The Parliament of India had passed this valuable law the Act no. 56 of 2007 in December 2017 and it finally came into existence on 29th of December, 2007 and as the name suggests the act provides for welfare and Maintenance of Parents and Senior Citizens.
The act contains 32 Sections, divided into Seven Chapters that provides several basic yet most valuable rights to the elderly persons in India.
It includes right to get maintenance, Establishment of Old age homes, Medical Care and Protection Of Life And Property Of Senior Citizen and also there are provisions to punish those who abandon a senior citizen wholly.
Before we proceed further Let us have a look at the Statement of Objects and Reasons of this Act. This can help us in understanding the legislature's intent behind the act.
Statement of Objects and Reasons.-Traditional norms and values of the Indian society laid stress on providing care for the elderly. However, due to withering of the joint family system, a large number of elderly are not being looked after by their family. Consequently, many older persons, particularly widowed women are now forced to spend their twilight years all alone and are exposed to emotional neglect and to lack of physical and financial support. This clearly reveals that ageing has become a major social challenge and there is a need to give more attention to the care and protection for the older persons. Though the parents can claim maintenance under the Code of Criminal Procedure, 1973, the procedure is both time-consuming as well as expensive. Hence, there is a need to have simple, inexpensive and speedy provisions to claim maintenance for parents.
2. The Bill proposes to cast an obligation on the persons who inherit the property of their aged relatives to maintain such aged relatives and also proposes to make provisions for setting-up oldage homes for providing maintenance to the indigent older persons.
The Bill further proposes to provide better medical facilities to the senior citizens and provisions for protection of their life and property.
3. The Bill, therefore, proposes to provide for:-
(a) appropriate mechanism to be set up to provide need-based maintenance to the parents and senior citizens;
(b) providing better medical facilities to senior citizens;
(c) for institutionalisation of a suitable mechanism for protection of life and property of older persons;
(d) setting up of oldage homes in every district.
4. The Bill seeks to achieve the above objectives.
The Objects and Reasons of the Act makes it clear, it talks of traditional norms and values of Indian Society. India - The Land of Upanishads that preach "Matru Pitru Devo Bhava" has now become more and more materialistic and we have now become more self concentrated. The act aims to provide physical, economical as well as emotional support to all the senior citizens who are in distress.
The act is divided in seven chapters. They are as under:
Chapter 1 - Preliminary - This chapter contains first three sections of the act that provides basic information about the act and also includes definitions. One big point worth considering is that, this act applies also to citizens of India outside India.
Definitions - Definitions clause in every act provides information about all the important terms used in the act.
The legislature in its wisdom has made the scope of the act more wide as the Maintenance includes food, clothing, residence and medical attendance and treatment.
The term parent indicates that, it doesn't matter if the father or the mother is a senior citizen or not he can get relief under this act provided that his/her son or daughter is not a Minor in accordance with the provisions of the Majority Act, 1875 (9 of 1875),
The definition of the property is also made wide as it includes property of any kind, whether movable or immovable, ancestral or self acquired, tangible or intangible and includes rights or interests in such property.
Another big point is, this act also provides relief to the childless senior citizens, as the act includes the term relative who is such a person that 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.
Chapter 2 - Maintenance Of Parents And Senior Citizens - This chapter deals with providing maintenance to the senior citizens or parents and contains section 4 to 18 that provides all the substantive as well as procedural provisions related to the maintenance.
Who can get maintenance under the act? - Any Senior Citizen or Parent (even if he/she is not a Senior Citizen) whether mother or father, who is unable to maintain himself from his own earning or out of the property owned by him is entitled to get maintenance under the act.
Who is obliged to pay maintenance under the act? - Children not being a minor and in case of childless senior citizen, relatives defined under the act are obliged to pay maintenance to the senior citizen. Provided that, A senior citizen or a parent cannot claim maintenance from his minor son/daughter.
A childless senior citizen can seek maintenance from his relative only if the said relative is in possession of the senior citizen's property or if the said relative would inherit the property of the senior citizen.
A person can also claim maintenance from his/her grand children if they are not minors.
Procedure to be followed to get the Maintenance -
Who can Apply? - Any Senior Citizen or Parent or if he is incapable, any person or organization duly authorized by him or the Tribunal may take cognizance suo motu. The term organization includes any voluntary association registered under the Societies Registration Act, 1860 and it also indicates that several NGOs can also make such application for maintenance on behalf of the senior citizens if the said senior citizen authorize the NGO to do the same.
Interim maintenance can also be provided to the senior citizen during the pendency of the proceedings similarly as in the Protection of women from Domestic Violence Act, 2005.
