Research & Advocacy Initiatives of Agewell Foundation over the years
By AGEWELL
RESEARCH & ADVOCACY CENTRE (For Needs & Rights of Older Persons)
BACKGROUND
In India, population of older persons
which has crossed 100 million mark recently and is expected to increase rapidly
for another 3-4 decades, has become a huge challenge for policy planners. Till
few years back issues concerning older persons were considered as peripheral
issues only. But now government at various levels has started including issues
concerning older persons in its central agenda.
During the last decade, socio-economic
and demographic scenario of the country has changed remarkably. With expansion
of modern social norms, popularity of nuclear families, rapid urbanization, industrialization
and above all, consistent increase in percentage of older persons in country’s
population has changed profile of older persons dramatically. Now they include
more educated older persons, they are comparatively healthy and active due to
advancement of medical science & healthy lifestyle. Their overall net worth
has also risen due to increase in real estate prices and other financial
factors across the country. However, majority of them still lead a life full of
miseries, disparity and worries due to lack of family support, diminishing
social and traditional values and sense of loneliness fast developing among
them. They remain vulnerable just because of their Old Age. Their human rights
always remain at stake and compromised.
Despite all the challenges and problems
old people have been facing for years, Indian government has never shown keen
interest to adopt a legal framework specifically addressing the rights and
welfare of old people, as a special group in the society. On the contrary older
people are clubbed under the head of disadvantaged section of society alongwith
drug addicts, baggers, etc. as a point of reference in the Ministry of Social
Justice & Empowerment, which is expected to insure welfare of old people.
National policy on the Older Persons
issued in 1999 has many provisions for older persons but it is still a pure
policy document, even after 13 years of its formulation. It has not been
enforced due to lack of legal provisions.
Programs and schemes for the welfare
and empowerment of older persons have continued to be dependent upon the grace
and wishes of those who feel-like assisting them. This only motivates violation
of human rights of older persons at the end.
Families consider old people burden, as
majority of older persons have no adequate social security. Due to lack of
social security provisions, old people have to depend upon their family members
for their basic needs. Dependence on others in old age creates many kinds of
problems for older persons, from disrespect to elder abuse, from negligence by
family members to destitution.
OVERVIEW
There
are a very few provisions regarding older persons in our scores of laws and
acts within the Indian legal system. So far as performance of our legal system
is concerned, we cannot say it is satisfactory at all. From the older people’s
point of view, it’s shocking to realise that there are approximately 26% of the
court cases which are pending for more than five years where one of the party
is an old person. There are many instances where we see that people spend their
whole life pursuing their cases in various courts and die before getting the
verdict.
As per a Supreme
Court report, over 42 lakh (4.2 Million) cases were pending in India's 21 High Courts
and shocking 2.7 Crore (27 Million) cases were pending in Lower Courts across
the country.
Ironically,
today thousands of older persons are forced to attend court cases for
indefinite period of time due to lethargic legal process and other vested
interest groups. Their human rights are always at stake.
Indeed,
older persons are the worst affected victims of our sluggish and insensitive to
system.
Rights of old people
The rights of older persons
internationally were first considered in the Vienna International Plan of
Action on Ageing, 1982 (Vienna Plan) and later on in the Madrid International
Plan of Action on Ageing, 2002 (Madrid Plan).
The latter plan contained detailed
recommendations to UN member states on how to realize the rights of older
people through three main areas which are development, improving health and
well-being as well as creating an enabling and supportive environment for older
persons.
So far there is no agreed definition of
old people internationally. Most developing world countries have accepted the
chronological age of 60 years as the definition for 'old people'. There is no
United Nations standard numerical criterion, but the UN has also agreed,
cut-off is 60+ years to refer to the older population.
Government of India has taken some steps
to ensure well-being of the older persons. The issue of older people is also dealt
within the five-year-plans of Govt. of India, where a special focus on older
people has been made.
Factors contributing to vulnerability
of older persons were identified as food and nutrition insecurity, limited
access to productive assets, poor health, unemployment, lack of support
networks, and lack of support to education, discrimination and elder abuse.
OBJECTIVES
OF THE STUDY
Research &
Advocacy Centre at Agewell Foundation (a
consortium of over 1500 NGOs and 7000 primary and 80000 secondary volunteers
spread across 620 districts of India, committed to initiate better interaction
between generations and extend a helping hand) has recently carried out a
nationwide survey to study the Legal Provisions & Practices in context of
protection of human rights of Older Persons.
Agewell
Research & Advocacy Centre has conducted a survey to assess the status of
the legal protection of older persons. Under the survey, it was attempted to
identify core areas of concerns in the field of legal system for safeguarding
interests and rights of older persons.
In
view of changed old age scenario, study was also focused to suggest and
recommend some specific points to policy makers, planners and decision makers
so that respectful and comfortable environment could be ensured for old people
in the country.
RESEARCH
METHODOLOGY AND SAMPLE DESIGN
Experienced
and qualified volunteers (mostly with law background) were selected as
interviewers and they were provided with proper guidelines, directions,
training, etc.
Under
the survey campaign, comprehensive interviews were undertaken by managing
time-bound schedules to collect information /impression/views from selected
older persons and people with legal background from across the country.
Respondents
were classified in two categories:
I.
Older persons respondents
II.
People with legal background
Older
persons as Respondents
For the survey a representative sample of 50000 older persons (28460 older men and
21540 older women) was interviewed spread across 300 districts of 25 states & Union Territories of India.
Volunteers visited various Public / community places including court complexes
(District Courts/ High Courts/ Supreme Court of India/ Lok Adalats (local
public courts)/ Consumer courts) spread across 540 districts across the
country.
Volunteers interviewed older persons
visiting various court complexes
·
For criminal cases
·
For civil cases
·
Affected by court cases of their family members/relatives
Legal
Practitioners
At
the same time, interviewers also interact with
a representative sample of 1000 legal practitioners (Spread across 230
districts of India) to collecting useful data pertaining to legal provisions
and practices pertaining to old people.
The
survey was conducted during the month of July
2012.
Sample
Respondents
I.
Older Persons
II.
Legal Practitioners
I.
Older Persons:
Sample
respondents comprise the following;
a) Rural elderly
men
b) Rural elderly
women
c) Urban elderly
men
d) Urban Elderly
women
e) Older persons
from all age groups (60-70, 71-80 and 80+)
f) Older Persons
from different religions and castes
II.
