Maintenance of elders: Penalise neglect, incentivise duty

COLUMNIST | SANJAY PINTO
Published Dec 1, 2018, 3:33 am IST
Updated Dec 1, 2018, 3:33 am IST
As with many statutes, there have been loopholes and inadequacies, especially with some crucial definitions.
There have been reports about amendments in 2018 but none has come into effect. (Representional Image)
 There have been reports about amendments in 2018 but none has come into effect. (Representional Image)

When life expectancy goes up with a corresponding spurt in the number of old age homes, where many parents who gave their all for their children are languishing, that's a sure shot symptom of our hearts not being in the right place. Laws have existed. Section 125(1) of the Code of Criminal Procedure, on cue from the Law Commission, has provided for maintenance of "indigent parents" by a son of "sufficient means." Under Section 20 of the Hindu Adoptions and Maintenance Act, Hindus are required to maintain their aged or infirm parents in need. While the Directive Principles of State Policy focus on children, workers, maternity relief, animal husbandry and even monuments, Article 41 of the Constitution makes only a passing reference to senior citizens, in terms of "public assistance" in cases of  "old age, sickness and disablement."

'Public assistance' cannot mean charity. When duties have been ignored, fixing responsibility became imperative, through an exclusive legal strike in 2007 with the Maintenance of Parents & Senior Citizens Act. Section 2(h) of the Act defines a  "senior citizen" as a person who is sixty years or above. That's a welcome feature as it covers elders as soon as they retire.

 

 As with many statutes, there have been loopholes and inadequacies, especially with some crucial definitions. There have been reports about amendments in 2018 but none has come into effect. The sting in the Act is in Section 24 which lays down a punishment of imprisonment up to 3 months for "exposure and abandonment" of a senior citizen. The term 'children' in Section 2(a) refers to sons, daughters and grand children. In a joint family, elderly parents may be ill-treated by sons-in-law or  daughters-in-law. Section 2(a) must be amended to include these family members under the rubric of 'children.'

 Under Section 4, a senior citizen including a parent who is unable to maintain himself from his own earning or out of the property owned by him, can make an application before a Maintenance Tribunal for monthly maintenance, against one or more of his children or relatives. Under Section 9, there is a cap on monthly maintenance at ten thousand rupees. If both parents are alive and if 'maintenance' under Section 2(b) is to include "medical attendance and treatment", how realistic is this limit? Why have a cap at all? If penalising negligent children doesn't work, would it be a bad idea to incentivise 'duty' with an 80G sort of income tax rebate under this head?!

In the context of childless senior citizens, Section 2(g) defines a "relative" as "any legal heir who is not a minor and is in possession of, or would inherit his property after his death." This can apply only to a senior citizen who dies intestate. As a will can be changed at any time, any number of times, how can one zero in on the real inheritors of property? Under Section 16 of the Act, only parents can file appeals against a decision of the maintenance tribunal. Both childless senior citizens and children have been denied this right of appeal, which is discriminatory.

The right to be represented by a lawyer before maintenance tribunals has been snatched away by Section 17, presumably to make proceedings less hostile for senior citizens. But let's hope that it does not work like consumer fora, where parties in person struggle to comply with cumbersome procedures.

Many senior citizens have problems walking, travelling, poor eye sight or memory loss. Under Section 5(b)  an authorised representative can move an application before a tribunal. Senior citizens may be represented by a maintenance officer. Will maintenance officers be as inadequate as Protection Officers under the Domestic Violence Act?! Section 5(c) empowers the Tribunal to "take cognizance suo motu." Has telepathy been contemplated here? Why not allow applications through registered post, email or Whatsapp, without excluding legal professionals?

 Monetary provisions aside, Section 20 (i) of the Act makes it mandatory for "Government hospitals or hospitals funded fully or partially by the Government" to provide beds for all senior citizens "as far as possible." Why can't private institutions also be looped in? The words "as far as possible" could end up as an escape route. Under sub clause (ii) separate queues are to be earmarked for senior citizens. How will the authorities oversee its implementation?

To tackle usurping of property, Section 23(1) of the Act, stipulates that if a senior citizen has transferred his property by a gift like a settlement deed, subject to the condition that the transferee shall provide his "basic amenities and basic physical needs," the transfer of 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 by the Tribunal" if there is neglect and no proper care extended to him.  

Can Tribunals grant relief through eviction? The Punjab & Haryana high court in Justice Shanti Sarup Dewan Vs Union Territory of Chandigarh wondered "how and through which machinery" this can be enforced through eviction, to enable senior citizens to "live in peace in their house." The Delhi high court in Sunny Paul Vs State NCT Delhi, the court ruled that this statute "provides for eviction of adult children in cases of parental abuse." In Nasir Vs Govt of NCT of Delhi, the Delhi high court held that relegating a senior citizen to a civil court in certain situations would negate the very purpose of setting up such Tribunals. A Division Bench in Shadab Khairi Vs state observed that " beneficial legislation" must be "responsive to some urgent social demand in a welfare state."

The object was for the "welfare of parents and senior citizens and for protection of their life and property, leaving no doubt that the Maintenance Tribunal has the power and jurisdiction to render  eviction."

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