Yes, every child is legally bound to
take care of his/her elderly parents. And looking at today's harsh condition of
the old aged parents, the parliament enacted a law which protects the right of
a parent. Let’s have a look at the law:
The Welfare of Parents
and Senior Citizen Act, 2007
This act was made in order to help
parents and senior citizens. The right to claim maintenance is given under
section 4 of the act. Under this act, if the children do not take care their
parents, then the right is given to the parents that they can apply application
u/s 5 of the Act to the district magistrate and claim maintenance from their
children under this act. Also, the children harass their parent in any means,
or their act is cruel some then under this act parent can make an application
to the district magistrate and can get their home vacant from their children. And
in both the condition the district magistrate can give order to the children
for the maintenance or for the leaving the house of their parents. Under this
Act, the proceedings happen very swiftly, and relief is granted in
comparatively shorter time duration.
Even if the parents have transferred
the property to their children with the condition of providing them with basic
amenities, and if it is not provided then they can claim it back u/s 23 of the
act.
The Act not only includes Parents but
also Grandparents are also included and can claim maintenance under this Act. And
maintenance not only means the financial help but also it includes food,
clothing, residence, medical attendance and treatment or any amenities necessary
for the living the life with dignity.
Senior
citizen as per the act means any person above the age of 60 years (as per 2011
census 8.6% of Indian population is above 60 years of age). Parents include
father and mother, even if they not above 60 years of age can ask for maintenance.
And the case to the magistrate is to
filed u/s 5 of the Act against the children or relative in any district where
they reside or last resided. And the tribunal is also given the same power as
that of court, judicial magistrate 1st class.
If there are one or more than one
children or relatives, the parent may claim the maintenance from either one or
all of them, depending upon their means of income.
Maintenance Tribunal
Under section 7 of the act, the state
government should within the period of 6 months from the act come into effect,
shall constitute Maintenance tribunal and notify the same in the official gazette,
for the purpose of adjudicating matter under section 5 of the act. The tribunal
may take the suo-moto cognizance as well, which means on its own and does not
require any complaint or suit to be filed by the aggrieved party. And thereafter
issue the notice. The tribunal may also refer the case for mediation reconciliation
or may even pass an interim order for maintenance (it means that the final
judgement for maintenance is not passed but yet looking at the condition the
court passed the order for maintenance)
No civil court has the jurisdiction
under this act to give maintenance order to the parents and even they cannot
pass any injunction order to the case regarding.
What if an elderly person
does not have any children?
In case the person does not have any
child, in that case, the legal hires (excluding the minors) are bounded under
this Act to pay maintenance to that person. Legal hires are those persons to
whom the property will be transferred after their death.
Eg: A does not have any children but
a brother B. Then in that case on the death of A, the property will be
transferred to B, therefore, B is also legally bound to pay maintenance to A.
Condition required
The person who claims for maintenance
should have to prove in the court of law, that he does not have enough means of
livelihood due to n number of reasons, eg. Old age etc. and can thereafter
prove that he has legal heirs or children who are/is employed and have means of
livelihood. Then, in that case, that person could be held liable by the court
to pay maintenance (legal heirs: if they are going to receive any property
after his death).
In the case of vacating the house,
the house should be in the name of the Parents and not anyone else.
Misuse of the Act
Sometimes, the parents implicate
false accusation over their daughter-in-law that she harasses them, and demand
from the court that she should vacate the house.
In case of Atma Singh Sharma v The
District Magistrate, Jalandhar and Ors., decided by Punjab and Haryana High
Court on 17 September 2018. Jts. Rajesh Kumar Jain held that the Welfare of
Parents and Senior Citizen Act, 2007 is only applicable upon the children or
the legal heirs. And therefore, the application against the daughter-in-law
will not be applicable. As she is neither child nor legal heir of the
father-in-law or mother-in-law. A civil suit for eviction can be filed against
her but not under this act.
