Disposed

Premchand v. Vijayakumaran Nair S.

Kerala HC20 Feb 2019WP(C)/1146/2017

Case brief

AI extract

What is this about?

The High Court set aside the Maintenance Tribunal's order directing the petitioner to house a senior citizen divorced from the petitioner's mother, as the mother's presence made cohabitation impractical, while confirming the maintenance payment of Rs.10,000/- and directing the Tribunal to issue a new order within a month.

What did the court decide?

Setting aside Ext.P6 order to the extent of residence direction to consider the mother's objection; confirming maintenance payment of Rs.10,000/-; directing the Maintenance Tribunal to pass a fresh or

Premchand Vs Vijayakumaran Nair S. — Pension and Retirement Benefits | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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WEDNESDAY,THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940

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WP(C).No. 1146 of 2017

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PETITIONER:

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PREMCHAND, TC.4/1679, NANDENAM, HOUSE NO.41, BELHAVEN ROAD, KOWDIAR P.O, THRUVANANTHAPURAM - 695003

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BY ADVS. SRI.PIRAPPANCODE V.S.SUDHEER SRI.JELSON J.EDAMPADAM

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RESPONDENTS:

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1 VIJAYAKUMARAN NAIR S.

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ROOM NO. 5, ANPUNILAYAM, CHERUVARAKONAM, PARASSALA - 695502

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2 THE MAINTENANCE TRIBUNAL & REVENUE DIVISIONAL OFFICER, TRIVANDRUM - 695001

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BY ADVS. SMT.N.P.ASHA SRI.G.SUDHEER

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OTHER PRESENT:

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SMT.REKHA C.NAIR-SR.GP

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 1146 of 2017

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JUDGMENT

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The petitioner, who is the son of the first respondent - senior citizen concededly coming within the sweep of the Maintenance of Welfare of Parents and Senior Citizens Act, 2007, challenges Ext.P6 order, to the extent to which he has been directed to take the senior citizen from an old age home and provide him residence in his own house. There is also direction in the said order to the petitioner to pay Rs.10,000/- as monthly maintenance, which the petitioner is seen to be accepting.

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Sri.V.S.Sudheer, the learned counsel appearing for the petitioner, submits that there is a practical problem, which was not noticed by the Maintenance Tribunal, in allowing his father, the first respondent, to stay in his house because his mother, who is legally divorced from the senior citizen, is presently residing with him. He says that his mother does not agree to allow the first respondent to stay along with her and therefore, that Ext.P6 order is impracticable in its approach. The learned counsel submits that this fact, though brought to the notice of the Maintenance Tribunal, has not been adverted to and therefore, prays that Ext.P6 be set aside to that extent. Of course, I am aware that Sri.V.S.Sudheer also has a contention that the proceedings before the Maintenance Tribunal is not maintainable because the senior citizen has already invoked the provisions of

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WP(C).No. 1146 of 2017

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Section 125 of the Code of Criminal Procedure and that thus, going by Section 12 of the Act, the Maintenance Tribunal ought to have ceased jurisdiction in this matter. After saying so, however, the learned counsel submits that he does not intend to press this argument because his intention is only to support and protect his mother and therefore, that he is even willing to offer another residence to the senior citizen, subject to the orders to be issued by the Maintenance Tribunal as per law.

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Sri.G.Sudheer, the learned counsel for the senior citizen concedes that his client is legally divorced from the petitioner's mother but submits that he is now totally indisposed and debilitated on account of serious illnesses. He says that his client only wants one room in the petitioner's house and that he desires to breathe his last there. Sri.G.Sudheer adds that his client has no other house or building to reside in.

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Smt.Rekha C.Nair, the learned senior Government Pleader, submits that the Maintenance Tribunal was only acting as per the desires and requirements of the senior citizen and that since he is now living in an old age home, directions were issued in Ext.P6 to the petitioner to take him and give him residence in the petitioner's house. She says that since the province of the Act is to provide for the protection of the senior citizen, the Maintenance Tribunal has acted well within jurisdiction.

