Family law

A socio-legal critique on the maintenance and welfare of parents and senior

citizens act, 2007.

Submitted To: Dr. Kamaljit Kaur

(Associate Professor of Law)

Submitted By: Daljit Singh

Roll no: 18074

Group no: 14

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Table of Contents

Introduction ...............................................................................................3
Maintenance of parents and senior citizens ................................................4
Protection of life and property of senior citizen............................................6
Definitions ..................................................................................................7
Objectives of the act ...................................................................................7
Filing Maintenance Proceedings .................................................................8
Enforcing the Maintenance Order ..............................................................9

Responsibility of the State Government ......................................................9

Critical analysis of the act ......................................................................... 10

Few suggestions ...................................................................................... 12

conclusion ................................................................................................ 13

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Introduction

Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is

legislation, initiated by Ministry of Social Justice and Empowerment,
Government of India to provide more effective provision for maintenance and
welfare of parents and senior citizens. It makes it a legal obligation for
children and heirs to provide maintenance to senior citizens and parents, by
monthly allowance. It also provides simple, speedy and inexpensive
mechanism for the protection of life and property of the older persons. After
being passed by the Parliament of India, it received President's assent on
December 29, 2007.

This act provides in-expensive and speedy procedure to claim monthly

maintenance for parents and senior citizens. This act casts obligations on
children to maintain their parents/grandparents and also the relative of the
senior citizens to maintain such senior citizens. The main attraction of this
act is there are provisions to protect the life and property of such persons.
This act also provides setting up of old age homes for providing maintenance
to the indigent senior citizens and parents. This Act extends to the whole of
India.

Objective of the study: The main thrust of this piece of project is to know
about the provisions of maintenance and welfare of parents and senior
citizens act, 2007. What all it covers for the senior citizens, who all are
included in this act, what types of benefits will be given. Along with it we will
also critically analyse the act. All this will be cover in this project along with
its relevant case laws.

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Maintenance of parents and senior citizens

The Parliament of India had passed this valuable law the Act no. 56 of 2007
in December 2017 and it finally came into existence on 29th of December,
2007 and as the name suggests the act provides for welfare and
Maintenance of Parents and Senior Citizens.

The act contains 32 Sections, divided into Seven Chapters that provides
several basic yet most valuable rights to the elderly persons in India.
It includes right to get maintenance, Establishment of Old age homes,
Medical Care and Protection Of Life And Property Of Senior Citizen and also
there are provisions to punish those who abandon a senior citizen wholly. 1
A senior citizen including parent who is unable to maintain himself from his
own earning or out of the property owned by him, is entitled to get relief under
this Act. Children/grand children are under obligation to maintain his or her
parent either,father, mother or both. Likewise, relative of a senior citizen is
also bound to look after the senior citizen. If such children or relative is not
maintaining his parents or senior citizen respectively, then the parents/senior
citizen can seek the assistance of Tribunal constituted under this Act, to
enforce the remedy of maintenance. Such parents/ senior citizen can file an
application before the Tribunal, claiming maintenance and other reliefs from
their children/relatives as the case may be.2
Such application for maintenance can be filed by the senior citizen or a
parent himself, or if such person is incapable, then by any other person or
any registered organization authorized by him. The Tribunal can also sue
motto take cognizance of the case. After receiving the application the
Tribunal may issue notice to the respondent-children/relative and provide
them time to furnish their reply. Such application for maintenance should be
disposed of within 90 days from the date of service of notice of application to
the respondent. However, the Tribunal can extend time for a maximum
period of 30 days in exceptional circumstances after recording reason. The
Tribunal is having power to allow interim maintenance pending disposal of
the case. Even though the application can be filed against any of

1
http://www.lawupnext.in/2018/05/overview-of-maintenance-and-welfare-senior-citizens-
act.html( Accessed on 16/nov/2020)

2.https://factly.in/understanding-the-maintenance-and-welfare-of-parents-and-senior-
citizens-act/( Accessed on 16/nov/2020)

4
children/relative as the case may be, such respondent-children/relative can
implead other person who is liable to pay maintenance.3
If such children/relative who is directed to pay maintenance fail to comply
with the order of tribunal without sufficient cause, the Tribunal may issue
warrant for levying the due amount from them in the manner levying fines
and can also sentence the erring respondent to imprisonment that may
extend to one month or until payment made whichever is earlier. The
Tribunal will not issue Warrant to execute the order of maintenance, if such
petition for execution is filed after a period of 3 months from the date on which
the maintenance is due. The application under this Act can be filed before
the Tribunal in any district, where the applicant resides or last resided or
where children or relative resides. The evidence of proceedings shall be
taken in the presence of children/relative against whom relief is sought and
if such respondent is willfully avoiding service of summons or neglecting to
attend the Tribunal, the Tribunal may proceed and determine the case ex
parte. If the Tribunal is satisfied that such children/relative against whom
such application for maintenance is pending, neglect or refuses to maintain
the parents/senior citizens as the case may be, may order such
children/relative to pay monthly allowance to such applicant. The maximum
amount of maintenance that can be allowed by the Tribunal is Rs. Ten
Thousand per month. The tribunal has power to alter, modify or cancel the
order in appropriate circumstances. The Tribunal has also power to levy
interest on the maintenance amount, which shall be not less than 5% and
greater than 18%. Aggrieved by the order of Tribunal, senior citizen/parent
can file appeal before Appellate tribunal within a period of 60 days and if the
Appellate tribunal is satisfied that there occurred some delay in filing appeal
due to sufficient cause, the appeal can be entertained.4

