Parental Law
Querist :
Anonymous
(Querist) 04 August 2011
This query is : Resolved
Hi
I am married and working in S/w firm. My father had expired two years back. I had seperated from my mother and younger brother. My father had a house and few savingings(Fixed deposits) at time of his death. I had transfered saving on my mothers name. but house is still on my fathers name. Now, I have disputes between my mother and brother, so I fled to a rented house. I have no interest in my father, mother or brothers assets nor the house. But, I want to get rid of any criminal or Family law concerns. Since, my brother is a crook and he wanted to harrase me. Please, suggest the way to get legal affair so that I will not have any kind of relations with my mother or brother with House or Parental laws.
Thanks in advance.
ajay sethi
(Expert) 04 August 2011
1) you have stated that you have no interests in family property .
2)in addition you have stated that you want to get rid of criminal or family law concerns and that your brother is harassing you . unless you give detailed particulars it is not possible to advise you
Querist :
Anonymous
(Querist) 04 August 2011
Yes, I have no interest in my family property. But, i am suspecting that my brother want to harrase me by lodging complaint at Police station that inturn I am harasing my brother and mom for my share.
I would like to know if there is any process that declares that I am not in interest of their money or assets and their caretaking (mom & brother)?
Querist :
Anonymous
(Querist) 04 August 2011
Also, if anythings happen to them, I will be not responsible to any of the criminal actions since it is not my money any more?
ajay sethi
(Expert) 04 August 2011
you can execute a deed of renunciation wherein you can renounce your share of property in favour of your mother/brother
Querist :
Anonymous
(Querist) 04 August 2011
Thank you Ajay for your quick reply.
One more query if you dont mind.
Is it in the law that children have to pay or take care of their parents in their old age, when they(parents) have sufficient money and home to live?
prabhakar singh
(Expert) 04 August 2011
yes! there is a law passed in 2007 which lays down obligation on you also,so if you want to get out of it deed of renunciation should be written in favor of mother alone and in consideration of your freedom from liability to pay maintenance to her.
please see:
THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007
TEXT is below:
THE 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.
Be it enacted by Parliament in the Fifty-eighth Year of the Republic of India as follows :-
CHAPTER 1
PRELIMINARY
1. Short title extent, Application and commencement : (1) This Act may
be called the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
(2) It Extends to the whole of India except the State of Jammu and Kashmir and it applies
also to citizens of India outside India.
(3) It shall come into force in a State on such date as the State Government may, by
notification in the Official Gazette, appoint.
2. Definitions : In this Act, unless the context otherwise requires,—
(a) “children” includes son, daughter, grandson and grand-daughter but does not
include a minor;
(b) “maintenance” includes provision for food, clothing, residence and medical
attendance and treatment;
(c) “minor” means a person who, under the provisions of the Indian Majority Act, 1875, (9
of 1875) is deemed not to have attained the age of majority;
(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;
(e) “prescribed” means prescribed by rules made by the State Government under this
Act;
(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;
(g) “relative” means any legal heir of the childless senior citizen who is not a minor and
is in possession of or would inherit his property after his death;
(h) “senior Citizen” means any person being a citizen of India, who has attained the age
of sixty years or above;
(i) “State Government”, in relation to a Union territory, means the administrator thereof appointed under article 239 of the Constitution;
(j) “Tribunal” means the Maintenance Tribunal constituted under section 7;
(k) “welfare” means provision for food, health care, recreation centres and other
amenities necessary for the senior citizens.
3. Act to have overriding effect : The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained in any enactment other than this Act, or
in any instrument having effect by virtue of any enactment other than this Act.
CHAPTER II
MAINTENANCE OF PARENTS AND SENIOR CITIZENS
4. Maintenance of parents and senior citizens : (1) A senior citizen including parent who
is unable to maintain himself from his own earning or out of the property owned by him, shall be
entitled to make an application under section 5 in case of—
(i) parent or grand-parent, against one or more of his children not being a minor;
(ii) a childless senior citizen, against such of his relative referred to in clause (g) of
section 2.
(2) The obligation of the children or relative, as the case may be, to maintain a senior citizen
extends to the needs of such citizen so that senior citizen may lead a normal life.
(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:
Provided that where more than one relatives are entitled to inherit the property of a senior
citizen, the maintenance shall be payable by such relative in the proportion in which they would
inherit his property.
5. Application for maintenance : (1) An application for maintenance under section 4, may
be made—
(a) by a senior citizen or a parent, as the case may be; or
(b) if he is incapable, by any other person or organisation authorised by him; or
(c) the Tribunal may take cognizance suo motu.
Explanation.- For the purposes of this section “organisation” means any voluntary
association registered under the Societies Registration Act, 1860, (21 of 1860) or any other law
for the time being in force.