What all is there in Amendment,
2018
In this amendment, the government has
tried to expand the ambit of the social security of elderly people.
· It made distant relatives liable for their
maintenance
· Increased the punishment to 10,000 or
6-months imprisonment or both in case of not obeying court orders.
· Removed the cap of 10,000 per month for
maintenance and now the court will decide the amount looking at various
circumstances which vary from case to case. 1) the standard of living and earning
of the parent or senior citizen 2) earning of the children or the relative.
· The definition of “children” has been expanded
under the amendment bill to include daughter-in-law and son-in-law. And
reversed the above judgement of the court. It even includes stepson and stepdaughter,
adopted child and even minor child under the definition of children.
The
obligation of children to maintain their parents under Personal Laws
Hindu
Adoption and Maintenance Act, 1956
It
is the first personal law statute in India, which imposes an obligation on the
children to maintain their parents. And both son and daughter are liable for
maintaining their parents, but it does not include grandson or granddaughter.
Under section 20 of the act, it is the obligation of children to maintain their
aged infirm parents (children here include legitimate as well as illegitimate).
Also, the maintenance of the aged parents does not depend upon their possession
over any property, unlike the Welfare of Parents and Senior Citizen Act.
Muslim
Law
Under
Islamic principles, children have the duty to maintain their parents. The
children are bound to maintain their parents only if they are financially sound
and the parents are poor. Both son and daughter are liable to maintain their
elderly parents, but if one of the children is poor then the liability will
shift to the other child proportionately, depending upon the circumstances. If
the child is in a position to maintain only one parent, it is the mother who
gets priority. If the children are unable to maintain their parents separately,
then the parents may be compelled to live together. Son is not bound to
maintain stepmother.
Christian
and Parsi Law
These
two religions do not have any personal law for sake of maintenance for parents.
They can use the Welfare of Parents and Senior Citizen Act, 2007.
Powers
granted by the Act
The
act now provides the elderly parent to appeal the order of Maintenance
tribunal. If the children succeed in proving that they don’t have enough means of
giving maintenance then the state government may establish in phase manner
sufficient senior citizen homes and maintain the same. The state government is
liable to provide the financial needs in order to implement the act, like setting
up of tribunal and giving for their maintenance. The old-age home in each state
shall be sufficient enough to accommodate at least 150 people. And also, the act
prescribes the regulation of private care homes for senior citizens and
institutions providing home-care facilities. The act even prescribes the
minimum standard for the medical care and entertainment of the elderly at the
old age home.
Under
section 24 of the act, any person including the children and the relatives, who
has the responsibility for taking care and protection of the senior citizen if
fail to do so, then they will be held guilt under the act. They may face imprisonment
for 3 months or fine up to Rs. 10,000 or both
Lawyers
are excluded from the proceedings under this act and the parents can themselves
represent the case. Summary trial (these are the trial which is speedily disposed
and with the simplified procedure of recording the trial, the trial is tried
and disposed at once, section 260 to 265 of the CrPC deals with summary trials)
by the tribunal to give maintenance order.
The
state government shall designate District welfare officer who will
represent the senior citizen if they want in the case. He shall ensure
compliance with orders on maintenance payment and act as a liaison for parents
or senior citizen. The state shall take the necessary section to sensitise the
police and judiciary to the matter related to the protection of life and property
of the elderly.
State
government must constitute a special police unit for the issue related to
parents and senior citizens, headed by an officer, not below the rank of DSP (District
Superintendent of Police). And all hospitals (both private and public) must
provide facilities like separate queues and beds for senior citizen.
Punishment
If
the children or relatives fail to comply with the court order then within the
period of 3 months with the sufficient reasons for not complying with the court
orders, the court or the tribunal can then impose a fine or, imprisonment up to
1 month or up to the maintenance is not paid (maybe along with interest and
legal expenses, as decided by the tribunal), whichever is earlier or both.
If
the maintenance order is passed then as per the act it should be paid within
the period of 15 days from the date of judgement.
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