can a parent claim maintenance from a child
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In this article, Hardeep Singh of 3rd year, Campus Law Centre discusses How can parents claim maintenance from their child.

Introduction

A person to live a dignified life, requires basic amenities like food, clothing, shelter and other necessary requirements. It is the moral duty of a man to provide the above mentioned amenities to his wife, parents and children in form of maintenance. Maintenance is the process of maintaining or preserving someone. Prior to 1973, there was no provision for maintenance of parents under the Code of Criminal Procedure. However, the provision for maintenance was introduced in for the first time in Section 125 of the Code of Criminal Procedure in 1973.

Section 125 of the Criminal Procedure Code, 1973 was enacted to provide an effective remedy for the neglected persons to seek maintenance. However in 2007, the Maintenance and Welfare of Parents and Senior Citizens Act was passed which provides provisions for maintenance to support elderly parents and senior citizens. Parents can claim maintenance either under Section 125 of Code of Criminal Procedure, 1973 or under Maintenance and Welfare of Parents and Senior Citizens Act, 2007. However, they cannot claim maintenance under both the acts.  

Maintenance under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007

The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 seeks to make a legal obligation for children and legal heirs to provide maintenance to senior citizens. It even permits state governments to establish old age homes in every district. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 act authorizes State governments to set up maintenance tribunals and appellate tribunals to decide the matters related to maintenance of the elderly. The act gives a right to the senior citizens and parents to apply to a maintenance tribunal seeking a monthly allowance from their children or legal heirs.

What is Maintenance?

Maintenance is defined in Section 2(b) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 as “maintenance includes provision for food, clothing, residence and medical attendance and treatment.”

Who can claim Maintenance under the Act?

Under Maintenance and Welfare of Parents and Senior Citizens Act, 2007 the maintenance can be claimed by parents, grand parents and senior citizens.

  • Parents

For the purpose of this act Parents include: father or mother whether biological, adoptive or step father or step mother. However it is pertinent to mention here that it is not the requirement of the Act that the parents should be senior citizens.

  • Grand Parents

Grandparents includes both maternal and paternal grandparents.

Conditions to claim Maintenance

The condition prior to claiming maintenance by the above mentioned people under this Act is that the persons must be unable to maintain themselves from their own earnings.

Who is liable to pay Maintenance?

Adult Children in case of Parents and adult grandchildren in case of grandparents, both male and female, are responsible/liable to pay maintenance to parents and grandparents.

If in case the parents or senior citizens don’t have any children or grandchildren, they can claim maintenance from their relatives. The conditions under which parents and senior citizens can claim maintenance from relatives are as follows:

  1. The relative must be a major.
  2. The relative should have sufficient means to provide maintenance.
  3. The relative should either be possessing the property of the senior citizens or they will inherit the property after the death of senior citizen.
  4. In case there are more than one relative, who are likely to inherit the property of the senior citizen, then maintenance must be paid by relatives in proportion to their inheritance of the property.

How to apply for Maintenance

  1. An application can be made under Section 4 of the Act, by a senior citizen or parent to the tribunal constituted for resolving maintenance claims by giving details of the person from whom maintenance is demanded.
  2. Maintenance proceedings may be initiated against the specified child/relative in any district where such citizen lives.
  3. If any person is incapable to make an application, then any other person or registered voluntary organization authorized by him/her can make the application.
  4. The tribunal will then issue a notice to the children/relatives, conducts hearings and pronounce a maintenance order.
  5. In case there is a failure in making the payment of maintenance as ordered by the tribunal without sufficient reason for three months after its due date, the senior citizen or parents, as the case may be, can approach the tribunal again.
  6. In case of such delay the children/relatives are punishable with fine or imprisonment upto one month which may extend till the payment is made.
  7. The act provides 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 the parties during the proceedings before the Maintenance Tribunal.

Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2018

The government brought the Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2018 by which the government has tried to expand the ambit of social security for the elderly people by:

  1. Making distant relatives responsible for their maintenance,
  2. Increasing the amount of fine payable and the period for imprisonment for abandoning parents. Now the imprisonment would be upto six months with a fine upto Rs. 10,000 or both.
  3. The most important change brought in by the government is removing the financial cap of Rs. 10,000 for the maintenance of parents. However, it is felt that while removing this cap is adequate for the rural areas or small towns but it is inadequate in bigger/metropolitan cities.
  4. The definition of “children” has been expanded under the amendment bill to include daughter-in-law and son-in-law. This means that, so far, a daughter, son, grandson or granddaughter was responsible for the care of parents and senior citizens. But from now on, even the daughter-in-law and son-in-law, a minor through its guardian or a relative of a childless elderly would be held responsible for their care.

Maintenance under Section 125 of Code of Criminal Procedure

Section 125(1)(d) of the Code of Criminal Procedure discusses about the maintenance for parents to be provided by children. The section states that “If any person having sufficient means neglects or refuses to maintain his father or mother, unable to maintain himself or herself, a magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct”.

