THE PREDICAMENT OF SENIOR CITIZEN: LEGAL RECOURSE
The
increasing pace of development globally and consequent fast pace of life with a
view to catering to material aspiration has resulted in diminishing the impact
of relationship. The emotional quotient in the relationship is a casualty to
the onslaught of fast pace. The newspaper reports and social media bears the
testimony and are filled with the reports of tyranny of senior citizen, who,
despite having contributed to the cause of family during their green days
suffers a great deal. This is not as if every parent suffers or every Son or
daughter inflicts misery on senior citizen. The numbers however are increasing
by the day and the fast pace of life and aim of competing in rat race has
caused a void in thinking in many, the resultant chaos is thus resulted in the
malady caused to senior citizen. Having realized the situation and the need of
legislative measures steps are taken and being taken by the Government to
safeguard the interest of senior citizen. However, notwithstanding the law and
process laid down, unless, the law percolates down, the same may not be of much
use. The dissemination of knowledge as regards their rights are essential and
with that avowed aim the issue is taken up herein. The need was therefore felt for statuary
backup to the need of senior citizen and thus, Maintenance & Welfare of
Parents & Senior Citizens Act 2007 (MWPSC) was enacted by parliament with a view to
prescribe the comprehensive mechanism to address the issues relating to senior
citizen.
OBJECT OF Maintenance & Welfare of Parents & Senior
Citizens Act 2007 (MWPSC)
The
intention of the legislature in making provisions in the interest of senior
citizens needs to be looked into. The necessity was felt to clothe the senior
citizen with a wide spectrum of the, which are fundamental to the their very
survival and/or livelihood at their old age. Undoubtedly, the Court’s approach
cannot be narrow and pedantic while applying the provisions of the Senior
Citizens Act to the grievances of the senior citizens falling within the ambit
of the said Act. A protection from harassment, exploitation, neglect,
psychological disturbances, psychological needs, and all possible facets to
safeguard their physical and mental health are required to be recognized when
sub-section (2) and sub-section (3) of Section 4 clearly provide that the
obligation of the children or relatives would be to cater to the needs of the
senior citizens so that they ‘live a normal life’.
The
words “normal life” shall have a far deeper and wider concept, deriving its
meaning and having a bearing on the fundamental rights of livelihood as
guaranteed and enjoyed by senior citizens under Article 21 of the Constitution.
This shall have to include a right to prevent themselves from being harassed by
children and by relatives.
The
statement of object and reasons reflects the intention behind the legislation
also to provide for institutionalization of the suitable mechanism for
protection of life and property of older persons. Thus, it was certainly
appropriate and necessary for the parents in the facts of their case to invoke
the provisions of the Senior Citizens Act to seek a relief against the delinquent
children qua their property, namely, the flat in their possession.
BROAD PROVISIONS OF Maintenance & Welfare of
Parents & Senior Citizens Act 2007 (MWPSC)
The preamble
to the Senior Citizens Act which reads as under:-
“An
act to provide for more effective provisions for the maintenance and welfare of
parents and senior citizens guaranteed and recognised under the Constitution
and for matters connected therewith or incidental thereto.”
Section
2 (b) defines "maintenance"
that includes provision for food, clothing, residence and medical attendance
and treatment.
Section 2 (g) defines "relative"
means 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
Section
2 (h) of the Act defines
"senior citizen" means any person being a citizen of India, who has
attained the age of sixty years or above.
Section 4 recognizes an entitlement of
maintenance to inhere in parents and senior citizens. Section 4 recognizes a
corresponding obligation on the part of the children or relative to maintain a
senior citizen, extending to such needs as would enable them to lead a normal
life. In the case of a relative, the obligation is if they are in possession of
the property of the senior citizen or would inherit property from them. Hence,
in the case of the children of a senior citizen, the obligation to maintain a
parent is not conditional on being in possession of property of the senior
citizen or upon a right of future inheritance
Section 5 lays down the procedure by which an
application for maintenance can be made. Section
6 elucidates provisions governing jurisdiction and procedure. Section 7 contains stipulations for the
constitution of a Maintenance Tribunal. Section 8 envisages a summary procedure
for making an inquiry.