Procedure -
1. Application for maintenance is given to the tribunal.
2. Notice of the application is given to the children or relative.
3. Opportunity of being heard is given to the parties.
4. The tribunal hold an inquiry for determining the amount of maintenance.
The legislature has made it mandatory to decide the said application for maintenance within a period of 90 days i.e. 3 months from the date of the service of notice of the application to such person.
Provided that the Tribunal may extend the said period, once for a maximum period of thirty days in exceptional circumstances for reasons to be recorded in writing.
Execution of the order - If the children or relative fails to pay the maintenance without sufficient cause the tribunal may issue a warrant for levying the amount due in the manner provided for levying fines. The tribunal can also go for imprisonment for a term which may extend to one month or until payment if sooner made whichever is earlier.
Such execution can be done by the tribunal only on the application for execution of the senior citizen or parent within a period of 3 months from the date on which it became due.
Maximum Allowance that can be granted by Tribunal - Section 9 (2) of the act makes it clear that the tribunal constituted under this act cannot award maintenance of more than Rs. 10000/- per month.
Interest on allowance - under section 14 of the Maintenance and welfare of parents and senior citizen act, 2007, The tribunal can also grant simple interest not less than 5% and not more than 18% in addition to the maintenance that is to be paid to the senior citizen or the parent.
Alteration in Allowance - The Tribunal can also alter the monthly allowance i.e. the maintenance, on proof of misrepresentation or mistake of fact or a change in the circumstances.
The tribunal can also cancel or vary any order made under section 9 in consequence of any decision of a competent Civil Court.
However, the Jurisdiction of Civil Courts are barred in respect of any matter to which any provision of this Act applies.
Section 12 makes it clear that a senior citizen or parent can claim maintenance under Chapter IX of the Code of Criminal Procedure, 1973 or the Maintenance and welfare of parents and senior citizen Act, 2007 and not under both.
Provisions regarding Appeal -
Who can file Appeal - Section 16 of the Act makes it clear that the Senior Citizen or the Parent can file the appeal within the period of 60 days before the appellate tribunal. However, there is a controversy regarding this if the children i.e. the respondent can file appeal before the appellate tribunal or not? or only the senior citizens can prefer an appeal?
Limitation or Time limit - 60 days.
Condonation of Delay - Any delay can be condoned, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.
Procedure to be followed in Appeal
1. Appeal is filed before the Appellate tribunal.
2. Notice of the appeal is 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. Opportunity of being heard is given to the parties or their duly authorized counsel.
from section 16 of the act, It is clear that during the appeal, Legal representation is allowed.
5. The Appellate Tribunal shall make an endeavour to pronounce its order in writing within one month of the receipt of an appeal.
6. A copy of every order made under sub-section (5) shall be sent to both the parties free of cost.
Maintenance Officer - Section 18 of the act allows a senior citizen to be represented by the Maintenance Officer during the proceedings of the Tribunal, or the Appellate Tribunal and the said Maintenance officer shall not below the rank of a District Social Welfare Officer.
Chapter 3 - Establishment Of Oldage Homes - This chapter deals with Establishment Of Oldage Homes beginning with at least one in each district to accommodate in such homes a minimum of one hundred fifty senior citizens who are indigent.
Chapter 4 - Provisions For Medical Care Of Senior Citizen - This chapter deals with providing Medical care to the senior citizens and contains section 20 of the act which is as follows:
Chapter 5 - Protection Of Life And Property Of Senior Citizen - This chapter deals with protection of life and property of the senior citizens and contains section 21, 22, 23 of the act.
Section 21 makes it clear that the state government shall make all measures to ensure that The Maintenance And Welfare Of Parents And Senior Citizens Act, 2007 is given widely publicity through public media including the television, radio and the print, at regular intervals.
The Central Government and State Government Officers, including the police officers and the members of the judicial service, are given periodic sensitisation and awareness training on the issues relating to this Act.
effective co-ordination between the services provided by the concerned Ministries or Departments dealing with law, home affairs, health and welfare, to address the issues relating to the welfare of the senior citizens and periodical review of the same is conducted.
section 22 of the act deals with the procedure that is to be followed for the protection of life and property of the senior citizens as it talks about an Action Plan that is to be notified by the state governments.
Eviction of abusive Son or Children from the property of the Senior Citizen - In accordance with the Section 22 (2) of the act, Action Plan notified by several states, prescribes the procedure that is to be followed to evict the respondents from the property of the senior citizen.
Cancellation of Gift deed or any other deed made by the Senior citizen in favour of his children - section 23 of the act gives more power to the senior citizens or parents. It is seen, people get property from their senior citizen parents transferred in their name and later shunt them out of their own houses or they start harassing their Innocent parents.
In such cases, if the son or daughter fail to provide basic amenities and basic physical needs to the transferor the tribunal can declare the said transfer as void and the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence.
