SADANLAL SANWALDAS KHANNA GIRLS’ DEGREE COLLEGE PRAYAGRAJ

(SESSION: 2023-24)

Project I

THE MAINTENANCE AND WELFARE OF SENIOR CITIZENS IN

PROTECTING THE RIGHTS OF OLDER PEOPLE IN INDIA

Submitted by:
Vedanshi Chaurasia
Roll no. 70
B.A. LLB. (Hons)
Semester – VIII
 ACKNOWLEDGEMENT

Presentation, inspiration and motivation have always played a key role in

success of any venture.
I would like to express my special thanks of gratitude to my teacher Ms.
Mohini Shukla who gave me the golden opportunity to do this wonderful
project on the topic:
THE MAINTENANCE AND WELFARE OF SENIOR CITIZENS IN
PROTECTING THE RIGHTS OF OLDER PEOPLE IN INDIA
This helped me in doing a lot of research and I came to know about so many
new things. I am really thankful to her.
Secondly, I would like to thank my parents and friends who helped me a lot in
gathering different information, collecting data and guiding me from time to
time in making this project; despite of their busy schedules, they gave me
different ideas in making this project unique and helped me in finalizing this
project within the limited time frame.
I am overwhelmed in all humbleness and gratefulness to acknowledge my
depth to all those who have helped me to put these ideas, well above the level
of simplicity and into something concrete.
Thank you almighty for everything

Thanking You.
Vedanshi Chaurasia
 TABLE OF CONTENTS

S.NO. CONTENTS REMARK

S
1.  Research question
 Research objectives
2. Abstract

3. Introduction
4. Ageing

5. Historical Perspective of Right to Maintenance in India

6. Condition of Elderly in India: Past and Present

7. Right to Maintenance in Personal Law

8. International Initiatives

9.
The National Responses : Indian legal Framework

10. Conclusion
 RESEARCH QUESTION
1) How does the Maintenance and Welfare of Senior Citizens Act
of India address the rights and protection of older people?
2) What are the key components of the maintenance nd Welfare of
Senior Citizens Act aimed at safeguarding the rights of senior
citizens in India?
3) What are the roles and responsibilities of different stakeholders,
including government agencies, NGOs, and community
organizations, in upholding the rights of senior citizens under
the Maintenance and Welfare of Senior Citizens Act?

RESEARCH OBJECTIVE
To assess the effectiveness of the Maintenance and Welfare of
Senior Citizens Act in protecting the rights of older people in
India by examining its implementation at various levels of
government, analyzing the mechanisms for enforcement and
redressal of grievances , investigating the socio-cultural factors
influencing its impact, and gauging its overall contribution to
enhancing the well-being and quality of life of senior citizens in
the country.
 ABSTRACT
This research delves into the nuanced landscape of the
Maintenance and Welfare of Senior Citizens Act, investigating
its efficacy in safeguarding the fundamental rights and well-
being of elderly individuals in India. With a meticulous
examination of the Act's multifaceted implementation strategies,
enforcement mechanisms, societal attitudes, and resultant impact
on the lived experiences of seniors, this study offers a
comprehensive evaluation of its effectiveness. Employing a
methodological blend of qualitative interviews, quantitative
surveys, and in-depth case analyses, the research navigates
through the intricacies of senior citizens' challenges and
aspirations within the legal framework. Moreover, it unveils
crucial insights into the dynamics of policy enactment, societal
perceptions, and institutional responsiveness, unveiling
opportunities for refinement and policy innovation. By distilling
these findings, the study not only informs policymakers,
practitioners, and advocates but also cultivates a deeper
understanding of the evolving landscape of elderly rights
protection in India.
 "Old age is not just a matter of time; it is a state of mind. It is the
culmination of a lifetime of experiences, joys, sorrows, victories, and
defeats. It is a time when the body may weaken, but the spirit grows
stronger. It is a time when one reflects on the journey of life,
cherishes memories, and finds solace in the wisdom gained over the
years. Old age is not a burden to be borne, but a crown to be worn
with dignity and grace." - Sudha Murty

INTRODUCTION
In the tapestry of human existence, the golden threads woven by
our senior citizens represent wisdom, experience, and resilience.
As the clock of life continues its relentless march forward, the
demographic landscape of many societies is shifting towards an
increasingly aged population. In this context, the protection and
well-being of older individuals emerge as paramount
imperatives, echoing the values of compassion, respect, and
intergenerational solidarity.

Senior citizens, often defined as individuals aged 65 and older,

embody a mosaic of life stories, each panel reflecting diverse
experiences, triumphs, and challenges. They are the custodians
of our collective history, having weathered the storms of time
and contributed immeasurably to the fabric of our communities
and civilizations. From the pioneers who forged paths into the
unknown, to the educators who ignited the flames of curiosity in
young minds, and the caregivers who nurtured families with
unwavering love, their imprint on society is indelible and
profound.

However, amidst the tapestry of aging populations, there are

threads of vulnerability that require our unwavering attention
and commitment. Aging can bring with it a myriad of challenges
ranging from physical frailty and cognitive decline to social
isolation and financial insecurity. As stewards of justice and
compassion, it is incumbent upon us to safeguard the dignity,
autonomy, and well-being of our senior citizens, ensuring that
they are able to age with grace, dignity and security.

Protecting older people transcends mere duty, it is a reflection of

our shared humanity and commitment to justice. It encompasses
a holistic approach that addresses the multifaceted needs of
seniors, spanning physical, emotional, social, financial, and legal
dimensions. From the provision of safe living environments and
access to quality healthcare, to the promotion of social inclusion
and the preservation of legal rights, our efforts must be
comprehensive and unwavering.

Moreover, protecting senior citizens is not solely a matter of

policy or legislation; it is a testament to the values that define us
as a society. It is a reaffirmation of our commitment to honor
and respect the inherent worth and dignity of every individual
regardless of age or circumstance. In nurturing communities
where the elderly are valued, supported, and empowered, we not
only enrich their lives but also reaffirm the bonds of compassion
and solidarity that bund us together as members of the human
family.