Section 7
deals with constitution of Maintenance
Tribunal
The
state governments are empowered to constitute a tribunal for each Sub-division
one or more Tribunals as may be specified in the notification for the purpose
of adjudicating and deciding upon the order for maintenance under section The Tribunal shall be presided over by an
officer not below the rank of Sub-Divisional Officer of a State.
Section 9 of
the Act prescribes that If children or
relatives, as the case may be, neglect or refuse to maintain a senior citizen
being unable to maintain himself, the Tribunal may, on being satisfied of such
neglect or refusal, order such children or relatives to make a monthly
allowance at such monthly rate for the maintenance of such senior citizen, as
the Tribunal may deem fit and to pay the same to such senior citizen as the
Tribunal may, from time to time, direct.
& the maximum maintenance allowance which may be ordered by such
Tribunal shall not exceed ten thousand rupees per month.
Section 11
provides for the enforcement of an order of maintenance. As per Section 14 A, senior citizen, including
a parent, who is unable to maintain themselves from their own earning or out of
property owned by them, is entitled to make an application under Section 4(i).
A
parent or grand-parent may make an application against one or more of their
children. A childless senior citizen can make an application against a relative
specified in Section 2(g).
The
procedure to be followed by a Maintenance Tribunal (constituted under Section
7) is of a summary nature as provided in Section 8(1) and with all the powers
of a Civil Court, as provided in Section 8(2)17 . Under Sub-section (1) of
Section 9, where a senior citizen is not able to maintain himself or herself
and the children or relatives, as the case may be, neglect or refuse to
maintain them, the Tribunal is empowered to order them to make a monthly
allowance at such monthly rate for the maintenance of the senior citizen, as
the Tribunal may deem fit.
CONSTITUTION
OF TRIBUNAL
The
Tribunal constituted under the Senior Citizens Act 2007 has the jurisdiction
to:
(i)
pass appropriate orders for protecting
the life and property of parents and senior citizens, including orders of
eviction;
(ii)
The intent and object of the Act
is to provide for an inexpensive and speedy relief to parents and senior citizens;
(iiI) While
Chapter II entitles parents and senior citizens to apply for orders to provide
monetary relief for sustenance and maintenance, Chapter V contains provisions
for protecting the life and property of parents and senior citizens;
(iv)
The Tribunal constituted under the Act
has been entrusted to issue orders after a summary enquiry, for effective
maintenance of parents and senior citizens including relief against neglect,
harassment and protection of the property of senior citizens;
(v)
Section 23 confers two separate and
distinct rights: (a) Section 23(1) empowers the Tribunal to declare a transfer
of property by a senior citizen void, where the transfer was conditioned upon
providing basic amenities and physical needs to a senior citizen, where the transferee
fails to provide them; PART B 12 (b) Section 23(2) recognises a pre-existing
right of a senior citizen to receive maintenance out of an estate and secures
the right of making it enforceable against a transferee who had notice of the
right;
(vi)
The expression “maintenance” in
Section 2(b) includes provision for residence and a right to reside can be
enforced by a senior citizen, if the property is transferred without making a
suitable provision for maintenance; and
(vii) Though,
the Senior Citizens Act 2007 does not contain an express provision enabling the
Tribunal to pass eviction orders, the power has to be read within its
jurisdiction by necessary implication. Such an interpretation would be
purposive, in order to effectuate the provisions of the Act. The contrary view
would cause hardship to senior citizens who would be powerless, despite being
forcibly dispossessed of their means of sustenance. Parliament has empowered
the State governments to authorise local authorities to take remedial measures
for protecting the life and property of senior citizens and it would be
incorrect to limit the relief that can be granted by a Tribunal only to
monetary relief. Relegating a senior citizen to a civil court for the recovery
of their property would result in defeating the provisions of the Act.
