This Article looks into the property relationship between the senior citizens and their children. Since property is the bone of contention in most family disputes and since it is also a major sensitive and ticklish issue in family interpersonal relationships, I thought of examining the issue that to what extent the Senior Citizens have a right to evict their children from their property.
Nowadays, in India, elderly people who live with their working children frequently suffer abuse because they are viewed as a drain on the family’s financial resources. Maltreatment of senior citizens can take the form of financial, psychological, or sexual abuse.
The Maintenance and Welfare of Parents and Senior Citizens Act, 2007, the Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009 with amendments, the Delhi Maintenance and Welfare of Parents and Senior Citizens, 2017 with amendments, the Fundamental Rights and Human Rights, Maintenance under Personal Laws, and the Code of Criminal Procedure, 1973, are just a few of the laws that have been passed and put into effect for the safety and security of the elderly.
Since the time of British rule in India, the issue of elder neglect has received an ever-growing range of formal legal responses. By emphasising the Family Support Dimension and Preventive Dimension in both the Indian Penal Code 1860 and the Code of Criminal Procedure1873, the British rule responded to the situation. With its expansive provision of Fundamental Human Rights and the Directive Principles of State Policy, the Indian Constitution represents the next significant development in developing legal responses to the problem of elderly neglect. In addition to the constitutional protections for the elderly in India, personal laws and the code of criminal procedure also provide the elderly with legal protection.
This is a study on the working of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and various other enactments enacted with the objective of welfare of the senior citizens. Everyone around us talks about senior citizen’s right of maintenance from their children. However, there is very little awareness about the right of the senior citizen to evict their children from their property.
The study also goes into the legal dynamics that led the victim/senior citizen to approach the Tribunal to live peacefully in his/her property.
Further, the study goes into the operational dynamics of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, i.e. the various problems faced by the senior citizens, the Maintenance Tribunal, and related personnel including Counsellors in the process of implementation of the Act.
Finally, the study probes into the needed changes that are felt.
Old age of parents is an unstoppable phase in the natural life cycle which every human being has to pass through. It brings along several challenges and different thinking and living patterns which become in conflict with the younger generations. This generation gap raises their possibility of being mistreated and neglected. They are denied proper food and medication by the members of their own family. Sometimes they are forced to sign the property papers, thrown out of their own houses and even disowned by their own children. This gives rise to physical, verbal, financial and psychological abuse, which leaves them in a very helpless situation. This situation can be best viewed through the lens of Routine activity theory of victimisation, according to which the weak circumstances of the victim makes them vulnerable to abuses.
There are various types of elderly abuse including physical abuse, neglect, emotional abuse, financial abuse, sexual abuse, self-neglect, and abandonment. Any of these elder abuse types can be devastating to older people and their families.
In India even today practices such as Thalaikkoothal which means of killing the elderly or senicide in the state of Tamil Nadu. It is mainly practised in some of the southern districts of the state. Even though this practice is illegal in India, this practice is socially and culturally accepted in the state. Early morning the elderly is given an oil bath after which they are made to drink so much of tender coconut water. This cause high fever, renal failure, fits etc and results in the death of the person in one or two days. It also involves the techniques of head massage which lowers the body temperature and subsequently causes heart failure. According to the ‘milk therapy’ technique, the nose of the elderly is plugged and then they are force fed the cow milk leading to difficulty in breathing. In certain cases, poison is used instead of milk.
Old age is the most vulnerable phase of human life cycle. It is at this phase that the elderly requires maximum care and protection. When it comes to India, there was no specific law protecting the rights of senior citizens before 2007. They were able to claim maintenance and protection against physical torture and mental abuses under the umbrella of multiple generic legislations, such as personal laws, Code of Civil Procedure 1908, Indian Penal Code 1860, and the Protection of Women from Domestic Violence Act 2005 and under the Fundamental Rights mentioned under Part III of our Indian Constitution. But after the enactment of the Maintenance and Welfare of Parents and Senior Citizens Act 2007, elderly can now claim protection and maintenance through this single piece of legislation. The lacuna lies in the huge gap which is created between the Act and its practical implementation. By critically analyzing the provisions of the existing legislations and on the basis of empirical data collected from the Tribunal established under the said Act, it has been inferred that the Rights of the Senior Citizens are not taken seriously. Hence, a list of recommendations is proposed which may bring an effective implementation of laws for protecting the basic human rights of the Senior citizens.
The senior citizens face some sort of passive abuse which includes but not limited to, food, clothing, shelter, or medical care, because of failure to understand the person’s needs, lack of awareness of services to help meet needs, or lack of capacity to care for the person.
While the other elderly abuse includes fiduciary abuse. It occurs when one person has been legally entrusted with managing the assets or interests of another, and uses their authority in an illegal or unethical manner for personal gain.
Indian tradition since ancient times is based upon joint family system, which played a very vital role in safeguarding and protecting the elderly from social, physical and psychological abuses. Showing respect and care towards the elderly is a traditional norm and value of our society. But with the emerging trend there has been a shift towards the nuclear family system in recent years. As a result of which senior citizens are getting more exposed to economical physical and emotional abuses. Hence, with the modernization the elderly care by the family is likely to decrease even more in future.
In order to save the elderly people from any kind of abuse the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, was passed as part of the Special Legislations with the objective of the Protection and Welfare of Parents and Senior Citizens. It is the District Magistrate’s responsibility to provide adequate protection to the life and property of Senior Citizen.
It is common knowledge that the plight of senior citizens in our country is deplorable. They are being regularly subjected to harrassment, physical & mental torture and regular abuse at the hands of their very own children. The Government was forced to legislate the Maintenance of Parents & Senior Citizens Act, 2007 to enable the elders to lead a peaceful & honourable life. The Rules to the Senior Citizens Act have also been made to enable easy implementation of the objectives of the Act. However, it is a matter of concern that the desired results have not been achieved. One main reason is lack of due awareness of the Act and the apathy of the administration which was mandated to administer the new law.
Although the Senior Citizens Act does not specifically mention eviction/removal from property, Indian courts, including the Supreme Court, have allowed eviction/removal of children or relatives from senior citizens’ property in cases of harassment or non-maintenance.
The Hon’ble High Court of Punjab and Haryana in the case titled as “Justice Shanti Sarup Dewan, Chief Justice (Retd.) and Anr V/s Union Territory, Chandigarh” held that the children were living with the permission of their parents. Once the permission stands withdrawn, the children are required to move out of the premises to allow their parents to live in peace. Children can reside with the property along with the permission of their parents but once the permissions are dropped from the children they have to vacate from the said premises to leave their parents to have a peaceful life and the senior citizens who are been refused or abused intentionally by their children for the property, they have a right to evict their children under the Special Legislation i.e., Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
The Senior Citizen Act is special legislation to ensure that a summary proceeding is adopted to the benefit of parents and senior citizens so that justice is delivered to them in a quicker and speedy manner.
The objective of the Act is to provide an inexpensive and expeditious procedure for the protection of life and property of senior citizens from legal heirs who expected to maintain parents.
