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.
There is a third route that is easy to miss. Section 20 of the Hindu Adoptions and Maintenance Act, 1956 provides that a Hindu is bound during his or her lifetime to maintain his or her aged or infirm parents, and that the obligation extends so far as the parent is unable to maintain himself or herself out of his or her own earnings or property. The Explanation adds that "parent" includes a childless step-mother. That claim is a civil suit, which is slower and costlier than either of the routes below, but it is not subject to the statutory ceiling that applies to a Tribunal and it can be the right answer where a substantial sum is genuinely needed.
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. Section 7 requires a Tribunal for each sub-division, presided over by an officer not below the rank of Sub-Divisional Officer of the state, which in Karnataka is the Assistant Commissioner; the Appellate Tribunal at district level is presided over by the Deputy Commissioner.
- The application may be made by the senior citizen or parent, by any person or registered organisation authorised by them if they are incapable, and Section 5 allows the Tribunal to take cognizance of its own motion. Interim maintenance can be ordered while the application is pending.
- 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.
- An order of the Tribunal has, under Section 11, the same force and effect as a maintenance order under the old Chapter IX of the Criminal Procedure Code, and is executed in the same manner, so it is not a recommendation.
- An appeal lies to the Appellate Tribunal under Section 16 within sixty days of the order, extendable for sufficient cause, and, importantly for the parent, the child ordered to pay must continue paying while the appeal is heard.
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. The section says the transfer is then deemed to have been made by fraud, coercion or undue influence, and shall at the option of the transferor be declared void by the Tribunal. 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 144 BNSS | Senior Citizens Act, 2007 | |
|---|---|---|
| Forum | Magistrate | Maintenance Tribunal, headed by a revenue officer |
| Who may claim | Father or mother unable to maintain themselves | Senior citizen or parent, including from grandchildren |
| Advocate | Usual | Representation by an advocate is restricted by design |
| Speed | Ordinary criminal timetable | Summary, with a statutory disposal period |
| Additional power | None | Can void a transfer of property made on a condition of care that is then not provided |
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. Section 9(2) provides that the maximum shall be as prescribed by the State Government and shall not exceed ten thousand rupees a month, so where a substantial amount is genuinely needed the BNSS route or a civil claim under the Hindu Adoptions and Maintenance Act may be the better one. The tribunal process, the documents to file and how the two routes interact are set out in the guide on maintenance for parents and senior citizens.
- 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.
- The stronger course, before any of this arises, is not to transfer at all. A parent who wants a child to have the property after them can achieve that by a will rather than a gift, keeping ownership and the power to revoke during their lifetime. A will under the Indian Succession Act, 1925 needs only the testator's signature and two attesting witnesses, and it can be changed as often as circumstances change; the requirements, the registration question and what probate involves are set out in the guide on how to make a will in India.
What to bring, and what it costs
For the Tribunal, bring proof of age and identity, the relationship (birth or ration records, school records, an affidavit where nothing else exists), whatever shows the child's means (salary slips, income tax returns, property records, vehicle registration, a company search), a statement of your own income and expenses including medical costs with prescriptions and bills, and, where property was transferred, the registered deed with the clause about care. The proceeding is designed to be conducted without a lawyer, so the direct cost is close to nothing beyond documentation and travel. Free legal aid and advice are in any event available through the Karnataka State Legal Services Authority, and it is worth asking there first.