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REVIEW AND MAINTENANCE AND WELFARE

OF PARENTS AND SENIOR CITIZEN ACT, 2007 IN
DHARAMSHALA

BY

VANSH CHADHA

UNDER SUPERVISION OF:

COSMO JURIS
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ABSTRACT
The worry for singular interest in joint family framework has offered approach to family
units. More youthful age is moving out of customary family set up looking for better work
openings and individual development. This outcomes in the matured individuals being left
alone to fight for them. Improved clinical consideration has brought about life span. There
have been various occasions of deserting and abuse to elderly folks turning into a reason for
concern. The current legitimate set up accommodates support of the old people by their more
youthful ones in the families. In this paper the creator has analysed the support issues of the
old people in the light of current social and lawful set up. The portion of senior residents
among the populace is required to increment in many nations in the coming years. Different
nations have ordered laws to advance government assistance of senior residents. We take a
gander at the situation with the 'Upkeep and Welfare of Parents and Senior Citizens Act' in
India.

Key Words: 1 The Hindu Adoption and Maintenance Act, 1956, Maintenance under the
Senior Citizens Act, 2007
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INTRODUCTION

In India as in other societies, ageing population and the kind of legislative and social
interventions required to address concerns peculiar to senior citizens pose a stiff challenge for
policymakers. In India, it is particularly difficult, given the sheer bulk of numbers and vast
socio-economic divide.

According to a report published in February 2016 by the Ministry of Statistics and

Programme Implementation, the number of senior citizens in the country – those above the
age of 60 – has gone up from 7.6 crore in 2001 to 10.3 crore in 2011, a massive 35.5% jump.
In our cities, as the social fabric itself undergoes a sea change with greater migration and
more nuclear families, the problems and insecurities faced by senior citizens are especially
acute. Reports of physical and financial abuse, neglect and even abandonment make
headlines in news media occasionally.

Under the prevailing demographic and social scenario, it becomes particularly relevant to
highlight the kind of legislative support that may be available to the elderly and the rights that
they are entitled to claim under such law.

In 2007, India enacted The Maintenance and Welfare of Parents and Senior Citizens Act,
with a view to ensure need-based maintenance for parents and senior citizens and their
welfare. On Tuesday, January 31, 2017, Silver Talkies, an online publication for Senior
Citizens in the city of Bangalore, held a workshop to educate seniors in the city about their
rights to claim maintenance for their welfare in old age under the Act. Shiv Kumar, a
seasoned lawyer with more than 40 years of experience in the Karnataka High Court, was the
guest speaker.

Based on the information shared by the lawyer, here are some of the salient provisions of the
Act that senior citizens in the country must be made aware of. (MWPSC Act) which was
acquired to guarantee need based upkeep for guardians and senior residents and their
government assistance. The Act characterizes upkeep as including arrangement for food,
apparel, home, clinical participation, and treatment. Dissimilar to guaranteeing for upkeep
under Section 125 of CrPC wherein the senior resident should move toward the Court bearing
costs to record and contest suit and invest a ton of energy, under MWPSC Act, the interaction
was simplified. Guardians and senior residents may guarantee for support just under one of
these resolutions.
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HIMACHAL PRADESH MAINTENANCE OF PARENTS AND

DEPENDENTS ACT, 2001
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A SENIOR CITIZEN’S GUIDE TO CLAIMING MAINTENANCE

The Maintenance and Welfare of Parents and Senior Citizens Act,

2007(DHARAMSHALA, HIMACHAL PRADESH)

This Act is superior to every other act and has overriding effect on every other law for senior
citizens.

Whom does the Act apply to?

Senior Citizens – over 60 years of age

Parents – Mother/Father/Stepfather/Stepmother of any age

Who are Children and Relatives?

Children could refer to any adult son/daughter and also grandson/daughter

Relatives – If the senior citizen has no children, his legal heir, that is one who is either in
possession of the property of the senior citizen or would inherit it.
It may be noted here that children have a right to implead other children. This is intended to
prevent senior citizens from accusing and placing the burden on their children selectively,
whether the reasons are emotional, cultural, etc. All children are liable to provide
Maintenance for their parents.

What is Property?

Movable or immovable property

Tangible or intangible property
Ancestral property as well as self-acquired
Rights or Interests in such property
What this means is that ancestral property, on which multiple claims may exist, can no longer
be used as a loophole or an excuse to avoid provision of maintenance for seniors entitled to it.

What is Maintenance?

This includes:
Food
Clothing
Residence
Medical Attendance – the right to have nurses or helpers at home
Medical Treatment.
Maintenance is the sum of money that a senior citizen gets to ensure his welfare. The
maximum amount which may be ordered for maintenance of a senior citizen shall be
prescribed by the State Government and shall not exceed Rs. 10,000/- per month.

What is Welfare?

Welfare includes:
Provision for food
Healthcare
Recreation centres and other amenities necessary for the senior citizens
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What are the conditions for a Senior Citizen to claim maintenance?

A senior citizen can only claim maintenance if she/he is unable to maintain himself/herself
from property owned or from own earning.

