In the traditional Indian system elderly were respected and they had a great decision making power in the family
. Children felt duty bound to serve and respect the elderly and to contribute to the family
Children sought the counsel of elders for making major decisions and placed family
resources at the disposal of elders for prudent handling
During the last century this socio economic and value system has slowly eroded. More and more couples are working full time, families have become smaller and nuclear migration and consumerismhave become the order of the day At the same time, life expectancy of the elderly has gone up from 32yrs in 1947 to 67 years in 2001. All these factors cause pressures on families resulting in abuse,neglect and abandonment of the elderly\. While most elderly are well looked after, many suffer from poverty, loneliness, neglect, abuse and abandonment and find it difficult to mobilise resources for theirmost basic needs as their children are either unable or unwilling to maintain them.
Problem of widows widowers and the childless elderly is even more acute.
All Indian citizens are entitled to fundamental rights guaranteed to them by the Indian Constitution.Senior citizens are no exception. They are also entitled to fundamental rights to life and personal liberty freedom of speech and equality before law but these rights are often difficult for them to achieve for a variety of reasons.
Most personal laws including the Hindu Adoptions and Maintenance Act, 1956 recognise duty of the children to maintain their aged parents and the right of the parents to maintenance. Section 125 of theCriminal Procedure Code, 1973 specifically provides for maintenance from children if parents areunable to maintain themsees but cases are rarely filed by parents due to land affectiostigma and time and money required for the legal proceedings. A need has been felt for long for asimpler and faster means and HelpAge India, as part of its work for the cause and care of the elderlyhas been advocating for provision of care and maintenance of the elderly amongst other meas
Government has come to the rescue of the elderly and has brought about “
An Act to provide for more ffective provisions for themaintenance and welfare of parents and senior citizens guaranteed and
recognised under the Constitution and for matters connected therewith or incidental thereto as follows
Title of the Act: “The Maintenance and Welfare of Parents and Senior Citizens Act, 2007”
.Applicability: “It extends to the whole of India ex
cept the State of Jammu and Kashmir and it appliesalso to citizens of India outside India.
”Effective Date: The Act shall come into force in a State from the date fixed and notified by theconcerned State Government in the Official Gazette.
The Act has provisions detailed under the following chapters:
Maintenance of Parents & Senior Citizens
Establishment of Old Age Homes
Protection of Life and Property
Summary of the Provisions:
Who is a Senior Citizen, Parent, Child or relative under the Act?“Senior citizen” is any citizen of India of 60 years and abov whether living in India or not.
“Parent” is the father or mother even if not of 60 years y“Children” are adult son, daughter, grandson and grand-daughter
“Relatives” are those who are either in possession of the property of the senior citizen or would inherit it.
Who can demand maintenance under the Act?
Parents and grand parents who are unable to maintain themselv]es from their own income can demand maintenance from their children as defined above and“Childless Senior Citizens” who are unable to maintain themselves from their own income can demand maintenance from their relatives as defined above
What is Maintenance?
Maintenance includes provision for food, clothing, residence, medical attendance and treatment.
Maximum amount which may be ordered for maintenance of a senior citizen by the Tribunal shall be such as prescribed by the State Government which shall not exceed Rs. 10,000/- per month.
Who is entitled to Maintenance?
Parents, grand-parents and senior citizens who are unable to maintain themselves from their own income and property are entitled to demand maintenance from their children and specified relatives respectively with sufficient means.
Whose obligation is it to maintain the elderly?
It is the obligation of the children and specified relatives with sufficient means to provide maintenance for their parents and childless senior citizen respectively
.How is an Application for Maintenance made and decided?
Application for maintenance may be made by the senior citizen or parent to the Tribunal under Section4 in layperson’s language giving names, full details and addresses of the persons from whom they are demanding maintenance. If there is more than one child or relative, they may claim maintenance fromone or all of them depending on their means of income.
