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'The Maintenance and Welfare of Parents and Senior Citizens Act, 2007'

It is really disheartening to note that the senior citizens are mostly neglected, become desolate and find it very difficult to eke out their livelihood. Some of them manage to find a place in the 'Homes for the Aged', some of them choose to beg and most of them die of starvation and uncared for.

'The Maintenance and Welfare of Parents and Senior Citizens Act, 2007' has made an earnest attempt to render justice to them.

The act is very brief with only 32 sections. It applies exclusively to the senior citizens who are above the age of 60. Some of the salient features of the act are:

1) It provides for summary proceedings within a period of 90 days from the date of filing a petition in a specially constituted Tribunal for this purpose. The Tribunal is manned by an officer not below the rank of a sub- divisional officer.

2) The senior citizen can either apply to a Tribunal where he resides or where his son or daughter or his near relative resides from whom he or she claims maintenance.

3) An uncared for or a childless senior citizen, though he or she possess property but does not derive any income from it, can seek maintenance from his son or daughter or from his relative or relatives, who will inherit his or her property after his or her death.

4) The senior citizen can either apply in person or through a person authorized by him or through a voluntary organization registered under the Societies Registration Act.

5) The Tribunal on receipt of a petition will suo motu take it on file and refer it for a conciliation by a conciliation officer within a period of one month.

6) The Tribunal enjoys the power of a first class magistrate for enforcing and summoning the attendance of persons against whom the petition has been filed.

7) The Tribunal follows the same procedure of a civil court to adduce evidence from the petitioner and the respondent

8) The Tribunal can pass an order granting a maximum sum of Rs 10,000/- as maintenance to the senior citizens.The maximum amount is subject to the regulation of the concerned state government.

9) The person against whom an order for maintenance has been passed has to comply with the order within one month, failing which the Tribunal can imprison him or her up to a period of one month.

10) The maintenance amount shall also carry an interest varying between 5 % and 18 %.

11) The act provides for the District Welfare Officer to act as maintenance officer and even to conduct the proceedings for and on behalf of the senior citizens.

12) The Act provides for the establishment of old age homes for the senior citizens by the concerned state governments.

13) Preferential treatment should be given to the senior citizens in the hospitals like separate queues, treatment, offering medicines and also promotion of research in the geriatric medicine.

14) Civil courts have no jurisdiction to interfere with the proceedings of the Tribunals like grant of stay, ordering transfer etc.

15) Senior citizens cannot be represented by any legal practitioner.

16) State governments are empowered to enact rules for the effective implementation of the Act.

17) If a person who has been looking after a senior citizen forsakes him or her, he or she will be punished by the Tribunal.

18) Appeal can be preferred against the order of a Tribunal and the appeal should be disposed of within one month.

19) A senior citizen can seek maintenance for the purpose of his or her food, shelter, clothes, medical facilities and recreation etc.

20) A senior citizen who has transferred his property either to his son or daughter or near relative, by virtue of a will or gift, can now get it cancelled by applying to the Tribunal, if he or she is neglected by the legatee or the donee.

21) The provisions of the act have overriding effect. If any provision of any other act is inconsistent with the provisions of this act, it will prevail over others..

Maintenance & Welfare of Parents and Senior Citizens Act 2007- PDF file

Maintenance & Welfare of Parents and Senior Citizens Bill 2007- PDF file

Rules Maintenance & Welfare of Parents and Senior Citizens Act 2007- PDF file

Summary of the BILL

The Maintenance and Welfare of Parents and Senior Citizens Bill, 2007
 

THE ACT WILL be enforced by the State government concerned. The date on which the Act will come into force will be notified by the State government concerned in the Official Gazette.

Under Clause 5(1) of the Bill, a senior citizen or a parent may apply for maintenance under Clause 4 of the bill. (A senior citizen is an Indian citizen who is at least 60 years old. A parent could be father or mother, whether biological, adoptive or step father or step mother, whether or not the father or the mother is a senior citizen). If the senior citizen or parent is incapable, any other person or a voluntary organization authorized by the senior citizen or parent can apply for maintenance on their behalf. The Tribunal may take cognizance suo motu (that is, it can act on its own cognizance). These two provisions are welcome since most senior citizens or parents do not have the energy (they do not have the money anyway) to apply for maintenance.

The said Tribunal may, when a proceeding regarding monthly allowance for the maintenance under this section is pending, order such children or relative to pay a monthly allowance for the interim maintenance of the senior citizen including parent. The State government is required to constitute within a period of 6 months from the date of commencement of the law (Act), Tribunals for the purpose of adjudicating and deciding upon the order for maintenance under Clause 5.
According to Clause 4(1), the senior citizen including parent is entitled to apply for maintenance under Clause 5 if he is unable to maintain himself from his own earnings or out of the property owned by him. A parent or grand-parent can make an application for maintenance against one or more of his children who are majors (‘children’ includes son, daughter, grandson and grand-daughter). The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be, so that such parent may lead a normal life. A childless senior citizen, on the other hand, can make an application against his relative ("relative" means any legal heir of the childless senior citizen who is a major and is in possession of or would inherit the property after the childless senior citizen’s death; property means property of any kind, whether movable or immovable, ancestral or self-acquired, tangible or intangible and includes rights or interests in such property).