PROVISIONS OF APPELLATE TRIBUNALS:
Any
senior citizen or a parent, as the case may be, aggrieved by an order of a Any
senior citizen or a parent, as the case may be, aggrieved by an order of a
Tribunal may, within sixty days from the date of the order, prefer an appeal to
the Appellate Tribunal: Provided that on appeal, the children or relative who
is required to pay any amount in terms of such maintenance order shall continue
to pay to such parent the amount so ordered, in the manner directed by the
Appellate Tribunal: Provided further that the Appellate Tribunal may, entertain
the appeal alter the expiry of the said period of sixty days, if it is
satisfied that the appellant was prevented by sufficient cause from preferring
the appeal in time.
2.
On receipt of an appeal, the Appellate Tribunal shall, cause a notice to be
served upon the respondent.
3.
The Appellate Tribunal may call for the record of proceedings from the Tribunal
against whose order the appeal is preferred.
4.
The Appellate Tribunal may, after examining the appeal and the records called
for either allow or reject the appeal.
5.
The Appellate Tribunal shall, adjudicate and decide upon the appeal filed
against the order of the Tribunal and the order of the Appellate Tribunal shall
be final: Provided that no appeal shall be rejected unless an opportunity has
been given to both the panics of being heard in person or through a duly
authorised representative.
The
Appellate Tribunal shall make an endeavour to pronounce its order in writing
within one month of the receipt of an appeal. & a copy of every order made
under sub-section (3) shall be sent to both the panics free of cost.
There
is no provisions of legal representative through a legal practitioner before a Tribunal or Appellate Tribunal
As
per Section 18 of the Act a
Maintenance Officer is appointed by the state government, who designate the
District Social Welfare Officer or an officer not below the rank of a District
Social Welfare Officer, by whatever name called as Maintenance Officer. The Maintenance Officer , in fact represents
a parent if he so desires, during the proceedings of the Tribunal, or the
Appellate Tribunal, as the case may be.
OLD AGE HOME
As
per CHAPTER III: & Section 19 of the act State Government is mandated to
establish and maintain such number of old age homes at accessible places, as it
may deem necessary, in a phased manner, beginning with at least one in each
district to accommodate in such homes a minimum of One Hundred Fifty (150)
Senior Citizens, who are indigent( means any senior citizen who is not having
sufficient means, as determined by the State Government). The state government
has to prescribe the standard of management including the standards and various
types of services to be provided by them which are necessary for medical care
and means of entertainment to the inhabitants of such homes.
As
per Section 22 of the Act for implementing the provisions of this Act, The State Government may, confer such powers
and impose such duties on a District Magistrate as may be necessary, to
ensure that the provisions of this Act are properly carried out and the
District Magistrate may specify the officer, subordinate to him, who shall
exercise all or any of the powers, and perform all or any of the duties, so
conferred or imposed and the local limits within which such powers or duties
shall be carried out by the officer as may be prescribed.
OFFFENCES AGAINST SENIOR CITIZEN
The
Chapter VI prescribes procedure for offence against the senior citizen. A
senior citizen, if abandoned by their Sons/daughter/relatives shall be
punishable with imprisonment of either description for a term which may extend
to three months or fine which may extend to Five Thousand rupees or with both.
The
Cognizance of offences under this Act shall be taken by a Magistrate and shall
be tried summarily by a Magistrate. This is notwithstanding anything to the
contrary in Cod3e of Criminal Procedure.
As
per Section 27 of the Act, o Civil Court shall not have jurisdiction in respect
of any matter to which any provision of this Act applies and no injunction
shall be granted by any Civil Court in respect of anything which is done or
intended to be done by or under this Act.
