Abstract
An effective law acts as a bridge between the past and the future, which mends the errors of yesterday while paving the way for a better tomorrow. As John F Kennedy rightly said, “Change is the law of life. And those who look only to the past or present are certain to miss the future.” This precisely applies to the landmark legislation of the Maintenance and Welfare of Parents and Senior Citizens Act (MWPSC Act), 2007, which was enacted by the Ministry of Social Justice and Empowerment to protect the well-being of senior citizens and ensure their rights to maintenance within the purview of the law. Serving its purpose for over a decade now, the MWPSC Act was instrumental in plugging the leaks of earlier maintenance laws given in The Code of Criminal Procedure, 1973, and various personal laws while simultaneously laying down the foundation for future legal enactments pertaining to maintenance for senior citizens in India, which this paper closely examines. This paper also focuses on two enactments that followed the MWPSC Act to determine the magnitude and uniformity of its implementation in the country. Lastly, the paper discusses certain loopholes in the Act while offering suggestions to better it toactualizeits vision of an egalitarian Indian society.
Introduction and Background
Apart from having one of the largest youth populations in the world[1], India is home to a considerable elderly population of adults above 60 years comprising nearly 104 million people, which is 8.6% of the total population[2]. Along with traditional Indian society being founded on the principles of “Matru Devo Bhava, Pitru Devo Bhava[3]”, other factors such as increased life expectancy, better healthcare facilities, and assistance for senior citizens[4] have led to substantial growth in the elderly population of the country. However, old age comes with its own set of problems, which contemporarily include increased instances of neglect, violence, abuse, and abandonment of parents and senior citizens by their kin[5]whom they are dependent on for sustenance. This largely stems from self-centred youth who view maintaining their kith as a “burden”, leading to a decline in joint families and the rise of nuclear families in Indian society[6]. Moreover, while certain personal laws have existed since time immemorial for parents to exercise their right to maintenance[7], they have remained largely obsolete and inefficient. Finally, there has been no comprehensive legal framework to address the needs and requirements of senior citizens while existing laws have been ambiguous and limited in scope.
Against this backdrop, to protect the welfare, maintenance, and overall physical and mental well-being of elderly citizens, the Maintenance and Welfare of Parents and Senior Citizens Act[8] (MWPSCAct) was passed in 2007 by the Ministry of Social Justice and Empowerment comprising 7 Chapters and 32 Sections. The Act is an important piece of legislation formulated to cover gaps and ensure uniformity in the various existing personal laws in terms of the maintenance rights of parents while serving as a standardized legal framework for senior citizens and protecting their rights under Article 41 of the Indian Constitution[9]. The act also inspired several other legislations and social welfare schemes for senior citizens. This paper aims to examine how the MWPSCA has filled in gaps in the various personal laws and statutes of the past while being instrumental in setting the base for future legal enactments for maintenance alongside analyzing its merits and shortcomings. The paper will also compare and analyze two enactments that have arisen from the MWPSC Act to conclude whether it has been successful in its implementation of an egalitarian society.
Cracks in Maintenance Rights in Existing Legislature and Personal Laws
An all-pervasive maintenance law that applies to all faiths is found in Section 125 (1)(d) of The Code of Criminal Procedure[10] (CrPC), 1973, under which a magistrate can order monthly allowance to be paid by an individual to his/her fatheror mother “who is unable to maintain himself or herself[11].” While the Section applies uniformly and no conflict of law exists between the Code and personal laws, the scope is limited as it applies to only parents,[12] and the meaning of “unable to maintain themselves” is unclear. Moreover, the procedure of a maintenance suit under the Section is time-consuming and expensive[13].
