How Can Parents Claim Maintenance from their Children?

Introduction

Maintenance means to give necessary supplies to a person for their living. The legal term of maintenance is to provide basic resources such as food, residence, education, clothing, and medical attendance and treatment so that a person can live a life with dignity. It is the moral duty of a person to provide basic resources to his parents, children, and wife in form of maintenance. Which is essential forthe existence and survival of a human.

Before 1973, there was no provision under the Criminal Procedure Code, 1973 related to the maintenance of parents. However, for the first time provision of maintenance was enacted under the Criminal Procedure Code 1973 under Section 125, which deals with the remedy for the neglected parents to claim maintenance. Later in 2007, the Maintenance and Welfare of Parents and Senior Citizens Act was passed, this Actprovides Parents and Senior citizens financial security. However, parents can seek maintenance either under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 or under Section 125 of the Criminal Procedure Code, 1973.

What do you mean by Maintenance?

In general terms, maintenance deals with the provision to provide financial allowance to an individual who is fully dependent on them and also unable to maintain themselves out of their own or any other property.

So as per Maintenance Law, there are some acts based on it. According to the Hindu Adoption and Maintenance Act 1956, under Section 3(b) maintenance is apart from the financial allowance. It also includes food, shelter, education, and medical attendance. Under the Maintenance and Welfare of Parents and Senior Citizen act, 2007, Section 2(b) provides food, medical attendance, residence, treatment, and clothing.

How can Parents Claim Maintenance under The Maintenance and Welfare of Parents and Senior Citizens Act 2007?

This act was enacted in 2007, it forms a legal obligation on children and heirs to grant maintenance to parents by giving them a monthly allowance. The States further said that this act has the authority to organize maintenance tribunals and appellate tribunals in order to hear and pass the decision in matters related to maintenance of the senior citizens.

Under this act, The Government of India also establishes old age homes. The parents and senior citizens have the right to approach maintenance tribunals and seek a monthly allowance from their legal heirs and children for their welfare and maintenance. The Act is to provide a speedy and inexpensive procedure to claim maintenance on monthly bases for senior citizens and parents.

Who can demand maintenance under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007?

Under The Maintenance and Welfare of Parents and Senior Citizens Act, 2007, the maintenance can be claimed by parents, grandparents, and senior citizens.

  • Parents: In this act parents include mother and father whether biological or adoptive or step. All can claim maintenance. However, as per the act, it is not compulsory that the parents should be senior citizen.
  • Grandparents:In the case of Maternal and Paternal both sides of the grandparents can claim maintenance under the said Act.
  • Senior citizen:In the case of senior citizens consider a 60-year-old person. They can claim from their relatives. In this relatives are either in possession of property or wouldinherit it from the senior citizen.

Condition to seek maintenance under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007:

The condition of seeking maintenance by the parents or grandparents is that they are unable to maintain themselves from their own wages and property.

Who is liable to pay maintenance?

Both adult children and adult grandchildren, either male or female are responsible for paying a sufficient amount for the maintenance of their parents and grandparents. In case of not paying application can be filed against any one or more of them.

Senior citizens who do not have children or grandchildren can claim maintenance from a relative who is either possessing their property or who will inherit their property after their death.

The following conditions under which parents and senior citizens can claim for maintenance from their relative, are that the relative must not be a minor and must have sufficient means to provide maintenance. If more than one relative is entitled to inherit the property, then maintenance should be paid by the relatives in part to their inheritance of the property.

How much maintenance must be paid?

The maximum maintenance paid will be 10,000 per month. The maintenance amount is based on the needs of the claimant as well as the monthly income, and potential income from the property of the opposite party.

Filling maintenance proceedings:

The application for maintenance must be filed by the senior citizens and parents before the maintenance tribunal in any district. Where the parents, grandparents or senior citizen resides, the parent, grandparents, or senior citizens have last resided, the person against whom maintenance is claimed resides.

If the person himself cannot file the maintenance application, then any other person or organization authorized by him or her can file the application on his or her behalf. The maintenance tribunal has the power to take action on its own without any request by the claimant.

No party should be represented by a lawyer before the tribunal. However, parents or senior citizens who can avail the services of the State Government will appoint a Maintenance Officer to represent their interests.

