All Indian Citizens are entitled to fundamental rights granted to them by the Indian Constitution and Senior Citizens are no exception. They are also entitled to fundamental rights to life and personal liberty.
The peaceful living for the senior citizens in their property is the apparent objective of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as "Act 2007").
Courts cannot be left helpless to assist the senior citizens whose rights are protected under the said Act because of obdurate and unreasonable stand of the son/respondent.
Courts have repeatedly acknowledged the right of senior citizens or parents to live peacefully and with dignity.
Dated: MARCH 15, 2017: Delhi High Court has ruled;
Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as "Act 2007")
The Act, 2007, amongst other remedies, provides for eviction of adult children in cases of parental abuse.
The high court has decided that even if The House is not Self-acquired or owned by the Parents, Children who abuse their parents while staying with them in their house can be evicted from the property.
The house need not be self-acquired or owned by the parents. "As long as the parents have the legal possession of the property,
they can evict their abusive adult children (sons and daughters)," the court said.
Interpreting provisions of the Maintenance and Welfare of Parents and Senior Citizens Act 2007 (MWPSCA), Justice Manmohan ruled that the maintenance tribunal of senior citizens "can issue an eviction order to ensure that senior citizens live peacefully in their house without being forced to accommodate a son/daughter who physically assaults and mentally harasses them or threatens to dispossess them.
This is a major improvisation in a 2007 law that had left it to state governments to frame rules to protect the life and property of senior citizens.
Dated: 24th November, 2016
Earlier it was decided by the High Court that: Son irrespective of his marital status can live in Parents house only at the wish and mercy of his Parents, up to the time the Parents allow.
"15. Where the house is self acquired house of the parents, son whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout his life……………"
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 24th November, 2016
RSA 136/2016 & CM No.19123/2016
SACHIN & ANR ..... Appellants Through: Appellant No.1 in person
JHABBU LAL & ANR ..... Respondents
Dated: 19th December, 2016:
Also, The Government of Delhi has notified that:
"Senior Citizens can evict negligent son or daughter from their home in 21 days time, by lodging complaint with DC
The notification of the government of Delhi is self explanatory.
SOCIAL WELFARE DEPARTMENT NOTIFICATION
Delhi, the 19th December, 2016
F. No. 30(405)/Amendment of Rules-MAWPSC2007/DD(SS)/DSW/2015-16/24836-865
F. No. 30(405)/Amendment of Rules-MAWPSC2007/DD(SS)/DSW/2015-16/24836-865.— In exercise of the powers conferred by section 32 read with clause (i) of Section 2 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, the Lt. Governor, National Capital Territory of Delhi hereby makes the rules to amend the "Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009." These rules provided under section: 14 Action by the Tribunal in other cases.-
And Delhi Maintenance and welfare of Parents and Senior Citizens Rules, 2016 was notified.
The apex court had previously decided that:
Parents can deny family property to negligent children. The other states can also act in such manner like Delhi Government and provide cost effective and speedy relief to elderly and aged, Parents.
Armed with the executive order and decisions by courts of law: the Lawyers/Law Firms/NGO’s etc can also fetch speedy and sure relief for their clients/members.
Article 226 of the Constitution of India
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose
Maintenance and Welfare of Parents and Senior Citizens Act, 2007
AN ACT to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognized under the Constitution and for matters connected therewith or incidental thereto.
In this Act, unless the context otherwise requires,—
d. "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;
f. "property" means property of any kind, whether movable or immovable, ancestral or self acquired, tangible or intangible and includes rights or interests in such property;
h. "senior Citizen" means any person being a citizen of India, who has attained the age of sixty years or above;
k. "welfare" means provision for food, health care, recreation centers and other amenities necessary for the senior citizens.
4. Maintenance of parents and senior citizens.-
3. The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be, so that such parent may lead a normal life.
4. 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:
22. Authorities who may be specified for implementing the provisions of this Act.-
1. The State Government may, confer such powers and impose such duties on a District Magistrate as may be necessary, to ensure that the provisions of this Act are properly carried out
2.The State Government shall prescribe a comprehensive action plan for providing protection of life and property of senior citizens.
23. Transfer of property to be void in certain circumstances.-
1. Where any senior citizen who, after the commencement 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 Tribunal.
2. Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right.
