DHARMASHASTRA NATIONAL LAW

UNIVERSITY JABALPUR

SUBJECT: ECONOMICS
SEMESTER- IV

TOPIC: A SOCIAL-LEGAL CRITIQUE OF MAINTENANCE

AND WELFARE OF PARENTS ANS SENIOR CITIZENS ACT,
2007

SUBMITTED TO- SUBMITTED BY-

Mr. Animesh Jha

Ms. Varsha Ghumasta

AshutoshGautam
ASST. PROFESSOR BA.LLB. (Hons.)

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 Roll no.- BAL/022/18

ACKNOWLEDGMENT
The project is a subject of extensive research could not have been completed without a few
things. First of all, I would like to express my gratitude to our teachers for helping and
guiding us towards the completion of this project. I would also like thank the administration
for the provision of the best facilities without which the completion of this project would have
been impossible. I would also like to acknowledge the constant support of my classmates.
Lastly, I would like to thank the almighty whose blessings helped me to complete the project.

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Contents
Introduction................................................................................................................................4

Laws for “Protection to Right to Maintenance” and its Justiciability........................................5

Social Scenario and the Maintenance and Welfare of Parents and Senior Citizens Act, 2007..5

Features of the MWPSC Act, 2007............................................................................................6

The Positive Aspect of the MWPSCA.......................................................................................9

Case Laws..................................................................................................................................9

Conclusion................................................................................................................................10

Endnotes...................................................................................................................................11

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Introduction
Family is an intimate unit of society and is a community by itself. Marriage birth and
adoption are the source of its membership. For children family is the first school of human
experience. It provides a long and continued process of affectionate training and adaptation to
develop the inherited traits and gifts. It offers a medium for vitalizing relationship between
parents and children. Like a religious body or social organization, it carves out of atmosphere
for sociability, solidarity, and cultivation of affinity. It is a comfortable and warm social
support system when looked from functional viewpoint. Family is also a refuge, a protective
shelter. But these statues within the family have undergone change in the “Machine Age”.
Unlike the traditional role of family to support and maintain the family members, nearer or
remoter, has changed dramatically. Earlier the moral and religious duty to maintain and
support the parents and the elderly persons in the family, later on liability under criminal law,
has now become liability under the specific act establishing criminal liability.

It is very essential to provide a dignified, special, secured and a happy living to our aged
parents and dream of an old age of the same quality for our self. After all old aging is not a
disability but a natural happening. Elders are the only possible bridge between the past and
the present. We always have some wisdom to imbibe from them. The parent who gave us
birth and the relatives under whose shadow we nurtured, groomed and flourished, have
become the burden on the overburdened shoulders of present generation, then what to do
except, to have the stick of law to make them liable to fulfill their obligations which are
basically the moral obligations. In the present paper the attempt has been made to find out
that how far the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is
beneficial in comparison to the section 125 of Criminal Procedure Code, 1973. There is
another attempt to evaluate the function of the Act in India.

The Maintenance and Welfare of Parents and Senior Citizens Act, 2007, provides for more
effective provisions for the maintenance and welfare of parents and senior citizens guaranteed
and recognized under the Constitution and for the matters connected with medical assistance,
establishment of old age home and maintenance tribunal etc. The MWPSCA provides the
maintenance and support not only to the parents but the senior citizens who are issueless and
the respondent is the legal heir of him.

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Laws for “Protection to Right to Maintenance” and its Justiciability
Constitution of India, declares through Directive Principles that under Article 41, “The State
shall, within the limits of its economic capacity and development, make effective provision
for…old age, sickness and disablement, and in other cases of undeserved want.” The present
provision being the part of DPSP is not justiciable, however, the state can make the law to
implement these provisions and if there is no harmony in DPSP and Fundamental then the FR
will give the way for the harmonious construction of these two provisions. The MWPSCA is
the step towards achieving the goal maintained in Article 41 of the Constitution along with
already existing legal provisions in this field.

Code of Criminal Procedure (Chapter IX, Section 125(1)(2)) Requires persons who have
sufficient means to take care of his or her parents if they are unable to take care of
themselves. Hindu Adoption and Maintenance Act, 1956 Requires Hindu sons and daughters
to maintain their elderly parents when parents are unable to maintain themselves.

Social Scenario and the Maintenance and Welfare of Parents and Senior
Citizens Act, 2007

India's success in increasing life expectancy has led to a larger number of the elderly in the
country. The Registrar General of India forecasted the share of older persons (age 60 years
and above) in the total population to rise from 6.9% in 2001 to 12.4% in 2026. Issues related
to the financial and social security of older people will become increasingly important.
Indeed, the National Policy on Older Persons states, "Some areas of concern in the situations
of older persons will also emerge, signs of which are already evident, resulting in pressures ]
in living arrangements for older persons."