Maintenance proceedings may be initiated against any child/children or relative in any district where the parent or senior citizen lives or last lived or where the child/children or relative live
.If such applicants are incapable of making an application themselves, any other person or registered voluntary organisation authorised by him/her can make the application; or the Tribunal can take suomotu cognizance and proceed. Upon receipt of the application, the Tribunal would issue notices to the children, conduct hearings, take evidence and order maintenance. Tribunal may also refer the case for reconciliation or pass interim orders for maintenance.If the children or relatives fail to pay the ordered maintenance without sufficient reason for 3 months after its due date, the senior citizen can approach the Tribunal again who may impose a fine or order imprisonment of the child/relative upto a month or until payment is made whichever is earlier
.What if the elderly themselves and their children and specified relatives do not have sufficient means to maintain them?State Governments may establish, in a phased manner, sufficient senior citizen homes and maintain the same for indigent or abandoned and neglected (by their kith and kin) beginning with at least one Old Age Home in each district sufficient to accommodate a minimum of 150 elderly State Government may also prescribe scheme for management of old age homes, set standards and prescribe minimumservices for medical care and entertainment of the elderly in the Old Age Hom\es.Abandonment:Under Section 24, if anybody who has responsibility for the care or protection ofa senior citizen leaves him/her in an
y place, with the intention of wholly abandoning him/her, such person shall be punishableunder the Act with imprisonment of either three months or fine upto Rs. 5,000 or both
- The offence would be cognizable and will be tried by a Magistrate.
Conditional Transfer Of Property:
An important provision has been made for the elderly to claim their property back from children, if given-conditionally after commencement of the Act on promise of looking after their needs and amenities if such promise is not fulfilled. Under Section 23, if after commencement of the act any Parents or senior citizens have transferred their property to their children or relatives on the condition that they would provide certain maintenance and amenities to the senior citizen but subsequently neglect or refuse to do so the parents or senior citizens can get such transfers voided (cancelled) at their option by having such transfer treated as a fraudulent or coercive acquisition and seek return of\their property so transferred.
Constitution of Maintenance Tribunals and Appellate Tribunals by the State Governments in all SubDivisions and States within 6 months of commencement of this Act State Governments may make rules for carrying out the purposes of the Act by notification in the Official Gazette.Summary trials by the Tribunals for passing orders for maintenance.
Lawyers excluded from the proceedings.
Elderly can choose to seek maintenance either under this Act or under the provisions of the
Criminal Procedure Code 1973 if applicable but not under both the provisions.
“No Civil Court to have jurisdiction in respect of any matter to which any provision of this Act applies No injunction shall be granted by any Civil Court in respect of anything which is done or intended tobe done by or under this Act.
” (Section 27)
State Govt to designate District Social Welfare Officer or an equivalent officer as Maintenance Officer.Maintenance Officer can represent a parent or senior citien if he/she wants.
State Government may establish and maintain sufficient senior citizen homes for indigent or abandoned and neglected (by their kith and kin) beginning with one in each district sufficient to house 150 elderly
State Government may prescribe a scheme for management of old age homes, setting standards and minimum services necessary for medical care and entertainment of the elderly
State Government to establish specific medical facilities, allocate doctors/hospital beds, expand treatment for chronic, terminal and degenerative diseases; and conduct research on ailments ofthe elderly and ageing.State Government to take all measures to sensitise and orient the police and judiciary regarding protection of life and property of the elderly and provisions of this act This is a model Legislation passed by the Central Government for adaptation and application by the\States. The Act will apply in a State from the date fixed and notified by the State in the official gazette.
CRITICAL ANALYSIS OF THE ACT
In December, 2007 the Act was passed by the Central Government but
most of States have]implemented it in last three or four years back so also government has not made serious efforts to establish Tribunals and address the problems. It seems that most of the State governments are not serious in implementing the provisions of the act
.In addition to this following are some of the lacunas in the Act.
The definition of senior citizen includes both Indian and indians outside india which is now repealed.
As per provisions of the Act the presiding Officer the Tribunal will be Sub Divisional Officer and also the appellate powers are vested in the District Magistrate that meansthe persons from Revenue Department who may not be having the knowledge of law.Hence they maynot know how they will adjudicate into the matter in accordance withthe procedure followed by Civil Courts.