In the pages that follow, we will delve deeper into the

complexities of safeguarding the well- being of senior citizens,
exploring the challenges they face, the strategies for addressing
them, and the collective responsibility we share in ensuring their
dignity and security. By shining a light on the issues that matter
most to our elders, we embark on a journey of compassion,
empathy and justice.
 AGEING

Ageing is a natural phenomenon. It is a gradual, life long

experience and not something that happens only in later life.
Gerontology is a multi-disciplinary field of study which focuses
on individual and ageing process as well as the practices and
policies that relate to ageing and the aged. In all societies age is
one of the basis for the ascription of status and one of the
underlying dimensions by which social interaction is regulated.

Aspects of ageing

The act of growing old is a continuous process involving

complex physical changes to the body and includes redefinitions
of social identities and changes in psychological functioning. By
itself chronological age has little relevance though it serves as a
useful indicator of the physiological change and also of change
of social status. Universally, ageing is characterized by three
aspects which are essentially associated with one another. They
are:

(i) Physiological Ageing:-

 Physiological ageing is a biological process of the body of a
person becoming old. It is characterised by physical and mental
changes that are perceived in an ageing person. Growth that is
witnessed in the younger phase of the life of a person is
substituted by the decline phase. The changes which occur in
physiological ageing is visual and is easily identified in the
outward physical appearance by wrinkles in the skin, greying of
the body hair, teeth falling out etc., apart from these outer
appearances changes also occur within the body. There is a
general deterioration in the functioning of the major organs of
the body affecting immunological system, cardiovascular
system, digestive system, nervous system, endocrine system,
reproductive system, skeletal system, respiratory system and the
excretory system. Shakespeare speaks explicitly of ageing in ‘As
you like it’.

(ii) Psychological Ageing:-

The World Health Organization has declared that “increased

longevity without quality of life is an empty prize.” Ageing is a
complex process which involves decrease, especially at the
psychological level of the capacity of a person. The aspects of
psychological ageing include personality, motivation, coping
skills, adaptation, cognition, intelligence and mental health
issues. In so far as the psychological functioning with age is
concerned the life experiences are significant to the functioning
as well as wellbeing of the person. It is abundantly clear that if
people have lived meaningful lives then their psychological
functioning is relatively adequate. That is to say that the social
interactions of a person, his engagement with the society and the
roles that he assumes and plays in his life, his social
relationships, his life experiences, his personality, all have a
bearing in the psychological make-up of a person and it affects
significantly the psychological functioning and also the quality
of life even in old age. But as disease and disability sets in
among the old their ability to live independently and engage in
social activities decreases and consequently greater sense of
loneliness and dissatisfaction with their lives set in.

(iii) Social Ageing:-

Social ageing refers to changes in a person’s roles and

relationships, both within their network of relatives and friends
and in formal organisations such as the workplace. Though
social ageing differs from one individual to another, the
perception of ageing as perceived by the society an individual is
a part of, has a significant role to play. If a society views ageing
positively, the social ageing experienced by individuals in that
society will be more positive and enjoyable than in a society that
views ageing negatively. The individuals’ and society’s response
to ageing is influenced by the social contexts of such
experiences. Those contexts affect the significance, meaning and
interpretation of the ageing experience for individuals as well as
communities. Contexts are in turn collectively constituted by
individuals. The numerous changes in family and generational
set ups, in patterns of employment and retirement and in
biological processes that affect longevity and senescence
influence vulnerability and resiliency in the ageing population
and changes the contours of wellbeing.
 HISTORICAL PERSPECTIVE OF RIGHT TO
MAINTENANCE IN INDIA

The duty that a person owes to his dependents was the basis of
the law of maintenance under the Old Hindu Law. The law of
maintenance as reported in the ancient legal texts exhibits the
benevolence of the Indian tradition in that all members of the
family were taken care of and none were left to the vagaries of
destitution. The maintenance of aged parents, minor children
and wife was considered the greatest duty of a Hindu. If he
maintained them without any breach of faith, the gates of heaven
were wide open for him and he could attain salvation. A person
who made gifts at the cost of maintenance of his family was
condemned. Refusal to maintain was considered an offence
under Hindu law and abandoning mother, father, wife or son for
no fault of theirs was punishable by the king. With regard to
maintenance, it is interesting to note that there was not much
difference in the two prominent schools of Hindu law, the
Mitakshara and Dayabhaga schools. The Mitakshara prevailed
over all of India except Bengal where Dayabhaga was the
highest authority. Under pre-codified Hindu Law the obligation
of one person to maintain another arose (a) by reason of
relationship between the parties (b) by reason of possession of
inherited property (c) by reason of possession of Mitakshara
coparcenary property (d) by way of custom. Thus the liability
arose in some instances independent of the possession of
property and in some others by reason of possession of property.
Every Hindu whether he possessed property or not, was bound
personally to maintain his aged parents, his virtuous wife, minor
sons (legitimate and also illegitimate) and his unmarried
daughters. By reason of possession of inherited property, an heir
was legally bound to maintain, out of the property which
descended to him, all those whom the deceased was legally or
morally bound to maintain. The liability to maintain one’s step
mother belonged to the former type, while the liability to
maintain a widowed daughter of the deceased came under the
latter. A son was under a personal obligation to maintain his
aged parents irrespective of his having any property. But he was
not bound by any obligation to maintain his step mother. He was
also not obligated to maintain his grandparents unless he had
received ancestral property. Prior to the Hindu Women’s Right
to Property Act 1937, the widow had a right to be maintained
out of the husband’s property by the heir and in case of
undivided coparcenary property the surviving coparceners were
bound to maintain her. After the passing of the Act of 1937 she
shared with her son her husband’s separate property and took
her husband’s place in respect of his undivided interest in joint
family property. The right to maintenance was a personal right
and it was nontransferable. It was available against a person or
property or both. A person entitled to maintenance could sue for
either a declaration of his or her right to maintenance or arrears,
if any, and also for a charge on property. Under the codified law,
The Hindu Adoption and Maintenance Act 1956, the obligation
to maintain parents and children is also thrust on women who
hitherto did not have such duty. The obligation to maintain
under the old law was based on moral grounds with regard to
certain people and legal grounds with regard to some others. But
with the passing of the Act of 1956 the duty to maintain is
characteristically always legal. It prescribed real maintenance
and not bare maintenance or starvation maintenance. The
obligation of a Hindu to maintain his aged parents is personal
and legal in character arising from the existence of relationship.
The obligation of a son or daughter to maintain an aged or
infirm parent is not enforceable if the parent is able to maintain
himself or herself out of his or her earnings or property. In the
personal Law of Muslims also the obligation to maintain one’s
parents is emphasized. The Code of Criminal Procedure 1973
with its secular operation offers the remedy of maintenance to
parents of all religions if they are unable to maintain themselves
since its amendment in 1973.

