INTRODUCTION:
In past 50 yearsthe population of people over 60 years has tripled. According to the estimates of United Nations Department of Economic and Social Affairs this population is projected to reach 158.7 million in 2025.
The demographic trend of the elderly population in India reveals that about two-third of them live in villages. Half of the elderly population are dependents, often due to widowhood, divorce or separation. About 70% are women.
A study conducted by Agewell Foundation has revealed about 73% reported complaint of elder abuse during the Pandemic. In recent past, the old age homes have become a trend which is collateral damage of progressive society because the family system that is traditionally the primary care-giver for children and elderly has changed dynamics. This has exposed the elderly to emotional, physical and financial security. There is an urgent need to develop a model health and social care in tune; however, no such model exists in India, the elderly still depends on general health-care delivery system and their family for basic care and look after. Further, there is no legal framework to monitor working of old age homes that are not run by the state.
This brings us to the questions – What are the legal rights of elderly, what are the challenges in claiming these rights and the possible remedies? The article presents recommendation based on examination of above questions, various government initiatives for elderly, the shortcomings in the implementation.
NATIONAL POLICY:
In 2002, United Nations adopted the Madrid International Plan of Action (MIPAA) on Ageing and the Political Declaration for handling the issues of ageing in the 21st century. The plan is a resource for policymaking suggesting ways for governments, NGOs and other actors regarding the issue. Rights of elderly and elder abuse are the key issues identified by MIPAA
Following these guidelines and Constitutional mandate under Article 41, the government of India enacted the Maintenance and Welfare of Parents and Senior Citizens Act in 2007.
Prior to this, the Ministry of Social Justice and Empowerment adopted a ‘National Policy on Older Persons’ in 1999 as a commitment to UN Convention on the Rights of Persons with Disabilities. The policy provides broad guidelines to the State Government for taking action for welfare of older persons. Under this policy and section 20 of the Senior Citizen Act, the National Program for Health Care for Elderly (NPHCE) was enacted.
Legal Provisions Guarding Rights of Elderly:
Maintenance:
Hindu marriage and adoption act – 1956 (HAMA)
Under Section 20 of the Act, if the Parents cannot maintain themselves, they can claim maintenance from their children, be it son or daughter. A childless step-mother also has right to claim maintenance.
The dependents also have right, under Sections 21 and 22, to maintenance against property of the deceased which is in the hand of heir. However, this right can be claimed only after the person has died and the heir has inherited property. Also, maintenance can only be claimed against the property, not person.
Under CrPC section 125
Under Section 125, biological parents have right to claim maintenance. In case of step-parents, only step-mother can claim this right, but only from step-son and only if she is childless and her husband, if living, cannot maintain her. In case of adoptive parents, the Act is silent on adoptive parents, but in Baban Dagdu v Parvatibai Dagadu Dange Anr, the court ruled that an adoptive mother will be included in the definition of a mother even though the act does not specifically say so.
Ordinarily, this right can be claimed only from son. The scope was expanded to include daughter also in the liability to maintain parents in Vijaya Manohara Arvart v Kashiram Rajaram Sawai. The court said that social obligation cast duty on children to maintain parents, so both liable. This is a step forward for a progressive society. on whether daughter should also maintain parents.
Under Maintenance and Welfare of Senior Citizens Act, 2007
Under Section 5 of the Act, Senior citizen, including parents and grandparents, who is unable to maintain himself from his own earning or property, shall be entitled to claim maintenance. Even childless (senior citizen) couples can claim maintenance from relatives who have inherited property from them. If the property has gone to more than one relative than maintenance will be in proportion of share.
2. Property related Rights:
Under the section 23 of the Senior Citizen Act an added protection to the property of the elderly is added. Where property was gifted out of love and subsequently, the transferee fails to provide basic amenities and basic physical care to the transferor, such a transfer would be voidable at the option of the transferor.
3. Rights and remedies in relation to abuse:
Apart from the IPC provisions, the Senior Citizen Act provides that if any senior citizen is abandoned by the caregiver, then they will be punishable with imprisonment up to 3 months or a fine upto five thousand rupees or both.
