Postmortem of Parental Responsibility Act 2013

Md. Rafiqul Islam Hossaini:

Parents are the best blessings and gifts from the Almighty. It is our moral and legal responsibility to ensure the maintenance of our parents. To ensure this responsibility, the Government of People’s Republic of Bangladesh has enacted a magnificent law regarding this matter namely the “Parental Responsibility Act 2013”. Section 2(b) of the said Act of 2013 defined “maintenance” which means to ensure food, cloths, medical facilities, living facilities and giving company to the parents. Section 3 of the said Act of 2013 made the maintenance of the parents as mandatory, violating which will be counted as a criminally punishable offence. In consequences, Section 6 of the said Act made the offence as cognizable, bailable and compoundable.

However, there are some loopholes in the said Act which need immediate interference by the concern authority of the Government. Section 154 of the Code of Criminal Procedure 1898 says “Every information relating to the commission of a cognizable offence if given orally to an officer in charge of a police-station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Government may prescribe in this behalf.”.

Therefore, section 154 of the Code of Criminal Procedure says that any informant (N.B.: not the victim himself) may go to the police station to lodge a First Information Report (FIR) regarding any cognizable offence. Moreover Regulation 244 of The Police Regulations of Bengal 1943 clearly specifies that “a First Information Report (FIR) must be recorded in respect of any cognizable complaint preferred before the police”. This issue is further confirmed by the Honorable High Court Division of Bangladesh in the reported case of NariPokkho and others vs. Bangladesh and others in Writ Petition NO.5541 of 2015. Although, Section 6 of the said Act of 2013 made the offence under this act as cognizable, bailable and compoundable, it is highly unlikely that an offence which is cognizable is also bailable and compoundable at the same time. Moreover section 7(2) of the Said Act of 2013 says that, no offence under this act shall be taken into account without the written complaint of the concerned parents. Therefore The Said Act of 2013 is itself contradictory with the relevant provision of the Code of Criminal Procedure 1898 and the relevant regulation of The Police Regulations of Bengal 1943.

According to the common social practice of Bangladesh it is very much unlikely that parents will go to the court for the protection of their rights against their own children. Moreover if the parents are compelled to stay in old home or to stay separately and are not provided with good financial support they have no option but to accept the oppression from their own children. The laws of Bangladesh are not playing the sufficient role for ensuring their legal protection. Where the Said Act of the 2013 contains a compulsory provision for the parents to complain against their own children for the protection of their maintenance. As per the said Act of 2013, no one except the parents can complain before the concerned authority which is a gross violation of article 27 of the constitution of People’s Republic of Bangladesh as it says “All citizens are equal before law and are entitled to equal protection of law.”Moreover, this point is also contrary to Articles 31, 32 and 36 of the constitution of Bangladesh. As Article 31 of the constitution says, “To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.” Moreover Article 32 of the constitution says “No person shall be deprived of life or personal liberty save in accordance with law”.  Furthermore, Article 36 of the constitution of Bangladesh says, “subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to move freely throughout Bangladesh, to reside and settle in any place therein and to leave and re-enter Bangladesh”. In this regard, the High Court Division of the Supreme Court of Bangladesh cannot remain silent in respect of the continuous violation of the fundamental rights of the vulnerable and victimized citizens of the state which is ensured to them by the constitution itself. Article 44 (1) of the Constitution ensured that, “The right to move the High Court Division in accordance with clause (1) of article 102, for the enforcement of the rights conferred by this Part is guaranteed”. Moreover, Article 102 (1) of the Constitution of Bangladesh states that, “The High Court Division on the application of any person aggrieved, may give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any of the fundamental rights conferred by Part III of this Constitution”.

Nevertheless, Section 5 of the Said Act of 2013 ensures punishment for the offence for not providing maintenance of the parents. According to this section the punishment is fine of Taka up to 1 lac and to impose imprisonment up to three months if the order for fine is not complied with. Section 7 of the Said Act 2013 made this often cetriable by The First Class Judicial Magistrate or Metropolitan Magistrate. Imposing pecuniary punishment of by the Judicial or Metropolitan magistrate and also imposing imprisonment as a nature of contempt of court, is also rare and as such this Act of 2013 introduced a hybrid practice in Bangladesh. Though, it can not undoubtedly be ignored that the punishment under The Said Act of 2013 is not proportionate to the cruel activities against the parents.

However it is definitely appreciable that section 5(3) of the said Act of 2013 made it punishable if the person, wife or husband, son or daughter or any other relative do not cooperate in providing the maintenance of parents. Moreover the Government of Bangladesh has taken tremendous steps in supervising the maintenance for the parents by way of establishing national committee, district committee, upazilla and municipal committees. Such steps of Government is highly appreciated as it will ensure access to justice and equal protection of law in various levels of the country. Moreover the governmental and non-governmental organizations, aggrieved persons and organizations working in legal sector should be given unconditional authority to work for the legal protection of the vulnerable and the victimized parents.

In conclusion it can be said that this Act of 2013 is prima facie against some established legal maxims and the Code of Criminal Procedure hence it does not go with the mainstream legal process. Apart from this the said Act of 2013 is also contrary to some Fundamental Rights ensured in Chapter 3 of the Constitution. Therefore, proportionate and significant amendment of the relevant provisions of the said Act of 2013 is a crying need of the time.

Md. Rafiqul Islam Hossaini: Advocate & Social Activist Email: advrih@gmail.com