Further Revenue Department is already overburdened and assigning job of adjudicating issues/cases of the senior citizens which require to be decided on priority would not be given that much attention
.If this happens then very object of enacting this special legislation would frustrate. In this circumstance senior citizens will suffer double injustice. Since jurisdiction of other courts are also barred by this legislation.
According to the provisions of this Act entry of Advocates is prohibited.Complete exclusion of the lawyers from the purview of the Tribunal has no reasons or detailsand logic behind it
.The Act provides that the Maintenance Officer designated by State Government shall
represent senior citizen if he so desire, but no such facility is available to other party.
This may amount the violation of principle of Natural Justice.
vThe Act empower State,the entire responsibility of establishing Tribunals, enacting
.Since there is no mandatory provision in the Act State may or may not establish Tribunal to adjudicate the cases of senior citizens. Hence there is every likely hood that the senior citizen will have to face problems.
The Presiding officer of the Tribunal has no power of discretion in awarding the
maintenance amount and the power is vested with the State Government. This will again result in injustice with the aged people. There is every possibility that the amount fixed by the government may vary from State to State.
Imposing liability on a person who happens to be a relative of the senior citizen on the
ground that he will inherit the property of the senior citizen is illogical and unreasonable because the senior citizen may
his death and there is no guarantee that the relative will definitely inherit the property
of the senior citizen.
So also if that relative is not intending to accept the property of the aged person or
senior citizen, can he be compelled to look after that senior citizen and provide such
person maintenance? This may amount the violation of the fundamental right i.e.
Personal liberty, guaranteed under in Constitution of India.
The exclusion of the jurisdiction of
Civil Courts is not justified, because Tribunals are not manned by legally qualified or experienced persons. Further the protection given to Central and State Government and the authorities of the government that no proceedings can be initiated against them. This indirectly confers supremacy to
.The provision regarding appeal is also discriminatory. The Act confer right to file
appeal only to senior citizen and other party is not having said right. This is
contradictory to the Constitutional principle of equality. There is no facility available
to childless senior citizens.
No doubt this Act directs the Government to establish at least one Old Age Home at
District level and shall accommodate 150 senior citizens. Specifying such details in
the Act reduces the flexibility to cater to differing local conditions and needs. Further,
this Act is silent regarding management and administration of such Old Age Home.
Already there are some Old Age Home run by assistance of government and some
organization on charity. The position of such Old Age Home is miserable. In absence
of clear cut provisions in respect of Old Age Home, the said provision may not work
in reality and will frustrate the intent of legislature.
The provision of the Act directing the government to provide medical support to the
senior citizens, shall provide beds to senior citizens and such hospital shall be headed
by a medical officer having experience in Geriatric care found to be ornamental only.
Very few hospitals have Geriatric Care and medicine Experts in India. In absence of
expertise how senior citizens will get proper treatment and care is the important
question. In that event senior citizen will have to approach such hospitals having
expertise in Geriatric care and will have to pay exorbitant fees for the same. This
again frustrates the provisions of the Act.
It is submitted that, with enacting such an Act, the legislature appears
to have taken adequate care,to safeguard the rights of the senior citizens
. However, there still lie few grey areas. To assess the utility or effectiveness including feasibility it is necessary that the said legislation
shall be implemented at least for10 to 12 years. In absence of this period it will be
difficult to identify the lacunas or difficulty in the same.The tribunal shall be manned by legally qualified and experienced people.
To sum up, theauthor humbly submits few suggestions for proper and adequate
implementation of the Act
Government has to adopt suitable mechanism to create new awareness in general public, regarding Act and shall be given wide publicity so that it could reach to the last person in the society.
State government shall not have the discretion in determining the amount of maintenance to be awarded by
person having proficiency in law and sensitize towards the problems of senior citizens.
The Act shall have integrated approach towards the welfare and maintenance of senior citizens so also shall be made comprehensive.
, in order to implement the act more effectively and render justice freely and speedily, the Central Government should come forward to remove the above referred drawbacks.Otherwise very purpose of enacting this Act to provide secure life to senior citizens may not be fulfilled..