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Airtract Anubhav Lamba Tagline Not Available

Maintenance of Parents 21 April, 2020   

Introduction

In the present world today, where everyone is running behind success, individuals often forget the people who brought them up, who cared for them, whole of their life, and who spent everything they earned to make them a successful person, these people are our Parents. With increase in population, the traditional norms of family system are fading, there is a deterioration in status of senior citizens, the system of joint family is coming to an end, and nuclear families are preferred today.  There are lots of times, when we read about how some of the children when grown up as adults ill-treat their parents, and due to the old age of the parents their have nowhere to go but to surrender in front of their children. The parents are not given proper maintenance by their children, sometimes they are left alone in old age homes, because their children can’t support them, because the children pretend that they are financially weak or are busy with their life. Also, there are lots of news that sometimes children acquire the property of their parents by false means and then no maintenance is provided to them. These all are the problems that are being faced by parents due to their children, because of this, the legislature felt the need for drafting a special law to protect the interest of the Parents, i.e. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007.  The law regarding maintenance of parents is also mentioned in Section 125 of Criminal Procedure Code of India, 1973, and also in The Hindu Adoption and Maintenance Act, 1956. Thus, the present paper is an attempt to evaluate the legislations for their functioning and also to put light on the current scenario of the aforesaid topic in Indian with various case laws.  

CHAPTER 1:  WHAT ARE THE PRESENT LAWS IN INDIA WITH RESPECT TO MAINTENANCE OF PARENTS?

Our Indian Society has a long-cherished tradition to respect our elders.  It is an important duty of a person to maintain his/her parents and grandparents. It is also mentioned in all the religious texts that one should respect his/her elders and be their guiding light in the world when they become old. Also, in recent times, the joint family system has been abolished and the system of nuclear families are propagating, this also changes the situation as when the system of joint family prevailed, the grandparents used to tell moral stories to their grandchildren when their parents were away for work, which in some way, imbibed moral values about respecting elders in children.  But as society is developing these days, these moral values have been replaced by a race in the todays generation to compete in the present world and create his/her name globally. This lead to a deterioration in these moral values to respect the elders in the present society and nowadays its common in news that how children treat their old parents, sometimes by throwing them out of their own house, sending them to an old age home, or harassing them  mentally by asking them, their share in property or taking over their property as a whole without maintaining them thus, a need was felt by the legislation, to create specific laws to safe guard the rights of these senior citizens, hence specific legislations. The Hindu Adoption and Maintenance act of 1956, it has been laid down in Section 20, that a Hindu is bound to maintain his/her aged or infirm parents throughout his life time but this was only valid for Hindu’s then to create an umbrella law, Section 125 Criminal Procedure Code of India, 1973 was introduced which recognizes penal consequences for an individual who fails to maintain his/her parents. But still, there was a consequent need for a special law regarding maintenance of Senior Citizens, thus Maintenance and Welfare of Parents and Senior Citizens Act, 2007 was introduced, this act was a development for the well-being of senior citizens and guaranteed their right more effectively, and justified Article 41, Constitution of India, which mandates state to make effective provisions for safe guard of its citizens of old age and work for protection of their interests. Thus, the researcher would put light on the legislations one by one, and would be giving his critical remarks on the same:

 

a.     Analysis of The Hindu Adoptions and Maintenance Act, 1956.

First step towards securing rights of senior citizens was Section 20 of The Hindu Adoption and Maintenance Act, 1956, the section states that a Hindu is bound throughout his/her lifetime to maintain his/her aged or infirm parents. Thus, the section makes clear that a Hindu, has to recognize throughout his lifetime, that he has a duty to maintain his parents, also the section is gender neutral that means, that a Hindu women also is bound by this section, and she also has a duty throughout her lifetime, to maintain her parents. But there is also an exception to this section that a person is only liable to maintain when, his/her parents are unable to maintain themselves out of their own earnings or property. The term parent in this section also extends to a childless stepmother, but there is no liability on a stepson to maintain his stepmother under his section but has to maintain her as a dependent under section 21 of the act as laid down in case of Pannalal v. Fulmani[1]. But section 20 only states that a Hindu is bound to maintain his parents, but section 23 defines that what should be the amount of maintenance one should be rewarded, thus it is solely on the court to decide the amount of maintenance that can be claimed against an individual by his/her parents, there are various factors that court takes into consideration while deciding the amount of maintenance such as, position or status of the parties, reasonable wants of the claimant, thus we can say that The Hindu Adoption and Maintenance act was a great step, and one of first legislations that dealt with maintenance of parents. 