Protection of life and property of senior citizen

3
https://www.worldwidejournals.com/paripex/recent_issues_pdf/2015/August/August_20
15_1439548053__83.pdf( Accessed on 16/nov/2020)
4
The Maintenance and Welfare of Parents and Senior Citizens Act, 2007

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If a senior citizen after the commencement of this Act, has transferred his
property either moveable or immovable, by way of gift or otherwise, subject
to the condition that the transferee shall provide him basic amenities and
physical needs and thereafter such transferee reuses or fails to provide such
promise, such transfer of property shall be deemed to have been made by
fraud, coercion or undue influence and the Tribunal can declare such transfer
as void. Before the enactment of this law, a senior citizen's only remedy in
such a case was to approach the court for maintenance from the children to
whom he had given the property by way of gift or otherwise and such
property would be the exclusive property of the transferee and the senior
citizen had no right in such property. But after the enactment of this Act, a
senior citizen can reclaim his property from the transferee the concerned
police personnel will also ensure priority in dealing with these types of
cases. Representation by lawyers is prohibited under section 17 of this Act.
However the Hon'ble Kerala High Court held that legal practitioners also
could represent cases under this Act.
Abandoning a senior citizen in any place by a person who is having the care
or protection of such senior citizen is a criminal offence and such person
shall be punishable with imprisonment for a term which may extend to three
months or fine which may extend to five thousand rupees or both.
This Act also provides that state governments may establish old age homes
at least one in one district to accommodate indigent senior citizens. State
governments may also ensure proper medical care for senior citizens. 5
The first case under the act was filed in November 2011 by Siluvai (age 84)
and his wife Arulammal (age 80) of Tuticorin against their son and daughter-
in-law for neglect, besides taking away their two homes and gold jewellery 6

Definitions

• Children- Include son, daughter, grandson, grand daughter, son-in-law,

daughter-in-law but does not include a minor
5
http://www.lawupnext.in/2018/05/overview-of-maintenance-and-welfare-senior-citizens-
act.html( Accessed on 16/nov/2020)
6
Runa Mehta Thakur, International Journal of Advancements in Research &
Technology, Philosophy of Maintenance and Welfare of Parents and Senior Citizens Act,
2007 in India: An Appraisal., Volume 1, Issue 4, September-2012 ISSN 2278-7763

6
• Maintenance includes provision for food, clothing, residence, medical
attendance and treatment
• Parent- means father or mother whether biological, adoptive or step father
or step mother, whether or not father or mother is a senior citizen
• Senior citizen- means an Indian who attained the age of 60 years or
above
• Relative- means any legal heir of childless senior citizen who is not a
minor and is in possession of or would inherit his\her property after his\her
death
• Welfare- means provision for food, healthcare, recreation centers and
other amenities necessary for senior citizens

Objectives of the act

This act provides in-expensive and speedy procedure to claim monthly

maintenance for parents and senior citizens. This act casts obligations on
children to maintain their parents/grandparents and also the relative of the
senior citizens to maintain such senior citizens. The main attraction of this
act is there are provisions to protect the life and property of such persons.
This act also provides setting up of old age homes for providing maintenance
to the indigent senior citizens and parents. This Act extends to the whole of
India.7

Who is legally obligated to Pay Maintenance?

Adult Children and adult grandchildren, both male and female, are
responsible for paying maintenance to parents and grandparents. An
application can be filed against any one or more of them.8

Senior citizens who do not have children or grandchildren can claim

maintenance from a relative who either possesses their property or who will
inherit their property of the senior citizen after their death. The relative must

7
The Maintenance and Welfare of Parents and Senior Citizens Act, 2007
8.https://factly.in/understanding-the-maintenance-and-welfare-of-parents-and-senior-
citizens-act/( Accessed on 16/nov/2020)

7
not be a minor and must have sufficient means to provide maintenance. If
more than one relative is entitled to inherit the property, then maintenance
must be paid by relatives in proportion to their inheritance of the property. 9

How much Maintenance must be paid?

