Vol. 19 No.

1 January 2013
HelpAge India-Research & Development Journal

The Maintenance and Welfare of

Parents and Senior Citizens Act, 2007
Requires Serious Amendments
- Partha Sarathi Adhya*

Introduction

he Union Ministry of Social Justice

and Empowerment, Government of
India, needs to be congratulated for
piloting the passage of Maintenance and
Welfare of Parents and Senior Citizens Act,
2007(Act No. 56 of 2007) as a standalone
legislation to promote the maintenance,
care and protection of older persons
including parents, in the country. The
Legislation has taken a period of more
than eight years after the formulation of a
National Policy on Older Persons in 1999;
the National Policy itself took some forty
nine years as a logical sequence to the
Constitutional directive under Articles 38,
39 and 41 of Chapter IV of Directive
Principles of State Policy; under Article 21
as the fundamental right to a dignified life
at the old age and under Item No. 9 of the
State List and Item Nos. 20, 23, 24 of
Concurrent List of Schedule VII which
relates to welfare of labour, including
conditions of work, provident funds,
liability for workmen's compensation,
invalidity and old age pension and
maturity benefits.
The State Governments are required to
notify the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007,
hereinafter to be referred as the 'Act' and
frame Rules for implementing the
provisions of the Act.
The Act came into force in the State of West
Bengal on January 12, 2009 through

publication in the Kolkata Gazette by the

Government of West Bengal, Department
of Women and Child Development and
Social Welfare.

Discussion
Though the parents can claim
maintenance under the Section 125 of the
Code of Criminal Procedure, 1973,
Section 20 of the Hindu Adoption and
Maintenance Act, 1956 and other
personal laws, the procedure is both time
consuming as well as expensive. Hence
there is a need to have simple inexpensive
and speedy provisions to claim
maintenance for parents which this new
Act provides.
Parents as well as senior citizens can claim
maintenance from 'Maintenance Tribunal'
which is presided over by a single officer
who is the Sub-divisional Officer of a
district without any court fees and that too
instantly with interim maintenance and
within ninety days final maintenance.

The maintenance can be claimed by:(a) a parent or grand-parent from

one or more of his children which
includes son, daughter, grandson and
granddaughter but does not include a
minor;
(b) a childless senior citizen from his
relative who is a legal heir and is not a
minor and is in possession of or would
inherit his property after his death.

* Assistant Professor in Tripura Govt. Law College, Agartala. The article is based on his Ph.D. research in the Department of Law , University of Burdwan.
Email id: psadhyalecturer@gmail.com

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Here 'parent' means father or mother

whether biological, adoptive or step father
or step mother, as the case may be,
whether or not the father or the mother
is a senior citizen and 'senior citizen'
means any person being a citizen of India,
who has attained the age of sixty years or
above.
Moreover, whoever is responsible for the
care or protection of senior citizen, leaves
such senior citizen in any place with the
intention of wholly abandoning such
senior citizen, shall be punishable with
imprisonment for a term which may extend
to three months or fine which may extent to
five thousand rupees or with both.
Further, where any senior citizen who, after
the enforcement of this 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 said 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
Maintenance Tribunal.
The Act also provides for the
establishment of old age homes for the
indigent senior citizens in each district with
seats extending to one hundred and fifty at
the beginning in each home for which the
State Government will formulate rules for
the management of the homes.
The State Governments have a duty to
provide to the senior citizens in
Government hospitals separate beds,
queues, facility for treatment of chronic,
terminal and degenerative diseases; and
research activities for geriatric ailments
duly headed by a medical officer.
Thus this was a much awaited legislation
for the true welfare of parents and senior
citizens in the real sense which at last has
seen the light of the day.

Critical Analysis of the Act

The Act suffers from serious lacunas which
came out during the author's field work in
the districts of West Bengal while
interviewing the Sub-divisional Officers
i.e., the Presiding officers of the
Maintenance Tribunals, Maintenance
Officers, Conciliation Officers, and etc. on
the study of the implementation of the Act
and the rest on a close examination of the
Act. Some of them are as follows:
1. According to clause(b) of Section 2 of
the Act, 'Maintenance' includes provision
for food, clothing, residence and medical
attendance and treatment; and clause (k)
of Section 2 of the Act says that 'welfare'
means provisions for food, health care,
recreation centres and other amenities
necessary for the senior citizens. Parents
are not specifically mentioned here,
whereas the Act mentions maintenance
and welfare of both, parents and senior
citizens.
2. As per clause (4) of Section 4 of the
Act, any person being a relative of a
senior citizen and having sufficient means
shall maintain such senior citizen provided
he is in possession of the property of such
senior citizen or he would inherit the
property of such senior citizen: Imposing
liability on a person who happens to be a
relative of the senior citizen on the ground
that he will inherit the property of the senior
citizen is illogical and unreasonable,
because the senior citizen may sell his
property to any third party before his death
and there is no guarantee that the relative
will definitely inherit the property of the
senior citizen.
3. Clause(3) of Section 5 of the Act has
provision for holding an inquiry for
maintenance amount of senior citizens
including parents, but, where is the order
for determining the extent of the ability of
the children or the relative to pay
maintenance? It is a serious violation of the
principle of Natural Justice.