But there are some drawbacks to this legislation, one major drawback is that, the act was only binding on Hindus and not all the citizens of India, and considering India as country of diverse religions, Hindu were only favoured by this, thus a need for more general rule for the protection of rights of parents arose and section 125 of Criminal Procedure Code of India was introduced. 

 

b.     Analysis of Section 125, Criminal Procedure Code of India, 1973.

Section 125 of Criminal Procedure Code lays down the rule that, if a person having sufficient means neglects or refuses to maintain his father or mother, he would be liable for penal consequences. At first instance of reading this section, one would think that this section is only applicable to a male not a female, but in case of V.M. Arbat V. K.R. Sawai[2],  Supreme Court of India held that, “it is the moral obligation son or a daughter to maintain his or her parents. The Indian society casts a duty on the children of a person to maintain their parents if they are not in a position to maintain themselves. It is also their duty to look after their parents when they become old and infirm.” But section 125 also lays down certain conditions before one can file a suit under this there are certain conditions that should be looked into, firstly the person against whom the maintenance claim has been filed, must have sufficient means to maintain. Secondly it must me proved by the claimant that, he/she is unable to maintain themselves. It also has a provision for interim maintenance which can be granted by the court to a claimant during the pendency of a trial. If a claimant desires, he can also claim for the litigations expenses from the court and the court can direct in the favour of claimant for the litigation expenses but only if a claimant is liable for maintenance. The section also lays down, that if a person against whom order of maintenance has been passed fails to comply with such an order, a magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due. Hence we can say that loop wholes in section 20 of the Hindu Adoption and Maintenance act was filled by this section, thus Section 125 serves as powerful, rule to control the bad against someone to his parents, but Section 125 also had some loop wholes, as firstly there was lack awareness among the citizens about such a legislation, also due to lack of a special law, there were lot problems in implementation of laws in the Indian society, thus a need for a special legislation arose. Thus in 2007, Maintenance and Welfare of Parents and Senior Citizens Act was introduced. 

 

c.     Analysis of  Maintenance and Welfare of Parents and Senior Citizens Act 2007

The main objective behind this act was make the procedure easier, less expensive and to be on fast track and to provide effective remedies for the maintenance and welfare of Parents and Senior Citizens. The silent features of act are, firstly it provides for medical facilities to the senior citizens, and provisions for protection of their life and property, secondly the act provide for a systematic approach to need based maintenance to the senior citizens, thirdly the act provides for setting up of old age homes, in every district, thus we can say that, the act is an overall development in and brings every aspect of the problems of the old aged people, under its ambit. This act is applicable to every citizen of India, irrespective of their religion, also to citizens of India outside India. Some of the important features of the act are, the term maintenance covers all basic necessities/requirements of life. The act also includes a senior citizen who doesn’t  have a child, that means he/she can claim maintenance from any of his/her relative, who would be immediate heir to his/her property. the act also lays down maximum amount of maintenance, that should be prescribed by the state government, but it can’t exceed an amount of ten thousand rupees. To comply with timely justice being served, there is a time period of one month, If the person against whom claim of maintenance is made doesn’t comply with the order, the tribunal can imprison him/her up to period of one month. The tribunal in which these claims are made, do have the powers of civil court, thus have to be deemed as civil courts. The act also lays down the provision that a party can also file a suit without a legal practitioner, this is an important as it cuts down the cost for proceedings. Also if a senior citizen transfers his/her property to any individual, and that person is not performing his duty to maintain the transferee, the transferee can cancel the transfer of his property, by applying to the tribunal. Hence taking into consideration all the provisions laid down by the Maintenance and Welfare of Senior Citizens act 2007, we can say that, the government tried to fill in all the gaps in the previous legislations. But this legislation also had several backlogs, firstly the amount of maintenance capped to ten thousand rupees, secondly son in law and daughter in law, was included in the act for claim of maintenance, thus to curb all the backlogs, the government came with a proposal to amend the act, and it was introduced in Lok Sabha on December 11, 2019. The amendments proposed consisted to, firstly to remove cap of thousand rupees of monthly maintenance, secondly to include daughters in law, sons in law responsible for looking out of senior citizens of the family. Thirdly it was also proposed that, an individual who fails to comply the order of the tribunal can face a jail term up to six months. The bill is currently referred to standing committee of the Parliament, which will present its report by the end of June, 2020.


