|Volume 7 | Issue 01 | January 2013 ||
Can Children Deny Maintaining their Elderly Parents?
Right from the moment a child is conceived, the well-being of the child becomes the parents' primary concern. Over the years, the parents shower the child with love and affection and eagerly spend money, effort, time and energy after them. Simultaneously the parents also grow old and then comes the time when the tables turn and 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. However, social changes have resulted in a gap between expectations and practice. 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? This article shall explore the legal aspects of this social problem of maintaining parents in their old age.
There are various excuses for not taking care of the parents provided by children. 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.
The social initiative to tackle the problem of elderly persons has started long ago across the world with the introduction, execution and acceptance of old homes. In Bangladesh, too, private initiatives and assistance from NGOs have been of paramount significance to provide shelter to the elderly homeless. The Probin Hitoishi Shangha Hospital and Home for the Aged and Boyeshko Punorbashon Kendra, situated in Gazipur, are two good examples.
The attempts to tackle this problem legally, however, are at different levels in different countries. In regard to Bangladesh, there was no specific legal framework regarding maintenance of elderly parents until 2011, the year when the Maintenance to Parents Act 2011 was passed.
However, our neighbouring country India seems much ahead of Bangladesh in tackling this problem. Since the early 1970s the Indian courts have been using a legal provision enshrined in Section 125 (1) (d) of the Code of Criminal Procedure, 1973, whereby a Magistrate can order children to make a payment of monthly allowance as maintenance to their Parents (father or mother). In different cases, the Supreme Court and various High Courts of India have pronounced some major decisions. In Pandurang Bhaurao Dabhade vs. Baburao Baburao Dabhade and another (1980 CriLJ 256 = 1980 (82) BOMLR 116), the court decided that father or mother must be unable to maintain himself or herself in order for the legal provision to apply. Moreover, fulfillment of parental obligation is not a pre-condition to claim maintenance. Further, in Dr. Mrs. Vijaya Manohar Arbat vs. Kashirao Rajaram Sawai & another (AIR 1987 SC 1100), the court emphasised that the daughter is liable to pay maintenance to parents. In Baban Alias Madhav Dagadu Dange vs. Parvatibai Dagadu Dange (1978 CriLJ 1436 = 1978 (80) BOMLR 305) court declared that adoptive mother can claim maintenance as well. Step-mother can claim maintenance as evident from Kirtikant D. Vadodaria vs. State of Gujarat and another (1996(4) SCC 479). The application for maintenance was to be filed where the son /daughter lives (Vijay Kumar Prasad vs. State of Bihar & Others (2004 AIR 2123).
In Bangladesh, after the passing of the Maintenance to Parents Act 2011, the first case has been filed by the Rangamati Unit of Bangladesh Legal Aid and Services Trust (BLAST) in the Chief Judicial Magistrate Court under the Rangamati District on behalf of a justice seeker. The applicant, an 80-year-old woman named Rupa Begum (not her real name), has sought help to take proper legal actions as per Section 3 of Maintenance to Parents Act 2011, against her only son, Fahim, (age 54), and her daughter in law, Farida (age 48).
When the applicant's husband became gravely ill, Defendant no. 1, being the only son of the applicant, registered all the properties, belonging to his father, under his name. But after being registered as the owner, he did not fulfill his promise of taking care of his parents and neither paid for all their medical expenses. Due to Defendant no.1's negligence of not acting as required, the applicant and her husband, on 31/03/2003 had applied and filed a case to the Civil judge at the District Court. They requested to make the Mutation deed void, through which the property was gifted to the son, Defendant no.1. The civil number was 42/03 and the judgment was given in favour of the applicant. Later on, when appealed, the decision was upheld and Defendant no.1 and Defendant no.2, the son and the daughter-in-law, asked for forgiveness and promised to maintain their parents in the future, leading to the withdrawal of the case. However, the defendants have not adhered to their promise. Defendant no.1's father, passed away on January 30, 2004 due to extreme negligence, ignorance and lack of medical help while the 80-year-old severely ill mother has been left to reside separately alone for the last 10 years.
Notably in 2011, the applicant was admitted at the Rangamati General Hospital for severe cardiac problems but the informed defendants did not visit her at the hospital or at her home. In February 2012 again when the applicant was severely ill, the defendants upon hearing about the likely cost of her maintenance and medical expenses was furious and refused to pay as requested. On 10/02/2012, the applicant, with the help of her daughter, other relatives and her doctor availed proper treatment while the defendants remained uninvolved, despite continuously being informed about her deteriorating condition. It eventually led to the filing of the petition under the new 2011 Act.
Therefore, upon request, the CJM Court took the cognizance against the defendants and issued summon and fixed the date on March 4, 2012. The non-payment of her medical bills and maintenance cost, along with the attitude of the Defendants of not regularly inquiring about the applicant's condition and ensuring her a proper shelter with the family has pushed the applicant towards extreme insecurity, loneliness and mental agony. Thus a judgment in her favour was demanded while a request was made to order the defendants to pay for all the medical cost of the defendant since 2003 and to provide her with Tk.5,000 per month for her maintenance. In addition to all the claims, the court is requested to make any orders as applicable as per Maintenance to Parents Act 2011,which the applicant is entitled to: socially or legally.
Advocate Jewel Dewan, from the Rangamati Unit of BLAST, informed that on March 4, 2012, the accused persons surrendered before the court as their bail was rejected. They were sent to jail as the court found severe negligence to the aggrieved woman from their part. The Judgment is pending under Section 3 of the 2011 Act. The man behind the initiative, Advocate Jewel Dewan, further added that along with the majority of the people residing in Rangamati, the judge was deeply saddened by the incident. As for the arrangement of the old woman, there was a hearing on September 6, 2012 and a further hearing was scheduled to take place at the end of October but the final judgment was not given then and is yet to be given. However, it is our hope that the court's decision will uphold the rights of the elderly mother, and the law enforcing authority will be cordial in enforcing the decision of the case because this case will create an example of how legal mechanism can really protect the rights of elderly parents.
While there may be long discussions on what social, cultural and economic measures can be taken to prevent the adverse situations faced by the poor elderly parents in cases where their children deny maintaining them, the 2011 law has made one thing obvious that -- maintenance of parents at their old age is a legal responsibility of their children, and if the children deny this responsibility, there is law in Bangladesh to make them accountable.
Mariha Zaman Khan, an LLB Student, is a member of the Young Writers' Club, Bangladesh. She acknowledges the suggestions and inputs from Dr Zahidul Islam Biswas in improving this article.
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