What reforms do our parents’ maintenance law need?

In 2013, the Maintenance of Parents Act was passed in Parliament as a recognition of the corresponding obligation of the offspring towards their parents. Different news reports made headlines since passage of the law, and very recently, reports noting that the government plans to bring changes to the penal provisions of the Act, also came up. After more than a decade, it now begs the question: can amending the penal provisions alone make any substantive difference in attaining the Act’s objective?

This short Act, containing only 9 sections, was promulgated, as the preamble states, for the purpose of ensuring the right to maintenance of the parents. Hence, the preamble itself reveals the parochial standards in the making of the law, excluding senior citizens or elderly persons from its ambit, who may have no offspring or relatives left to take care of them. In essence, the preamble limits the Act’s applicability within the ‘parents-children relationship’ bracket, with the state shrugging off its own obligation towards the elderly citizens.

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The plight of elderly citizens could perhaps be alleviated had the state discharged its obligations concerning citizens’ welfare, instead of just limiting maintenance obligations to the offspring alone. Had the Act broadened the scope of its application to all senior citizens, with the inclusion of proactive measures from the state’s end, the scenario would perhaps have been vastly different.

This narrowed scope of the law is reflected in its definitions as well. Section 3 recognises the duty of the offspring to maintain their parents. However, section 2(d) defines ‘offspring’ as only those biological son or daughter who are capable and competent to maintain their parents. Thus, the deliberate wording of the section excludes the adoptive parents from the right to maintenance from their adopted children. Moreover, and as will be shown below, specifically mentioning only sons and daughters also reflects our legislators’ use of non-inclusive language, which is visible in our other laws as well. Not to mention, the Act also disregards the corresponding responsibilities of the state and the relatives of the senior persons to take care of them.

Instead, under sub-sections 3 and 4 of section 3, the right of the parents to live with their children is recognised, while forcing them to stay at old age homes is absolutely prohibited. However, there might be destitute parents or senior citizens who have no children to take care of them, whose plight the Act does not address. The Act also failed to introduce provisions to take proactive measures to ensure their right to food, clothing, shelter, and medical treatment. Additionally, since the senior citizens are often physically weaker than the younger population, the state is obliged to take special care of their person and property. Yet, the law is astonishingly silent on these aspects.

Looking into the Maintenance and Welfare of Parents and Senior Citizens Act 2007 of India, or the Maintenance of Parents Act 1995 of Singapore, the critiques I advance, might not appear too unrealistic. Contrary to our definition, the 2007 Act of India broadly defines ‘parents’ as inclusive of ‘biological, adoptive or stepfather or stepmother’ whereas ‘senior citizen’ is defined as any Indian citizen having attained the age of 60 or above. Similarly, the right to maintenance under section 4 extends to all senior citizens, including the parents who are unable to maintain themselves, thereby ensuring that both parents and childless senior citizens are protected by the provisions of the Act. Again, the Indian law has enacted provisions for building old age homes for indigent senior citizens and ensuring medical support for them.

Another important factor impeding the effectiveness of our Act, in my opinion, is its excessive reliance on the penal provisions. While sections 3 and 4 recognise the right to maintenance of the parents, section 5 deals with the enforcement mechanism, which is completely penal in nature, only capable of producing deterrent effect, if at all, against the party in breach. True that penal provisions might be useful in certain circumstances, where deliberation and clear criminal intention are present. But wholesale criminalisation does little benefit to the parents who are actually in need of support. We need to remember that the unable parents or elderly persons may not be interested in contesting their offspring in a criminal trial, but are expectant of due care, support, and maintenance from them.

Notably, maintenance of parents and elderly persons has always been a civil matter, gaining its force from the respective personal laws. Almost all religions enjoin the offspring to maintain their parents. The laws enacted in India or Singapore, reveal the inherently civil nature of the claims. For example, the Tribunal constituted under the Indian Maintenance and Welfare of Parents and Senior Citizens Act 2007 focuses mostly on making orders on maintenance rather than penalising the offspring, as is revealed through section 9 of the Indian Act, a provision completely absent in our case.

Furthermore, our law on maintenance of parents does not take notice of the fact that the parents unable to maintain themselves might also be unable to access the court to claim their rights. A person aged 60 or above might not always be physically capable to reach the court’s premise. This is especially true for elderly women or widows, considering the socio-cultural context of our country. Thus, an ideal law should have incorporated provisions on suo motu cognisance taking and a liberalised locus standi. Yet, due to the penal character of the Act, the legislature perhaps thought to narrow down the scope to filing of complaints. Thus, section 7(2) of the Act explicitly disallows cognisance taking except when the complaint is lodged by the parents alone, which effectively impedes the claimant’s access to justice.

Finally, the plight of elderly citizens could perhaps be alleviated had the state discharged its obligations concerning citizens’ welfare, instead of just limiting maintenance obligations to the offspring alone. Had the Act broadened the scope of its application to all senior citizens, with the inclusion of proactive measures from the state’s end for ensuring the right to maintenance, the scenario would have been vastly different. Hence, for a more effective law on maintenance of parents, the reforms should be focused on ensuring due support and care to both parents and senior citizens, rather than increasing the penalties.

The writer works as a Law Desk Assistant at Law & Our Rights, The Daily Star.