“Legislations are the primary characteristic and means of growth in any mature legal system.”

Roscoe Pound

INTRODUCTION

With the advent of modernization, the Indian society has undergone remarkable changes. Family, the primary unit of society has also changed in its form and function. The elderly, who have been an important component and had the protection under the traditional family setup, are the worst affected in this changed scenario. The demographic statistics reveal that India is ageing at a fast pace and people in the age group of 60 years and above will increase by 326% and those in the age group of 80+ by 700% (As depicted in the figure below). National Development requires governmental planning and programming, which in turn require legislative enactments for their validation and implementation. This underlines the pressing need for a robust policy to ensure that the senior citizens are not exposed to vulnerabilities of the old age.

THE EXISTING LEGAL FRAMEWORK

The framers of our constitution were aware of the vulnerabilities that an individual could be exposed to by the old age and therefore the well-being of senior citizens is mandated in the Constitution of India under Article 41. It provides that, “The state shall, within the limits of its economic capacity and development, make effective provision for securing the right to public assistance in cases of old age”. Other laws dealing with the same are Code of Criminal Procedure (Chapter IX, Section 125(1)(2)), that Requires persons who have sufficient means to take care of his or her parents if they are unable to take care of themselves.  The Hindu Adoption and Maintenance Act, 1956 also requires Hindu sons and daughters to maintain their elderly parents when parents are unable to maintain themselves. In light of the constitutional mandate, parliament came up with The Maintenance and Welfare of Parents and Senior Citizens Bill, 2007. It was introduced in the Lok Sabha on 20^th March 2007 and finally received the assent of the President of India on 29^th December 2007. The legislation was passed with the objective to provide for effective provisions regarding the maintenance and welfare of parents and senior citizens guaranteed and recognized under the Constitution. The legislation aims to create an effective mechanism for senior citizens to ensure that the children perform their moral obligation towards their parents. In a sense, it provides for the institutionalization of a suitable mechanism for ‘protection of life and property of older persons.

FAULTLINES IN THE IMPLEMENTATION OF THE ACT

The concerned legislation was enacted with the noble objective to ensure that Right to live with dignity, Right to life and liberty and the Right to shelter guaranteed under Article 21 of Constitution, but the legislative intent of protecting the rights of senior citizens do not seem to have been fructified. Section 32 of the Act states that the State Government make rules for the effective implementation of this Act. Chandigarh Maintenance and welfare of Senior Citizens Rules, 2009 provides for the rule of eviction by the Maintenance Tribunal,[1] which has abated the ambiguity regarding the jurisdiction of maintenance tribunal in passing the order for the eviction of a son, daughter-in-law.

But such directives are missing in other states regarding the rule for eviction and this has led to an uncertain situation regarding the jurisdiction of Maintenance Tribunal.

The Act states, “The State Government shall prescribe a comprehensive action plan for providing protection of life and property of Senior Citizens.”[2] The problem that arises is that when it comes to eviction of children by parents from their self-acquired property following the failure of children and daughter in law to maintain their parents, the decision of High Courts in various states cannot be said to be uniform.

Various High Courts have opined differently on the question of jurisdiction of Maintenance Tribunal in this regard. Kerala High Court in a judgment [3]where a petition was filed against the eviction order passed by the Maintenance Tribunal there the high court while setting aside the eviction order passed by the Maintenance Tribunal said that bypassing such order the Tribunal has exceeded it’s jurisdiction as it is not expressly mentioned under Section 23 of the Act that parents have right to evict their children from their house. Similar was the viewpoint of Kerala High Court in C.K. Vasu vs. The Circle Inspector of Police[4] where an aggrieved senior citizen filed a complaint to the Maintenance Tribunal and obtained an order for eviction against his children was set aside by Single Judge since after examination of the act it is nowhere mentioned that passing an order of eviction is within the jurisdiction of Maintenance Tribunal.

Like Kerala, there are other State High Courts where the order of eviction passed by the Maintenance Tribunal was set aside by according the reason that the act does not mention the provision regarding the eviction of children by Maintenance Tribunal on the complaint made by their parents. In M.P. Tej Babu vs. The State of Telangana and Others[5].  It was said that the only provision under which the Tribunal is conferred with the jurisdiction to intervene in the matter of property of senior citizens is under Section 23 of the Act. Therefore, after a thorough examination of the said provision reliefs of eviction of the person cannot be ordered by the Tribunal as it is out of the ambit of its jurisdiction.