CONDITION OF THE ELDERLY IN INDIA: PAST AND

PRESENT

Historically in Indian culture, respect and regard for parents and

elders was the most important value that was inculcated and
ingrained in the minds of the children. Traditionally in
Hinduism, as prescribed in the smritis, life span of a person is
divided into four stages or the ashramas. The first stage is the
brahmacharya or the life of a student, the second is the
grihasthashrama or the life of the married person as a
householder, the third stage is that of vanaprastha where a
person slowly gives up his attachment to all objects acquired
during grihasthashrama and hands over his responsibilities to the
younger generation and prepares for the final stage of sanyasa,
the state of total renouncement of the world and dedication of
body and soul to attainment of godly pursuits. The philosophy
propelling such division of life being the aim to die divine
having born a mortal. The ancient law giver Manu in his
Dharma Sastra ordains that every grihastha has to take care of
his parents and elders. Brihaspati said, ‘A man may give what
remains after the food and clothing of family: the giver (who
leaves his family naked and unfed) may taste honey at first but
afterwards finds it poison’. According to the Mitakshara, where
there may be no property other than what has been self acquired,
the only persons whose maintenance out of such property is
imperative are aged parents, wife and minor children. Kautilya
in his ‘Arthashastra’, has reproved those who neglect their aged
parents and has permitted the village elders to punish those sons
who failed to provide care for the aged parents. The traditional
Indian society followed the joint family system. Not only the
parents but the extended family of uncles and aunts,
grandmothers and grandfathers lived together under the same
roof. The son was morally bound to take care of his parents. The
practice is still prevalent in India in modern days as we find old
parents live with their sons. The most common living
arrangement found in India for the elderly has always been
living with their families. The family looked after the old,
including the widows and the bachelors and spinsters supported
the members out of work and generally there was a feeling of
togetherness in the family providing safety and security to all
members. This tradition assured the elderly of the much needed
care and support and fulfilled their physical and emotional needs
during their advanced years. The Indian society of yore
emphasised on cohesiveness of the family unit which usually
consisted of four or five generations living together without any
consideration for the income of any individual member. Income
or earning capacity of the member of the family had nothing to
do with the respect accorded to and the care exhibited by the
family unit. In fact older persons were accorded great respect
and reverence by all members of the family unit. Joint family
system was unique in that none of the elders were left without
care and support especially since some of the elders were not
necessarily the parents of the younger generation living
together.33 The authority with regard to the joint family was in
the hands of elder in the family known as Kartha. Everyone in
the family was respectful of the family elder, the patriarch of the
family. All decisions regarding the family and its members both
economic and social like marriage or acquiring or disposing of
property was taken by the patriarch. All the property of the joint
family was owned by all the male members of the family and
dealt with by the Kartha. There was utmost loyalty and
deference to the decisions taken by the patriarch in the family
unit. The respect and deference was also exhibited hierarchically
with regard to age to all the other members of the family. In
rural societies, families are often more extended than in
urbanised societies where the independent nuclear family is
predominant. But with the advent of modernisation, propelled by
the phenomenon of industrialization and globalisation, societies
are witnessing the trend of people migrating from rural to the
urban areas resulting in the waning of the joint family system in
the urban areas and a skeletal presence of it in the rural areas.
Industrialisation, urbanisation and globalisation have changed
the way of life and the value systems fostered by the traditional
society. It has led to disintegration of the joint family system and
hastened the formation of nuclear families. Nuclear families are
the norm of the day in the present society. The value system has
drastically eroded. The society and its people have increasingly
become materialistic. The increase in the number of women
going for work in the present scenario also has an impact on the
dynamics of family structure in India. The other dimension of
such changes in family has been the change of authority in the
households from the elders to the younger generation. Career
oriented young men and women with a keen sense of
independence and individualism have spelt the death knell to the
joint family system and have to a great extent caused the
marginalisation of the elderly. All these contributing societal
factors have played a significant role in denting the support base
of the elderly in India who are now in most cases bereft of the
care and support of their families. Adding to the woes, it is often
found that the urban infrastructure is insufficient to meet the
needs of migrating population and the worst affected is the
elderly in the urban settings. Poor infrastructural facilities and
very little common public space available in the cities unlike the
rural areas force the poor to live in slums with poor hygiene and
sanitation facilities. The situation is characterised by greater
isolation of the elderly in the family. The traditional respect and
authority wielded by the elders, the status and care accorded to
them by the family are long gone and the elderly are perceived
as an economic burden by the younger generation struggling to
make out a living in the commercial society of the present day.
Though the most common living arrangement of the elderly in
India is still with their families their living conditions and
quality of life are dependent on various factors in the family and
society. The other characteristic of the elderly in modern days is
the lack of control over their own property which is usually their
source of income. Many of the elderly transfer their right and
control over property to the younger generation and are left
without a source of income. This coupled with loss of decision
making authority leads to loss of status and also their self
esteem. This is perceived both among women and men. The fast
disappearing family support is slowly bringing forth the scenario
of the elderly either living alone or with a spouse. This brings
the pertinent issue of care and support to the elderly into focus
especially those who are weak and not of good health and
therefore are dependent on others for care and support. To
substitute for the lack of care from the family the elderly are
forced to look for service providers outside their homes. In India
the institutionalisation of elders is yet to become a suitable
alternative. One reason being the sheer lack of enough such
specialised institutions and the other being the affordability of
decent and suitable accommodation by the masses. Therefore
the preference of living arrangements of elderly is with their
own families. The other reason for such preference among the
elderly is the perception of loss of freedom of movement and
moving away from the familiar social circle. At this juncture it
has to be remembered that even in the western countries which
have more advanced institutions to take care of the elderly, the
preference is to stay with the family to avoid isolation, neglect
and abuse at the hands of service providers.

