From the very moment, a child is conceived, its maintenance and welfare become the utmost concern of parents and they devote and invest their time, money, energy and concentration for proper bringing up of their children. It is a sacred duty of the children to maintain their parents when the parents become older, but as the economic downturn deepens and family traditions weaken, more children are reportedly finding it tougher to maintain their aged parents and eventually many elderly people now live apart from their children. In family law, maintenance or Nafqah is often used as a synonym for spousal support or alimony, and the term is, in fact, replacing alimony. Maintenance comprehends food, raiment and lodging, though in common parlance it is limited to food.
The government of Bangladesh has enacted a landmark law in this regard named Pita Matar Voron Poshon Ain (2013) to ensure the maintenance of elderly parents by their children. Prior to enacting this Act, there was no specific legislation to bring any legal action for maintenance by the parents against their children. Hence, formerly they could initiate a lawsuit only under Section 5(d) of the Family Courts Ordinance (1985) for maintenance. But the filing of lawsuits by the parents for maintenance under this Ordinance against their issues has not been noticed in wide practice as the provision has not been categorically engrafted therein.
Section 3 of the Act deals with the maintenance of parents which envisages in sub-Section (1) that every child shall ensure the maintenance of his or her parents and sub-Section (2) clarifies that if there be more than one child alive to the parents they having consulted with each other shall ensure the maintenance of his or her parents. The Section also makes it incumbent in its sub-Section (3) that upon the children to live with their parents. Today there is a common phenomenon in our society that the offspring leave their aged parents in parents care centre or old home and the parents live there in miserable condition. To prevent this undesirable practice, provisions have been incorporated in this Section which provide in its sub-Section (4) that the children shall never compel their parents to live in parents care or in any other place against their will.
Again Section 4 contains provisions regarding the maintenance of grand-parents in absence of their children which enacts that the grandparents are entitled to claim maintenance from their grandchildren in absence of their children. Section 5 provides the penalty for not providing maintenance of parents which envisages that if any child transgresses the provisions of sections 3 and 4 of the Act he shall be liable to pay fine up to 1 lac taka failing to pay which makes him liable to suffer imprisonment up to three months. Section 6 deals with the nature of the offence which further narrates that the offences committed under this Act are cognizable, bailable and compoundable. Section 7 contains that notwithstanding anything contained in the Cr.P.C (1898) complaint about the offence shall be filed in the First Class Magistrate Court or Metropolitan Magistrate Court. The Section further adds that no Court shall take cognizance of the offence under the Act except upon a complaint filed by the parents or upon a complaint written by the parents.
***penalty for not providing maintenance of parents which envisages that
if any child transgresses the provisions of sections 3 and 4 of the Act
he shall be liable to pay fine up to 1 lac taka failing to pay which
makes him liable to suffer imprisonment up to three months.***
Section 8 contains provisions regarding the process of arbitration and mediation and provides the scope for the complaint to be disposed of by compromise between the parties. According to this Section the Court may send the complaint to the local government representatives, e.g., concerned Chairman, Member of Union Council or Mayor, Counselor of City Corporation or to any competent person to resolve the complaint by compromise and if they can arrive at any decision it shall be deemed to be the competent Court. Finally, Section 9 of the Act deals with the rulemaking power of the government which empowers the government to frame rules for the purpose of fulfilling the object of the Act but no rules have yet been framed.
Though this Act may be treated as the landmark in case of ensuring the sacred duty by the children to maintain their parents, it has some pitfalls. It may be shorted out that this Act deals only with the natural or biological parents and children and does not clarify whether the consanguine, uterine, adoptive, foster and step parents and illegitimate, step and adopted children shall fall within the purview of this Act or not. There are no provisions of the order of interim maintenance for the parents to be paid during the pendency of the suit. Another defect of the Act is that cognizance of Court under the Act has been made conditional in Section 7 which stipulates that no Court shall take cognizance of offence under the Act except upon a complaint filed by the parents or upon a complaint written by the parents, but different situations may arise where parents might be illiterate or may not be in a position to file complaint themselves or the parents may be unduly influenced or emotionally blackmailed by their children or may be reluctant to file a complaint against the children on any other ground. This Act does not provide any special products for ensuring speedy trial of the offences committed under the Act, which is a unique feature of a Special Act.
Despite having some lacunas in the Act, we should appreciate the government for enacting such type of remedial and beneficial statute, which will be a basis for securing the maintenance of their parents.
Arif Ahmed is an Advocate, Supreme Court of Bangladesh. He also serves as Senior Lecturer in Law at Southeast University.