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WP(C).No. 1146 of 2017

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Even when I hear the learned Senior Government Pleader as afore, I, certainly, am of the view that the Maintenance Tribunal ought to have considered the objections of the petitioner that his mother, who is legally divorced from the first respondent - senior citizen, does not want him to reside with her in the same house. Obviously, therefore, it may not be prudent to allow the senior citizen to stay with the petitioner as long as his mother does not agree to such arrangement. This issue certainly ought to have been considered by the Maintenance Tribunal before having issued Ext.P6 order.

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In the afore perspective, I set aside Ext.P6 to the limited extent that it directs the petitioner to provide residence to the senior citizen in his own house; however, confirming the further direction to pay Rs.10,000/- per month, which the petitioner will do hereinafter. I am directing the petitioner to make payment of Rs.10,000/- from this time onwards because I notice that even though this figure has been shown in Ext.P2 order, the direction therein is actually to pay Rs.5,000/- over and above the maintenance amount of Rs.2,500/-, ordered by the Family Court earlier under the provisions of the Code of Criminal Procedure. I also notice that as per an interim order of this Court, dated 12.01.2017, the petitioner has been asked to pay only Rs.7,500/per month. However, since Sri.V.S.Sudheer, the learned counsel

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WP(C).No. 1146 of 2017

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for the petitioner agrees expressly that his client will pay Rs.10,000/- to his father - the senior citizen henceforth, I deem it appropriate to direct him to do so. I clarify that the amount of Rs.10,000/- ordered herein is inclusive of the amounts ordered to be paid by the Family Court under the Code of Criminal Procedure.

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Resultantly, I quash Ext.P6 to the limited extent above and direct the Maintenance Tribunal to reconsider the provision for residence of the senior citizen and issue an appropriate order, after affording sufficient opportunities to the parties as per law, as expeditiously as is possible but not later than a month from the date of receipt of a copy of this judgment.

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It is made clear that the Tribunal will advert to the present physical condition of the senior citizen, to be appropriately ascertained by it, and will also decide, in the order to be issued, as to how and in what manner he will require to be protected and provided for by the petitioner.

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Sd/- DEVAN RAMACHANDRAN

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stu

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JUDGE

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WP(C).No. 1146 of 2017

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT	P1 TRUE COPY SUBMITTED RESPONDENT	OF THE BY THE	PETITION DATED 06.02.2016 1ST RESPONDENT BEFORE THE 2ND
EXHIBIT	P2 TRUE COPY OS.NO. 448 MUNSIFF'S	OF THE /1999 O COURT,	JUDGMENT DATED 13.09.2002 IN F THE IIIRD ADDITIONAL THIRUVANANTHAPURAM
EXHIBIT	P3 TRUE COPY THE FAMILY 734/2005	OF THE COURT,	JUDGMENT DATED 31.08.2010 OF THIRUVANANTHAPURAM IN OP.NO.
EXHIBIT	P4 TRUE COPY MP.NO. 513 THE 1ST RE HUMAN RIGH	OF THE 6/2016/ SPONDEN TS COMM	COMPLAINT NUMBERED AS HR TVM DATED 25.05.2016 FILED BY T BEFORE THE KERALA STATE ISSION
EXHIBIT	P5 TRUE COPY PETITIONER PETITION	OF THE BEFORE	OBJECTION FILED BY THE THE 2ND RESPONDENT TO EXT P1
EXHIBIT	P6 TRUE COPY DATED 17.1	OF THE 0.2016	ORDER NO. J/19286/16/K.DIS OF THE 2ND RESPONDENT

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RESPONDENTS' EXHIBITS:

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EXHIBIT R1(a) TRUE COPY OF THE CERTIFICATE ISSUED BY ABBS MEMORIAL CHURCH, PARASSALA DATED 11.02.2017.

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//TRUE COPY//

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P.A TO JUDGE.

Premchand v. Vijayakumaran Nair S.

Case brief

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Premchand v. Vijayakumaran Nair S.

Case brief

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