Preventing growth of destitution is one of the major objective of a social legislation. Recognizing this fact, the law makers had created provision for ‘maintenance of parents’ under Section 125 of Code of Criminal Procedure, 1973 (CrPC). It cast a duty upon children to maintain their parents.
Notwithstanding this provision, Government of India enacted another law, specifically for parents and senior citizens, wherein children as well as heirs to property of a parent/senior citizen are duty bound to provide for their maintenance. This new Act is titled The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 .
How is the new Act different from Sec 125 of CrPC ?
- Senior Citizens included : Sec 125 CrPC is silent on maintenance of Senior Citizens. It only provides for maintenance of parents. Which means elderly people who are childless and who despite having heirs to their property cannot seek refuge or remedy in Code of Criminal Procedure. Whereas Section 4(1) of Maintenance and Welfare of Parents and Senior Citizens Act clearly stipulates that senior citizens can claim maintenance from legal heirs of their property.
- Application for maintenance : Only the aggrieved parent can file a case under Sec 125 CrPC. Whereas Section 5(1) of Maintenance and Welfare of Parents and Senior Citizens Act says that the application for maintenance can be filed by the senior citizen or parent or an organisation authorised by him or the Tribunal may also take cognizance suo motu, which means that the Tribunal can initiate the case on its own.
- Jurisdiction : Application by the father or the mother claiming maintenance under Sec 125 CrPC has to be filed where the person from whom maintenance is claimed lives. Whereas Section 6(1) of Maintenance and Welfare of Parents and Senior Citizens Act provides that an application for maintenance may be made by a senior citizen or parent against any children or relative in any district where the senior citizen or parent resides or where the children or relative resides.
- Maintenance Tribunal : Only a Magistrate of first class can give an order for maintenance under Sec 125 CrPC. Whereas Section 7 of Maintenance and Welfare of Parents and Senior Citizens Act stipulates constitution of a Maintenance Tribunal, headed by a Sub-Divisional Officer (Sub-Divisional Magistrate) to decide the case.
- Advocates barred : Lawyers / Advocates may represent their clients under Sec 125 of CrPC. Whereas Section 17 of Maintenance and Welfare of Parents and Senior Citizens Act explicitly says that legal practitioners shall not represent any party to a proceeding in the Tribunal or Appellate Tribunal.
- Time bound : Proceedings under Sec 125 of CrPC are not time bound. Whereas Section 5(4) of Maintenance and Welfare of Parents and Senior Citizens Act specifically says that within 90 days from the date of the service of notice of the application, the matter has to be disposed of by the Tribunal.
- Appellate Tribunal for appeals : Any appeal against order of maintenance under Sec 125 of CrPC has to be in accordance with usual procedure prescribed in the Code of Criminal Procedure, 1973. Whereas Section 15 of Maintenance and Welfare of Parents and Senior Citizens Act provides for a separate Tribunal for Appeals. The Appellate Tribunal would be headed by an officer not below the rank of District Magistrate.
- Order on Appeals is time bound : As stated above proceedings under Sec 125 of CrPC are not time bound. Whereas Section 16(6) of Maintenance and Welfare of Parents and Senior Citizens Act says that the Appellate Tribunal shall make all efforts to pronounce its order in writing within 30 days of the receipt of an appeal.
- Provision for Conciliation : Sec 125 of CrPC is silent on conciliation. Whereas Section 6(6) of Maintenance and Welfare of Parents and Senior Citizens Act creates an option for the Tribunal, before hearing an application, to refer the matter to a Conciliation Officer. Report of Conciliation Officer must be submitted to the Tribunal within 30 days. If an amicable settlement is reached then the Tribunal shall order accordingly.
- Comprehensive Legislation : Sec 125 of CrPC is silent on welfare measures, and is confined to provision for maintenance of parents. Whereas Maintenance and Welfare of Parents and Senior Citizens Act is a comprehensive and specific law providing for both maintenance and welfare of parents and senior citizens. It has a broader scope and goes beyond the realm of parent-child relationship. The Act places responsibility on the State for implementing welfare measures for senior citizens.
Law of Maintenance in India
Advantages of new Act
- Statutory Right to claim Maintenance conferred on Parents and Senior Citizens.
- Childless Senior Citizens with legal heirs to their property can also claim maintenance.
- Application for maintenance can be filed in any district where the senior citizen or parent resides or where the children or relative resides.
- Separate Tribunals constituted for hearing cases under the new Act.
- Time bound proceedings make the justice delivery system speedy.
- Inexpensive procedure with no cost of hiring a lawyer.
- Conciliation proceedings given due recognition to maintain amicability in relationships.
- Transfer of property (after commencement of this Act), by gift or otherwise, can be declared void if legal heirs to senior citizen’s property refuse to provide for maintenance of the senior citizen (Section 23).