Published Date : 08 June 2019 | Tanmay Arora
In India, the traditional norms and values of a person are laid utmost stress upon; providing care for the elderly being one of them. However, with the constant decline in the number of joint families, the same tends to pose a social challenge to the public at large.
The growing atrocities against the elderly and raised concern over their plight led the government to formulate and implement laws that protect and provide for maintenance to the elderly.
Senior citizens are often neglected, abused and abandoned and face various forms of harassment by their sons, daughters, grandsons, granddaughters and other legal heirs. The reason for these atrocities are majorly economic and emotional dependency, which as a custom has been a notion of implied responsibility on the children to maintain and provide for stability towards their parents and elderly, but now seems to be constantly decreasing. Furthermore, there were instances of unnecessary delay in justice.
It is this alarming situation that incentivized the Government to enact The Maintenance and Welfare of Parents and Senior Citizens Act, 2007. What was once a pious obligation is now a legal obligation. A parent under the ambit of Section 125 CrPC was entitled to maintenance, however, the said section has been silent on the issue of maintenance of Senior Citizens. Furthermore, the MWPSC Act stipulates the constitution of a maintenance tribunal wherein an order is pronounced by a Sub-Divisional Magistrate and the legal practitioners are barred from representing the parties (Section 17). Furthermore, the actions and proceedings under the tribunal are time bound and the matter must be disposed of within 90 days from the date of service of notice of the application and 30 days in case of an appeal, which is absent under Section 125 of the CrPC. Also, Section 125 of the CrPC restricts itself to only maintenance and is silent on the welfare of the parents, however, the MWPSC Act prescribes for not only the maintenance but also the welfare.
the MWPSC Act vests the duty to maintain the Parents and Senior Citizens on children, which includes the son, daughter, grandson and granddaughter. Maintenance, defined in section 2(b) of the act, reads that maintenance includes provisions for food, clothing, residence, and medical attendance and treatment. However, the term ‘children’, as defined in the act, does not include minors. Furthermore, in case the Senior Citizen does not have children or grandchildren the responsibility to maintain rests with anyone who possesses or who is likely to possess the property of the elderly. Failure to do so may invite a penalty the MWPSC Act aims to provide maintenance to anyone who cannot economically maintain himself/herself, including parents (biological, adoptive and step-parent), grandparent (Maternal or Paternal) and Senior Citizen (above the age of 60 years).
On the contrary, the MWPSC Act also prescribes for maintenance of childless Senior Citizen(s), in which case it is the relatives who are to maintain the senior citizen(s). the MWPSC Act defines “relatives” as any legal guardian who possesses or will possess the property of the Senior Citizen after their death given that the relative is not a minor under section 2(g).
the MWPSC Act provides not only for the maintenance of the elderly but also recognizes the importance of providing better medical facilities and care(Section 20), creating a safe environment for both, the senior citizen and his property(Section 21-23) and also the establishment of old age homes (Section 19).
Medical Facilities and Care for Senior Citizen(s)
Under the ambit of the act, every senior citizen is entitled to beds in either the Government hospitals or the hospitals funded fully or partially by the government. The treatment and research and facilities required for treatment of both chronic or severe diseases as well as research on aging has been expanded under this act. Furthermore, the concept of separate lines for senior citizen(s) has been enunciated under this act which has successfully been applied in multiple situations and places. In fact, the provision applies in many government offices including but not limited to driving license, passport offices, etc.
Safe Environment for Senior Citizen and Their Property
In this regard, the MWPSC Act seeks redressal by making people aware of the plight of the elderly and the need for proper care, respect, and protection that is required by them. To achieve the same, the MWPSC Act sought help from public media(television, radio, print, etc.). Also, the officers under the jurisdiction and command of the Central and State Government, for example, the police officers and members of judicial services, are trained and educated to act in particular ways with regards to the case pertaining to the Senior Citizen. Furthermore, a certain sensitization is expected from the ministries and departments dealing with law, home affairs, health and welfare and the same is reviewed, periodically.
The protection of property here is also linked to serve the ultimate purpose of protection of senior citizen, which can be accounted for through the MWPSC Act as it reads that if in case a senior citizen has transferred his/her property post the commencement of the act, the person to whom the property has been transferred is vested with the duty to provide for basic necessities to the transferor and in case of failure the transfer of property can be revoked.
Establishment of Old Age Homes
The State Government is vested with the duty to establish at least one old age home in each district with a capacity of minimum 150 citizens and to establish more accessible areas if it deems necessary. The quality and standards of these old age home lie in the domain of the State Government itself who, if required, can take up necessary steps to uplift and reform the same.
Shortcomings of the MWPSC Act
Despite the eye-catching provisions that the MWPSC Act has to offer, keeping in mind the plight of the senior citizens, the MWPSC Act majorly fails to yield the desired results.