RIGHT TO MAINTENANCE IN PERSONAL LAWS

The law of maintenance as it existed in ancient times in

India gives ample proof of the munificence of the society and
law. The origin of maintenance law is founded on the perception
of the duty that a person owed to his dependents. The law of
maintenance is also connected with the law of property and its
protective ambit covers all members of the family. Modern
Indian society is multiethnic, multi religious and multi cultural.
India is a secular country with the population predominantly
comprising Hindus, Muslims, Christians and Parsis among
others.

Under Hindu Law

The ancient Hindu jurists did not separate the socio-legal
aspect of human life from its ethical or spiritual aspect. In
ancient India, all aspects of life, social as well as individual were
governed by the rules of Dharma. Vedas (Shruti) and
Dharmasastras (Smritis), the approved usage and what is
applicable to good conscience are the sources of Dharma.
Dharma is the body of rules governing the relations of human
beings in the social order. In view of the nature of the society it
was clear that religion had an impact on all other secular
institutions; marriage, partition and succession had their base in
religion and all these matters were covered by dharma. The
ancient jurist made provisions in the name of Dharma that
regulated all aspects of life of a person including the religious,
moral, social, legal and economic dimensions. Duties were
prescribed for all people of the society. To maintain perfect
social, cultural and occupational balance in the society,
 according to the accepted norms of dharma was the sole end of
law according to Manu, the earliest exponent of Hindu Law.

Maintenance under the Hindu Adoptin and Maintenance Act

1956 (HAMA)
This Act is a codification of the existing law based on the
recommendations of Rau’s Committee Report and the select
committee of Provisional Parliament in 1948. The Act came into
force on 21st December 1956. The significant changes made in
this Act are the illegitimate daughter is given a right to
maintenance against her father and his estate in the hands of the
heirs (Sections 20 and 22) and the creation of obligation for the
Hindu woman to maintain her legitimate and illegitimate
children during minority, her aged parents and specifies
dependents (Sections 20 and 21).
The distinction between moral duty and legal duty as it
existed in the old law is done away with as the obligation to
maintain the dependents under the new Act is legal. However
the distinction between an absolute obligation to maintain
certain dependents irrespective of the existence of property and
an obligation to maintain certain dependents only out of
property available is retained (Sections 18, 19, 20 and 22).The
codified law has imposed the obligation on a Hindu in
possession of coparcenary property to maintain his widowed
daughter- in-law if she has no other source of income. The
dichotomy between the rules in Mitakshara and Dayabhaga
schools of the old law with regard to the maintenance of
illegitimate sons is resolved with the new law adopting the
Dayabhaga rule and entailing the illegitimate son of
maintenance only during his minority. The step-mother is also
entitled to maintenance by her step-son if she is childless
according the new law. But an avaruddhastree has not been
provided maintenance under the new Act even though the
illegitimate minor children are entitled to maintenance. The
illegitimate daughter has also been provided with right of
maintenance under the new Act. In the new Act without
distinction, unlike in the old, a dependent who has not obtained
by testamentary or intestate succession any share in the estate of
the deceased is entitled to maintenance from those who take the
estate (Section 22(2)). Also for the purpose of determining the
right to claim maintenance the new Act does not distinguish
between joint family property and separate property. The other
important changes include that unchastity of a widow not being
a legal ground for refusal of maintenance. Before the passing of
this Act only if the husband married again during the wife’s
lifetime, the wife could claim separate residence and
maintenance, but under the new Act, the mere existence of more
than one wife would entitle any of them to claim separate
residence and maintenance. Under the new law conversion to
another religion debars a person from claiming maintenance
unlike the old law.
Section 3(b) of Hindu Adoption and Maintenance Act,
1956 defines maintenance as inclusive of “provision for food,
clothing, residence, education, and medical attendance and
treatment.” In the case of unmarried daughter, the reasonable
expenses of and incidental to her marriage is also included.
According to Oxford dictionary ‘to maintain’ means to support
life by nourishment, expenditure etc., or to furnish a person with
means of subsistence. In fact ‘to maintain’ ordinarily means to
provide a person with food, clothing, residence, education and
medical treatment all which are essential for a person to live.
Thus we find the term ‘maintenance’ as defined in this section
inclusively is in fact very much comprehensive.
 Maintenance of Parents
The new Act has virtually reproduced the old law laid
down by the Smritikars with reference to personal obligation to
maintain aged parents who cannot maintain themselves out of
their own earnings or property. The changes introduced are the
daughter is also obligated to maintain her aged parents.
Maintenance includes provisions for food, clothing, residence,
and medical treatment and attendance, all of which are
absolutely essential considering the advanced age and economic
capacity of the elders. It is noteworthy that the Hindu Adoption
and Maintenance Act is the first statute in India, which imposes
an obligation on the children to maintain their parents. Under the
Act, both the mother and the father have an equal right to claim
maintenance. The expression parent includes adoptive father and
adoptive mother. A childless step-mother can also claim
maintenance but a step father is not entitled to claim
maintenance. Since there is no absolute test for determining
whether the parent is infirm or aged it would depend on the facts
and circumstances of the cases and consequently it is important
to consider the corollary criteria ‘unable to maintain himself or
herself’. Therefore the obligation to maintain the parents other
than those infirm and unable is only moral.

