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Maintenance Right of Parents


Authored By- Amit Patel

Keywords- Maintenance, Monthly Allowance, Children, Tribunal.

Abstract

Maintenance is the process of providing the basic amenities and ensures that he lives a dignified life. In 1973, under Section 125 of Code of Criminal Procedure, the provision for maintenance was introduced in India. Whereas, there came another option for parents and senior citizens to claim the maintenance in 2007. We will discuss provisions related to both the acts and who all are binding in a legal way to maintain the parents and in which conditions.

Introduction

A person needs basic amnesties or a person has some basic needs like food, clothing, house, etc for which one needs to live a dignified and normal life. Usually, it is considered that it is the moral duty of a person to provide the basic amnesties to his or her wife, children, and parents in the form of maintenance. Maintenance is the process of providing the basic amnesties and ensures that he lives a dignified life. In 1973, under Section 125 of Code of Criminal Procedure, the provision for maintenance was introduced in India.

Whereas, there came another option for parents and senior citizens to claim the maintenance in 2007. Maintenance and Welfare of Parents and Senior Citizens Act were passed in 2007, which provides specific provisions for the maintenance that support elderly parents and senior citizens. Parents can claim maintenance either under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 or under Section 125 of Code of Criminal Procedure, 1973, but not under both the acts.

Maintenance and Welfare of Parents and Senior Citizens Act, 2007

Section 4 of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 provides for the maintenance to parents by their children. It states that Parent (father or mother whether biological, adoptive or stepfather or stepmother, whether senior citizen or not) or grandparent who is unable to maintain himself is entitled to claim maintenance from one or more of his adult children (son, daughter, grandson and grand-daughter but does not include a minor).[1] According to this provision, the children not being a minor have a legal obligation to maintain their parents or grandparents. It does not matter whether the parents are biological, adoptive, or step-parents. This provision also talks about the maintenance of the senior citizens who does not have children who can claim maintenance from their legal heirs.


Only the persons who are unable to maintain themselves from their earning can apply for the maintenance of their children. The parent can move to the tribunal for maintenance to seek monthly allowance by their children under section 4 of the Act. The proceeding can take place against the specific child or children. The tribunal after the proceeding provides a maintenance order to make a monthly allowance at a rate deemed fit by the Tribunal. If the children do not comply with the order of the magistrate this may result in compensation or imprisonment for up to one month.[2] However, the monthly allowance cannot exceed Rs 10,000.[3] The order of maintenance as per the amount given may be altered by the Tribunal on proof of change in circumstances.[4]


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


This bill is introduced to expand the social ambit, we will discuss the changes made for the maintenance of parents-

  • It changes the definition of children other than the existing definition pre-defined in the act. This bill adds Children in-laws and the guardian of the minor child to the definition.

  • The fine and the imprisonment period both are increased in the case a person does not follow the maintenance order issued by the tribunal. Now the imprisonment would be up to six months and the fine would be up to Rs. 10,000 or both.

  • The maintenance order seeking monthly allowance can be given more the Rs 10,000 per month according to the situation or location where the parents are residing. As in the metropolitan city, this particular amount is not enough whereas in a rural area it is. However, it was and is at the discretion of the tribunal to fix the amount but the maximum cap has been removed.

Maintenance under Section 125 of Code of Criminal Procedure, 1973

Section 125(1) (d) of the Code of Criminal Procedure deals with the matter related to the maintenance of parents by their children. It states that If any person having sufficient means neglects or refuses to maintain his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.[5]

Section 125 CrPC even binds daughter whether married or unmarried. If she have sufficient means to pay maintenance to her parents who on their own are unable to maintain themselves.[6]

Conclusion

It has been always accepted that there have been three basic needs that are food, clothing, and shelter and for that, one needs maintenance and thus, it is right of every parent who is unable to maintain them to seek monthly allowance from their children. The law related to maintenance is improving and getting better with time as the new bill introduced has changed many things in favour of parents.

[1]Maintenance and Welfare of Parents and Senior Citizens Act, 2007, No. 56, § 4. [2]Maintenance and Welfare of Parents and Senior Citizens Act, 2007, No. 56, § 5. [3]Maintenance and Welfare of Parents and Senior Citizens Act, 2007, No. 56, § 9. [4]Maintenance and Welfare of Parents and Senior Citizens Act, 2007, No. 56, § 10. [5] Code of Criminal Procedure, 1973, No. 2, § 125(1)(d). [6]Vijaya Manohar Arbat v. Kashirao Rajaram Sawai, (1987) 2 SCC 278.

References-

· https://www.scconline.com/blog/post/2019/01/10/maintenance-children-and-parents/

· https://lawtimesjournal.in/procedure-for-maintenance-of-parents/

· https://blog.ipleaders.in/can-a-parent-claim-maintenance-from-a-child/#:~:text=The%20section%20states%20that%20%E2%80%9CIf,of%20his%20wife%20or%20such