The term “senior citizen” is often used in place of “old person.” Most often, when the term “senior citizens” is used, it refers to individuals who have reached their retirement age or are pensioners. Depending on a country’s retirement policy, the retirement period varies in the workplace.
Senior citizen refers to any person who has attained sixty years of age.
The Indian government provides financial assistance and concessions for senior citizens. There are various public and private areas of society that provide them with guides. India has many laws and authorizations that play a crucial role in protecting senior citizens’ rights.
The right to employment, education, and assistance from the public in certain circumstances are all protected by Article 41 of the Indian Constitution. Article 46 allows for the advancement of the financial and educational interests of those with planned standing, clans, and other more vulnerable groups within society. These articles are meant to be interpreted in a way that makes Article 41 appropriate for senior citizens and Article 46 provides financial and educational benefits for people who belong to more vulnerable groups in society.
The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 make the provision of maintenance and welfare to old parents and senior citizens more effective. This Act makes it legally obliging for adult children and heirs to provide for parents by way of a monthly allowance.
Senior citizens are one of those targeted groups that suffers from atrocities. When the whole world is busy giving importance to the ‘Human Rights’, it is to be noted that these human rights can be claimed from the time even before a person is born and extends till the death of that person. Problem becomes vital when people fail to understand and recognize that these senior citizens are also covered under the canopy of fundamental human rights. This is how they become the ignored population of human beings. In light of this there is a need to understand the following human rights as seen solely from the perspective of the senior citizens.
When the senior citizens become subjected to abuse and neglect, they suffer atrocities to such an extent that it leads to their deaths. Such deaths may or may not be direct. Hence it is important to mention here the controversial issue of euthanasia, which involves an act of killing the older persons so that they don’t suffer from diseases and ailments for a longer period of time. Euthanasia can be both passive and active. Passive Euthanasia can be considered legal to some extent as it only involves the removal or omission of life support equipment’s (which keeps the person alive) and letting him/her die. Whereas, active euthanasia is not recognized by most of the countries and it involves some external methods or an act of intentional painless killing method.
Another aspect which has to be understood in light of ‘Right to life’ is that it does not mean mere human existence. But it includes within its ambit the right to live life with dignity, right to shelter and most importantly right to health.
When it comes to senior citizens, it cannot be clearly stated as to what would constitute ‘inhuman treatment’ and ‘torture’. Vulnerability level is high when it comes to old age rather than other age group of people. For example: if a senior citizen is denied meals for a day, he might suffer some serious health issues than the other age group people, who might not be so seriously affected. Hence the concept of inhuman treatment and torture can be seen from the perspective of abuses which they experience, which includes lack of medical and health care, malnutrition. It can even be abuses of psychological nature such as humiliation and intimidation, sexual abuse or forcibly sending to old age homes etc.
Violation of privacy rights of the senior citizens can be seen in different aspects. At the old age homes or in hospitals the physical privacy of the senior citizens gets violated as they are partially dressed and kept in the open ward. They are even shifted from one ward to another in their half-naked conditions. Their activities are even continuously monitored by cameras.
Sometimes the staff of the old age homes disclose the health and medical records of the senior citizens to their relatives and children which are confidential in nature. This violates their privacy rights. Legal and financial privacy comes into the picture, when a person who is given the responsibility to use the ATM card or manage the finances of the senior citizens for the purpose of assisting and making expenditure on their behalf, ends up misusing such data by committing fraud.
Arbitrary detention mostly takes place when the senior citizens are forced to stay at the old age home against their will despite having a residential home. It cannot be denied that there are legitimate cases and reasons to send them to care homes, but it obstructs their freedom from detention, hence violating their rights. Sometimes in order to curb the voices of the senior citizens who suffer abuses, they are confined or forced to stay at the four walls of the houses so that they have least contact with the outside world, to save the other members of the houses from being defamed.
Right to the family life of an elder would mean the right to stay and enjoy the company of his/her wife/husband, children and grandchildren. Problems arise when they are separated from their family members either because of an ongoing medical treatment in some other city or because the source of earning of the children is situated in some other countries. Sometimes the children adopt the idea of sharing the responsibility of their elderly parents by taking care of just one parent. This causes the separation of elderly couples as in most of the cases their children work in the different city or reside at different locations.
Whenever there are allegations against an old person or if an old person goes on to file a case. It becomes the responsibility of the judicial wing to give fair and speedy hearing to them, by taking into account their age and health factor.
The State shall within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.
The Maintenance and Welfare of Parents and Senior Citizens Act,2007, enacted legislation for the welfare of parents and senior citizens in accordance with the provisions of Article 41 and Entry 23 of the Concurrent List (Schedule VIII) of the Constitution of India.
The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 makes provisions for an improvement in senior citizens’ living conditions as well as the necessary protections to stop them from being mistreated or exploited.
One of the main goals of the Act is to make sure that elderly individuals receive maintenance from their heirs, whether those heirs are children or grandchildren.
There was a provision of this nature in place prior to the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 being passed. Similar protection for parents was provided by Section 125 of the Code of Criminal Procedure, 1973, which mandated that kids take care of their elderly parents. Despite the rights of senior citizens without children, this clause was specifically enforced for the “maintenance of parents.” Children and legal heirs to a parent’s or senior citizen’s property are required to provide for maintenance under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, which was passed by the Government of India specifically for parents and senior citizens. The world dynamics that call for legislation to fulfil the moral obligation of maintaining parents and senior citizens can be corrected by this modified system.
About 89% of senior citizens live with their children. They are facing some tussle over inheritance or division of property. Elders come under intense pressure to either sell off their property or transfer ownership to their sons or daughters and are subjected to various forms of abuse if they refuse.
About 27% of the elders are facing harassment by neighbours. This could be in the form of encroachment or exerting pressure in some way to force them to sell their houses. Such harassment is mostly verbal, in a few cases physical. In one case, an elderly gentleman says his house is pelted with stones by neighbours. Another says they block his parking space deliberately.
About 3% of the elders have reported harassment by builders, construction companies, and corporations who have dumped them in some way over the properties owned by them. Further, there are instances of cheating and fraudulent dealings as well.
Around 3% of the elders are facing harassment over tenants refusing to vacate their properties. Nearly all of them have gone to court and have expressed dissatisfaction. Many older men, about 5%, complained that in the instance of a property tussle, their wives took the side of their sons, and virtually left them to fight their battles alone.
Around 10% of the elders are also being harassed by siblings, grandchildren, nephews, or other family members.
Instances of senior citizens being victimised:
According to the Maintenance and Welfare of Parents and Senior Citizens, 2007, a senior who is mistreated by their children has the right to evict their son or daughter from their home. At most, the children hold the position of a licensee. The licence expires the moment the elderly person tells his children that they must leave the property; as a result, the kids have no legal claim to the property. It would be pertinent to argue that the elderly person has the right to evict his children even if they have not treated him unfairly.