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4. As per proviso to clause (8) of Section

5 of the Act, a warrant cannot be issued
for recovery of any amount due under this
section unless an application is made to
the Tribunal to levy such amount within a
period of three months from the date on
which it became due. Under the Limitation
Act, 1963, normally time limit for filing a
money suit is three years from the date it
became due. Therefore it is irrational that
such a short period of three months as
limitation period is given to a parent or
senior citizen to claim their dues from the
children or relative following the order of
t h e Tr i b u n a l ; f a i l i n g w h i c h t h e
enforcement of the right to maintenance
as minimum sustenance will cease. In
general, due to locomotor disability and
mental inactiveness things go slow for
senior citizens so more time should be
given to file an application for
enforcement of the order of the Tribunal.
5. Clause (1) of Section 9 of the Act
states that the Maintenance Tribunal may
make a monthly allowance at such
monthly rate for the maintenance of such
senior citizen regarding order for
maintenance but it fails to mention 'parent'
or the phrase 'senior citizen including
parent'. The 'monthly allowance' is not
defined in the Act where it calls for literal
interpretation of the words so as to say
relief to the extent of only pecuniary relief
for maintenance.
6. Clause (2) of Section 9 of the Act
states that The maximum maintenance
allowance which may be ordered by such
Tribunal shall be such as may be
prescribed by the State Government which
shall not exceed ten thousand rupees per
month. This calls for severe criticism as
the amount of ten thousand rupees is
without sound justification so as it appears
arbitrary, unreasonable and unfair for the
following reasons:
(i)

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Clause (3) of Section 5 states about

holding an inquiry for determining the
amount of maintenance. If after
inquiry it is found that the amount of
maintenance exceeds rupees ten

thousand; then, it will not be possible

to pass an order for the same as the
pecuniary limit of the order is limited
to rupees ten thousand only.
(ii)

Maintenance as defined in the Act

includes food, clothing, residence,
medical attendance and treatment.
Within rupees ten thousand is it
possible to cover all the items under
maintenance in this present day of
rising prices of bare necessities of
goods for a normal sustenance of life?
Moreover in old age a person requires
more medical treatment than
an young adult; therefore is it possible
that within rupees ten thousand
adequately covers all expenses?

(iii) So, far as maintenance under Section

125(1) (d) of Cr.P.C. and Section 20
of the Hindu Adoption and
Maintenance Act, 1956 are
concerned, maintenance of parents is
usually determined on the basis of the
needs of the parents to maintain
themselves and the capacity of the
children to pay such maintenance.
This flows from judicial interpretations
of several decided cases. The judiciary
has also gone further to maintain the
standard of parents they were used to
live in if the capacity of the children
permits such pecuniary benefits too.
But, in this Act, there is no scope for
such interpretations due to imposition
of ceiling.
(iv) Moreover, apart from monthly
allowance order there should be
provisions for passing orders of
protection, residence, compensation
and recreation for the parents and
senior citizens, more akin to the
Protection of Women from Domestic
Violence Act, 2005.
(v) The Act provides for monthly
allowance for maintenance. So,
where is the scope for 'welfare' which
is separately defined in the Act and
more so the title of the Act says
Maintenance and Welfare.

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7. Clause (2) of Section 10 of the Act

states that Where it appears to the
Tribunal that, in consequence of any
decision of competent Civil Court, any
order made under section 9 should be
cancelled or varied, it shall cancel the
order or, as the case may be, vary the
same accordingly. Now, the most
prevalent measure for claiming maintenance by parents is through clause (d) of
sub-section (1) of Section 125 of the Code
of Criminal Procedure, 1973 in the Court
of First Class Judicial Magistrate, which is
a criminal court. So, according to clause
(2) of Section 10 of the Act, the decision of
a criminal court is not barred and
therefore the decision of a criminal court
under section 125 Cr.P.C. will run parallel?
8.
The statement of objects and
reasons says that though the parents can
claim maintenance under the Code of
Criminal Procedure, 1973, the procedure
is both time consuming as well as
expensive. Hence, there is a need to have
simple, inexpensive and speedy provisions
to claim maintenance for parents.
Whereas according to Clause (2) of
Section 11 of the Act says that the
maintenance order passed under this Act
.shall be executed in the manner
prescribed for the execution of such order
by that Code (i.e., under Chapter IX of
Code of Criminal Procedure, 1973). It is
hard to reconcile the statement of object
and reason with the said provision for
enforcement of order of maintenance. The
main operative part of an order is its
execution and this Act was promulgated
to overcome the delays under Section 125
(1)(d). Now, if the same process for
execution of order under Section 125 is
followed then, what is the need of this new
legislation?
9. Furthermore, clause (1) of Section 16
of the Act states that Any senior citizen or a
parent, as the case may be, aggrieved by
an order of a Tribunal may, within sixty
days from the date of the order, prefer an
appeal to the Appellate Tribunal: Here
only the right to appeal has been given to
the senior citizen or a parent but it is not

