There are two routes, and the second is much faster and much less known.
Route 1: Section 144 BNSS
The provision that replaced Section 125 CrPC covers a father or mother unable to maintain themselves. The application goes to the Magistrate, interim maintenance can be ordered, and enforcement is by warrant and, for wilful default, imprisonment.
Route 2: the Senior Citizens Act, 2007
The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is the more powerful remedy and is deliberately designed to be used without a lawyer.
- Application to a Maintenance Tribunal constituted by the state, presided over by a revenue or executive officer.
- Parents and grandparents, including senior citizens aged 60 and above, may apply against children and, in the case of a childless senior citizen, against certain relatives who would inherit.
- The Act contemplates summary and time-bound disposal, generally within 90 days.
- Appearance by a legal practitioner is barred, which keeps it cheap and quick.
The provision that surprises everyone
Section 23 allows a transfer of property to be declared void where a senior citizen gifted or transferred it subject to the condition that the transferee would provide basic amenities and physical needs, and the transferee then fails to do so. Tribunals have used this to set aside gift deeds and, in appropriate cases, to order eviction of children from the parent's property. It is the strongest single tool the Act contains.
Section 23 allows a transfer of property to be declared void where a senior citizen gifted or transferred it subject to the condition that the transferee would provide basic amenities and physical needs, and the transferee then fails to do so. Tribunals have used this to set aside gift deeds and, in appropriate cases, to order eviction of children from the parent's property. It is the strongest single tool the Act contains.
Practical points
- The obligation is on children with sufficient means, and it can be apportioned among several children.
- The maximum monthly maintenance a Tribunal may order is capped by the Act and state rules, so where a substantial amount is needed, the BNSS route or a civil claim may be better.
- Both routes can be pursued in appropriate cases, but courts will adjust so the same sum is not recovered twice.
- Parents who have transferred property to a child should keep the condition of care recorded in the deed itself. Section 23 is far easier to invoke when the condition is on paper.