January 6, 2024

Legal rights of elders: Maintenance and Inheritance

This Article is written by Mr. JAGRIT SINGLA, student of BABA FARID LAW COLLEGE, FARIDKOT. 

Abstract: 

This article explores the legal rights of elders in India concerning maintenance and inheritance. Focused on the Maintenance and Welfare of Parents and Senior Citizens Act, 2007; it delves into the obligations placed on adult children, the determination of monthly allowances, and the broader protective measure against neglect. In the realm of inheritance, it navigates through key legislation like the Hindu Succession Act,1956 outlining equal distribution principles and the testamentary freedom of elders. Other legal rights are also highlighted, underscoring the importance of understanding and upholding the rights for well-being and dignity of elders in India.

Introduction:

As societies age, understanding and safeguarding the legal rights of elders becomes increasingly crucial. Two fundamental aspects that demand attention in respect of legal rights are maintenance and inheritance. Old parents are being neglected by their children and forced to live a meaningless and painful life either in old age homes or in their own home alone, due to which they suffer from poverty, loneliness, neglect, and abuse, etc. Maintenance rights often involves financial support from family members, while inheritance rights pertain to the distribution of assets after death. 

In India, the legal rights of elders regarding maintenance are primarily governed by the “Maintenance and Welfare of Parents and Senior Citizens Act, 2007”. The elderly persons are not aware of their rights guaranteed not only by the Constitution but also by the provisions of MWP Act because in one hand problems of parents and senior citizens are growing day by day, in other hand there are a few reported cases of Supreme Court and High Courts. The problems related to the senior citizens is a matter of concern and the elderly must be aware of their legal rights.

Legal Rights of Elders related to Maintenance and Inheritance: 

In the diverse tapestry of India, the elderly population holds a revered place, and their rights, particularly in matters of maintenance and inheritance, are safeguarded by a nuanced legal framework. The legal rights of elders related to their maintenance and inheritance are discussed below: – 

Maintenance: 

Maintenance includes provision for food, clothing, residence, medical attendance, and treatment. A senior citizen including parent who is unable to maintain himself from his own property owned by him, is entitled to get relief under Maintenance and Welfare of Parents and Senior Citizens Act, 2007. Children/grand children are under obligation to maintain his or her parent either father, mother, or both. If such children or relative is not maintaining his parents/senior citizen can seek the assistance of Tribunal constituted under the said Act, to enforce the remedy of maintenance. 

Maintenance Rights: 

  • Maintenance under Maintenance and Welfare of Parents and Senior Citizens Act, 2007: The Act provides the following rights to elders-
  • Children’s Responsibility: Adult children and adult grandchildren including sons and daughters, have a legal obligation to provide maintenance to their parents who are unable to maintain themselves. Senior citizens who do not have children or grandchildren can claim maintenance from a relative who is either possessing their property or who will inherent their property of the senior citizen after his death.
  • Maintenance Tribunal: The Act establishes Tribunals to address and adjudicate disputes related to the maintenance of senior citizens. The senior citizens can file an application before the Tribunal, claiming maintenance and other reliefs from their children/relatives, as the case may be. The Tribunal can also take Suo Motu cognizance of the case.
  • Monthly Allowance: Parents have the right to claim a monthly allowance from their children, which is determined by the Tribunal based on factors such as the needs of the senior citizen and the financial capacity of the children. The Tribunal has the power to levy interest on the maintenance amount, which shall not be less than 5% and greater than 18%.
  • Enforcement Mechanisms: Maintenance orders issued by the Tribunal can be enforced as decrees of a civil court, ensuring compliance by the children. If the children fail to comply with the orders of Tribunal without sufficient cause, the Tribunal may issue warrant for levying the due amount from them in the manner levying fees and can also sentence the erring respondent to imprisonment that may extend to 1 month or until the payment made, whichever is earlier.   
  • Spousal Maintenance: The spouses also have the maintenance rights, ensuring financial support in cases where one spouse is unable to maintain/sustain themselves. Thus, the elders have the right to claim maintenance not only from their children, but a from their spouse also, if he/she cannot maintain himself/herself.
  • Right to Residence: In certain circumstances, senior citizens have the right to seek a maintenance order that includes the right to live in a separate residence.
  • Revision Allowance: The Tribunal has the power to revise the allowance if there is a change in the circumstances of either the senior citizen or the children. The maintenance is based on various factors such as the need of senior citizen and the financial capacity of the children. The Tribunal determines the quantum of monthly maintenance which should be given to the elders by their children/relatives.
  • Protection against Neglect:  The elders also have the right of welfare. Beyond financial support, the Act aims to protect elders from neglect, abuse, and abandonment, providing a comprehensive approach to their welfare.