Legal
Practitioners
a)
Legal advisors/consultants
b)
Lawyers
c)
Judges (Supreme court/High courts/
district courts)
d)
Legal Counselors
e)
Legal experts
f)
Rights activists
EXISTING LAWS AND RELATED
PROVISIONS RELATED TO OLD PEOPLE
·
Constitution of India: Article 41. Right to work
o
Protect right to work of every citizen, including older persons, but
government’s retirement policies do not support this Article and prefer younger
generation’s right to work.
o
Entry
24 in list III of schedule VII deals
with the "Welfare of Labour, including conditions of work, provident
funds, liability for workmen’s compensation, invalidity and old age pension and maternity benefits.
o
Further,
Article 41 of Directive Principles of State Policy has particular relevance to Old Age Social Security.
o
Item No. 9 of the State List and item 20, 23 and 24 of Concurrent List relates to old
age pension, social security and social insurance, and economic and social
planning.
·
Hindu Adoptions and Maintenance Act, 1956 (No. 78 of 1956) : Section 20, Maintenance of
Children and Aged Parents
o
Act is applicable
to Hindus, legal provisions related to maintenance
of aged parents hardly utilized by people.
·
Muslim Law:
o
Children
have a duty to maintain their aged
parents even under the law.
·
Code of Criminal Procedure Act, 1973 (No. 2 of 1974) : Section 125, Order for Maintenance
of Wives, Children and Parents.
o
Act primarily
protects interests of women and children, aged
parents hardly get benefits of the act.
·
Protection of Women from Domestic Violence Act, 2005 (No. 43 of 2005)
o
Generally
considered for protection of younger women, interests of older women ignored in practice.
·
Maintenance and Welfare of Parents and Senior Citizens
Act, 2007
o
Provision
for food, clothing, residence, medical attendance and treatment
o
Provision
for recreation centers and other amenities necessary for the senior citizens.
o
Due to lack of
awareness in the society, no significant progress so far.
·
Priority listing
of cases, related to senior citizens
by Supreme Court of India & High Courts
o
Matters related to
senior citizens above the age of 65 years only.
o
In Delhi priority
is being given to cases where Senior Citizens are parties and the cases which
are pending for more than 7 years.
Though there are legal provisions to look after
welfare of older persons in old age, but still there are no laws in India, that
talk specially, about protection of Human Rights of Older Persons.
An
overview of
Cases
of Older Persons with National Human Rights Commission currently
·
Total Nos. of cases pertaining to Older Persons with
NHRC -
6129
·
Related to Police force of various states & UTS - 1701
·
Related to various Jails across the country - 1000
·
Related to deaths in judicial custody across the country –
922
·
Related to Health conditions – 72
·
Related to crime against Women – 85
National Human Rights Commission is a
premier authority to oversee human rights violation cases in India. Normally,
people get their cases registered with NHRC, only when they see no hope in
formal judicial system or find it very tough to carry their struggle further.
These data clearly indicate that older
persons have also been suffering from serious nature of human rights violation
cases while living in inhuman conditions.
Older Persons (Convicts & under-trials) in Prisons
A large number of older persons are lodged in Indian Prisons as
under trials and convicts across the country. Among the bizarre realities of
modern society & lethargic judicial system, India has witnessed an
exponential rise of geriatric prisoners–men and women in their 50s, 60s, 70s,
80s, and even 90s. They committed crimes decades ago and in many cases they are
imprisoned as under trials for many years… now are frail and ill, yet remain
imprisoned not only as a punitive measure, but on the ground that they are a
threat to society. Many of these inmates want to get out of prison only so they
can die as a free individual in the free world. People age faster behind bars
than they do on the outside due to lack of family and social life. Older
persons in prisons look 10 to 15 years older than their chronological age.
Elderly prisoners have to face acute physical as well psychological stress due
to accelerated ageing.
Many older offenders suffer from serious mental illness–some of it
lifelong, and most of it produced by their imprisonment. Older offenders are of course more likely to
suffer from serious medical conditions, and unlikely to receive adequate care
they require. Needless to say, physical & psychological needs of an older
person are completely different from younger persons. However, in the eyes of
the law a prisoner is a prisoner irrespective of his or her age.
It has been found that jail administration across the country is
not much concerned about human rights of older prisoners. As per provisions of law they in case give same
treatment to all prisoners because legally they are expected not to
discriminate because of old age.
Section 498A of Indian Penal Code (IPC) – An overview
According to a study of 498A related
cases, due to its loopholes people often misuse this legal provision against
senior citizens.
Senior citizens,
particularly elderly women are further harassed through false cases of domestic
violence and dowry harassment and denied mental peace during the last leg of
their lives by their daughters-in-law.
Alarmingly, this section is reportedly being used by
younger generations particularly younger women as a pressure or torture
technique to get fulfilled their all good or evil wishes by their ageing family
members.
LEGAL PROVISIONS & VIOLATION OF HUMAN RIGHTS OF OLDER PERSONS
Case Study – 1
Gopalanachari v/s State of Kerala, Writ
Petition No. 350 of 1980.
Gopalanachari, a septuagenarian was
languishing in a Kerala prison. In his petition he lamented that in his case
the law has become lawless and justice has fallen as the first casualty, a lot
shared by several other prison-mates.
While he was living in his house having
loss of eyesight and hearing power due to old age, a policeman known to him
earlier, saw him on a road near his house, saying that he has to enquire
something, took him in a van to Arpukkara Police Station, after putting him in
the lock-up for ten days produced him before the court after making the record
as having arrested him on the previous night of producing him before the court.
Supreme
Court Judgment on legal provisions violating Human Rights of Older Persons
“We
expect any government which has any regard for human rights not to use Section
110 of the Code, torture some fashion, against the weak and the poor merely
because they belong to the 'have-not' class and can be easily apprehended as
'habitual' this or that or dangerous or desperate. We draw the attention of the
State Government to the likely misuse of the preventive provisions and except
it to issue suitable instructions to the police minions so that the law will be
legitimated by going into action where it must strike and by being kept
sheathed where there is no need for indiscriminate display. With these
observations, we direct the release of the petitioner and Kutty Thankappan” - Decided by full bench of the Supreme Court of
India comprising of O. Chinnappa
Reddy, R. S. Pathak and V. R. Krishna Iyer, JJ. The judgment was
delivered by Justice V. R. Krishna Iyer on 12.11.1980 [Reported in AIR 1981 SC
674]
Case Study – 2
In W.P. 3915 (W) of 2010 (Kalpana Pal v/s State
of W.B. and Ors.)