Who is liable to pay maintenance

Section 125 of Cr.P.C states that both mother and father, whether natural or adoptive, can claim maintenance from any of their children. Under Section 125 even daughters are liable to pay maintenance to her mother and father. In case of step mother, she can claim maintenance only if she is a widow and doesn’t have any natural-born sons or daughters. Married daughters are also liable to pay maintenance to parents if they are solely dependant on her.

Conditions required for claiming maintenance

  1. Father or mother must be unable to maintain himself or herself: By giving a plain meaning to the language used in section 125(1)(d), it seems that there are only two circumstances under which parents can claim maintenance, which are as follows:
  • The parents must be unable to maintain themself
  • The person against whom an order under Section 125 of Cr.P.C is passed by the court must have sufficient means/resources to maintain his/her parents and yet neglects or refuses to maintain them.

The provision in section 125 is one of general application. The provision provides the statutory recognition of the obligation that a son who has sufficient means is bound to maintain a father or mother who is unable to maintain himself or herself. The above mentioned provision is incorporated under Code of Criminal Procedure for the first time recognising the right of infirm parents who are unable to maintain themselves to be maintained by their son or daughter who is possessed of sufficient means as also providing a remedy to enforce that right.

  1. Daughter is liable to pay maintenance to parents: There can be no doubt that it is the moral obligation of a son or a daughter to maintain his or her parents. The parents will be entitled to claim maintenance against their daughter provided the above mentioned conditions are fulfilled. However, before passing an order in favour of parents against their married daughter, the court must be satisfied that the daughter has sufficient means of her own which should be independent from that of her husbands.
  2. Adoptive mother can claim maintenance: The Bombay High Court in Baban Alias Madhav Dagadu Dange v. Parvatibai Dagadu Dange observed that according to the definitions given in the General Clauses Act, the expression “father” includes both natural as well as adoptive father. It is true that the General Clauses Act has not defined the expression “mother”. But that does not means that the expression should be taken in its restrictive sense. Now if expression “father” and “son” is to be given wider interpretation, there is no valid reason why the expression “mother” should not be given similar wider interpretation so as to include an “adoptive mother” as well.
  3. Step-mother can claim maintenance: The Hon’ble Supreme Court in Kirtikant D. Vadodaria v. State of Gujarat and Ors. held that “a childless step-mother may claim maintenance from her step-son provided she is a widow or her husband, if living, is also incapable of supporting and maintaining her”. However the Karnataka High Court in Ulleppa v. Gangabai added its view to the judgement pronounced by Supreme Court in Kirtikant D. Vadodaria v. State of Gujarat. The court observed that if it is proved that step mother has other modes of maintaining herself she may not be able to get maintenance from her step sons.

Difference between Section 125 of Code of Criminal Procedure and The maintenance and Welfare of Parents and Senior Citizens Act, 2007

There is a considerable difference between the two acts. Some of these differences are discussed below in the table:

Maintenance under Section 125 of Code of Criminal Procedure Maintenance under Maintenance and Welfare of Parents and Senior Citizens Act, 2007
There is no provision for maintenance of senior citizen who is without child. Under Maintenance and Welfare of Parents and Senior Citizens Act,  a childless senior citizen can claim maintenance.
In Cr.P.C, only the Magistrate has the power to decide the case. In the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 the power is given to the maintenance tribunal to decide the case.
Under Cr.P.C, proceedings are time consuming. Under the Welfare of Parents and Senior Citizens Act, 2007 there is a specified time limit of 90 days under which the proceedings should be concluded.
In the maintenance proceedings under Cr.P.C, an advocate can represent his/her client in proceedings before the magistrate. In the maintenance proceedings under Maintenance and Welfare of Parents and Senior Citizens Act, 2007 participation of an advocate is barred.
Cr.P.C provides a restrictive definition of parents. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 act provides for a broad definition.  

Obligation of children to maintain their parents under Personal Laws

Hindu Adoption and Maintenance Act, 1956

The Hindu Adoption and Maintenance Act, 1956 is the first personal law statute in India, which imposes an obligation on the children to maintain their parents. The obligation to maintain parents is not confined to sons only, even the daughters have an equal obligation/duty to maintain their parents. It is to be kept in mind that parents who are financially unable to maintain themselves from any source, only they are entitled to seek maintenance under this act.

According to Section 20 of Hindu Adoption and Maintenance Act, 1956 it is the obligation of children to maintain there aged infirm parents (children here includes legitimate as well as illegitimate). The term ‘children’ under Hindu Adoption and Maintenance Act, 1956 does not include grandson and granddaughter. The liability to maintain parents is personal and is not dependent on the possession of property (as is the case of proceedings under Maintenance and Welfare of Parents and Senior Citizens Act) and this obligation ceases with the death of the person liable to maintain.