Enforcing the Maintenance order:

Once an order is passed by the Tribunal and the other person is ordered to pay a sum, the amount must be deposited within 30 days of the Tribunal’s order.

If failure to pay maintenance without sufficient reason giving in a competent Court will result in a warrant for collecting the remaining amount. If the person does not pay maintenance even after the warrant is executed, the person is liable to imprisonment for a maximum of one month or until the amount is paid, whichever is earlier.

Protection of Senior Citizens:

The act also mandates that senior citizens be protected. Any person who is responsible for the care and protection of a senior citizen and purposely abandons the senior citizen completely is liable to be imprisoned for three months or to pay a fine of Rs. 5000 or both.

Senior citizens can also file an application before the Maintenance Tribunal to declare the Transfer of property void provided the following conditions are met:

  • The property must be transferred by attaching some conditions that require the person to whom the property is transferred to provide basic resources, aid, and physical needs to the senior citizen.
  • The other person must have failed to or refused to provide the resources, aid, and physical needs to the senior citizen.

Maintenance and Welfare of Parents and Senior Citizens (Amendment), 2019

The Indian Government introduced the Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2019[1]. In this, the Indian Government is ordered to expand the ambit of social security for the old-age people.

Key changes proposed by the Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2019:

  • Under the definition of “Children”, Amendment Bill also adds step-child, adoptive children, children-in-law, and legal guardians of a minor child would be held responsible for their case.
  • In respect of parents, this bill adds parents-in-law, grandparents, and both.
  • Also expands the definition of “Maintenance”,which includes the provision of healthcare, surety, and safety for senior citizens and parents to lead a life of dignity.

Some changes in maintenance order:

  • Changed in maintenance amount, this bill removes the upper limit on the maintenance amount. The Maintenance Tribunals must look at the standard of living and incomeof the senior citizens and parents and also consider the earnings of the person who is liable to pay maintenance while deciding the maintenance amount.
  • Relatives and children must pay maintenance amount within 15 days of the order of the maintenance tribunal, i.e. the days were reduced from 30 days.
  • In this bill, even children and relatives may also appeal the decisions of the Tribunal.
  • This bill increases the offenses and penalties for abandonment of senior citizens or parents. Now a person will punishable with imprisonment up to six months and with a fine of up to Rs. 10,000 or both.
  • Add the new provision related to abuse of senior citizens, punishable with the imprisonment of upto six months or with a fine up toRs. 10,000 or both

Maintenance under Section 125 of the Criminal Procedure Code of 1973

It is the responsibility of children to maintain their parents in their old age. Chapter IX of the Criminal Procedure deals with the provisions of the maintenance for parents, not only for parents it also provides for wives and children.

Section 125 (1)(d) of the Criminal Procedure Code, 1973 provides if any person has sufficient means to neglect or refuses to maintain his mother and father or is unable to maintain herself or himself, then a Judicial Magistrate of the first class based upon proof of such refusal and neglect, order such individuals to make a monthly allowance for the maintenance of their mother and father at such monthly rate as per the magistrate thinks fit for and to pay such amount to such person as directed by the magistrate.

In Vijay Manohar v. Kashirao Rajaram case[2], Supreme Court held that the daughter, whether married or unmarried, would also be liable to pay maintenance. The Indian Society casts a responsibility on the children to take care of the parents.    This responsibility is equally applicable to a daughter but in the case of a step-mother, she can claim maintenance only if she is a widowed mother and doesn’t have any natural-born child.[3] In this case, a married daughter is also liable to pay allowance to her parents if her parents are fully dependent on her.

The Essential Conditions for claiming maintenance:

  • Parents claiming maintenance must be unable to maintain themselves.
  • The daughter, whether married or unmarried, is liable to pay maintenance to her parents.
  • The adoptive mother can claim maintenance.
  • Step-mother can claim maintenance.