It would be relevant to submit that the Senior citizen has a right to evict his children even if they have not given any ill-treatment towards him. In such circumstances, the courts have held that no proof of any ill-treatment is necessary and that parents do have a right to evict their children whether it’s the son or daughter. That it would also be relevant to submit that the court is not concerned with the fact whether such property of the Senior Citizen is self-acquired or ancestral. Sometimes, the children bring this notion before the court that the senior citizen’s property is ancestral; hence, they have a vested right and cannot be evicted. It would be appropriate here to submit that the court is not considered whether such property is self-acquired or ancestral. The court’s main objective is to protect the senior citizen’s life and let him live peacefully. If the children have an apprehension that such a property is ancestral, then they may approach the civil court to get their share in the property. The scope and intent of the Act are to grant protection to Senior citizens, which also includes protection to their property. That such rights of the Senior citizen can be enforced not only against the children of the Senior citizen but also against any legal heir of the senior citizen. The senior citizen also has a right to evict their daughter in law from their residence if it’s not a shared household. The possession of children will always be in the nature of the licensee. The law is very clear on the eviction of children if the parents do not consent to them staying.
It is well settled that children and their spouses living in the senior citizen’s house are at best “licensees”. It is also stated that the licence comes to an end once the senior citizens are not comfortable with their children and their families.
To compel a senior citizen to approach either a civil court (the jurisdiction of which is any way barred under Section 27 of the 2007 Act) or take recourse to a special Statute like the 2007 Act would in most cases be extremely erroneous and painful for a person in the sunset days of life.
The child is a licensee living on the premises on the basis of concession given by his father to live in the property owned by him. As a licensee, the petitioner is only permitted to enjoy the possession of the property licensed, but without creating any interest in the property. A licence stands terminated the moment the licensor conveys a notice of termination of the licence. There is no vested right of any kind in the licensee to remain in possession of the property licensed.
The High Court of Punjab and Haryana in the case titled as “Justice Shanti Sarup Dewan, Chief Justice(Retd.) and Anr V/s Union Territory, Chandigarh” held that the childrens’ parents had given them permission to live there. The kids must leave the property as soon as the permission is revoked so that their parents can live in peace. The Senior Citizen Act is a special piece of legislation designed to make sure that a summary proceeding is used in parents’ and senior citizens’ favour so that justice is served to them more quickly. The Act’s goal is to offer an affordable and quick procedure for protecting senior citizens’ lives and property from legal heirs who are expected to support their parents.
The High court of Punjab and Haryana in the case of Manmohan Singh vs U.T. Chandigarh and others that the children at most are licensees. The relevant is being reproduced as under:
“…Admittedly, respondent no.3, his wife and children started residing in the house in question with the permission of the petitioner and at the most are licensees. The licence stands terminated the moment the petitioner conveyed the respondents and his family members to termination of the licence.There is no vested right in the licencee(s) to remain in possession of the property of the petitioner. Although petitioner has approached civil court for ejectment of respondent no.3 under the compelling circumstances, may be due to wrong advice. The remedy under the Act is summary in nature and the provisions of the Act have overriding effect qua any other enactment in view of Section 3 of the Act. The jurisdiction of civil court is barred in view of Section 27 of the Act.”
The child is a licensee living in the premises on the basis of concession given by his father to live in the property owned by him. As a licensee, the child was only permitted to enjoy the possession of the property licensed but without creating any interest in the property. A licence stands terminated the moment the licensor conveys a notice of termination of a licence. There is no vested right of any kind in the licensee to remain in possession of the property licensed.
Even though the Senior Citizens Act itself does not permit eviction or removal from property, Indian courts, including the Supreme Court, have allowed it in cases of harassment or neglect of duty.
When kids have turned to intimidating their parents into giving them the property on the grounds that they are the property’s future legal heirs, courts have also ordered removal of kids from the parents’ house. In cases where a child entered into a fraudulent agreement for the transfer of property in order to harass an elderly parent, the eviction or removal of the child from the property has also been upheld.
In Sunny Paul v. State of N.C.T. of Delhi and Ors. the High Court upheld the directions given by the Tribunal for vacating the house of the senior citizen by placing a reliance upon the rule 22(3) of the Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009. Directions were given on the ground that both the sons were harassing, physically assaulting and maltreating their parents. In another case it was also held that the son and daughter- in- law have no right to forcibly enter and stay at the house of the parents against their wishes.
The High Court of Punjab and Haryana in the case titled as “Justice Shanti Sarup Dewan, Chief Justice (Retd.) and Anr V/s Union Territory, Chandigarh” held that the children were living with the permission of their parents. Once the permission stands withdrawn, the children are required to move out of the premises to allow their parents to live in peace. The Senior Citizen Act is special legislation to ensure that a summary proceeding is adopted to the benefit of parents and senior citizens so that justice is delivered to them in a quicker and speedy manner. The objective of the Act is to provide an inexpensive and expeditious procedure for the protection of life and property of senior citizens from legal heirs who expected to maintain parents.
Senior citizen is merely to show that his property needs protection and need not necessarily have to show that he/she needs maintenance or has been ill treated by the son or other legal heir.
The Delhi High Court in the case of Sandeep Gulati vs Divisional Commissioner decided on March 13, 2020 held that a senior citizen has a right to evict his children from the property even if no ill treatment is done.
In any case, Delhi High Court, in its judgement dated 18.07.2018 passed in the case of Smt. Darshna v. Government of NCT of Delhi & Ors., has held that it is apparent from the plain language of Rule 22(3)(1)(i) that a senior citizen is also entitled to evict his son, daughter or legal heir from his property irrespective of whether it is an ancestral or self-acquired property. The scope of the proceedings under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 as also the Rules is to grant protection to the parents, including with respect to their property.
The Delhi High Court in the case of Sachin v. Jhabbu Lal, decided on 24.11.2016 held that “Irrespective of his marital status, a son has no legal right to live in the self-acquired house of his parents and he can reside there only at their “mercy”. Only because parents have allowed him to live in their house as long as their relations are cordial does not mean they have to bear his “burden” throughout his life.”
There is nothing new in the verdict. But it clarifies and reiterates the legal position to the benefit of people who often think that a child has a right to his parents’ property by birth. A Hindu has a right by birth only in ancestral property and not in the self-acquired property of his parents.
Parents can deny family property to negligent children. However, litigation is time consuming and stressful and costly. More so for the elderly and aged, in their sunset years. The executive and government is vested with powers that if applied can provide speedy and cost effective relief and justice to citizens. More so, elderly and aged parents, who are neglected and harassed by their own offspring and children.
Elderly parents can now throw out their abusive and greedy children from their Self-Acquired property.
The application for the eviction is usually filed before the Maintenance Tribunal, in which the presiding officer is usually the District Magistrate. However, sometimes in some districts, such powers can also be practised by the Additional District Magistrate. Therefore, if you’re a senior citizen and would like to evict your Son or Daughter, file an application before the respected Maintenance Tribunal, who will further take cognizance of the matter.
It is high time that other states may also act in such a manner and provide speedy relief to elderly and aged.
Section 3 of the Maintenance and Welfare of Parents and Senior Citizens Rules, 2009 prescribes the Procedure for eviction from property/residential building of Senior Citizen/Parents.