(2) The Tribunal may, during the pendency of the proceeding regarding monthly
allowance for the maintenance under this section, order such children or relative to make a
monthly allowance for the interim maintenance of such senior citizen including parent and to pay
the same to such senior citizen including parent as the Tribunal may from time to time direct.
(3) On receipt of an application for maintenance under sub-section (1) after giving notice
of the application to the children or relative and after giving the parties an opportunity of being
heard, hold an inquiry for determining the amount of maintenance. (4) An application filed under sub-section (2) for the monthly allowance for the
maintenance and expenses for proceeding shall be disposed of within ninety days from the date
of the service of notice of the application to such person:
Provided that the Tribunal may extend the said period, once for a maximum period of thirty
days in exceptional circumstances for reasons to be recorded in writing.
(5) An application for maintenance under sub-section (1) may be filed against one or more
persons:
Provided that such children or relative may implead the other person liable to maintain
parent in the application for maintenance.
(6) Where a maintenance order was made against more than one person, the death of
one of them does not affect the liability of others to continue paying maintenance.
(7) Any such allowance for the maintenance and expenses for proceeding shall be
payable from the date of the order, or, if so ordered, from the date of the application for
maintenance or expenses of proceeding, as the case may be.
(8) If, children or relative so ordered fail, without sufficient cause to comply with the order,
any such Tribunal may, for every breach of the order, issue a warrant for levying the amount due
in the manner provided for levying fines, and may sentence such person for the whole, or any
part of each month’s allowance for the maintenance and expenses of proceeding, as the case
may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which
may extend to one month or until payment if sooner made whichever is earlier:
Provided that no warrant shall be issued for the recovery of any amount due under this
section unless application be made to the Tribunal to levy such amount within a period of three
months from the date on which it became due.
6. Jurisdiction and procedure : (1) The proceedings under section 5 may be taken
against any children or relative in any district—
(a) where he resides or last resided; or (b) where children or relative resides.
(2) On receipt of the application under section 5, the Tribunal shall issue a process for
procuring the presence of children or relative against whom the application is filed.
(3) For securing the attendance of children or relative the Tribunal shall have the power of
a Judicial Magistrate of first class as provided under the Code of Criminal Procedure, 1973. (2 of
1974)
(4) All evidence to such proceedings shall be taken in the presence of the children or
relative against whom an order for payment of maintenance is proposed to be made, and shall be
recorded in the manner prescribed for summons cases:
Provided that if the Tribunal is satisfied that the children or relative against whom an order
for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully
neglecting to attend the Tribunal, the Tribunal may proceed to hear and determine the case ex
parte.
(5) Where the children or relative is residing out of India, the summons shall be served by
the Tribunal through such authority, as the Central Government may by notification in the official
Gazette, specify in this behalf.
(6) The Tribunal before hearing an application under section 5 may, refer the same to a Conciliation Officer and such Conciliation Officer shall submit his findings within one month and if
amicable settlement has been arrived at, the Tribunal shall pass an order to that effect.
Explanation.- For the purposes of this sub-section “Conciliation Officer” means any person
or representative of an organisation referred to in Explanation to sub-section (1) of’ section 5 or
the Maintenance Officers designated by the State Government under subsection (1) of section 18
or any other person nominated by the Tribunal for this purpose.
7. Constitution of Maintenance Tribunal : (1) The State Government shall within a period
of six months from the. date of the. commencement of this Act, by notification in the Official
Gazette, constitute for each Subdivision one or more Tribunals as may be specified in the
notification for the purpose of adjudicating and deciding upon the order for maintenance under
section 5
(2) The Tribunal shall be presided over by an officer not below the rank of Sub-Divisional
Officer of a State.
(3) Where two or more Tribunals are constituted for any area, the State Government may,
by general or special order, regulate the distribution of business among them.
8. Summary procedure in case of inquiry : (1) In holding any inquiry under section 5, the
Tribunal may, subject to any rules that may be prescribed by the State Government in this behalf,
follow such summary procedure as it deems fit.
(2) The Tribunal shall have all the powers of a Civil Court for the purpose of taking
evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery
and production of documents and material objects and for such other purposes as may be
prescribed; and the Tribunal shall be deemed to be a Civil Court for all the purposes of section
195 and Chapter XXVI of the Code of Criminal Procedure, 1973. (2 of 1974)
(3) Subject to any rule that may be made in this behalf, the Tribunal may, for the purpose
of adjudicating and deciding upon any claim for maintenance, choose one or more persons
possessing special knowledge of any matter relevant to the inquiry to assist it in holding the
inquiry.
