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Saturday, September 25, 2021

A benevolent law that safeguards elders

Gradual societal breakdown of joint family system, horrific instances of neglect, exploitation, crime, abandonment and grabbing of property of parents and senior citizens necessitated Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

Written by Anil Malhotra | Chandigarh |
August 6, 2021 10:18:33 am
MWPSCA provides a simple, inexpensive and expeditious process to suffering parents who can approach the District Magistrate (DM) to claim maintenance from their children.

The adage blood is thicker than water is diluted by the saying money makes the mare go. It’s the second that led to the enactment of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (MWPSCA). Gradual societal breakdown of joint family system, horrific instances of neglect, exploitation, crime, abandonment and grabbing of property of parents and senior citizens necessitated MWPSCA. Increasingly, elderly persons and widows were being thrown out from their properties with utmost apathy. MWPSCA provided such elders a way to stop this.

All transfer of immovable properties by sale, gift, exchange and actionable claims are compulsorily required to be registered under the Registration Act, 1908 (RA). Such sale, gift and exchange are irreversible and cannot be sought to be revoked, rescinded, withdrawn or cancelled by parties unless a cancellation of such instrument is ordered by a Court under Specific Relief Act, 1963 (SRA). Thus, prior to 2007, only a cumbersome, tedious, and expensive Court process could overturn a benevolent gift or exchange of immovable property by a parent to his progeny, when such unfortunate caregiver was unceremoniously evicted from his home. Criminal Procedure Code, 1973 can be invoked for claiming maintenance from children, but the procedural ladder is tiresome and slow.

MWPSCA combats this social challenge. It provides a simple, inexpensive and expeditious process to suffering parents who can approach the District Magistrate (DM) to claim maintenance from their children. It obligates inheritors of property of aged relatives to maintain them. MWPSCA empowers Maintenance Tribunals to revoke and declare void any transfer of property made by fraud, coercion or undue influence. Further, if any senior citizen has transferred by way of gift or otherwise, his property, subject to the condition that transferee shall provide basic amenities and physical needs, such transfer shall be deemed to be illegal and liable to be cancelled if the conditions are violated. As MWPSCA has an overriding effect over other laws, provisions of SRA requiring Court intervention to nullify transfers are not applicable. Jurisdiction of Civil Courts in respect of matters under MWPSCA is barred.

MWPSCA has found liberal interpretation by Courts to lean in favour of elders. Bombay High Court holds that the power to declare the transfer of property void under MWPSCA, enshrines a mandate “to order for return of property relating to the said transfer also flowing from it”. “Intention of legislature is construed to make it effective and workable and Courts lean against a construction which reduces a statue to a futility”. Delhi High Court interpreting MWPSCA as a welfare legislation holds that a senior citizen is entitled to eviction of property, self acquired or ancestral, and children have no right over property of parents. “The fact that parents do not wish to have their children staying with them is enough for invoking the Act and Rules”. Further it held, “a senior citizen is merely to show that his property needs protection and need not necessarily have to show that he/she needs maintenance or has been ill-treated by the son or other legal heir”.

The laudable object of MWPSCA is to allow elders to live in peace and tranquility. Calcutta High Court, upholding right of a senior citizen to reside in his home, held that his son and daughter-in-law can be evicted as they are “at best licensees” living in the property. These erudite verdicts deserve praise.

The commendable law requires publicity, awareness and extensive media circulation. All elders must be made aware of this protective cover given to them. 2019 amendments to make MWPSCA more potent await approval. Something more is essential. A directive ought to be given by amendment in MWPSCA or administratively by Rules to make it compulsory, that to begin with, every transfer or gift of property by a parent to his legal heirs will mandatorily contain a provision of conditional transfer, i.e. subject to basic amenities and facilities being provided, in the absence of which the transfer will be deemed to have been made by fraud or coercion or under undue influence. It is unfortunate that Indian family ethos of dutiful children has been destroyed by greed. Charity does not begin at home. Instead, the race to become rich fast and quick begins with plunder at home. The message of MWPSCA is clear. There are no short cuts to parental property. Elders cannot be treated shabbily. Respect must be restored.

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