A senior citizen may make an application before the Dy. Commissioner/District Magistrate(DM) of his district for eviction of his son and daughter or legal heir from his self-acquired property on account of his non maintenance and ill-treatment.
The Deputy Commissioner/DM shall immediately forward such application to the concerned Sub Divisional Magistrates for verification of the title of the property and facts of the case within 15 days from the date of receipt of such application.
The Sub Divisional Magistrate shall immediately submit its report to the Deputy Commissioner/DM for final orders within 21 days from the date of receipt of the complaint/application.
The Deputy Commissioner/DM during summary proceedings for the protection of senior citizen parents shall consider all the relevant provisions of the said Act 2007. If the Deputy Commissioner/DM is of opinion that any son or daughter or legal heir of a senior citizen/parents is not maintaining the senior citizen and ill-treating him and yet is occupying the self-acquired property of the senior citizen, and that they should be evicted, the Deputy Commissioner/DM shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause as to why an order of eviction should not be issued against them/him/her.
The Court has the power to issue a mandatory injunction to restrain the son from causing further duress to the parents, including restraining him from entering the premises.
The “Gift” under Maintenance and Welfare of Senior Citizens Act is of Quid Pro Quo Nature which means “something for something”.
We frequently hear or read in the news that kids have abandoned their elderly parents. Because their children don’t want to take on the responsibility of caring for them, many elderly parents are sent to live in old age homes. In some very tragic instances, children have taken their parents’ property as a gift and then ejected them from their homes. In some very tragic instances, children have taken their parents’ property as a gift and then ejected them from their homes.
There are many grounds on which families may choose to make a gift of property from a senior citizen or parent to a child or other relative during the lifetime of the senior citizen. These include:
Can a senior who has given away a property or asset through a gift deed get it back?
The law does not seek to dissuade such gifts, but instead provides a remedy if such gift of property is misused. Senior citizens or parents could consider an express clause (in a deed that gifts or transfers property to a child or heir) that includes a condition that the transferee must provide basic amenities or physical needs to the transferor. Such deeds should preferably be vetted by legal advisors representing the senior citizens or parents.
Under the law, a gift of property once made cannot be revoked unilaterally or at the will of the transferor, unless it has not been made voluntarily (ie, it has been made on account of fraud, coercion or undue influence exercised on the donor).
The Senior Citizens Act deems that a gift or transfer of property by a senior citizen has been made by fraud, coercion or undue influence if such gift or transfer is subject to the condition that the transferee provides basic amenities or physical needs to the transferor and the transferee has failed or refused to provide them. Such a gift or transfer may be declared void by a Maintenance Tribunal (established under the Senior Citizens Act) at the option of the senior citizen, under section 23 of the Senior Citizens Act.
One of the primary ingredients of section 23 is that the gift or transfer is “subject to the condition” that the transferee provides basic amenities or physical needs to the transferor. This has become a highly interpreted clause over the years, with courts differing on whether a gift or transfer deed needs to include an express condition in this regard.
High courts, such as those in Mumbai, Delhi and Punjab, have interpreted section 23(1) liberally. For instance, courts have observed that it is implicit in a transfer deed that has been executed out of love and affection that the transferee would reciprocate such love and affection and provide the transferor with basic amenities and basic physical needs, and, as such, no explicit condition is required in the transfer deed that the transferee must maintain the transferor.
Similarly, when a gift deed has been executed in lieu of services, and for love and affection, it is implied that such services and love from the child would not be a one-time occurrence and that such love and services would continue to be given by the child to the parent even after the gift deed has been executed. In another case, the court observed that where a gift deed is made at the request of the transferee, it is implied that upon transfer of share in the property, the elderly parents would be looked after by the transferee.
This means that, if upon transfer, the transferee refuses to care for the transferor, the transfer deed can be revoked at the option of the transferor. Courts have also observed that if a transferee refuses to provide amenities and physical needs to the transferor when the property was transferred on the implied condition and assurances that the transferee would provide the transferor with basic amenities, then transfer of property would be termed as fraudulent and would be void.
On the other hand, the Kerala and Calcutta High Courts have taken a stricter view and observed that, to invoke revocation under section 23(1), a transfer deed must include an express condition stating that a transferee is required to care for the transferor. The Calcutta High Court observed that, even though the property was gifted out of love and affection, the gift deed did not have an explicit condition seeking basic amenities and physical needs from the transferee, and, as such, it could not be revoked.
From the evolution of this jurisprudence, a common theme that emerges is that courts lean towards balancing the language of the law (which requires a condition) with the need to do justice and protect the rights of the vulnerable elderly. In some cases, certain courts may read the gift deed liberally to include a condition where none exists. However, it is preferable that gift or transfer deeds contain a condition as required under section 23 to avoid the risk of a court declining to provide relief if no such condition is present.
Notably, only a gift or transfer made after the enactment of the Senior Citizens Act is subject to the above provision. Therefore, if a gift or transfer of property was made prior to such time, the Maintenance Tribunal will not have jurisdiction, although the senior citizen may still have a remedy before a civil court for having the gift deed rescinded if it contained a condition that the donee will maintain the donor and such condition is violated.
A senior citizen may gift or transfer property to a child under the Senior Citizens Act on the understanding that the child will meet their basic material needs. If the child does not comply, the senior citizen parent has the right to request that the gift or transfer be declared void because it was thought to have been made fraudulently, coercively, or under undue influence by a Maintenance Tribunal established under the Senior Citizens Act.
Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 states that the transfer of property to be void in certain circumstances.
Firstly, Where any senior citizen who, after the commencement of Senior Citizens 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 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.
Secondly, 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.
Lastly, if any senior citizen is incapable of enforcing the rights action may be taken on his behalf by any of the voluntary associations registered under the Societies Registration Act, 1860.
However, it is noteworthy that gift deed for transfer of immovable property executed by the parents in favour of their children cannot be declared null & void by the Tribunal until and unless such deed contains a clause that the child in whose favour the deed is being executed is liable to maintain their parents and provide them with basic amenities then such cancellation.
In the case of Vinod Anand v. Deputy Commissioner-cum-Appellate Tribunal and Ors. the petitioner, who was a senior citizen, was forced to transfer his property in favour of his son. His son threatened both the elderly parents that he would commit suicide if they don’t execute the transfer deed. The High Court of Punjab and Haryana at Chandigarh held that the property was transferred by taking undue advantage of the age and weaknesses of the petitioner. And the Court allowed the petitioner to enforce his legal right of declaring the transfer void by virtue of the definition ‘otherwise’ under section 23 of the Senior Citizen Act, 2007.
In the case of Promil Tomar and Ors. v. State of Haryana and Ors. the High court upheld the decision of the tribunal in declaring the transfer of possession of the property under section 23(1) as void on the ground that his son and daughter-in-law have assaulted and maltreated them and have also failed to provide the basic amenities and needs to the respondent.
Similar judgement was given by the High Court of Madras (Madurai Bench), whereas per the will the property was supposed to be transferred to a non- relative after the death of the senior citizens. The accused in whose favor the will was executed murdered the senior citizen so as to immediately get the title of the property.