Maintenance under Muslim Law

The principles of maintenance under Mohammedan Law is
based on the claims of the ‘necessitous’ person and the
obligation thrust on a person of ‘easy circumstance’ to maintain
him. It is noted that the obligation to maintain is both moral and
legal. There is no distinction between the moral and the legal
obligation as prescribed in the Muslim Law. The legal duties of
a person with regard to maintenance are also connected to his
moral obligation. The maintenance includes all things necessary
for the support of life such as food, clothing and shelter. But
maintenance does not include medical expenses and incidental
expenses incurred for enjoyment of pleasures and luxuries. But
the term maintenance includes cost of education along with
food, clothing and shelter. It also includes the required expenses
to ensure the overall wellbeing of a minor. This would include
expenses ensuring the physical as well as the mental wellbeing
of a minor and the expenses incurred towards his education as
commensurate to the present standards in the society which
would be higher secondary level so as not to be considered
extravagant expenditure.

Nature of Right to Maintenance

The general rule in Muslim Law is that maintenance is to
be provided to any person only if he is ‘necessitous’ meaning he
is poor and indigent and has no means to maintain himself.
According to Fatawa Alamgiri if a man possesses two hundred
dirham (unit of currency of the United Arab Emirates) in surplus
of his necessities he is supposed to be a man of ‘means’. Unless
indigent, every person is to be provided maintenance out of the
properties he holds whether he is a minor or adult. This rule
however does not apply to wife and to poor parents and
grandparents who are not ‘necessitous’. The Arabic equivalent
of maintenance is ‘Nafaqah’ which literally means ‘what a
person spends over his family’ and it signifies the money for the
family spent over the basic necessities of food, clothing and
lodging. The parties entitled to maintenance under Muslim Law
can be broadly classified on the basis of marriage, blood
relationship and relations by affinity. The relations who either
by marriage or consanguinity are entitled to be maintained are
(i) wife (ii) children (iii) grandchildren (iv) parents (v)
grandparents (vi) son’s wife (vii) stepmother (viii) other blood
relations within prohibited degrees by consanguinity.

Right of Parents to Maintenance

In Muslim law the children are obligated to maintain their
parents. If the parents are poor but not necessitous they still have
the right to be maintained by their children. Both sons and
daughters if they have sufficient property have been obligated to
pay maintenance for their parents who are poor. The duty is cast
equally both on the sons and the daughters without distinction. It
is noted in Sunni law the capacity of parents to earn does not
operate as a disqualification for their entitlement to maintenance
by their propertied children. Under Shia law the parents do not
have the right to maintenance if they are capable of earning. The
right of both the parents to maintenance is equal and the parent’s
right to maintenance is preferential compared to the right of the
grandparents. If the son is also poor but is earning he may still
be obligated to maintain his parents by making them live with
him and his family but not obligated to provide them separate
maintenance. There exists divided opinion with regard to extent
of liability of children towards maintenance of parents; while
some ascribe to the opinion that the duty is proportionate to the
individual’s inheritance some others are of the opinion that the
duty must be proportionate to the means of the children. 195 It
has been held that if one child is poor and another of easy
circumstance, the liability to maintain the parents is on the child
of easy circumstance. The other characteristic of the parents’
right to maintenance is that they do not lose their right even in
the event of their conversion to other religion. The basic
principles of maintenance as present in Muslim law is that no
one is obligated to maintain the other unless the person claiming
maintenance is poor and necessitous and the person it is claimed
from is in easy circumstance. The obligation to maintain is
based on marriage, relationship and property. The right of wife
and children alone are absolute and the duty is cast on the
Muslim male to maintain them irrespective of the fact that he is
poor. With regard to all others who have a right to be maintained
including every relative within prohibited degree, it depends on
the pecuniary position of both the claimant and the person who
is obligated and is also based on the principle of reciprocity.
Persons who are entitled to inherit the property of their relatives
have a corresponding duty to maintain, provided the relatives are
poor and the inheritor is in easy circumstance.

INTERNATIONAL INITIATIVES
The elderly as a group are distinguished from the rest of the
population by the fact that they are at the end of the life cycle. In
some societies they are regarded as repositories of wisdom and
rich life experience while in others they are considered as
symbols of conservatism. Their status is basically a social
construct depending on the perception of the society. Elderly are
considered more as a category of population than a constitutive
group as they are varied on geographical, political and cultural
planes and even their life experiences are varied depending on
their gender, class or race. The perception that the elderly wield
power is reinforced by the fact that in many countries they are
leaders in the political arena. But in fact, Gerontocracy: a
government by old people is not necessarily a government for
the old. Conversely, the reality is that the elderly are a
vulnerable group of the population. They are physically
susceptible to diseases that are old age specific and are also
emotionally fragile. The elderly are also subjected to various
forms of abuse and exploitation world over especially during
times of crises. Further, they are victims of scams and other
fraudulent methods by which they are deprived of their property.
In the developing nations with the advent of globalization and
the consequent migration of the youth in search of greener
pastures, the elderly are left without support and care. Their
suffering can be compounded by poverty, exclusion,
marginalization and negative stereotyping that are increasingly
manifested in modern society. The phenomenon of demographic
transition resulting in graying of the population has brought to
centre stage the debate over protection of the elderly. The
shrinking population of youth especially in the West has further
strained the resources allotted to the social security of the elderly
and strengthened the demand for reduction of benefits accorded
to the elderly. Some have even argued that the resources be
diverted to the young. Such discriminatory ideas herald ageism
and other repressive practices which deprive the elderly of their
basic human rights. The situation is aggravated as the population
is increasingly becoming aged and creating an economic and
social burden on the young.
 It is against this backdrop and the increasing awareness of
the gravity of the situation of the elderly around the world, the
UN General Assembly decided to convene a World Assembly
on Ageing in 1982. The purpose of the Assembly was to create
an international action programme guaranteeing economic and
social security to the aged, as well as provide them opportunities
to contribute to national development. The UN General
Assembly stressed that the outcome of the World Assembly
“should result in societies responding more fully to the socio-
economic implications of the ageing of populations and to the
specific needs of older persons.” The primary aim of the first
World Assembly was to strengthen the capacities of countries to
deal effectively with the issue of ageing populations. It
highlighted the special concerns and needs of elderly, and the
need to promote an appropriate international response through
the establishment of a new international economic order and
increased international technical cooperation, among developing
countries themselves.
 United Nations Principles for Older Persons
The United Nations Principles for Older Persons were
adopted by the United Nations General Assembly in the year
1991. It consisted of five main themes namely independence,
participation, care, self-fulfillment, and dignity that relate to the
status of older persons. The Principles were an important policy
tool that influenced the conceptualization of the Madrid
International Plan of Action on Ageing. The principles
recognize the dignity and worth of the humans and in the equal
rights of women and men as reaffirmed in the Charter of the
United Nations. It encouraged the national governments to
incorporate these five principles in their national policies and
programmes. These covered:
(i) Independence in terms of access to adequate food,
water, shelter, clothing and healthcare; opportunity to work or
income generation; determine when to withdrawan from the
labour force; access to education and training programmes; live
in environments that are safe; and live at home for as long as
possible.
(ii) Participation in the formulation and implementation of
policies that affect their wellbeing and share their knowledge
 and skills with younger generations; seek and develop
opportunities for service to the community; and form
movements or associations of older persons.
(iii) Care through family and community; access to health
care to maintain or regain the optimum level of physical, mental
and emotional wellbeing; access to social and legal services;
utilise appropriate levels of institutional care; and enjoy human
rights and fundamental freedoms including full respect for their
dignity, beliefs, needs and privacy.
(iv) Self-fulfillment by pursuing opportunities for the full
development of their potential; and access to the educational,
cultural, spiritual and recreational resources of society.
(v) Dignity in quality of life free from exploitation and abuse;

