Elder Abuse in India: An Legal Overview

image description

World Elder Abuse Awareness Day

15 June was officially recognized by the United Nations General Assembly in December 2011 following a request by the International Network for the Prevention of Elder Abuse (INPEA) passing UN resolution 66/127. This day was also launched by the International Network for the Prevention of Elder Abuse and the World health organization at the United Nations.

 According to the UN, around 1in 6 older people experience some form of abuse. It is predicted to rise as populations age worldwide. No doubt elder abuse may lead to serious physical injuries and long-term psychological consequences. It is a global social issue which affects the health and human rights of millions of older persons around the world.

Research has also shown that elderly abuse, neglect, violence and exploitation are one of the biggest issues that senior citizens are facing around the world. 

According to World Health Organization data, 4 to 6 percent of elderly suffer from some form of abuse and a large percent of which goes unreported. In the world population of people aged 60 years and older will more than double that is from 900 million in 2015 to about 2 billion in 2050.

The objective of the World Elder Abuse Awareness Day 

 The main objective of this day is to provide an opportunity for communities around the globe to promote a better understanding of abuse and neglect of older persons by creating awareness of the cultural, social, economic and demographic processes affecting elder abuse and neglect.

Significance of World Elder Abuse Awareness Day:

The abuse of elderly people is one of the least addressed problems in the world, but it is fast gaining attention. The day is marked with the idea that people from every nation will come together to lend their voice against the abuse and suffering that is inflicted on the older generation. It is a global social issue that affects the health and rights of millions of older people, and a problem that deserves the attention of the international community.

 

What is Elder abuse?
In the whole world, we can see abuse of elder and it is a very common problem that elder faces in their lives. Elder abuse can be seen in many forms like physical, emotional, sexual, financial and neglection also. How can we forget that elders are also human, they also deserve dignity and respect as other people in other age groups wants? Elders are also like parents and are parents of someone. Because of them, we came into the world and when they need us, we left them. We have to understand the main reason and cause of the problem and sort it out rather than leaving elders.

Who is an Elder? 

The term "elderly" is not defined anywhere. Although there are commonly used definitions of old age, there is no general agreement on the age at which a person becomes old. The common use of a calendar age to mark the threshold of old age assumes equivalence with biological age, yet at the same time, it is generally accepted that these two are not necessarily synonymous.

What are the kinds of  Elder Abuses?  

Such abuse is generally divided into the following categories:

  •  Physical abuse – The infliction of pain or injury, physical coercion, or physical or drug-induced restraint. 
  • Psychological or emotional abuse – The infliction of mental anguish. 
  • Financial or material abuse – The illegal or improper exploitation or use of funds or resources of the older person. 
  • Sexual abuse – Non-consensual sexual contact of any kind with the older person. 

Neglect – The refusal or failure to fulfil a care giving obligation. This may or may not involve a conscious and intentional attempt to inflict physical or emotional distress on the older person. Gender has been proposed by some as a defining factor in elder abuse on the grounds that older women may have been subject to oppression and economically disadvantaged all their lives. However, according to community-based prevalence studies, it appears that older men are at risk of abuse by spouses, adult children and other relatives in about the same proportions as women.

Indian Laws related to Elders 

Indian legal system has not acknowledged the concept of „elder abuse‟ and hence no legislative protection exists against elder abuse. Though there is no specific and separate legislation for prevention of elder abuse, the following is the enumeration of the dispersed provisions in the Indian legal system which covers a section of elders.

Physical Abuse: 

Indian Penal Code, 1860- is a generic enactment which penalizes almost all kinds of abuses generally against everybody irrespective of gender, age, race, caste etc. 

Financial Abuse: The Criminal Procedure Code, 1973 – Section 125 of the Criminal Procedure Code allows maintenance to parents and wife which indirectly covers the interim maintenance of elder parents ensuring the economic security of the elders. 