The Kerala High Court, in the matter of Subhashini v. The District Collector and Ors, observed that even though there is a moral component to the law that cannot be the only factor in interpreting a clause that completely annihilates the rights of the transferee. It was also decided that in order for the transferor to invalidate the deed under section 23, the transfer deed must contain a clause requiring the transferee to provide the transferor with certain necessities.
Such a judicial decision undermines the purpose of the Act’s legislation and puts pressure on senior citizens to include such a clause in their transfer deed, which is once more unworkable when drafting a deed for their children or grandchildren. In order to comply with the legislative intent that led to the creation of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, the judiciary has maintained that the interests of senior citizens are of the utmost importance when promulgating its orders.
Courts have been interpreting section 23(1) in a way that keeps the interest of senior citizens in mind in deciding the validity of gift deeds regarding the transfer of property from a senior citizen to their children.
In the case of Ramesh v. Ishwar Devi, the Punjab and Haryana High Court has held that it happens frequently that children abandon their parents’ belongings after receiving them as gifts. When this occurs, Section 23 serves as a deterrent to it, which is advantageous for the elderly who are unable to care for themselves in their final stages of life.
In S. Prashanth Kumar & Ors. v. The Deputy Commissioner, Bangalore Urban District and Ors, the Karnataka High Court held that if there is evidence available to the satisfaction of the authorities that the ingredient of section 23 is satisfied in a given case, the transfer deed may be invalidated under section 23 without the explicit mentioning of the basic amenity clause in the contract.
The Delhi High Court in the matter Smt. Sunita Bhasin v. State of NCT of Delhi and Ors., held that any transfer of property that is made out of genuine love and affection carries the implied promise that the recipient will return the favour and, at the very least, meet the donor’s physical needs. An express clause in the gift deed stating that the transferee will take care of the donor’s basic needs is not required..
The Bombay High Court in the matter of Pritish Natvar Sanghvi v. Natvar Keshavlal Sanghvi & Anr, wherein it was held that the obligation of the children to support their parents if they have given them any property in a gift is implied in the agreement.
The maintenance tribunal can be used to revoke a gift deed. There is a maintenance tribunal in every state where a senior can apply to revoke the gift deed and reclaim their property.
The Additional District Magistrate (ADM) in Delhi serves as the head tribunal official or the presider. The maintenance tribunal is located at the ADM office. According to The Maintenance and Welfare of Parents and Senior Citizens Act of2007, each state has its own regulations. The rules outline the process for requesting redress.
For instance, a senior citizen can request maintenance in Delhi under Rule 5 of the Delhi Government Rules, 2017 under the Act and request relief by having the gift deed revoked in the same application. The tribunal will proceed ex-parte and take the applicant’s evidence if the opposing party (the children or legal heirs) does not respond to a notice after it has been served (senior citizen).
The Delhi government’s 2017 Rules outline the process for removing children or legal heirs from senior citizens’ properties or residential buildings. According to the regulations, a senior citizen may apply to the Deputy Commissioner/District Magistrate (DM) of his district for the eviction of his children or other legal heirs from his self-acquired property due to their neglect and mistreatment.
Additionally, it states that any voluntary organisation registered under the Societies Registration Act 1860 or any other Indian may appeal on behalf of the senior citizen if the parent or senior citizen is unable to file an application or is not in the condition to do so.
A senior citizen must file a declaration request with the court or maintenance tribunal in order to nullify the previous transaction (gift deed). In the event that the grandchild refuses to take care of the senior citizen or does not adhere to the obligations extending to the needs of the senior citizen to lead a normal life, the senior can even apply for the recovery of property and assets from the grandchild.
These parents and senior citizens can apply for the recovery of vacant possession of the property as well as a relief prohibiting the child, grandchild, or other family members of the child’s claimant from entering the senior citizen or parents’ property.
It should be noteworthy that every offence under the Senior Citizen Act is cognizable and subject to bail.
The sum of money a senior citizen must pay to cancel a gift deed and reclaim the property or gift deed is arbitrary. A legal professional or lawyer is not required for the senior citizen to be represented before the Maintenance Tribunal. The costs for obtaining property or assets through the Maintenance Tribunal are extremely low. Furthermore, it depends on state regulations if any stamp duty needs to be paid for reclaiming property.
On the other hand, it depends on the type of attorney you are hiring if you are requesting relief from the High Court.
Article 21 of the Constitution of India guarantees the ‘Right to Life’ which includes the right to live peacefully.
Recently, the Calcutta High Court in the case of Ali Burhan & Anr. v. The State of West Bengal & Ors. observed:
“Given the fact that the petitioner no.1 is a senior citizen and is entitled under Article 21 of the Constitution of India to live in peace in his own house, this Court is inclined to in exercise high prerogative writ jurisdiction under Article 226 of the Constitution of India and directs the Officer-in-charge, Bankura Sadar Police Station to physically escort out the respondent nos.4 and 5, out of the said premises immediately. The petitioners shall be put in possession of their premises to thei exclusive use and residence. The Officer-in-charge, Bankura Sadar Police Station shall also ensure that the respondent nos.4 and 5 do not enter the premises without the written permission of the writ petitioners. A personnel of the police station shall be posted outside the house of the petitioners until the next date.”
In India, daughters are more entitled to their parents but parents in law. They love taking care of their parents yet, with regards to their parents in law, they discover it as an enormous burden on them. At the point when a bride comes to parents in law place after marriage, it becomes troublesome on her part to settle with the principles and guidelines of another spot. In this manner a sensation of disappointment emerges between the parents in law. The girl would be denied to get things done, which she feels like a prevention in her life. There is likewise a harsh connection between the daughter-in-law and in laws. Yet, when the parents-in-law become old and are totally reliant upon the daughter-in-law, the previous occasions reflect. Out of vengeance she hassles them. This circumstance is expanding in India, so to put it in mind certain laws have been made just as amended.
In the case of Darshna v. Govt. of NCT of Delhi Ors. the lacuna of the 2007 Act was taken as a defence by the appellant. She contended that she cannot be asked to vacate the property of the in-laws on the ground of abuse and physical violence under the 2007 Act. The Delhi Maintenance and Welfare of Parents and Senior Citizens (Amendment) Rules 2016 gives permission for eviction of son, daughter or legal heirs, and does not deal with the eviction of daughter-in-law. The High court rejected her contention and held that a “Women cannot stay at in-laws house if she maltreats them.”
The judiciary has been playing an activist role when it comes to the social and welfare aspect of the citizens. Till date majority of the judgments have been passed in favor of the rights of the elderly
In the Indian Society there exists to kinds of suppressed categories of people i.e. Senior Citizens and Daughter-In-Laws.
Keeping mind the legislature has enacted the Maintenance and Welfare of Parents and Senior Citizens Act (Senior Citizens Act) with the objective to provide maintenance support to elderly parents and senior citizens, on the other hand the Domestic Violence Act, 2005, right to reside in a ‘shared household’ or the ‘matrimonial household’ during and after domestic violence proceedings.
