26 May 2020 4:59 AM GMT
· INTRODUCTION In the midst of the lockdown, Senior citizens across the country have been confined to their homes to tackle the spread of coronavirus with some of them having no caretakers or means to get essential supplies. To tackle this, many NGOs, social trusts and community welfare groups are doing their bits at different places to support the elderly. ...
In the midst of the lockdown, Senior citizens across the country have been confined to their homes to tackle the spread of coronavirus with some of them having no caretakers or means to get essential supplies. To tackle this, many NGOs, social trusts and community welfare groups are doing their bits at different places to support the elderly.
Under Maintenance and Welfare of Parents and Senior Citizens Act, 2007, maintenance can be claimed by parents, grandparents and senior citizens. The benefit of the Act is available to the father or mother whether biological, adoptive or step father or step mother and also includes Grandparents both maternal and paternal grandparents. Maintenance is defined under Section 2(b) of the Act, 2007 as "maintenance includes provision for food, clothing, residence and medical attendance and treatment."
· HAS SECTION 4 OF SENIOR CITIZENS ACT, 2007 ELABORATED THE CONCEPT OF MAINTENANCE ?
Sec. 4 of the Act identifies the person from whom maintenance can be claimed by the senior citizens and include:- Adult Children in case of Parents and adult grandchildren in case of grandparents, both male and female, are responsible/liable to pay maintenance to parents and grandparents. If in case the parents or senior citizens don't have any children or grandchildren, they can claim maintenance from their relatives ( Those who are in possession of that senior citizen's property or likely to inherit the property of the senior citizen, in proportion to the property inherited). The two prerequisites need to be satisfied for claiming maintenance from relatives are that– the relative must be a major and the relative should have sufficient means to provide maintenance.
· DISTINCTION BETWEEN: MAINTENANCE UNDER SEC 125 OF CRPC AND SENIOR CITIZEN ACT
It is quite clear that the parents or senior citizens cannot opt for both the benefits. If they made the application under Cr.P.C. and thereafter, if they wish to claim the benefits under the Act, then they have to first withdraw the application made under Sec 125 of the Cr.PC. After the withdrawal, the person can file an application before the Maintenance Tribunal under this Act.
The act gives a right to the senior citizens and parents to apply before a maintenance tribunal seeking a monthly allowance from their children or legal heirs. The definition of the Parents is wider in comparison with the benefit provided under the Cr.P.C. the former Act covers even a childless senior citizen can claim maintenance whereas there is no provision under the code. In CrPC, only the Magistrate has the power to decide the case but in the 2007 Act, the power is given to the maintenance tribunal to decide the case. The Application made under the Act,2007 has to be concluded within the specified limited period of 90 days whereas no such provision is there for the Sec 125 application. The senior citizen is barred from appointing an advocate for the application under the Act whereas the application under code the senior citizens are represented by the advocates.
· LAW ON THIS ISSUE HAS BEEN INTRICATELY DEALT WITH BY THE VARIOUS HIGH COURTS:
I) CONCEPT OF MAINTENANCE: IN MILIEU TO OLD SCRIPTURES-
Recently, In the case Uttar Kumar Bhoi v. Smt Surekha Bhoi the Chhattisgarh High Court noted that in view of the well renowned mandate of our scriptures and held that we should respect, serve and worship our parents. The court further observed: "This is a very unique teaching of our tradition. In the Mahabharata, Book 12: Santi Parva, Bhishma said: "... The mother is as the fire-stick with respect to the bodies of all men. She is the panacea for all kinds of calamities. The existence of the mother invests one with protection; the reverse deprives one of all protection. ... There is no shelter (protection against the sun) like the mother. There is no refuge like the mother. There is no defence like the mother. ..For having been the chief cause of his birth, she is his Janani. For having nursed his young limbs into growth, she is called Amva. For bringing forth a child possessed of courage she is called Virasu. For nursing and looking after the son she is called Sura. ..." The court added few texts from numerous scriptures i.e Ramayana and Upanishads.
II) IN RE: OBJECTS AND REASONS OF THE LEGISLATION:
In the case of Dattatrey Shivaji Mane v. Lilabai Shivaji Mane & ors. the Bombay High Court while highlighting the object of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Senior Citizen Act) held that the Act permits a senior citizen including parent who is unable to maintain himself from his earning or out of property owned by him and if such senior citizen is unable to lead a normal life to apply for such relief i.e. eviction under Section 4 of the Act not only against his children but also grandchildren. The court has elucidated the object of the Act: ""Traditional norms and values of the Indian society laid stress on providing care for the elderly. However, due to withering of the joint family system, a large number of elderly are not being looked after by their family. Consequently, many older persons, particularly widowed women are now forced to spend their twilight years all alone and are exposed to emotional neglect and to lack of physical and financial support. This clearly reveals that ageing has become a major social challenge and there is a need to give more attention to the care and protection for the older persons. 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 a need to have simple, inexpensive and speedy provisions to claim maintenance for parents."