Thus Clause 4 makes a reference to grand-parent while Clause 5 does not. In other words, Clause 5 is silent about how the application for maintenance should be made by a grand-parent (who is not yet 60) under Clause 4. I wish the learned law-makers took notice of this inconsistency lest vested interests should exploit this well-intended provision.

If the senior citizen has transferred by way of gift or otherwise, his property, subject to the condition that the relative shall provide the basic amenities and basic physical needs to the senior citizen and such relative refuses or fails to provide such amenities and physical needs, Clause 23 (1) says the said transfer of property shall be declared void by the Tribunal, if the senior citizen so desires. This is a welcome provision since it protects naïve senior citizens from exploitation by relatives who intend to renege on their promise subsequently.

The State government is also required to prescribe a comprehensive action plan for protecting the life and property of senior citizens. This is also a welcome provision since the vulnerable senior citizen can be easily harmed or hurt. In fact the senior citizen may be even carted away somewhere to ensure that none else including the voluntary organization and the Tribunal come to know of their whereabouts. Fortunately Clause 24 of the Bill takes care of this aspect. According to this Clause, ‘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 thousands rupees or with both’. I suggest registration of senior citizens with the jurisdictional police station be mandated. The NGO concerned may be requested to visit senior citizens at least every quarter under intimation to the jurisdictional police station.

Obviously, the Bill, in its present form, will meet the needs of only parents and senior citizens from educated families, propertied classes and the urban areas. It cannot cater to the needs of parents and senior citizens belonging to the poorer sections of society or hailing from villages. One may find three generations living in the same village and at times even under the same roof! If the son is also indigent, how can he maintain his parent and grand parent? How would the Tribunal adjudicate such disputes? The son will be only too happy if he is put behind bars because he is at least assured of two square meals a day!

Understandably, given its limited resources, one cannot expect the government to do a thorough job here. But it can at least ameliorate the situation. How? It should allow income tax sops to those who take care of parents / grand-parents / senior citizens. This is only fair because if tax is collected from citizens, they should be provided social security by the government when they grow old. When the government is not able to provide social security, it should at least encourage the citizens to provide it by allowing income tax sops. After all, a citizen taking care of his aged parents or senior citizens is providing them social security which strictly speaking the government should have provided. Our government taxes individuals a la the US government but unlike the US government does not provide social security to all citizens. I have pointed out this anomaly in my article, “Why Tirupur has raced ahead of Ludhiana?” dated, Nov 20, 2007. All that the government has to do is rob Peter and pay Paul.

It is also unfortunate that the government has not made any serious attempt to cover the senior citizens under “Group Health Insurance Scheme”. It believes that insurance coverage is mostly required in critical illness and at places where adequately-equipped hospitals are not available (!). Well, for a start, let the government convince me that AIIMS, New Delhi, is adequately equipped to treat indigent senior citizens.

The Bill does not cover old age pension perhaps because State governments are implementing the Old Age Pension Scheme. But the amount of pension and the eligibility criteria are not uniform across the States, under the said Scheme. The Bill should have mandated the State governments to pay old age pension to the senior citizens adequately and uniformly across the country. This should not be difficult because all that the government has to do is rob Peter and pay Paul. It has to deny income tax sops to those who do not maintain parents / grand parents / relatives; it has to deny old age pension to those parents / grand parents / relatives who are being maintained by their children / relatives.

Lastly, the government, while drafting Bills, uses the word ‘may’ (instead of the word ‘shall’) even where provisions of a mandatory nature are involved. What leads to this howler? Is it ignorance or lack of conviction on the part of the government?

Note: Union Social Justice and Empowerment Minister Meira Kumar tabled the Maintenance and Welfare of Parents and Senior Citizens Bill, 2007 in the Lok Sabha. The Bill proposes to make it obligatory on the persons who inherit the property of their aged relatives to maintain them. It also aims to make provisions for setting up old age homes to take care of indigent older persons. It aims to set up an appropriate mechanism for need-based maintenance to parents and senior citizens, better medical facilities and old age homes in every district. It seeks for institutionalisation of a suitable mechanism for the protection of the life and property of older persons. Describing ageing as a major challenge and the need to give more attention to the care and protection of the older person, the statement of objects and reasons said many older persons, particularly widowed women, are now forced to spend their twilight years all alone and face emotional neglect and lack physical and financial support. 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 need to have simple, inexpensive and speedy provisions to claim maintenance, the statement said.

A critique of the Maintenance of Parents Bill 2007 


On May 8, 2007, the Indian Express carried a critique of the UPA government's Maintenance and Welfare of Parents and Senior Citizens Bill 2007, which was introduced in the Lok Sabha in March. M. R. Madhavan, who works with the PRS Legislative Research at the Centre for Policy Research focuses on larger policy problems with the Bill, while also zeroing in on specific provisions that arouse his concern:

"The Maintenance and Welfare of Parents and Senior Citizens Bill, 2007, which was introduced in Lok Sabha in March, aims “to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognised under the Constitution and for matters connected therewith or incidental thereto.” While it is difficult to contest the objective of ensuring a comfortable life for senior citizens, a number of provisions in the Bill may not be easy to implement.

