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Effectiveness of the Legal Provisions

Info: 5382 words (22 pages) Law Essay
Published: 17th Jul 2019

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Jurisdiction(s): Indian law


The word maintenance in common parlance means the act of supporting. When we come upon the term maintenance in relation to the family structure, we only tend to think about husband giving maintenance to his wife after their divorce has taken place in order to confirm that the wife leads her life with approximately same standard of living which she used to enjoy when she was married. We overlook the other two categories of people who require same amount of support as the wife does when we talk about maintenance which are parents and children. In this research paper I have tried to analyze various elements related to maintenance of parents ( under Hindu law) which I think are in equal need of it as a wife is, as they to form an important part of society we live in.

“In the older times, after the completion of 50 years of life, one had to detach oneself from the responsibilities of a ‘Grihastha’ and switch over to the third stage of human life which was known as ‘Vanpristha’ which referred to the devotion of the next 25 years of life by the ‘Vanpristha’ by mana, vachana and karma to the selfless service of the suffering humanity and the larger society in return to the services received form society during the first 50 years of life.” People used to consider old age as the age to rest and relax and spend the rest of their lives peacefully. This was valid because then these people had children who did’nt view looking after their parents as a difficulty and burden on them.

“The moral duty to maintain parents is recognized by all people” [1] . “It is this law and morality by which it is supported, that have saved our government the trouble of enforcing that complicated system of poor laws which is social necessity in other countries.” [2] In India since historical times there has been a tradition, followed by nearly every community under Hindu law, to treat elderly people of the family with love, care and respect. Changing times have resulted in a situation where these traditions have weakened and the term individuality has superseded it. Nowadays everyone wants to lead a life on his terms and tries to escape from the responsibilities he or she has using the alibi of individuality. They have imbibed this term in the wrong sense in their lives. Individuality does not get’s in way of traditions and morality. It’s upto you how to maintain the balance between the two. Moreover, treating elderly people with love, care and respect is more a sign of morality than traditions. “Aged mother and father, the infant children and, the chaste wife must be maintained even by doing a hundred misdeeds” [3] .In today’s time children feel burdened to keep their parents with them. Some of them even go to such an extent where they leave them stranded on the roads.

The aged people face numerous problems. To enlist a few:

economic insecurity

Physical illness

Psycho- social problems

In order to provide justice to these people, Indian legal system has provided some relief by which if a situation comes where parents have not way out can use the tool of MAINTENANCE in order to meet their basic necessities for survival. If not all the problems maintenance provides the solution for economic insecurity and income deficiency which co-relates to the other two problems on general terms. “Seeking maintenance from grown-up children is the prerogative of parents” [4] . In order to seek maintenance there are provisions under Criminal procedure code, maintenance and welfare of senior citizens and parents act 2007 and personal laws in Hindu law.

I- Hindu Adoption and Maintenance act 1956-

Hindu law recognizes and puts the obligation of maintenance of aged parents on their sons, who are not able to maintain themselves out of their earning and property. Maintenance of aged parents was recognized as a personal legal obligation enforceable by sovereign or the state. “The Hindu Adoption and Maintenance act 1956 is the first personal law statute in India which imposes an obligation on the children to maintain their parents” [5] . It was not only the duty of the sons to take care of their aged parents, the daughters are equally liable for it. The most important that we can infer from this is that financially unstable parents are the ones who could go for maintenance as guaranteed under this act. Under Hindu adoption and maintenance act the children were bound to maintain their parents. Though this act was an important milestone it had limited scope with respect to the maintenance of parents.

II- Criminal procedure code 1973-

Section 125 of Criminal procedure code (from now referred to as CRPC)-“ Order for maintenance of wives, children and parents-

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself.” [6]

The first obvious question related to this section would be that why a matter related to family law has a section related to it in a criminal statute. Now when we try to analyze this section we can extrapolate why it is there. When people are abandoned from their homes there is no one to look after them whether emotionally, physically or economically. These people have to confront to the other side of the society which can be described as the breeding ground of crimes. They are left devastated from inside and it no longer matters to them to lead a life of a responsible citizen or we can say their conscience fails to respond as it used to do before their abandoning. They no more consider them as a part of properly functioning civilized society. When they commit themselves to illegal activities they seek it as a form of revenge from the society which they think has been absolutely unfair towards them.