Elderly parents filed a batch of writ petitions
in Calcutta High Court seeking direction for police to take appropriate measures
against erring son and daughter-in-law and to protect right to life and
property, guaranteed by Articles 21 and 300A of Constitution of India. The
single judge went through plethora of case laws and decided each petition on
merits. The judgment laid down guidelines for the police to follow when it is
approached by parents complaining of violence against their children.
“i) immediately on receipt of a complaint which
discloses cognizable offence it would be the duty of the police to register the
complaint as FIR and commence investigation;
ii) if the complaint discloses a non-cognizable
offence, the police ought to obtain orders from the Magistrate as required
under law;
iii) it would be open to the police after
receipt of a complaint to enter into a dialogue with the parents and the
accused son/daughter-in- law and to coax and to cajole them to resolve their
disputes and differences but in the process there must never be any coercion or
compulsion;
iv) to suitably advice those parents who are
oblivious of the recent enactments like the DV Act, 2005 and the 2007 Act and
to seek remedies before the appropriate forum;
v) in a case where an allegation relating to
dispossession from property is received, the police may conduct a probe to
ascertain the worth of the allegations and if it is established that the
parents have been dispossessed from their own property, a request to the
children to restore possession in favour of the parents by resorting to
amicable settlement could be made but if the children do not agree, no further
step ought to be taken by the police for restoring possession and the parents
advised to obtain appropriate orders from the Court of law;
vi) if the parents have already taken recourse
to the DV Act, 2005/the 2007 Act, the police would be well advised from
interfering in the disputes between the parties and leave the issue to be
decided by the appropriate forum.”
A. The Hon’ble Court
noted the following complaint of the Petitioner:-
“The petitioner is the mother of the respondent
No. 5, aged about 65 years. For reasons mentioned in the writ petition she is
constrained to reside in the matrimonial home of her daughter. It has been
alleged in the petition that the petitioner's husband and the father of the
respondent No. 5 died testate on 2.1.2009. The residential house at 120D,
Linton Street, Kolkata 700014 was bequeathed in favour of the petitioner.
Coming to learn thereof the respondent No. 5 started pressurizing the
petitioner to convey title thereof in his favour. Refusal to accede to the
request was followed by physical and mental torture. The petitioner requested
her daughter and son-in-law to dissuade the respondent No. 5 from indulging in pressurizing
her, but to no avail. Gradually, the degree of torture on the petitioner was
increased. Apart from abusing the petitioner, the respondent No. 5 slapped her
with his slipper. The petitioner was made to work as maid in her own house and
to perform all household chores. The respondent No. 5 started bringing pork
while the petitioner used to take meal, knowing fully well that being a Hindu
widow she would not be able to tolerate the same. Other acts of cruelty have
been mentioned which need not be elaborated. Suffice to say that the respondent
No. 5 made the life of the petitioner miserable for which she had to take
shelter in her daughter's matrimonial home. The petitioner had applied for
probate of the will of her late husband. Served with notice of such
proceedings, the respondent No. 5 broke the padlock on the bedroom of the
petitioner and started assaulting her brutally. The petitioner complained to
the police authorities on 12.1.2010. It is further alleged that the respondent
No. 5 poured water on the body of the petitioner and disconnected the geyser
forcing her to take her bath with cold water and made her to sleep on wet bed.
A further complaint dated 5.2.2010 was lodged. It is alleged that the police
officers of the local police station apart from calling the respondent No. 5
and warning him did not act in accordance with law by not taking cognizance of
the complaint lodged by the petitioner. Feeling aggrieved thereby, this
petition has been presented with a prayer for ordering the respondents 1 to 4
to take immediate action on the basis of such complaints lodged by the
petitioner and to command the respondent No. 5 to allow her to stay at the said
residential premises and not to create any disturbances in any manner
whatsoever”
The Court directed as following:-
“I have perused the complaints annexed to the
petition. The same prima facie disclose commission of cognizable offence. It is
incomprehensible as to why the Officer-in-Charge, Beniapukur Police Station or
his subordinates did not take appropriate action thereon as envisaged in law.
It appears to be a clear case of non-discharge of statutory duty by the police.
Inaction of the police to discharge statutory duty is well substantiated and,
therefore, this writ petition stands disposed of with a direction upon the said
Officer-in-Charge to take appropriate action in accordance with law on the
basis of such complaints. Since the respondent No. 5 has not disputed the
petitioner's right of residence, the petitioner shall be at liberty to inform
the said Officer-in-Charge the date on and from which she would like to return
and to continue to stay thereat. Once such information is received, the said
Officer-in-Charge shall extend utmost cooperation and appropriate assistance,
as is warranted in the circumstances, so that the petitioner may henceforth
live peacefully and without any disturbance from the side of the respondent No.
5. The respondent No. 5 shall restrain himself from indulging in any act which
is a cause of concern for the petitioner and affects her dignity and if any
subsequent complaint is lodged against him by the petitioner disclosing
commission of offence punishable under the penal laws, the police shall
immediately take action.”
B. In W.P.
No. 3609 (W) of 2010 (Renuka Bala Mondal and Anr. v/s State of W.B. and Ors.) the
Hon’ble High Court noted the complaint of the Petitioner as follows:-
“142. Parents of the respondent No. 5 have presented this writ petition
complaining that he and his wife, the respondent No. 6 have been inflicting
mental and physical torture and the police despite being informed have failed
to act on their consequent complaint.
