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A Benevolent Law

This Article is authored by Advocate Anil Malhotra.

The adage blood is thicker than water is diluted by the saying money makes the mare go. The parallel is drawn to the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (MWPSCA), which was enacted to provide for more effective provisions for maintenance and welfare of parents & senior citizens as Constitution of India recognizes right to life and personal liberty. Gradual societal break down of joint family system, horrific instances of neglect, exploitation, crime, abandonment and grabbing of property of parents and senior citizens necessitated MWPSCA. Elderly persons and widows spending twilight years after dedicated toil in upbringing of children are shunted out from their properties with utmost apathy, cold blooded intentions and gross ignorance of parental respect. MWPSCA came as a crutch to rehabilitate such elders in a pitiable state.

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 Such sale, gift and exchange are irreversible and cannot be sought to be revoked, rescinded, withdrawn or cancelled by parties unless a cancellation of such instrument is ordered by a Court under Specific Relief Act, 1963 (SRA).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 time consuming 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 & slow.

MWPSCA combats this social challenge. It provides a simple, inexpensive and expeditious process to suffering parents before District Magistrate (DM) to claim maintenance for financial support from their children. It casts an obligation on inheritors of property of aged relatives to maintain them. Most effective exception carved out in 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 there is violation. 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 expensive 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”. Benevolence, thus rules the roost. 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 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 & daughter-in-law can be evicted as they are “at best licensees” living in the property, as “A nation that cannot take care of its aged, old & infirm citizens cannot be regarded as having achieved complete civilization”. Supreme Court balancing Protection of Women from Domestic Violence Act, 2005 mandates a balance. These erudite verdicts deserve praise.

The commendable law requires publicity, awareness and extensive media circulation. 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 compulsorily contain a provision of conditional transfer, i.e. subject to basic amenities and facilities being provided, the transfer will be deemed to have been made by fraud or coercion or undue influence. Gaps of lack of knowledge or ignorance of protective cover of MWPSCA must be filled. Duty of the Government must extend this caring shield. Sad but true. It is unfortunate that Indian family ethos of flowing of blessings of elders to their offspring, reciprocally with care and lookafter in the evening of their lives, has been overtaken by greed, lust and undue haste to acquire property by hook or crook. Even parents are not spared. Charity does not begin at home. Rat race to become rich fast and quick begins with plunder at home. Parents are dragged to Court to challenge verdicts under MWPSCA but tend to be thrown out summarily with penal costs. Message of MWPSCA is clear. No short cuts to property. Elders cannot be treated shabbily. Respect must be restored. Hail MWPSCA.


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