Bombay high court says senior must demonstrate inability to maintain self to seek relief under seniors act

MUMBAI: For a senior citizen to claim relief under the law meant for the welfare of seniors, it is essential for him to make out a case of inability to maintain himself out of his earnings and earnings from his property, said the Bombay High Court.

“Every conflict between a senior citizen and his offspring would not attract the jurisdiction of the Act. Whether jurisdiction exists depends on the facts of each case,” the HC recently held.The HC set aside a tribunal’s February 2024 order that directed 2 sons to vacate a house where they resided, after the father, residing elsewhere, wanted them out, citing provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.The HC, however, observing that it did not comment on the merits or facts of the case, said the father can apply afresh before the tribunal with empirical evidence to demonstrate his case. The sons shall then be entitled to provide their response and evidence, and meet the foundational element of whether the jurisdiction of the Act is available to the father at all.“The objective of directing a relative to vacate the premises to enable maintaining the emotional needs and peace expected in normal life would presuppose the family living under 1 roof, with the need to remove the relative to enable the senior citizen’s peace,” observed Justice Somasekhar Sundaresan of the HC in his February 9 judgment while disposing of a petition filed by the sons.

“A situation where the parties were in conflict for long and one desires the other to be removed from a property where they do not reside jointly, or worse, where neither resides (the Father alleges that even the Sons do not live there) is not a matter that would fall within the ambit and scope of remedial intervention under the Act,” Justice Sundaresan said.The sons were occupying a slum unit in Malad, a Mumbai suburb. They are sons of their father’s late first wife.

The retired, pension-drawing father, a former civic employee, married again. The sons filed the petition against the father and stepmother.The sons pointed out that the special tribunal for senior citizens under the Act in fact held that the father cannot be awarded maintenance. They also argued that eligibility for the grant of maintenance is a foundational jurisdictional fact for the purposes of intervention under the Act, because it is when a senior citizen is unable to maintain himself that the jurisdiction of the Act is attracted.

Hence, they argued that once it was held that the father is not entitled to maintenance, how could the tribunal order their eviction under the socio-welfare legislation.The sons invoked section 23 of the Seniors Act. It says a transfer of a property by a senior citizen, subject to the condition that the transferee provides for such citizen’s basic amenities and physical needs, is deemed coercive or fraudulent on non-compliance with the conditions and can only then lead to eviction.The father’s lawyer argued that the special Act makes a senior citizen entitled to maintain himself from the earnings of his property. He claimed the sons did not reside in his property but exploited it for rent.The HC noted that the family was “in tragic disrepair for long”. Both sides traded “serious claims and counter-claims about the facts,” the HC observed.The HC, on analysing the provisions of the Act, said the intent of protective coverage under Section 4 is the inability of a senior citizen to maintain himself out of his earnings and out of the property owned by him.

The reference to property is not just the property from which eviction was sought by the senior citizen, but also other properties owned by the senior citizen.While Section 4(1) of the Act entitles a senior citizen to apply for maintenance, section 4(2) creates an obligation on adult children to maintain the senior citizen parent by providing for the needs to lead a normal life. “These 2 elements of Section 4 do not operate in a vacuum.

Such entitlement and such obligation would apply where the senior citizen makes out a case of inability to maintain himself out of his earnings and earnings from his property,” the HC held.Section 23 provides for a serious and drastic measure of declaring void a transfer of property made after the commencement of the Act.To invoke section 23, there ought to be a transfer, and such transfer ought to be accompanied by a condition imposed to maintain the senior citizen, said the HC, and held that sections 4, 5 and 23 must be read holistically and conjointly in harmony.The Maintenance Tribunal must construe this provision of section 23 beneficially for its “wider legislative intent and purpose, namely, of giving a remedy to a senior citizen who is unable to maintain himself.”The sons’ case was that he earns Rs 40,000 and the Act envisages maximum maintenance of Rs 10,000 monthly. The HC noted the father provided no details of his income or financial need. Since they do not reside together, the emotional needs are not under analysis, the HC said, observing the facts undermine the Maintenance Tribunal’s order of the sons’ eviction from a house the father in fact is not living in.The emotional aspect, and since they live apart, emotional distress is not under needs to show he is unable to support himself.The Maintenance of Parents and Senior Citizens ActSection 4: Maintenance of parents and senior citizens(1) A senior citizen, including a parent, who is unable to maintain himself from his own earning or out of the property owned by him, shall be entitled to apply against 1 or more of his adult children, or a relative if childless.(2) The obligation of the children or relative extends to the needs of such citizen so that the senior citizen may lead a normal life.(3) The obligation of the children to maintain his or her parent extends to the needs of such parent, either father or mother or both.Section 23 provides for a serious and drastic measure of declaring void a transfer of property made after the commencement of the Act. Again, the jurisdictional fact necessary for attracting the provisions of Section 23 must be noticed. There ought to be a transfer, and such transfer ought to be accompanied by a condition imposed to maintain the senior citizen.