143. It
is alleged in the petition that the petitioner No. 1 and her mother, Binapani
Halder inherited a property left behind by Sacchidananda Halder (since
deceased), her father. The property was not partitioned. However, Binapani Halder
under compulsion executed a deed of gift in favour of the respondents 5 and 6
which was registered on 23.3.1998 in the office of the Sub-Registrar, Diamond
Harbour. By the said deed the entire property of the deceased Sacchidananda
Halder was transferred to the respondents 5 and 6 without the knowledge of the
petitioner No. 1 who claims 50% share therein. Challenging the deed of gift and
consequent transfer of property, the petitioner No. 1 has instituted title suit
against the respondent No. 5 and the same is pending in the court of the
learned Civil Judge (Junior Division), Diamond Harbour. The respondents 5 and 6
have since taken over possession of a substantial portion of the property
belonging exclusively to the petitioner No. 1 and creating pressure on her to
convey the title thereof to the respondent No. 5. Refusal to accede to such
request resulted in manhandling of the petitioner No. 2 by the respondent No. 6
by fists and blows. Despite receiving the complaint, the police authorities
have not taken any action resulting in the present petition”
The Court held that:-
“146. On perusal of the writ petition I do not
find any complaint lodged with the police authorities disclosing assault by the
respondent No. 5. The petitioners have annexed to the petition copies of
receipt issued by Falta Police Station endorsing the general diary entry
number. In the absence of the complaints lodged by the petitioner with the
police station, it is difficult for this Court to issue any positive direction.
147. I therefore dispose of the writ petition
observing that if in future any complaint alleging cognizable offence committed
by the respondents 5 and 6 on the petitioners is received by the local police
station, it shall proceed to act in accordance with law.
148. However, nothing contained herein shall
affect the civil proceedings pending between the parties and the Court below
shall proceed to decide the issue pending before it uninfluenced by the result
of this petition.”
C. In W.P. 22614 (W)
of 2009 (Sudhir Kumar Chakraborty v/s State of W.B. and Ors.) the Hon’ble Court
noted the complaint of Petitioner as under:-
“150. The respondent No. 4 is the elder son of
the petitioner, who is aged about 69 years. He lives on his retirement
benefits. He has a house property which he purchased along with his wife
jointly. The petitioner complains of the respondent No. 4 having no source of
income but being addicted to drinks. The petitioner is after threatened for
money and assaulted physically if money is not given. Sometimes circumstances
compelled the petitioner to accede to the requirement of the respondent No. 4.
He further complains of pressure being created by the respondent No. 4 to
transfer the house property in his favour. Not being able to withstand the
pressure from the respondent No. 4, complaint was lodged with the
Inspector-in-Charge, Jagaddal Police Station. Despite receiving such complaint,
the police it is alleged did not cause any probe. The respondent No. 4 was not
even called at the police station. Accordingly, order has been prayed for on
the police authorities to take appropriate steps on the complaint lodged by the
petitioner and to save his life and property.”
The Court held that:-
“151. Inspector-in-charge, Jagaddal Police Station has furnished written
instructions to his learned Advocate. The same has been placed before me. It
appears therefrom that the allegation that no enquiry was made, has been
denied. However, on enquiry, it could be ascertained that the respondent No. 4
and his wife jointly inflicted mental torture on the petitioner and created
pressure for money on several occasions. The allegation that the respondent No.
4 threatened the petitioner to hand over the house property has also been found
true. Based on such local enquiry, the respondent No. 4 and his wife have been
cautioned and advised not to disturb the petitioner in any way. Prosecution
vide Jagaddal PSPR No. 943/2009 dated 31.12.2009 under Sections 107/116 of the
Cr.P.C. has been submitted. The respondent No. 4 has not appeared despite
service. 152. Considering the written instructions furnished by the
Inspector-in-Charge, I direct him to ensure that life of the petitioner and his
wife is not endangered at the instance of the respondent No. 4. The
Inspector-in-Charge shall maintain strict vigil so that the respondent No. 4 in
future may not disturb the petitioner or his wife in any manner whatsoever and
thereby affect their dignity. If at all any complaint is lodged by the
petitioner alleging commission of cognizable offence, the Inspector shall
proceed in accordance with law.”
D. In W.P.
13564(W) of 2009 (Jaya Rani Sakhari and Anr. v/s State of W.B. and Ors.) the Hon’ble High Court noted the
grievance of Petitioner as under:-
“154. The petitioner and her husband are aged about 60 and 70 years
respectively. The petitioner's husband raised and constructed a dwelling house
where they are residing with their married daughter, since deserted by her
husband, as well as the respondents 3 and 4, their son and daughter-in-law
respectively. It is claimed by the petitioner that the respondents 3 and 4 have
been given permissive possession in respect of a portion of the dwelling house
and that they are gratuitous licensees.
155. The petitioner and her husband due to old
age have been suffering from various ailments and their daughter is looking
after them. However, the respondents 3 and 4, who are in the employment of the
Government, have never contributed towards their maintenance and other expenses
pertaining to the dwelling house. However, for some time past, the respondents
3 and 4 have been creating various sorts of problems and harassing the
petitioner and her husband in respect of peaceful enjoyment of possession of
the dwelling house by resorting to various illegal activities with a view to dispossess
and/or to evict them. Here also, it is alleged that pressure has been mounted
on the petitioner and her husband to transfer the dwelling house and since the
petitioner and her husband have not agreed to comply with such illegal demand,
they have been subjected to persistent mental and physical torture inflicted by
the respondents 3 and 4.
156. Finding no other alternative, the
petitioner intended to lodge a complaint with the Officer-in-Charge, Baguiati
Police Station to ensure that they are not forcibly dispossessed by the
respondents 3 and 4. However, the police refused to receive the written
complaint. Consequently, the complaint was despatched to the Superintendent of
Police, North 24-Parganas as well as the Officer-in-Charge, Baguiati Police Station
by registered post. However, no action having been taken, the petitioner
presented this petition before the Court praying for an order on the
respondents 1 and 2 to take appropriate legal action against the respondents 3
and 4 on the basis of the complaint being Annexure 'P-3' to the petition.”
The Court held that:-
“157. The Officer-in-Charge, Baguiati Police Station has furnished
written instructions to his learned advocate on the basis of enquiry conducted
by an Assistant Sub-Inspector of Police. Prosecution has been submitted vide
NCR 279 dated 30.6.2009 under Sections 107/116 of the Cr. P.C. against the
respondents 3 and 4 and both have been directed to maintain peace. It has
further been observed in the written instructions that the dispute arises out
of family problems and that no cognizable offence has taken place so far.
158. The respondents 3 and 4 have not appeared
despite service.
159. Having considered the averments in the
petition and the contents of the written instructions, I find that the
petitioner has been residing with her husband and daughter in the dwelling
house constructed by him. The police have submitted prosecution against the
respondents 3 and 4 and, therefore, cannot be accused of total inaction.
