Protection of Senior Citizens:

Rights of Senior Citizens in India are protected under the Constitution of India. Provisions have been made in the Constitution of India to preserve the rights of those aged above 60. Since these articles are part of Chapter IV of the constitution which corresponds to Directive Principles, they cannot be enforced by a court of law as stated in Article 37, however, they are the basis upon which any legislation is drafted.

Article 41 of the Constitution secures the right of senior citizens to employment, education and public assistance. It also ensures that the state must uphold these rights in cases of disability, old age or sickness. Meanwhile, Article 46 asserts that the educational and economic rights of the elderly must be protected by the state.

Apart from the above article, even under the personal Laws, the rights of Senior Citizens are protected.

Article 46 : Promotion of educational and economic interests of ……. and other weaker sections : The State shall promote with special care the educational and economic interests of the weaker sections of the people…..and shall protect them from social injustice and all forms of exploitation.

Hindu law:

The provision for maintenance of parents under the Hindu Law is provided in section 20 of the Hindu Adoption and Maintenance Act, 1956. This Act imposes an obligation on the children to maintain their parents. As is evident from the wording of the section, the obligation to maintain parents is not confined to sons only, and daughters also have an equal duty towards parents. It is important to note that only those parents who are financially unable to maintain themselves from any source, are entitled to seek maintenance under this Act.

Apart from the above, the Government of India has also launched many schemes for the senior citizens which includes pension scheme, old age home etc.

Maintenance and Welfare of Parents and Senior Citizen Act, 2007

In the year 2007, the Government of India also passed a new Act namely, Maintenance and Welfare of Parents and Senior Citizen Act, 2007 for the protection of senior citizen in India.

A senior citizen including parent who is unable to maintain himself from his own earning or out of the property owned by him, is entitled to get relief under this Act. Children/grand children are under obligation to maintain his or her parent either father, mother or both. Likewise, relative of a senior citizen is also bound to look after the senior citizen. If such children or relative is not maintaining his parents or senior citizen respectively, then the parents/senior citizen can seek the assistance of Tribunal constituted under this Act, to enforce the remedy of maintenance. Such parents/ senior citizen can file an application before the Tribunal, claiming maintenance and other reliefs from their children/relatives as the case may be.

Section 5: Under this act, a senior citizen or a parent can make an application under section 5 of the Act, for the maintenance before the Tribunal. If the senior citizen or parent is incapable, then such application can be moved by any other person, organization authorized by him. Under this act, the tribunal has been given power even order monthly allowance for the maintenance of such senior citizen including parent.

Once the application is received by the Tribunal may hold the enquiry for determining the amount of maintenance.

Section 19: Under this section, the state government is empowered to establish and maintain old age homes.

PROTECTION OF LIFE AND PROPERTY OF SENIOR CITIZEN: Protection of Senior Citizens

If a Senior Citizen or Parent is being abused by his/her children or any of his/her son/daughter or any other person, then under this act, he or she has the right to move an application/complaint under section 22 of the Act before the District Magistrate and the District Magistrate has to ensure that all the provisions of this act are being properly carried out. Under this act, District Magistrate is duty bound to protect the life and property of a Senior Citizen.

TRANSFER OF PROPERTY TO BE VOID:

Under section 23 of this act, the senior citizen is protected with regard to his transfer of his property as well. If a senior citizen has by way of gift or otherwise, his property, subject to the condition that the transferee shall provide 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 Tribunal.

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Judgments on Protection of Senior Citizens: 

SUPREME COURT OF INDIA

Dr Dhananjaya Y Chandrachud, Indu Malhotra and Indira Banerjee, JJ.

Decided: 2020

Maintenance and Welfare of Parents and Senior Citizens Act , 2007 Section 4 Protection of Woman from Domestic Violence Act , 2005 , Section 17 -Woman right in shared house – Rghts of women to secure housing recognise right of woman to reside in matrimonial home or shared household, whether or not she has any title or right in shared household – Allowing Senior Citizens Act 2007 to have overriding force and effect in all situations would defeat object and purpose sought to achieve in enacting Act 2005 – Law protecting interest of senior citizens is intended to ensure that they are not left destitute, or at mercy of their children or relatives – Equally, purpose of PWDV Act 2005 cannot be ignored by sleight of statutory interpretation – Both sets of legislations have to be harmoniously construed – Hence right of woman to secure residence order in respect of shared household cannot be defeated by simple expedient of securing order of eviction by adopting summary procedure under Senior Citizens Act.

