This article has been written by Ms. Hitika Agrawal, a Second-year student of National Law Institute University, Bhopal.

ABSTRACT

The proportion of elderly people is increasing in India and is expected to reach 19% in 2050. India has a family system that has always believed in social cohesion and has believed in living with family under the same roof. However, the sociocultural changes that have happened because of globalization and development have weakened the concept of joint families in India and the concept of nuclear families is gaining ground as increased expenses in terms of health care and increased dependency in old age are seen by the younger people in the family as a burden. To protect the elderly from abuse, abandonment, or neglect there are provisions of maintenance given under the law that give them a way to meet their most basic needs when their children are unwilling to look after them or maintain them. There are many schemes for the elderly but they are mostly not aware of them or they think that they should not take the matters to the court because societal forces act as a barrier to enforcing their rights and they suffer because of that. There is a need to create awareness about such provisions mentioned in the law and to reduce the stigma attached to filing cases against your children even when they not looking after their parents in old age to help the older people have a decent life in their later life.

INTRODUCTION

India has had the concept of joint families for a long time people used to live in the community and family was considered an important thing and people usually lived with grandparents, parents, and children under the same roof. Indian culture has always considered respect and regard for parents and elders as an important value that was inculcated in the minds of the children from an early age. However, things changed with globalization, technological advancement, and the generation gap and this resulted in isolation, abuse, and neglect of older people by their children. Old parents are forced to live meaningless and painful lives in their homes or old age homes when they are abandoned and neglected by their children for whom they have worked their lives. In this backdrop, elderly people must be aware of their rights provided under various laws like the Hindu Adoption and Maintenance Act 1956, and the Maintenance and Welfare of Parents and Senior Citizens Act 2007 (MWP Act) which provide for maintenance that can be claimed by the parents from their children. These laws make it obligatory for the children and heirs to provide maintenance in the form of a monthly allowance which provides means to the elderly parents to live a dignified life in which they are not dependent on their children for everything. There is a need for more awareness programs for elderly parents so that they can exercise these rights and claim what they deserve as maintenance.

MAINTENANCE OF ELDERLY PARENTS UNDER VARIOUS LAWS

There are various acts that provide for maintenance for elderly parents in India. There are both personal and secular laws that provide for maintenance for elderly parents, wives, and children. These laws help to provide a way for these people who are dependent on others for basic necessities that are not provided to them by the other person. These provide a legal remedy for them to have a way to lead a peaceful and dignified life through the provision of maintenance. The different provisions under which the elder parents can seek maintenance are:

Maintenance under Hindu law 

Under Hindu law, Hindu Adoption and Maintenance Act 1956 provides for maintenance for the elder parents. Under the act, maintenance is defined under Section 3(b)(i) and includes provision for food, clothing, residence, and medical attendance and treatment within its definition. Under Hindu law, the maintenance of the elders forms the crux under the Hindu law of maintenance. The provision for maintenance is provided under Section 20(1) of the act and it places an equal burden on the sons and daughters to maintain their parents when they are unable to maintain themselves out of their income or property. The section also has provisions for the maintenance of adoptive parents and childless stepmother. The obligation to maintain the aged parents will exist during one’s lifetime. The act also under Section 23 provides how the amount of maintenance can be fixed which will depend on several factors. The court can even change the amount already settled for the aged parents if it feels that the original amount settled might not be sufficient for the elder parents to maintain themselves. Under this act, the claimant has to be a Hindu as mentioned under Section 24 of the act.

The claimant can even claim maintenance after the death of their child from the heirs. The word dependant includes the parents of the deceased person under Section 22 and these persons have to be maintained by the heirs out of the property inherited by them. If no property is inherited by them then the claim will be against the person who is taking the estate. These provisions help the parents to claim maintenance from their grandchildren and the spouse of their children as well if their child has died.

Maintenance under the Code of Criminal Procedure

This is a secular law that provides for the provision of maintenance for elder parents irrespective of their religion.  Under section 125 of the CrPC, the parents can claim maintenance from their children who have sufficient resources ignore or refuse to maintain them who are unable to maintain themselves. This section also has a provision for the monthly allowance in terms of maintenance to be provided while the suit is pending before the court. The section also provides for speedy trial in these cases whereby the magistrate has to decide the pending proceeding for interim maintenance within sixty days from the date of the service of notice of the application to such person. There is also a provision for punishment in which the person can be sent to prison if he fails to comply with the order of the magistrate. Section 127 of the code also provides for the changes that can be made by the magistrate if there is proof of changes in the circumstances of the case.

Maintenance under the Senior Citizens Act, 2007

The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 was passed to have more effective provisions for the senior citizens and parents regarding maintenance. The act provides for the rights of the elderly that are guaranteed by the Constitution and matters connected therewith and has a simple application procedure to avoid delays. The right is available to parents, grandparents, and childless senior citizens against their relatives and children through specially construed tribunals. Obligation to maintain extends to such need as will allow the claimant to lead a normal life. The act provides a provision where a childless senior citizen can seek maintenance from the “relatives.” In the act, the term relative is defined as any legal heir who is in possession of or would inherit his property after the death of the childless senior citizen, but it does not include a person who is a minor. The act also provides that the parent or the senior citizen can apply for maintenance through another person or organization that is authorized by them. The application has to be decided within 120 days from the date of service of notice to children/relatives by the Maintenance Tribunal. If there is any delay or failure to comply with the order of the tribunal then imprisonment of one month can be awarded as provided under section 5 of the act. This act has provisions that have given a completely new outlook to the rights of senior citizens and parents by focusing on the welfare of the elderly. Apart from the provision of maintenance, it provides for various others like the establishment of old age homes, protection of the elderly through the redemption of the transfer of property taken through fraud, coercion, or undue influence, and many more.

