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SENIOR CITIZEN MAINTENANCE ACT, 2007 : AN ANALYSIS

Updated: Jun 16, 2020

Written by: Upasana Borah, N.E.F. Law College, Guwahati, Assam

[1]Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is a crucial law for the people who are in their old age and want to approach a tribunal for maintenance from their children and relatives. It is an Act enacted in the year 2007, initiated by Ministry of Social Justice and Empowerment, Government of India to provide effective provision for maintenance and welfare of parents and senior citizens. In India, the society has given respect to the elder. Traditionally they have been held in high esteem and given preference in respect of familial or societal matters. However, due to globalisation and the western influence they have lost their position of high esteem and are considered more of a burden on

the society. In its endeavour to follow the concept of social welfare as envisaged by Article 21 of the Constitution of India the Parliament has legislated the “MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZEN ACT, 2007”.


The advancement in the medical sciences and the easy availability of medical aid are responsible for the growing number of the aged across the World. According to UNECSO‟s report the population of senior citizen was 590 million in 2005 and would be doubled by 2025. As per the 2001 census 10% of the total population in India was above the age of 60 and is expected to cross across 18% by the end of the year 2025. With an increase in the number of nuclear families, the elderly are receiving end left without proper care, love and

affection.


CONSTITUTIONAL SAFEGUARD OF THE SENIOR CITIZENS AND PARENTS

The chapter, Directive Principles of State Policy‟ particularly article 41 and 46 of the Constitution of India, 1950 makes provisions regarding Right to work, to education and to public assistance [2] in certain cases and promotion of educational and economic interests of

schedule casts, Scheduled Tribes and other weaker sections respectively.


Notably the provisions contained therein under the said chapter is not enforceable by the Court of Law as it has been declared by Article 37 that the constitutional provisions [3](Article 36-51) shall not be enforceable by any court but the principle laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the stateto apply these principles by the means of judicial interpretation which means enforcement.


[4]The provisions of the Directive Principles of State Policy which by Article 37 are

expressly made unenforceable by a court cannot override the provisions found in the PARTIII of the Indian Constitution which notwithstanding other provisions are expressly made enforceable in the form of writs, directions and orders under Article 32 of the Indian Constitution. It is submitted that although we live in a welfare state but there is no elderly specific constitutional provisions that have been made for the welfare of the elderly by the founders of the present constitution.


LEGAL SAFEGUARDS


Under the Hindu Personal Laws, Section 20 of the Hindu Adoption and Maintenance Act, 1956 deals with maintenance of parents. [5]Section 20(3) of the said act defines that the obligation of a person to maintain his or her aged parents or infirm parent or [6]daughter who is unmarried extends so far as the parent or unmarried daughter as the case may be unable to maintain himself or herself out of the own earnings or another property. However it is the duty of the sons and their daughters to take care and provide them maintenance.

Under the Muslim Law the children have an imperative duty to maintain and take care of the aged parents. In the view of legend N. MULLA observed-


Under the ordinary circumstances the children are duty bound to maintain their poor/ailing parents although they are able to earn by themselves. Even under strained circumstances a son is bound to maintain his mother although she may be infirm. A son although poor is bound to support his father who does not earn anything.


GOVERNMENT'S SAFEGUARD

On 13th January,1999 the Government of India has introduced an national policy for the older person in view to accelerate welfare measures and empower the older persons. However, some of the special features of the policy are-


1. Setting up the pension fund for those who were serving as a employee. Eg- Government employee.

2. Establishment of old age/shelter home and day-care centres.

3. Setting up of re-employment beureau.

4. Concession in fair for travel.


Further also the Ministry of Justice and Empowerment has declared for setting up a National Council for older person called AGEWELL Foundation. Various concessional provisions has been incorporated such as discount in Income Tax Act, 1961(SEC 88-B, 88-D & 880-DDB),scheme under the Life Insurance Corporation of India and also travel concessions for aged persons.


SALIENT FEATURES OF THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007


Following are the salient features of the Act-

1. The act imposes legal obligation on the children and heirs to provide maintenance of senior citizens.

2. The act directs the state governments to setup old-age homes.

3. A senior citizen who is unable to maintain herself/himself has the right to seek for maintenance.

4. A senior citizen has the Right to seek maintenance of worth Rs. 10,000/-per month.

5. In case if the senior citizen is unable to claim for his/her maintenance he/she may authorise any registered voluntary association to apply on his/her behalf .


DEMERITS OF THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007


Following are the demerits of the act-

1. The tribunals set up under the Act of 2007are not manned by legally qualified or experienced persons.

2. The tribunal is not presided by a person with judicial qualification

3. The complete ouster of professional lawyer would simply defy logic and reasoning in adjudicating matters.

4. Power to award maintenance is not directly vested with the Presiding Officer but vested in state Government.


CASE LAW

[7]Case name: Dattatrey Shivaji Mane v. Lilabai Shivaji Mane & ours.


In this recent case, the Bombay High Court while highlighting the object of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Senior Citizen Act) held that the Act permits a senior citizen including parent who is unable to maintain himself from his earning or out of property owned by him and if such senior citizen is unable to lead a normal life to apply for such relief i.e. eviction under Section 4 of the Act not only against his children but also the grandchildren. In this case the Respondent mother had filed a complaint against the petitioner (her son) inter alia praying for maintenance and eviction of the petitioner on various grounds. The Tribunal passed an order directing the petitioner and his other family members to evict themselves from the said tenement under Section 4 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Senior Citizen Act). It would be relevant to mention here that the impugned premises exclusively belonged to the Respondent mother. Aggrieved by the aforesaid order, the Petitioner instituted writ petition before the High Court of Bombay contending that since the petitioner has been allegedly maintaining the respondent no.1 for last several years, no order of eviction could be passed by the tribunal under Section 4 of the Senior Citizen Act.


The High Court of Bombay upheld the Tribunal’s order in view of the following observations:

1. That the respondent no.1 has produced sufficient material on record showing that the respondent no.1 has been harassed by the petitioner and his family members for last several years. That Section 4 of the Act permits a senior citizen including parent who is unable to maintain himself from his earning or out of property owned by him and if such senior citizen is unable to lead a normal life to apply for such relief not only against his children but also the grandchildren.

2. While arriving at its decision, the High Court heavily relied on the case of Sunny Paul & Anr. Vs. State Nct of Delhi & Ors., wherein it was held that that the claim for eviction is maintainable under Section 4 of the said Act read with various other provisions of the said Act by a senior citizen against his children and also the grandchildren.

3. That the Senior Citizen said Act is enacted for the benefit and protection of senior citizen from his children or grandchildren.

4. That while interpreting the provisions, object of the Act has to be kept in mind which is to provide simple, inexpensive and speedy remedy to the parents and senior citizens who are in distress, by a summary procedure. Thus, the provisions have to be liberally construed as the primary object is to give social justice to parents and senior citizens.

5. With reference to the facts of the instant case, the High Court opined that the respondent mother could not be restrained from recovering exclusive possession from her son or his other family members for the purpose of generating income from the said premises or to lead a normal life.


In view of the aforesaid observations, the High Court directed the petitioner and other occupants i.e. his wife, son and daughter hand over the vacant possession to Respondent within 2 weeks.


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