It is often asked that in case of a tussle whose rights would prevail – Senior Citizens or Daughter-In-Laws.
The Supreme Court in the case of S. Vanitha v. Deputy Commissioner, Bengaluru Urban District has held that recourse to the summary procedure contemplated by the Senior Citizen Act 2007 was not available for the purpose of facilitating strategies that are designed to defeat the claim of the appellant in respect of a shared household. A shared household would have to be interpreted to include the residence where the appellant had been jointly residing with her husband. Merely because the ownership of the property has been subsequently transferred to her in-laws or that her estranged spouse is now residing separately, is no ground to deprive the appellant of the protection that was envisaged under the PWDV Act 2005.
The Gujarat High Court in the case of Jagdeepbhai Chandulal Patel v/s Reshma Ruchin Patel has ruled that the Senior Citizens Act will not override the Protection of Women from Domestic Violence Act. The court held that the respondent wife, under the provisions of the Domestic Violence Act, has the right to reside in a shared household and added that merely an offer being made to provide another suitable accommodation, cannot snatch away the legitimate right of the respondent wife of the shared household.
The Delhi High Court in the case of Vinay Verma Vs. Kanika Pasricha attempted to address the lack of clarity in the two Acts by issuing six broad guidelines which are as follows:
Section 36 of the DV Act 2005 stipulates that the provisions of the Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force. This is intended to ensure that the remedies provided under the enactment are in addition to other remedies and do not displace them. The Senior Citizens Act 2007 is undoubtedly a later Act and Section 3 stipulates that its provisions will have effect, notwithstanding anything inconsistent contained in any other enactment. However, the provisions of Section 3 of the Senior Citizens Act 2007 giving it overriding force and effect, would not by themselves be conclusive of an intent to deprive a woman who claims a right in a shared household, as under the DV Act 2005. The Principles of statutory interpretation dictate that in the event of two special acts containing non obstante clauses, the later law shall typically prevail.
The Senior Citizen’s Act 2007 contains a non obstante clause. However, in the event of a conflict between special acts, the dominant purpose of both statutes would have to be analysed to ascertain which one should prevail over the other. The primary effort of the interpreter must be to harmonise, not excise. Hence, Section 36 of the Domestic Violence Act 2005, albeit not in the nature of a non obstante clause, has to be construed harmoniously with the non obstante clause in Section 3 of the Senior Citizens Act 2007 that operates in a separate field.
Article 25 of the Universal Declaration of Human Rights mentions every person who is subjected to unemployment, sickness, disability, widowhood, old age.
Article 25 of UDHR says that: –
1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, and housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
There are certain laws enacted to protect elderly persons from cruelty, ill-treatment and harassment.
Article 41 of the Constitution of India provides provision for the betterment of old aged people. According to this article, the state is entitled to provide public assistance in the matter of old people under its economic capacity.
Article 21 of the Constitution of India which talks about fundamental Right to life and Personal Liberty inherently contains the right to live Life with dignity. This right includes basic rights to food, shelter, clothing and decent standard of living for every citizen of India. Hence it cannot be denied that an older person also forms part of the human population and therefore has the right to quality life and dignity.
In early 1973, there was no provision laid down by the Code of Criminal Procedure for the maintenance of parents. But, in the year 1973, Section 125 of the Code of Criminal Procedure was embedded for giving maintenance to parents. Under this section, the parent needs to set up the way that the individual has been dismissed by their children or the individual is denied maintenance.
The Code of Criminal Procedure, 1973 is mainstream law, subsequently it is material to people having a place with any religion or local area. Under this Section, hitched girls are even liable for giving maintenance to their parents.
The Ministry of Law and Justice drafted a legislature named ‘The Maintenance and Welfare of Parents and Senior Citizens Act’, and it was published on December 31, 2007, in the wake of getting the consent of the President on December 29, 2007.
A recent concept of ‘Reverse Mortgage Scheme 2008’ was introduced by the National Housing Bank (NHB) for senior citizens in the 2007 budget speech. This scheme provides benefits to the Senior Citizen. Under this, the senior citizens who are the homeowners can mortgage their property to the financial institutions and receive periodical payments from the bank for their daily means of livelihood. And after the death of the senior citizen the property can be transferred in the hands of the children and their family or legal heirs. The amount received as collateral is not taxable as it is considered as a loan amount. Compared to other countries, this scheme has not been so successful in India because the senior citizens are so attached to their ancestral family house that they are not ready to mortgage it. As a part of Indian culture, they consider it as a family asset which is intended to be inherited by the future generations. The other reasons for failure of this scheme are lack of awareness, lengthy and tedious documentation procedure etc.
In this case, a petition was documented before the Bombay High Court under Article 227 of the Indian Constitution against the order of the Tribunal for the government assistance of parents and senior citizens. In this case, the respondent is the mother of the Petitioner documented the case against the petitioner and his wife for attacking her. Before the tribunal, she pleads for the maintenance and eviction of the petitioner and his wife from the apartment which has a place with respondent 1 only. Tribunal passed its order in the blessings of respondents and ordered the eviction of the petitioner and his wife.
Whether the tribunal has jurisdiction to pass the order of eviction of the petitioner under section 4 of the Senior Citizen Act.
It was contended that the tribunal has no purview under section 4 of the Senior Citizen Act to pass the order of eviction of the petitioner and his wife.
It was likewise contended that the respondent can keep up with herself. Furthermore, consequently she could look for alleviation against the petitioner under section 4 of the Senior Citizen Act.
It was contended that respondent 1 doesn’t have a significant kind of revenue to keep up with herself It was additionally contended that the tribunal has sufficient ability to pass the order of eviction under section 4 of the Act.
In this case, the Bombay High Court that the tribunal has jurisdiction to pass an order of eviction under section 4 of the Senior Citizen Act.
The suit was filed by respondent No.1, Sh.Jhabbu Lal and respondent No.2, Smt.Raj Devi pleading that they are senior citizens residing on ground floor in House No.RZ-H-81, Gali No.4, Nihal Vihar, Nangloi, Delhi-110041 and construction on the said plot has been raised upto second floor. Their elder son Sanjay along with his wife Mamta was permitted to live on the second floor whereas the younger son Sachin along with his wife Neetu was permitted to live on the first floor of the said property out of love and affection for their sons. The parents of the appellant claimed themselves to be owner of the suit property which was self-acquired. It was further pleaded by the parents of the appellants that their sons as well their wives made the life hell for them so much so that they were not even paying the electricity bills. The old parents were constrained to make various complaints to the police and also issued public notice on 5th January, 2007 and 17th May, 2012 disowning their sons and debarring them from their self-acquired property. It was also pleaded that said property was purchased by them by selling their earlier property being RZ-H-215A, Nihal Vihar, Laxmi Park, Nangloi, Delhi-110041. Since the behaviour of the two sons and their wives became unbearable, they filed a suit seeking a decree of mandatory injunction directing them to vacate the floors in their possession and also to restrain them from creating any third party interest in the said property.