When few of them fail to fight for survival i.e. food, shelter and other basic necessities with legitimate means so their natural step goes towards the criminal means in order to fulfill the bare necessities for e.g. stealing, kidnapping etc. Children are the ones who are the ones more likely to indulge in illegal activities when they are abandoned as they can be easily manipulated by the criminals in order to increase the crime level and their money. Many of these children are forced into beggary and in order to fetch more money from the people they are made handicapped. These people are affected by destitution and add to the social backwardness of the society. Destitution refers to a state in which a person has no money, friends or prospects. In the case of elderly people the case is. So, in order to deter people from abandoning people and take care of the so that their acts do not lead to increase in the illicit activities within the society, section 125 has been incorporated in the criminal procedure code.

Below are the cases which were decided in the Supreme Court or respective high courts Using CrPcC section 125. These cases try to extrapolate what is not directly mentioned in the section but can be inferred to provide justice.

CASE 1- Can someone refuse to pay maintenance to his or her parents on the grounds that they did not fulfill their due parental obligation as and when he or she was dependent on them? In Pandurang Baburao Dabadhe vs. Baburao Baburao Dabadhe [7] the court declared that from section 125(1) it was not clear that can the court provide maintenance to a parent who did not comply with their duties when the child was dependent on him or her. The court said “The argument which is advanced before us stems from amoral indignation at being required to maintain a father who did not took care of the children at the time when he should have done so. However, effect must be given to the intention of the legislature which must be found from words of section 125(1) alone and cannot ask to be relieved from the said statutory obligation on any moral considerations.” [8] The court also mentioned that in this case the father who was unable to maintain himself was entitled to maintenance from his son who was financially sound. “In Mahendra Kumar Gaikwad vs. Gulabhai [9] also, one of the arguments of the respondent son against the applicant mother was that the parents had not discharged their duties towards him properly and therefore they had forfeited their right to claim maintenance from him. The court, however, ordered him to pay maintenance” [10]

This decision by the court may lead to difference of opinion but as far as the concern to ensure well being of the aged parents is concerned, the court rightly gave its decision in favour of the father. The argument that shall be placed to back this decision is that if court had ruled against the father then many children who did not want to support their parents would have used similar grounds in order to escape from their responsibility.

CASE 2- The case analyzes whether according to section 125(1) can parents claim maintenance from daughter’s as well. Daughters in the process of escaping from their responsibilities towards their parents may argue that the section uses only word ‘he’ and not ‘he/she’. In the case M. Areefa beev [11] i vs. Dr. K.M. sahib the Kerala high court said that section 2(y) of CrPC says “ Words and expressions used herein and not defined but defined in the penal code have the meanings respectively assigned to them in that code” [12] .

“Section 8 of the IPC reads: the pronoun ‘he’ and its derivatives are used of any person, whether male or female. Therefore the expression ‘his father or mother’ occurring in section 125 of the Cr.P.C must be taken to have the meaning ‘her father and mother’.” [13] This case is essentially important as it clears the air about the absence mentioning of daughters in the section and they too are equally responsible to maintain their parents as sons are.

In the case, Dr. Vijaya Manohar Arbat Vs. Kashirao Rajaram Sawai the supreme court of India gave the decision that parents can claim maintenance from daughters, even married daughters who have the required means to support their parents are bound to provide maintenance to their parents. The court said “An application under section 125(1) (d) of Cr.P.C, 1973, by a father claiming maintenance from his married daughter is perfectly maintainable. The parents will be entitled to claim maintenance against their daughter provided, however, the other conditions mentioned in the section are fulfilled. Before ordering maintenance in favour of the parents against their married daughter, the court must be satisfied that the daughter has sufficient means of her own independently of the means or income of her husband, and the father or mother, as the case maybe, are unable to maintain himself or herself” [14] .

This decision has increased the security of parents who only have girl child and had no one to look after them. The decision also managed to safeguard the daughters’ interest by incorporating that she has to support only if she has sufficient means in order to do so. This decision also seeks to send a positive point i.e. the equality of the sexes. If girls are given equal rights it is just and logical that they should also have duties. It is a deep rooted notion or mentality of our society that son’s are the ones who will support their parents when they are old. If this duty is shared with the girls, then there might be a considerable reduction of the biasness towards them.

