An Act for Maintenance of Parents & Senior Citizen
The changing norms of society raise various problems. Our society, possibly more in the urban areas, is today faced with the ground reality of a unitary family, rather than a joint family where different generations live together. There are various causes for this – easier movement for employment, the requirement of greater privacy of the younger generation, the ability and the need to lead their lives, etc. Simultaneously, the kind of welfare measures and support system required for the parents and aged persons have not kept pace with it as may be in the western countries. There is an absence of a social security system to take care of the older generation. And this is coupled with longevity as a consequence of better medical assistance.
The Objectives of Senior Citizen Act –
The very statement of objects and reasons of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as the said Act) has referred to the traditional norms and values of the Indian society which laid stress on providing care for the elderly, but due to the withering of the joint family system, a large number of elderly are not being looked after by their family. It is observed that aging has become a major social challenge and there is a need to give more attention to the care and protection for older persons. It is perceived that the procedure for claiming maintenance under the Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is time-consuming as well as expensive and, thus, the need to have a simple, inexpensive and speedy provisions to provide a legal remedy for the parents.
The Act makes Obligation on Children –
Maintenance of parents and senior citizens is contained in Chapter II starting from Section 4. The obligation of the children or relative maintains a senior citizen extends to the needs of a senior citizen to lead a normal life. The provisions have also taken into consideration that the next generation inherits the properties from their parents and yet are unwilling during the lifetime of their parents to maintain them. The hard reality is that the longevity has given extended ownership and some times the next generation is not even willing to wait to inherit the property at an appropriate stage but would like to take it during the lifetime of their parents without the corresponding obligation. It is in this context that subsection (4) of Section 4 of the said Act casts an obligation on any person who is in possession of a property of a senior citizen or which he would inherit to maintain the senior citizen and where there are more than one relatives entitled to inherit the property the maintenance is to be shared in the proportion of the inheritance.
Where file application under this Act for Maintenance-
The appropriate application is to be filed before a Maintenance Tribunal ( Which is SDM of the district) duly constituted under Section 7 of the said Act which can follow a summary procedure as envisaged under Section 8 of the said Act. Simultaneously, under subsection (2) of Section 8 of the said Act, the Tribunal has all the powers of a Civil Court for purposes of taking evidence on oath and of enforcing the attendance of witnesses, discovery and production of documents and has to be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXVI of the Cr.P.C. In order to give an option to the senior citizen, Section 12 of the said Act observes as under:-
“12. Option regarding maintenance in certain cases:- Notwithstanding anything contained in Chapter IX of the code of Criminal Procedure, 1973 (2 of 1974), where a senior citizen or a parent is entitled to maintenance under the said Chapter and also entitled for maintenance under this Act may, without prejudice to the provisions of Chapter IX of the said Code, claim such maintenance under either of those Acts but not under both.”
Care the Right of the property of Senior Citizen & Parents-
While framing the provisions of the said Act, the Legislature has gone much beyond the aspect of maintenance as rights in the property have become involved with that aspect not only affecting the senior citizens and their progenies inter se rights, but even capable of affecting third party rights. Thus, the matter is not so simple as the statement of objects and reasons states, but on the other hand, there are certain provisions which are bound to give rise to more complex legal issues where rights in immovable properties are sought to be negated on pleas such as fraud, coercion and undue influence. In fact, even presumptions are sought to be drawn by introducing a deeming provision in certain situation.
The option is available to obtain maintenance under the said Act or under Chapter IX of the Cr.P.C., there is a clear prohibition not to claim maintenance under both the aforesaid provisions. The wordings of the section do not suggest that if maintenance is obtained under one Act that is taken into account for purposes of the other Act, but rather that the recourse to remedy is only under one provision. However, Section 9 of the said Act limits the maintenance which can be granted up to ` 10,000/- per month. This puts a dilemma before a senior citizen. If he seeks to avail of what is perceived to be a simple and a less expensive remedy under the provisions of the said Act (as the object and reasons state), then he is constrained by the amount of ` 10,000/-. He is not only constrained but is also precluded from moving for maintenance under Chapter IX of the Cr.P.C. which does not put any such limit. On the other hand, if he is desirous of larger maintenance and moves under Chapter IX of the Cr.P.C., the more expeditious remedy, albeit of a smaller amount of maintenance is no more available to him. Thus, the benefit of the Act itself would stand precluded.