The Act mandates that the maximum maintenance paid will be Rs 10,000
per month. The maintenance amount is determined by the needs of the
claimant and the aim is to provide maintenance for the person to lead a
normal life.

Filing Maintenance Proceedings:

The application for maintenance must be filed before the Maintenance

Tribunal in any district where

•The parent, grandparent or senior citizen resides; or

• The parent, grandparent or senior citizen has last resided; or
• The person against whom maintenance is claimed resides.
If the person herself cannot file the maintenance application, then any other
person or organization authorized by her can file the application on her
behalf.Additionally the Maintenance Tribunal has the power to take action on
its own without any request by the parties.10

The Act states that no party to a proceeding before the Maintenance Tribunal
will be represented by a lawyer. However, parents or senior citizens can avail
the services of the State Government appointed Maintenance Officer to
represent their interests during proceedings before the Maintenance
Tribunal.

Enforcing the Maintenance Order:

9.http://www.lawupnext.in/2018/05/overview-of-maintenance-and-welfare-senior-
citizens-act.html( Accessed on 16/nov/2020)
10
Runa Mehta Thakur, International Journal of Advancements in Research &
Technology, Philosophy of Maintenance and Welfare of Parents and Senior Citizens Act,
2007 in India: An Appraisal., Volume 1, Issue 4, September-2012 ISSN 2278-7763

8
Once an order is passed by the Maintenance Tribunal, a copy of the order
must be provided free of cost to the person who will receive maintenance. If
the other person is ordered to pay a sum, such amount must be deposited
within 30 days of the announcement of the Tribunal’s order.

The failure to pay maintenance without sufficient reason will result in a

warrant for collecting the due amount. If the person does not pay
maintenance even after the warrant is executed, the person is liable to
imprisonment for a maximum of 1 month or until the amount is paid,
whichever is earlier. The application for enforcement of maintenance must
be filed within 3 months from the date on which it became due. Otherwise
the application will be dismissed.

The order can also be revised to alter or cancel the maintenance amount if
there is any material change in circumstance of the claimant,
misrepresentation (an innocent, unintentional, false statement) or mistake of
fact (wrong belief about a fact).

Responsibility of the State Government:

The State Government must ensure that all government hospitals and
hospitals partly or fully funded by the government arrange separate queues
for senior citizens and provide beds for all senior citizens. Additionally, every
district hospital must have special facilities for senior citizens. Every district
must have at least one old age home for senior citizens who are poor and
needy. These old age homes must be able to accommodate at least 150
poor and needy senior citizens.11

Old Age Homes by the State Government:

More than 58 crore rupees have been released by the Government of India
supporting the Old Age homes in states since 2013-14. More than 21000

11.https://factly.in/understanding-the-maintenance-and-welfare-of-parents-and-senior-
citizens-act/( Accessed on 16/nov/2020)

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beneficiaries were covered by about 900 old age homes in various states
who received assistance.

Critical analysis of this act:

This Act places the obligation of maintaining a senior citizen by his or her,
grand children or any legal heir. This provision has to be commended by the
law makers for they were able to look into the matter of such importance with
greater insights. There are many families in India in which children are being
brought up by grandparents. So as a result they act in place of parents so
the law has looked into the fact that these people should be included for
claim of maintenance as they too require support from the their families and
also in some cases there maybe only grandchildren due to death of the son12.
A major flaw in this Act which should have had been addressed but
unfortunately did not is that it does not mention the responsibility of son/
daughter in law to maintain their parents in law. As we know that son/
daughter have equal share in property and if they will inherit the property it
is but obvious that there better half will do the same. Now the question that
arises is if they enjoy the benefits, shouldn’t they be held responsible for their
duties as well? They utilize the benefits of the property as the legal heirs do
(in normal circumstances) and are left unperturbed when the issue of
maintenance arises. This is quite a matter of concern which was overlooked
by the law makers but should have found a place in the act due to its very
premise.

Legal practitioners may not represent parties in Tribunal process:

The Act states that no party to a proceeding before a tribunal or appellate

tribunal can be represented by a legal practitioner. While the restriction on
legal representation may expedite the process and reduce expenses for the
parties involved, it contradicts Section 30 of the Advocates Act, 1961 which
states that all advocates have a right to practice in: (i) all Courts including
the Supreme Court, (ii) before any tribunal or person legally authorised to
take evidence, and (iii) before any other authority or person before whom
such advocate is entitled to practice that this Section of the Advocates Act,
1961 came into effect after the 2007 Act was passed by

12.http://www.lawupnext.in/2018/05/overview-of-maintenance-and-welfare-senior-
citizens-act.html( Accessed on 16/nov/2020)

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Parliament. Therefore, the provisions of the Advocate Act, 1961 would
prevail, and there cannot be an absolute bar on assistance by legal
practitioners in Maintenance or Appellate Tribunal the Punjab and Haryana
High Court noted in its judgement in the case of Paramjit Kumar Saroya v.
Union of India 13

