THE PREDICAMENT OF SENIOR CITIZEN: LEGAL RECOURSE

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

  

 

 

Explore