Uni Lex Lawyers & Consultants. INDIA - UAE

05/06/2019

06/05/2019

Maintenance and Welfare of Parents and Senior Citizens Act, 2007

Why this Act?
Getting old has become a major social challenge due to waning of the joint family system. A large number of elderly persons, especially widowed women are not being looked after by their families. They are forced to spend their twilight years all alone and are exposed to emotional neglect and are not being provided financial support. To combat this social challenge there is a need to give more attention to the care and protection for the older persons. Though there is a provision in the Code of Criminal Procedure, 1973 under which parents can claim maintenance from their children but the procedure is time consuming and expensive. It is desired that simple, inexpensive and speedy provisions may be made to claim maintenance by the suffering parents. To cast an obligation on the persons who inherit the property of their aged relatives to maintain them and to make provisions for setting up oldage homes for providing maintenance to the indigent older persons and to provide better medical facilities to the senior citizens and to make provisions for protection of their life and property the Maintenance and Welfare of Parents and Senior Citizens Bill was introduced in the Parliament.
1. Who are covered or who can take benefit of the Act?
(1) Parents and (2) Senior Citizens can approach the tribunal for the relief provided under the Act. If such parent or the senior citizen is unable to maintain himself from his own earning or out of the property owned by him, shall be entitled to make an application for the relief.
2. Who is parent under the Act?
“parent” means father or mother whether biological, adoptive or step father or step-mother, as the case may be, whether or not the father or the mother is a senior citizen.
3. Who is “senior citizen” under the Act?
“Senior Citizen” means any person being a citizen of India, who has attained the age of sixty years or above.
4. Who are liable to maintain parent and senior citizen?
Children and relative are liable to maintain the parent and the senior citizen as the case may be.
5. Who are children under the Act?
Children includes son, daughter, grandson and grand daughter but does not include a minor.
6. Who is relative?
“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.
7. What would be the relief that can be claimed by the parents or the senior citizen from their children or the relative as the case may be?
The parent and senior citizen can claim monthly maintenance from their children or the relative, as the case may be, for an amount which is maximum of Rs. 10,000/-.
8. Whether in all cases the tribunal pass an order for maximum maintenance amount, i.e. Rs. 10,000/-per month?
No, the tribunal may pass an order for maintenance it deem fit that the children or the relative, as the case may be, neglect and refuse to maintain the parent or the senior citizen and the maintenance amount will be depended by the facts and circumstances of each case. While passing the order the tribunal shall consider the economic capacity of the children and the relative, as the case may be.
9. Whether the tribunal have power to order the interim maintenance?
Yes, the tribunal have power to order interim maintenance during the pendency of the proceeding monthly maintenance.
10. What is the time frame prescribed to complete the proceedings for monthly maintenance?
90 days from the date of service of notice.
11. How do compel errant children or relative, as the case may be, to pay maintenance as ordered by the tribunal?
If, the children or relative so ordered fail, without sufficient cause to pay the maintenance, any such tribunal constituted under the Act, may issue a warrant for levying the amount due and sentence such person for the whole, or any part of each month’s allowance for the maintenance remaining unpaid after ex*****on of warrant, to imprisonment for a term which extend to one month or until payment if sooner made whichever is earlier. However, no warrant shall be issued unless an application be made to the tribunal to levy such amount within a period of three months from the date on which it became due.
12. Where do file the application?
a). where the complainant (parent or senior citizen) resides or last resided
b). where children or relative resides
13. Where the tribunal is constituted?
For each Sub - Division one tribunal is constituted presided by an officer not below the rank of Sub-Divisional Officer of the State.
14. Whether the order passed under this Act is appealable?
Yes, the aggrieved parent or senior citizen, as the case may be, have right to file an appeal before the Appellate Tribunal constituted and presided by an officer not below the rank of the District Magistrate within 60 days from the date of the order. The appeal can be filed even after 60 days from the date of the order, if the aggrieved parent or the senior citizen prove that there was sufficient reason that prevented him to file the Appeal within time.
15. Whether an aggrieved parent or senior citizen can approach the tribunal constituted under the Act and the Magistrate of the First Class simultaneously for the maintenance?
No, the aggrieved parent or senior citizen who is entitled to apply for maintenance under this Act and chapter 9 of the Code of Criminal procedure can claim the maintenance either this Act or the Code of Criminal Procedure but not under both.
16. Whether any party in the proceedings under this Act have right for legal representation by an Advocate?
No, Section 17 of the Act bars legal representation by a lawyer. However, if the parent or senior citizen desire, the Maintenance Officer, who is not below the rank of District Social Welfare Officer, appointed under the Act shall represent him before the tribunal or before the Appellate Tribunal.