For
holding any inquiry under section 5, the Tribunal may, subject to any rules
that may be prescribed by the State Government in this behalf, follow such
summary procedure as it deems fit and The Tribunal shall have all the powers of
a Civil Court for the purpose of taking evidence on oath and of enforcing the
attendance of witnesses and of compelling the discovery and production of
documents and material objects and for such other purposes as may be prescribed.
The Tribunal shall be deemed to be a Civil Court for all the purposes of
section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
Order for Maintenance.—
(1) If children or relatives, as the case may be, neglect or refuse to maintain
a senior citizen being unable to maintain himself, the Tribunal may, on being
satisfied of such neglect or refusal, order such children or relatives to make
a monthly allowance at such monthly rate for the maintenance of such senior
citizen, as the Tribunal may deem fit and to pay the same to such senior
citizen as the Tribunal may, from time to time, direct.
BOMBAY
HIGH COURT
Ashish
Vinod Dalal & Ors. V/s. Vinod Ramanlal Dalal & Ors
The
provisions of the Senior Citizens Act are required to be construed to take
within its ambit the maintenance of the senior citizens which certainly would
include all facets of maintenance as provided for in Section 4 of the Senior
Citizens Act, which would aid the senior citizens to lead a normal life. This
certainly includes the senior citizens asserting rights in respect of
‘property’, the meaning of which, is spelt out by section 2(f) of the Act to
mean property of any kind, whether movable or immovable, ancestral or self
acquired, tangible or intangible and which would include rights or interest in
such property. 9. As provided in sub-section (2) of Section 4, the obligation
of the children or relative, as the case may be, to maintain a senior citizen,
extends to the needs of such citizen so that senior citizen may lead a normal
life, which would certainly take within its ambit a protection from any
harassment and torture meted out by a son or relative by keeping himself on the
premises of the senior citizens. The intention of the legislature to provide
such protection to live a normal life to the parents is also reflected in the
provisions of sub-section (3) of Section 4 which provides that the obligation
of the children to maintain his or her parents extends to the need of such
parents either father or mother or both, as the case may be so that such
parents ‘may live a normal life’. Maintenance is also defined in Section 2(b)
to include provision for food, clothing, residence, medical attendance and
treatment. Further Section 3 of the Senior Citizens Act gives an overriding
effect to the provisions of the said Act notwithstanding anything inconsistent
therewith contained in any enactment other than the said Act.
In
above case, impugning the order of the tribunal, the high court has held that
that the tribunal had rightly recognized the rights of the parents on the
property. The flat belonged to parents in respect of which not a semblance of
right was vested in petitioner son and daughter-in-law. The High Court has held
that, where the old parents are suffering at the hands of petitioner son/only
son, daughter-in-law, the same cannot be condoned. Whether such bare minimum
expectations and requirement should not be provided to them by an affluent son,
is a thought which the petitioners need to ponder on. The Son appears to be
totally blinded in discharging his obligations to cater to his old and needy
parents and on the contrary has dragged them into litigation. It is further
held that the vehemence with which arguments were advanced on his behalf,
speaks volume to the approach of the petitioners. It is painful to conceive
that whatever are the relations between the son and the parents, should the son
disown his old aged parents for material gains ?
The
provisions of the Senior Citizens Act are required to be construed to take
within its ambit the maintenance of the senior citizens which certainly would
include all facets of maintenance as provided for in Section 4 of the Senior
Citizens Act, which would aid the senior citizens to lead a normal life. This
certainly includes the senior citizens asserting rights in respect of
‘property’, the meaning of which, is spelt out by section 2(f) of the Act to
mean property of any kind, whether movable or immovable, ancestral or self
acquired, tangible or intangible and which would include rights or interest in
such property. 9. As provided in sub-section (2) of Section 4, the obligation
of the children or relative, as the case may be, to maintain a senior citizen,
extends to the needs of such citizen so that senior citizen may lead a normal
life, which would certainly take within its ambit a protection from any
harassment and torture meted out by a son or relative by keeping himself on the
premises of the senior citizens. The intention of the legislature to provide
such protection to live a normal life to the parents is also reflected in the
provisions of sub-section (3) of Section 4 which provides that the obligation
of the children to maintain his or her parents extends to the need of such
parents either father or mother or both, as the case may be so that such
parents ‘may live a normal life’. Maintenance is also defined in Section 2(b)
to include provision for food, clothing, residence, medical attendance and
treatment. Further Section 3 of the Senior Citizens Act gives an overriding
effect to the provisions of the said Act notwithstanding anything inconsistent
therewith contained in any enactment other than the said Act.