The Act empowers State Government to make rules regarding the power and duties of the authorities for implementing the provisions of this Act[6] and a comprehensive action plan for providing protection of life and property of senior citizens[7] in absence of State rules if the Maintenance Tribunal provides the remedy of eviction then it will lead to arbitrariness[8].

There is a catena of judgments where the High Court of Punjab and Haryana considering the provisions of Chandigarh Maintenance and Welfare of Parents and Senior Citizens Rules, 2009 have compelled children to vacate the property of aggrieved. In Hamina Kang v. District Magistrate[9] where the eviction order passed by Maintenance Tribunal was challenged in the High Court but the Court in the light of Rule 3 of Chandigarh Maintenance and Welfare of Parents and Senior Citizens Act, 2009 upheld the eviction orders passed by the Maintenance Tribunal.

There are cases where the daughter-in-law after the death of her husband claims to live in the house of her in-laws forcefully against the wishes of the parents and threatens to falsely charge them of Domestic Violence, molestation, harassment etc., regarding the right to live in the in-law’s house High Court of Punjab and Haryana said: “It has also contended that right to residence in a shared household can only be appreciated if the house belongs to or taken on rent by the husband or the house belong to the joint family to which husband is a member but the shared household would not mean that wherever the husband and wife lived together in the past, the same would become their shared household.”[10]Similarly in Darshan Singh and others Vs. State of Punjab and others [11]it was observed by the Hon’ble Punjab and Haryana High Court “the son and his family would be permitted to live in the residential house, owed by father only till he wants them to live but only as licensees.”

CONCLUSION

After going through the viewpoints of different High Courts, it can be safely concluded that in absence of eviction as a remedy in the Legislation the objective which it sought to achieve cannot be fulfilled, because then the aggrieved Senior Citizens will then continue to bear the stress which they have to face by the non-consensual presence of their son, daughter, daughter-in-law, etc.

The step taken by Government of India in providing social justice enshrined our Preamble is worth appreciating, however, it must be emphasized that the National Programme is now about 12 years old and must be implemented with due earnestness for it to bear fruits. Otherwise, it will remain only a paper programme. The Apex Court in the case of Dr. Ashwani Kumar Singh v. Union of India[12] has rightly said: “there’s a lot that is required to be achieved and we expect the Union of India and all the State Governments and Union Territories administrations to take an active interest in the implementation of the National Programme”.

Decisions taken by the Punjab and Haryana High Court in Hamina Kang v. District Magistrate was in the light of the rule that specifically mentioned eviction to be granted in case of unauthorized occupation on the property of Senior citizens. Because of which there was no question of ambiguity regarding the Jurisdiction of Maintenance Tribunal for passing the eviction orders. Therefore, it is recommended that the act be amended and should provide for eviction as a remedy for senior citizens if they are being mentally and physically harassed by their children. If the amendment is made in this Act then it will have a deterrent effect and there will be a guarantee of elders living peacefully, also there will be no ambiguity in this regard in different states as the parent act will then have the provision for eviction on the ground of ill-treatment because “subordinate legislation should always be read only within the confines and context of parent act”[13].

[1] Rule 3(1)

[2] Section 22(2)

[3] Janardan vs. Maintenance Tribunal Appellate Authority & District Collector, 2017 Law Suit (Ker) 664.

[4] W.P.(C) No. 20850/2011

[5] (2016) SCC Online Hyd. 79.

[6] 32(2)(e)

[7] 32(2)(f)

[8] B.Ramasamy vs. The District Collector and Others.

[9] 2016 SCC Online P&H 208

[10] Vimaljit Singh v. State of Punjab and Others, AIR 2018 P&H 185.

[11] 2017(3) ALLMR 34

[12] 2019 (1) AWC 1080 SC

[13] Global Energy Limited and Another. V. Central Electricity Regulatory Commission, (2009) 15 SCC 570

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ABOUT THE AUTHOR

Animesh Upadhyay

Animesh Upadhyay is a fourth-year BA.LLB (Hons.) student at Dr. Ram Manohar Lohiya National Law University. His subjects of interest are Constitutional Law, Labour Laws and Criminal Laws.

Sumit Verma

Sumit Verma is a fourth-year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow.