Issue 45 Vol II, August 15, 2007

L A W  &  J U S T I C E

New Law Maintaining Parents and Senior Citizens
Joginder Singh Toor

Government of India, by an intended legislation, envisions additional provisions for the maintenance and welfare of parents and senior citizens. A bill has been presented to the Parliament. How far would it ensure the maintenance and welfare of parents and senior citizens who have no children, is a question still debatable? At present, the existing law, section 125 of the Code of Criminal Procedure obliges any person, having sufficient means to maintain, his father and mother who are unable to maintain himself or herself, to provide maintenance to them. The failure empowers a magistrate to order such person to pay a fixed monthly allowance. Non-compliance of the order can invite sentence for every breach of the order for one month and the amount can still be recovered as arrears of fine.

The Hindu Adoption and Maintenance Act, 1956 requires sons and daughters to maintain their elderly parents when they are unable to maintain themselves. The amount of maintenance is to be determined according to the needs of the parents and standard of the family.

In both the cases there is no upper limit for determining the amount. Earlier it was Rs.500/- for an order u/s 125 Cr.P.C. which has now been substituted by "such amount as the Magistrate may determine".

The Constitution under article 41 requires the states and the central government, within the limits of its economic capacity and development to make legislative provisions for the maintenance of the old, the sick and the disabled.

The "Parents And Senior Citizens Bill, 2007" makes additional provisions for senior citizens as well having no children and for parents having children. The new legislation provides for the setting up of maintenance tribunals at sub divisional and district levels, to determine, on the application of parents or senior citizens, the amount of maintenance and to order person found liable to pay the same. The liability of paying maintenance in the case of parents having children can be on sons and daughters above the age of 18 years and having means of their own to support the parents. In the case of senior citizens having no children, the Tribunal is to find as to who are the persons in possession or likely to inherit the property of the senior citizen and can order them to provide financial support to the senior citizen.

The doubts emerging from the present legislation are not to be ignored as well. It is doubtful if the maintenance Tribunals can ensure financial independence for senior citizens. The number of persons likely to inherit property, as per different laws relating to different religions, is varying and quite large. The chances of inheriting property of the senior citizen, in lieu of maintenance, under the orders of the Tribunal, would limit the right of the senior citizen to execute a Will and transfer the property by sale, mortgage or gift. The Tribunal has been given a right to declare a transfer of property from a senior citizen as void if a senior citizen has been allowed maintenance.

The definition of senior citizen includes both Indian aged over 60 years and all parents irrespective of age. The Bill does not make any provision for the maintenance of senior citizens who do not have property.

The relatives, of the senior citizen having no children, who would be liable to pay maintenance, have been defined as "relative who is in possession of or would inherit a senior citizen's property". The question of possession, would give rise to demand of sharing possession by other relatives also who are to inherit property and are found liable to pay maintenance.

The provisions regarding filing of appeal are also faulty. The right to appeal has been given to parents and not to the senior citizens. Even the children, against whom an order of maintenance would be passed, would have no right to appeal.

The number of older persons above the age of 60 years, is likely to increase in the coming years in view of the higher life expectancy age. As per the Census record, number of elder citizens is likely to increase to 12.4% of the population in 2026 from 6.9% as it was found in 2001. The responsibility of the State towards elder people in the face of world trends, to secure the old age, without the help of the children or any other person, has largely increased. Social security of the citizen, particularly old age security is as important obligation of the State as protecting the citizens from foreign invasion. In the proposed Bill the State's obligation towards old age security is minimal.

Providing a cap of Rs.10, 000/- per month as the maximum amount that can be awarded is again a static provision which had to be taken away from Section 125 of the Cr.P.C in view of inflation and decreasing value of the rupee. Taking into consideration the need of the parents or of the senior citizens, the standard of the family and the extent of the property is not part of the proposed legislation, which exist in the existing law.

Many other countries like Sri Lanka, United States of America, China, South Africa, Canada and many European countries have framed laws. In the State of Ontario in Canada, it is the duty of the children to maintain their parents, failure of which can entail indictable criminal charge, entailing longer period of sentence. At the same time the laws do not obligate the children to maintain parents, which parents have not taken care of the children when they required the same. There, it is Quid-Pro-Quo that is give and take policy giving something in lieu of something. The proposed law provides punishment of 3 months imprisonment for abandoning the parents or senior citizen.

Before the Parliament passes the proposed law it requires a second thought.

jogindersingh_toor@yahoo.com

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