Specific Human Rights Applicable to the Elderly

It is noted that the rights of the older people are present in

various human rights instruments but they are not present as
comprehensive rights and an attempt has been made to document
the human rights applicable to older persons from the core human
rights instruments and the soft laws of Madrid International Plan of
Action on Ageing 2002. 54 They are as follows:
 Right to life
 Right to equality and non discrimination
 Right to an adequate standard of living
 Right to the highest attainable standard of physical and mental
health
 Right to enjoy the benefits of scientific progress
 Right to food
 Right to work
 Right to social security
 Right to education
 Right to privacy
 Right to liberty and security of person
 Right to take part in public affairs
 Equality before law and access to justice
 Right to a family life
THE NATIONAL RESPONSES: INDIAN LEGAL FRAMEWORK

Section 125 Code of Criminal Procedure

Section 125 CrPC has been providing relief of maintenance

to beleaguered aged parents along with hapless wives and
children of all religions since its amendment in 1973. The moral
duty of children to take care of their parents took on a legal
colour when the Code of Criminal Procedure 1882 was repealed
and the new Code of Criminal Procedure 1973 was adopted. In
the new code for the first time, fathers and mothers were also
given the right to claim maintenance, apart from wives and
children, from their sons if they were unable to maintain
themselves. As evident from Section 125 (1) (d) CrPC, if a son
neglects to maintain his father or mother, then on application of
such neglected parents, the magistrate can order a monthly
allowance for their maintenance.
In Section 125 (1)(d) CrPC, the words used are father and
mother and not parents, providing a basis to the argument that
stepfather and stepmother cannot claim maintenance under this
section. Also the suggestion that the obligation to maintain the
parents is fixed only on legitimate children has been deduced by
the construction and usage of words in the section. In deference
to the object and intention of the section and taking the natural
meaning of the term ‘mother’, it has been decided that it would
not include a stepmother though there have been instances when
the Courts have construed the word liberally and provided relief
under this section to stepmothers too. However, comparing a
similar provision in Section 20 of the Hindu Adoption and
Maintenance Act1956, it is seen that in its scope it provides for
inclusion of childless stepmother in the definition of parents.
The Supreme Court has opined that a childless stepmother
may claim maintenance from her stepson provided she is a
widow or if her husband is living but is unable to maintain her.
The Maintenance and Welfare of Parents and Senior Citizens

Bill, 2007

The Maintenance and Welfare of Parents and Senior

Citizens Bill, 2007 was introduced in the Lok Sabha on 20th
March, 2007. It received the assent of the President of India on
29th December, 2007 and the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007, No. 56 of 2007 was
published for general information in the Gazette of India
(Extraordinary)Part II- Section I, dated 31st December, 2007.
The objective of the legislation is to provide for more effective
provisions for the maintenance and welfare of parents and senior
citizens guaranteed and recognised under the Constitution. The
underlying intent is to provide a statutory backing to ensure the
aged are maintained by their family.
The Maintenance and Welfare of Parents and Senior
Citizens Act, 2007 hereinafter mentioned as the Act of 2007,
consists of seven chapters and thirty two sections. The first
Chapter is the preliminary chapter consisting of sections 1-3 and
deals with the preliminary definitions, Chapter 2 of the Act
consisting of sections 4-18 deals with the Maintenance of
Parents and Senior Citizens, Chapter 3 consisting of section
deals with the establishment of old age homes, Chapter 4
consisting section 20 deals with the provisions for medical care
of senior citizens, Chapter 5 consisting of sections 21-23 deals
with protection of life and property of senior citizens, Chapter 6
consisting of sections 24 and 25 deals with offences and
procedure for trial and Chapter 7 consisting of sections 26-32
deals with miscellaneous details.

