Hello, I welcome every one of you to my blog, titled 'Legal Articles.com'
I have created this blog mainly with the idea of creating unique legal articles, so as to share my experience in the legal field as well as to enrich my legal knowledge.
I am interested in writing articles generally and with particular reference to my legal expertise also.
I want to devote this blog exclusively to the legal articles only because if I post unique legal articles along with general articles in my other blogs,'rabasure.blogspot.com' and 'rabasuresblog.blogspot.com', sometimes the unique legal articles may lose their relevance and identity.Sometimes, they also lose their large viewership which they actually deserve.Moreover,as my title itself suggest, eventhough I may be practising law in India, I do not want to confine my attention to Indian laws only.I want this blog to be a site of comparative study of various laws that prevail in both eastern and western countries.
I also have some specific ideas to enrich this blog by focussing my attention by devoting separate space for legal articles which have a relevance to Indian people.I also intend to devote separate space for other legal articles with special reference to western countries.
It is also my idea to have a targetted traffic to my site from those who want to have a solution to their legal problems.
Therefore, I have made my intentions clear and have given only an outline of my future plans of my actions by using this site.
Therefore, I stop here leaving the rest for tomorrow.
Friday, November 28, 2008
A Unique Act called ‘The Maintenance and Welfare of Parents and Senior Citizens Act, 2007”
A Unique Act called ‘The Maintenance and Welfare of Parents and Senior Citizens Act, 2007”
The Indian legislature has enacted ‘The Criminal Procedure Code, 1973, The Hindu Marriage Act, 1955, The Divorce Act, 1869 and The Hindu Adoptions and Maintenance Act, 1956 etc for providing maintenance to the uncared for spouses, children, sons and daughters and parents as well. While ‘the Hindu Marriage Act and the Hindu Adoptions and Maintenance Act’ are applicable to the people professing Hindu religion only, the Criminal Procedure Code, 1973 and the Divorce Act, 1869 are general in nature and they are applicable to the people professing all religions. It is well known that a muslim lady namely ‘Shah Banu’, hailing from Kerala, fought all the way up to the Supreme Court of India, to claim maintenance from her husband under Section 125 of the Criminal Procedure Code, despite of facing a very stiff resistance from the Islamic outfits.
But none of the above mentioned acts bestow any special attention on the aged people or the senior citizens, who have been hitherto been neglected. But the recently enacted act ‘The Maintenance and Welfare of Parents and Senior Citizens Act, 2007’has sought to redress this grievance with an emphasis and focus on the senior citizens.
It is really disheartening to note that the senior citizens are mostly neglected, become desolate and find it very difficult to eke out their livelihood. Some of them manage to find a place in the ‘Homes for the Aged’, some of them choose to beg and most of them die of starvation and uncared for. ‘The Maintenance and Welfare of Parents and Senior Citizens Act, 2007’ has made an earnest attempt to render justice to them.
The act is very brief with only 32 sections. It applies exclusively to the senior citizens who are above the age of 60.Some of the salient features of the act are:
1)It provides for summary proceedings within a period of 90 days from the date of filing a petition in a specially constituted Tribunal for this purpose. The Tribunal is manned by an officer not below the rank of a sub- divisional officer.
2)The senior citizen can either apply to a Tribunal where he resides or where his son or daughter or his near relative resides from whom he or she claims maintenance.
3)An uncared for or a childless senior citizen, though he or she possess property but does not derive any income from it, can seek maintenance from his son or daughter or from his relative or relatives, who will inherit his or her property after his or her death.
4)The senior citizen can either apply in person or through a person authorized by him or through a voluntary organization registered under the Societies Registration Act.
5)The Tribunal on receipt of a petition will suo motu take it on file and refer it for a conciliation by a conciliation officer within a period of one month.
6)The Tribunal enjoys the power of a first class magistrate for enforcing and summoning the attendance of persons against whom the petition has been filed.
7) The Tribunal follows the same procedure of a civil court to adduce evidence from the petitioner and the respondent
8) The Tribunal can pass an order granting a maximum sum of Rs 10,000/- as maintenance to the senior citizens.The maximum amount is subject to the regulation of the concerned state government.