In a country of diverse faiths such as India, various personal laws govern their respective religious affairs. However, about the maintenance of elders, a grey area exists in the application of personal laws in terms of their uniformity and scope. Under Section 20 of the Hindu Adoption and Maintenance Act, 1956[14], a Hindu male or female has a duty of maintenance only towards their aged or infirm parents (including childless stepmother) if they are unable to maintain themselves[15]. Under Muslim law, maintenance is under the concept of Nafqah[16], which imposes a responsibility on the husband to maintain his parents and provide them with food, clothing, and lodging only when they have no basic sustenance. Further, under Sharia law, the maintenance of parents is an obligation imposed on the parties, only if they have no means of sustenance or the only means of livelihood is begging[17]. Therefore, Hindu and Muslim personal laws provide for the right of maintenance to only parents and only in ‘extreme’ cases of poverty. Further, the use of ambiguous language does not specify any fixed maintenance or state when an individual is considered to have no means of maintaining themselves. Under Christian and Parsi laws, parents do not have a right to maintenance[18] and have to exercise their right under Section 125 (1)(d) of the CrPC[19].
Due to these pitfalls and variations in the enactments, the elderly and senior citizens are especially vulnerable to cruelty and mistreatment, thus creating an urgent need for a new law to address the gaps and bring about necessary changes.
Important Provisions: Plugging the Leaks
One of the key provisions of the Act was the widening of its scope in maintenance rights to parents and senior citizens, including grandparents, defined as persons above the age of 60 years in Section 2 (h)[20].In the landmark case of Ramesh v. Ishwar Devi and Ors[21], the Court held that the purpose of the Act was to be a lifeline to uphold the dignity and respect of a senior citizen. Moreover, even childless senior citizens could collect maintenance from their relatives as defined in 2 (g)[22]. The Act also laid down the meaning of the “needs” of senior citizens in Section 4 (2)[23] to the standard of being able to live a normal life whereas previously there was no fixed definition of what constituted “basic sustenance.” Senior citizens and parents could exercise their right to maintenance if they could not maintain themselves from their earnings and property under Section 4 (1)[24] and their children or relatives refused or neglected maintenance underSection 9 (1)[25], thus defining the meaning of being “unable to maintain themselves.” Further, Section 2 (b)[26] defined maintenance to include food, clothing, residence, medical assistance, and treatment while Section 9 (2)[27] stipulated an amount of Rs. 10,000 to be the maximum maintenance payable to senior citizens. Finally, the Act also established special Maintenance Tribunals under Section 7[28] and laid down punitive punishment for the “abandonment of senior citizens” in Section 24[29], thus ensuring efficient application of the Act and justice to the aged.
Paving the Way for the Future
The MWPSC Act has ushered in the framing of new senior citizen enactments about maintenance rights in our country, both at the state and national levels. One such legal policy is The National Policy of Senior Citizens 2011[30], which targets mainstream senior citizens, including older women, and extends even to those above the age of 80 years owing to changing demographics. The policy explicitly refers to the MWPSC Act in its “Focus”, wherein it urges states to set up Maintenance Tribunals and implement the principles of the Act to ensure an “age-integrated society”.
Additionally, the Act is being implemented by States and Union Territories in stages by passing their own promulgated State Rules[31]. While most states have enacted their respective Rules based on the Act, some, like Himachal Pradesh have not and the law remains substantially variable.
Examining Variation in the State Rules
In 2009, the states of Kerala and Gujarat passed the Kerala Rules[32] and Gujarat Rules[33] respectively. While the year of enactment remains the same in both states, there are notable differences. Firstly, the Kerala Rules is a more detailed and comprehensive framework containing 22 Sections and appended Maintenance Forms A to J whereas the Gujarat Rules contain only 10 Sections with only a single appended Maintenance Form – I. Another difference is the quantum of maintenance, where in the Kerala Rules, Section 14[34] prescribes maximum maintenance of Rs. 10,000 per month whereas Section 5[35] of the Gujarat Rules sets a current rate of Rs. 5,000 per month for maintenance allowance. In pursuance of Section 6 (5)[36] of the MWPSC Act, Section 4 (3)[37] of the Gujarat Rules deals with the issuance of summons to relatives and children residing outside India; however, such a clause is absent in the Kerala Rules. Finally, the magnitude of implementation in the respective States is reflected in the social awareness levels of the elderly towards the provisions of the MWPSC Act, with Kerala[38] being at 19.4% and Gujarat being at only 12.4%[39].
