No Country for Old Men – Maintenance for Parents and Senior Citizens
The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (the "MWPSCA") is a law that requires urgent review. It has two key elements – substantive rights (i.e. it provides rights to aged parents and senior citizens) and specific procedures (i.e. it intends to reduce the burden of legal compliances in order to exercise these rights). The statute provides for a special Maintenance Tribunal for the purpose of deciding cases concerning the welfare of the elderly.
There appears to be an inconsistency in the policy basis of this legislation . The right of an elderly citizen to maintenance can be found in other laws (notably Section 125 of the Code of Criminal Procedure, 1973). Is the MWPSCA then merely intended to introduce a faster mechanism to claim maintenance? Or is it a stand-alone legislation, under which cases must be decided according to regular procedure applicable to civil (or criminal) or litigation?
A lack of clarity regarding the purpose of the MWPSCA will result in unpredictable outcome for adults or their aged parents in a case instituted under the legislation. Consider a 2014 judgment rendered by the High Court of Karnataka in H.S. Subramanya v. HS Lakshmi [1]. The dispute in this case was whether a Maintenance Tribunal was correct in ordering that the sons of a widow above the age of 80 years should pay her Rs.3,000 per month. Hon’ble Justice Nazeer was of the opinion that the MWPSCA was primarily intended to provide a simple, inexpensive and speedy remedy for parents and senior citizens to obtain necessary sustenance. His emphasis was that the Maintenance Tribunal had the discretion to adopt a “summary” procedure. [2] It is for that reason that the Tribunal had discretion not to direct evidence to establish an obligation to pay maintenance, as would otherwise be the case in an ordinary trial. The Hon’ble Justice further noted that the MWPSCA was not intended to punish those who neglected their obligation to maintain their aged parents [3]. This is contrary to provisions of the MWPSCA that provide for criminal sanctions in case of neglect of aged parents [4].
This approach is different from the one taken by the High Court of Kerala in Abilash V.S. and Ors. v. Sarasan and Ors, [5] . Here, a senior citizen settled his property in favour of his son. Relations between the two became strained, and the father filed a maintenance petition. The Tribunal awarded a monthly payment of Rs.3,000 to the father and ordered that the settlement deed be set aside in light of Section 23 of the MWPSCA. The High Court of Kerala found that the order setting aside this settlement deed had not taken proper evidence. Even though Section 6(4) of the MWPSCA allows a Maintenance Tribunal to take a case ex-parte if it is satisfied that the children/relative are wilfully avoiding proceedings, it requires that all evidence be taken [6]. There was no proper material before the Tribunal to adjudicate on both a claim of maintenance as well as setting aside a transfer of property. The son had not been given a reasonable opportunity of being heard. The decision was therefore remanded to the Maintenance Tribunal. To reiterate the issue - Is the MWPSCA is primarily meant to overcome a lengthy procedure in order to give immediate relief to the elderly? Or is it meant to give separate recognition to the rights of elderly, which means that judicial proceedings are still subject to established principles of law such as the principle of natural justice? Clearly, there is no judicial consensus on whether the Act seeks to achieve one or both of the objectives.
As far as public policy is concerned, there is no clear legislative vision as to how public resources should be applied to elderly welfare. Law-makers have introduced numerous bills in an attempt to create more old-age care homes or posts for social care workers with more responsibilities [7]. But public resources are not limitless. The administration must make a choice as regards its expenditures in this area – should adults who are neglecting their parents be punished? Should jobs be created to care for the elderly in government-run old age homes? Or should the elderly be provided a fast-track court mechanism in order to enforce their rights to maintenance? These choices must be evaluated carefully in order to enable the elderly to lead autonomous and independent lives.
Note 1 – ILR 2014 KARNATAKA 4978.
Note 2 – Section 8(1) of the MWPSCA simply provides for a ‘summary’ procedure. It reads: (1) In holding any inquiry under section 5, the Tribunal may, subject to any rules that may be prescribed by the State Government in this behalf, follow such summary procedure as it deems fit.There is no definition of a summary procedure.
Note 3 – at Para 14 of the judgment.
Note 4 – Chapter VI of the MWPSCA.
Note 5 – MANU/KE/0102/2015.
Note 6 – Section 6(4) reads: All evidence to such proceedings shall be taken in the presence of the children or relative against whom an order for payment of maintenance is proposed to be made, and shall be recorded in the manner prescribed for summons cases: Provided that if the Tribunal is satisfied that the children or relative against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Tribunal, the Tribunal may proceed to hear and determine the case ex-parte.
Note 7 – See:
- Clause 2, Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2017 (Bill No.254 of 2017): proposes to introduce National Commission for Senior Citizens).
- Clause 2, Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2018 (Bill No. 129 of 2018): proposes to introduce a digital database of senior citizens living alone and senior citizen centres that are responsible for making sure these citizens do not feel lonely.
- Clause 4 and 6 of the Maintenance and Welfare of Parents and Senior Citizens (Amendment) Draft Bill, 2018 (available at http://socialjustice.nic.in/writereaddata/UploadFile/MWPSC%20Act,%202018l636580082691025377.pdf, last accessed 03.01.2019): proposes to introduce a ‘Multi-service day care centre for senior citizens’, 'senior citizen care home' and 'Conciliation Officer'.