Section 1 speaks of the extent, application and

commencement of this Act. It extends to the whole of India
except Jammu and Kashmir. This Act is applicable to all Indians
who are domiciled in the country and also to Indians domiciled
outside India. The Act will come into force on the date the State
Government gives a notification in the official gazette. Section 2
(a) defines a child as including a son, daughter, grandson and
granddaughter. So as far as the application of the Act is
concerned grandson and granddaughter are also included under
the definition of a child. The responsibility to maintain the aged
parents under Section 4 not only rests on the children but also on
the grand children as laid down under Section 2 (a) of the Act.
The definition is, thus, expansive and puts the obligation not
only on the next generation, but even on a generation thereafter
even if the next generation is present. It has to be however noted
that minor children and minor grand children are not included in
this definition. A minor is defined according to Indian Majority
Act as a person who has not attained eighteen years of age. In
Balbir Kaur v Presiding Officer-Cum-SDM and others it was
held the daughter-in-law would not fall within the definition of
either children or relative as provided for in Section 2 (a) and (g)
of the Act. Under Section 2(b) the term maintenance includes
provision for food, clothing, residence, medical attendance and
treatment. According to the Black’s Law Dictionary
‘maintenance’ means financial support given by one person to
another usually paid as a result of a legal separation or divorce
and the concept of maintenance is synonymous with the
institution of marriage. However, the right of elderly parents to
claim maintenance is recognised by all family laws of the world.
In India, the ancient Hindu law institutionalised the concept of
maintenance of aged parents and relatives in the joint family
system. In the codified Hindu law, the Hindu Adoption and
Maintenance Act, 1956 according to Section 3(b) (i)
maintenance include ‘provisions for food, clothing, residence,
education and medical attendance and treatment’. The Supreme
Court has emphasised that the maintenance provided under the
Act should enable the wife to live in a manner she is accustomed
to in her matrimonial home.The definition of maintenance as
conceived in the Act of 2007 is drawn from this definition given
in the Hindu Adoption and Maintenance Act sans the provision
for education for the elderly. Maintenance as envisaged in the
Section 125 CrPC is in terms of money to serve the needs of the
elderly and maintenance is not explicitly defined in this
provision. A wide connotation to the term maintenance under
the Act of 2007 has been intended by the legislature. The
definition of the term maintenance includes obligation to
provide not only food, clothing or residence or medicine butalso
medical treatment as well as attendance. “The use of the terms
treatment in conjunction with the term attendance and use of the
conjunctive ‘and’ give very wide meaning and connotation to
the term maintenance. The wider connotation assigned to the
term maintenance, which takes in its fold treatment as well as
attendance suggests and clarifies that the Legislature aims at
providing holistic protection to parents and senior citizens so as
to protect them from emotional neglect and lack of physical and
financial support and to set-up proper mechanism to ensure that
the said objects are achieved by simple, inexpensive and speedy
system.

Maintenance of Parents and Senior Citizens

The maintenance of senior citizens including parents is

provided under Section 4 of the Act. Any parent or senior citizen
who is unable to maintain himself or herself out of his or her
earning or out of the property so owned will be entitled to claim
maintenance from one or more of their children or
grandchildren. This provision is reminiscent of the Section 20(3)
of the Hindu Adoption and Maintenance Act, 1956 which states
that the children male or female are bound to maintain their
parents if they are unable to maintain themselves out of their
earnings or out of their property. Again under Section 125 of
CrPC the parents who are unable to maintain themselves can
claim maintenance from their children. The claim for
maintenance under the Act of 2007 is to be made through an
application under Section 5 of the Act. If the claimant is
issueless citizen then the relative who is likely to inherit the
property of the senior citizen is obligated to provide
maintenance. The obligation to maintain the parent or senior
citizen extends to the needs of the said parent or senior citizen so
that they may lead a normal life. It has been specified in the case
of senior citizens that the maintenance to be provided by the
relative would be proportional to the property that they would
inherit. Under Section 4 (1) (i) of the Act it is specified that the
parent or the grandparent is entitled to claim from one or more
of their children not being a minor. But the parent or the senior
citizen must be able to fulfil the criteria set out in subsection (1)
of Section 4 namely that he or she is not able to maintain out of
either his/her earnings or property. Subsection(5) of Section 5
provides that the senior citizens including the parent may file the
application against one or more persons and need not implead all
of those who are liable to maintain him or her. However the
proviso to subsection (5) gives the liberty to the children or
relative to implead others as opposite party who have the
liability to maintain the parent or the senior citizen Subsection
(1) of Section 6 of the Act details the jurisdiction of the
Maintenance Tribunals in any district. A senior citizen,
including a parent may file an application for maintenance either
where he resides or resided or where the children or relative
resides. This provision is an improvement over the provision
provided under Section 125 CrPC where the parent has to file an
application only in the place of residence of children. As the Act
of 2007 is a social legislation with a purpose of catering to the
needs of the elderly the option is given to the elderly to file the
application for maintenance at a place of his/ her convenience
and there is no restriction as in the case of Section 125 CrPC. In
a decision by the Orissa High Court it has been held the word
‘resides’ under Section 126 (1) CrPC refers to the place of
residence at the time of filing of application. Subsection (2) of
Section 6 provides that on receipt on an application under
Section 5, the Tribunal shall issue summons for procuring the
presence of children or relative against whom the application is
filed. For serving the summons, the Tribunal shall have the
power of a Judicial Magistrate of First Class as provided under
the Code of Criminal Procedure according to subsection (3) of
Section 6. The Judicial Magistrate, First Class has to serve
summons in accordance with Para A of Chapter 6 of the Code of
Criminal Procedure. Section 61 CrPC specifies that manner in
which summons have to be issued under this Code. Section 62
details the process of serving summons. Section 65 CrPC
provides the procedure to be followed when the service cannot
be effected as provided. Apart from these guidelines in the Code
of Criminal Procedure, the Maintenance and Welfare of Parents
and Senior Citizens’ Rules formulated by each State also
specifies the process of serving summons. The Tamil nadu
Maintenance and Welfare of Parents and Senior Citizens Rules
2009, Rule 5, provides that service of summons shall be in the
following ways:

1) by delivering the notice to the person at his last known place

or residence
2) by leaving the notice at his usual or last known place of
residence or business in an envelope addressed to the person
3) by sending the notice by the registered post with
acknowledgement addressed to the person at his usual or last
known place of residence or business. It is noted that this
provision of serving summons through registered post is not
allowed under the Code of Criminal Procedure. It has also been
held that when a summon been sent by the Magistrate through
registered post was returned with the endorsement ‘refused’, it
was held not to be proper summons under Section 62 CrPC.
4) the notice shall be delivered to any person in charge of such
place at the moment in case of such delivery not being possible
it shall be pasted at a conspicuous place on the premises.