Chapter 6 - Offences And Procedure For Trial - This chapter prohibits abandoning of the senior citizen and contains section 24, 25 of the act.
Whoever, having the care or protection of senior citizen, leaves such senior citizen in any place with the intention of wholly abandoning such senior citizen, 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.
Every offence under this Act shall be cognizable and bailable and shall be tried summarily by a Magistrate.
Chapter 7 - Miscellaneous - This chapter contains miscellaneous provisions of the act and contains section 26 to 32 of the act.
Legal Representation - This act also bars legal representation in accordance with Section 17 of the Act. However, Kerala High Court in Latha Sumam v. District Collector 2013(3) R.C.R.(Civil) 40 had ruled
Chapter 1 - Preliminary - This chapter contains first three sections of the act that provides basic information about the act and also includes definitions. One big point worth considering is that, this act applies also to citizens of India outside India.
Definitions - Definitions clause in every act provides information about all the important terms used in the act.
The legislature in its wisdom has made the scope of the act more wide as the Maintenance includes food, clothing, residence and medical attendance and treatment.
The term parent indicates that, it doesn't matter if the father or the mother is a senior citizen or not he can get relief under this act provided that his/her son or daughter is not a Minor in accordance with the provisions of the Majority Act, 1875 (9 of 1875),
The definition of the property is also made wide as it includes property of any kind, whether movable or immovable, ancestral or self acquired, tangible or intangible and includes rights or interests in such property.
Another big point is, this act also provides relief to the childless senior citizens, as the act includes the term relative who is such a person that 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.
Chapter 2 - Maintenance Of Parents And Senior Citizens - This chapter deals with providing maintenance to the senior citizens or parents and contains section 4 to 18 that provides all the substantive as well as procedural provisions related to the maintenance.
Who can get maintenance under the act? - Any Senior Citizen or Parent (even if he/she is not a Senior Citizen) whether mother or father, who is unable to maintain himself from his own earning or out of the property owned by him is entitled to get maintenance under the act.
Who is obliged to pay maintenance under the act? - Children not being a minor and in case of childless senior citizen, relatives defined under the act are obliged to pay maintenance to the senior citizen. Provided that, A senior citizen or a parent cannot claim maintenance from his minor son/daughter.
A childless senior citizen can seek maintenance from his relative only if the said relative is in possession of the senior citizen's property or if the said relative would inherit the property of the senior citizen.
A person can also claim maintenance from his/her grand children if they are not minors.
Procedure to be followed to get the Maintenance -
Who can Apply? - Any Senior Citizen or Parent or if he is incapable, any person or organization duly authorized by him or the Tribunal may take cognizance suo motu. The term organization includes any voluntary association registered under the Societies Registration Act, 1860 and it also indicates that several NGOs can also make such application for maintenance on behalf of the senior citizens if the said senior citizen authorize the NGO to do the same.
Interim maintenance can also be provided to the senior citizen during the pendency of the proceedings similarly as in the Protection of women from Domestic Violence Act, 2005.
Procedure -
1. Application for maintenance is given to the tribunal.
2. Notice of the application is given to the children or relative.
3. Opportunity of being heard is given to the parties.
4. The tribunal hold an inquiry for determining the amount of maintenance.
The legislature has made it mandatory to decide the said application for maintenance within a period of 90 days i.e. 3 months from the date of the service of notice of the application to such person.
Provided that the Tribunal may extend the said period, once for a maximum period of thirty days in exceptional circumstances for reasons to be recorded in writing.
Execution of the order - If the children or relative fails to pay the maintenance without sufficient cause the tribunal may issue a warrant for levying the amount due in the manner provided for levying fines. The tribunal can also go for imprisonment for a term which may extend to one month or until payment if sooner made whichever is earlier.
Such execution can be done by the tribunal only on the application for execution of the senior citizen or parent within a period of 3 months from the date on which it became due.
Maximum Allowance that can be granted by Tribunal - Section 9 (2) of the act makes it clear that the tribunal constituted under this act cannot award maintenance of more than Rs. 10000/- per month.
Interest on allowance - under section 14 of the Maintenance and welfare of parents and senior citizen act, 2007, The tribunal can also grant simple interest not less than 5% and not more than 18% in addition to the maintenance that is to be paid to the senior citizen or the parent.
Alteration in Allowance - The Tribunal can also alter the monthly allowance i.e. the maintenance, on proof of misrepresentation or mistake of fact or a change in the circumstances.
The tribunal can also cancel or vary any order made under section 9 in consequence of any decision of a competent Civil Court.
However, the Jurisdiction of Civil Courts are barred in respect of any matter to which any provision of this Act applies.
Section 12 makes it clear that a senior citizen or parent can claim maintenance under Chapter IX of the Code of Criminal Procedure, 1973 or the Maintenance and welfare of parents and senior citizen Act, 2007 and not under both.
