e., they can be less than 60 years of age.

(b) A childless senior citizen (an
Indian citizen who is at least 60 years of age) can make an application against
his major relative who is legal heir and who is in possession of the senior’s
property or who would inherit his property after the senior’s death. Any person
who is a relative of the senior and who has sufficient means shall maintain him
provided he is in possession of the property of the senior or would inherit his
property. If more than one such relatives are entitled to inherit his property,
then the maintenance would be proportionate to their inheritance.  

     While the senior must be an
Indian and at least 60 years of age, there is no such condition in respect of a
parent. In fact, the Act provides that it applies to citizens of India residing
abroad. How the Act would enforce its jurisdiction in a foreign land is a moot
point.

The application to the Tribunal
can be made by the senior citizen / parent himself, any other person or NGO
authorised by him. The Tribunal can even take suomoto cognisance of the
issue.

After inquiry, the Tribunal would
pass an order for maintenance and failure to comply with its order can lead to
penal action and imprisonment. The maximum maintenance allowance which may be
ordered by the Tribunal shall be such as may be prescribed by the respective
State Governments but not exceeding Rs. 10,000 per month. A claim for
maintenance can alternatively be made by the applicant under Chapter IX of the
Code of Criminal Procedure, 1973 but he cannot make it under both.

The Act also provides for the
constitution of an Appellate Tribunal before whom an appeal against orders of
the Maintenance Tribunal can be filed. Interestingly, the Act only gives the
right of appeal to a senior citizen or a parent aggrieved by the order of the
Maintenance Tribunal. It contains no provision for an appeal by the relative
aggrieved by the order of the Maintenance Tribunal! This is rather strange.
Another interesting facet is that the Act provides that a lawyer cannot
represent either party before the Maintenance Tribunal or the Appellate
Tribunal. However, if a parent so desires, then he can ask the State
Government’s District Social Welfare Officer to represent him. Why should an
Act deprive an old person from availing of legal representation? What if the
senior is a person who is unable to attend proceedings owing to ill-health,
incapacitation? He would then be forced to find some person / NGO who would
appear for him. Is it that easy to find someone? 

Abandoning Seniors

If any person who has been given
the care or protection of senior citizens, leaves them in any place with the
intention of wholly abandoning them, then he shall be punishable with
imprisonment for a term of up 3 month and / or fine of Rs. 5,000. Intention of
wholly abandoning would be demonstrated only through circumstantial evidence
and actual conduct and the onus would be on the person who alleges abandonment.
Such a case would be tried before a Magistrate Court and not by the Maintenance
Tribunal.

Protection of Life and Property

Section 22(2) of the Act mandates
that the State Government shall prescribe a comprehensive action plan for
providing protection of the life and property of senior citizens. To enable
this, section 32 empowers it to frame Rules under the Act. Accordingly, the
Maharashtra Government has notified the Maharashtra Maintenance and
Welfare of Parents and Senior Citizens Rules, 2010. Rule 20 which has
been framed in this regard, provides that the Police Commissioner of a city
shall take all necessary steps for the protection of the life and property of
senior citizens. Some of the important steps laid down under the Action Plan
under Rule 20 are as follows:

(a) Every police station must
maintain an up-to-date list of seniors living within its jurisdiction, especially
those living by themselves. One wonders whether this is being done in practice?

(b) A police officer with a social
worker should visit all seniors at least once a month and as soon as possible
on requests of assistance.

(c) Volunteers’ committees must be
formed for interaction between the police station and seniors.

(d) Every station must maintain a
register of all offences committed against seniors.

(e) Antecedents of servants working
for seniors must be promptly verified by the police on request from seniors.

(f)  A monthly report must be
submitted to the District Magistrate / Director General of Police about crimes
against seniors and the status of complaints and preventive steps taken.

(g) Every Police Commissioner must
start a toll-free help line for seniors. Mumbai police has set up an Elder Line
at 1090. 

Void Transfers

Section 23 of the Act introduces
an interesting provision. If any senior citizen who, after the commencement of
this Act, has transferred by way of gift or otherwise, his property, on 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, then the 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. This
negates every conditional transfer if the conditions subsequent are not
fulfilled by the transferee. Property has been defined under the Act to include
any right or interest in any property, whether movable/immovable/ancestral/self
acquired/tangible/intangible.