#Case: In, “Ramesh” vs. “Ishwar Devi and Ors,” the Punjab and Haryana High Court emphasized that the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 aims to promote a decent existence for the senior citizen and that it serves as a disincentive to circumstances when children just disregard and leave their elderly parents despite obtaining their wealth.

#Case: “Sunny Paul and Anr.” Vs. “State NCT of Delhi,” in this case, it was held that the principal goal of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 would be to safeguard elderly parents’ lives, welfare, and property. It also said that in circumstances of parental abuse, adults can be ejected from their parent’s properties.

Maintenance under the Personal Laws in India: 

In India, the maintenance to elderly is also provided under the different personal laws, which is discussed below briefly: –

  • Hindu Law:

Hindu Adoption and Maintenance Act, 1956: The Hindu Adoption and Maintenance Act, 1956 provides the provision for the maintenance of parents. Under this Act, both the son and daughter have the obligation to maintain their elderly parents. Section 20 of the Act provides “Maintenance of children and aged parents.” Section 20(3) specifically provides that, it is the obligation of a person to maintain his or her aged or infirm parents or a daughter who is unmarried extends in so far as the parent or unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property. It is the obligation of the child to maintain old parents or infirm parents, whether legitimate or illegitimate.

  • Muslim Law: 

Children have the duty to maintain their elderly parents even under the Muslim law. Both sons and daughters have the duty to maintain their parents under the Muslim Law. The obligation is however, dependent on their means of earning. According to Mulla: –

  1. A son is bound to maintain his mother, if the mother is poor, though she may not be infirm.
  2. Children in easy circumstances are bound to maintain their poor parents, although the latter may be able to earn something for themselves.
  3. A son, who though poor, is earning something, is bound to support his father who earns nothing.
  • Christian and Parsi Law:

The Christian and Parsi Laws do not specifically provide the provisions related to the maintenance of the elders. Parents who eish to seek the maintenance have to apply under the provisions of the Criminal Procedure Code, 1973.

 Maintenance under Criminal Procedure Code, 1973: Section 125 of CrPC provides the “Orders for maintenance of wives, children and parents.” It states that, if any person having sufficient means; neglect or refuses to maintain his father or mother, who is unable to maintain himself or herself; then a Magistrate may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of such father or mother, at such monthly rate as such Magistrate may from time to time direct.

#Case: In, “Santosh Surendra Patil” vs. “Surendra Narasgonda Patil” (2017), the Hon’ble Court stated that, maintenance of parents by their children is contemplated under Section 20 of the Hindu Adoption and Maintenance Act, 1956. There is similar provision under the Muslim Law. However, these provisions were only moral obligations. In the Code of Criminal Procedure, 1973 a provision was introduced wherein elderly persons could approach Court seeking maintenance under Section 125 of CrPC, and the Court must consider that there should be sufficient material to indicate that the children have neglected to maintain their elderly parents, who cannot maintain themselves. 

 

Inheritance: 

Inheritance is the practice of receiving private property, titles, entitlements, privilege, rights, and obligations upon the death of an individual. The rules of inheritance differ among societies and have changed over time. Officially bequeathing private property and/or debts can be performed by a testator via will, as attested by a notary or by other lawful means.

Inheritance Rights:

In India, the inheritance rights of elders are governed by various personal laws based on religion, as well as secular laws for those who do not fall under specific religious categories. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 also provides legal rights to the elders regarding their property. Before the enactment of the Act, the elders can only claim the maintenance from their children to whom he had given the property, but  after the enactment, the senior citizen can reclaim his property from the transferee, if the transferee fails to maintain his parents.

Some other legal rights of the elders are discussed below briefly: – 

  • Maintenance and Welfare of Parents and Senior Citizens Act, 2007: The Act also provides that, abandoning a senior citizen in any place by a person who is having the care or protection of such senior citizen is a criminal offence and such person shall be punishable with the imprisonment which may extend to three months or fine which may extend to five thousand rupees or both.

 

#Case: In, “Shabeen Martin and Others” vs. “Muriel and Others,” the Kerela High Court ruled that, under the terms of the 2007 Act, an elderly person’s estate transfers are reversible if the transfer does not include an express provision declaring that the transferee shall do so.