given to the children or the relative of the

senior citizen or the parent against whom
the order of maintenance is passed. This is
a serious violation of the principle of
Natural Justice and Article 14 of the
Constitution of India. The children or
relative has an equal right to prefer an
appeal before the higher forum being
aggrieved by the order of the Tribunal.
10. Again, clause (5) of Section 16 of the
Act states that The Appellate Tribunal
shall, adjudicate and decide upon the
appeal filed against the order of the
Tribunal and the order of the Appellate
Tribunal shall be final: There can never
be any finality to any order passed by any
Tribunal because the Hon'ble High Court
within whose jurisdiction the Tribunal is
situated, has superintending power over
the Tribunal under Article 227 of the
Constitution of India.
11. Surprisingly, clause (17) of Section
17 of the Act states about Right to legal
representation.Not withstanding
anything contained in any law, no party to
a proceeding before a Tribunal or
Appellate Tribunal shall be represented by
a l e g a l p r a c t i t i o n e r. H e r e t h e
nomenclature Right is not in consonance
with the meaning of the section and it
would be better if it was used as Bar of
legal representation. Now it can be
argued that legal practioners can best
represent a case to its prime exposition
and therefore barring legal practitioner
from representing a parent or senior
citizen in the Tribunal does not hold good.
Even in the consumer forums under the
Consumer Protection Act, 1986, legal
practitioners can represent the consumers
in the forum.
12. Section 18 of the Act has provision for
Maintenance Officer for a District, who
shall be not below the rank of a District
Social Welfare Officer and he shall be
designated as such by the State
Government. The Maintenance Officer
shall represent a parent if s/he so desires
in the Tribunal. As this Officer has to deal
with the complaints of the entire district it
may not be practical for him/her to do
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justice to this role allotted to him/her.

and senior citizens in a feasible way:

13. Section 19 of the Act speaks about

establishment of old-age homes by the
State Government for the indigent senior
citizens. Here it is not obligatory to
establish old age homes as the word 'may'
and not 'shall' is used for establishment of
old age homes. Therefore, it is the
discretion of the State Government to
establish such homes.

1. The Act defines the word 'children' in

clause (a) of Section 2 so as to include son
and daughter, grandson and granddaughter but does not include a minor.
Now in common parlance children denote
minors; but, the Act by defining it clarifies
such connotation of children. It would be
better if the Act used the term 'sons and
daughter' instead and made it into an
inclusive definition.

14. The Act gives the definition of

children and relative against whom
complaint may be made for maintenance
by his parent or childless senior citizen
respectively. In view of increasing longevity,
if a complaint is made against a senior
citizen in his/her capacity as 'children or
relative', then how the welfare of such
senior citizen under the Act would be
ensured?
15. In the Act there are chapters for
maintenance of parents and senior
citizens, establishment of old-age homes,
provisions for medical care of senior
citizen, protection of life and property of
senior citizen, offences and procedure for
trial and miscellaneous; but surprisingly
there is not a single chapter on provisions
for recreation and other amenities for
senior citizen which is the true spirit of
welfare for them.
16. Section 29 of the Act speaks of
removing difficulties if any which may arise
in giving effect to the provisions of this Act.
The difficulties may be removed by the
State Government by an order published in
the official gazette, by making such
provisions not inconsistent with the
provisions of this Act. But, the proviso to
this section puts a limitation period of two
years from the date of enforcement of this
Act in the particular State within which the
difficulties may be removed; which is
highly unreasonable and unjustifiable.

Suggestions
The author gives the following suggestions
to amend the Act accordingly so as to
make it workable for the welfare parents

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Opinion

2. In the definition section, Clause (k) of

Section 2, the word 'welfare' should also
include necessary for the parents and
senior citizens.
3. It should be certain that the relative
upon whom liability to maintain such
childless senior citizen is imposed, should
certainly inherit the property as some Will
in favour of him/her has been executed or
transfer of property has taken place which
would take effect after the death of the
senior citizen. Therefore, the proper
phrase in clause (4) of Section 4 of the Act
would be as to be added at the last .or
he would inherit the property of such senior
citizen as some bequeath of property of
such senior citizen in favour of him has
taken place.
4. Clause (3) of Section 5 of the Act
should also specifically contain orders for
holding inquiry for determining the ability
of the children or relative to pay
maintenance to senior citizen including
parent.
5. The time limit for filing application
under proviso to clause (8) of Section 5
before the Tribunal for levying the amount
of maintenance, when it falls due to the
senior citizen, including parent due to the
failure of children or relative to give such
maintenance, should be increased to a
minimum of one year, so to give sufficient
time to such senior citizen including parent
to file such application.
6. The order provision of this Act in
Section 9 needs serious amendments at
the earliest which includes:

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(i) Firstly, the words 'monthly

allowance at such monthly rate'
should be immediately modified
so as to substitute 'order for
maintenance and welfare which
includes monthly allowance,
clothing, residence, medical
treatment, recreation and other
amenities and such other order
or orders which the Tribunal
may deem fit and proper'.
(ii) Secondly, the ceiling limit of
rupees ten thousand should not
be there at all, thereby leaving it
to the judicious discretion of the
Tribunal as per the requirements
of the senior citizen or parent and
the ability of the children or
relative to pay such.
7. The Tribunal should also take into
account the decision of a Criminal Court
or quasi-judicial authority under clause
(2) of Section 10 so to cancel or vary the
order passed under section 9 of the Act.
8.
The Act at the most earliest be
amended to include its own mechanism of
execution of the order of the
Maintenance Tribunal, as because it is a
special Act, like the execution mechanism
enshrined in Consumer Protection Act,
Domestic Violence Act, etc.; otherwise
following the procedure laid down in CrPC
for execution of order under Section 125
would make the 'statement of Object and
reasons' of the Act infructuous.
9. Right to appeal under Clause (1) of
Section 16 from the order of the Tribunal to
the appellate should also be given to the
children or relative as the case maybe.
10. The word 'final' to the order of the
Appellate Tribunal should be deleted.
11. Legal representatives should not be
barred at any cost to represent a parent or
senior citizen in the Tribunal as they would
best serve the interest of them in
representing their argument before the
presiding officer of the Tribunal. At best
conditions could be imposed on the legal
practitioners that they would render their

service voluntarily to the parent or senior

citizen who requires them.
12. There should be more maintenance
officers at the block level, sub-division level
and the district level to enable senior
citizens for the proper implementation of
the Act.
13. The Act should make it obligatory on
the State Governments to establish old age
homes in each district so as to help the
indigent aged persons who is in distress as
the number of indigent elders are on the
rise.
14. Saving clauses should be introduced
in the Act to protect the senior citizens who
falls under the definition of children.
15. A completely distinct chapter should
be introduced in the Act to include facilities
for recreational and other amenities of
the senior citizens or parents.
16. The concept of welfare also
encompasses forming self-help group of
senior citizens to do some productive work
as per their strength of mind and body
because it is seen that the age of sixty does
not cease the mobility of senior citizen.
They remain active both mentally and
physically upto the age of seventy in an
average. Therefore if these human
resources are utilized, then they can add to
the productivity of the country and thus add
value to their lives. The Act should include
such kind of provision of forming self-help
group of senior citizens so as to enliven
them in some productive work.
17. Section 21 of the Act speaks about
publicity, awareness campaigns and coordination between the services of different
departments of the Government relating to
welfare of senior citizens; but it should also
include directions to the State
Governments and Central Governments to
induct in the syllabus of school
intermediate classes the moral duties of
the students respecting their elders and
caring for them. If this is done at the school
level then it will help to implant the seed of
respect for the elders from the initial level in
the future generation to come.
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18. The limitation period of removing

difficulties in implementation of the Act by
suitably making provisions by the State
Government, should be increased taking
into account the lack of infrastructure and
the 'effective time' in implementation of this
Act in a particular State.
The Union Ministry of Social Justice and
Empowerment, Government of India
should take into consideration the above
mentioned suggestions and propose for
an amendment of such a benevolent
legislation at the earliest to make the
legislation a model legislation for the
world countries to follow.

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also grateful to different Sub-divisional

Officers, Maintenance Officers and
Conciliation Officers of different districts
who patiently answered my queries.
HelpAge India, Kolkata office helped me
to analyze the Act. I also express my warm
gratitude to Sh. Bhuddeb Bhattacharya,
Senior Advocate, Calcutta High Court and
Sh.Indranil Bhattacharya, Additional
District Judge, Paschim Midnapore, West
Bengal, for analytical inputs on the Act. I
am also thankful to my colleague, Sh.
Caesar Roy for suggestions to improve the
article.

Acknowledgements

Disclaimer:

I express my sincere gratitude to my

supervisor Dr. Sanjeev Kumar Tiwari,
Associate Professor, Head, Dept. of Law,
The University of Burdwan, West Bengal,
for the guidance to write this article. I am

This is the opinion of the author and

HelpAge India may not subscribe to it. This
is not intended to be a substitute for
professional legal advice.