KERALA HIGH COURT

Mr. Sathish Ninan, J.

Decided: 2020

Protection of Senior Citizens, Kerala Maintenance and Welfare of Parents and Senior Citizens Act , 2007, Section 22 (1) – Kerala Maintenance and Welfare of Parents and Senior Citizens Rule, 2009, Rule 19 – Eviction of son and family from residential building of senior citizen as he is not being permitted to lead a normal life there, with security and dignity – Held, District Magistrate under Rule 19(2)(i)has power to order eviction, to ensure peaceful living of senior citizen with security and dignity.

PUNJAB AND HARYANA HIGH COURT

Arun Monga, J.

Decided: 2020

Protection of Senior Citizens, Maintenance and Welfare of Parents and Senior Citizens Act , 2007 Sections 4 and 5 Eviction – Widowed daughter in law assailed order passed by Deputy Commissioner cum Maintenance Tribunal under Maintenance and Welfare of Parents and Senior Citizen Act directing petitioner to vacate her matrimonial home – Petitioner has created highly tense atmosphere in house so that sons of respodent left house and entire portion of theirs comes to her – Her alleged motive is to grab selfacquired properties of respondent including house in question – Respondent has along since death of his son petitioner’s husband has allowed petitioner to stay in his house, supporting and taking care of petitioner and her children – If petitioner’s attitude and behavior would have been appropriate, it is highly unlikely that now respondent at age of 82 when he needs to be looked after, especially having lost his wife too, would refuse to allow her to stay in his house – Nothing wrong or illegal in impugned order – Petition dismissed.

PUNJAB AND HARYANA HIGH COURT

Arun Monga, J.

Decided: 2020

Protection of Senior Citizens, Maintenance and Welfare of Parents and Senior Citizens Act , 2007 Section 22 and 23 Punjab Maintenance and Welfare of Parents and Senior Citizens Rules 2012, Rule 22 – Protection of right of senior citizens – Jurisdiction of Tribunal – Even if petitioner daughter in law of applicant holds any share in house in question or that she is entitled to rendition of business accounts and to recover any amount from father-in-law or that she is entitled to any declaration qua will or that she is unable to maintain herself and to arrange for her residence and is entitled to maintenance and residence against father-in-law – Any such rights cannot be claimed by or be granted to petitioner in petition filed by father-in-law under Maintenance and Welfare of Parents and Senior Citizens Act – If at all petitioner has any such claim, she has to seek that remedy before appropriate Court.

PUNJAB AND HARYANA HIGH COURT

Arun Monga, J.

Decided: 2020

Protection of Senior Citizens, Maintenance and Welfare of Parents and Senior Citizens Act , 2007 Section 22 and 23 Punjab Maintenance and Welfare of Parents and Senior Citizens Rules 2012, Rule 22 – Protection of right of senior citizens – Jurisdiction of Tribunal – Where any senior citizen , after commencement of Act , has transferred by any way, his property, subject to condition that transferee shall provide basic amenities and basic physical needs to transferor – Such transferee refuses or fails to provide such amenities and physical needs – By necessary implication, Tribunal has power to declare transfer as void and restore ownership and possession of property to senior citizen – Thus, Tribunals under Act have jurisdiction to entertain complaint of senior citizen and enforce his rights for protection of life and “property” against transgression by his children and relatives.

KERALA HIGH COURT

Mr. Raja Vijayaraghavan V, J.

Decided: 2020

Protection of Senior Citizens, Maintenance and Welfare of Parents and Senior Citizens Act , 2007 Sections 5 and 11 (2) Criminal Procedure Code, 1973 Section 421 Warrant for levy of fine – Maintenance – It is the duty of Tribunal to see that payments are secured and the amount is paid to the parent and senior citizen – Only obligation placed on the parent or senior citizen is to present an application within three months from the date on which the amount becomes due – Despite execution of the warrant issued on the application that is to be filed within 3 months of the amount becoming due, if the amount is not paid, law contemplates a breach for the non-payment of each month’s allowance and for such breach, the defaulter is liable to be imprisoned.

Author is Practicing Advocate in Punjab and Haryana High Court at Chandigarh