3. If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of section 5.
32. Power of State Government to make rules.-
e. the powers and duties of the authorities for implementing the provisions of this Act, under sub-section (1) of section 22;
f. a comprehensive action plan for providing protection of life and property of senior citizens under sub-section (2) of section 22;
Section 4 of the Act, 2007 did not make it mandatory for a senior citizen to own a property from which he/she was seeking eviction of his/her children or relatives…………….a senior citizen who was not able to maintain himself/herself from his/her own earnings or from the earning of any of the properties owned by him/her was entitled to make an application under the Act, 2007.
Normal life would certainly include a right to peacefully live in oneâ€Ÿs own property and being not prevented from use thereof and recovering rent thereof.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 13th October, 2015
W.P.(C) 9717/2015 & CM No.23286/2015 (for stay)
Versus GOVT. OF NCT OF DELHI & ORS
CORAM:- HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
The court’s verdict came after it heard an appeal filed by an alcoholic former policeman and his brother, challenging a Maintenance Tribunal’s October 2015 order to evict the two from the residence where their elderly and ailing parents lived. The brothers had contended that the tribunal had exceeded its jurisdiction in passing the eviction order as there was no claim for maintenance and the relief was granted only on the allegations of physical assault, maltreatment, harassment and forceful ouster of their parents from the property.
The alcoholic, whose services were terminated from Delhi Police, had said that even in cases of parental abuse, no eviction order could be passed under the Maintenance and Welfare of Parents and Senior Citizens Act 2007. The court, while interpreting the provisions of the Act, said the "senior citizens’ maintenance tribunal can issue eviction order to ensure that senior citizens live peacefully in their house without being forced to accommodate a son who physically assaults and mentally harasses them or threatens to dispossess them".
In its illustrated judgment, the court noted that the directions to evict the adult children from the property was necessary in certain cases like the present one, to ensure a normal life for senior citizens. The court found that the Delhi government’s rules allowed a senior citizen to complain to district authorities to evict abusive children only from a self-acquired property, despite the fact that the Act makes no such distinction and gives protection to parents even in a rented accommodation.
The court, consequently, directed the Delhi government to amend its rules and formulate an action plan to protect the life and property of senior citizens.
The court stated "the Act, 2007, amongst other remedies, provides for eviction of adult children in cases of parental abuse, like in the present case," and asked the SDM concerned and SHO, police station Civil lines, to ensure that the sons were evicted from the house immediately.
2……The present writ petition has been filed by Mr. Sunny Paul and Mr. Victor Dass, two sons of respondents No. 2 and 3 challenging the order dated 01 st October, 2015, passed by the Maintenance Tribunal (Central District) Delhi, under the Act 2007 whereby both the petitioners along with their respective family members were directed to vacate House No.19A, Raj Niwas Marg, Civil Lines, Delhi-110054 (hereinafter referred to as "the property").
3. The admitted facts are that the Baptist Church Trust Association (hereinafter referred to as "BCTA") is the absolute owner of the property.
Respondents No. 2 and 3 were subjected to mental and physical cruelty by the petitioners which fact was confirmed from the Medico Legal Document (MLC) filed by the respondents
9. In the petition filed under the Act, 2007, it was alleged that both the petitioners had physically assaulted, mal-treated and harassed the elderly and sick parents. It was averred that petitioner No.1-Sunny Paul is an alcoholic, whose services had been terminated by the Delhi Police on the ground of mis-conduct and who had been convicted in a fraud case and against whom a number of police complaints are pending in different police stations. It was further averred that senior citizens had already disowned and disinherited both the petitioners by way of publication in newspapers.
10. The Maintenance Tribunal by a detailed order directed the petitioners to vacate the property within ten days. The SHO, Police Station Civil Lines was directed to ensure enforcement/compliance of the said direction and to ensure that life and property of the senior citizens was secured and no harassment was caused to them by the petitioners and their families.
The High court analyzed various sections of the Act, referred to constitutional provisions, plethora of judgments, framed issues and answered these to make the judgment as clear as water.
SCHEME OF THE ACT:
In order to appreciate and answer the aforesaid questions in the context of the factual matrix, it is necessary to analyze the relevant provisions of the said Act. The Statement of Objects and Reasons set out that the traditional norms and values of the Indian Society which lay stress on providing care for elderly getting diluted due to the withering of the joint family system, the elders are facing emotional neglect and lack of physical and financial support.
