This article is written by Vishnupriya Chembayil, pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho. The article has been edited by Aatima Bhatia (Associate, LawSikho) and Dipshi Swara (Senior Associate, LawSikho).
“To care for those who once cared for us is one of the highest honors.” ~ Tia Walker
Table of Contents
Introduction
Old age is a very crucial part of life as this is ideally considered to be the stage where one can finally sit back and relax. However, ageing comes with its own share of issues that tend to make people extremely vulnerable. In fact, it is said that old age is like a second childhood and the elderly wish to be cared for that way. But, in today’s world, not just more and more people are disregarding these basic expectations of the older generation, but also, the worst part is that they are often subjected to abuse and harassment.
As per the World Health Organisation (WHO), ‘elder abuse’ includes abuse that may be physical, sexual, emotional or financial. Any form of abandonment or neglect also amounts to abuse. Here, neglect does not mean an innocent mistake, rather it includes cases as severe as a failure on part of the caregiver to provide the dependent elder with basic necessities like food, shelter, clothing or health care. This is where the important role of legal provisions come into the picture to protect the elderly. The present article throws light on these legal provisions.
Indian scenario
Indian culture is value-oriented with much emphasis placed on the institution of family and particularly joint family system; while respecting and supporting elders lies at its core. With such a background, the topic of elder abuse is still taboo and often overlooked in our society. In fact, it is simply considered to be a western problem. However, the harsh reality of our society presents a different picture.
According to a recent study conducted by the Agewell Foundation, during the COVID-19 pandemic, around 73% of the country’s elders reported that ill-treatment towards them had increased.
It was found that people used to harass and abuse their parents because of the stress during the entire lockdown situation. Reports like this force one to think if humans have stooped so low that to them, their aged parents or family members are merely means to vent out their frustration. Unfortunately, most of these cases are not even reported as elders are neither willing nor able to report them, and the abusers walk freely.
Legal provisions
The major legal provisions introduced in this regard are-
Maintenance And Welfare of Parents and Senior Citizens Act, 2007
It was only after the enactment of this act that a dedicated legislation for the protection of senior citizens was brought into force in India. Under this act, children, grandchildren as well as close relatives in certain cases are under an obligation to provide for maintenance to their parents and grandparents so as to ensure that they are able to lead a normal life. Relatives are obliged in cases where they are either in possession of the property of the senior citizens or are to inherit such property.
According to the Act, a senior citizen can apply to the tribunal established under this Act to claim maintenance if they are not able to provide for themselves. They can make an application against their children, grandchildren or relatives as the case may be, and then the tribunal if satisfied can pass an order of maintenance against them.
Further, this act also aims to protect the property of senior citizens. In case, a senior citizen transfers any property in favour of his children, grandchildren or relatives on this very condition that the transferee will provide maintenance to him, and if the transferee fails to do so then the senior citizen can approach the tribunal for revoking such transfer by declaring it as void on the grounds of fraud, coercion or undue influence.
This act also lays down that if any senior citizen is abandoned by their caregiver, then they will be punishable with imprisonment which may extend to three months or a fine of up to five thousand rupees or both.
Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2019
This Bill was introduced after recommendations were made by several high courts asking the government to review the above-mentioned Act. In the original Act, there is no provision relating to the punishment for abuse of elders and that has been introduced in this bill. Accordingly, those who abuse or abandon their parents may be sentenced to imprisonment for a term of six months or with a fine of rupees ten thousand or both.
The bill also provides that in the case of those above 80 years of age, applications for maintenance and assistance filed by them is to be disposed of within 60 days. While for other senior citizens it is to be within 90 days. Further, the definition of maintenance has also been expanded to include safety and security along with providing the basic necessities like food, shelter, clothing and health care obligations.
The maintenance that could be claimed under the original Act is not to exceed rupees ten thousand, however, according to the amendment, there exists no such upper limit. Moreover, the children or relatives are to pay such ordered maintenance within 15 days and if they don’t then there are provisions given to levy a fine on them. If they further fail to pay the fine then they can also be imprisoned for up to one month or till they pay the said maintenance.
National Policies
Apart from the above-mentioned legislation, there have been certain policies as well which were introduced for the betterment of senior citizens. For example, the National Policy for Older Persons, 1999 was in order to pursue the UN General Assembly Resolution wherein it was decided to observe 1999 as the International Year of Older Persons.
Further, National Policy for Senior Citizens, 2011 tried to bring about positive changes by considering the various factors like the population explosion among the elderly, the changes in the economy and especially the extreme poverty faced by the elderly in the rural areas. It mainly laid down provisions relating to the timely payments like that of pension, provident funds and other benefits so as to support the elderly from facing financial difficulties.
It has been seen that in most of the cases of elderly abuse, the senior citizens were financially dependent on their abusers, which further enabled their abusers in exploiting them. So, it can be said that these policies do not directly protect the senior citizens against abuse or harassment but they do so indirectly by helping them to cope with their financial issues and reducing their dependence on others.