Ritika
Prashant Jasani vs. Anjani Niranjan Jasani & Ors.,
reported in 2021 SCC Online Bom 1802
In
the aforesaid judgment it is held that a harmonious approach is required to be
adopted so that the petitioners should not be removed from the flat in
question. The object of the Senior Citizen Act and to meet that object is,
though, of a paramount importance.
SUPREME COURT
The
hon’ble Supreme Court had the opportunity to deal with a situation of proceedings
under Prevention of Women From Domestic Violence Act (PWDVA) 2005 and the
Senior Citizen act 2007 and if the provisions arte overlapped. Besides, the
Supreme Court in this case, has also dealt with the ambit of Tribunal &
Civil courts. The hon’ble Supreme Court In a matter reported as Smt.
S Vanitha Versus The Deputy Commissioner Civil Appeal No. 3822 of 2020
(Arising out of SLP (C) No. 29760 of 2019) has held that there is no doubt that
the jurisdiction of the Civil Courts has been explicitly barred under Section
27 of the Senior Citizens Act 2007. However, the over-riding effect for
remedies sought by the applicants under the Senior Citizens Act 2007 under
Section 3 cannot be interpreted to preclude all other competing remedies and
protections that are sought to be conferred by the Prevention of Women from
Domestic Violence (PWDV Act) 2005. It may be noted that the PWDV Act 2005 is
also a special legislation, that is enacted with the objective of remedying gender
discrimination. It is an established fact that social and economic inequities is
prevalent in our society, which is largely patriarchal. It would therefore be
apt that a Tribunal under the Senior Citizens Act, 2007 while remedies of
maintenance etc, as envisaged under S.2(b) of the Senior Citizens Act 2007 cannot
be oblivious and can’t obviate the competing remedies under other special
statutes, such as the PWDV Act 2005. Section 26 & 27 of the PWDV Act
empowers certain reliefs, including relief for a residence order, to be
obtained from any civil court in any legal proceedings. Thus, in case a
composite dispute is alleged, where the suit premises are the bone of
contention between two groups protected by the law, it would be apt for the
Tribunal constituted under the Senior Citizens Act 2007 to appropriately mould
reliefs, after noticing the competing claims of the parties claiming under the
PWDV Act 2005 and Senior Citizens Act 2007. Section 3 of the Senior Citizens Act, 2007
cannot be invoked to over-ride and nullify other protections in law,
particularly that of a woman‟s
right to a “shared household‟
under Section 17 of the PWDV Act 2005. In the event that the “aggrieved woman”
obtains a relief from a Tribunal constituted under the Senior Citizens Act
2007, she shall be duty-bound to inform the Magistrate under the PWDV Act 2005,
as per Sub-section (3) of Section 26 of the PWDV Act 2005. This may aid in
achieving the common intent and object of the Senior Citizens Act 2007 and the
PWDV Act 2005 and speedy relief to its protected groups, who are both
vulnerable members of the society, could be effectively realized.
There
may thus be instances, where, both the enactments have the non obstante clause
then, the proper perspective would be that one has to see the subject and the
dominant purpose for which the special enactment was made. In case the dominant
purpose is covered by that contingencies, then notwithstanding that the Act
might have come at a later point of time, still, the intention can be
ascertained by looking to the objects and reasons.
In
Smt.S.Vanitha (supra), Supreme Court has taken the view that the Tribunal under
the 2007 Act may have the authority to order an eviction if it is necessary and
expedient to ensure maintenance and protection of the senior citizen or parent.
