Maintenance and Welfare of Parents; All you Need to Know

What is Maintenance and Welfare?

In general terms, maintenance means to provide financial assistance to an individual who is dependant upon them and is also unable to maintain himself/herself financially. According to the Hindu Adoption and Maintenance Act 1956, maintenance (Section 3b), apart from financial assistance, also includes food, clothing, shelter, residence, education, medical assistance etc. Similarly, Section 2b of the Maintenance and Welfare Of Parents And Senior Citizen Act 2007, includes food, clothing, residence, medical attendance and treatment.

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Maintenance under Personal Laws in India

1. Hindu Laws

The Hindu Adoption and Maintenance Act 1956 (HMA) obligates children to maintain their parents. The liability or duty to maintain parents lies on both daughters and sons. Only those parents that are not able to maintain themselves from any source have the right to seek maintenance under HMA.

2. Muslim Laws

As per Muslim principles, children have a duty to provide maintenance to their parents since they have a right to be maintained by their parents. However, only when children are financially sound and the parents are poor, they are bound to maintain their parents. Even under Muslim personal laws, both sons and daughters (jointly and equally) have the obligation to maintain the parents. If the child can support only one parent out of the mother and father, the mother gets priority over the father to be maintained.

3. Christian and Parsi Law

No definitive personal laws are there to provide for maintenance for parents under Christian and Parsi laws. If parents/grandparents/senior citizens need maintenance, they could approach the courts/authorities under Cr.P.C. or under the Maintenance of Parents and Senior Citizens Act.

Maintenance under Code of Criminal Procedure Section 125 Cr.P.C.

The Code of Criminal Procedure also lays down rules regarding maintenance for parents, along with wife and children. It states that if any individual having sufficient means neglects/ refuses to maintain his parents (mother or father) who are unable to maintain themselves, the magistrate may (based upon proof of neglect/refusal), order such individual to make monthly allowance for maintenance of (wife or child or) mother or father at such monthly rate as the Magistrate thinks fit and to pay the same to such person as directed by the Magistrate. The two main conditions required for claiming maintenance are that:

1. the father or the mother should not be able to maintain themselves, and

2. the individual against whom an order under Section 125 is passed, should himself/herself have enough means to provide for the maintenance and welfare of his/her parents and yet refuses or neglects to to do. Under Section 125 of Cr.P.C , both mother and father (natural or adoptive) can claim maintenance from their child, including from daughters. Married daughters may also be liable to pay maintenance if they are dependant on her entirely. A step mother can also seek maintenance if she is a widow and does not have any natural born sons/daughters. An application for maintenance against any individual who is liable to pay the same can be filed in any district where parents reside or where the child resides. The Judicial Magistrate of First Class, after presiding over the proceedings, and scrutinizing the evidence and facts and circumstances of the case, may pass an order for maintenance. In case the individual against whom the order for maintenance has been passed fails to obey the order of the court, the court can issue a warrant against such individual in order to collect the due amount. The Court can also attach such individual's immovable property or salary, in case of default.

The Maintenance and Welfare of Parents and Senior Citizens Act, 2007

The objective of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is to legally obligate the legal heirs to provide maintenance to senior citizens. The states under the said Act have the authority to set up maintenance tribunals and appellate tribunals in order to decide matters related to maintenance of the elderly. It also allows the State Govts. to establish old age homes district wise.Senior citizens and parents in India have the legal right to seek a monthly maintenance allowance from their children or legal heirs by approaching the appropriate maintenance tribunal. As per Indian law, both fathers and mothers can claim maintenance, and this obligation applies to sons and daughters, including married daughters. Under the said Act, maintenance can be claimed by parents, grand parents and senior citizens. Mother, father (whether biological or adoptive or step) can claim maintenance. In case of parents, it is not essential as per the Act for them to be senior citizens. Both maternal and paternal grandparents can also claim maintenance under the Act. However, a condition in order to claim maintenance by parents or grandparents is that they should be unable to maintain themselves.

Applying for Maintenance under the Act

The procedure for applying for maintenance under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 has been stated below:

1. Application: A senior citizen or parent can make an application under Section 4 of the Act, to the tribunal constituted for resolving maintenance claims. Details of person from whom maintenance is sought shall be included in this application. Maintenance proceedings are required to be initiated in any district where such citizen i.e. child or relative resides. An Application can be made by the person seeking the maintenance. However, in case he/she is unable to do so, the application can also be made by any other person or registered organisation that is authorised by such parent/grandparent/senior citizen to do so.

2. Notice by Tribunal: A notice shall be issued to the children/grandchildren/relatives after which it conducts the hearing and if the tribunal deems fit, it will pronounce a maintenance order.

3. Re-approaching the Tribunal: If the child/grandchild/relative fails in making the payment of maintenance (without any sufficient reasons) as ordered by the tribunal, for a period of 3 months from the due date, then, in such cases, the senior citizen or parent can approach the tribunal again. If delay is caused by the child/grandchild/relative in question, he/she may be punished with fine or imprisonment up to 1 month which may extend till the amount of maintenance is paid.

Liability to Pay Maintenance to Parents or Grandparents under the Act

In case of grandparents, adult grandchildren and in case of parents, adult children are liable to pay maintenance to respective grandparents or parents. Maintenance can also be claimed from relatives if the parents or grandparents do not have children or grandchildren. However, certain conditions for this must be fulfilled. The relative must be above 18 years of age and should have sufficient means to provide maintenance. Such relative should either be in possession of the senior citizen's property or should be in a position to inherit their property after the death of such person(s).

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Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2018

The said Bill has been introduced by the government in order to expand the ambit of social security for senior citizens by a number of ways including making distant relatives responsible for their maintenance, increasing the fine amount and the imprisonment duration in case of abandoning of parents, etc. The financial cap of 10,000 Rs. of maintenance per month in the 2007 Act has been sought to be removed.

Landmark Judgments for Maintenance and Welfare of Parents

1. Dattatrey Shivaji Mane vs. Lilabai Shivaji Mane & ors.

In this case, the court observed that where a house is self-acquired by the parents, son married or unmarried has no right to live with them. And even if he wants to live with them he has to live in the mercy of his parents until they allow him to live with them. No son has a right to be a burden on his parents throughout his life. Also, it is observed by the court that if children or grandchildren abusing their parents or grandparents are not allowed to stay with him. In this case, the court also points out some objective of the Maintenance And Welfare of Parents And Senior Citizens Act 2007. The court observed that the Act provides the inexpensive, simple, and speedy provision to claim. Also, this Act cast obligation on the citizens to maintain older people also propose provision for setting up old age homes for their proper maintenance. This Act also proposes better medical facilities for old people.

Why do you Need a Lawyer?

Although under the Maintenance and Welfare of Parents and Senior Citizens Act, no party before the Maintenance Tribunal is to be represented by a lawyer and the senior citizens/parents can avail the services of the State Government appointed maintenance officer to represent them during the proceedings, even then, a lawyer is required for maintenance proceedings under Section 125 of the CrPC . It is important to hire a family lawyer in order to understand what legal procedure under what Act/law one should move under in order to attain maintenance. Each case is different and thus personal consultation with a lawyer can ensure that you get the correct advice after the facts and circumstance of your case are understood.

Advocate Chikirsha Mohanty

Greater Kailash - 1, Delhi
5 years

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