The Maintenance And Welfare Of Parents And Senior Citizens Act 2007: A Sword That Needs Sharpening?

PARENTS & SENIOR CITIZEN

The act in its objective specifies that “an act to provide for more effective provisions for the maintenance and welfare of parents and senior citizens”. Further the term “parents” is defined under section 2 (d):-

“parent” means father or mother whether biological, adoptive or step father or step mother, as the case may be, whether or not the father or the mother is a senior citizen.

and section 2(h) defines the term “senior citizen”:-

“Senior citizen” means any person being a citizen of India, who has attained the age of sixty years or above.

This act has been enacted to provide “maintenance” which includes provisions for food, clothing, residence and medical attendance and treatment and “welfare” means provision for food, health care, recreation centers and other amenities necessary for the senior citizens and parents. However, Parents need not be a senior citizen to claim maintenance if he/she is unable to maintain themselves.

TRIBUNAL & RIGHT TO BE REPRESENTED BY LEGAL PRACTITIONER

Although the legislative intent behind the act is to provide for maintenance and welfare of parents and senior citizens however it is not restricted to this but also to provide the same in time and cost-effective way and therefore to achieve the same the act provides for constitution of maintenance tribunal. The tribunal was constituted to empower the senior citizen to seek maintenance as well as to protect financial exploitation at the hands of their children⁶and the tribunal has the power to pass eviction order to ensure the well-being of the aggrieved party. Since the enforcement of the act, a question has arisen many times about whether a party can be represented through a legal practitioner in the proceedings before the tribunal. This was answered by the High Court of Delhi in Pawan Reley & Anr vs Union of India & Ors., wherein it held that a senior citizen can either appear in person before the tribunal or can seek a representation of a legal practitioner to appear on their behalf before the tribunal. While relying upon a decision passed by the Punjab & Haryana High Court, the Court observed that:-

"We are in agreement with the view taken by the Hon'ble Punjab & Haryana High Court and direct that Section 17 would not come in way of legal representation on behalf of the parties before the Maintenance Tribunal."

Further, in a recent judgment the High Court of Karnataka declared bar under section 17 ultra vires of section 30 of Advocates Act.

MAINTENANCE

Section 4 recognizes a corresponding obligation on the part of the children or relative to maintain a senior citizen, extending to such needs as would enable them to lead a normal life. In the case of a relative, the obligation is if they are in possession of the property of the senior citizen or would inherit property from them. Hence, in the case of the children of a senior citizen, the obligation to maintain a parent is not conditional on being in possession of property of the senior citizen or upon a right of future inheritance. Section 4(1) of the act deals with the provision that against whom the application under Section 5 can be filed. Section 4(1) states that: -

“4. Maintenance of Parents and Senior Citizens

1. A senior citizen including parent who is unable to maintain himself from his own earning or property owned by him, shall be entitled to make an application under section 5 in case of –

(i). parent or grand-parent, against one or more of his children not being a minor

(ii). a childless senior citizen, against such of his relative referred to in clause (g) of section 2”

SECTION 23

Chapter V enacts provision for protecting the life and property of a senior citizen. Section 23 of the act says that:

“23. Transfer of property to be void in certain circumstances.— (1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to

provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.

(2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right.

(3) If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organization referred to in Explanation to sub-section (1) of section 5.”

By virtue of section 23, in case the transferee refuses to provide the basic amenities & the maintenance the transfer of property can be declared to be void.

Does section 23 apply to every/any transaction or it specifies any requirement? This question was raised before the Supreme Court wherein it held that the section 23 will only be attracted when the transfer has been made subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and the transferee refuses or fails to provide such amenities and physical needs to the transferor. In another judgment rendered by the High Court of Madras it was held that in absence of any clause obligating transferee to maintain transferor section 23 cannot be invoked. Senior Citizen Act is a social welfare legislation enacted to secure maintenance and welfare of the senior citizen and same cannot be used to settle property disputes.

RETROSPECTIVE EFFECT OR PROSPECTIVE EFFECT

The act has prospective effect and it governs the transfer taken place after its enactment. In Charanjit Singh Ahluwalia vs Union of India, W.P.(C) 12076 of 2022, the question raised before a division bench of the High Court of Delhi that whether any transfer done before the particular was enforced can be declared void by virtue of section 23 or not? The court held that “It is well settled that unless the terms of statute expressly provide or necessarily require it, retrospective operation should not be given to a statute which will have the effect of rights being created in favour of others” and therefore section 23 cannot be given retrospective effect as it says that "after the commencement of the Act"

“Right to life with dignity” has been enshrined as a fundamental right under the Constitution of India. In consonance with the same provision and to ensure that Senior citizens are not abandoned by their children and have decent life as provided by them to their children the act came into existence. A separate tribunal was also constituted to ensure fast remedy but only framing of legislation and constitution of a separate body does not fulfill the requirements. Section 5 (4) of the act provides for disposal of maintenance application within ninety days but the magistrates are burned with other works and this is causing delay in deciding the applications. The Sword needs sharpening and the necessity has been felt many times. The High Court of Delhi have had taken suo-moto cognizance of the same and directed the concerned authorities to ensure strict compliance of the provisions enshrined under the act. In another instance the High Court of Allahabad was forced to look into the compliance of the same.

Author: Kirti Dua, Partner at ANG Partners, Advocates & Solicitors. Views are personal.