Tuesday, 21 March 2017

Law on Maintenance of Parents & Senior Citizens

The parents and senior citizens, who are neglected by their children, can now claim need-based maintenance from their children on the strength of the law - Maintenance & Welfare of Parents & Senior Citizens Act, 2007

It is legally binding on children or relatives to look after the elderly. The law has come into force in the State of Kerala on 29.08.2009 when the state brought the Kerala Maintenance and Welfare of Parents and Senior Citizens Rules 2009 into force.

The law provides for creation of Maintenance Tribunal for each revenue division to deal with application for such maintenance. The Tribunal is presided over by  the Revenue Divisional Officer (RDO). The act provides for appeals also. The Appellate Tribunal of each district is presided over by the District Collector. District Welfare Officers are designated as Maintenance Officers for each district. The Tribunal, before hearing an application, may refer it to a Conciliation Officer for amicable settlement of dispute. The panel of Conciliation Officers as per the law is yet to be formed.

A senior citizen or parent unable to maintain himself/herself can file an application for maintenance to the Maintenance Tribunal. If a person cannot file the maintenance application, then any other person or organisation authorised by the person can file the application on his/her behalf. The kith and kin of the parent/senior citizen, who are in possession of the property of such parent/senior citizen or who would inherit the property of such parent/senior citizen also, have an obligation to provide such maintenance. The application for maintenance in the case of parent or grand-parent is to be filed against one or more of his children, but in the case of a child-less senior citizen the petition is to be filed against the relative who would inherit his property.

The application is to be filed in form No A, as specified in the Rules. The Tribunal can suo-moto initiate proceedings for maintenance whenever necessary. The application for maintenance filed before the Tribunal, will be referred to the Conciliation Officer. The Officer in turn will hold conciliation between the two parties. Within one month of receipt of the reference the Conciliation officer will return the papers received by him with a report – carrying either a settlement formula if arrived at or a detailed account of steps taken by him for a settlement.

If the Conciliation Officers submits a settlement plan the Tribunal will pass a final order for settlement of the application. If no settlement is reported the Tribunal may pass an order for maintenance taking into consideration the amount needed by the applicant to meet his basic needs (such as food, clothing, accommodation and health care), income of the opposite party, and value of actual and potential income from the property, if any, of the applicant which the opposite party would inherit and/or is in possession of.
The application for maintenance has to be disposed of within 90 days. The maximum amount that the Tribunal can order at present is fixed as Rs 10,000/- . The aggrieved persons can prefer an appeal against the order before the Appellate Tribunal. The law prohibits the lawyers from appearing before the Tribunal.

If a person who received a property from a senior citizens fails to provide the basic amenities and physical needs to the transferor there is a provision of imprisoning the person for three months or with fine up to Rs 5000 or with both.

The law provides for not only maintenance but also welfare measures to parents and senior citizens. The law is a comprehensive one. The law holds the State responsible for the implementation of welfare measures for senior citizens. The High Court of Kerala last year ordered (W P (C) 4981/2015) the children to provide ‘welfare measures’ such as food, healthcare, recreation and other amenities even to the live-in partner of their mother.

Some ambiguities are there in the Senior citizens law. Senior citizen is defined as “any person above 60 years and includes parent, whether or not senior citizen”. That means a parent with less than 60 years of age but with a child of more than 18 years of age, is defined as a senior citizen. “Relative” means any legal heir, who is not a minor, of the childless senior citizen and is in possession of or would inherit his property after death. No doubt, the act is a significant step in dispensing of the insecurity of the elderly and paving way for their well being.

Maintenance under Criminal Procedure Code

The Code of Criminal Procedure, 1973 has a limited provision under its section 125 for maintenance of parents but is silent on welfare measures.  The application for maintenance is to be filed before the First Class Judicial Magistrate who can deliver an order for maintenance. The person failing in complying with the order of the court may get punishment of fine or jail term.

Can anyone opt for both reliefs?

Parents can claim maintenance either under Section 125 of the Criminal Procedure Code 1973 or under the law mentioned above – they cannot opt for both.  If an application under Section 125 is pending before the court, he/she has to withdraw the application before filing a petition before Maintenance Tribunal.

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