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The Maintenance and Welfare of Parents and Senior Citizens Bill, 2007 - Legislative Brief [2007] INPRSLS 2 (20 March 2007)

Legislative Brief

The Maintenance and Welfare of Parents and Senior Citizens Bill, 2007

The Bill was introduced in the Lok Sabha on March 20, 2007.

The Bill has been referred to the Department-related Parliamentary Standing Committee on Social Justice and Empowerment (Chairperson: Smt. Sumitra Mahajan).

Highlights of the Bill

• The Maintenance and Welfare of Parents and Senior Citizens Bill, 2007 seeks to make it a legal obligation for children and heirs to provide maintenance to senior citizens. It also permits state governments to establish old age homes in every district.

• Senior citizens who are unable to maintain themselves shall have the right to apply to a maintenance tribunal seeking a monthly allowance from their children or heirs.

• State governments may set up maintenance tribunals in every sub-division to decide the level of maintenance. Appellate tribunals may be established at the district level.

• State governments shall set the maximum monthly maintenance allowance. The Bill caps the maximum monthly allowance at Rs 10,000 per month.

• Punishment for not paying the required monthly allowance shall be Rs 5,000 or up to three months imprisonment or both.

Key Issues and Analysis

• It is unclear whether the creation of maintenance tribunals will ensure financial independence for senior citizens, or whether parents will likely take their children to court to obtain a maintenance allowance from them.

• The definition of senior citizen includes both Indian citizens aged over 60 years, and all parents irrespective of age. Also, the Bill does not address the needs of senior citizens who do not have children or property.

• Relatives are obliged to provide maintenance to childless senior citizens. The Bill defines “relative” as someone who is in possession of or would inherit a senior citizen’s property. As wills are changeable, it is unclear how one would determine who would inherit the property after death.

• Only parents may appeal against the decision of the maintenance tribunal. Neither childless senior citizens nor children are permitted to appeal.

• State governments may establish old age homes and prescribe standards for services provided by them. However, the Bill does not require them to do so.

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Priya Narayan Parker

priya@prsindia.org

June 20, 2007

PRS Legislative Research  Centre for Policy Research  Dharma Marg  Chanakyapuri  New Delhi – 110021

Tel: (011) 2611 5273-76, Fax: 2687 2746

PART A: HIGHLIGHTS OF THE BILL¹

Context

India’s success in increasing life expectancy has led to a larger number of the elderly in the country. The Registrar General of India forecasts the share of older persons (age 60 years and above) in the total population to rise from 6.9% in 2001 to 12.4% in 2026.² Issues related to the financial and social security of older people will become increasingly important. Indeed, the National Policy on Older Persons states, “Some areas of concern in the situations of older persons will also emerge, signs of which are already evident, resulting in pressures and fissures in living arrangements for older persons.”³

The Maintenance and Welfare of Parents and Senior Citizens Bill, 2007 seeks to make it a legal obligation for children and heirs to provide sufficient maintenance to senior citizens, and proposes to make provisions for state governments to establish old age homes in every district.

Key Features

Care of Elderly—Application for Maintenance

• The Bill places an obligation on children and relatives to maintain a senior citizen (anyone above the age of 60 years) or a parent to the extent that they can live a “normal life.” This obligation applies to all Indian citizens, including those residing abroad.

• A senior citizen who is unable to maintain himself based on his own earnings or property shall have the right to apply to a maintenance tribunal for a monthly allowance from their child or relative. If he is incapable of filing the application on his own, he may authorise any other person or registered voluntary association to apply on his behalf. The maintenance tribunal may also, on its own, initiate the process for maintenance.

• The Bill defines “children” as sons, daughters, grandsons and granddaughters and “relative” as any legal heir of a childless senior citizen who is in possession of or would inherit his property upon death. Minors are excluded from both definitions. “Parents” include biological, adoptive or step parents.

• In cases in which more than one relative will inherit the property of a senior citizen, each relative will be responsible to pay the maintenance fee in proportion to the property they will inherit.

Maintenance Tribunals

• The state government may establish one or more maintenance tribunals per sub-division to decide upon the order for maintenance. The tribunal will be presided over by an officer not below the rank of sub-divisional officer. The tribunal shall have all the powers of a civil court. No civil court shall have jurisdiction in respect of any matter dealing with any provisions of this Bill.

• If the tribunal is satisfied that the senior citizen is unable to take care of himself and that there is neglect or refusal of maintenance on the part of the children or relative, it may order children or relatives to give a monthly maintenance allowance to the senior citizen. The maximum maintenance allowance shall be prescribed by the state government, and shall not exceed Rs 10,000 per month.

• Before hearing an application, the tribunal may refer the case to a conciliation officer to reach amicable settlement within one month. If such agreement is reached, the tribunal may pass that order.

• The tribunal may order children or relative to make a monthly allowance as interim maintenance while the application is pending. The application shall, as far as possible, be disposed of within 90 days.

• The maintenance allowance shall be payable from either the date of the order or the application, to be deposited within 30 days of the order. A simple interest payment between 5% and 18% on the monthly allowance from the date of the application may also be required.

• The tribunal may alter the allowance for maintenance on proof of misrepresentation or mistake of fact or a change in the circumstance of the senior citizen or parent receiving the monthly payment.

• Any maintenance order made by the tribunal shall have the same force as an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (CrPC), which also provides for maintenance of senior citizens. If a senior citizen is entitled for maintenance under both Acts, he can claim maintenance under only one Act.

Appellate Tribunals

• The State Government may establish one appellate tribunal per district to be presided over by an officer not below the rank of District Magistrate. The appellate tribunal shall try to pronounce its order in writing within one month of the appeal.

Offences and Penalties

• On failure to comply with the maintenance fee, the tribunal may issue a warrant for collection within three months of the due date. Should the fee remain unpaid, the accused may be imprisoned for up to one month or until payment, whichever is earlier.

• Punishment for abandoning a senior citizen shall include an imprisonment of up to three months or fine of up to Rs 5,000, or both.

• The tribunal can declare a transfer of property (as gift or otherwise) from a senior citizen to a transferee as void if the transfer was made under the condition of maintenance, and the transferee neglects the agreement. A registered voluntary organization may take action on behalf of the senior citizen if he or she is unable to enforce these rights.

Representation in Tribunals

• A party before a maintenance or appellate tribunal shall not be represented by a legal practitioner. A senior citizen may choose to be represented by the maintenance officer (a district social welfare officer).

Other Provisions for Elderly Care

• The state government may establish and maintain at least one old age home per district with a minimum capacity of 150 senior citizens per home. The state government may also prescribe a scheme for the management of such homes. The scheme shall specify standards and services to be provided including those required for medical care and entertainment of residents of these old age homes.

• The state government shall ensure that government hospitals and those funded by the government provide beds for all senior citizens as far as possible. It shall ensure separate queues for senior citizens, expand facilities for treatment of diseases and expand research for chronic elderly diseases and aging. Every district hospital shall also earmark facilities for geriatric patients.

• The state government is responsible for publicizing the provisions, as well as ensuring that government officers undergo periodic sensitizations and awareness training on issues relating to the Bill. The district magistrate shall be responsible for implementing the provisions of the Bill.

PART B: KEY ISSUES AND ANALYSIS

Old Age Security

The purpose of the Bill is to secure financial stability for parents who are unable to maintain themselves. The Constitution through its Directive Principles directs the State, not private citizens, to make effective provision for maintenance of senior citizens. Two Acts—the Code of Criminal Procedure, 1973, and the Hindu Adoption and Maintenance Act, 1956—currently mandate the care of parents by their children if they are unable to take care of themselves. In this Bill too, the onus has been placed on children and relatives of senior citizens. Additionally, while the Bill allows state governments to establish old age homes, it does not make it mandatory. Also, this Bill does not address the needs of senior citizens who do not have either children or property.