Other Provisions
Apart from the above-mentioned provisions, different personal laws like those of Hindus and Christians also seek to protect the interests of the elderly by laying down provisions related to their maintenance.
In addition to the personal laws, parents can claim maintenance against their children including married daughters under Section 125 of the Criminal Procedure Code, 1908, provided that the children have sufficient means to maintain the parents while the parents can’t maintain themselves.
Provisions have also been made under the Constitution of India for the sake of senior citizens, however, since these are laid down under Directive Principles so are not enforceable in any court of law. But nevertheless, they form the basis of all such legislations brought forth by the state to promote the wellbeing of senior citizens.
How effective are these laws?
In spite of the legal provisions under the personal laws and even Section 125 of the Criminal Procedure Code, the need for a dedicated legislation for senior citizens was strongly felt which then led to the introduction of the Maintenance and Welfare of Parents and Senior Citizens Act in 2007. The Act being the first dedicated legislation did bring a lot of hope regarding the betterment of the condition of senior citizens and in fact, there have been several judgements where the courts have taken a liberal interpretation of the Act to ensure justice is served.
Analysing the case laws
For instance, the Delhi High Court while interpreting the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, in the case of Sunny Paul and Anr. v. State Nct of Delhi and Ors., had considered whether, under the Act, the court can provide only a monetary remedy or can it also issue an order to evict abusive adults from their parent’s property. The court then went to observe the primary objective of the 2007 Act, which is to protect the life of and property of senior citizens. It further held that adults can be evicted from the property of their parents in cases of parental abuse.
While in Shabeen Martin and Ors. vs. Muriel and Ors., the Kerala High Court held that according to the provisions of the 2007 Act, transfer of property by a senior citizen is revocable in case of failure on part of the transferee to provide for the basic needs even if it does not contain such an express provision stating that the transferee will provide for the same.
In Ramesh vs. Ishwar Devi and Ors., the Punjab and Haryana High Court had reiterated that the Act attempts to provide a dignified existence to the elderly and that it acts as a deterrent to cases wherein after receiving the property from their aged parents, the children simply neglect and abandon them.
However, in spite of positive developments like these, the cases of harassment of elders have been rampant in our country and there seems to be no end to it. This is mainly due to the lack of enforceability of these laws. The penal provisions are not stringent enough to create fear in the minds of those abusers. A mere fine of five thousand rupees or imprisonment of three months is neither proportionate to the trauma that the elders have gone through, nor deters the abusers from committing the same again. With such lenient punishments, the enforceability of the above-mentioned acts is watered down.
Scope for further development
In a survey conducted by HelpAge India, it was found that many of the petitioners were either not satisfied with the final decision of the tribunal or did not know how to take action if the decision is not followed by their children. Moreover, the concerned officers simply forward such complaints of non-compliance to the police stations and do not even follow up on the cases. Thus, in spite of having a legal mechanism in place, justice is not delivered in these cases.
Further, the tribunal staff need to be given proper training for sensitively handling the aged complainants, because in many cases, they are rude to the complainants which in turn adds to the woes of the senior citizens. This in turn deters others from filing complaints.
The Act also needs to include social workers into this whole mechanism so that there is one social worker to assist each complainant at all stages of the legal proceedings. Many of the complainants find it emotionally and physically exhausting to deal with the entire legal proceedings all alone so it will be really helpful if they get assistance especially from a social worker.
Also most importantly, an awareness campaign should be conducted at all levels including panchayats. The campaign should ensure that local languages and local mediums are used for this purpose so that the message reaches the masses.
The Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2019 has tried to include some of the much-needed provisions and it needs to be appreciated for that matter. However, it also lacks as far as punishments are concerned and this again waters down its enforceability. Further, the bill has not been approved by the Parliament yet which somewhere does reflect how this issue of senior citizens is not much of a priority for the government.
Conclusion
It can be concluded that the legal framework laid down in our country for the protection of senior citizens is ineffective to a major extent and it needs to be reevaluated. Another grave concern is that a huge part of our population is not even aware of the existing legal provisions due to the low literacy rates. While others who are aware of the legal provisions are reluctant to file a complaint either due to fear of retaliation or so as to not ruin their family’s reputation. Serious efforts need to be taken in this regard to bring about awareness so that this subject is no longer treated as taboo and people are made aware of their legal rights. For this purpose, the government needs to join hands with social organisations to ensure this message reaches even the remotest areas of our country. People need to understand that even if the abusers are their own children, they need to be punished.
While quoting our ancient scriptures, the Chhattisgarh High Court in Uttar Kumar Bhoi vs. Surekha Bhoi, had said, “We Should Respect, Serve And Worship Our Parents”. And to achieve this, value education should be made a compulsory part of the school curriculum and children from a very young age itself need to be sensitized to this whole issue. Harassment and neglect of elders reflect deeper problems rooted in our society and only legal provisions are not enough to tackle this, rather, society as a whole needs to address this issue.
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