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Rethinking Section 23 Of Maintenance And Welfare Of Parents And Senior Citizens Act, 2007

Few positions have been as respected and valued as that of the elder throughout the vast fabric of human civilization. All throughout history, they have been revered as treasuries of knowledge, carriers of vital lessons, and keepers of priceless traditions. Age is more than just a number; it is a heroic journey, one in which every senior person takes on the role of a hero charged with protecting the heart of our collective past.

The Indian culture emphasises this thought through a collective of stories like that of Lord Ram in the Ramayana, where he unconditionally follows his father's orders and sacrifices his throne and moves to forest with his wife and brother, and of Lord Parashuraam, wherein he follows his father's orders to kill his siblings and mother for disobeying him. Other stories such as Shravankumar carrying his blind old parents on his shoulders, and Ravana trying to uplift the whole Kailash to just fulfil his mother's wishes give us a peek at how much Indian culture values elders and parents in general.

Unfortunately, with increased harassment of the elderly in recent years, the Indian legal landscape witnessed the adoption of the Maintenance and Welfare of Parents and Senior Citizens Act in 2007 to safeguard the elderly. In fact, the preamble of the act reads as:
"An Act to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognized under the Constitution and for matters connected therewith or incidental thereto," thereby assuring that this act is there to provide a more advantageous protection of rights to the elderly. However, one clause of the legislation appears to contradict the preamble and hence the act's purpose.

Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, might be considered the heart and soul of the entire legislation, since it is the source of most of the disputes and cases accessible as citations under the elderly laws. It provides an option of revocation of transfer of property through gift or otherwise to the elderly if the beneficiary fails to take care of and provide the elderly with basic amenities when there is a pre-condition of maintenance in the gift (or other modes).

To someone who is unaware of the laws enacted under different acts, this appears to be a logical and, in fact, a progressive law. However, for a persons concerned with law, the provision is similar to a well-known idea of revocation of gifts under the Transfer of Property Act (Hereinafter referred as TP Act). Under sec.126 of the TP Act, the donor has the power to revoke the gift if the donee has agreed to a particular condition and fails to fulfil it (subject to other conditions such as the condition should not depend on the will of the donor).

If we compare the two provisions, Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act does not necessarily address a new wrong that is not already addressed by Section 126 of the Transfer of Property Act or introduce a new remedy. The Transfer of Property Act's Section 126, which addresses the revocation of gifts, establishes guidelines for the situations and scenarios in which a gift may be withdrawn.

It is an all-encompassing clause that covers all donations, even those from senior citizens. On the other hand, the Maintenance of Parents Act's Section 23 particularly addresses transfers of property made by older persons with the proviso that the transferee meets the transferor's physical and fundamental requirements.

The transfer may be deemed invalid by the Tribunal under Section 23 if the transferee disregards these requirements. Except that 23 mentions the explicit condition, there would be no "effective provision" as envisaged under the preamble of the Act. This would be the case if one applies literal interpretation of statutes.

Take a hypothetical example where an elderly man gifts his property to his son thinking that he will take care of him in the future but does not explicitly state it or mention it in the gift deed or to him personally. This is where the cultural significance of the elders become important. In India, at least culturally and historically speaking, love is not something that can be put into a piece of paper.

It is not something that can be valued, or rather it is not something that should be valued. A father gifting his son a property need not even think about adding a condition that guarantees his future well-being, and in fact most of the gift deeds go like this- "gifting this property due to love and affection."

When someone is gifting something with love and affection, why would there be need of adding an extra clause to make sure that the other person shows love and affection back. In the example given above, the son throws his father out of the house without giving him any basic facilities, what would happen now when we interpret the provision literally? The old man would be left with no house and no family and thereby, in my opinion, this defeats the whole purpose of the act.

However, thanks to development of common law, we have other modes of interpretation too which, if we choose to apply, would remedy the wrong and provide justice to that old man like that of the mischief rule or golden rule. However sadly enough, the Supreme Court of India in its recent judgement chose to go with the literal rule of interpretation in the case of Sudesh Chhikara v. Ramti Devi[1] wherein it stated that the deed cannot be cancelled if it does not specifically state the condition for providing the basic amenities and basic physical needs to the transferor, thereby setting a dangerous precedent to the lower courts.

The court even rejected the idea of implied conditions in gift by stating "When a senior citizen parts with his or her property by executing a gift or a release or otherwise in favour of his or her near and dear ones, a condition of looking after the senior citizen is not necessarily attached to it. On the contrary, very often, such transfers are made out of love and affection without any expectation in return. Therefore, when it is alleged that the conditions mentioned in sub-section (1) of Section 23 are attached to a transfer, existence of such conditions must be established before the Tribunal".

In my humble opinion, the court fails to consider the overlapping similarities between the revocation of gifts under TP Act and Maintenance of Parents Act and also fails to see the object and purpose of the act while delivering this order. The court should set an order that makes it binding for children to take care of their parents with or without an explicit condition, that upholds our moral, cultural and ethical values and more importantly, provides complete justice.

  1. 2022 SCC OnLine SC 1684
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