9) The person against whom an order for maintenance has been passed has to comply with the order within one month, failing which the Tribunal can imprison him or her up to a period of one month.
10) The maintenance amount shall also carry an interest varying between 5 % and 18 %.
11) The act provides for the District Welfare Officer to act as maintenance officer and even to conduct the proceedings for and on behalf of the senior citizens.
12) The Act provides for the establishment of old age homes for the senior citizens by the concerned state governments.
13) Preferential treatment should be given to the senior citizens in the hospitals like separate queues, treatment, offering medicines and also promotion of research in the geriatric medicine.
14) Civil courts have no jurisdiction to interfere with the proceedings of the Tribunals like grant of stay, ordering transfer etc.
15) Senior citizens cannot be represented by any legal practitioner.
16) State governments are empowered to enact rules for the effective implementation of the Act.
17) If a person who has been looking after a senior citizen forsakes him or her, he or she will be punished by the Tribunal.
18) Appeal can be preferred against the order of a Tribunal and the appeal should be disposed of within one month.
19) A senior citizen can seek maintenance for the purpose of his or her food, shelter, clothes, medical facilities and recreation etc.
20) A senior citizen who has transferred his property either to his son or daughter or near relative, by virtue of a will or gift, can now get it cancelled by applying to the Tribunal, if he or she is neglected by the legatee or the donee.
21) The provisions of the act have overriding effect. If any provision of any other act is inconsistent with the provisions of this act, it will prevail over others..
Though the acts’ genuine concern for the senior citizen cannot be overlooked, the act has the following demerits also.
1) The Tribunal is not manned by a person with a judicial qualification or acumen or experience. It is not known how they will adjudicate into the matter in accordance with the procedure followed by a civil court.
2) Complete exclusion of the professional lawyers from the purview of the Tribunal simply defies logic and reasoning.
3) The Act entrusts the entire responsibility of establishing Tribunals, enacting rules etc to the concerned state.
4) The presiding officer of the Tribunal has no power of discretion in awarding the maintenance amount and the power is vested with the state government.
5) Imposing liability on a person who happens to be a relative of the senior citizen on the ground that he will inherit the property of the senior citizen is illogical and unreasonable because the senior citizen may sell his property to any third party before his death and there is no guarantee that the relative will definitely inherit the property of the senior citizen.
6) The exclusion of the jurisdiction of civil courts is not justified, because Tribunals are not manned by legally qualified or experienced persons.
.
7)It seems that most of the state governments are not serious in implementing the provisions of the act and only a few states like Andhra Pradesh have so far come forward to notify the act in their gazette.
Therefore, in order to implement the act more effectively and render justice speedily, the central government should come forward to remove the above mentioned drawbacks. Otherwise, the real objectives of enacting the above act to rescue the senior citizens may not be fulfilled.
The Indian legislature has enacted ‘The Criminal Procedure Code, 1973, The Hindu Marriage Act, 1955, The Divorce Act, 1869 and The Hindu Adoptions and Maintenance Act, 1956 etc for providing maintenance to the uncared for spouses, children, sons and daughters and parents as well. While ‘the Hindu Marriage Act and the Hindu Adoptions and Maintenance Act’ are applicable to the people professing Hindu religion only, the Criminal Procedure Code, 1973 and the Divorce Act, 1869 are general in nature and they are applicable to the people professing all religions. It is well known that a muslim lady namely ‘Shah Banu’, hailing from Kerala, fought all the way up to the Supreme Court of India, to claim maintenance from her husband under Section 125 of the Criminal Procedure Code, despite of facing a very stiff resistance from the Islamic outfits.
But none of the above mentioned acts bestow any special attention on the aged people or the senior citizens, who have been hitherto been neglected. But the recently enacted act ‘The Maintenance and Welfare of Parents and Senior Citizens Act, 2007’has sought to redress this grievance with an emphasis and focus on the senior citizens.
It is really disheartening to note that the senior citizens are mostly neglected, become desolate and find it very difficult to eke out their livelihood. Some of them manage to find a place in the ‘Homes for the Aged’, some of them choose to beg and most of them die of starvation and uncared for. ‘The Maintenance and Welfare of Parents and Senior Citizens Act, 2007’ has made an earnest attempt to render justice to them.
