October 29, 2018
Senior Citizens are an integral part of society. Their vast experience and teachings have always enriched families and societies. Since time immemorial presence of senior citizens in families have made relations healthier and stronger. However, recently there have been end number of incidents when senior citizens have been boycotted by their very own families and have been deprived of even basic necessities of life. Many senior citizens have also been forced to leave their own homes and seek shelter in old-age homes. In view of such adversaries, legislature had formulated the law Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Senior Citizen Act) and the Judiciary has also in the recent times passed verdicts which further strengthen their rights and position in society.
We have posted this article, so that senior citizens are aware of their rights and raise their voice in the event of any such atrocities inflicted on them.
Can Senior Citizens Evict Children from their Home?
Case name: Dattatrey Shivaji Mane v. Lilabai Shivaji Mane & ors.
In this recent case, the Bombay High Court while highlighting the object of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Senior Citizen Act) held that the Act permits a senior citizen including parent who is unable to maintain himself from his earning or out of property owned by him and if such senior citizen is unable to lead a normal life to apply for such relief i.e. eviction under Section 4 of the Act not only against his children but also the grandchildren.
In the case, the Respondent mother had filed a complaint against the petitioner (her son) inter alia praying for maintenance and eviction of the petitioner on various grounds. The Tribunal passed an order directing the petitioner and his other family members to evict themselves from the said tenement under Section 4 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Senior Citizen Act). It would be relevant to mention here that the impugned premises exclusively belonged to the Respondent mother.
Aggrieved by the aforesaid order, the Petitioner instituted writ petition before the High Court of Bombay contending that since the petitioner has been allegedly maintaining the respondent no.1 for last several years, no order of eviction could be passed by the tribunal under Section 4 of the Senior Citizen Act.
The High Court of Bombay upheld the Tribunal’s order in view of the following observations:
- That the respondent no.1 has produced sufficient material on record showing that the respondent no.1 has been harassed by the petitioner and his family members for last several years. That Section 4 of the Act permits a senior citizen including parent who is unable to maintain himself from his earning or out of property owned by him and if such senior citizen is unable to lead a normal life to apply for such relief not only against his children but also the grandchildren.
- While arriving at its decision, the High Court heavily relied on the case of Sunny Paul & Anr. Vs. State Nct of Delhi & Ors., wherein it was held that that the claim for eviction is maintainable under Section 4 of the said Act read with various other provisions of the said Act by a senior citizen against his children and also the grandchildren.
- That the Senior Citizen said Act is enacted for the benefit and protection of senior citizen from his children or grandchildren.
- That while interpreting the provisions, object of the Act has to be kept in mind which is to provide simple, inexpensive and speedy remedy to the parents and senior citizens who are in distress, by a summary procedure. Thus, the provisions have to be liberally construed as the primary object is to give social justice to parents and senior citizens.
- With reference to the facts of the instant case, the High Court opined that the respondent mother could not be restrained from recovering exclusive possession from her son or his other family members for the purpose of generating income from the said premises or to lead a normal life.
In view of the aforesaid observations, the High Court directed the petitioner and other occupants i.e. his wife, son and daughter hand over the vacant possession to Respondent within 2 weeks.
The entire case can be accessed here.
Uttarakhand HC: Every Senor Citizen has Right to Live with Dignity
Case name: Senior Citizen Welfare Organization & another v. State of Uttarakhand & Anr.
In this case, the High Court of Uttarakhand while recognizing the failure of State to maintain adequate old age homes for the senior citizens in the State has issued a slew of mandatory directions.
In the case, the Petitioner is a registered Society who have instituted this petition with the object to protect the rights of the senior citizens as per the provisions of the Maintenance and Welfare of the Parents and Senior Citizens Act, 2007 (the Act).
The Petitioner in the case alleged that as per Section 19 of the Act old age homes is to be established in each district of the State of Uttarakhand. Section 19 ordains the State Government to establish and maintain such number of old age homes at accessible places at least one in each district to accommodate minimum 150 senior citizens who are indigent. However, the Respondent State has established only two old age homes.
The Two-Judge of the Uttarakhand High Court while taking a strong note of the prevailing situation made the following observations in the case:
- That according to the language of Section 19, the State Government is required to establish old age homes in each district and also to prepare a Scheme as per Section 19(2) of the Act, 2007.
- That the State Government should establish the old age homes at its own level instead of relying upon NGOs or Societies. The State Government has to discharge the burden placed on it under Section 19 of the Act, 2007 and it cannot be permitted to pass on the responsibilities upon the NGOs for better management of the old age homes.
- That it is the duty of the State Government to provide beds for all senior citizens in government aided hospitals. There is requirement of separate queues for senior citizens. The facility for treatment of degenerated diseases is required to be extended to senior citizens.
- That every senior citizen has a fundamental right to live with dignity. It is the duty cast upon the State Government to protect the life, liberty and property including dignity and decency of senior citizens. They cannot be permitted to be left unattended in the twilight of their lives. Ours is a welfare and socialist state and it is expected that every senior citizen should live in a dignified manner with the assistance to be provided by the State Government.
The High Court in the case also issued a slew of mandatory directions for the establishment and maintenance of old age homes in India:
- The State Government is directed to establish old age home in each district of the State of Uttarakhand within a period of six months. It is made clear that it shall be open to the State Government to hire private accommodation, as a temporary measure.
- The State Government is directed to make a scheme for management of old age homes within a period of eight weeks from today as per Section 19(2) of the Act.