Eviction, in other words, would be an incident of the enforcement of the right
to maintenance and protection. However, this remedy can be granted only after
adverting to the competing claims in the dispute.
PROPOSED
AMENDMENTS In Maintenance & Welfare
of Parents & Senior Citizens Act 2007 (MWPSC)
Even after the enactment
of Maintenance
& Welfare of Parents & Senior Citizens Act 2007 (MWPSC), as more than a
decade and half has elapsed, and standard of living and extent of need also
have undergone change and therefore it is intended by the legislature to suitably
amend the Act again with a view to cater to the need of senior citizen in the
face of growing need.
The proposed Welfare of
Parents and Senior Citizens (Amendment) bill, 2019 has been set in motion. The
bill introduces some major amendments to the Maintenance and Welfare of Parents
and Senior Citizens Act of 2007.The salient feature of the proposed amendment are
as under:
(i)
The definition of the children has been expanded and in its
ambit it is proposed that biological and adopted sons, daughters, step
children, son-in-law and daughter-in-law, grandson, granddaughter and legal
guardian of minor children shall be included.
(ii)
The definition of parent is amplified and would now include
biological and adoptive father and mother, grandparents, father-in-law and
mother-in-law as well.
(iii)
The term “maintenance” has also been comprehensively defined and
additions are made such as provision for food, clothing, housing including safety and security, medical attendance,
healthcare and treatment necessary for the parents so as to live life of
dignity. According to the 2007 law, maintenance only included the provision for
food, clothing, residence and medical attendance and treatment.
(iv)
The bill seeks to enhance the upper limit of maintenance from
Rs 10,000 as the monthly maintenance amount, which was fixed in 2007, the
senior citizens might be made entitled to more than the amount prescribed earlier.
(v)
The tribunal may have to look after these affairs and may
consider the standard of living of the parent or the senior citizen, their
earnings and also the earnings of the children or the person responsible before
coming to conclusion.
(vi)
As per year 2007 Act requires the children to pay the
maintenance amount within 30 days of the order by the tribunal, but in the
proposed amendment bill it seeks to reduce that time limit to 15 days.
(vii)
The children, who, abandon their parents, could be sentenced to
a prison term ranging between three and six months and also a penalty of up to
Rs 10,000 or both is proposed.
CONCLUSION
The
Maintenance
& Welfare of Parents & Senior Citizens Act 2007 (MWPSC) is
a beneficial legislation, which is intended to provide more effective
provisions for the maintenance and welfare of parents and senior citizens and
protect the rights guaranteed to them under the Constitution. The court records
is replete with proceedings after proceedings instituted against the old
parents by the Sons/daughters and purely with inherent greed to grab the flat/properties
in question to which, such claimants/petitioners may not have any legal right. The
tribunal is mandated to appropriately consider the plight of the parents in
exercising the jurisdiction vested in it in passing the impugned order under
the MWPSC.
No welfare society can ignore the need of their senior citizen. No one can obviate
the role of senior citizen in making their family and contributing to the cause
of nation in the long run and when he is in the twilight zone of his life, his
needs cannot be ignored. The rights and duties of Sons/Daughter has to co-exist
and there cannot be any lopsided assumption. The legislation has to balance
this and the courts and tribunals constituted in this regard has to meet the
object. There is no denying that there are Sons/daughters, who are quite
concerned towards their parents, but there aregood number of people who does not
care about the needs of their parents. The law that is enacted is a reflection
of the issue pervading the society and the fact that legislation was to be
enacted as regards the needs and situation of senior citizen is itself a
testimony of their hardship, and one often hears of litigations in family
causes. The balance in society is of utmost significance and no segment of
society can be ignored to say the least and therefor3e effective implementation
of the provision of the act shall be the need of the hour.
Anil K Khaware
Founder &
Senior Associate
Societylawandjustice.com
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