Islam commands us to treat our parents with respect, obey them and respect their opinions. In pursuance of these commands, the Protection of Parents Ordinance, 2021 has been promulgated in Pakistan. This piece of law, as reduced in writing and shaped into an Ordinance, requires critical analysis in order to be understood better.
In the definitional clause, a “child” has been defined as a direct descendant over the age of 18 years and includes any offspring of any age of such descendant. This means that the Ordinance also gives protection to any direct descendant of a parent below the age of 18 years. A “parent” has been defined as a mother, or father, or grandmother or grandfather.
The Ordinance provides two forums for legal proceedings: the court of a judicial magistrate and the Deputy Commissioner of a concerned district. The judicial magistrate has been conferred jurisdiction in matters where a child has evicted a parent, while the Deputy Commissioner may assume jurisdiction when a parent requires a child to be evicted. The Deputy Commissioner has to conclude proceedings preferably within 7 days from the date of filing of complaint, but in no case later in 14 days. Both judicial magistrate and Deputy Commissioner may award a sentence provided in the Ordinance. A party aggrieved with the order of the Deputy Commissioner may also file an appeal before the Court of Sessions. The Court of Sessions as defined in the Ordinance includes a Court of Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge. On the other hand, an appeal against an order passed by the judicial magistrate would be governed by the provisions of the Code of Criminal Procedure, 1898.
The offence covered in the Ordinance has been made cognizable. The police may arrest any person guilty of such an offence without warrant. The service of notice through electronic means has also been introduced and the same has been added besides other methods in the service of summons.
It is important to note that the protection granted by the Ordinance is in the nature of maintenance. It would not create any right in property in favour of a parent, if the parent had not been owning the property at the time of dispossession. Similarly, a child may be evicted from the property owned or possessed by a parent in any manner. However, where a child owns the property, a parent has been granted protection from dispossession without altering the position of the child owner.
The following features of the Ordinance require further reconsideration:
- The forum/court for trial has not been defined in the definitional clause.
- Two forums have been provided for the redressal of grievances and two different forums for appeal have also been provided. Both forums will undertake trial under different laws. This aspect of the Ordinance is different from previous practices which usually confer jurisdiction by creating special forums/court, or upon ordinary courts by notifying the same under the Act/Ordinance. The provision of two different forums neither imparts any wisdom nor serves the purpose of law.
- No procedure has been laid down for extending the time prescribed for the conclusion of a trial in case the forum or court needs extension for any plausible reason.
- There is contradiction between subsections 1 and 5 of Section 4 of the Ordinance. Subsection 1 provides that a parent shall have the right to evict a child, the spouse of a child or the offspring of a child from a house ‘owned or rented by such parent or in his possession by any other means‘, while subsection 5 confers jurisdiction upon the Deputy Commissioner to evict a child after an application filed by a parent ‘after being satisfied that ownership thereof vests in the parent in the official record‘. This inconsistency will cause inconvenience in serving the purpose of the Ordinance.
- No power to protect possession has been conferred upon the forums in case a parent is not dispossessed but his or her possession is still under the threat of dispossession. Similarly, no power has been conferred to restore the possession of a parent where he or she has been dispossessed.
The Ordinance is monumental in nature and has a very sacred and essential purpose to serve. It is yet to transform into an Act, but before it becomes an Act of Parliament, the questions raised above need careful examination. The removal of inconsistencies will be necessary to achieve the desired objective.
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