Thus, ageing has become a major social challenge and despite the provisions of the Code of Criminal Procedure, 1973 for maintenance, it was deemed necessary that there should be simple, inexpensive and speedy provisions to claim maintenance for the parents. The Act is not restricted to only providing maintenance but cast an obligation on the persons who inherit the property of their aged relatives to maintain such aged relatives. One of the major aims was to provide for the institutionalization of a suitable mechanism for the protection of „life and property of older personsâ€Ÿ.
Whether the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as "Act 2007") provides the sole remedy of monetary maintenance by the children/relative and/or does it provide for eviction of adult children in cases of parental abuse?
A. IN VIEW OF THE LIMITED NOTICE ISSUED BY THIS COURT ON 5 TH NOVEMBER, 2015, THE PETITIONER NO. 1 IS ESTOPPED FROM ARGUING THE PRESENT WRIT PETITION ON MERITS
31. Consequently, the petitioner no. 1-Mr. Sunny Paul having got the settlement rescinded is estopped from arguing the present writ petition. However, as this Court had heard extensive arguments and the issues raised in the present petition arise in a number of petitions, this Court is pronouncing on the various legal issues raised by the parties.
B. WHETHER A CLAIM FOR EVICTION BEFORE THE MAINTENANCE TRIBUNAL IS MAINTAINABLE UNDER SECTION 23 OF ACT 2007 AND THAT TOO ON ALLEGATIONS OF FORCEFUL OUSTER AND IN THE ABSENCE OF A CLAIM FOR MAINTENANCE?
40. Consequently, Section 4 and Section 23 are separate and distinct remedies and the claim for maintenance is not a condition precedent for passing an eviction order under Section 23 of the Act, 2007.
C. WHETHER A CLAIM FOR EVICTION IS MAINTAINABLE WHEN THE SENIOR CITIZEN IS NOT THE ABSOLUTE OWNER OF THE PROPERTY IN QUESTION?
46. Consequently, the interest of the respondents in the property, whether as licencees or tenants, falls within the definition of "property" under sections 2(f) and 23 of the Act 2007 and their claim for eviction is maintainable, even though they are not the owners of the property in question
D. WHETHER A CLAIM FOR EVICTING THE CHILDREN FROM THE PROPERTY IS MAINTAINABLE BEFORE THE MAINTENANCE TRIBUNAL WHEN THE CHILDREN ARE NOT IN LINE TO INHERIT SUCH PROPERTY?
51. Consequently, directions to remove the children from the property is necessary in certain cases like the present to ensure a normal life of the senior citizens.
E. WHETHER IN THE ABSENCE OF A COMPREHENSIVE ACTION PLAN FOR PROTECTING THE LIFE AND PROPERTY OF SENIOR CITIZENS UNDER SECTION 22 OF THE ACT, 2007 THE MAINTENANCE TRIBUNAL HAS THE JURISDICTION TO ORDER EVICTION?
58. Consequently, even in the absence of a comprehensive action plan for protecting the life and property of senior citizens under Section 22 of the Act, 2007, on the date the impugned order was passed, the Maintenance Tribunal had the jurisdiction to pass an order of eviction.
F. 333333326555555555555555555555WHETHER THE MAINTENANCE TRIBUNAL CONSTITUTED UNDER THE ACT, 2007 HAS THE JURISDICTION TO ISSUE DIRECTIONS TO GIVE EFFECT TO AN EVICTION ORDER UNDER SECTION 23 OF THE ACT, 2007?
71. Consequently, the Maintenance Tribunal has the jurisdiction to not only pass an eviction order but also to issue directions to give effect to the same under Section 23 of the Act 2007.
73. Keeping in view the aforesaid conclusions, this Court is of the view that the Act, 2007, amongst other remedies, provides for eviction of adult children in cases of parental abuse–like in the present case. Accordingly, the present writ petition and application are dismissed and the concerned SDM and SHO, Police Station Civil Lines, are directed to forthwith comply with the impugned order dated 1st October, 2015 passed by the Maintenance Tribunal, Central District, Delhi.
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 10463/2015 & CM APPL. 43227/2016
SUNNY PAUL & ANR. ..... Petitioners
STATE NCT OF DELHI & ORS. ..... Respondents
MARCH 15, 2017