In this blogpost, Sudhi Ranjan Bagri, Student, National Law Institute University, Bhopal, writes about who is entitled to claim maintenance under the Welfare Of Parents And Senior Citizens Act, 2007 and duties of the State relating to the act.

Aging is a natural process, and the person starts suffering from some physical inability, sometimes starts losing his mental ability and many such problems have to be faced by the people who are old. Thus, they need someone to take care of them and support them financially if they aren’t in a position to earn.

Therefore, Ministry Of Law And Justice drafted a legislature titled ‘The Maintenance and Welfare of Parents and Senior Citizens Act’ (hereinafter referred to as the Act), and it was published on December 31, 2007, after receiving the assent of President on December 29, 2007. As mentioned in Section 1 of the Act,  it shall come into force in a State on such date as the State Government may appoint. The Act mentions that the person would be considered as a ‘senior citizen’ if he is a citizen of India and has attained the age of 60 years or above.[1]

Who is entitled to claim maintenance under this Act (Section 4)

 Section 4 of the Act mentions that a senior citizen including a parent who is unable to maintain himself from his own earning or property owned by him can claim maintenance.

The Act further states that, if the person claiming the maintenance is a parent or grandparent, then he can do so against one or more of his children not being a minor. However if the claimant is a childless senior citizen, then he can do so against his relative. Here ‘relative’ would mean 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.[2]

Extent of the liability

 In determining the extent of the obligation, it has been stated that the obligation of the children or relative, as the case may be, to maintain a senior citizen or parent (either father or mother or both) extends to the needs of such citizen or parent so that the claimant may lead a normal life.

This Act, however, doesn’t seek to make it an absolute obligation on the relatives of a senior citizen. The Act states that a relative from whom such maintenance is being claimed must have sufficient means to maintain such claimant. Further, the Act also attaches a proviso to it, which states that such person should either have the possession of the property of such senior citizen, or he would inherit the property of such senior citizen. On fulfilling the above-mentioned conditions only, the relative can be asked to maintain the senior citizen.

The Act, contains another proviso, which talks about the proportionate payment by all relatives if there are more than one and all 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.

Application for maintenance

 An application for claiming maintenance as mentioned under section 4, before a Tribunal as constituted under Section 7 of the Act, may be made[3] –

• by a senior citizen or a parent, as the case may be; or
• if he is incapable, by any other person or organisation authorised by him; or
• the Tribunal may take cognizance on its own (suo motu).

The Tribunal then will issue the notice to the child or relative or other concerned parties. The Tribunal is also empowered to make such interim orders regarding monthly allowances for maintaining the parent or senior citizen, and can ask the child or relative to pay the maintenance amount during the pendency of the original application, as it thinks fit.[4] Also such order has to be made by Tribunal within 90 days from the date of service of the notice.[5] However in exceptional circumstances, the Tribunal may extend such time for a further period of 30 days.

Order for maintenance

The Tribunal may pass an order directing children or relatives to make a monthly allowance at such monthly rate for the maintenance of such senior citizen or parent, as it thinks fit, to such parent or senior citizen. However, before passing such order the Tribunal has to take care of these points:

1. that the children or relatives, as the case may be, have neglected or refused to maintain that parent or the senior citizen concerned.
2. that the parent or senior citizen, as the case may be, is unable to maintain himself; and
3. that the Tribunal is satisfied with such neglect or refusal by the children or relatives.[6]

The maximum maintenance allowance which may be ordered by such Tribunal should be prescribed by the State Government, but the amount in no case can exceed ten thousand rupees per month.[7]

The Tribunal has further been given the power to review its order under Section 10 of the Act. It states that where it is proved that there was any misrepresentation or mistake of fact or a change in the circumstances of any person has to take place, who has been receiving a monthly allowance, then in those situations, the Tribunal is empowered to make such alteration, as it thinks fit, in the allowance for the maintenance.[8] The exercise of this power, however, is upon the discretion of the Tribunal, as is indicated by the use of the word ‘may’ in Section 10 of the Act.

The Tribunal is also empowered to vary or cancel the earlier orders regarding monthly allowances, if the Tribunal considers it fit to do so, in consequences of any decision passed by any competent Civil Courts.[9]

Protection of life and property of Senior citizens

 In the situations where a senior citizen after the commencement of this Act, has transferred his property( movable or immovable), by way of gift or any such transfer, but the condition that the transferee shall provide him basic amenities and physical needs, is attached with the transfer, and thereafter such transferee refuses or fails to fulfill such condition, 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.[10]

Before this Act came into existence, the only remedy available to  senior citizens in such a cases was to approach the court to ask for the maintenance from the children to whom he had transferred the property but then also such property would be the exclusive property of the transferee and the senior citizen had no right on such property. But by applying the provisions of this Act, a senior citizen can reclaim his property from the transferee.[11]

Duties of State Government

The importance of the interference by the State Government, for proper implementation, can be understood by looking at Section 1 itself. It states that the Act would come into force on such date as the State Government decides.  The Act mentions various duties which the State Government has to fulfill. Following are some of the duties:

Establishment of old-age homes

The Act makes it compulsory for the State Government to establish and maintain at least one old-age home in each district to accommodate a minimum of one hundred fifty senior citizens who are indigent.[12]

Providing medical support

 The State Government shall ensure that[13] –

• the hospitals which are controlled by the Government or hospitals which receive whole or part of their funds from the Government, shall provide beds for all senior citizens as far as possible;
• separate queues be arranged for senior citizens, so that they don’t have to wait long in the queue;
• facility for treatment of chronic, terminal and degenerative diseases is expanded for senior citizens;
• research activities for chronic elderly diseases and ageing is expanded;
• there are earmarked facilities for geriatric patients in every district hospital duly headed by a medical officer with experience in geriatric care.

Measures for publicity, awareness, etc. for welfare of senior citizens

The State Government shall take all measures to ensure that[14] –

• the provisions of this Act are given wide publicity through public media including the television, radio and the print, at regular intervals;
• the police officers and the members of the judicial service, along with the Central and State Government Officers, are given periodic sensitization and awareness training on the issues relating to this Act;
• 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.

Power of State Government to make rules

 The Act confers wide powers to the State Government to make rules for carrying out the purposes of this Act.[15]

Every rule made under this Act shall be laid, as soon as it is made, before each House of State Legislature, where it consists of two Houses or where such legislature consists of one House, before that House.[16]

[1] Clause (h) of Section 2

[2] Clause (g) of Section 2

[3] Section 5

[4] Section 5(2)

[5] Section 5(4)

[6] Section 9

[7] Ibid

[8] Section 10

[9] Ibid

[10] Section 23

[11] See https://en.wikipedia.org/wiki/Maintenance_and_Welfare_of_Parents_and_Senior_Citizens_Act,_2007

[12] Section 19

[13] Section 20

[14] Section 21

[15] Section 32(1)

[16] Section 32(3)