Scope for Improvement
While the MWPSC Act has added to the legal jurisprudence of the country by acting as a connecting link between the existing legal framework of statutes and personal laws and the State rules that followed it, there remain some lacunae that need to be addressed. One of the key benefits of the Act was that it was able to bring about uniformity in the maintenance rights of senior citizens irrespective of their faiths and acted as a blanket legislation for the entire country. However, with each state passing its own Maintenance Rules in pursuance of the Act, the uniformity of the contents and implementation of the Act is somewhat a grey area again. Per the analysis of Kerala and Gujarat, it is evident that Kerala has been better in implementing the principles of the Act with a more detailed and beneficial framework. Meanwhile, Himachal Pradesh still follows The Himachal Pradesh Maintenance of Parents And Dependants Act, 2001[40] which applies only to parents and dependants (only grandparents), without specifying any age of seniority. Therefore, there is a need to ensure that the Act is evenly applied throughout the country while increasing social awareness among the elderly on the right to maintenance.
While the Act has made great strides in penning fixed definitions of terms not properly defined in previous enactments, its language is considerably rigid and narrow[41]. For example, the definition of maintenance in Section 2 (b) is very basic and does not address safety, security, or any resources needed for a peaceful life. Another example is that the Act does not explicitly deal with “unmarried senior citizens”,“children” in Section 2 (a)[42] does not include daughters-in-law and sons-in-law, and grandparents and parents-in-law are excluded from the definition of“parent” in Section 2(d)[43]. Finally, owing to the language of the Act and its implementation being dependent on bureaucracy, there are considerable delays in maintenance cases, the opening of shelter homes, and ultimately, an endless postponement of justice.
Suggestions
For the effective implementation of any law, awareness is a prerequisite. Considering the extremely low levels of awareness about the Act and its provisions, the state governments should undertake more social awareness programs and schemes for senior citizens to exercise their rights[44]. In terms of the irregularity and variation in implementation, state governments must submit monthly or annual reports on the maintenance cases dealt with while assessing areas of improvement so that all states can operate on an equal footing. The language of the Actmustalso be modified through Amendments[45] to include wider definitionsand to increase the amount of maintenance allowance so that the target audience can get easier access to remedies.
Conclusion: Is the MWPSC Act a success?
The MWPSC Act is a watershed moment in the legal jurisprudence of our country and is a law in time as it has repaired enactments of the past while founding enactments for the future. The Act has been crucial in bringing the maintenance rights of senior citizens to the forefront and making considerable progress from the previous archaic maintenance laws. Since its enactment nearly a decade ago, the Act has been serving the elderly and needy, with states undertaking active participation. While it has achieved significant success in attempting to bring about an egalitarian society, theAct still suffers from a lack of proper implementation and loopholes in its language, which can derail the tracks of justice for the elderly.Therefore, reforms are the need of the hour to make the prospect of an egalitarian society a universal reality.
[1] UNFPA, ‘Adolescents and Youth’<https://india.unfpa.org/en/topics/adolescents-and-youth-8#:~:text=India%20has%20its%20largest%20ever,in%20the%20world%20till%202030.> accessed 29 October 2023
[2] WHO, ‘Ageing and health’ (WHO INT) <https://www.who.int/india/health-topics/ageing> accessed 29 October 2023
[3] JusticeMittal, Thirteenth Report Of VII State Law Commission On Protection And Eviction From Property Of Senior Citizens (UPSLC, 2020), ch.1. pg. 4
[4]Agewell Research & Advocacy Centre, Changing Needs Of Old People In India With Special Focus On Current Old Age Care & Support Scenario (2021), pg. 7
[5] Bharatand Venumadhava, ‘Elder Abuse And Neglect’ (2019) 8 (7) IJSR<https://www.researchgate.net/publication/371608571_Elder_Abuse_and_Neglect> accessed 29 October 2023
[6] ibid
[7] Keshari, ‘A Study On The Right To Maintenance Under CRPC Versus The Right To Maintenance Under Personal Laws’ (2022) IV (II) IJLLR<https://www.ijllr.com/post/a-study-on-the-right-to-maintenance-under-crpc-versus-the-right-to-maintenance-under-personal-laws> accessed 29 October 2023
[8]Maintenance and Welfare of Parents and Senior Citizens Act 2007 (MWPSC Act), hereon “the Act”
[9] Indian Constitution, art. 41.