CASES OF MAINTENANCE TO ELDERLY

1. 1. Jagjit Singh Bhatia v. Balbir Singh Bhatia: In this, it was held that Hindu-aged parents can seek maintenance from their son irrespective of his inheritance from the property of his father as it is considered his personal, legal, and absolute obligation that has arisen from the very relationship of parties.
   2. Dr. Mrs. Vijaya Manohar Arbat v. Kashirao Rajaram Sawai & another: This case imposed an obligation on a married daughter to maintain her parents when she has sufficient means to maintain them. This case makes it clear that even after the marriage of the daughter it does not mean that there is no obligation towards the parents. Thus, parents can claim maintenance from the daughter whether married or not, provided that the conditions mentioned in the Code of Criminal Procedure are fulfilled.

• Parmar Dahyabhai Hemabhai v. Parmar Prakashbhai Dahyabhai: In this case, the parents were living in a village and their children were living separately. The father had a pension of 6000 rupees but was not able to maintain themselves as there were medical expenses and the children refused to provide maintenance by giving the argument that they were getting a pension and they could also live in old age homes by giving a mere amount. The court held that just because the parents are getting a pension does not mean that they cannot claim maintenance when they are unable to maintain themselves and the children have sufficient means to provide maintenance. Thus, the petition for maintenance was allowed by the court.

1. Pitei Bewa v. Laxmidhar Jena: In this case, the question was raised whether the term “mother” will include only the natural mother under CrPC. The petition was filed by a woman who was the third wife of her husband and the children of the husband refused to maintain her as she was not their mother. The court held that the term mother occurring in clause (d) of sec. 125(1) will include a stepmother when she had a lawful marriage with the father of the person and she will be liable for maintenance under the code.

CONCLUSION

India has always been a country of rich heritage and has traditional norms that have laid stress on providing care and respect for the elderly. However, the concept of a joint family has been withering because of sociocultural changes in the form of economic and social development, and a large number of elderly are not taken care of by their families and have been subjected to neglect, isolation, and abandonment. In their twilight years, they are not provided with economic, emotional, and physical support. To help the elderly in these situations many provisions like maintenance are there to protect them from these situations. The various acts like the Hindu Adoption and Maintenance Act, Code of Criminal Procedure, and Senior Citizens Act provide for provision for maintenance. While there are these provisions there is a need to increase awareness about these among the elderly so that they can avail their rights as in most cases they are not even aware that there are such provisions. There are many problems like the stigma attached, administrative issues, delays in the completion of appeals, and many other that are making it more problematic for the elderly to enforce their right to maintenance. These problems should be addressed and special provisions and tribunals should be formed so that the elderly can have a peaceful and dignified life.

REFERENCE

Case laws:

• Jagjit Singh Bhatia v. Balbir Singh Bhatia 2003 SCC Del 476

• Dr. Mrs. Vijaya Manohar Arbat v. Kashirao Rajaram Sawai & another 1987 2 SCC 278

• Parmar Dahyabhai Hemabhai v. Parmar Prakashbhai Dahyabhai 2013 SCC Guj 749

• Pitei Bewa v. Laxmidhar Jena 1985 SCC Ori 159

Articles:

• This article was originally written by Ashok Kumar Behera published on the Sociology and Criminology website. The link for the same is herein https://www.longdom.org/sociology-and-criminology.html
• This article was originally written by Sarasu Esther Thomas published on the Springer Link website. The link for the same is herein https://link.springer.com/article/10.1007/s40847-022-00211-2#:~:text=In%20Hindu%20law%2C%20the%20principle,they%20depend%20on%20their%20son
• This article was originally written by Ramesh Kumar & Dr. Mithilesh Vishwakarma published on the International Journal of Research and Analytical Reviews website. The link for the same is herein http://ijrar.com/upload_issue/ijrar_issue_20543006.pdf
• This article was originally written by Bhumika Indulia published on the SCC Online website. The link for the same is herein https://www.scconline.com/blog/post/2019/01/10/maintenance-children-and-parents/
• This article was originally published on the Shonee Kapoor website. The link for the same is herein https://www.shoneekapoor.com/maintenance-senior-citizens-parents/
• This article was originally written by Sajal Singhal published on the Law Bhoomi website. The link for the same is herein https://lawbhoomi.com/concept-of-maintenance-under-hindu-adoption-and-maintenance-act-1956/#PERSONS_OBLIGED_TO_MAINTENANCE_HINDU_ADOPTION_AND_MAINTENANCE_ACT_1956
• This article was originally written by Dr. Seema Totla published on the International Journal of Creative Research Thoughts website. The link for the same is herein https://ijcrt.org/papers/IJCRT2112394.pdf