9. Order for maintenance: (1) If children or relatives, as the case may be, neglect or
refuse to maintain a senior citizen being unable to maintain himself, the Tribunal may, on being
satisfied of such neglect or refusal, order such children or relatives to make a monthly allowance
at such monthly rate for the maintenance of such senior citizen, as the Tribunal may deem fit and
to pay the same to such senior citizen as the Tribunal may, from time to time, direct.
(2) 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.
10. Alteration in allowance : (1) On proof of misrepresentation or mistake of fact or a
change in the circumstances of any person, receiving a monthly allowance under section 9, for
the maintenance ordered under that section to pay a monthly allowance for the maintenance, the
Tribunal may make such alteration, as it thinks fit, in the allowance for the maintenance.
(2) Where it appears to the Tribunal that, in consequence of any decision of a 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.
11. Enforcement of order of maintenance : (1) A copy or the order of maintenance and
including the order regarding expenses of proceedings, as the case may be, shall be given
without payment of any fee to the senior citizen or to parent, as the case may be, in whose favour
it is made and such order may be enforced by any Tribunal in any place where the person against
whom it is made, such Tribunal on being satisfied as to the identity of the parties and the nonpayment of the allowance, or as the case may be, expenses, due.
(2) A maintenance order made under this Act shall have the same force and effect as an
order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be
executed in the manner prescribed for the execution of such order by that Code.
12. Option regarding maintenance in certain cases : Notwithstanding anything contained
in Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) where a senior citizen or a
parent is entitled for maintenance under the said Chapter and also entitled for maintenance under
this Act may, without prejudice to the provisions of Chapter IX of the said Code, claim such
maintenance under either of those Acts but not under both.
13. Deposit of maintenance amount : When an order is made under this Chapter, the
children or relative who is required to pay any amount in terms of such order shall, within thirty
days of the date of announcing the order by the Tribunal, deposit the entire amount ordered in
such manner as the Tribunal may direct.
14. Award of interest where any claim is allowed : Where any Tribunal makes an order
for maintenance made under this Act, such Tribunal may direct that in addition to the amount of
maintenance, simple interest shall also be paid at such rate and from such date not earlier than
the date of making the application as may be determined by the Tribunal which shall not be less
than five per cent, and not more than eighteen per cent.:
Provided that where any application for maintenance under Chapter IX of the Code of
Criminal Procedure, 1973 (2 of 1974) is pending before a Court at the commencement of this
Act, then the Court shall allow the withdrawal of such application on the request of the parent and
such parent shall be entitled to file an application for maintenance before the Tribunal
15. Constitution of Appellate Tribunal : (1) The State Government may, by notification in
the Official Gazette, constitute one Appellate Tribunal for each district to hear the appeal against
the order of the Tribunal.
(2) The Appellate Tribunal shall be presided over by an officer not below the rank of District
Magistrate.
16. Appeals : (1) 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 :
Provided that on appeal, the children or relative who is required to pay any amount in terms
of such maintenance order shall continue to pay to such parent the amount so ordered, in the
manner directed by the Appellate Tribunal: Provided further that the Appellate Tribunal may, entertain the appeal after the expiry of the
said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from
preferring the appeal in time.
(2) On receipt of an appeal, the Appellate Tribunal shall, cause a notice to be served upon
the respondent.
(3) The Appellate Tribunal may call for the record of proceedings from the Tribunal against
whose order the appeal is preferred.
(4) The Appellate Tribunal may, after examining the appeal and the records called for either
allow or reject the appeal.
(5) 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:
Provided that no appeal shall be rejected unless an opportunity has been given to both the
parties of being heard in person or through a duly authorised representative.
(6) The Appellate Tribunal shall make an endeavour to pronounce its order in writing within
one month of the receipt of an appeal.
(7) A copy of every order made under sub-section (5) shall be sent to both the parties free of
cost.
17. Right to legal representation : Notwithstanding anything contained in any law, no
party to a proceeding before a Tribunal or Appellate Tribunal shall be represented by a legal
practitioner
18. Maintenance Officer : (1) The State Government shall designate the District Social
Welfare Officer or an officer not below the rank of a District Social Welfare Officer, by whatever
name called as Maintenance Officer.
(2) The Maintenance Officer referred to in sub-section (1), shall represent a parent if he so
desires, during the proceedings of the Tribunal, or the Appellate Tribunal, as the case may be.
CHAPTER Ill
ESTABLISHMENT OF OLDAGE HOMES
19. Establishment of oldage homes : (1) The State Government may establish and
maintain such number of oldage homes at accessible places, as it may deem necessary, in a
phased manner, beginning with at least one in each district to accommodate in such homes a
minimum of one hundred fifty senior citizens who are indigent.