[10] The Code of Criminal Procedure 1973 (CrPC)
[11]Crpc 1973, s 125 (1)(d).
[12] Dr. Menon and Dr. Chiney, ‘Critical Evaluation of Maintenance and Welfare of Parents and Senior Citizens Act, 2007’ (2023) II (II) IJLLR<https://www.researchgate.net/publication/374812920_CRITICAL_EVALUATION_OF_-MAINTENANCE_AND_WELFARE_OF_PARENTS_AND_SENIOR_CITIZENS_ACT_2007_Introduction> accessed 29 October 2023
[13] The Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2019
[14] Hindu Adoption and Maintenance Act 1956 (HAMA 1956)
[15] HAMA 1956, s 20.
[16]Mohd. Alam, ‘Maintenance of Muslim Women in Comparison to other Personal and Secular laws in India’ (2022) 6 (3) JPSP, pg. 9857 <file:///C:/Users/User/Downloads/tabrej+sir.pdf> accessed 29 October 2023
[17] Prof. Wadje, ‘Maintenance Right of Muslim Wife: Perspective, Issues & Need for Reformation’ (2013) SSRN, pg. 2 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1266018#:~:text=up%20to%20the%20period%20of,after%20the%20period%20of%20Iddat.> accessed 29 October 2023
[18] Shah, ‘Comparative study of Laws of Maintenance in Hindu, Muslim, Christian and Parsi Personal Laws in India’ (goforthelaw) <http://www.goforthelaw.com/articles/fromlawstu/article65.htm> accessed 29 October 2023
[19] Reddy and Reddy Law Firm, ‘Provisions Related To Rights And Benefits Of Senior Citizens In India’ (RAR) <https://www.reddyandreddy.org/provisions-related-to-rights-and-benefits-of-senior-citizens-in-india/> accessed 29 October 2023
[20] MWPSC Act, s 2 (h).
[21] Ramesh v. Ishwar Devi and Ors (2021) 4 ICC 576
[22] MWPSC Act, s 2 (g).
[23] MWPSC Act, s 4 (2).
[24] MWPSC Act, s 4 (1).
[25] MWPSC Act, s 9 (1).
[26] MWPSC Act, s 2 (b).
[27] MWPSC Act, s 9 (2).
[28] MWPSC Act, s 7.
[29] MWPSC Act, s 24.
[30] National Policy of Senior Citizens 2011
[31] ibid pg. 1
[32] The Kerala Maintenance and Welfare of Parents and Senior Citizens Rules 2009
[33]The Gujarat Maintenance and Welfare of Parents and Senior Citizens Rules 2009
[34] Kerala Rules, s 14.
[35] Gujarat Rules, s 5.
[36] MWPSC Act, s 6 (5).
[37] Gujarat Rules, s 4 (3).
[38] Social Justice Department, ‘Implementation of Maintenance and Welfare of Parents and Senior Citizens Act 2007’ (GOV. OF KER.) <https://sjd.kerala.gov.in/scheme-info.php?scheme_id=MTYyc1Y4dXFSI3Z5> accessed 29 October 2023
[39]IIFPS & UNPF, ‘India Ageing Report 2023 Caring for Our Elders: Institutional Responses’ (UNPF, ND, 2023)
[40] The Himachal Pradesh Maintenance of Parents and Dependants Act2001
[41] Banerjee, ‘A Critical Analysis of The MWPSC Act in Light of The 2019 Bill And Other Decided Cases’ (2020) VI (I) NUJS <https://www.nujs.edu/wp-content/uploads/2022/12/File-102.pdf> accessed 29 October 2023
[42] MWPSC Act, s 2 (a).
[43] MWPSC Act, s 2 (d).
[44] Raj and Galhotra, ‘The Maintenance and Welfare of Parents and Senior Citizens Act, 2007- Helping the conditions of the elderly in India’ (2019) 5 (2) IJCFM<https://www.researchgate.net/publication/338045292_The_Maintenance_and_Welfare_of_Parents_and_Senior_Citizens_Act_2007-_Helping_the_conditions_of_the_elderly_in_India> accessed 29 October 2023
[45]ad. 33