  • Hindu Succession Act, 1956: The Act provides the following some of the rights:
  • Equal Distribution: The Hindu Succession Act applies to Hindus, Buddhists, Jains, and Sikhs. It mandates equal distribution of the deceased’s property among heirs, including children and surviving spouses.
  • Right to Will: Elders have the right to create a ‘Will’ and bequeath their property as per their wishes, subject to certain legal requirements.
  • Class I and Class II Heirs: If there is no Will, the property is distributed among Class I heirs, which include sons, daughters, and the surviving spouse. If there are no Class I heirs, it goes to Class II heirs, such as parents and siblings. 
  • Muslim Personal Law: The Muslim Law also provides the following:
  1. Testamentary Freedom: Under the Muslim law, a person has the right to distribute only one-third of their property through a Will. The remaining two-thirds are distributed according to the rules of inheritance.
  2. Heirs: In the absence of a Will, the property is distributed among legal heirs, including children, spouses, parents, and other relatives.
  • Christian Law: If there is no Will, the property is distributed among the legal heirs based on the “Christian Succession Act”, which includes spouses, children, and other relatives.
  • Parsi Law: In the absence of a Will, the property is distributed among the legal heirs, including spouses, children, and other relatives.
  • Indian Succession Act, 1925: The persons who do not got covered under the personal laws, the Indian Succession Act applies. It provides rules for testamentary succession (through a Will) and the intestate succession (without a Will). Elders irrespective of religion, have the right to create a Will and specify the distribution of their property.

 

Other Rights of Elders: 

The elders not only have the maintenance and inheritance or testamentary rights, but also have some other legal rights, such as: –

  • Old Age Homes: “Maintenance and Welfare of Parents and Senior Citizens Act, 2007,” provides that the State Government may establish old age homes at least one in one district to accommodate indigent senior citizens.
  • Medical Care: The elders also have the right of proper medical facility. The State Government may also ensure that proper medical care or treatment is provided to the senior citizens.
  • Legal Aid: Elders facing challenges in asserting their rights have access to get the free legal aid services as provided under Article 39A of the “Indian Constitution,” ensuring that justice is given to every person which emphasizes that justice cannot be denied to the citizens by reason of economic or other disability.
  • Concessional Air/Rail Fares: The Government of India provides various schemes to the elders related to the concessional air and rail fares for traveling within and between cities, viz. 30% discount in train and 50% in Indian airlines, etc.
  • Pension Schemes: The Government also set up pension schemes for the elders which ensures the security for those persons who have been serving in the unorganized sector and who does not have enough resources to maintain themselves. The government policies also help the elders by reducing the tax rate to be paid by them.
  • Other Schemes: The elders also have the right of various other schemes launched by the government of India for their welfare like, Jeevan Dhara Yojana, Jeevan Akshay Yojana, Senior Citizen Unit Yojana, Medical Insurance Yojana, etc. 

Reasons for granting Legal Rights:

Legal rights for the elders are established for several important reasons, reflecting societal values, ethical considerations, and the recognition of the unique needs and vulnerabilities associated with aging. Here are key reasons for granting legal rights to elders: –

  1. Dignity and Respect: Legal Rights uphold the dignity and respect of elders, recognizing their life experiences, contributions, and the intrinsic value they bring to the society.
  2. Protection against Abuse and Neglect: Elders may be susceptible to various forms of abuse and neglect. Legal rights provide a framework to safeguard them from physical, emotional, or financial exploitation.
  3. Financial Security: Legal Rights, particularly in terms of maintenance and inheritance, ensures that elders have financial security and are not left in vulnerable situations without adequate support.
  4. Social Welfare and Inclusion: Legal provisions contribute to the social welfare of elders, ensuring they have access to essential services, healthcare, and opportunities for active participation in the community.
  5. Family and Community Harmony: By defining rights and responsibilities within families, legal framework aim to promote harmony and prevent disputes, especially in matters related to maintenance and inheritance.
  6. Healthcare and Well-Being: Legal rights may encompass access to the healthcare services, ensuring that elders receive appropriate medical care and support for their well-being.
  7. Prevention of Discrimination: Legal rights counteract age-based discrimination, promoting equality and ensuring that elders are not marginalized or excluded from social benefits.
  8. Cultural and Moral Values: Many societies place a high value on caring for elders as a cultural and moral imperative. Legal rights align with these values, reflecting a commitment to familial and societal responsibilities. 

Conclusion:

In navigating the legal landscape of maintenance and inheritance, the elderly in India find protection and empowerment through mosaic of laws tailored to their diverse cultural and religious backgrounds. As we strive for a society that respects and cherishes its elders, understanding and upholding these legal rights become essential pillars in promoting their well-being and dignity. The legal rights of elders in maintenance and inheritance are complex and multifaceted. It is essential for both elders and their families to be aware of these rights, seek professional legal advice, and engage in thoughtful estate planning to safeguard the welfare of the elderly individuals and their legacies.

 

References:

 

 

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