Provisions regarding Appeal -
Who can file Appeal - Section 16 of the Act makes it clear that the Senior Citizen or the Parent can file the appeal within the period of 60 days before the appellate tribunal. However, there is a controversy regarding this if the children i.e. the respondent can file appeal before the appellate tribunal or not? or only the senior citizens can prefer an appeal?
Limitation or Time limit - 60 days.
Condonation of Delay - Any delay can be condoned, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.
Procedure to be followed in Appeal
1. Appeal is filed before the Appellate tribunal.
2. Notice of the appeal is 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. Opportunity of being heard is given to the parties or their duly authorized counsel.
from section 16 of the act, It is clear that during the appeal, Legal representation is allowed.
5. The Appellate Tribunal shall make an endeavour to pronounce its order in writing within one month of the receipt of an appeal.
6. A copy of every order made under sub-section (5) shall be sent to both the parties free of cost.
Maintenance Officer - Section 18 of the act allows a senior citizen to be represented by the Maintenance Officer during the proceedings of the Tribunal, or the Appellate Tribunal and the said Maintenance officer shall not below the rank of a District Social Welfare Officer.
Chapter 3 - Establishment Of Oldage Homes - This chapter deals with Establishment Of Oldage Homes beginning with at least one in each district to accommodate in such homes a minimum of one hundred fifty senior citizens who are indigent.
Chapter 4 - Provisions For Medical Care Of Senior Citizen - This chapter deals with providing Medical care to the senior citizens and contains section 20 of the act which is as follows:
20. Medical support for senior citizens .— The State Government shall ensure that,—
(i) the Government hospitals or hospitals funded fully or partially by the Government shall provide beds for all senior citizens as far as possible;
(ii) separate queues be arranged for senior citizens;
(iii) facility for treatment of chronic, terminal and degenerative diseases is expanded for senior citizens;
(iv) research activities for chronic elderly diseases and ageing is expanded;
(v) there are earmarked facilities for geriatric patients in every district hospital duly headed by a medical officer with experience in geriatric care.
Chapter 5 - Protection Of Life And Property Of Senior Citizen - This chapter deals with protection of life and property of the senior citizens and contains section 21, 22, 23 of the act.
Section 21 makes it clear that the state government shall make all measures to ensure that The Maintenance And Welfare Of Parents And Senior Citizens Act, 2007 is given widely publicity through public media including the television, radio and the print, at regular intervals.
The Central Government and State Government Officers, including the police officers and the members of the judicial service, are given periodic sensitisation and awareness training on the issues relating to this Act.
effective co-ordination between the services provided by the concerned Ministries or Departments dealing with law, home affairs, health and welfare, to address the issues relating to the welfare of the senior citizens and periodical review of the same is conducted.
section 22 of the act deals with the procedure that is to be followed for the protection of life and property of the senior citizens as it talks about an Action Plan that is to be notified by the state governments.
Eviction of abusive Son or Children from the property of the Senior Citizen - In accordance with the Section 22 (2) of the act, Action Plan notified by several states, prescribes the procedure that is to be followed to evict the respondents from the property of the senior citizen.
Cancellation of Gift deed or any other deed made by the Senior citizen in favour of his children - section 23 of the act gives more power to the senior citizens or parents. It is seen, people get property from their senior citizen parents transferred in their name and later shunt them out of their own houses or they start harassing their Innocent parents.
In such cases, if the son or daughter fail to provide basic amenities and basic physical needs to the transferor the tribunal can declare the said transfer as void and the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence.
Chapter 6 - Offences And Procedure For Trial - This chapter prohibits abandoning of the senior citizen and contains section 24, 25 of the act.
Whoever, having the care or protection of senior citizen, leaves such senior citizen in any place with the intention of wholly abandoning such senior citizen, 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.
Every offence under this Act shall be cognizable and bailable and shall be tried summarily by a Magistrate.
Chapter 7 - Miscellaneous - This chapter contains miscellaneous provisions of the act and contains section 26 to 32 of the act.
Legal Representation - This act also bars legal representation in accordance with Section 17 of the Act. However, Kerala High Court in Latha Sumam v. District Collector 2013(3) R.C.R.(Civil) 40 had ruled
After hearing both the sides, this Court finds that, there is no dispute as to the fact that Section 30 of the Advocates Act, which was lying dormant right from the date of incorporation, till the parliament decided to give effect to the said provision with effect from 15/6/2011. By virtue of the said provision, the provisions contained in various statutes, restricting the right of a Lawyer, placing an embargo with regard to the right to appear before the concerned forum Court/Tribunal has rather become watered down.This chapter also gives several powers to state and central government.
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