However, it shall henceforth be the duty of the police to ensure protection to
the petitioner and her near ones and to take such action as is warranted in the
circumstances according to law, if the respondents 3 and 4 breach order, peace
and tranquility in and around the locale and disturb peaceful leading of life
by the petitioner.”
Case Study 3
K. Narayanasamy, an
80-year-old man was thrown out of his house by his children. He approached
court for justice.
Court Order
1. The prayer in the writ petition is to issue
a Writ of Mandamus, directing the respondent to consider the petitioner's
representation dated 3.9.2010 and enquire the same and take action as against
petitioner's son under "The Maintenance and Welfare of Parents and Senior
Citizens Act, 2007".
2. The learned Government Advocate takes notice
for respondents.
3. The case of the petitioner is that he is
aged about 80 years and he is having two sons and five daughters. According to
him, all his sons and daughters got married and settled in their life. The
petitioner owned a house property bearing Door No. 8/21, Gandhi Street,
Taramani and his younger son, by name Venkatesan, got the Settlement Deed
executed in favor of him allegedly by force in respect of the house property
and after execution of the Settlement Deed, the petitioner was allegedly driven
out from the said house and his articles were also thrown out and now, he is
residing at No. 1, Kennedy Street, Than Thai Periyar Nagar, Taramani,
Chennai-113 without any means. The petitioner's wife is no more and he is not able
to go to his daughters' place.
4. Another house property was also given to the
petitioner's younger son earlier. According to the petitioner, he has no means
to maintain himself and his younger son is not paying any amount to the
petitioner towards his maintenance. His younger son, namely, Venkatesan has
sufficient means and is working abroad and getting good salary and his wife
alone is residing in the said house at Taramani and she is not allowing the
petitioner to reside in that house. In spite of repeated requests, neither his
younger son Venkates annor his daughter-in-law extended any help to the
petitioner. The petitioner's elder son, by name Sundarababu, is having no means
as he is unemployed. Pointing out the above grievances, the petitioner has submitted
a representation on 03.09.2010 to the District Collector, Chennai for
registering a case against the petitioner's younger son, namely Venkates Anand
for ordering maintenance.
5. The respondent-District Collector is vested
with power to register a case and proceed against the petitioner's younger son
in terms of Section 8 of the Maintenance and Welfare of Parents and Senior
Citizens Act, 2007 (hereinafter referred to as the Act) to conduct inquiry by
summoning the concerned person and order maintenance. Section 9 of the Act
clearly states that if children or relatives, as the case may be, neglect or
refuse to maintain a senior citizen being unable to maintain himself, the
Tribunal may, on being satisfied of such neglect or refusal, order such children
or relatives to make a monthly allowance at such monthly rate for the
maintenance of such senior citizen, as the Tribunal may deem fit and to pay the
same to such senior citizen as the Tribunal may, from time to time direct. The
maximum amount shall not exceed ten thousand rupees per month, which can be
altered subsequently under Section 10 of the Act.
6. The respondent is a statutory authority
bound to take action under the said Act. Keeping the matter for over one year
is not an appreciable conduct on the part of the respondent. The petitioner is
made to suffer due to inaction on the part of the respondent even after the
welfare Legislation is enacted by the Parliament as early as in the year 2007
as Act 56 of 2007. Hence a direction is issued to the respondent to consider
the grievance of the petitioner in the light of his representation dated
3.9.2010, followed by legal notice dated 16.8.2011 and order maintenance to the
petitioner by following due process of law, within a period of two weeks from
the date of receipt of a copy of this order. The writ petition is disposed of
with above direction. No costs.
Writ Petition No. 27042 of 2011, HIGH COURT OF MADRAS decided on:
24.11.2011
Case
Study 4
HC comes to aid of parents harassed by daughters-in-law
The Delhi High Court on Thursday spelt
relief to a large number of aged parents tormented by their daughters-in-law,
eyeing matrimonial property after separation from their husbands. The court
ruled that a daughter-in-law cannot claim the right to live in a property owned
by her in-laws or to inherit if her husband has moved out.
“One cannot shy away from the hard-hitting
reality that it is not always the daughter-in-law who is berated but at times
the in-laws who are at the receiving end of the daughter-in-law’s
cantankerousness (crankiness). It should not be consigned to oblivion that the
parents-in-law have every right to live in peace in their own property and the
right to property vested in them cannot be snatched away and used as a tool to
harass them,” said Justice Kailash Gambhir.
“The daughter-in-law has no right to stay
in the said property especially after the exit of her husband from the
property," Justice Gambhir added. Many harassed parents — whose
daughters-in-law continue to live with them even after separation from their
sons with an eye on the property and maintenance, even when the son has left
their home — can draw relief from this judgment.
The remarks came while delivered judgment
in a suit filed by a mother-in-law Radha seeking a direction to her son and
daughter-in-law to vacate her house. Her son Suraj had married Renuka on April
27, 2009. But soon serious differences arose between them after which Suraj
moved out.
Radha complained of harassment at Renuka's
hands. Renuka too filed a complaint of domestic violence, claimed maintenance
and a decree declaring the matrimonial house as her sole and exclusive
property. Perusing the files, the judge came to the conclusion that the
property was owned by her mother-in-law and could not be treated as a joint
family property.
- Media Report appeared in The Hindustan Times on August 04, 2012 (Names
have been changed to hide identities) http://www.hindustantimes.com/StoryPage/Print/846742.aspx
Human Rights of Older Persons & Supreme Court
of India
Supreme Court has taken a
very serious view in offences against the senior citizens. In Machhi Singh and
others V/s State of Punjab (AIR 1983 SC 957) Supreme Court considered the
question as to when death sentence should be imposed and held that one of the
factors was personality of victim of murder. When the victim of murder was of a
person rendered helpless by old age or infirmity it could not provide even an
excuse, much less a provocation, for murder.
In Ramdeo Chauhan V/s State
of Assam (AIR 2000 SC 2679) the accused committed a pre-planned cold-blooded
brutal murder of four inmates of a house including two helpless women and a
child aged 2 years during their sleep with a motive to commit theft. The
accused also attacked with a spade another inmate of the house, an old woman,
and a neighbor when they entered the house. The Court held that the young age
(22 years) of the accused at the time of committing the crime was not a
mitigating circumstance and death penalty was a just and proper punishment.