The issue further has been discussed in the case of Sunny Paul & Anr. v. State Nct of Delhi & Ors., wherein it was held that that the claim for eviction is maintainable under Section 4 of the said Act read with various other provisions of the said Act by a senior citizen against his children and also the grandchildren. The court further clarified the while interpreting the provisions, object of the Act has to be kept in mind which is to provide simple, inexpensive and speedy remedy to the parents and senior citizens who are in distress, by a summary procedure. Thus, the provisions have to be liberally construed as the primary object is to give social justice to parents and senior citizens.
III) MANDATORY DIRECTIONS BY THE UTTARAKHAND HIGH COURT: REGARDING OLD AGE HOMES:
In the case of Senior Citizen Welfare Organization & another v. State of Uttarakhand & Anr, while recognizing the failure of State to maintain adequate old age homes for the senior citizens in the State has issued a slew of mandatory directions. Some of them are listed below:
a. The State Government is directed to establish old age home in each district of the State of Uttarakhand within a period of six months. It is made clear that it shall be open to the State Government to hire private accommodation, as a temporary measure.
b. . The State Government is also directed to provide balanced nutritious food, two sets of clothes for summer and winters, linen, sufficient number of sweepers for maintaining hygiene and cleanliness in old age homes. The State Government shall also provide separate accommodation for men and women including sufficient potable water, electric fans, coolers/ AC, separate kitchen, dining room, separate bathroom for disabled senior citizens and also to provide wheel chair, television, newspaper and books in old age homes.
c. The senior citizens in case of emergency shall be taken to the nearest hospital for treatment. The cost of conveyance shall be borne by the State Government including the medical expenditure as well as of ambulance. The State Government is further directed to ensure that all the senior citizens in the State of Uttarakhand are provided free treatment including blood test, CT scan, MRI and other tests at Govt. hospitals. The Secretary, Welfare to the State of Uttarakhand shall be personally responsible to implement the orders and monitor the directions issued hereinabove.
IV) CAN PARENTS EVICT THEIR ABUSIVE ADULT CHILDREN FROM THEIR PROPERTY?
In the case of Rajiv Behl v. State, the Delhi High Court held Children can be evicted from any type of property on the grounds of non-maintenance & ill-treatment of the parents and the Gujarat High Court has reiterated the same rule in the case of Shantilal Prajapati v. State of Gujarat In the another case, the High Court has enumerated the rights of Senior Citizen over Immovable Property and Eviction of Abusive Children and directed the respondents to evict their parents' house on the basis of following observations in the case: "Liberal Interpretation of Section 24- That reading of Section 24 would show that it started with opening words "the exposure and abandonment of senior citizen" meaning thereby the entire object is to protect the senior citizen. That in the absence of any express prohibition, it is appropriate to construe the provisions as conferring an implied power on the magistrate to direct the person against whom an application is made under Section 24 of the Act not to harm the senior citizen also. That it is not expected that a senior citizen will run from pillar to post and the assault and abuses would be allowed to be continued in the same house till the petition u/s 24 is decided on merits." The court has further noted that having regard to the object of the Act and the intention of the legislature, there is no reason or justification or indication to restrict the meaning and scope of the word protection.
Amidst the strategies for social transformation, law is the most authentic and formal instrument, but in a country like India, where strong tradition of collectivism and community-initiated ameliorative measures are employed, a bottom-up approach of taking society into confidence is very much required. Gandhism has taught us that social integration and solidarity established through consensus of diverse sections of society go a long way in visualizing and effectuating social transformation. Gandhism does neither denigrate nor glorify the role of law. It tries to strengthen law by infusing the elements of justice, humanism and universalism. The elderly, as a distinctive group of the world population, are entitled to a comfortable and secure environment with their needs addressed. As seniors are not part of productive work force, they are constantly ignored. However, it is important to encourage society to make efforts to help the senior especially when the question is of basic amenities.
 Writ Petition-394 o 2018 (Chhattisgarh High Court) authored by Justice Sanjay K. Agrawal
 Writ Petition- 10611 of 2018 (Bombay High Court) authored by (Justice R.D. Dhanuka)
 CM no.11669 of 2017 (Delhi High Court)
Writ Petition-52 of 2018 (Uttaranchal High Court)
 CM-48157 of 2018 (Delhi High Court- authored by Justice V Kameshwar Rao)
 SCA-9542 of 2017 (Gujarat High Court)
Pramod Ranjankar & Anr. v. Arunashankar & ors CRMP-600 of 2018 (Chhattisgarh High Court- authored by Justice Goutam Bhaduri)
 Bhat Ishwara,Law & Social Transformation in India: Eastern Book Company (Pg . no. 36-38)