Lawwatch

Maintenance & Welfare of Parents & Senior Citizens

The parents and senior citizens, who are neglected by their children,
can now claim need-based maintenance from their children. This is
claimed 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.

In Kerala, the law has come into force on 29.08.2009, when the state
brought the Kerala Maintenance and Welfare of Parents and Senior
Citizens Rules 2009
i
nto
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 Revenue Divisional Officers (RDO). The act
provides for appeals also. The Appellate Tribunal of each district is
presided over by District Collectors. 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 disputes. The panel of Conciliation Officers
as per the law is yet to be prepared and published.

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 have to withdraw the application before filing a petition
before Maintenance Tribunal.