JUDICIAL PRONCEMENTS ON ELDERLY ABUSE:
In Shabeen Martin and Ors vs Muriel and Ors, the Kerala High Court upheld the legislative intent of Senior Citizen Act, 2007 and ruled that transfer of property by a senior citizen is revocable if the transferee fails to meet the basic needs of the transferor, even if there was no such express provision at the time of transfer.
In Sunny Paul and Anr. V State NCT of Delhi, the Delhi High Court ruled within the primary objective of Senior Citizen Act, 2007 and held that adults can be evicted from the property of their parents in case of parental abuse.
In Reju & Ors. Vs. The Maintenance Tribunal, Thruvananthapuram, the Kerala High Court upheld the order of the Tribunal for providing welfare means to the relative even if there is not successor interest arising from the senior citizen’s property to the petitioner.
In Jharkhand Senior Citizen Advocates Service Sansthan and Anr v State of Jharkhand, the Jharkhand High Court directed the state Old age homes in each district of the State to take steps for arranging different queues in the hospitals and easement for medical treatment to the elderlies.
MAJOR GOVERNMENT INITIATIVES:
As per section 19(1) of the 'Maintenance and Welfare of Parents and Senior Citizens Act, 2007, the State Governments has to establish and maintain at least one old age home in each District.
Some of the major schemes launched for elderly by the Ministry of Social Justice are:
Integrated Program for senior citizens (IPSrC): Under the scheme the grants in aid will be given for running and maintaining senio citizen homes, continuous care homes, etc. to the implementing agencies such as state government, local bodies, Panchayati institutes etc.
Rashtriya Vyoshari Yojana: for senior citizens under BPL category.
Atal Vayo Abhyuday Yojna (AVYAY): the main objective of the Scheme is to improve the quality of life of the Senior Citizens by providing basic amenities like shelter, food, medical care and entertainment opportunities and by encouraging productive and active ageing through providing support for capacity building of State/ UT Governments/Non-Governmental Organizations (NGOs)/Panchayati Raj Institutions (PRIs) / local bodies and the community at large.
Monitoring Report of the above schemes (data based on Annual Report 2021-22 of Ministry of Social Justice and Empowerment): Old age dependency ratio at State level, as per 2011 census is highest in Kerela at 196 per 100 people and lowest in Arunachal Pradesh.
·AVYAY – The total release of funds under the scheme is 3243 Lakhs, NGO asisisted 242, and total beneficiary covered are 108420 all over India. At State level, the funds released are highest in Andhra Pradesh at 564 Lakhs, while lowest/nil in at least 13 States and UTs, indicating major laxity in implementing the Central schemes at State level.
·IPSrC: the monitoring report highlighted following issues related to the implementation of the scheme: Funds not sufficient and not disbursed on time. A team should be entrusted with the responsibility to visit old age homes and keep a check on management. Some specific old age homes to be selected as model homes, and to be widely publicised.
ANALYSIS:
Financial security is the most significant pillar in determining the old age security of the elderly. In this regard, many government initiatives are noteworthy, such as higher tax exemptions to the elderly from 2011 budget. However, these initiatives remain at periphery. In India, which is largely patriarchal, the ownership of land, house, or property is mostly owned and devolved among men. Transfer of property to children results in propertylessness, a phenomenon more common among rural elderly men and urban widowed women with sons. Lack of property means lack of assets or a safety net to rely on as health costs escalate through old age.
Lack of Commitment in government run schemes: The analysis of monitoring report of government-run initiatives exposes the major lack of commitment and execution of the schemes at State level, also the lack of funds and the distribution. The government run initiatives have limited beneficiary base. For example, the NPHCE addresses most of the institutional health-care system, but it completely neglects the home based care of an elderly person in families.
