Can A Parent Sue His Son For Maintenance?

A dignified life means having resources to procure basic amenities. These amenities include, but are not limited to, food, shelter, clothing and other requirements. In Common Law, providing these to one’s children, wife and parents are considered a moral duty. Section 125 of the Criminal Procedure Code[1] and, Maintenance and Welfare of Parents and Senior Citizens Act, 2007[2]vests this moral duty on the citizens of India. Development takes place every time and then in these legislations. At this juncture, can we say that all common law countries formulate legislation to codify Right to Maintenance? This article deals with a similar aspect in South Africa.

Also Read – Can Parents Claim Maintenance From Married Daughter?

The Parliament of South Africa legislated Maintenance Act in 1989 (the Act) to establish equitable, just and fair maintenance system.[3] It establishes maintenance courts and lays laws defining maintenance enquiries, order, execution, offences and penalties. Although, this law majorly focusses on the Rights of Children but as per Section 2, which reads,

“The provisions of this Act shall apply in respect of the legal duty of any person to maintain any other person, irrespective of the nature of the relationship between those persons giving rise to that duty”,[4]

People sharing a legal duty to maintain can also take discourse under this Act.[5] Here, it is necessary to divulge into a discussion about maintenance rights of a parent. A childcan sue his/ herparent for maintenance is clear, but can a parent sue his son for the same? The answer is in affirmative.

Section 2 of the Act talks about any person having a legal duty to maintain. In the relationship between parent and the son both reciprocate a legal and moral duty to support each other. This duty comes out of affection in blood relations and due to the reason of reverence.

A judgement in South African case, Oosthuizen v Stanley,[6] further clarified that children owe a duty to support and maintain their parents although this does not mean that the duty will arise automatically. The parent claiming the support needs to prove his/ her indignance due to which unable to maintain himself.[7] He/ She also has to prove that his child is in a position to maintain and support for basic needs.[8] The judges in this case also concluded that it is not enough only to take care of a parent’s need, the person owning such duty also needs to take care of the person dependant on that parent.[9]

Once establishing the duty to maintain, what are the standards to consider a parent indignant? The courts in South Africa answered to it through case laws. One such case is Smith v Mutual Federal Insurance co ltd.[10] In this case, the judges held that “to be indignant means to be in extreme need or wants whereas to be poor means having few things or nothing.”[11] Therefore, a parent has to prove something more than just having little or nothing to be considered as indignant. He has to show that there exists an extreme need and want for necessities of life.

However, what all things do we consider necessities of life? The judges in the case, Van Vuuren v Sam Rabie[12] considered food, clothing, medicine, shelter and health care to be necessities of life. The judges stressed that in the cases of the parent claiming maintenance from his child, Smith case’s definition of indignance is preferred with necessities as defined above.

Nevertheless, is it justified to look into the past possession of the parent in such cases? The answer is negative. The judges in Van Vuuren’s case said to assess the “quality and conditions of a person’s life” it should be parent’s present life and not past.[13] Also, the discretion in assessing these conditions is with the judge. Further, a parent will not be indignant if one is capable enough to maintain oneself if one works.[14]

Hence, a parent can claim maintenance from his child under section 2 of Maintenance Act 99 of 1989, if he is capable of proving that,

One is related to one’s child, and they both share a reciprocal legal duty to maintain and support.
One is indignant in his present life.
One is indignant and not capable of working and supporting oneself.
The child is capable of supporting the parent claiming maintenance.

In a nutshell, the judges have to have case-based analysis to grant a maintenance order for the parent in South Africa. Further, the position of a parent claiming maintenance from an extra-marital child is still a grey areaalthough the mothercan claim it the law is unclear on father’s right on it.

[1]Code of Criminal Procedure, 1973, §125.

[2]Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

[3]South Africa’s Maintenance Act, 1989, Preamble.

[4]Id, §2(1).

[5]Id.

[6]Oosthuizen v Stanley, 1938 AD 322.

[7]Id.

[8]Id.

[9]Id.

[10]Smith v Mutual Federal Insurance co ltd, 1998 (4) SA 626 C at 632 D-E.

[11]Id.

[12]Van Vuuren v Sam, 1972(2) SA 633 AD at 642F.