Whether the plaintiff/senior citizens were entitled to relief of mandatory and permanent injunction as prayed?
The Delhi High Court has held that where the house is the self-acquired house of the parents, son whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout his life.
The appellant No.1 aged about 85 years is a retired Chief Justice of this Court while appellant No.2 is his wife aged about 74 years. The appellants have three progenies, one son and two daughters. The appellants’ elder son Suvir Dewan, aged about 49 years, a practicing Advocate, has been impleaded as respondent No. 7 herein. Suvir Dewan is married and has one daughter Shaina Dewan. The daughter of the appellant, Joshita Budhraj is married to one Shri Sanjay Sen Budhraj having a daughter, namely, Nikita Budhraj. Their abode is Amritsar but they come to Chandigarh occasionally. Shri Sanjay Sen Budhraj is stated to be working in Punjab Council for Citrus and Agri. Juicing in Punjab and staying in a rented accommodation and Nikita Budhraj is staying with the appellants while pursuing her M.C.A. from Panjab University, Chandigarh. Third child of the appellants, namely, Sabina Grewal is married to Shri Harpreet Singh Grewal with a male child Udey Veer living in Auckland, Newzealand.
The cause of the dispute, as it often happens, is a property being House No. 642, Sector 11-B, Chandigarh, measuring 500 Sq. Yards, stated to have been purchased by appellant vide a Conveyance Deed dated 29.03.1962 in his own name. The Occupation Certificate was subsequently issued on 14.02.1967 by the Estate Officer (Capital Project), Chandigarh. It is the case of appellant that in the year 1980 he withdrew Rs. 20,000 from his G.P.Fund to make additions and alterations in that house and a fresh Occupation Certificate was thereafter issued on 11.09.1990.
In true Indian tradition where the worry of the parents often is to ensure financial stability for their progenies, the appellant bought a plot No. 694, Sector 6, Panchkula for the benefit of his son. The plot was transferred from appellant to respondent vide re-allotment letter. Respondent was stated to have sold the plot to Smt. Raj Rani vide letter dated 07.11.1991 and from the proceeds purchased a shamlat plot No. 1016, Sector 2, Panchkula, measuring 350 sq. yards while utilising the balance amount for construction on that plot. However, respondent No. 7 continues to live with the appellants in their house in Sector 11, Chandigarh.
It is quite apparent that relationships between the appellants and their son respondent No. 7 became strained. Infact, the relationship is very strained with the whole family of respondent. Suffice to say that the case of the appellants is that they want to reside in their own house and would like respondent No. 7 and his family to stay in their own house at Panchkula.
The grievance of the appellants is that his daughters are not allowed to peacefully stay or enter the house making it difficult and humiliating experience with the appellants to interact with their daughters and their family. It is to prevent such incidents that the appellants are seeking protection under the “Maintenance & Welfare of Parents & Senior Citizens Act, 2007 (hereinafter referred to as the said Act). The appellants have made it clear that they do not want any maintenance from their son i.e. respondent no.
It was stated that the appellants have no other efficacious remedy on account of failure of respondents No.1 to 6 to make appropriate arrangements under the said Act for protection of the persons like the appellants.
The High Court of Punjab and Haryana held that the children were living with the permission of their parents. Once the permission stands withdrawn, the children are required to move out of the premises to allow their parents to live in peace. The Senior Citizen Act is special legislation to ensure that a summary proceeding is adopted to the benefit of parents and senior citizens so that justice is delivered to them in a quicker and speedy manner. The objective of the Act is to provide an inexpensive and expeditious procedure for the protection of life and property of senior citizens from legal heirs who expected to maintain parents.
The senior citizens of 77 years of age were residing in their own property at School Danga, Post Office and Police Station and District Bankura. The son and the daughter-in-law of the senior citizens were living with them. The senior citizens were not comfortable and did not feel safe as long as their son and the daughter-in-law were living with them. The senior citizens did not want their son and the daughter-in-law to live in the premises.
The court noted that the petitioner was a senior citizen and is entitled under Article 21 of the Constitution of India to live in peace in his own house. The Court was inclined to in exercise high prerogative writ jurisdiction under Article 226 of the Constitution of India and directed the Officer-in-charge, Bankura Sadar Police Station to physically escort out the respondents namely son and the daughter-in-law, out of the premises immediately.
The petitioners shall be put in possession of their premises to their exclusive use and residence. The Officer-in-charge, Bankura Sadar Police Station shall also ensure that the son and the daughter-in-law do not enter the premises without the written permission of the writ petitioners. A personnel of the police station shall be posted outside the house of the petitioners until the next date.
The petitions were filed to challenge the order passed by the Appellate Tribunal under the provisions of the Delhi Maintenance and Welfare of Parents and Senior Citizens, Rules, 2009 as amended from time to time in appeal ordering eviction of the petitioners from house bearing No.C-117, East of Kailash, New Delhi.
The primary contentions of the learned counsels for the petitioner(s) is that the suit property does not belong exclusively to the respondent nos.2 and 3 but is a Hindu Undivided Family (HUF) property, wherein the petitioner also has a share being a co-parcenar.
The counsels for the petitioner(s) also argued that there was no proof of any ill-treatment of the respondent by the petitioners. The respondent have taken out various proceedings including filing of civil suit as also filing of the criminal complaint against the petitioner, however, the same remained unsubstantiated and, in fact, Closure Reports have been filed in the complaints filed by the respondent.
The Delhi High Court has held that a senior citizen has a right to evict his children from the property even if no ill treatment is done.
The court stated that in the plain language of Rule 22(3)(1)(i) that a senior citizen is also entitled to evict his son, daughter or legal heir from his property irrespective of whether it is an ancestral or self-acquired property……..
The scope of the proceedings under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 as also the Rules is to grant protection to the parents, including with respect to their property.
The scope of this Act is not to punish the children and therefore, once it is established that the children have no right over the property of the parents, the fact that the parents do not wish to have their children staying with them is enough for invoking the Act and the Rules.
A senior citizen is merely to show that his property needs protection and need not necessarily have to show that he/she needs maintenance or has been ill-treated by the son or other legal heir.
The petitioners have challenged the constitutional validity of Section 17 of the Maintenance Act, alleging to be in violation of Section 30 of the Advocates Act, 1961 in so far as it prevents Petitioner, who is a Lawyer representing senior citizen before the Maintenance Tribunal. Section 17 of the Maintenance Act is also unconstitutional on account of being violative of Article 19(1) (g) of the Constitution of India.
The senior citizen has engaged petitioner as her Counsel in relation to a complaint filed under the Maintenance Act before the Maintenance Tribunal. The petitioner was denied entry by the Maintenance Tribunal citing Section 17 of the Maintenance Act.
The petitioner relied upon the judgment passed by the Kerala High Court in Adv. K.G. Suresh v. Union of India. The Kerala High Court has declared Section 17 of the Maintenance Act as ultra vires to Section 30 of the Advocates Act, 1961.
The petitioner that they would be satisfied if a party before the Maintenance Tribunal is permitted to have legal representation and if such right is permitted, they do not wish to challenge the constitutional vires of Section 17 of the Maintenance Act.