 

CHAPTER 2: COMPARATIVE ANALYSIS OF EXISTING LAWS WITH RESPECT TO MAINTENANCE OF PARENTS

As discussed before, there are three key legislations that provide rules for maintenance of parents, i.e. The Hindu Adoption and Maintenance Act, The criminal Procedure Code, and the Maintenance and Welfare of Senior Citizens Act. Now if a case comes, in which these acts, a senior citizen should file a suit into, hence in this chapter, the researcher would like to present a comparative study of the three. Starting from the adoption and maintenance act, it was indeed a great step towards securing rights of the senior citizens but, when considering with other legislations, it was only applicable on Hindu’s which is a major drawback as, other religions are not bound by this. To cater this, section 125 of Criminal Procedure Code, was introduced, it removed the previous drawback of earlier act binding only on Hindu’s but still some loopholes were still present in this act also, like this provision, lacked awareness among the senior citizens also, the section only promoted maintenance of parents and penal consequences if not complied to. Then in 2007, The Maintenance and Welfare for Senior Citizens Act, this piece of legislation filled up all the previous gaps and is considered most helpful for the protection of senior citizens, this act promotes, providing of medical facilities, building old age homes, and also many other provisions. Thus, if one has to file a suit for maintenance, one should do it under the 2007 act and not under other, also if one files under, he/she cannot file under another suit in another act. For example, one person files a suit under maintenance and welfare of parent’s act, he/she cannot file the case under section 125 of the Criminal Procedure code at the same time. Section 125 of Cr. P.C does not put any limit for the maintenance, whereas under the Act, 2007, the maximum limit of maintenance to be awarded is fixed as 10,000/-. Since there is specific bar in section 12, they cannot claim more than 10,000/- repress. If they want to get more amount of maintenance under the Code of Criminal Procedure, the more expeditious remedy available under the Act, 2007 will be precluded. The 2007 act had also some drawbacks but, government had tried to overcome all of them by proposing the 2019 amendment, and when once the bill would be passed, It would serve a lot of senior citizens and parents in need. 


 

CHAPTER 3: LEGISLATIONS AROUND THE WORLD WITH RESPECT TO MAINTENANCE OF PARENTS

The question of ageing was first debated at the United Nations in 1948 at the initiative of Argentina. The

International Plan of Action on Ageing was adopted by the General Assembly in1982 and the Assembly in subsequent years called on governments to continue to implement its principles and recommendations. 

1. In 1992, the U.N. General Assembly adopted the proclamation to observe the year 1999 as the International Year of the Older Persons. 

2. The U.N. General Assembly has declared “First October” as the International Day for the Elderly later rechristened as the International Day of the Older Persons. 

3. The U.N. General Assembly on December 16, 1991 adopted 18 principles.[3]

The universal declaration of human rights, also promotes for the welfare of senior citizens in Article 25 (1), it states that everyone have a right to standard of living and well-being, in event of old age or anything beyond his control. Also in the European social charter, under the rights of social security, it is mentioned clearly under article 11, 12, 13 and 14 to provide for social welfare services to the individuals, so that social security can be maintained. In the convention relating to the status of refugees, it states that a refugee must be treated with same level of social security, as a country provides to its citizens regardless of sickness, old age or disability. International covenant on Economic, cultural and social rights, Arab Charter on Human rights, these are some of the legislations around which ensures the rights of the old aged and senior citizens, thus we can say that how important it is to take care of them. In India other than legislations, a policy was formulated in 1999 i.e. National Policy for Older Persons in India, it focussed basically on Ensuring the well-being of the elderly so that they do not become marginalized, unprotected or ignored on any count Protection on various fronts like financial security, health care, shelter and welfare, including protection against abuse and exploitation. Ensuring for the elderly, an equitable share in the benefits of development as well as addressing the neglect of elderly women on three counts viz. age, widowhood and gender Promoting an age-integrated society by adopting mechanisms for improving inter-generational ties so as to make the elderly a part and parcel of families/households Considering the elderly as a resource by advocating their inclusion within the family, community and society and carving out specific productive roles and opportunities for them. Viewing the elderly as an agency which needs to be empowered, with regard to their voice and representation in the electoral sphere. In connection with the larger budgetary requirements, to ensure the welfare of the elderly thereby advocating the involvement of civil society, individuals and families in this endeavour. Recognising the need for expansion of social and community services with universal accessibility.[4] But sadly the aforesaid policy was not implement anytime. 