Firstly, section 16 of “The Act” provides for the right of appeal vested with the aggrieved. However, the section gives an impression that only parents and senior citizens under the ambit of the MWPSC Act could prefer this appeal, thereby leaving no scope for appeal for aggrieved children or relatives. 1
Under section 7(2) of the act, the tribunal is to be presided by an officer, who should not be below the rank of Sub-Divisional Officer of a state, however, in most cases, these appointed officers are not trained legally but merely in administration. Hence, it is reasonable to apprehend that these appointed officers may fail to perform effectively, the functions and objectives of the act.
The ambiguity of the MWPSC Act is another reason for its criticism. Firstly, Section 17 of the MWPSC Act bars the appearance of Advocates before the Tribunal. However, under subsequent sections of the act, most notably the Section 23, Tribunal, on certain contingencies, is justified to declare a transaction as void. However, under the Advocates Act, the advocates can appear before the Tribunals too, which is in contravention to the said act and hence leaves the provision in ambiguity.
Another instance of ambiguity can be observed from the very objective of the MWPSC Act itself. the MWPSC Act aims to provide maintenance and welfare to either a senior citizen, who is anyone above the age of sixty years (or more) and also parents, irrespective of them being a senior citizen or not. the MWPSC Act under section 2(g) does define “relative” as a legal heir to a childless senior citizen, however, it cannot be conclusively determined and neither does the MWPSC Act defines as to who would eventually inherit the property of the senior citizen and/or is responsible to maintain the same.
Furthermore, a senior citizen can either move an application for maintenance themselves or through any “voluntary organization registered under Societies Registration Act, 1890”, however, neither the “The Act” nor Societies Registration Act of 1890 anywhere defines “Voluntary Organisations”.
The act, all in all, does provide for a constructive solution to resolve the problem of elderly abuse and also provides for a safer and secure future. In order to ensure strict enforcement of the laws, the MWPSC Act imposes stringent punishment to the offender(s) with imprisonment for three months and/or fine up to five thousand rupees. the MWPSC Act also vests the power to supervise and give directions directly with the Central Government(Section 31), while the State Government is vested with the power to make rules relating to the manner of holding inquiries, deciding maximum maintenance, managing old-age homes, etc (Section 32).
Even though for parents the option to claim maintenance is available under both, Section 125 of CrPC as well as under the MWPSC Act, however, there exists a clear prohibition not to claim maintenance under both of the aforesaid provisions.2
Hence to sum it up, the procedure to avail maintenance under the MWPSC Act is as follows:
An application for maintenance can be moved under Section 5 either by the Senior Citizen or Parent, by any other person authorized by the Senior Citizen or a suo moto cognizance can be undertaken by the tribunal itself.
The tribunal after issuing a notice of the application to the children or relatives of the aggrieved and thereby hearing both the sides shall hold an inquiry to decide the necessary maintenance to be awarded.
All evidences that are recorded during the pendency of the proceedings shall be done in the presence of both the parties and are to be recorded like in summon cases. However, if the tribunal feels that the children or relative are willfully neglecting the proceedings and are thereby causing a delay, an ex-parte decree can be passed by the tribunal.
When the children or relative of the aggrieved reside outside the territory of India, they cannot escape the duty to maintain and the summon to the same shall be served by the tribunal through such an authority as the Central Government may thereby prescribe in the official gazette of India.
The tribunal can refer the matter to a conciliation officer who is bound to submit his findings within one month before the proceedings are undertaken under Section 5. However, in case appropriate resolve has been reached through conciliation, the tribunal may pass an order to that effect.
The act mandates that the maximum maintenance to be awarded by the maintenance tribunal is Rs. 10,000/- per month. The same is decided by the facts and circumstances of each case, keeping in mind the needs of the claimant and the aim to provide a normal life. The amount awarded is to be paid from the date of order itself.
The tribunal, during the pendency of the trial, may order interim relief to the claimant by the children or relatives as the case may be and an application for interim monthly allowance in this regard shall be disposed of within 90 days, with an additional 30 days window in exceptional circumstances, reasons for which shall be recorded in writing.
In case of failure to pay the maintenance amount within 30 days from the date of order without sufficient reason will result in the issuance of a warrant and on subsequent failure to provide maintenance the person can be imprisoned for a period of one month or till the maintenance has been provided.
Furthermore, the Senior Citizens or Parents under the MWPSC Act can also move an application before the maintenance tribunal which may thereby declare the transfer of any property as void. However, The Act does not have retrospective application in this respect, hence, any transfer of gifts or property must have taken place after the commencement of the act and must have a contingency (maintenance to senior citizen or providing basic amenities) attached to it. Furthermore, for the maintenance tribunal to pass such an application, the person must have failed to provide maintenance or basic amenities or fulfill other needs of the senior citizen.
W.P.(MD)No. 13733 of 2012 & M.P.(MD)Nos. 1 of 2012 & 1 of 2013
AIR 2014 P&H 121 (DB)