Muslim Law

Under the Islamic principles, if the children have a right to be maintained by their parents, they also have a corresponding duty to provide maintenance to their parents. Rules of Muslim Law, relating to maintenance of parents are stated as under:

  1. The children are bound to maintain their parents only if they are financially sound and the parents are poor. In other words, only those parents who are in need are entitled to get maintenance from their children.
  2. Both the son and daughter have equal duty to maintain their parents.Their responsibility to maintain the parents is joint and equal. But if one child is poor and the other is in easy circumstances, then the liability to maintain parents lies on the child who is in easy circumstances.
  3. However a son, though poor and in strained circumstances, is bound to maintain his mother, only if she is poor. In other case if a son is poor but is earning something for its livelihood, he is bound to support his poor father who earns nothing.
  4. If the child is in a position that he/she can only support one of its parents, always the mother gets priority over father.
  5. If in case the children are unable to support their parents separately, they may be compelled to take their parents with them and to live together.
  6. Under muslim law, son is not bound to maintain his step mother.

Christian and Parsi Law

The Christians and Parsis have no personal laws providing for maintenance for the parents. Parents who seeks maintenance from their children have to apply under provisions of the Code of Criminal Procedure or Maintenance and Welfare of Parents and Senior Citizens Act.

Comparative Analysis of Different Laws under which Parents can claim Maintenance

Basis Maintenance and Welfare of Parents and Senior Citizens Act Section 125 of Code of Criminal Procedure Hindu Adoption and Maintenance Act, 1956 Muslim Law
Who Can Claim 1. Parents,

2. Grandparents, 3. Senior Citizens

(childless senior citizens can also claim)

Only Parents Only Parents Only Parents
Who is liable to pay 1. Adult Children, in case of parents

2. Adult Grandchildren, in case of Grandparents

3. Relatives, in case parents or senior citizens don’t have any children or grandchildren.

Both son and daughter are liable to pay maintenance. Married daughters are also liable to pay only if she has sufficient means of her own i.e., independent from that of her husband. Both son and daughter (both legitimate and illegitimate)are liable to pay maintenance. Both son and daughter are equally liable to pay maintenance.
Definition of Parents, Grandparents, and Relatives 1. Parents include father and mother (biological and adoptive), stepfather and stepmother.

2. Grandparents includes both maternal and paternal grandparents.

3. Relative here means he/she should either be possessing the property of the senior citizens or they will inherit the property after their death.  

Parents include father and mother (biological and adoptive), stepfather and stepmother. Parents include father, mother, stepfather and stepmother (it included a childless stepmother) Parents include only father and mother.
Conditions for claiming Maintenance 1. The person must be unable to maintain himself

2. The person who is liable to pay must be financially sound.

1. The parents must be unable to maintain themself and the children who are liable to pay must be financially sound.

2. In case of step mother she should be widow at the time of claiming maintenance.

1. The parents must be unable to maintain themself and the children who are liable to pay must be financially sound.

2. However a son, though poor is bound to maintain his mother, only if she is poor.

3. In case the children are unable to support their parents separately they can be compelled to live together with their parents.

Hiring Legal Representation The person filing the case have to represent the case himself. An advocate can represent his/her client in proceedings. An advocate can represent his/her client in proceedings.

Court Procedure one needs to follow

Procedure for claiming maintenance under Maintenance and Welfare of Parents and Senior Citizens Act, 2007

Section 6 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 provides for the procedure for claiming maintenance. The procedure is as follows:

  1. An application under Section 5 can be filed against any children or relative in any district where he/she resides or last resided.
  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 (same as that of a Judicial Magistrate of first class as provided under the Code of Criminal Procedure, 1973)
  4. All evidence that are produced in 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.
  5. However if the Tribunal is satisfied that the children or relative against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the Tribunal, the Tribunal may proceed to hear and determine the case ex parte.
  6. 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.
  7. 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 amicable settlement has been arrived at, the Tribunal shall pass an order to that effect.

Procedure for claiming maintenance under Section 125 of Code of Criminal Procedure

  1. An application for maintenance may be filed against any person, liable to pay the same, in any district where the parents resides or where the child resides.
  2. Maintenance cases under Section 125 can only be heard by a Judicial Magistrate of First Class.
  3. After producing and securtinising the evidence, the judicial magistrate of First Class may pass an order for maintenance.
  4. Maintenance is either payable from the date of order of payment or from the date of the application made for maintenance, depending on court’s judgement.
  5. Once a maintenance order is passed, a copy of the same must be supplied to the claimant free of cost.
  6. The person who is ordered to pay maintenance must obey the court order. However, failure to do so without sufficient reason, the court can issue a warrant against such person for collecting the amount due or can attach any immovable property or salary of such person.

Conclusion

The elderly, as a distinctive group of the world population, are entitled to a comfortable and secure environment with their needs addressed. In the recent times, with the introduction of Maintenance and Welfare of Parents and Senior Citizens Act, 2007, the concept of maintenance for elderly has been given a wide scope as it not only includes parents but even grandparents and childless parents as well. According to me, filing an application under the above mentioned Act for claiming maintenance is the best option available as compared to filing an application under Cr.P.C or the personal laws.

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