In State of U.P. v/s Dharmendra
Singh (AIR 1999 SC 3789), 5 persons were murdered, an old man of 75 years, a
woman, two boys aged and a girl, at night when they were asleep by inflicting
multiple injuries to wreak vengeance. Supreme Court held that the ghastly and
barbaric murder can be termed as rarest of the rare case and death penalty was
just for such a diabolic act.
In Ronny V/s State of
Maharashtra (AIR 1998 SC 1251), the accused was the nephew of the deceased and
because of the relationship he gained access inside the house for himself and
his friends. The victims were unarmed and the crime was committed for gain i.e.
to rob the valuables of the deceased family. The accused then killed all three
members and then committed rape on the lady who was the wife of his maternal
uncle and as old as his mother. Considering the facts of the case Supreme Court
held that it could not be said that the offences were committed under the
influence of extreme mental or emotional disturbance as everything was done in
a preplanned way, and hence death penalty was upheld
A personal experience-
“Mr. Gupta, another old Mr. Gupta is in trouble, looking for help, can you
appear as amicus curie for him” was a
statement splitting the air as I entered the Supreme Court and was coming from
Hon’ble Justice M.M. Punchhi, former Chief Justice of India and an ardent and
vociferous supporter of Human Rights issues.
This was yet another case representing the troubled relationship in
common urban household. Mr. Gupta was 78 years old with an ailing 75 yrs. old
wife and was living in a two bedroom flat with his elder son, who was married
and had a wife and two children. Mr. Gupta had invested his entire earning in
making the house but had strained relationship with his son. He had approached
the Supreme Court with a letter petition for eviction of his son from the
house. The Court was finding it difficult to give any relief as any citizen can
approach the Supreme Court in writ jurisdiction only for violation of
fundamental rights. The son was holding a letter written by Mr. Gupta to
Municipal Corporation of Delhi, giving a room on rent of Rs.5 per month to
enable the son to start some domestic industry in the living room, which never
took off. It was submitted before the Supreme Court which the court appreciated
that there was violation of human rights in forcing an old man and his wife to
continue to live with his children, who had no respect, esteem and reverence
for them and directed the trial court to expeditiously look into the matter.
Violation of human rights
of old is unknown to the true Indian culture. Highest devotion and admiration
for the old in the family parents and teachers is echoed in both the great
epics. In Ramayan, Shri Ram just walks into the deep forest
for a 14 years exile and leaves the kingdom to respect the vows of his old
father Dashrath. In Mahabharat Bhishm who ends as great old
sire, in his young age takes the vow not to marry and have children to keep his
father happy and allow his step mothers children to enjoy the kingdom. Respect
for the elders and old people in the family at all occasions and get their true
blessings, which act as protective umbrella and divine shield to ward off all
evils, is deeply ingrained in the Indian
heritage and culture. On all occasions from the time of birth, birth days,
passing examinations, getting jobs, engagements, marriage and beyond, reverence
for the elders is deep and all pervasive.
-
Aruneshwar Gupta, President,
Law Consults
MAJOR FINDINGS OF THE STUDY
Need
of legal protection in old age
v Only 14.34% of
the respondents felt the need of legal protection in old age. When asked about
the need of legal protection in old age to older persons, only 7171 older
persons out of 50000 older persons interviewed said that there were some
occasions in their life when they felt that they should go for legal action
against their counterparts.
v Every sixth
older men (i.e. 17.27%) said that they wanted to take legal action at some
point of time in their life, while in the case of older women only 10.47% older
women said that they felt need of legal protection in their old age.
v In rural areas,
overall only 10.60% older persons (7.46% elderly women & 12.84% rural
elderly men) agreed that they felt the need to take legal protection in old
age, whereas in urban areas almost double of Rural areas i.e. 19.28%. 14.16%
urban elderly women and almost 1/4th (23.47) urban elderly men had
made their mind to take legal route to sort out their problems.
v Out of total
7171 older persons who felt the need of legal protection at some point of time
in their old age, majority of them (57.94% were from urban areas, while
remaining 42.06% older persons were from rural areas.
v When data of
older persons, who felt the need of legal protection further analyzed, it was
found that rural elderly women were far behind rural older men in thinking
about legal actions. In rural areas only 29.31% elderly women in comparison to
70.69% older men told that they were in need of legal protection. In urban
areas 33.02$% urban elderly women in comparison to 66.98 urban elderly men
thought to take legal step to get justice.
Filing
Legal cases by older Persons
v When asked
about actually registering cases or filing petitions, out of 7171 older persons only 1086 (15.14%) had
opted for legal route. Again 5 of every six older persons (84.86%) did not file
any legal case for seeking justice.
v Out of 1086
older person, who went ahead with legal route, 825 were older men against
remaining 261 older women.
v When this data was
further classified, it was found that majority of cases 60.87% were filed in
urban areas while 39.13% cases were filed by rural older persons.
v In rural areas
only 94 elderly women filed legal cases against violators, while in urban areas
167 elderly women opted for legal action in old age.
v Data collected
from sample respondents during the survey suggest that only 1.49% rural elderly
persons had taken legal route to solve their issues, while in urban areas 3.07%
of total urban elderly interviewed said that they had filed cases for legal
justice in old age.
v It was found
that less that 1% (0.79%) of rural elderly women had filed cases for seeking
legal justice in old age with various legal bodies, from Lok Adalat to Supreme
Court of India.
v Out of total
16603 rural older men, only 1.99% said that they had to opt for legal action in
old age and filed their application for justice with various courts of justice.
v In urban areas,
percentage of legal justice seeking older women was just 1.72 in comparison to 4.17 % of urban elderly persons.
Factors
responsible for discouraging older persons
v 84.86% of older
persons who felt the need of legal protection in old age, did not file their
cases with any legal authority due to various reasons. Out of 7171 older
persons, felt the need of legal protection, 6086 older persons never filed
legal cases.
o
88.43% elderly women in comparison to 83.21% elderly men
opted for not to go ahead with legal action, in order to seek justice in old
age.
First
priority given by respondents to various responsible factors
v When asked to
give priorities to the reasons/factors responsible for stopping older persons
to seek legal justice, as per first priority given by respondents, it was found
that :
o
Overall 27.28% of older persons (25.81% older women &
28% older men) who thought about legal procedure but did not move further, did
this due to lengthy legal process. They wanted not to waste their time or did
not want to visit courts in old age.
o
14.05% older persons (15.254 older women & 13.47%)
wanted to go for legal justice, but due to their weak financial condition, they
had not enough money to pay fees of lawyers, etc.
o
12.72% older persons were not supported by their family
members to opt for legal route for justice, hence they dropped their plan to
file case in any court.
o
12.08% older persons just dropped their plan to take legal
suite against concerned due to change of mind with passing of time, as their
problem were not of serious nature.