Such claims can be made upon:

One or more children or grandchildren, who are not minors.
In case of a childless senior citizen, a relative as defined above
Apart from vesting ‘rights’ in elders, the law casts an ‘obligation’ on the child or relative,
extending to the ‘needs’ of the senior citizens, as required for them to lead a normal life.

Who can apply for maintenance?

The senior citizen himself.

Any other person or registered voluntary organisation authorised by him/her.
The Tribunal itself can initiate an enquiry.

Where does one file this application?

The application for maintenance may either be filed in the district where the senior citizen
stays or last stayed, or in the district where the child or relative stays.

What is the procedure involved?

Once the application for maintenance under Section 4 has been submitted,
The Tribunal will issue a notice to the children
They will have the opportunity of being heard
The application must be disposed of within 90 days, with an extension of 30 days under
extreme circumstances that need to be recorded in writing. This, however, is rare as the
Assistant Commissioner at the head of the Tribunal has multiple responsibilities. He has to
split his time between these different duties, in addition to dealing with pressure from
superiors, and this inevitably causes delays.
The Tribunal shall determine the amount to be paid, subject to a maximum of Rs.10,000
Amount to be paid from date of order.

When should maintenance be paid?

Children are liable to start paying legal costs as well as Maintenance from the day of the
order, or if so ordered by the Tribunal, from the day that the application was filed.
Upon the death of one child, other children continue to be liable. If one of the children die,
their portion of the maintenance must be taken care of by the remaining children.
Failure to comply with the order of the Tribunal is punishable with levy of fines, or even
imprisonment for up to a month.
Having said so, however, lawyer Shiv Kumar raised a question for the audience. He asked,
“How many of you would want your children to go to jail, for Rs. 10,000?” Kumar says that
he receives multiple calls on the Elders Helpline from senior citizens who say, “We will beg,
we will borrow, we will starve, but we will not have a situation where my children will go to
jail.”
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Legal Position in r/o Old-age

Persons Indian legal mechanism ensures welfare of senior citizens through constitutional
measures as well as statutory provisions. Art. 412 of the Constitution of India says that the
State will, within limits of its economic capacity and development, make effective provisions
for securing the right to public assistance in cases of old age. Further, the Constitution
provides for ‘old-age pension’ as subject matter in concurrent list in Schedule VII which
means that both, the centre and the state, can legislate upon ‘old-age pension’. Statutory
provisions, like, Sec. 125 (1)(d)3 of the Criminal Procedure Code says that competent
magistrate can pass an order of maintenance of parent/s by their child.
A specialized legislation, titled as the Maintenance & Welfare of Parents & Senior Citizen
Act, 2007, was enacted by the Parliament in the yr. 2007. Various relevant definitions, like
‘maintenance’4 , ‘senior citizen’5 , ‘welfare’6 , etc. are laid down in the said Act. It further
provides for legal mechanism through which a parent can seek remedy in case his/her child
fails in maintaining him/her. The said Act further provides for establishment of old-age
homes7 by the state government. Section 20 of the Act provides for medical care of senior
citizen; Sections 21 to 23 of the Act provides for protection of life and property of senior
citizens. Sec. 24 of the Act provides for punishment and/or fine for/against that person who is
made duty bound under the Act to take care of the senior citizen and he has failed in
performing his duty. Rules laid down under the said Act provides for ‘scheme for
management of old age homes established u/s 19 the Act’. Senior citizen, who is unable to
maintain himself/herself from his own earning or out of the property, owned by him, can
make an application u/s 58 of the Act which shall be entertained by the Tribunal9 setup u/s
710 of the same Act.
During pendency of the application, monthly allowance11 will be given to senior citizen by
children/relatives for the interim relief or as may be directed by the Tribunal for the time
being. On the refusal of paying allowance, the Tribunal can direct the state Government to
provide the applicant with the monthly allowance of not more the ten thousand per month12 .
As empowered under the said Act, the government of National Capital Territory of
Dharamshala, Himachal Pradesh has enacted & notified Dharamshala, Himachal Pradesh
Maintenance & Welfare of Parents and Senior Citizens Rules, as amended in the yr. 2010.
Rule 20 says that the old age homes will be run in accordance with the operational norms laid
down in the Schedule attached with the rules; Schedule of the rules provides norms of
physical facilities and operational standards for an old age home. The said rules also provide
procedural rules for maintenance tribunal, appellate tribunal, and conciliation officers who
are established / appointed for the purpose of functioning of grievance redressal mechanism
as provided in the said Act. Since, area of this project work is to make a study on facilities
provided at various old-age homes run by the state agencies, it is important to refer few
relevant legal provisions that make state duty bound to take care of needs of senior citizens.
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MAINTENANCE UNDER CRIMINAL PROCEDURE CODE