- The State Government is directed to ensure to provide sufficient number of beds for senior citizens in each Government hospital or hospitals funded by the State Government.
- The State Government is further directed to ensure that all the senior citizens in the State of Uttarakhand are provided free treatment including blood test, CT scan, MRI and other tests at Govt. hospitals.
- The respondent-State shall upgrade the facilities to be provided in old age homes from time to time including the strength of the inhabitants.
- The State Government is also directed to give due publicity to the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 in print media, electronic media including through Panchayati Raj institutions for the awareness of the enactment as per Section 21 of the Act, 2007.
- The State Government shall provide the facilities to the senior citizens as per the Rules.
- The State Government shall provide separate accommodation for men and women including sufficient potable water, electric fans, coolers/ AC, separate kitchen, dining room, separate bathroom for disabled senior citizens.
- The State Government is also directed to provide wheel chair, television, newspaper and books in old age homes.
- The State Government is also directed to provide ramp railing to the senior citizens including telephone service.
- The State Government is also directed to provide balanced nutritious food, two sets of clothes for summer and winters, linen, sufficient number of sweepers for maintaining hygiene and cleanliness in old age homes.
- The senior citizens in case of emergency shall be taken to the nearest hospital for treatment. The cost of conveyance shall be borne by the State Government including the medical expenditure as well as of ambulance.
- The Circle Officers of the respective area are directed to maintain vigil in and around the old age homes.
- The State Government is directed to protect the life and property of the senior citizens as provided under Rule 20.
- The Secretary, Welfare to the State of Uttarakhand shall be personally responsible to implement the orders and monitor the directions issued hereinabove.
Right of Senior Citizen over Immovable Property and Eviction of Abusive Children
Case name: Pramod Ranjankar & Anr. v. Arunashankar & ors.
In the instant case, the two senior citizens i.e. Petitioners alleged of physical assault and torture by their son and daughter-in-law (Respondents) by not providing them food, medicine and also confining them to a corner of their own house.
On complaint of the Petitioners, the JMFC took cognizance of the case and found that prima facie case is made out under Section 24 of The Maintenance and Welfare of the Parents and Senior Citizens Act, 2007 (Act) against the respondents. Subsequently, notices were issued to respondents and while such proceeding was pending an application was filed by Petitioner seeking interim relief for of the eviction of Respondents from the house. It was categorically stated that disposal of pending criminal case which is registered may take some time, therefore, the son and daughter should be ousted from the house to protect the petitioners.
However, the Lower Court held that when the petition filed under Section 24 of the Act was pending, ejectment cannot be passed by the Court.
Section 24 of the Act provides that whoever is responsible to care for senior citizen leaves such senior citizen with the intention to abandon him then he shall be punished.
Section 23 of the Act enumerates the circumstances under which a transfer of property by a senior citizen shall be rendered void on consequent misbehavior by the transferee.
The High Court of Chhattisgarh in the case directed the respondents to evict their parents’ house on the basis of following observations in the case:
Liberal Interpretation of Section 24- That reading of Section 24 would show that it started with opening words “the exposure and abandonment of senior citizen” meaning thereby the entire object is to protect the senior citizen. That having regard to the object of the Act and the intention of the legislature, there is no reason or justification or indication to restrict the meaning and scope of the word protection.
That reading of section 24 of the Act shows that it gives protection to the senior citizens in any place if they are abandoned and the said act is punishable with imprisonment of 3 months or fine thereby the person who intentionally abandons a senior citizen is liable for punishment. Reading of the above provision shows that it is intended to provide for a preventive remedy for the safety of senior citizen which can be granted quickly.
Transfer to be Void if Basic Needs to Transferor is not Provided- That a combined reading of Sections 23 and 24 of the Act would show that even if the property has been transferred by way of a gift or otherwise to the transferee, in lieu of such transfer of property the transferee has to provide basic amenities and physical needs to the transferor and if the transferee refuses or fails to provide such amenities and needs, the said transfer can be annulled.
That the object of the Act, 2007 calls for a simple, speedy but limited relief and seeks to ensure that the parents are not shelved as a commodity or a good under the scrap/heap of society and allow the children to sail on their immorality for their own subsistence.
Magistrate’s Duty under Section 22 of the Act- The jurisdiction conferred by Section 22 on the Magistrate is more in nature of a preventive, rather than a remedial jurisdiction. In view of this, it is the duty of the Magistrate to interpret the provisions in such a way that the construction placed on them would not defeat the very object of the legislation.
That in the absence of any express prohibition, it is appropriate to construe the provisions as conferring an implied power on the magistrate to direct the person against whom an application is made under Section 24 of the Act not to harm the senior citizen also.
That it is not expected that a senior citizen will run from pillar to post and the assault and abuses would be allowed to be continued in the same house till the petition u/s 24 is decided on merits.
Right over Immovable Property- The High Court also made reference to Supreme Court’s judgment in the case of Sunny Paul and another v. State NCT of Delhi, wherein it was held that the direction of eviction is a necessary consequential relief or a corollary to which a senior citizen would be entitled upon a transfer being declared void thereby the right over the immovable property, possession and ejectment thereof has been recognized which are incidental and ancillary.
In view of the aforesaid, the High Court while allowing the Petitioner’s interim application for eviction opined that the anxiety to stop the right of the abuse of senior citizen is to be made effective as otherwise it would be a symbolic collapse of the legal system by not responding to the request or by adhering to the dummy mode by Courts.