Second priority given by
respondents to various responsible factors
v When asked to
give second most priority to the responsible reasons/factors for apathy towards
legal system, it was revealed that lingering legal process and weak financial
status in old age are gain second most responsible factors, over all 22.96% and
13.49% older persons respectively agreed with
these reasons.
v While lengthy
legal procedure was major reason in second priority for both, older men &
older women, for older women second major reason was their weak financial
status in old age, and for older men it was high costs of lawyers, that
deterred them to leave the idea to fight for legal justice.
Legal
Cases of older Persons: Filed by them v/s Filed against them
v When
information collected from older persons respondents analyzed, it was found
that majority of cases (53.15%) were filed by other against older persons or
were against them, whereas 46.85 % cases were filed by older persons themselves
for seeking legal justice.
v Out of total
6167 cases in which older persons were involved, 2889 cases were filed by older
persons and 3278 cases were found filed against them. 44.42 % older women had
filed their cases for legal justice whereas 55.58% older men opted to take
legal steps to sort out their problems.
v From the study
it was found that almost 2/3rd (64.47%) cases in which older persons
were involved, were found old and older persons are involved in these cases
since when they were below 60 years of age.
v In only 35.53%
cases out of total cases filed by or against older persons were actually filed
by older persons in old age or were filed against older persons.
v According to
2886 out of 6167 court cased in which older persons are involved, 46.80% cases
were pending in various courts from 2 to 5 years and over 38% cases of older
persons are pending for more than 5 years.
v Over 14.82%
court cases of sample respondents with legal cases, admitted that they are
fighting legal battle for more than 10 years and still no judgment were given
to them.
v Even 109 older
women out of total 1587 older women found with legal cases pending with courts,
have been struggling to get legal justice for more than 10 years with various
courts.
Kinds
of legal cases of older persons
v 85.11% older
persons (5249 out of total 6167 older persons involved in court cases) were
found fighting civil cases in various courts while 14.89% older persons were
involved in criminal cases.
v Out of total
918 criminal cases 844 (91.94%) cases were of older men alone. Older women
found involved in only 74 criminal cases during the survey.
Awareness about the elderly friendly Legal provisions
v Only 19.98%
older persons (9990 older persons out of total 50000 older persons) admitted
that they are aware of some elderly friendly legal provisions available in the
country.
v Approx. 4/5th
(80.02%) of sample respondents had no knowledge of any special legal provisions
for older persons.
v In comparison
to older men, older women were less aware about the special legal provisions/
Acts in India. Only 13.22% older women in comparison to 25.09% older men have
some knowledge of older persons friendly legal provisions.
v When asked
about some special legal provisions and acts made for the welfare and
empowerment of older persons, only 6274 i.e. 12.55% older persons accepted that
they have heard about Maintenance & Welfare of Parents & Sr. Citizens
Act 2007. When data further analyzed, it was found that older women have very
less knowledge about the Act and only 7.06% older women admitted that they know
some provisions of this Act. 16.7% older men said that they know about the act.
v Second most
popular legal provision from the point
of view of older persons was RTI Act 2005. However, only 8.06% older persons
(11.05% older men & 4.10% older women) admitted that they had heard about
the legal provisions of the RTI Act.
v About other
legal provisions regarding older persons, awareness among respondent older
persons was negligible.
Attitude
towards legal system
v Older persons
seem to be pessimistic towards legal system of the country. It was reportedly
found from the study conducted among 50000 older persons that only 25.83% older
persons (12915 older persons) expressed their optimism or positive attitude
towards legal system of the country.
v More than 1/3rd
respondents (35.13% older persons) had expressed their apathy towards legal
procedures due to various reasons. Alarmingly, 38.9% older persons have not
much idea about the legal system, therefore they could not determine their
attitude and preferred to remain neutral.
Interactions with Legal practitioners
to assess the impact of legal provisions on
older persons
v During the
survey conducted by Agewell Research & Advocacy Centre, interviewers were
also asked to collect input from legal practitioners include judges, legal
advisors, counselors and human rights activists regarding older persons legal
problems.
v According to legal
practitioners, number of court cases pertaining to older persons has risen over
the years. Out of total 1000 legal practitioners interacted, 345 said that in
their opinion majority of older persons are involved in house/land property
related cases.
v 288 legal
practitioners opined that older persons are involved in legal suites related to
section 498a (anti dowry legal provision to protect women’s interests).
v 145 people
dealing with legal matters, interviewed during the survey said that most of the
older persons, who are involved in legal cases, are involved in cases of
domestic violence, etc.
v According to
122 legal practitioners (approx. 12%) majority of older persons are fighting
legal cases related to financial matters of having been cheated of their
deposits or non-payment of their dues in various courts of India.
Kinds
of legal cases, older persons involved in
v As per
responses received from sample 1000 people dealing with various legal matters
across the country, older persons are involved in property related legal cases.
According to 34.5% legal practitioners most of the older persons, who visit
courts, have legal issues pertaining to their land/house properties.
v Out of 1000
legal practitioners 288 said that cases filed against older persons u/s 498a is
major legal concern of older persons, as most older persons are involved in
such cases.
v When
interviewers asked these selected people with legal background about the role and importance of existing
legal provisions & practices in India so far as protection of Human rights
of older persons are concerned, only 21.4 % i.e. 214 respondents agreed that
existing legal provisions and practices are sufficient to protect human rights
of older persons.
v More than 3/4th
(48.6%) respondents said that these legal provisions are not enough to protect
rights and interests of older persons across the country. They were in favour
of more favourable laws and policies for older persons.
v Under the
survey it was attempted to assess the impact of legal system on various aspects
of older persons’ human rights protection. It was found that judiciary can play
a bigger role in sensitizing society towards needs & rights of older
persons. Out of 1000 respondents 304 admitted that judiciary can play an
important role in Sensitizing the society towards needs & rights of older
persons.
v 20.1 %
respondents said that effective and strong legal provision and practices will
play most important role in creating awareness in the society about legal and
human rights of older persons.