Definition of “relative” is ambiguous:

The Bill defines “relative” as any legal heir of a childless senior citizen.
However, the senior citizen may change his will from time to
time. Therefore, there is no finality on who would be the legal heir, and
therefore who must maintain the senior citizen.
Definition of homecare services not specified:

The Bill sets requirements for institutions providing homecare services to

senior citizens who have difficulties performing activities of daily life due to
physical or mental impairments. These requirements include: (i) hiring
trained and certified attendants or caregivers, and (ii) registering with a
registration authority set up by the state government. However, the Bill does
not define what homecare services would include. For example, it is unclear
if homecare services would include medical services such as physiotherapy
and administering drips, or services such as cooking and cleaning. 14
Further, the Bill requires that institutions providing home care services must
hire trained and certified attendants or caregivers. However, it does not
specify or delegate to Rules the certifications and trainings those attendants
and caregivers must receive to provide such services.

Financial implications for states:

The Bill requires various provisions under the Bill to be implemented by state
governments which would require states to incur the related
expenditure. These provisions include: (i) setting up of care-homes, (ii)

13
Paramjit Kumar Saroya v. Union of India and another, [AIR 2014 P&H 121].
14.https://factly.in/understanding-the-maintenance-and-welfare-of-parents-and-senior-
citizens-act/( Accessed on 16/nov/2020)

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creating accessible public facilities for senior citizens, and (iii) regulating
private care-homes and homecare services. The Financial Memorandum of
the Bill states that no additional funds will be provided from the Consolidated
Fund of India for the implementation of these provisions.Note that the
implementation of the Bill may be affected if state legislatures do not make
the requisite fund allocations or do not possess adequate funds to do so.
A Few Suggestions:
1. State Governments should make provisions for setting up Help line,
Counseling Centers etc. to cater to the psychological and emotional needs
of the senior citizens, particularly those above the age of 70 and widowed
women who often spend their twilight years lonely, in a state of negligence
and deprivation. 15
2. Programmes should be organized to recognize the potential of the Senior
Citizens by involving them in various activities. Senior Citizens through their
experience and familiarity with their communities are well placed to identify
the needs and vulnerabilities of their families and neighbors, including the
most vulnerable older people. Their participation can contribute to increase
confidence amongst older people, particularly older women. Involving older
people in the planning processes results in the inclusion of older people in
emergency responses, thus mainstreaming ageing in disaster risk reduction
plans and activities16
3. The Act needs more publicity to achieve its real purpose. People are to be
sensitized about elderly abuse especially the staff of Old Age Homes. The
need is to change the mindset that sees people of disadvantage not as a
productive national resource. If we encourage public private partnership by
engaging NGOs, community organizations and corporate sectors for this
programme, it will become cost-free and easier for the Government to work
on it.
4. Provisions should be made for financial security by taking measures like
Group Insurance and Old Age Pension at the early age. It is really
disheartening to note that the senior citizens are mostly neglected, become
desolate and find it very difficult to eke out their livelihood. Some of them

15
Financial Memorandum, Maintenance and Welfare of Parents and Senior Citizens
(Amendment) Bill, 2019
16
https://www.worldwidejournals.com/paripex/recent_issues_pdf/2015/August/August_2
015_1439548053__83.pdf( Accessed on 16/nov/2020)

12
manage to find a place in the old age homes, some of them choose to beg
and most of them die of starvation and uncared for.
5. Leave rules and transfer rules are to be made liberal so that whenever
parents need the care and protection of child, they are there to serve them.

Conclusion:

Considering God is a distant thing, people nowadays don’t even treat their
parents humanly. For those helpless parents the Indian legal system and the
Government have provided a recluse in the form of the various statutory
provisions as mentioned above in the paper. These statutes can have
positive effect on the lives of unfortunate parents but only if they exercise
their authority and stand up for what is rightfully theirs. They shouldn’t let
their children use them and throw them as per their wish. These legislative
actions can only prove to be effective when parents use them as a tool to
protect themselves. As for the children, they should accompany their parents
and support them, instead of completely neglecting them. We are so busy
growing up, that we tend to forget that our parents are also growing old.

Now, there is hope that passing of the Maintenance and Welfare of Parents
and Senior Citizens Act, 2007 would provide great relief to the parents and
senior citizens. It provides for positive rights of senior citizens, who are
neglected by their children or near relatives for claiming maintenance, from
those children and relatives who are likely to inherit their property. This Act
is very important as it ensures speedy, inexpensive proceedings. Also the
precious time of Hon‟ble court can be saved as Tribunals are established.
This Act is made applicable to senior citizens who are childless. So a very
broad view is adopted in this Act.

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