The Supreme Court of India has attempted to define a

Tribunal when in HarinagarSugarMills v Shyam
SunderJhunjhunwala Hon’ble Judge Hidayatullah held that the
word ‘Courts’ is used to denote those Tribunals which are set up
in an organised State for the administration of justice. The
exercise of this judicial power of the State is to maintain and
uphold the rights and to punish the wrongs. ‘Whenever there is
an infringement of a right or an injury, the Courts are there to
restore the vinculum juris, which is disturbed.’He opined that a
large number of administrative Tribunals have come into
existence because of the problems of modern life. These
Tribunals have the authority of law to pronounce upon valuable
rights; they act in a judicial manner and even on evidence on
oath, but they are not part of the ordinary courts of civil
judicature. They share the exercise of the judicial power of the
State, but they are brought into existence to implement some
administrative policy or to determine controversies arising out of
some administrative law. “They are very similar to courts, but
are not courts Section 20 mandates that the State government
shall ensure medical support
to the senior citizens. They shall also ensure that
government hospitals shall provide beds for senior citizens and
treatment facilities of chronic, terminal and degenerative
diseases are extended to them. They shall also ensure that every
district hospital is headed by a medical officer with experience
in geriatric care Section 21 of the Act stipulates that the State
Government shall ensure wide publicity to the provisions of this
Act and sensitisation and awareness training on the issues
related to the Act must be periodically given to the Central and
State Governments officers including the police officers. It must
also ensure that effective coordination between the services
provided by the various departments to address the welfare of
the senior citizens. Section 22 for the effective protection of life
and property of senior citizens, the State Government has to
confer such powers and impose such duties on a District
Magistrate and also to ensure that the provisions of the Act are
carried out properly. The District Magistrate must specify the
officer who has been delegated the rights conferred on him and
the local limits within which he may exercise the powers.
Subsection (2) of Section 22 mandates that the State
Government should prescribe a comprehensive action plan for
providing protection to the life and property of senior citizens.
Rule 21 of the TamilNadu Maintenance and Welfare of Parents
and Senior Citizens Rules 2009 contains the Action plan for the
protection of life and property of senior citizens.
In Ram Chandra Singh v. Savitri Devi and others, it was
observed that fraud is anathema to all equitable principles and
any affair tainted with fraud cannot be perpetuated or saved by
the application of any equitable doctrine including resjudicata.
Respondent No.5 is admittedly owner/ co-owner of the property
in dispute. The possession of the first floor of the property has
been handed over to the petitioners with an implied latent
promise that the petitioners (transferee) would at least vouch for
the welfare of the transferor. The petitioners (transferee) have
apparently failed to provide for the amenities, physical needs or
even care for the welfare of respondent No.5 giving a cause
of action to respondent No.5 to seek the protection of Section 23
(1) of the Maintenance Act and get the transfer by way of
possession declared void bringing the act of the petitioners
under the definition of fraud. In view of the law that fraud
vitiates all proceedings and vests no right in anybody,
respondent No.5 would be entitled to enforce his legal right to
declare the transfer i.e. transfer of possession which falls under
the definition of 'otherwise' under Section 23 (1) of the Act,
void. In view of the above interpretation of Section 23 (1) of the
Act, the transfer of possession in favour of the petitioners has
rightly been declared to be void by the Tribunal being vitiated
on account of fraud within the definition of Section 23 (1) of the
Act.’ Thus it is observed that in this case Section 23(1) is
interpreted in light of the definition of fraud.
 CONCLUSION
The maintenance of Hindu parents is dealt with in The
Hindu Adoption and Maintenance Act 1956. Section 20(3) of
the Hindu Adoption and Maintenance Act specifically imposes a
legal obligation on the children to maintain their parents in the
event of the parents being unable to maintain themselves out of
their earnings or property. Under the Muslim Law again there is
an obligation imposed upon the children to maintain their
indigent parents. The personal laws, Section 125 (d) of the Code
of Criminal Procedure accords maintenance to all beleaguered
parents irrespective of their religion to claim maintenance under
this section from their children. The Supreme law of the land
‘The Constitution of India’ in its provisions of Part III and Part
IV caters to the matter of protection of the elderly section of the
population. The vigilant Judiciary in India has expanded the
scope of the Fundamental rights especially Article 21 of the
Constitution to include all the rights which are basic to the
decent existence of all the citizens of India. Therefore there is a
clear directive in the Constitution to the Executive to extend its
full support and cooperation to ensure good governance in the
country. And also to make sure that the elderly population are
taken care of. To fulfill this mandate of the Constitution and also
to fulfill its international obligations as the Indian Parliament
enacted the first elder law in India in the form of The
Maintenance and Welfare of Parents and Senior Citizens Act
2007. The obligation to maintain the parents rests on the
children according to the Act of 2007. The definition of a child
in Section 2(a) of the Act includes children and grand children.
It has been interpreted by the courts as not including son-in-law
or daughter-in-law. It is suggested that when both the son and
the daughter are beneficiaries of their parents the inclusion of
son-in-law and daughter-in-law is not out of place especially
when they are enjoying the properties of their in-laws. The Act
does enable the aged parent or senior citizen as the case may be,
who is neglected by his family to sue for maintenance. It
provides for the constitution of Tribunals to deal exclusively
with the matters connected and specified in the Act. It is a
positive feature of this legislation that the application for
maintenance may also be submitted by an authorised NGO on
behalf of the senior citizen including the parent and the Tribunal
is also empowered to take suo moto cognizance of the matter.
Under Section 16 of the Act, only the aged parent or senior
citizen who is aggrieved by the decision of the Tribunal may
appeal. This has led to a large number of writ petitions filed in
the High Courts’ under Article 226 against the order of the
Tribunals as revealed in the analysis. It is suggested that the
provision for appeal against the order of the Tribunal may be
extended to the aggrieved children or relative also.