Senior Citizens Act 1

The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 Requires Serious Amendments

Partha Sarathi Adhya- *

* Assistant Professor in Tripura Govt. Law College, Agartala. The article is based on his Ph.D. research in the Department of Law , University of Burdwan. Email id: [email protected]

publication in the Kolkata Gazette by the IntroductionGovernment of West Bengal, Department of Women and Child Development and he Union Ministry of Social Justice Social Welfare.and Empowerment, Government of

India, needs to be congratulated for Tpiloting the passage of Maintenance and DiscussionWelfare of Parents and Senior Citizens Act,

Though the paren ts can c la im 2007(Act No. 56 of 2007) as a standalone maintenance under the Section 125 of the legislation to promote the maintenance, Code of Criminal Procedure, 1973, care and protection of older persons Section 20 of the Hindu Adoption and including parents, in the country. The Maintenance Act, 1956 and other Legislation has taken a period of more personal laws, the procedure is both time than eight years after the formulation of a consuming as well as expensive. Hence National Policy on Older Persons in 1999; there is a need to have simple inexpensive the National Policy itself took some forty and speedy provisions to claim nine years as a logical sequence to the maintenance for parents which this new Constitutional directive under Articles 38, Act provides.39 and 41 of Chapter IV of “Directive

Principles of State Policy”; under Article 21 Parents as well as senior citizens can claim as the fundamental right to a dignified life maintenance from 'Maintenance Tribunal' at the old age and under Item No. 9 of the which is presided over by a single officer State List and Item Nos. 20, 23, 24 of who is the Sub-divisional Officer of a Concurrent List of Schedule VII which district without any court fees and that too relates to welfare of labour, including instantly with interim maintenance and conditions of work, provident funds, within ninety days final maintenance.liability for workmen's compensation,

The maintenance can be claimed by:-invalidity and old age pension and maturity benefits. (a) a parent or grand-parent from

one or more of his children which The State Governments are required to includes son, daughter, grandson and notify the Maintenance and Welfare of granddaughter but does not include a Parents and Senior Citizens Act, 2007, minor;hereinafter to be referred as the 'Act' and

frame Rules for implementing the (b) a childless senior citizen from his provisions of the Act. relative who is a legal heir and is not a

minor and is in possession of or would The Act came into force in the State of West inherit his property after his death.Bengal on January 12, 2009 through

40 Opinion

HelpAge India-Research & Development Journal

Vol. 19 No. 1 January 2013

Here 'parent' means father or mother Critical Analysis of the Actwhether biological, adoptive or step father or step mother, as the case may be, The Act suffers from serious lacunas which whether or not the father or the mother came out during the author's field work in is a senior citizen and 'senior citizen' the districts of West Bengal while means any person being a citizen of India, interviewing the Sub-divisional Officers who has attained the age of sixty years or i.e., the Presiding officers of the above. Maintenance Tribunals, Maintenance

Officers, Conciliation Officers, and etc. on Moreover, whoever is responsible for the

the study of the implementation of the Act care or protection of senior citizen, leaves

and the rest on a close examination of the such senior citizen in any place with the

Act. Some of them are as follows:intention of wholly abandoning such senior citizen, shall be punishable with 1. According to clause(b) of Section 2 of imprisonment for a term which may extend the Act, 'Maintenance' includes provision to three months or fine which may extent to for food, clothing, residence and medical five thousand rupees or with both. attendance and treatment; and clause (k)

of Section 2 of the Act says that 'welfare' Further, where any senior citizen who, after

means provisions for food, health care, the enforcement of this Act, has

recreation centres and other amenities transferred by way of gift or otherwise,

necessary for the senior citizens. Parents his property, subject to the condition that

are not specifically mentioned here, the transferee shall provide the basic

whereas the Act mentions maintenance amenities and basic physical needs to the

and welfare of both, parents and senior transferor and such transferee refuses or

citizens. fails to provide such amenities and physical needs; the said transfer of 2. As per clause (4) of Section 4 of the property shall be deemed to have been Act, “any person being a relative of a made by fraud or coercion or under undue senior citizen and having sufficient means influence and shall at the option of the shall maintain such senior citizen provided transferor be declared void by the he is in possession of the property of such Maintenance Tribunal. senior citizen or he would inherit the

property of such senior citizen:” Imposing The Ac t a l so prov ides for the

liability on a person who happens to be a establishment of old age homes for the

relative of the senior citizen on the ground indigent senior citizens in each district with

that he will inherit the property of the senior seats extending to one hundred and fifty at

citizen is illogical and unreasonable, the beginning in each home for which the

because the senior citizen may sell his State Government will formulate rules for

property to any third party before his death the management of the homes.

and there is no guarantee that the relative The State Governments have a duty to will definitely inherit the property of the provide to the senior citizens in senior citizen.Government hospitals separate beds,

3. Clause(3) of Section 5 of the Act has queues, facility for treatment of chronic,

provision for holding an inquiry for terminal and degenerative diseases; and

maintenance amount of senior citizens research activities for geriatric ailments

including parents, but, where is the order duly headed by a medical officer.

for determining the extent of the ability of Thus this was a much awaited legislation the children or the relative to pay for the true welfare of parents and senior maintenance? It is a serious violation of the citizens in the real sense which at last has principle of Natural Justice.seen the light of the day.

