By Nihit Nagpal and Akif Abidi
The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (MWPSC Act, 2007) plays a crucial role in promoting the well-being and dignity of senior citizens in India. It provides a legal framework for ensuring financial security, healthcare access, and property protection for the elderly. By holding children and relatives accountable for the maintenance of their elderly family members, the act discourages neglect, abandonment, and abuse of senior citizens.
The Constitution of India also recognizes the need for State intervention in taking measures to create suitable framework for the protection of elderly persons. As per the Article 41 under Directive Principles of State Policy: “the State shall, within the limits of its economic capacity and development, make effective provision for securing right to work, to education and to public assistance in case of unemployment, old age, sickness and disablement, and in other cases of undeserved want.”
The MWPSC Act, 2007[1] is based on the vision of Article 41 of the Constitution. It was enacted by the Government of India to protect the rights and interests of senior citizens and enable them to lead a life of dignity and respect. It further aims to provide a comprehensive framework for ensuring the well-being of senior citizens in India.
This article,explores the key provisions, judicial trends and challenges associated with The MWPSC Act, 2007, highlighting its importance in promoting a society that respects and cares for its elderly.
Maintenance and Welfare of Parents and Senior Citizens Act, 2007- Key Provisions
- Maintenance: The primary objective of the Act is to ensure that senior citizens receive necessary financial support and maintenance from their children or legal heir(s). As per the Act[2], any person over the age of 60 years is considered to be a senior citizen. Under the Act, children and relatives (legal heir)[3] are legally obligated to provide financial assistance to their elderly family members, if they are unable to maintain themselves[4].
- Identifying Role of Organizations: The Act has rightly incorporated the authorisation of voluntary organizations registered as society under the Societies Registration Act, 1860 in making applications for maintenance[5] to the Tribunal, on behalf of the senior citizens and in enforcing the property rights on behalf of the senior citizens.[6]
- Establishment of Maintenance Tribunals: The Act establishes Maintenance Tribunals[7] at the district level to address complaints related to the maintenance and welfare of senior citizens. These Tribunals have the authority to issue maintenance orders and ensure compliance. They provide a legal recourse for senior citizens who face neglect or abandonment.The State Government has been cast with a duty to constitute for each Sub-division one or more Tribunals and Appellate Tribunals[8] for the purpose of adjudicating and deciding upon the order for maintenance.The Act also provides provision of Appeal[9] against the order of the Tribunal by the aggrieved party within a period of sixty days from the date of the order.
- Healthcare and Medical Facilities: The act emphasizes the importance of healthcare services for senior citizens. It mandates the State government to provide beds for all senior citizens and further mandates separates queues to be arranged for senior citizens.[10]As a welfare measure, it is also provided that the State Government may establish old age homes in each district for those senior citizens who are deemed indigent, and in need.[11]
- Protection of Property Rights: The Act safeguards the property rights of senior citizens[12], preventing fraudulent practices and abuse. In various instances, where the senior citizen has transferred property via a gift deed to their son/daughter; the senior citizen has the right to revoke the gift in case the transferee fails to provide the basic amenities and basic physical needs of the transferor.
- Punishment: The Act clearly states that any person having the care of senior citizen leaves or neglects in performing his duties shall be punishable with imprisonment of either description for a term which may extend to three months or fine which may extend to five thousand rupees or with both.[13]
The Act also makes all the offences under this Act cognizable in nature, this would ensure that a complaint may be filed by any person, other than the senior citizen on their behalf.
Issues faced by Senior Citizens:
- The Act does not cover son in law or daughter in law within the definition of children thereby excluding them from the responsibility to maintain their in-laws relationships, though they may be the only earning members of the family.
- The Act provides for the maximum limit of maintenance at INR 10,000/- (Ten Thousand Rupees only). This is insufficient to maintain senior citizens especially in the light of their advanced age and geriatric care which may require round the clock supervision.
- The law is not sufficient to counter the societal disadvantages faced by the elderly such as ageist attitude of the society, apathy towards geriatric care and lack of digital literacy.
- Section 17 of the Act bars any legal representation to either party in any proceeding before the Tribunal or Appellate Tribunal. This is repugnant to other legislations such as Advocates Act, 1961[14] and also may be counter-productive in ensuring the protection of rights of the parties. Especially since the Tribunals established under the MWPSC Act, 2007 have powers to hold inquiry and receive evidence, the bar on advocates in proceedings is more likely to frustrate the scope and object of the Act.
- The Act does not bind the State government in establishing old age homes or making the schemes for the functioning of old age homes.
- The Act is also silent on the provision of sensitization of law enforcement authorities such as local police with specific reference to crimes against older persons.
Judicial Trends
The judiciary has been proactive in protection of the rights of the elderly by interpreting the provisions of the MWPSC Act, 2007 in a liberal manner in line with the scope and object of the Act.
