Law

Maintenance of the Elderly: A Legal Perspective

Taking care of elderly parents is equally necessary as compared to the duty of supporting infant children. 

Right from the moment a child is conceived, the well-being of the child becomes the parents’ primary concern. Simultaneously the parents also grow old and then comes the time when it is time for the child to look after their ageing parents. These expectations are deep-rooted in various societies, being influenced and sometimes institutionalised by religion and community sanctions. Children both in the third world as well as developed countries are increasingly found to be not taking care of, or not willing to take responsibility to maintain their parents, making the poor parents helpless in their old age. A question arises here — can the children legally deny maintaining their elderly parents?

It is often argued that the increase in cost of living and change in social attitude owing to economic changes have made life busier and instigated the ever-growing greed to earn more money. While devoting more time to work towards those goals, maintaining parents may seem like a burden and thus the traditional norm is obviously changing. The direction of the change is perhaps towards the breaking of ties between generations within the family.

Hindu Law:

Obligation of sons to maintain their aged parents was a right enforceable by the state. This was upheld by the Bombay high court in Savita Bai v. Laxmibai way back in 1878. Furthermore, Section 20 of the Hindu Adoptions and Maintenance Act, 1956 also provides for the same and it states the need to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.

Muslim Law:

Duty to maintain aged parents exists even under Muslim law as has also been enshrined in the Principles of Mahomedan Law, 1972. Moreover, Section 371 covers it. However the duty is conditional on the means of the daughter or the son.

Refusal To Maintain and Onus To Prove Neglect:

In Attar Jain v. Amit Jain (1982, Cr LJ 211, Del), maintenance was claimed by father but the petition was dismissed as he failed to prove that he was being neglected by his son or was unable to maintain himself. The Delhi high court held that onus to prove neglect lies on the aged.

Section 125 Code Of Criminal Procedure, 1973

(1) (d) If any person having sufficient means neglects or refuses to maintain-  his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Maintenance And Welfare Of Parents And Senior Citizens Act, 2007

There were several inadequacies and confusions in certain respect as to right of parents to seek maintenance from their children. Parsi and Christian laws did not cover this and often parents are reluctant to proceed under criminal law for the same. Thus this act came into being. It covers not only parents but the senior citizens as well (60 years and above). Parent includes biological, adoptive, step mother or step father, irrespective of their age and maintenance includes provision for food, clothing, residence, medical treatment. Provision has also been made for the setting up of tribunals for effective enforcement and implementation of Act.

In Purshottum Bhatra v. Family Court No 1, Jaipur,( AIR 2007 (NOC) 898 Raj) parents successfully claimed maintenance from their son even though they were living with the other one. This is a landmark judgement which settled that maintenance can be claimed from any child.

Conclusion:

  • Parents have a right to be maintained by their children.
  • The Hindu law makes statutory provision to this effect vide the Hindu Adoptions and Maintenance Act, 1970.
  • The Code of Criminal Procedure, 1973, which is a secular law and governs persons belonging to all religions and communities, also makes a provision for maintenance of parents.
  • Apart from biological mother and father, even an adoptive mother and step mother is entitled to seek maintenance
  • Daughters including married daughters, also have a duty to maintain their parents.
  • The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 seeks to protect the interest of parents by making effective provisions for their maintenance and welfare. It is a secular law thus applicable to all religions.

The reverence and respect accorded to the elderly is because of a long established Hindu tradition and support from the Indian scriptures. Taking care of one’s parents in old age is considered to be the most important virtues that a person may possess.

We can expect slowly but steadily modernisation having its impact on both urban and rural areas, and the status of the elderly undergoing structural changes over the next century. The extended family system has and continues to provide a functional division of labour thereby making elderly useful to the family. Hierarchical relations assure the elderly a reasonable level of respect and self-dignity in majority of situations and circumstances. Yet, the respect for the older order may be declining and prescribed roles for each stage not either believed or adhered to. Hindu social order which has provided both the stability and continuity to the Indian civilisation for thousands of years is undergoing an intense scrutiny. With its genius for synthesis and a very strong ability to accommodate, one can only hope that even with new directions, majority of the elderly would be cared for by the family.

About the Author

DSC_0179 (2)Kajal Dalal

A 3rd year student of law, she is against armchair criticism. She is a die hard feminist and is vocal about the injustice towards women. Kajal was also a part of the “I Lead India” campaign, which was a clarion call for bringing about change. She loves reading and public speaking. She completed her schooling from Sanskriti School, New Delhi and being an army kid has travelled all over the country. She has a special interest in Intellectual Property Rights and plans to pursue criminal litigation.

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