41Opinion



4. As per proviso to clause (8) of Section thousand; then, it will not be possible 5 of the Act, a warrant cannot be issued to pass an order for the same as the for recovery of any amount due under this pecuniary limit of the order is limited section unless an application is made to to rupees ten thousand only.the Tribunal to levy such amount within a

(ii) Maintenance as defined in the Act period of three months from the date on

includes food, clothing, residence, which it became due. Under the Limitation

medical attendance and treatment. Act, 1963, normally time limit for filing a

Within rupees ten thousand is it money suit is three years from the date it

possible to cover all the items under became due. Therefore it is irrational that

maintenance in this present day of such a short period of three months as

rising prices of bare necessities of limitation period is given to a parent or

goods for a normal sustenance of life? senior citizen to claim their dues from the

Moreover in old age a person requires children or relative following the order of

more medical treatment than the Tr ibunal; fa i l ing which the

an young adult; therefore is it possible enforcement of the right to maintenance

that within rupees ten thousand as minimum sustenance will cease. In

adequately covers all expenses?general, due to locomotor disability and

(iii) So, far as maintenance under Section mental inactiveness things go slow for 125(1) (d) of Cr.P.C. and Section 20 senior citizens so more time should be of the Hindu Adoption and given to file an application for Maintenance Act, 1956 are enforcement of the order of the Tribunal.concerned, maintenance of parents is

5. Clause (1) of Section 9 of the Act usually determined on the basis of the

states that the “Maintenance Tribunal may needs of the parents to maintain

make a monthly allowance at such themselves and the capacity of the

monthly rate for the maintenance of such children to pay such maintenance.

senior citizen” regarding order for This flows from judicial interpretations

maintenance but it fails to mention 'parent' of several decided cases. The judiciary

or the phrase 'senior citizen including has also gone further to maintain the

parent'. The 'monthly allowance' is not standard of parents they were used to

defined in the Act where it calls for literal live in if the capacity of the children

interpretation of the words so as to say permits such pecuniary benefits too.

relief to the extent of only pecuniary relief But, in this Act, there is no scope for

for maintenance. such interpretations due to imposition

6. Clause (2) of Section 9 of the Act of ceiling.states that “The maximum maintenance

(iv) Moreover, apart from monthly allowance which may be ordered by such

allowance order there should be Tribunal shall be such as may be

provisions for passing orders of prescribed by the State Government which

protection, residence, compensation shall not exceed ten thousand rupees per

and recreation for the parents and month”. This calls for severe criticism as

senior citizens, more akin to the the amount of ten thousand rupees is

Protection of Women from Domestic without sound justification so as it appears

Violence Act, 2005.arbitrary, unreasonable and unfair for the

(v) The Act provides for monthly following reasons:allowance for maintenance. So,

(i) Clause (3) of Section 5 states about where is the scope for 'welfare' which

holding an inquiry for determining the is separately defined in the Act and

amount of maintenance. If after more so the title of the Act says

inquiry it is found that the amount of “Maintenance and Welfare”.

maintenance exceeds rupees ten

42 Opinion



7. Clause (2) of Section 10 of the Act states that “Where it appears to the Tribunal that, in consequence of any decision of competent Civil Court, any order made under section 9 should be cancelled or varied, it shall cancel the order or, as the case may be, vary the same accordingly”. Now, the most prevalent measure for claiming main-tenance by parents is through clause (d) of sub-section (1) of Section 125 of the Code of Criminal Procedure, 1973 in the Court of First Class Judicial Magistrate, which is a criminal court. So, according to clause (2) of Section 10 of the Act, the decision of a criminal court is not barred and therefore the decision of a criminal court under section 125 Cr.P.C. will run parallel?

given to the children or the relative of the senior citizen or the parent against whom the order of maintenance is passed. This is a serious violation of the principle of Natural Justice and Article 14 of the Constitution of India. The children or relative has an equal right to prefer an appeal before the higher forum being aggrieved by the order of the Tribunal.

10. Again, clause (5) of Section 16 of the Act states that “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:” There can never be any finality to any order passed by any Tribunal because the Hon'ble High Court within whose jurisdiction the Tribunal is

8. The statement of objects and situated, has superintending power over reasons says that “though the parents can the Tribunal under Article 227 of the claim maintenance under the Code of Constitution of India. Criminal Procedure, 1973, the procedure

11. Surprisingly, clause (17) of Section is both time consuming as well as

17 of the Act states about “Right to legal expensive. Hence, there is a need to have

representation.—Not withstanding simple, inexpensive and speedy provisions

anything contained in any law, no party to to claim maintenance for parents”.

a proceeding before a Tribunal or Whereas according to Clause (2) of

Appellate Tribunal shall be represented by Section 11 of the Act says that the

a legal pract i t ioner.” Here the maintenance order passed under this Act

nomenclature “Right” is not in consonance ….shall be executed in the manner

with the meaning of the section and it prescribed for the execution of such order

would be better if it was used as “Bar of by that Code (i.e., under Chapter IX of

legal representation”. Now it can be Code of Criminal Procedure, 1973). It is

argued that legal practioners can best hard to reconcile the statement of object

represent a case to its prime exposition and reason with the said provision for

and therefore barring legal practitioner enforcement of order of maintenance. The

from representing a parent or senior main operative part of an order is its

citizen in the Tribunal does not hold good. execution and this Act was promulgated

Even in the consumer forums under the to overcome the delays under Section 125

Consumer Protection Act, 1986, legal (1)(d). Now, if the same process for

practitioners can represent the consumers execution of order under Section 125 is

in the forum.followed then, what is the need of this new

12. Section 18 of the Act has provision for legislation?Maintenance Officer for a District, who

9. Furthermore, clause (1) of Section 16 shall be not below the rank of a District

of the Act states that “Any senior citizen or a Social Welfare Officer and he shall be

parent, as the case may be, aggrieved by designated as such by the State

an order of a Tribunal may, within sixty Government. The Maintenance Officer

days from the date of the order, prefer an shall represent a parent if s/he so desires

appeal to the Appellate Tribunal:” Here in the Tribunal. As this Officer has to deal

only the right to appeal has been given to with the complaints of the entire district it

the senior citizen or a parent but it is not may not be practical for him/her to do

43Opinion



justice to this role allotted to him/her. and senior citizens in a feasible way:

13. Section 19 of the Act speaks about 1. The Act defines the word 'children' in establishment of old-age homes by the clause (a) of Section 2 so as to include son State Government for the indigent senior and daughter, grandson and grand-citizens. Here it is not obligatory to daughter but does not include a minor. establish old age homes as the word 'may' Now in common parlance children denote and not 'shall' is used for establishment of minors; but, the Act by defining it clarifies old age homes. Therefore, it is the such connotation of children. It would be discretion of the State Government to better if the Act used the term 'sons and establish such homes. daughter' instead and made it into an

inclusive definition.14. The Act gives the definition of “children” and “relative” against whom 2. In the definition section, Clause (k) of complaint may be made for maintenance Section 2, the word 'welfare' should also by his parent or childless senior citizen include “necessary for the parents and respectively. In view of increasing longevity, senior citizens”.if a complaint is made against a senior

3. It should be certain that the relative citizen in his/her capacity as 'children or

upon whom liability to maintain such relative', then how the welfare of such

childless senior citizen is imposed, should senior citizen under the Act would be

certainly inherit the property as some Will ensured?

in favour of him/her has been executed or 15. In the Act there are chapters for transfer of property has taken place which maintenance of parents and senior would take effect after the death of the citizens, establishment of old-age homes, senior citizen. Therefore, the proper provisions for medical care of senior phrase in clause (4) of Section 4 of the Act citizen, protection of life and property of would be as to be added at the last “….or senior citizen, offences and procedure for he would inherit the property of such senior trial and miscellaneous; but surprisingly citizen as some bequeath of property of there is not a single chapter on provisions such senior citizen in favour of him has for recreation and other amenities for taken place.”senior citizen which is the true spirit of

4. Clause (3) of Section 5 of the Act welfare for them.

should also specifically contain orders for 16. Section 29 of the Act speaks of holding inquiry for determining the ability removing difficulties if any which may arise of the children or relative to pay in giving effect to the provisions of this Act. maintenance to senior citizen including The difficulties may be removed by the parent.State Government by an order published in

5. The time limit for filing application the official gazette, by making such

under proviso to clause (8) of Section 5 provisions not inconsistent with the

before the Tribunal for levying the amount provisions of this Act. But, the proviso to

of maintenance, when it falls due to the this section puts a limitation period of two

senior citizen, including parent due to the years from the date of enforcement of this

failure of children or relative to give such Act in the particular State within which the

maintenance, should be increased to a difficulties may be removed; which is

minimum of one year, so to give sufficient highly unreasonable and unjustifiable.