17. Whether the tribunal have power to do alteration of monthly maintenance awarded?
Yes, the tribunal have power to alter the monthly maintenance, if it is proved that the order of maintenance was passed due to misrepresentation or mistake of facts. And the tribunal can alter the monthly maintenance upon change of circumstance also.
18. How do the tribunal enforce the order for monthly maintenance?
The order for maintenance can be enforced by tribunal constituted under the Act in any place where the person against whom it is made. The maintenance order under this act shall have the same force and effect as an order passed under chapter 9 of Code of Criminal Procedure, 1973 and shall be executed in the manner prescribed for ex*****on of the order made under that Code. If children or relative, as the case may be, neglect or refuses to pay the monthly maintenance ordered by the tribunal, the aggrieved parent or the senior citizen can approach any Magistrate of First Class, the place where the errant children or the relative, as the case may be, be found.
19. What are the other powers the tribunal having rather than passing an order and alter the order for monthly maintenance?
i). Section 23 of the Act provides a power to the Tribunal that a property transferred by a senior citizen after the commencement of the Act by way of gift or otherwise with the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and subsequently if the transferee refuses or fails to provide the said promises, the transfer of the said property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void.
ii). Section 24 of the Act. - whoever having the care or protection of senior citizen, leaves such senior citizen in any place with an intention to abandon him shall be punishable with imprisonment of either description for a term which may extend to three months or fine which may extent to Rs. 5000/- or with both.
20. What are the other benefits provided to the senior citizen by the Act?
i). Establishment of old age homes. – Section 19 of the Act. – there is provision in the Act to establish and maintain old age homes at accessible places with at least one in each district to accommodate minimum of 150 indigent senior citizens.
ii). Provision for medical Care of senior citizen. –
Medical support for senior citizens. – The State Government shall ensure that, -
i. the Government hospitals or hospitals funded fully or partially by the Government shall provide beds for all senior citizens as far as possible;
ii. separate queues be arranged for senior citizens;
iii. facility for treatment of chronic, terminal and degenerative diseases is expanded for senior citizens;
iv. research activities for chronic elderly diseases and ageing is expanded;
v. there are earmarked facilities for geriatric patients in every district hospital duly headed by a medical officer with experience in geriatric care.

Thank you.

23/08/2018

DISASTER MANAGEMENT PLAN 2016 Permits foreign assistance to manage disaster. Excerpts from Disaster Management Plan 2016 NDMA, Goverment of India "9

05/08/2017

Corpus delicti (Latin: "body of the crime"; plural: corpora delicti): A crime must be proved to have occurred before a person can be convicted of committing that crime.

29/07/2017

"
'Actus Dei nemini facit injuriam'.

The act of God does no injury; that is, no one is responsible for inevitable accidents

29/07/2017

"Actio poenalis in haeredem non datur nisi forte ex damno locupietior haeres factussit"

A penal action is not given against an heir unless, indeed, such heir is benefited by the wrong.

19/07/2016

Dubai Traffic Court Orders Two Drivers to Pay Blood Money to Parents of Fetus

Judicial News 01/Jun/2016
[Advisor/ Salah Bu Farousha Al Falasi, Advocate General, Head of Dubai Traffic Prosecution]

Advisor/ Salah Bu Farousha Al Falasi, advocate general, head of Dubai Traffic Prosecution, has revealed that Dubai Traffic Court composed of judge/ Omar Abdulaziz Karmastji and Prosecutor/ Ammar Aldhanhani, has issued its decision against two drivers. The first accused is a female GCC national (37 y) and the second of Asian nationality (34 y), the decision read as follows:

First: Order against the first accused to pay ten thousand dirham while holding her driving license for 3 months plus payment of blood money AED 252 thousand to the heirs of the deceased persons (Second accused’s Wife، daughter and a fetus in the fifth month).
Second: Order against the Second accused to pay six thousand dirham while holding his driving license for 3 months plus payment of blood money AED 168 thousand to the heirs of the deceased persons (Second accused’s wife، daughter and a fetus in the fifth month).

Advisor/ Al Falasi has mentioned that the accident occurred during December last year on Emirates Road as two cars clashed. The accident led to the death of the second accused’s wife (27 y) and her two years baby in addition to a five months Fetus. The accident happened while they have accompanied the second accused. The accident also affected two babies with minor injuries as they accompany the first accused.

Advisor/ Al Falasi also asserted that Public Prosecution instigated investigation into the accident immediately after it occurred and upon direct instructions from his HE advisor/ Essam Issa Al Humaidan, Dubai attorney general suspects were interrogated by Rashid Al Ghumlasi chief prosecutor and under supervision from advisor/ Al Falasi The suspects told their stories and investigations were performed. In addition, witnesses were questioned in addition to receiving technical reports from private hospital, report of Forensic Medicine Department at Dubai Police, and medical reports from Rashid Hospital under Dubai Health Authority.

