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Our social and ethical values would never permit any Indian to abandon and not maintain their old aged parents; however, that being said still there are several incidents where old aged parents and senior citizens are abandoned by their children and are not given proper care. Due to old age and inability to maintain themselves, senior citizens usually end up in old-aged homes when their children neglect to take care of them. The children and heirs of such Senior citizens forget that not only do they have a moral obligation but are also legally obligated to provide maintenance to their parents. In this article, we will cover some of the significant provisions of the Maintenance and Welfare of Parents and Senior Citizens Act,2007, and what rights senior citizens have under the Act. Under this special legislation the children can serve jail time for abandoning their old aged parents. Not only children, but the legal heirs who are going to inherit the property of the senior citizen can also serve jail time if they fail to take care or abandon such a senior citizen.
That even the Hon’ble High court of Punjab & Haryana has taken notice regarding how children today are becoming insensate towards parents and are making attempts to throw out their aged parents. In “Ashwinder Singh and anr Vs. Bhagwant Singh and anr”, 2014 (3) R.C.R. (Civil) 906. It would be apposite to reproduce relevant paragraphs:-
"This unfortunate regular second appeal is a poignant reminder of decaying social values and traditions in our country. The case is telltale story of how children have become detached in today's commercialized world and are making attempts to throw out their aged parents from the property which the parents have acquired during their lifetime. It is perfect example of children becoming insensate towards parents/senior citizens. "Maatru Devo Bhava" (revere your mother as God) and "Pitro Devo Bhava" (revere your father as God) is a well-known proverb.
2. On page 1200 of Sri Guru Granth Sahib, Sri Guru Ram Dass has written that "KAAHAY POOT JHAGRAT HA-O SANG BAAP/JIN KAY JANAY BADEERAY TUM HA-O TIN SIO JHAGRAT PAAP//" (O son, why do you argue with your father? It is a sin to argue with the one who fathered you and raised you).
Keeping in view Morality and Ethics of the Indian society, it is very well understood that the parents have a moral obligation to maintain their children and care for them, but to what extend can this be implemented. That as per the act, the District Magistrate has a legal duty to protect the life and liberty of the Senior citizen. It is incumbent upon District Magistrate to take all the necessary steps to protect the life and dignity of the senior citizen. In exceptional circumstances, even the eviction of children is permitted from the senior citizen's residence, if the District Magistrate is of the opinion, there is a threat to the life of the Senior citizen. It has to be understood that the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is not restricted to only providing maintenance but also cast an obligation on the persons who inherit the property of their aged relatives to maintain such aged relatives. One of the major aims is to provide for institutionalization of a suitable mechanism for the protection of life and property of older persons. Senior citizens who are unable to maintain themselves shall have the right to apply to a maintenance tribunal praying for a monthly allowance from their children or their legal heirs who will inherit the property after their death. If any children or legal heir after being ordered by the tribunal to pay maintenance still fails to do so, then punishment for not paying the required monthly allowance shall be Rs.5,000/- or up to three months imprisonment or both, hence; Such children cannot escape from such responsibility.
Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is applicable to all those who have crossed the age of 60 years. Some of the relevant provisions of the Act are discussed herein.
· A childless senior citizen can claim maintenance from any relative who possess his property or who would inherit it
· Transfer of property of Senior Citizen to be void in certain circumstances
· The District Magistrate has a duty to protect the life and liberty of the Senior Citizens.
· Senior Citizen can claim maintenance from any of his children.
· The state government is directed to constitute a tribunal which would hear the cases regarding maintenance.
· There is the provision of imprisonment if a person defaults in the payment of maintenance as per the order of the tribunal.
· The Act provides for establishment of at least one old-age home in each district with a capacity to shelter 150 senior citizens.
· The Act prescribes punishment for the abandonment of parents or senior citizens by a person who is liable to take care of them.
THE OBJECT AND THE INTENT BEHIND THE ACT:
The object and the Intent behind the Maintenance & Welfare of Parents and Senior Citizens Act, 2007 Act was explained in Raksha Devi versus Deputy Commissioner-cum-District Magistrate, 2018, CWP 5086, in which the court held that the purpose of the Act is to protect and provide for the Senior citizens. It further stated that it is a welfare legislation for the benefit of the senior citizens; hence, the provisions of the Act must be liberally constructed in favor of the Senior citizen.