time to such senior citizen including parent to file such application.Suggestions6. The order provision of this Act in

The author gives the following suggestions Section 9 needs serious amendments at to amend the Act accordingly so as to the earliest which includes:make it workable for the welfare parents

44 Opinion



(i) Firstly, the words 'monthly service voluntarily to the parent or senior allowance at such monthly rate' citizen who requires them.should be immediately modified

12. There should be more maintenance so as to substitute 'order for

officers at the block level, sub-division level maintenance and welfare which

and the district level to enable senior includes monthly allowance,

citizens for the proper implementation of clothing, residence, medical

the Act.treatment, recreation and other

obligatoryamenities and such other order 13. The Act should make it on old age or orders which the Tribunal the State Governments to establish

homesmay deem fit and proper'. in each district so as to help the indigent aged persons who is in distress as

(ii) Secondly, the ceiling limit of the number of indigent elders are on the

rupees ten thousand should not rise.

be there at all, thereby leaving it 14. Saving clauses should be introduced to the judicious discretion of the in the Act to protect the senior citizens who Tribunal as per the requirements falls under the definition of children.of the senior citizen or parent and

the ability of the children or 15. A completely distinct chapter should

relative to pay such.be introduced in the Act to include facilities for recreational and other amenities of 7. The Tribunal should also take into

Criminal Court the senior citizens or parents.account the decision of a or quasi-judicial authority under clause

16. The concept of welfare also (2) of Section 10 so to cancel or vary the

encompasses forming self-help group of order passed under section 9 of the Act.

senior citizens to do some productive work as per their strength of mind and body 8. The Act at the most earliest be

own mechanism of because it is seen that the age of sixty does amended to include its execution of the order of the not cease the mobility of senior citizen. Maintenance Tribunal, They remain active both mentally and as because it is a

physically upto the age of seventy in an special Act, like the execution mechanism average. Therefore if these human enshrined in Consumer Protection Act, resources are utilized, then they can add to Domestic Violence Act, etc.; otherwise the productivity of the country and thus add following the procedure laid down in CrPC value to their lives. The Act should include for execution of order under Section 125 such kind of provision of forming self-help would make the 'statement of Object and group of senior citizens so as to enliven reasons' of the Act infructuous. them in some productive work.

9. Right to appeal under Clause (1) of 17. Section 21 of the Act speaks about Section 16 from the order of the Tribunal to publicity, awareness campaigns and co-the appellate should also be given to the ordination between the services of different children or relative as the case maybe. departments of the Government relating to

10. The word 'final' to the order of the welfare of senior citizens; but it should also

Appellate Tribunal should be deleted.inc lude d i rec t ions to the S ta te

11. Legal representatives should not be Governments and Central Governments to barred at any cost to represent a parent or induct in the syllabus of school senior citizen in the Tribunal as they would intermediate classes the moral duties of best serve the interest of them in the students respecting their elders and representing their argument before the caring for them. If this is done at the school presiding officer of the Tribunal. At best level then it will help to implant the seed of conditions could be imposed on the legal respect for the elders from the initial level in practitioners that they would render their the future generation to come.

45Opinion



18. The limitation period of removing also grateful to different Sub-divisional difficulties in implementation of the Act by Officers, Maintenance Officers and suitably making provisions by the State Conciliation Officers of different districts Government, should be increased taking who patiently answered my queries. into account the lack of infrastructure and HelpAge India, Kolkata office helped me the 'effective time' in implementation of this to analyze the Act. I also express my warm Act in a particular State. gratitude to Sh. Bhuddeb Bhattacharya,

Senior Advocate, Calcutta High Court and The Union Ministry of Social Justice and

Sh.Indranil Bhattacharya, Additional Empowerment, Government of India

District Judge, Paschim Midnapore, West should take into consideration the above

Bengal, for analytical inputs on the Act. I mentioned suggestions and propose for

am also thankful to my colleague, Sh. an amendment of such a benevolent

Caesar Roy for suggestions to improve the legislation at the earliest to make the

article.legislation a model legislation for the world countries to follow.

Acknowledgements Disclaimer: I express my sincere gratitude to my This is the opinion of the author and supervisor Dr. Sanjeev Kumar Tiwari, HelpAge India may not subscribe to it. This Associate Professor, Head, Dept. of Law, is not intended to be a substitute for The University of Burdwan, West Bengal, professional legal advice. for the guidance to write this article. I am

46 Opinion



Senior Citizens Act 1

Documents

Transcript of Senior Citizens Act 1