The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 make it a legal
obligation for children and heirs to provide sufficient maintenance to senior citizens, and
proposes to make provisions for state governments to establish old age homes in every
district.

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Features of the MWPSC Act, 2007

1. Application of Act:

 The Act places an obligation on children and relatives to maintain a senior citizen
(anyone of 60 years) or a parent to the extent that they can live a 'normal life.'

 Senior citizens who are unable to maintain themselves have the right to apply to a
maintenance tribunal seeking a monthly allowance from their children or heirs.

 If he is incapable of filing the application on his own, he may authorize any other
person or registered voluntary association to apply on his behalf. The maintenance
tribunal may also, on its own, initiate the process for maintenance

2. Persons protected:

 A senior citizen who is unable to maintain himself based on his own earnings or
property shall have the right to apply to a maintenance tribunal for a monthly
allowance from their child or relative.

 Parents' include biological, adoptive or step parents.

3. Respondent:

 The Act defines 'children' as sons, daughters, grandsons and granddaughters and
'relative' as any legal heir of a childless senior citizen who is in possession of or
would inherit his property upon death. Minors are excluded from both definitions.

 In cases in which more than one relative will inherit the property of a senior citizen,
each relative will be responsible to pay the maintenance fee in proportion to the
property they will inherit.

 This obligation applies to all Indian citizens, including those residing abroad.

4. Remedial Machinery:

 State governments may set up maintenance tribunals in every sub-division to decide

the level of maintenance.

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 The tribunal will be presided over by an officer not below the rank of sub-divisional
officer. The tribunal shall have all the powers of a civil court.

 No civil court shall have jurisdiction in respect of any matter dealing with any
provisions of this Act. If the tribunal is satisfied that the senior citizen is unable to
take care of himself and that there is neglect or refusal of maintenance on the part of
the children or relative, it may order children or relatives to give a monthly
maintenance allowance to the senior citizen.

 The maximum maintenance allowance shall be prescribed by the state government

that may be up to Rs. 10,000 per month.

 The tribunal may order children or relative to make a monthly allowance as interim
maintenance while the application is pending.

 The application shall, as far as possible, be disposed of within 90 days.

 The maintenance allowance shall be payable from either the date of the order or the
application, to be deposited within 30 days of the order.

 A simple interest payment between 5% and 18% on the monthly allowance from the
date of the application may also be required.

 The tribunal may alter the allowance for maintenance on proof of misrepresentation or
mistake of fact or a change in the circumstance of the senior citizen or parent
receiving the monthly payment.

 Any maintenance order made by the tribunal shall have the same force as an order
passed under Chapter IX of the Code of Criminal Procedure, 1973 (CrPC), which also
provides for maintenance of senior citizens. If a senior citizen is entitled for
maintenance under both Acts, he can claim maintenance under only one Act.

5. Appellate Tribunals:

 Appellate tribunals may be established at the district level. The State Government
may establish one appellate tribunal per district to be presided over by an officer not
below the rank of District Magistrate.

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 The appellate tribunal shall try to pronounce its order in writing within one month of
the appeal.

6. Offences and penalties:

 Punishment for not paying the required monthly allowance shall be Rs 5,000 or up to
three months imprisonment or both.

 On failure to comply with the maintenance fee, the tribunal may issue a warrant for
collection within three months of the due date. Should the fee remain unpaid, the
accused may be imprisoned for up to one month or until payment, whichever is
earlier.

 Punishment for abandoning a senior citizen shall include an imprisonment of up to

three months or fine of up to Rs 5,000, or both.

 The tribunal can declare a transfer of property (as gift or otherwise) from a senior
citizen to a transferee as void if the transfer was made under the condition of
maintenance, and the transferee neglects the agreement. A registered voluntary
organization may take action on behalf of the senior citizen if he or she is unable to
enforce these rights.

7. Bar on Representation through Lawyers:

 A party before a maintenance or appellate tribunal shall not be represented by a legal

practitioner. A senior citizen may choose to be represented by the maintenance officer
(a district social welfare officer).

8. Other Related provisions:

 The state government may establish and maintain at least one old age home per
district with a minimum capacity of 150 senior citizens per home. The state
government may also prescribe a scheme for the management of such homes. The
scheme shall specify standards and services to be provided including those required
for medical care and entertainment of residents of these old age homes.

 The state government shall ensure that government hospitals and those funded by the
government provide beds for all senior citizens as far as possible. It shall ensure

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 separate queues for senior citizens, expand facilities for treatment of diseases and
expand research for chronic elderly diseases and aging. Every district hospital shall
also earmark facilities for geriatric patients.