The Bill neatly sidesteps the directive in the Constitution (Article 41), which directs the state to provide public assistance in cases of old age. The Bill does state that, “The state government may establish and maintain such number of old age homes at accessible places, as it may deem necessary, in a phased manner, beginning with at least one in each district to accommodate in such homes a minimum of one hundred fifty senior citizens who are indigent”. Note the use of “may” instead of “shall” — there is no obligation on the state governments to establish these. Even without this clause, there was never any prohibition on them from providing old age homes. Also, one wonders why a Bill should specify details such as the minimum size of an old age home.

Instead, the Bill places the obligation of maintaining a senior citizen on his or her children, grandchildren or any legal heirs. The process and amount differs from the existing provision in the Code of Criminal Procedure (Section 125), under which a first class magistrate may order a person to provide a monthly maintenance to his parents (or wife, including divorced wife or children), limited to Rs 500.

The Bill provides that the children of a senior citizen have the obligation to maintain a senior citizen to the extent that he “may lead a normal life”. In case of a childless senior citizen, the obligation is on a relative who is in possession of the senior citizen’s property or who would inherit his property. The maximum monthly allowance is to be specified by state governments, subject to a limit of Rs 10,000.

Some of the definitions in the Bill are confusing. Senior citizens are defined as “any person being a citizen of India, who has attained the age of sixty years or above and includes parent whether or not a senior citizen”. This implies that every parent, including those below sixty years of age, would be considered a “senior citizen”. Relative “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.” How does one determine who would inherit the property? Does this mean that the senior citizen has to reveal the contents of his will, and does not have the freedom to change it later? If he is allowed to change his will, consider the case of the person who is initially named in the will, forced to provide a maintenance, and who finds on the death of the senior citizen that there is another will that disinherits him.

So what does a senior citizen do if he wants maintenance? He applies to the ‘Maintenance Tribunal’. The application may also be made by any other person or organisation authorized by him. However, the Bill clarifies that such an “organisation” means “any voluntary organisation registered under the Societies Registration Act, 1860, or any other law for the time being in force”. It seems to ignore the fact that the Societies Registration Act does not define “voluntary organisation”. 
One might be tempted to believe that the purpose of permitting such organisations is to assist a senior citizen. However, the Bill makes it clear that “no party to a proceeding before a tribunal or appellate tribunal shall be represented by a legal practitioner”. That is, one may not use the services of a legally qualified person in obtaining one’s legal entitlements under this law.

Regarding the maintenance tribunal, the Bill states that “the state government may... constitute for each sub-division one or more tribunals... The tribunal shall be presided over by an officer not below the rank of sub-divisional officer of a state”. There are two points to note here. First, the use of “may”, leaving the state governments the option of not forming such tribunals. Second, the job is entrusted to the SDO, who has a number of other responsibilities.

To conclude, one is not arguing against the idea of providing a safety net for senior citizens. The point is that any law that provides for such a net should be implement able. Other than the various loopholes discussed, the big issue is whether parents would take their children to the tribunal, given various social pressures. A better approach may be to design a social security system, including financial products such as pension schemes and reverse mortgages that enable the elderly to live a dignified life."

This is a powerful critique of the Bill, which is scheduled to be debated during the current session of Parliament. To my mind, there is only one existing precedent for such a law, which is the Singaporean Maintenance of Parents Act. Significantly, that law is backed by governmental programmes of pension, healthcare and other forms of support for the elderly, which adds weight to Madhavan's core argument. Hopefully, these issues will be aired during the Parliamentary debates on this law.
Anonymous said...

This bill has provisions where the chances of misuse are greater than beneficial use. What if a particular heir or children live out side India or other than the place where the Senior citizen resides? Will that give the Senior citizen a right to live with the heir/children? Will the order of Magistrate be implantable in a foreign jurisdiction to bring him back to fulfill his obligations? What if the senior citizen is the cause of discord, will that still be the reason to keep that person with him/her? What happens to parents with daughters only and no son? Will the law make it compulsory even for the son-in-law to take care of the senior citizen? How many such senior citizen one shall be responsible to take care of?

The law is designed simply to avoid the State's responsibility to provide a better social security system for its citizen and putting the onus on the citizen for such responsibility while the State and its guardians-the executives and legislators wish away the hard earned tax payers money in such wishful bills and squander the same on their own security.

Conclusions:
It may be conclude by saying that the problem of the elderly must be addressed to urgently and with utmost care. There is urgent need to amend the Constitution for the special provision to protection of aged person and bring it in the periphery of fundamental right. With the degeneration of joint family system, dislocation of familiar bonds and loss of respect for the aged person, the family in modern times should not be thought to be a secure place for them. Thus, it should be the Constitutional duty of the State to make an Act for the welfare and extra protection of the senior citizen including palliative care.