The obligation of every child is to maintain their father and mother under personal laws

Under Muslim Law:

  • It is obligatory for a child, whether male or female, to have to provide maintenance to his mother, father, grandmother, and grandfather.
  • If he has sufficient property (whether minor or adult) is responsible to maintain his parents and grandparents.
  • If in some conditions one child is poor and another child is earning well, then the liability to maintain parents lies on the earning child.
  • Even though a child is poor, he/ sheis bound to maintain his motherin every circumstance.
  • If a child who though poor, is earning something for livelihood is bound to support his poor father who is earning nothing.
  • The father and mother both have the next position in the right of maintenance of the child. The liability to maintain his parents is on the child not on some other person, but if a child can only support one of its parents, then the mother is entitled to get preference over the father.

In Shia Law: the Right for claiming maintenance for both parents is equal. So also, the right of both children and parents are equal. Provisions related to maintenance must in every case be divided equally. Children and Parents both are jointly liable for their grandparents.

Under Hindu Law:

  • The Hindu Adoption and Maintenance Act, 1956 under Section 20 deals with Hindu peoples. A Hindu is bound to maintain his or her legitimate or illegitimate children and aged or infirm parents, but children under Section 20 of the Hindu Adoption and Maintenance Act, 1956 do not include granddaughter and grandson.
  • The obligation of a person to maintain his or her elderly or infirm parents. Who are unable to maintain themselves out of their own earnings or their property are only they can be entitled to claim maintenance under this Act.
  • In this Act “parent” also includes a childless step-mother.
  • This amount of maintenance is determined by the competent court based on the status of the parties and the value of the claimant’s property and want of the claimant and the number of the person to be maintained under this Act. The amount can be changed with the situation under this Act.

Related Case laws:

Mst. SamuBai&Anr. V. ShahjiMaganlal [4], in this case, Andhra Pradesh High Court held that if any aged parents are capable to maintain himself or herself then the obligation on children under Section 20 of Hindu Adoption and Maintenance Act to maintain their parents can be relaxed.

Ulleppa v. Gangabai [5], In this case, the Supreme Court held that if the step-child can prove that his or her stepmother has other modes of maintaining herself then she is not able to claim maintenance from her step-child.

Under Christian and Parsi Law:

There is no Act regarding Maintenance for Parents and Senior Citizens under Parsi and Christian Law. If any Parents, Grandparents, or Senior Citizens want to claim maintenance, they can approach the competent Courts either under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 or the Criminal Procedure Code, 1973.

Landmark Judgement

Dattatrey Shivaji Mane v. Lilabai Shivaji Mane and ors[6], in this case, a petition was filed under the Bombay High Court under Article 227 of the Indian Constitution against the order of The Tribunal Court for the Maintenance and Welfare of Parents and Senior Citizens. It was held that no son has a right to be a burden on his parents throughout his life. If the house is self-acquired by his parents, then a married or unmarried son has no right to live with them until his parents allow him to live at the mercy of his parents. If the child or grandchild is abusing their grandparents and parents are not allowed to stay under them.

Also in this case the court observes some important objectives under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

  • That the act provides speedy, simple, and in-expensive provisions to claim maintenance.
  • The Act also provides facilities for elderly people and also cast an obligation on the Indian Citizen to provide proper old age homes for their good care and maintenance.

Conclusion

In our country, it is becoming a tradition that children and relatives start neglecting their parents and senior citizens when they need any medical attendance and treatments. So, to stop these offenses, The Indian Government had introduced a separate Act, the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 in this act the idea of giving aid to elderly people has been given a wide extension, not only parents can seek maintenance, but even childless mothers and grandparents as well. Filling an application under this Act is speedy in nature as compared to other Acts such as personal laws or the Code of Criminal Procedure Act, 1973.


[1]http://164.100.47.4/BillsTexts/LSBillTexts/asintroduced/374_2019_LS_Eng.pdf

[2]Vijay Manohar v. KashiraoRajaram, 1987 AIR 1100, 1987 SCR (2) 331

[3]Kirtikant d. Vadodaria v. State of Gujarat and Ors, https://indiankanoon.org/doc/1388011/

[4]Mst. SamuBai&Anr. V. ShahjiMaganlal, 1961

[5]Ulleppa v. Gangabai, 2003 CriLJ 2566

[6]Dattatrey Shivaji Mane v. LilabaiShivaji Mane and ors, Writ Petition No. 10611 of 2018

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