Government Initiative: Reverse Mortgage Scheme
Reverse Mortgage Loan provides an additional source of income for senior citizens of India, who have a self-acquired or self-occupied home in India. This product is beneficial for senior citizens who do not have adequate income to support themselves. The Bank makes payments to the borrower /borrowers (in case of living spouse), against mortgage of his / their residential house property. The borrower is not expected to service the loan during his lifetime.
As per Section 17 of the Maintenance of Parents and Senior Citizen Act, 2007, no party to a proceeding before a Tribunal or Appellate Tribunal shall be represented by a legal practitioner so that easy, affordable and less time consuming justice may be made accessible to the senior citizens.
As per Section 30 of the Advocates Act every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends, in all courts including the Supreme Court; before any tribunal or person legally authorised to take evidence; and before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.
The Delhi High Court has held that Section 17 of Senior Citizen Act would not come in the way of legal representation on behalf of the parties before the Maintenance Tribunal.
The division bench of Justice Vibhu Bakhru and Justice Amit Mahajan has relied on the decision of Punjab & Haryana High Court in the case of Paramjit Kumar Saroya and Ors v. The Union of India & Ors. The court requested the Central Government to have a re-look into the provisions of the said Act in view of our observations aforesaid, moreso in the context of Section 30 of the Advocates Act. The right to appeal is conferred on a party aggrieved under Section 16 of the said Act.
“We are in agreement with the view taken by the Punjab & Haryana High Court and direct that Section 17 would not come in the way of legal representation on behalf of the parties before the Maintenance Tribunal,” the court said.
With the changing dynamics of the society, the Parliament has introduced the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 with the objective to protect the interest of the old age citizens. However, this Act has a few lacunas which can be overcomed namely:
The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 lacks provision which provides penalties for abuses committed against the elderly.
The Government shall establish punishments in accordance to law for:
For instance, a person who is employed in government bodies against whom complaints are received they will be suspended with immediate effect, until the pendency of the complaint, and if the disobedient children are found guilty, then the same will be considered as a ground of moral turpitude from dismissal of service. So that they will be stopped from taking advantage of adjournment on the ground that they are not getting the sanctioned leave to attend the hearing as well as it will be beneficial in the sense that the practice of delaying will be curbed.
In India the norm of eviction of children from the property of their parents has been established by the precedents and there is no expressed provision. There must be an expressed provision which states that the elderly have the right to maintain control over, to continue making decisions about, and dispose of property, financial affairs, and personal effects in accordance to law.
The Senior Citizens Act, 2007 does not defines elderly abuse as a single or repeated, or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to a senior citizen.
To compel a senior citizen to approach either a civil court (the jurisdiction of which is any way barred under Section 27 of the 2007 Act) or take recourse to a special Statute like the 2007 Act would in most cases be extremely erroneous and painful for a person in the sunset days of life. Legal problems which follow pressures and fear of following offences being faced during the prolonged legal proceedings resulting in mental Harassment, Defamation, Assault, Criminal intimidation, wrongful restraint, Breach of trust, fraud, mischief, nuisance, criminal misappropriation.
If a senior citizen proceeds to take his property back from a disobedient son and daughter, then Daughter-in law misuse the provisions of Domestic Violence Act, Wrongfully removing and disposing the property of the senior citizens, illiteracy towards their rights are among the other problems.
The senior citizens are most of the time not aware about their rights and they end up suffering. The government must establish the policy or institutions in the form of legal aid toward the senior citizens so that the elderly people are made aware about their rights.
One of the hurdles observed is the lack of awareness among the general public regarding the existence of such a tribunal, measures like frequent awareness campaigns, free circulation of literacy booklets to households can help overcome the ignorance.
There is a strict need for the government to establish a separate eviction tribunal so as to ease the time consuming procedure and make the resolving of the cases faster and effective.
Under Section 22(2) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 the State Government is empowered to draft an action plan for ensuring the safety of life and property of the senior citizens in their respective States.
It is suggested that the Act be amended to empower the Tribunals to order eviction in cases where the ownership of the property is indisputable with the senior citizens.
To provide justice efficiently and rapidly, the Tribunal created under the Act should be presided over only by a legal practitioner, preferably a retired judge, as they are better prepared for the job.
In order to scrutinise the cases which may be frivolous in nature, the workforce of the tribunal can be diligently utilised to devise a mechanism to filter application at the preliminary stage.
The Maintenance and Welfare of the parents and senior citizens Act, 2007 empowered the tribunal with certain Suo Motto Cognizance which is rarely used by the tribunal.
Considering the Fact that The Maintenance and Welfare of the parents and senior citizens Act, 2007, is a special legislation enacted to be a litigant-friendly forum; but it was deduced through the observation that almost all the representations were made through the Advocates. Therefore, it is suggested that according to the Act to encourage the Senior Citizen/ Parents to be their own representatives.
The Provision in the Act mandates the disposal of the petitions is done within 90 days, from the date of service of notice this provision is specifically included to secure speedy remedy. The effective implementation of the section is needed to ensure that the grievances of the senior citizens and parents are addressed at the earliest and they are not harassed with repetitive adjournments.
It is necessary that the Presiding officer is not overburdened with multiple administrative duties. The research clearly shows that currently the Presiding officer is adjudicating over six different forums and hence hears matters regarding this Act only once during the week on Wednesdays which has led to a backlog of cases.
Under section 6(6) of the Act, the Tribunal is empowered to refer the dispute to the Conciliation Officer who shall in turn strive to settle the matter amicably through mutual conciliation. Making use of the said provision the conciliation officer should actively encourage the parties to settle the disputes in a harmonious way.
Even after the advent of the scheme ‘Digital India’, the tribunal fails to incorporate an online portal. It is suggested that an exclusive online portal be set up which would rely the information like daily cause list, orders, etc., for the benefit of the parties, advocates, and other academic purposes.
Hindi Cinema can play an active role by showing this evil in cinemas like in Movie: Baghban Directed by: Ravi Chopra, Produced by: B.R. Chopra, Starcast: Salman Khan, Amitabh Bachchan, Hema Malini. This movie narrates a tale of a family where the parents (Amitabh and Hema) sacrifice everything to nurture their four children, only to be left uncared for when they grow old.
In a nutshell, there is a need to immediately address the old age problems with due care and diligence. Our Constitution can be amended to add a specific provision for the protection of senior citizens and subsequently bring it within the umbrella of a fundamental right. This will impose a constitutional duty upon the State to undertake measures for the protection and welfare of the citizens above the age of sixty years. We are well aware of the fact that India is a country with an abundance of laws, but the problem lies in their implementation. The same goes with the Maintenance and Welfare of Parents and Senior Citizen Act, 2007.
Through this research paper we have reached the conclusion that this existing law is not a complete law and requires revision and consideration in order to make it efficient and viable so that the elderly population of India like every other citizen also has their fundamental rights that are protected. In addition to this as a sense of social responsibility it is the duty of every individual to prevent the Indian value of considering parents as mortal Gods, from being eroded away.