CASE 3- This case deals with the more complex issue of adoptive parents right to maintenance. In Baban vs. Parvatibai [15] the court had the opportunity to analyze this situation in detail. Parvatibai after her husband’s death adopted a child. She filed a claim for maintenance against her adopted son Baban, and the ground on which the case was mainly contested on was that was not his real mother and an adoptive one. His council argued that general clauses act defines father and son to include adoptive father and adoptive son where as this was not done in the case of the mother. The court did not buy this argument. “In the opinion of the court, upon adoption the son occupies the position of a natural born son in the family. Consequently, the adoptive father becomes his father and the adoptive mother becomes his mother for all purposes. It would be anomalous if only the adoptive father were to be given a right to maintenance and not the adoptive mother.” [16]

The decision holds high on equitable justice as the adoptive mother or father treats his/her adopted son as his/her real son providing him all the love, care and affection and so he/she should be entitled to hold the position as that of a real mother or father.

CASE 4- The issue related to this case is the right of step mother to claim maintenance. In Havaben vs. Razakhbai [17] the court in case where the sons natural mother is no more and has a step mother gives the status to that woman equivalent to that of a mother. According to justice D P. Desai “In interpreting the provisions of section 125 of the code, we must in first place, bear in mind that the main object of this provision was to prevent vagrancy. Secondly, the provision has a social purpose to fulfill irrespective of the personal law of the parties. Keeping these two considerations in mind, it is obvious that no interpretation should be adopted which will aim at defeating the main object of the legislation” [18] .

In Pitei bewa Vs. Laxmidhar jena [19] the court declared that nothing in the code conveys that the word ‘mother’ is to be used in a restrictive sense i.e. only natural mothers have right to maintenance. Allahabad high court in Ganga Sharan Varshney vs. Shakuntala devi [20] differed from the opinion where the court held that step mother has no right to maintenance. Only natural mother and adoptive mother can exercise the provision of maintenance.

Supreme court’s decision settled this dispute in the case Kirtikant D Vadodaria vs. State of Gujarat where court dealt with the issue that whether the expression ‘mother’ used in clause (d) of section 125(1) of the Code includes step mother also. In this case the father filed a claim of maintenance from his son from his first wife who was dead. The father was given a sum of Rs. 3500 as full and final settlement. Even then the father and his step mother filed for maintenance. The trial magistrate dismissed father’s claim in lieu of previous settlement but provided his step mother with Rs. 400. He then appealed. The court looked into the Shastric law were they found that meaning of mother didn’t included step mother. Then the court considered the wider issue i.e. can the step mother claim maintenance from her step son. The court said “the dominant purpose behind the benevolent provisions contained in section 125 is clearly that the wife, children and parents should not be left in a helpless state of distress, destitution or starvation. Consequently, to achieve this objective, in our opinion, childless step mother may claim maintenance from her step son provided she is a widow or her husband, if living, is also incapable of supporting and maintaining her.” [21]

In this case the decision went in favour of the son as she already had 5 sons and 3 of them were well to do. This decision in though in contrasts to my research question is righteous as it helps to avoid injustice on the part of the children who may be targeted wrongly by step mothers with malafide intentions. But this also raises the question that what if the real sons of the step mother are not well off to support her and her step son has sufficient means to support her? This question has not been dealt by the law makers but needs their attention.

CASE 5- If parents have more than one child who should they ask maintenance from. The answer to this is that parents can file the claim of maintenance from any of their children. In the case of Ahathinamilgai vs. Arumugham the court rejected the argument of the son which was that his siblings had equal responsibility to support their parents and it violated article 14 of the constitution.

In the case of Mahendra kumar gaikwad vs. gulabhai [22] , the mother filed the claim against against one son and the court held that it is upto the parents to claim maintenance from any of the sons. “Each case, however, will depend on its own facts and circumstances. The parents cannot by sheer whim and fancy leave a son who has sufficient means and proceed against another whose means are limited. It is also essential that the parent establishes that the other party has sufficient means and has neglected or refused to maintain him i.e. the parent who is unable to maintain himself.” [23]

III – Maintenance and welfare of Parents and Senior Citizens Act2007-

There were certain area’s which were not handled adequately either in section 125 of CrPC or Hindu adoption and maintenance act. Moreover this act tries to provide speedy and inexpensive justice which was not possible under the existing statutes.