 

CHAPTER 4: WHAT IS THE WAY FORWARD

In this chapter the researcher would like to discuss certain suggestions, that the government and the society collectively should implement on the ground level, so that the legislations enacted for the welfare of senior citizens of the country. Firstly government should host certain awareness programs among the senior citizens to make them aware about their rights given to them by legislations. Also there should be certain awareness campaigns in form of digital media, that could be broadcasted by digital mediums such as televisions, radio etc. Also there should be provisions of fast track courts for senior citizens, so that justice shouldn’t be delayed for them. Separate team of police and counsellors should be set up to help these senior citizens. Special provision for senior citizens should be made in every government department so that, they could be served better. Also the offences against senior citizens should be taken as more serious offences and the punishments with additional fines should be served. The senior citizens also should be made aware about the property laws, and how the these govern succession. A strong rule should be made for a minimum self-acquired for a senior citizen, and should only transferred, when he/she dies. Also every senior citizen should be made aware of his/her rights after retirement so that, they can live a happy life, without worrying about anything. Also provision for  proper health care services should be provided by the government. Also there should be collaborations made with various law institutions, who can provide free legal aid, to these senior citizens about their rights. Hence we can say that, through the legislation government has created a step for the senior citizens to fight for their rights, but when we see the implementation of it, there is a lot of distance to cover. 


 

CONCLUSION

According to a report, which is titled as Situation analysis of Elderly in India 2011, released by Central Statistics office Ministry of Statistic and Programme Implementation, the population over time, there has been a progressive increase in both the number and proportion of aged people. The proportion of the population aged 60 years or more has been increasing consistently over the last century, particularly after 1951. In 1901 the proportion of the population aged 60 or over of India was about 5 percent, which marginally increased to 5.4 percent in 1951, and by 2001 this share was found to have risen to about 7.4 percent. About 75% of persons of age 60 and above reside in rural areas.[5] Thus by the statistics above we can say that, how important is to work for the welfare of senior citizens, also the government had made the legislations but their its implementation is more important as without implementation, there is no meaning of the legislation. Hence on the concluding note the researcher would like to summarize that, there is a long way forward, for securing the rights of senior citizens, we as responsible citizens of the country, with the government should both work towards it and should take responsibility of making happy each and every senior citizen of our country and should help them securing their rights. 


 

BIBLIOGRAPHY

 

Websites Referred: 

1.     www.manupatrafast.com

2.     www.scconline.com

3.     www.indiankanoon.com

4.     www.jstor.com

5.     www.timesofindia.com 

6.     www.thehindu.com 

7.     www.prsindia.org 

8.     www.lawtimesjournal.in

9.     www.economictimes.com 

Acts Referred

1.     Constitution of India

2.     The Hindu Adoption and Maintenance Act.

3.     Criminal Procedure Code of India. 

4.     The Welfare and Maintenance of Senior Citizens Act. 

Books Referred: 

1.     Family Law Lectures - Family Law I by Prof Kusum.

2.     G.C.V. Subba Rao's Family Law in India

Articles and Reports 

1.     Situation Analysis Of The Elderly in India, (2011)

2.     National Policy for Older Persons in India.

Maintenance and welfare of parents and senior citizens: Need to social justice 



END NOTES

[1] Pannalal v. Fulmani AIR 1987 Cal 768

[2] V.M. Arbat V. K.R. Sawai 1987 AIR 1100

[3] Debaditya Das, Maintenance and welfare of parents and senior citizens: Need to social justice , 5 International Journal of Multidisciplinary Research and Development(2018).

 

[4] Ibid. 

[5] Situation Analysis Of The Elderly in India, (2011).

 


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