Table 1: Laws Regarding Maintenance and Care of Senior Citizens and Parents

Sources: Constitution of India; Respective Acts; PRS.

The state of Himachal Pradesh enacted a similar law in 2001. That law, the Himachal Pradesh Maintenance of Parents and Dependents Act, 2001, requires adequate maintenance for parents and dependents who are unable to take care of themselves.

Table 2: Comparison with the Himachal Pradesh Act

Sources: Respective Act and Bill.

assistance amounts to Rs 200 per month⁷ and state government pensions range from Rs 75 per month in Andhra Pradesh to Rs 400 per month in West Bengal.⁸

International Comparison

Some other countries have enacted laws related to the protection and security of the elderly. Sri Lanka and China require children to take care of their elderly parents, and the State to take care of childless senior citizens.

Table 3: Laws in Some Countries Regarding Elder Care

Sources: Respective Acts; PRS.

In India, existing schemes for old age pension include the Employees’ Provident Fund and the New Pension Scheme, which cover roughly 13% of the working population (10% as government servants and 3% from the formal private sector). In addition, the National Old Age Pension Scheme provides for destitute persons of 65 years and above.⁹ Table 4 summarises the schemes for providing for old age security and financial independence in some countries.

Table 4: Government Schemes for Old Age Pension and Social Security in Some Countries

Sources: See endnote ¹⁰ for Malaysia, ¹¹ for Singapore, ¹² for United States, and ¹³ for United Kingdom.

Tribunal Procedure

Constitution of Tribunal

The Bill states that state governments may establish one or more maintenance tribunals for each sub-division. It does not make this mandatory.

Right to Legal Representation and Appeal

The Bill specifically states that no party to a tribunal or appellate tribunal can be represented by a legal practitioner. However, a parent (though not a childless senior citizen) may be represented by a maintenance officer designated by the state government. It is not clear why the parties are denied the right to defend their interests with the help of qualified legal practitioners, and whether this is against the principle of natural justice.

While the Bill permits states to establish one appellate tribunal per district, the Bill grants only parents the right to appeal. There is no facility for appeal available to childless senior citizens, children or relatives.

Declaring Transfer of Property Void

The Bill states that a tribunal can declare a transfer of property to be void if it was made “by way of gift or otherwise” with the condition that the transferee would maintain the transferer and has not done so. Under the Gift Tax Act, 1958, a gift is unconditional – therefore such a transfer cannot be termed a gift. Alternatively, if the property is given under condition to maintain the transferer, and the transferee does not adhere to these conditions, then it would be breach of contract under The Indian Contracts Act, 1872, making this provision redundant.

Provision for Old Age Homes

Financial Considerations

The Financial Memorandum states that since the existing government machinery is proposed to be utilised, there would be no additional expenditure. Any expenditure on establishing old age homes would be borne by state governments. The Financial Memorandum does not estimate this expenditure.

Definitions

Senior Citizen

The Bill defines “senior citizen” as (a) Indian citizens 60 years of age or older and (b) all parents with children above the age of 18 years. For example, the provisions of this Bill would be applicable to even a 40-year-old parent of a 20-year-old person. This definition differs from that in the National Policy on Older People, which sets the age at 60 years or older.

Parent and Child

The Bill defines “parent” as a biological, adoptive or step mother or father. It defines “children” as sons, daughters, grandsons and granddaughters. These two definitions do not mirror each other.

Relative

The Bill defines “relative” as someone who is in possession of or would inherit a senior citizen’s property after death. As wills are changeable, it is unclear how one would determine who would inherit the property after death, and therefore who would be obliged to maintain the senior citizen.

Normal Life

The Bill states that the obligation of the children or relative to maintain a senior citizen extends to the needs of the senior citizen so that they may lead a “normal life.” The Bill does not define what consists of a “normal life.”

Organisation

The Bill clarifies that an “organisation” that may file an application for maintenance on behalf of a senior citizen means “any voluntary organisation registered under the Societies Registration Act, 1860, or any other law for the time being in force”. However, the Societies Registration Act does not define “voluntary organisation”.