The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 – This Act aims at protecting the elders under Clause 5(1) of the Act, a senior citizen or a parent may apply for maintenance under Clause 4 of the Act. A senior citizen is an Indian citizen who is at least 60 years old. A parent could be father or mother, whether biological, adoptive or stepfather or stepmother, whether or not the father or the mother is a senior citizen.

The Protection of Women from Domestic Violence Act, 2005 – 

The said Act is enacted with the aim of protecting the women from the subjection of any kind of Domestic Violence in her domestic relations. The Act defines Domestic Violence as “For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it – 

(a)Harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

 (b) Harasses harms injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) Has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or (d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person. 

It defines Domestic Relationship as- "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family”

 This is another enactment which covers the protection of one of the components of elders in India i.e. elderly women against any kind of domestic violence including physical, mental or financial abuse.

Judicial Efforts to protect elders

Indian judiciary plays a vital role to protect elders from various abuses from time to time. 

In the case of Dattatrey Shivaji Mane v. Lilabai Shivaji Mane, Bombay High Court while highlighting the object of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Senior Citizen Act) held that the Act permits a senior citizen including a parent who is unable to maintain himself from his earning or out of the property owned by him and if such senior citizen is unable to lead a normal life to apply for such relief i.e. eviction under Section 4 of the Act not only against his children but also the grandchildren.

In the case of Sunny Paul  Vs. State NCT of Delhi, wherein it was held that that the claim for eviction is maintainable under Section 4 of the said Act read with various other provisions of the said Act by a senior citizen against his children and also the grandchildren. 

In the case of Senior Citizen Welfare Organization vs. State of Uttarakhand High Court of Uttarakhand while recognizing the failure of State to maintain adequate old age homes for the senior citizens in the State has issued a slew of mandatory directions. And held Every Senor Citizen has Right to Live with Dignity.

In the case of Pramod Ranjankar v. Arunashankar Court held about the Right of Senior Citizen over Immovable Property and Eviction of Abusive Children. 

The High Court of Chhattisgarh in the case directed the respondents to evict their parents’ house on the basis of the following observations in the case:

Liberal Interpretation of Section 24- That reading of Section 24 would show that it started with opening words “the exposure and abandonment of senior citizen” meaning thereby the entire object is to protect the senior citizen. That having regard to the object of the Act and the intention of the legislature, there is no reason or justification or indication to restrict the meaning and scope of the word protection.

That reading of section 24 of the Act shows that it gives protection to the senior citizens in any place if they are abandoned and the said act is punishable with imprisonment of 3 months or fine thereby the person who intentionally abandons a senior citizen is liable for punishment. Reading of the above provision shows that it is intended to provide for a preventive remedy for the safety of senior citizen which can be granted quickly.

Transfer to be Void if Basic Needs to Transferor is not Provided- That a combined reading of Sections 23 and 24 of the Act would show that even if the property has been transferred by way of a gift or otherwise to the transferee, in lieu of such transfer of property the transferee has to provide basic amenities and physical needs to the transferor and if the transferee refuses or fails to provide such amenities and needs, the said transfer can be annulled.

That the object of the Act, 2007 calls for a simple, speedy but limited relief and seeks to ensure that the parents are not shelved as a commodity or a good under the scrap/heap of society and allow the children to sail on their immorality for their own subsistence.

Magistrate’s Duty under Section 22 of the Act- The jurisdiction conferred by Section 22 on the Magistrate is more in nature of a preventive, rather than a remedial jurisdiction. In view of this, it is the duty of the Magistrate to interpret the provisions in such a way that the construction placed on them would not defeat the very object of the legislation.

Conclusion and Suggestions

There has been enough suffering in our Country. There has been enough of children whose dreams die before they have a chance to grow and there has been enough of our elders who, having served their nation, are forced into indignity in their old age.

To respect the work and contribution of the elders towards the building of the future generation of the nations, one should try and protect them from undignified treatment and abuse. In a comprehensive sense, one can resort to various methods of preventing elder abuse. However, the legal method would prove to be the most effective method and more so if protection comes with the sanction of criminal punishment.