The investigations had concluded that first accused was driving in negligence and without attention and without leaving sufficient safety distance between vehicles. She was also driving faster than the speed limit on the road that is 120 km/h. It is also proved that second accused was driving with speed less than the minimum legal speed limit on the road at the time of the accident, which is 60 km/h.

Therefore, Public Prosecution decided to refer the accused persons to Traffic Court to issue an order in accordance with the provisions of Islamic law, traffic laws, and federal blood money laws. The accused persons have mistakenly caused the death of others and have caused bodily harm and material damages. Grounds of judgments were that there was indictment of the accused persons through prosecution investigations and reports/plans of the accident made by Rashidiya Police Station. Fault rate was 60% on the first accused and 40% on the second accused.

In the same context, advisor/ Al Falasi has asserted that this decision is the second of its kind in Dubai that indict who cause the death of a fetus. In 2009, a similar decision was issued against a driver to pay blood money to the parents of a fetus. The percentage of blood money is equivalent to 20% to be paid to the parents and estimated as two hundred thousand dirhams.

Advisor/ Al Falasi appealed all drivers to take maximum caution while driving on roads and requested to adhere to all legal requirements and safe driving rules in order to maintain the safety of all road users, public and private property.

18/07/2016

DPP challenge an Appellate Ruling and asks for punishment of accused person for charge of online Slander

Judicial News 07/Dec/2015
[Mr. / Nabil Khadim - Chief Prosecutor of Appeal]

Dubai Public Prosecution has overturned an Appellate Ruling upon a challenge by DPP in the ruling issued by the Appeal Court of accused person’s innocence from all accusations of slandering the Victim through Internet using information technology by commenting on social media website (Facebook) with abusive and offensive phrases. DPP demanded punishment of accused person as per article 1 and 1/20 of the Federal Law No. 5 of 2012 on Combating Cybercrimes. Thereafter, Cassation court ordered to revoke the contested judgment and refer the case to the Appeal Court to be re-judged again by new judges.

The DPP Cassation petition included that the contested judgment has deficiencies in causation, corruption in reasoning, and it was wrongly applied. As the court have issued its judgment of Respondent’s innocence as there is not publicity in committing the crime as page is private and has limited access by a number of people and no one is authorized to enter except the said small group, so there is no publicity in this crime.In details, Adviser/ Nabil Ahmed Rashid Khadem, head of Appeal Prosecution in a statement pointed out the reasons for DPP appeal.

The UAE legislators in Article 20 of the Federal Law No. 5 of 2012 stressed that defamation using Internet or information technology devices is considered as a crime, as slander and defamation spread fast through those means. So the UAE legislatures did not restrict slander to any restrictions or requirements as it did with the Federal Criminal Code instead it mentioned that defamation and slander crime is committed immediately after posting those words on the Internet even though it was not published or made public. Article 20 of the above-mentioned law stipulates (Without prejudice to the crime of slander determined by the Islamic Sharia, shall be punished by imprisonment and a fine not less than two hundred fifty thousand dirhams and not in excess of five hundred thousand dirhams or either of these two penalties whoever insults or accuses another person of a matter of which he shall be subject to punishment or being held in contempt by others, by using a computer network or an information technology means. Etc.).

Therefore, the crime of defamation by means of information technology does not require a specific criminal intent but only general criminal intent, which exists if comment words contempt the individual, or make him punishable. The Slanderer cannot argue in good faith, and crime of slander via information technology or publication is committed upon posting those abusive terms on any Website as provided in the above article. Therefore, the Dubai Court of Cassation has revoked the contested ruling as follows: (the offence of slander is committed simply upon putting words of slander on the Internet (Facebook) even though it was not published and made public).

Court ruling was in line with the vision of the UAE legislatures in this regard in preserving individuals’ rights and to serve as a deterrent to all who tamper with the reputation of others.

Further Cassation Prosecution in Dubai public prosecution has declared that it has contested more than twelve Cases at the Court of Cassation on information technology crimes to 2015; in which the charge of acquisition of others’ money through information technology was four cases.

24/07/2015

Hashemi had been sentenced to death after being found guilty of stabbing to death Ibolya Ryan, 47, a mother of three, in a toilet of the shopping comple...

19/03/2014

Media professionals, lawmakers and legal experts on Sunday proposed the creation of a council to settle disputes between media outlets and any individuals or groups.

19/03/2014

Proposal will be presented to cabinet by the end of the year: Marwan Al Sawaleh, Under Secretary, Ministry of Education.