EVICTION OF CHILDREN WHO ARE OCCUPYING HOUSE ONLY AS A LICENSEE:
Elderly parents of abusive adults have a right to evict their children and legal heirs from any type of property they own under the Act. The senior citizen can file an application for the eviction of their children or legal heir on the basis of non-maintenance and ill-treatment. The position of the children who are occupying the house of a senior citizen will always be in the nature of Licensee; hence, a licence stands terminated the moment the licensor (senior citizen) conveys a notice of termination of a licence. There is no vested right of any kind in the licensee(children) to remain in possession of the property licensed. The Hon’ble High Court of Punjab & Haryana in Shamsher Singh versus District Magistrate, U.T. Administration, Chandigarh, (2017) CWP 6365, eviction of the son was ordered on the ground that the father wants to live his remaining part of life along with his wife in most peaceful and uninterrupted manner. Eviction of son was ordered as son was occupying house only as a licensee.
Similarly in Gurpreet Singh v. State of Punjab 2016 (1) RCR (Civil) 324, the position of licensee was explained and what steps can be taken by the District Magistrate to protect the property of the senior citizen and if a civil suit is pending what would legality of any order passed for eviction of children from the property of the senior citizen. The following observation was made by the Hon’ble High Court, the relevant Para are 12, 13 and 14 and reproduced as under:-
12. The petitioner is a licensee living in the premises on the basis of concession given by his father to live in the property owned by him. As a licensee, the petitioner is only permitted to enjoy the possession of the property licensed but without creating any interest in the property. A licence stands terminated the moment the licensor conveys a notice of termination of a licence. There is no vested right of any kind in the licensee to remain in possession of the property licensed.
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Protection of the property of a senior citizen includes all incidences, rights and obligations in respect of property in question. Once a senior citizen makes a complaint to District Magistrate against his son to vacate the premises of which the son is a licensee, such summary procedure will ensure for the benefit of the senior citizen. The petitioner would have no right to resist his eviction only on the ground that the Act does not contemplate eviction of an occupant. Eviction is one part of the right to protect the property of a senior citizen which right could be exercised by a senior citizen in terms of provisions of the statute, Rules framed and the Action Plan notified.
The Punjab and Haryana High Court in CWP 4744 of 2018, has held that deputy commissioners (DCs) adjudicating a dispute between family members on the complaint of a senior citizen can’t pass eviction orders.The High Court Bench of Justice RN Raina quashed these provisions in the action plans of Punjab, Haryana Chandigarh terming these in violation of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. However, an L.P.A has been filed in the Hon’ble High court and the matter is still pending before the Hon’ble Division Bench challenging the previous order of the High court.
MAINTENANCE TO SENIOR CITIZEN UNDER THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007:
A Senior citizen or a parent who is incapable of maintaining himself from his earning may file an application under the act to be given maintenance on monthly basics.
AGAINST WHOM A SENIOR CITIZEN CAN FILE A MAINTENANCE APPLICATION?
1. Children of Senior citizen (above the age of 18)
2. Grandchildren of Senior citizens (above the age of 18)
3. Relatives of Senior citizen who are either using the property or will inherit such property of the Senior citizen.
Interim maintenance during the pendency of the application:
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. Then if the children or relative so ordered fail, without sufficient cause to comply with the order, any such Tribunal may, for every breach of the order, issue 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 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.
TRANSFER OF PROPERTY FROM SENIOR CITIZEN CAN BE REVOKED:
That it is a well stated fact that a transfer of property from senior citizen can be revoked if they are not provided basic amenities and if their needs are not addressed, even if there is no specific clause in the transfer deed to provide for their welfare.Section 23 (1) of the Maintenance and Welfare of Parents and Senior Citizens Act,2007 clearly stipulates that in case the children fail to take care of their parents after transfer of their parents property in their favour, 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 null and void by the Tribunal. The relevant section is being reproduced as under; -
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.
JURISDICTION OF CIVIL COURTS BARRED
That in order to prevent interference by Civil Courts qua any action taken in furtherance of the provisions of the said Act, Section 27 of Maintenance & Welfare of Parents and Senior Citizen Act, 2007 bars the Jurisdiction of the Civil Courts, especially in respect of injunction.
MAINTENANCE UNDER CODE OF CRIMINAL PROCEDURE
Parents irrespective of the community they belong to can claim maintenance from their children (son and daughter including married daughter) under section 125 of CrPC. The children must have sufficient means to maintain their parents and the parents must lack means to maintain themselves.
MAINTENANCE UNDER HINDU ADOPTION AND MAINTENANCE ACT, 1956
Under Section 20 of Hindu Adoption and Maintenance Act, 1956 parents are entitled to claim maintenance from their son as well as their daughter if they are unable to maintain themselves. This right extends to both natural and adoptive parents. However step parents having their own children cannot claim maintenance from their step-children.