 The state government is responsible for publicizing the provisions, as well as ensuring
that government officers undergo periodic sensitizations and awareness training on
issues relating to the Bill. The district magistrate shall be responsible for
implementing the provisions of the Bill.

The Positive Aspect of the MWPSCA

The act ensures the statutory protection of the right to maintenance including but not at the
cost of perpetual proceedings. It makes the abandonment and neglect of the parents and
citizens, punishable. The childless senior citizens can have the benefit of this act. Further
under Sec 23 of the act, the transfer of property in favor of children or relative may be
canceled if the parents/ senior citizens are not taken care of. the Act provides for maintenance
as well as the establishment of old age homes by the state government and provision for
medical assistance to senior citizens.

Case Laws
 The Hon’ble Bombay High Court in the case of Dattatrey Shivaji Mane v. Lilabai
Shivaji Mane,2018 SCC OnLine Bom 2246 addressed a petition filed under Article
227 of the Constitution of India in regard to an order passed by the Tribunal for
Welfare of Parents and Senior Citizens under the provisions of the Maintenance and
Welfare of Parents and Senior Citizens Act, 2007.

The facts of the case stated that Respondent 1 had prayed for maintenance and
eviction of her son, the petitioner and his family on various grounds for which the
tribunal had passed an order in favor of Respondent 1. The said order of the tribunal
was challenged by the petitioner son.

The contentions of the petitioner were that the order of the tribunal was impugned as
the complaint was against the petitioner and not his son, wife, and daughter but the
tribunal’s order was against all. He also submitted that the entire order is without
jurisdiction as the tribunal has no jurisdiction under Section 4 of the said Act.

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 While giving severity to the facts such as harassment, cruelty and torture being caused
to Respondent 1 by the petitioner and his family, the Court firstly considered the issue
of jurisdiction, for which it placed reliance on Sunny Paul v. State (NCT of
Delhi),2017 SCC OnLine Del 7451 stating that the tribunal has ample of powers to
pass an order of eviction under the provisions of Maintenance and Welfare of Parents
and Senior Citizens Act, 2007. Therefore, by highlighting the essence of Section 4 of
the above-mentioned Act and on weighing the gravity of the issue in the present case,
High Court dismissed the petition on finding no merits and upheld the Tribunal’s
order.

Conclusion

There is no doubt that the MWPSCA is the welfare piece of legislation that can serve
as the instrument of social change but there are some loopholes also which need to e plugged-

1. The definition of senior citizen includes all the persons above the age of 60
years, but such citizens who are not having any property are outside the
purview of this act, this is misguiding.

2. The maintenance order must be just and equitable. Sometimes residing

separately by the parents may not be justified and under this act, the
children/relative is bound to pay maintenance allowance, if it is ordered by the
tribunal even if children/relative is willing to keep them with him.

3. Human judgment is not infallible. Despite all the provisions for a just decision,
mistakes are possible and the act does not provide for the appeal by the
respondent, it is denial of right to fair trial.

4. The act provides for maintenance up to Rs. 10, 0000 that very much higher
than the responsibility undertaken by states under old age pension scheme.

5. Article 41, establishes duty of the state to make effective provision for…old
age, sickness and disablement, and in other cases of undeserved want. But on
the contrary, the state had shifted its responsibility very smartly to the private
persons.

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 6. The establishment of old age homes is not made mandatory by the state. It
depends on the sweet will of the states.

7. By the virtue of this act the parents before the age of 40 even, can be subjected
to maintenance as it burdens the liability on the child who is above the age of
18.

8. The definition of parents does not mirror the definition of children, as it

includes in children, the grandchildren also.

The positive aspect of this act is that there are provisions made for publicity of the act. The
purpose can be achieved by the commitment of the states in this respect. We can sum up with
the observation of Delhi High Court , “Though not directly relevant, the court is mindful that
Parliament enacted the Maintenance and Welfare of Parents and Senior Citizens Act, 2007,
with a view to providing for senior citizens, who are neglected by their children or near
relatives; the enactment provides positive rights of claiming maintenance, (by the senior
citizens) from those relatives who are likely to inherit their property…”

Endnotes

 Bhat P. Ishwara, ‘Law and Social Transformation’, (2009) Eastern Books Company.

 The Maintenance and Welfare of Parents and Senior Citizens Act, 2007, No.56, Acts
of Parliament, 2007 (India).

 John Demos, ‘Changing Images of Family’ (1979) Tufte and B. Myerhoff.

 http//www.pib.nic.in/release/release.asp/relid=18839&kwd=

 Senior Citizens Guide 2005, Helpage India.

 httpttp://www.indiatogether.org/2007/jul/law-seniors.htm

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