Shortcomings in 2007 Act: The Act of 2007 is able to address these challenges to some extent. However, the maintenance amount is very less. The proposed Amendment Bill of 2019 is able to fill the gaps. Such as, definition of maintenance is expanded to include ‘life and dignity.’ The definition of ‘parent’ is expanded to include father or mother, parents-in-law, grandparents. It also seeks to remove the restriction of 10,000 Rupees as maintenance amount under the parent act.
Congestion of Law: In a number of cases, the senior citizen Act and the PWDV Act have been used to forward the claims of both parties, and thus defeating the whole objective of both social welfare legislation. In one of the cases, the Supreme Court Bench observed that ‘The law protecting the interest of senior citizens is intended to ensure that they are not left destitute, or at the mercy of their children or relatives. Equally, the purpose of the PWDV Act 2005 cannot be ignored by a sleight of statutory interpretation. Both sets of legislations have to be harmoniously construed.”
Lack of elderly-friendly legal framework: It is important to understand the tiring litigation process in India which makes it difficult for anyone, especially for elderly as a user-friendly access.
RECOMMENDATIONS:
The main issue with the elderly care is the lack of accountability when the abuse happens. In that case, the Court is the only option left to claim the violated rights. However, the Court are last option for the senior-citizen for many reasons, including the fear of tarnish of family name, lengthy litigation process, unfriendly court atmosphere. Some of the recommendations are listed below:
·To expand the Family Courts jurisdiction to include the disputes related to elderly. Currently, the focus is on issues arising out of marriage, and maintenance.
Just like domestic abuse, the elderly abuse also happens within four walls. Thus, it is often hidden and the victims are clueless of remedy. There should be dedicated protection officers as first line of contact to help the elderly if they want to seek legal remedy. In this, the role of community leaders like Aanganwadi centers, NGOs and other service providers is also determinantal to sensitize the people, act as deterrent and keep vigilance over the mental and physical health of elderly in the neighbourhood.
Setting up of the dedicated police stations or section for elderly on the lines of Mahila Thanas and proposed police stations for SC/STs.
·Maintain a register for the old parents who move to old age homes, to ensure that they are aware of their legal rights and follow up are done by the social service agencies for their welfare needs.
·Lastly, there is need to change the mindset from viewing old age as a ‘disability’ or ‘disease.’ For that, it is recommended to integrate the data of Elderly with the National Family Health Surveys.
BIBLIOGRAPHY
Cases:
1. Madhav Dagadu Dange v. Parvatibai Dagadu Dange Anr, 1978 0 CrLI 1436
2. Vijaya Manohar Arbat v. Kashi Rao Rajaram Sawai And Anr 1987 AIR 1100
3. Jharkhand Senior Citizen Advocates Service Sansthan and Anr v. State of Jharkhand, 2016 2 JLJR 137
4. Reju & Ors V. the Maintenance Tribunal, Thiruvananthpuram & Ors, 2016 0 AIR (Ker) 97
5. Shabeen Martin and Ors vs Muriel and Ors, W.P (C) 8193 of 2014
6. Sunny Paul and Anr. V State NCT of Delhi, W.P (C) 10463/2015
Acts:
7. Maintenance and Welfare of Parents and Senior Citizen Act, 2007, Act no. 56 of 2007, Acts of Parliament, India
8. Protection of Women from Domestic Violence Act, 2005, Act No. 43 of 2006, Acts of Parliament, India
9. Family Courts Act, 1984, No. 66 of 1984, Acts of Parliament, India
10. Hindu Adoption and Marriage Act, No. 78 if 1956, Acts of Parliament, India
11. CrPC, 1973, No. 2 of 1973, Acts of Parliament, India
Articles/Online Sources
12. Annual Report – 2021-22, Department of Social Justice and Empowerment, Ministry of Social Justice and Empowerment, Government of India, http://www.socialjustice.nic.in/
13. SMITH JP, MAJUMDAR, Ageing in Asia, Findings from New and Emerging Data Initiatives, National Academic Press (US), 2012
14. https://www.thehindu.com/opinion/open-page/ageold-problem-needs-new-solutions/article3291411.ece
Witten By,
Vartika Sharma
Intern, Chanchlani Law World
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