The act is very brief with only 32 sections. It applies exclusively to the senior citizens who are above the age of 60.Some of the salient features of the act are:
1)It provides for summary proceedings within a period of 90 days from the date of filing a petition in a specially constituted Tribunal for this purpose. The Tribunal is manned by an officer not below the rank of a sub- divisional officer.
2)The senior citizen can either apply to a Tribunal where he resides or where his son or daughter or his near relative resides from whom he or she claims maintenance.
3)An uncared for or a childless senior citizen, though he or she possess property but does not derive any income from it, can seek maintenance from his son or daughter or from his relative or relatives, who will inherit his or her property after his or her death.
4)The senior citizen can either apply in person or through a person authorized by him or through a voluntary organization registered under the Societies Registration Act.
5)The Tribunal on receipt of a petition will suo motu take it on file and refer it for a conciliation by a conciliation officer within a period of one month.
6)The Tribunal enjoys the power of a first class magistrate for enforcing and summoning the attendance of persons against whom the petition has been filed.
7) The Tribunal follows the same procedure of a civil court to adduce evidence from the petitioner and the respondent
8) The Tribunal can pass an order granting a maximum sum of Rs 10,000/- as maintenance to the senior citizens.The maximum amount is subject to the regulation of the concerned state government.
9) The person against whom an order for maintenance has been passed has to comply with the order within one month, failing which the Tribunal can imprison him or her up to a period of one month.
10) The maintenance amount shall also carry an interest varying between 5 % and 18 %.
11) The act provides for the District Welfare Officer to act as maintenance officer and even to conduct the proceedings for and on behalf of the senior citizens.
12) The Act provides for the establishment of old age homes for the senior citizens by the concerned state governments.
13) Preferential treatment should be given to the senior citizens in the hospitals like separate queues, treatment, offering medicines and also promotion of research in the geriatric medicine.
14) Civil courts have no jurisdiction to interfere with the proceedings of the Tribunals like grant of stay, ordering transfer etc.
15) Senior citizens cannot be represented by any legal practitioner.
16) State governments are empowered to enact rules for the effective implementation of the Act.
17) If a person who has been looking after a senior citizen forsakes him or her, he or she will be punished by the Tribunal.
18) Appeal can be preferred against the order of a Tribunal and the appeal should be disposed of within one month.
19) A senior citizen can seek maintenance for the purpose of his or her food, shelter, clothes, medical facilities and recreation etc.
20) A senior citizen who has transferred his property either to his son or daughter or near relative, by virtue of a will or gift, can now get it cancelled by applying to the Tribunal, if he or she is neglected by the legatee or the donee.
21) The provisions of the act have overriding effect. If any provision of any other act is inconsistent with the provisions of this act, it will prevail over others..
Though the acts’ genuine concern for the senior citizen cannot be overlooked, the act has the following demerits also.
1) The Tribunal is not manned by a person with a judicial qualification or acumen or experience. It is not known how they will adjudicate into the matter in accordance with the procedure followed by a civil court.
2) Complete exclusion of the professional lawyers from the purview of the Tribunal simply defies logic and reasoning.
3) The Act entrusts the entire responsibility of establishing Tribunals, enacting rules etc to the concerned state.
4) The presiding officer of the Tribunal has no power of discretion in awarding the maintenance amount and the power is vested with the state government.
5) Imposing liability on a person who happens to be a relative of the senior citizen on the ground that he will inherit the property of the senior citizen is illogical and unreasonable because the senior citizen may sell his property to any third party before his death and there is no guarantee that the relative will definitely inherit the property of the senior citizen.
6) The exclusion of the jurisdiction of civil courts is not justified, because Tribunals are not manned by legally qualified or experienced persons.
.
7)It seems that most of the state governments are not serious in implementing the provisions of the act and only a few states like Andhra Pradesh have so far come forward to notify the act in their gazette.
Therefore, in order to implement the act more effectively and render justice speedily, the central government should come forward to remove the above mentioned drawbacks. Otherwise, the real objectives of enacting the above act to rescue the senior citizens may not be fulfilled.
Subscribe to:
Posts (Atom)