With reference to the rights of the aged parents vis a vis eviction of the major children from the self-acquired property, in the case of Anil Kumar Dhiman vs State of Haryana[15] the Hon’ble Punjab and Haryana High Court held that the aged parents would have the right to evict their son and daughter in law; also observing humanly that, ‘when the children, who the parents have reared with untold sorrows and miseries, throw them at the mercy of their destiny and use their muscle power to torture and harass them, the parents’ world get totally shattered which marks as the beginning for the unfortunate tale of their moving from one Forum to another for redressal.’
Similar position was taken by the Hon’ble Delhi High Court in the matter of Smt. Darshna v. Government of NCT of Delhi & Ors.[16]
The Hon’ble Punjab and Haryana High Court in Ramesh Vs Ishwar Devi[17], held that, “Section 23 is adequate protection of property of aged parent’s against such sons and daughters who abandon the parents after receiving the property despite knowing that the elderly old aged people are incapable of taking care of themselves in their last phase of life.”
The Section 17 of the MWPSC, 2007 which bars the legal representation in proceedings before the Tribunals and Appellate authorities under the Act was challenged in multiple High Courts and it has been conclusively held in the cases of Paramjit Kumar Saroya v. Union of India[18], Tarun Saxena v. Union of India[19] and Adv KG Suresh vs The Union of India[20] that Section 30 of the Advocates Act, 1961 allowing for legal representation in all tribunals would supersede Section 17 of the MWPSC, 2007 hence advocates may in the interest of elderly persons appear on their behalf in any proceedings in the Tribunal.
In GS Manju vs KS Gopi[21] it was decided by the Hon’ble Kerala HC that the Tribunals set up under MWPSC Act, 2017 must elicit truth of the matter and follow inquisitorial approach to find the nature of the case. The case revolved around revocation of gift deed and it was held that the matter is not essentially a civil dispute and the transferor has the right to revoke gift in case the transferee fails to maintain the transferor.
The Hon’ble Court in the case of Debashish Mukherjee vs. Sanjib Mukherjee[22] held that gift deed for transfer of immovable property executed by the parents in favour of their children cannot be declared null & void by the Tribunal until and unless such deed contains a clause that the child in whose favour the deed is being executed is liable to maintain their parents and provide them with basic amenities then such cancellation.
The Court also observed that since the gift deed is not conditional as per S.23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 it is not revocable. Same held in Sudesh Chhikara vs Ramti Devi[23]
Further increasing the powers of the Tribunals under the MWPSC Act, 2007 it was held in the case of Mr. Dattatrey Shivaji Mane v. Mrs. Lilabai Shivaji Mane and Ors.[24] that the tribunal has jurisdiction to pass an order of eviction under Section 4 of the Act in order to safeguard the rights of the elderly.
The Hon’ble Supreme Court in the case of Ashwini Kumar vs Union of India[25] provided various guidelines thereby elucidating on the relevance of the MWPSC Act, 2007:
Direction to Government of India to collect and collate data regarding old age homes as well as information on medical facilities and geriatric care from all the States and Union Territories and file Status Report accordingly.
Direction to publicize the provisions of MWPSC Act, 2007 in order to spread awareness and destigmatize the issues related to the older persons.
Conclusion
The elderly population represents a valuable segment of society and they deserve care, respect, and due support during their advanced age. Recognizing their significance and addressing their elderly needs, many countries have implemented legislation aimed at safeguarding the welfare and maintenance of senior citizens.
The MWPSC Act, 2007’s establishment of Maintenance Tribunals enhances the accountability of institutions and individuals responsible for upholding the rights of senior citizens. It provides a platform for resolving disputes and grievances promptly, ensuring justice and protection for the elderly. The act serves as a powerful statement about the societal values and responsibilities towards the elderly. It recognizes the wisdom, experience, and contributions of senior citizens, fostering a culture of respect and appreciation for their role in society.
The proportion of elderly population (60+ years) was 8.4% of the total population as per Census 2011 but the same is expected to increase to 14.9% by 2036.[26] This emphasises the importance of the legislative framework to protect the interests of this marginalized section of the society.
This emphasizes the importance of familial responsibility and effective mechanisms for grievance redressal. As societies age, it is crucial to continue implementing and strengthening such laws to uphold the rights and well-being of senior citizens worldwide.
[1] ACT NO. 56 OF 2007
[2] Section 2(h) of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007
[3] Section 2(g) of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007
[4] Section 4 of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007
[5] Section 5(b) of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007
[6] Section 23(3) of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007
[7] Section 7 of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007
[8] Section 15 of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007
[9] Section 16 of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007
[10] Section 20 of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007
[11] Section 19 of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007
[12] Section 23 of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007
[13] Section 24 of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007
[14] Section 30 of the Advocates Act, 1961.
[15] CRWP 1357 of 2019
[16] WP(C) 6592/2018
[17] A No. 483 of 2021
[18] AIR 2014 P&H 121
[19] W.P.(C) 4725/2021 & CM APPLs. 14574-75/2021
[20] WP(C).No.21946 OF 2011(S)
[21] 2019 SCC Online Ker 5363
[22] 2018 SCC OnLine Cal 616
[23] 2022 SCC Online SC 1684
[24] 2018 SCC Online Bom 2246
[25] WRIT PETITION (CIVIL) NO. 738 OF 2016
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