(2) The State Government may, prescribe a scheme for management of oldage homes,
including the standards and various types of services to be provided by them which are
necessary for medical care and means of entertainment to the inhabitants of such homes.
Explanation.-For the purposes of this section, “indigent” means any senior citizen who is not
having sufficient means, as determined by the State Government, from time to time, to maintain
himself.CHAPTER IV
PROVISIONS FOR MEDICAL CARE OF SENIOR CITIZEN
20. Medical support for senior citizen : The State Government shall ensure that, -
(i) the Government hospitals or hospitals funded fully or partially by the Government
shall provide beds for all senior citizens as far as possible;
(ii) separate queues be arranged for senior citizens;
(iii) facility for treatment of chronic, terminal and degenerative diseases is expanded for
senior citizens;
(iv) research activities for chronic elderly diseases and ageing is expanded;
(v) there are earmarked facilities for geriatric patients in every district hospital duly
headed by a medical officer with experience in geriatric care.
CHAPTER V
PROTECTION OF LIFE AND PROPERTY OF SENIOR CITIZEN
21. Measures for publicity awareness, etc., for welfare of senior citizen : The State
Government shall, take all measures to ensure that—
(i) the provisions of this Act are given wide publicity through public media including the
television, radio and the print, at regular intervals;
(ii) the Central Government and State Government Officers, including the police officers
and the members of the judicial service, are given periodic sensitization and awareness training
on the issues relating to this Act;
(iii) effective co-ordination between the services provided by the concerned Ministries or
Departments dealing with law, home affairs, health and welfare, to address the issues relating to
the welfare of the senior citizens and periodical review of the same is conducted.
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 and the
District Magistrate may specify the officer, subordinate to him, who shall exercise all or any of the
powers, and perform all or any of the duties, so conferred or imposed and the local limits within
which such powers or duties shall be carried out by the officer as may be prescribed.
(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 subsection (1) of section 5.
CHAPTER VI
OFFENCES AND PROCEDURE FOR TRIAL
24. Exposure and abandonment of senior citizen : Whoever, having 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 of either description for a
term which may extend to three months or fine which may extend to five thousand rupees or with
both.
25. Cognizance of offences : (1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973, (2 of 1974) every offence under this Act shall be cognizable and
bailable.
(2) An offence under this Act shall be tried summarily by a Magistrate.
CHAPTER VII
MISCELLANEOUS
26. Officers to be public servants : Every officer or staff appointed to exercise functions
under this Act shall be deemed to be a public servant within the meaning of section 21 (45 of
1860) of the Indian Penal Code.
27. Jurisdiction of civil courts barred : No Civil Court shall have jurisdiction in respect
of any matter to which any provision of this Act applies and no injunction shall be granted by any
Civil Court in respect of anything which is done or intended to be done by or under this Act.
28. Protection of action taken in good faith : No suit, prosecution or other legal
proceeding shall lie against the Central Government, the State Governments or the local authority
or any officer of the Government in respect of anything which is done in good faith or intended to
be done in pursuance of this Act and any rules or orders made thereunder.
29. Power to remove difficulties : If any difficulty arises in giving effect to the provisions
of this Act, the State Government may, by order published in the Official Gazette, make such
provisions not inconsistent with the provisions of this Act, as appear to it to be necessary or
expedient for removing the difficulty:
Provided that no such order shall be made after the expiry of a period of two years from the
date of the commencement of this Act.
30. Power of Central Government to give directions : The Central Government may give
directions to State Governments as to the carrying into execution of the provisions of this Act.
31. Power of Central Government to review : The Central Government may make
periodic review and monitor the progress of the implementation of the provisions of this Act by the
State Governments.
32. Power of State Government to make rules : (1) The State Government may, by
notification in the Official Gazette, make rules for carrying out the purposes of this Act. (2) Without prejudice to the generality of the foregoing power, such rules may provide for—
(a) the manner of holding inquiry under section 5 subject to such rules as may be
prescribed under sub-section (1) of section 8;
(b) the power and procedure of the Tribunal for other purposes under subsection (2) of
section 8;
(c) the maximum maintenance allowance which may be ordered by the Tribunal under
sub-section (2) of section 9;
(d) the scheme for management of oldage homes, including the standards and various
types of services to be provided by them which are necessary for medical care and means of
entertainment to the inhabitants of such homes under sub-section (2) of section 19;
(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;
(g) any other matter which is to be, or may be, prescribed.
(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before
each House of State Legislature, where it consists of two houses or where such legislature
consists of one House, before that House
Querist :
Anonymous
(Querist) 04 August 2011
Thankyou All.
ESTHERPRIYA
(Expert) 09 August 2011
You can give a release deed of your rights over the property and in the said deed you can put an end to all your relationship with them.
