Muneeb Rashid Malik
Our society has always understood the importance of respecting and caring for the elderly. However, with changes in family structures and the decline of joint families in modern times, many older people are not receiving the care they need from their children. As a result, many seniors find themselves living alone, without anyone to look after them. While parents have the right to claim maintenance under the Code of Criminal Procedure, 1973, this process can be costly and time-consuming. That’s why there was a need for a simpler and faster way for parents and senior citizens to claim maintenance. In response to this need, the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (referred to as the Senior Citizens Act), was enacted. This law applies to all of India, including the Union Territory of Jammu & Kashmir. The Senior Citizens Act places a duty on adult children to support their parents and grandparents. Those who inherit property from their elderly relatives are also responsible for their care. This legislation aims to ensure that parents and senior citizens receive essential necessities such as food, clothing, shelter, medical care, and treatment whenever needed.
Who can claim maintenance under the Senior Citizens Act?
A parent or grand-parent who is unable to maintain himself from his own earning or out of the property owned by him can claim maintenance against one or more of his children (except minors). A childless senior citizen can also claim maintenance against his relative when the relative is in possession of or would inherit the senior citizen’s property after his death.
Who can file the maintenance application?
The maintenance application can be filed by a senior citizen or a parent, as the case may be. If such a person is incapable, then the application can be filed by any other person or organization authorized by him. The Maintenance Tribunal can act on its own as well (suo moto) if it comes to know that a parent or a senior citizen needs maintenance.
Where can the maintenance application be filed?
The maintenance application has to be filed before the appropriate Maintenance Tribunal constituted under the Senior Citizens Act. As per the Jammu and Kashmir Maintenance and Welfare of Parents and Senior Citizens Rules, 2021, framed under the Senior Citizens Act, the Additional District Magistrate or Sub Divisional Magistrate concerned, shall function as the Presiding Officer of the Tribunal. The proceedings under the Senior Citizens Act may be initiated against any children or relative in any district where the senior citizen/parent resides or last resided or where children or relative resides.
How much time does the Tribunal take to decide the maintenance application?
After giving notice of the application to the children/relative and after giving the parties an opportunity of being heard, the Tribunal holds an inquiry for determining the amount of maintenance. The application has to be disposed of within 90 from the date of the service of notice of the application to the children/relative.
Can the Tribunal decide the maintenance application without hearing the opposite party?
The Tribunal, if satisfied that the children/relative is willfully avoiding service, or neglecting to attend the Tribunal, may proceed to determine the case ex parte (done in the interests of one side only).
Can the Tribunal extend the period of 90 days in deciding the application?
The Tribunal may extend the 90-day period, once, for a maximum period of 30 days in exceptional circumstances.
What is the maximum amount of maintenance that can be allowed by the Tribunal?
The maximum maintenance allowance which may be ordered by the Tribunal shall not exceed INR 10,000 per month.
Can the maintenance allowance be altered?
On proof of misrepresentation or mistake of fact or a change in the circumstances of any person receiving a monthly allowance, the Tribunal may make an alteration in the maintenance allowance.
Can the Tribunal levy interest on the maintenance amount?
The Tribunal may direct that in addition to the amount of maintenance, simple interest be paid which shall not be less than 5% and not more than 18%.
Can the Tribunal direct interim maintenance also?
The Tribunal may, during the pendency of the proceeding regarding maintenance, order such children/relative to make a monthly allowance for the interim maintenance of such senior citizen including parent.
What happens to the maintenance order if one of the persons against whom the order was passed, dies?
Where a maintenance order was made against more than one person, the death of one of them does not affect the liability of others to continue paying maintenance.
From which date shall the maintenance be payable?
Any allowance for the maintenance shall be payable from the date of the order. The Tribunal can also order that the maintenance shall be payable from the date of the application for maintenance.
Can the maintenance application be referred to Conciliation?
The Tribunal before hearing the maintenance application may refer the same to a Conciliation Officer and such Conciliation Officer shall submit his findings within one month and if amicable settlement has been arrived at, the Tribunal shall pass an order to that effect.
How can the Order of maintenance be enforced?
A copy of the order of maintenance shall be given free of cost to the senior citizen/parent, in whose favour it is made and such order may be enforced by any Tribunal in any place where the person against whom it is made.
What if the order of maintenance is not complied with?
If the children/relative fail to comply with the order, the Tribunal may, for every breach of the order, issue a warrant for levying the amount due. If the remaining is unpaid even after the execution of the warrant, the Tribunal may sentence the children/relative to imprisonment for a term which may extend to one month or until payment if sooner made. Warrant shall only be issued for the recovery of any amount if the application is made to the Tribunal within a period of three months from the due date.
Who can file an appeal against the maintenance order?
The senior citizen/parent can file an appeal before the Appellate Tribunal, if aggrieved by the order of the Tribunal, within a period of 60 days from the date of the order.
Can a party to a proceeding before the Tribunal or Appellate Tribunal be represented by a legal practitioner?
A party to a proceeding before the Tribunal or Appellate Tribunal shall not be represented by a legal practitioner. However, Section 30 of the Advocates Act, 1961 gives an absolute right to an advocate to practice before all courts and tribunals. It prevails over the Senior Citizens Act.
Which property is void as per the Senior Citizens Act?
If a senior citizen has transferred his property by way of gift or otherwise, subject to the condition that the transferee shall provide him basic amenities and thereafter such transferee refuses to provide such promise, the transfer of property shall be deemed to have been made by fraud, coercion or undue influence and the Tribunal can declare such transfer as void at the option of the senior citizen.
What if the Senior Citizen is abandoned?
A person, who takes care of any senior citizen, leaves them with an intention of wholly abandoning them to a place where no one can find them, is a criminal offence and such person shall be punished with imprisonment for a term which may extend to 3 months or fine, which may extend to Rs.5000 or both.
The Jammu and Kashmir Maintenance and Welfare of Parents and Senior Citizens Rules, 2021, framed under the Senior Citizens Act, provide a scheme for management of old-age homes established under the Senior Citizens Act. The homes should have physical facilities and will be run in accordance with the operational norms. The Director General, Police, has been given the power to take all necessary steps, for the protection of life and property of senior citizens. The Senior Citizens Act also talks about the medical support for senior citizens such as availability of hospital beds, facility for treatment of diseases, etc.
Therefore, it is important that the Senior Citizens Act and the Rules framed thereunder are effectively implemented by the Government of Jammu and Kashmir so that a fruitful maintenance, better medical facilities are provided to the parents and senior citizens. The lives and properties of senior citizens need to be protected effectually. Old-age homes in each district need to be constituted at the earliest so that the objective of the Act is achieved successfully.
Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India and tweets @muneebmalikrash.