v According to
18.7% respondents judiciary plays most important role in protection of human
rights of older persons, while 162 persons were of the view that effective
legal system plays most important role in ensuring older persons friendly
environment in the society.
v 146 respondents
said that provisions for legal protection in old age encourages older persons
to fight for their rights.
v When data obtained from the 1000 sample respondents
analysed, it was found that 40.1% respondents said that most favourable legal
provision from older persons point of view is Maintenance and welfare of
Parents & Senior Citizens Act, 2007, which has many provisions in favour of
older persons.
v After that RTI Act 2005 was found as most fabourable
legal act, which provides great help to older perosns in old age.
v When asked about the legal provisions and practices which are being
misused by people against older persons i.e. the worst legal provisions from
the older persons point of view, it was found that Section 498a of Indian Penal
Code has affected most older persons negatively. According to almost half of
the respondents with law background (49.1%), admitted that older persons
victims of this provision.
v As per 302 respondents’ statements, domestic violence act is worst legal
provision as many young generation women misuses this act in their favour.
REPRESENTATIVE STATEMENTS OF RESPONDENTS
“I am 63-year-old separated woman with no financial
income and suffering from arthritic. I live with my son and daughter-in-law.
They had been harassing me for 5-6 years and verbally abuse me almost daily for
petty things. Now they denied me to even see my 1-year-old grandchildren’s
face. My life has become hell. I can’t leave them as there is no on to support
me. I quietly suffer this entire nuisance. I can’t take legal action against
them, firstly I have no money to hire lawyers and secondly I am doubtful about
legal proceedings, if I could not get legal justice in time, I would be on
footpaths.”
-Sumati Prajapati, a 63-year-old woman Bhopal, MP
“I have been fighting my legal battle for 15 years, since
I was 50, but all in vain. I have to spend a lot of money and precious time but
due to lethargic court proceedings I could not get anything till now. It has
become tough for me to take this court case ahead due to falling health
conditions, but at this stage I can not surrender. This turtle paced legal
system has forced me to hang on court premises.”
-Vikram Behl, 65-year-old person,
Gurgaon, Haryana
“Though my children do not take care of me, I could
not pull them in court. It’s a matter of our social prestige. If people in our
society would know about our court visits, it would be a shame for all of us.”
-Sukhdev Shukla, 75 years, Allahabad,
UP
“I prefer to suffer harassment and torture by my
family members instead filing court cases. Simply I don’t want another round of
torture in old age.”
-Hameeda Ansari, a 69-year-old lady,
Hyderabad, Andhra Pradesh
“In spite of my repeated efforts, police was not
interested to file my FIR, when I reported an incidence of looting my house at
gunpoint. Instead they suggest me to don’t indulge into a legal battle in Old
Age.”
-
S C Gupta,
75-year-old man, Sirsa, Haryana
“I have been sleeping on streets for more than 10
years. After death of my husband my children kicked me off from our own house. They
forced me to wander here & there in old age without any kind of support, medical
care and medicines. Any how I am alive today.
- Madhumati Biswas,
81-year-old widow, West Dinajpur, West Bengal
OBSERVATIONS
India
today is passing through an era of transition. From being a traditional society
for thousands of years the social norms are changing very fast.
While
the older generations still clings to its traditional value system and beliefs
younger people find it rather cumbersome to carry the burden of traditional
responsibilities and at the same time live up to expectations of a cut throat,
fast paced and competitive life.
Most
old people themselves as an individual are not well prepared for their own old
age and therefore their family members, society or the government... no one
seems to be informed and aware about how deal with Old Age.
While
the traditional family support system is diminishing for old people so far they
don’t even have any social security as well.
In
any case, it seems, in India today there is a trend of manipulation of law and
legal provisions by unscrupulous people to satisfy their own personal needs.
Elder
abuse has become the norm with most families, surpassing in many cases. Younger
family members do not even realize that their elders are being abused / neglected
/ discriminated by them.
Increasingly
old people in India today need effective legal provisions and its proper
implementation to protect themselves against adverse circumstances.
Most
old people after retirement have to change their lifestyle completely. They
become financially, socially, emotionally, physically and in every other way
disabled. They suddenly find themselves
cut off from their network of friends and also realize that they cannot
maintain their lifestyle anymore because they do not earn enough or in most
cased do not earn at all.
Most
old people are not more looked up to or respected for their experience,
knowledge and wisdom. Usually they fall prey to wrong doers, within their
families and society.
While
in urban areas particularly amongst the educated and aware old people, there is
an acknowledgement about some of the legal provisions available to protect
their rights, it was found that in rural and backward areas (read almost 70%)
of the country awareness or knowledge about elderly friendly legal provisions
is negligible.
Old
people everywhere are always hesitant in getting involved with court cases,
they seem to be reluctant to visit courts even for their own good. Even those
who are somehow involved they also continue to regret their involvement in
court cases or any kind of legal formalities. Most old people in India prefer
to compromise instead of attending court hearings and often pay heavy prices by
giving up their rights and interests.
During
the course of interactions it was observed that there is a significant path of younger
old (60 to 70 years) particularly in urban aras, who are better educated and
sensitive towards their rights… they never hesitate to raise a voice and also
to seek legal route to settle their problems in old age.
While
Old Age management is becoming a significant subject for all concerned across
India the sensitivity to address the needs and rights of old people is still at
its recessant stage.
It
is quite obvious that India’s social, traditional and cultural norms need to be
complimented. By comprehensive and effective legal provisions as well as
practices to protect human rights of old people in a sensitive and humane way.
It
demands a complete review of all the legal provisions and practices to protect
Human Rights of old people in India.
CONCLUSION
The population
of old people in India is increasing dramatically. However, as is the case with
most developing countries in India too they have so far remained marginalized
and under privileged with more focus on children, women and youth in the
society.
Now with ever
increasing number of old people their voice is difficult to be ignored. Their
needs & rights are seeking every one’s attention. Their demand for
equitable share in the mainstream is reaching unprecedented levels. It is
becoming increasingly difficult to ignore their human rights for the
authorities, judicial system and the government.
Though legal
provisions and practices have very little to do with old age, but it certainly
determines the path of building and developing an environment full of social
harmony towards elderly. Therefore there is an urgent need to relook at the existing
legal provisions and come up with more equitable, effective and strong legal
provisions to encourage older persons-friendly legal practices in the country.
The same should be followed by spreading of awareness with equal zeal.
***
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