Section 12520 of the Criminal Procedure Code empowers the Magistrate (First Class) to pass
an order of maintenance to be paid by son/daughter to his/her parent in case the parent is not
in position to maintain him/her on his/her own. It’s a secular law which is applicable on every
citizen irrespective of his/her religion. In Pandurang Bhaurao Dabhade v. Baburao Dabhade
& Anr. 21, by giving plain meaning to the text of Sec.125 of Cr.P.C., the High Court of
Bombay held that, if the parent does not have means to maintain themselves then they are
entitled for maintenance. In fact, even if the parent had failed in fulfilling his/her obligations
(upbringing) towards the child, still the parent is entitled for maintenance. In the given case,
the father had failed to fulfill his parental obligation, and he had filed suit seeking
maintenance from his son. In M. Areefa Beevi v. Dr. K.M. Sahib22 , the kerala high court has
given wider interpretation to Sec. 125 of Cr.P.C. by holding that married daughters also come
under the purview of Sec. 125; hence, she is made liable to maintain her parent even post
marriage. The Court said: “It is true that Section 125 has not specifically provided that a
daughter is also liable to maintain her parents. The expressions used in Section 125 are ‘any
person’, ‘his father or mother’, and ‘such person’. Words and expressions used herein are not
defined but defined in the Penal Code have the meanings respectively assigned to them in
that code. So, we have to refer to the I.P.C. Section 8 of the I.P.C. which reads: The pronoun
‘he’ and its derivatives are used of any person, whether male or female.
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OBSERVATIONS AND SUGGESTIONS

The Himachal Pradesh High Court on Tuesday issued notice to Centre and State government
on a PIL seeking immediate notification of Central law for the protection of senior citizens as
the State law has limited applications in view of the ongoing national lockdown due to spread
of COVID-19. A bench of Justice Sureshwar Thakur and Justice Chander Bhusan Barowalia
sought response from both. There are various old age homes in Himachal Pradesh like Jampa
Ling old age home, The Suket Senior Citizen Home, Basantpur Old Age Home etc.
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The old age homes cost quite a penny; prices range from Rs 23 lakh for a one-bedroom unit
to Rs 58 lakh for a three-bedroom unit.

Suggestions
i. First of all maximum monetary relief of Rs. 10,000/- is provided under this Act which is
not adequate to the person who is residing in city or who is suffering from any illness where
medical expense is huge. Not only that sometimes it appeases that against whom the order
is made the person concerned is rich enough to bear more burden. So, this is a great
loophole of this Act. It must be amended.

ii. Secondly, total exclusion of legal professionals and total exclusion of the jurisdiction of
civil court is not at all beneficiaries.
The participation of legal professionals must be optional. The old persons who are indigent,
can avail the benefits of legal aid.
The Act mentions that Sub-divisional officer is to be presided as the officer of Tribunal, He is
already overburdened by his administrative works. Some legal technicalities may arise or
some situation may also arise where the presiding officer has to declare any right, title or
interest in favour of the aggrieved party, which is beyond the power of an administrative
officer.
In those situations the court can handle it more maturity and excellencies. Therefore, total
exclusion of court’s jurisdiction is not justified.

iii. The Act allows the state Govt. to establish old age homes, it does not make it mandatory.

iv. The Act does not clear the view regarding the taking of responsibility of senior citizens
who do not have children or any relative. In that situation whether state will take the burden or not
and what will be the extent. If the son is indigent, how can he maintain his parents or grandparents?
How would the Tribunal adjudicate such disputes? So all those provisions should be inserted by new
amendments.

v. A situation may arise where parents who have no son but only daughter and they reside
with their daughter and son-in-law. Then can Son-in-law be included in the definition
of children u/s 2(a) when the daughter is nonearning. The purview of the definition should
be wider.
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Another point is worthy to mention here that when the son is rich NRI and his parents are
living in India what would be international as well as municipal law by which the rich NRI
would have no other option to maintain his parents properly. Therefore, these grey areas
should be clarified by effective and proper implementations.

vi. According to the provisions of this Act, liability can be imposed on a person who happens
to
be a relative of that senior citizen on the stipulation that in near future that person will inherit
the property of that senior citizen. It is totally unreasonable because there is no guarantee
that the said relative will get the property. The senior citizen can sell the property to any other
person or he can make any will in favour of any other person before his death. Therefore,
change must be there regarding this point.

vii. State Govt. should make provisions for selling up the counseling centers, help lines and
organize seminars, programmes to increase confidence among the old persons and to make
them aware regarding their rights and the protection available in the statutory provisions.

viii. The legislations, which are beneficiary to the rights of senior citizen and old parents,
need more publicity. NGOS, various organizations and Corporate sectors through their CSR
(Corporate Social Responsibility) should play active role to encourage the public
participation in this regard.
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ix. The senior Citizen Act is passed by the Central Govt. but still it has not been implemented
by many states and the states which implement this enactment, they do not pay any heed to
redress the present problem with serious efforts.

x. Whatever may be the laws without effective implementing machinery, the very object
cannot be achieved. Senior citizen cells should be established by the state govt. Police
patrolling should be intensified in areas to decrease the crimes against elderly persons.

REFRENCES

https://timesofindia.indiatimes.com/home/sunday-times/why-these-seniors- prefer-
old-age-homes/articleshow/69028391.cms

https://socialwelfare.Dharamshalagovt.nic.in/content/old-age-homes

https://www.ndmc.gov.in/public_notice/Aashirvaad%20Admission%20Pro cess.pdf