In Promil Tomar vs. State of
Haryana, (2014) 175 (1) PLR 94, the Punjab and Haryana High Court has
held that the words ‘gift or otherwise’ in the section would include the
transfer of possession of a property or part thereof. It would cover a transfer
by way of lease, mortgage, gift or sale deed. Even a transfer of possession to
a licencee by a senior citizen would be covered. In Sunny Paul vs. State
NCT of Delhi, WP(C) 10463/2015 (Del), the Delhi High Court has held
that interest of the senior citizen as tenants/licencees of the property is
also covered under the section even though they are not owners of the property.
It further held that a claim for maintenance under the Act and an application
for setting aside a void transfer u/s. 23 of the Act are separate and different
remedies and one is not a pre-condition for the other

In Rajkanwar vs. Sita Devi,
AIR 2015 Raj 61, the Rajasthan High Court has held that a Will would
not be covered under the above provision since it is not a transfer inter vivos
and does not involve any transfer. A Will is only a legal expression of the
wishes of the testator. 

Eviction from House

One of the most contentious and
interesting facets of the Act has been whether the senior citizen / parent can
make an application to the Tribunal seeking eviction from his house of the
relative who is harassing him? Can the senior citizen / parent get his son /
relative evicted on the grounds that one has not been allowing him to live
peacefully? Different High Courts have taken contrary views in this respect.
The Kerala High Court in CK Vasu vs.The Circle Inspector of Police, WP(C)
20850/2011 has taken a view that the Tribunal can only pass a
maintenance order and the Act does not empower the Tribunal to grant eviction
reliefs. A Single Judge of the Delhi High Court in Sanjay Walia vs. Sneha
Walia, 204(2013) DLT 618 has held that for an eviction application, the
appropriate forum would be a Court and not the Maintenance Tribunal.

However, another Single Judge of
the Delhi High Court in Nasir vs. Govt. of NCT of Delhi & Ors., 2015
(153) DRJ 259 has held that while interpreting the provisions, the
object of the Act had to be kept in mind, which was to provide simple,
inexpensive and speedy remedy to the parents and senior citizens who were in
distress, by a summary procedure. The provisions had to be liberally construed
as the primary object was to give social justice to parents and senior
citizens. Accordingly, it upheld the eviction order by the Tribunal. A similar
view was taken in Jayantram Vallabhdas Meswania vs. Vallabhdas Govindram
Meswania, AIR 2013 Guj 160 where the Court held that setting aside of
void transfers u/s. 23 would even include cases where only possession of
property has been given instead of an actual legal transfer. It thus upheld the
vacation of the premises as directed by the Tribunal. A very interesting
judgment was delivered by the Division Bench of the Punjab & Haryana High
Court in J. Shanti Sarup Dewan, vs. Union Territory, Chandigarh, LPA
No.1007/2013 where it held that there had to be an enforcement
mechanism set in place especially qua the protection of property as
envisaged under the said Act.It held that the son was thus required to move out
of the premises of his parents to permit them to live in peace and civil
proceedings could be only qua a claim thereafter if the son so chose to make
but that too without any interim injunction. It was not the other way round
that the son and his family kept staying in the house and asked his parents to
go to the Civil Court to establish their rights knowing fully well that the time
consuming civil proceedings may not be finished during their life time.

The Court held that it did not
have the slightest of hesitation in coming to a conclusion that all necessary
directions could thus be made under the said Act to ensure that the parents
lived peacefully in their own house without being forced to accommodate their
son.

Recently, a Single Judge of the
Delhi High Court had an occasion to consider all the aforesaid judgments on the
power of eviction of the Tribunal. It held that the requirement that the
children or relatives must be in line to inherit the property was mandated only
for issuing direction with regard to maintenance. To invoke jurisdiction for
protection of life of the senior citizen or setting aside void transfers no such
pre-condition had to be satisfied. Further, directions to remove the children
from the property was necessary in certain cases to ensure a normal life of the
senior citizens. After considering all decisions on the issue, the Court held
that it was in agreement with the view expressed in the case of Nasir (supra)
that the provisions of Act, 2007 have to be liberally construed as one of the
primary objects of the Act is to protect the life and property of senior
citizens. Consequently, it held that u/s. 23 of the Act, the Maintenance
Tribunal could issue an eviction order to ensure that senior citizens live
peacefully in their house without being forced to accommodate a son who
physically assaults and mentally harasses them or threatens to dispossess them.

Since the Act conferred on the
Maintenance Tribunal the express power to declare a transfer of property void
at the option of the transferor u/s. 23, it had to be presumed that the intent
of the Legislature is to empower the Maintenance Tribunal to pass effective and
meaningful orders including all consequential directions to give effect to the
said order. The direction of eviction was a necessary consequential relief or a
corollary to which a senior citizen would be entitled upon a transfer being
declared void. It accordingly directed the Police Station to evict the son.

Conclusion