“The maintenance and welfare of parents and senior citizens bill, 2007, will be enforced by the state govt. concerned and also the date on which the act will come into force will be notified in the official gazette by the state govt. concerned.” [24]

The clause 5 ( 1) of the bill says that a senior citizen or even a parent may apply for maintenance  under clause 4 of the bill. The term senior citizen refers to an Indian citizen who is at least 60 yrs of age and ” parent ” can be  a father or mother , whether biological , adoptive or step father or step mother, it is not necessary that the father or mother should me a senior citizen. If due to certain unforeseen circumstances the senior citizen or parent is incapable to apply for their maintenance, so in that case any other person or any voluntary organization authorized by the senior citizen or parent can apply for maintenance on their behalf. Here the tribunal has the power to take cognizance suo moto i.e. it can act on its own cognizance. The above mentioned two provisions provides great relief to the senior citizens  or parents as the case may be , because generally it is seen that they do not possess enough energy as well as money  to apply for the maintenance.

During the pendency of the suit, regarding monthly allowance for the maintenance, the tribunal has the power to order such children or relative to pay a monthly allowance for the interim maintenance of the senior citizen including the parent. The state govt. is supposed to constitute tribunals within a period of 6 months from the date of commencement of the law (act) for adjudicating and deciding upon the order for maintenance under clause 5.

According to clause 4(1), the senior citizen including the parent is entitled to apply for the maintenance under clause 5, if he is unable to maintain himself from his own earnings or out of the property owned by him. Under this bill a parent or a grandparent are empowered to file an application of maintenance against one or more of his children who are majors , the term “children”  includes son ,daughter , granddaughter  and grandson. Here it is the responsibility of the children to make sure that his or her parent, either father or mother or both as the case may be , should  lead a normal life . In case of a childless senior citizen, he/ she can make an application against his relative . here ” relative ”  means any  legal heir of the childless  senior citizen  who is a major and is in possession of or would inherit  the property after the childless senior citizen’s death ; property  means property of any kind whether movable or immovable , ancestral or self acquired, tangible or intangible and includes rights or interests in such property.

Hence we see that clause 4 makes a reference  to grandparents while clause 5 is silent as to how  an application  should  be made for maintenance by a grandparent ( who is not yet 60 )  thus the able law makers should take notice of this discrepancy so as to avoid the exploitation of this well intended provisions.

The clause 23 ( 1) of the bill says that if a senior citizen has transferred by way of a gift  or otherwise, his property ;  condition being that , that relative shall provide such amenities and physical needs and if the relative refuses or fails to provide such  comforts as mentioned and the senior citizen is incapable of leading a normal healthy life , in such a case the tribunal has been empowered to declare the transfer of property null and void this can only happen with the consent of the senior citizen in the question . Thus this provision of the bill protects the senior citizen from the exploitation by relatives. But it limits the monthly allowance to Rs. 10000. This clause though being for senior citizens is valid to the research paper as we do observe in our society that when the children of relatives are alone after their death due untimely demise or any other reason, relatives keep the children with them without adopting them. They take care of them as their own child and sometimes they also transfer their property to them. Now if these people claim maintenance form their heirs they are entitled to it under the bill.

According to clause 24 of the bill ” whoever having the care or protection of senior citizen leaves ,such senior citizen in any place with the intention of wholly abandoning such senior citizen , shall be punishable with imprisonment of either description for a term which may extent to 3 months  of fine which may extend to Rs 5000 or with both ” [25] .

It has been seen that that the bill in its present form would do good only to the parents and senior citizens of educated families , and those who have huge property in their name or are living in the urban areas. It is of no use to the parents or senior citizens living in villages. Thus in rural area where people are very poor,  the son of the family , if he is unable to maintain his parents and grandparents he would consider being in jail for not fulfilling his due obligation where he can atleast have food for survival.

The bill has no provision of old age pension because state governments are implementing the old age pension scheme. But unfortunately there is no uniformity in the amount of pension and eligibility criteria across the state, under the said scheme.

The lack of conviction on the part of govt. or we can also call it ignorance on the part of govt. because while drafting bills , they have used the word “may ” instead of the word ”  shall”   even where the provisions are mandatory in nature.

The maintenance and welfare of parents and senior citizens bill 2007 was introduced in Lok Sabha in march and on 8th may ,2007 , the Indian express carried on a critique on it ” the maintenance and welfare of parents  and senior citizen bill , 2007, which was introduced  in Lok Sabha in march , aims to provide for more effective  provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognized under the constitution and for matters connected herewith or incidental thereto.” [26]

The act ignores the directive of the article 41 of the constitution which directs the state to provide public assistance in cases of old age. The bill does state that “the state government may establish and maintain such number of old age homes at accessible place, as it may deem necessary, in a phased manner, beginning with at least one in each district to accommodate in such homes a minimum of one hundred and fifty senior citizens who are indigent.” [27]  Hence we can say that by using the word “may ”  in place of “shall ”  there is no compulsion of the state govt. to establish these.

But the bill places the obligation of maintaining a senior citizen by his or her, grand children or any legal heir .The procedure completely differs from the provisions of CrPC , sec 125. This provision has to be commended by the law makers for they were able to look the matter of such importance with greater insights. There are many families in India in which children are being brought up by grandparents. So as a result they act in place of parents so the law has looked into the fact that these people should be included for claim of maintenance as they too require support from the their families and also in some cases there maybe only grandchildren due to death of the son. For them it is very helpful.

Certain definitions in the bill are ambiguous. Senior citizens are defined as “any person being citizen of India, who has attained the age of sixty and includes parent whether or not a senior citizen .”Relative” means any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death.” [28]

Thus to conclude we can safely say that there is no clear cut usage of definitions, which indirectly results in ambiguity and confusion to the law makers.

A major flaw in this act which should have had been addressed but unfortunately did not is that it does not mention the responsibility of son/ daughter in law to maintain their parents in law. As we know that son/ daughter have equal share in property and if they will inherit the property it is but obvious that there better half will do the same. Now the question that arises is if they enjoy the benefits, shouldn’t they be held responsible for their duties as well? They utilize the benefits of the property as the legal heirs do ( in normal circumstances) and are left unperturbed when the issue of maintenance arises is quite a matter of concern which I think was overlooked by at makers but should have found a place in the act due to its very premise.

The basic difference between Crpc and this act in the context of parents are as follows:-

Under CrPC only the party aggrieved can file the case under section 125 of CrPC for maintenance where as in the Maintenance Act 2007 the application can be filed by the parent or an authority to which he has authorized to act on his behalf or the tribunal can file the case on its own.

Under CrPC the parents can file the application only where the child lives. Maintenance act 2007 has provided flexibility in this area by incorporating that the parents can file the case where they live or where the child lives at their discretion.

Under CrPC only first class magistrates can give the order for maintenance but as pr this act a separate maintenance tribunal is to be establish which is headed by sub- divisional magistrate.

Under Crpc the there is no time boundation and the proceedings can take years whereas according to this act the tribunal has to dispose the matter within 90 days of filling of the case.

Under CrPC if appeal has to be if not satisfied with the order of maintenance, the procedure mentiond in the crpc has to be followed but a separate appellate tribunal has been established under this act.

Crpc does not provide any scope for conciliation where as section 6(6) makes an option for the tribunal to refer the case to conciliation officer.

Analysis of the research question-

As we can see at present there are 3 statutes for the parents under Hindu law if they want to seek maintenance. And these statutes have more or less covered most of the complex and important areas in relation to maintenance of parents except one major part which is sadly not covered in either of the three statutes i.e. the parents right to live in the house of his son. We can observe that in our society that people who are of middle class or lower middle class work their best to provide every basic requirement of their children and in that process they sometimes forgo to buy a house for themselves with the content that when are child will grow up to be a successful person we will live in his house but after becoming a successful person sometimes the child does not want to keep his parents with him. The law does provide for maintenance but nothing with regard to housing of the par

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