Allowed

Latha v. v.K.Unnikrishnan Nair

Kerala HC13 Feb 2019WP(C)/20232/2017

Case brief

AI extract

What is this about?

In W.P.(C) Nos. 20232 and 22799 of 2017, the High Court of Kerala addressed the competence of the Maintenance Tribunal. The Court held that while Section 12 allows an election between Cr.P.C. and the Act, the Tribunal failed to address the impact of Section 12 in the impugned orders. Consequently, the writs were allowed, Exhibit-P7 and Exhibit-P9 were set aside, and the Tribunal was directed to re

What did the court decide?

The writ petitions were allowed. Exhibit-P7 and Exhibit-P9 were set aside. The Maintenance Tribunal was directed to reconsider the complaint on jurisdictional aspects within two months.

Latha Vs v.K.Unnikrishnan Nair — 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 13TH DAY OF FEBRUARY 2019 / 24TH MAGHA, 1940

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WP(C).No. 20232 of 2017

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PETITIONER/S:

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1 LATHA W/O.SANTHOSHKUMAR, AGED 36 YEARS, VAROPPADIKKAL HOUSE, VAROPPADIKKAL P O, KUPPADI VILLAGE, SULTHANBATHERY.

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2 GEETHA W/O.MANOHARAN, AGED 40 YEARS, KUNIYIL HOUSE, KALLAMGODE, BEENACHI, PAZHUPATHOOR P O, SULTHAN BATHERY-673592.

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BY ADV. SRI.G.BAIJURAJ

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RESPONDENT/S:

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1 V.K.UNNIKRISHNAN NAIR AGED 68 YEARS, VAKKAYATHUMMEL, KUNDALANCHERI HOUSE, PAZHUPATHOOR P O, SULTHANBAGHERY, WAYANAD-673592

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2 RAMESH V K AGED 35 YEARS, S/O.V.K.UNNIKRISHNAN NAIR, VANDANA, AMADADIPARAMBA, CIVIL STATION, KOZHIKODE 673020.

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3 THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, SOCIAL WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM695001.

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4 THE SUB COLLECTOR NANANTHAVADY, IN THE CAPACITY OF MAINTENANCE TRIBUNAL, UNDER THE MAITENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT 2007, OFFICE OF THE SUB COLLECTOR, MANANTHAVADY.

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5 THE UNION OF INDIA

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WP(C).Nos. 20232 & 22799 of 2017

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REPRESENTED BY THE SECRETARY TO MINISTRY OF LAW AND JUSTICE, 4TH FLOOR, A-WING , SHASTRIBHAWAN, NEW DELHI-110001.

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BY ADVS. SMT.CELINE JOSEPH GOVERNMENT PLEADER SRI.TULASI PANICKER, CGC SRI.TULASI PANICKER CGC

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OTHER PRESENT:

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SMT.REKHA C.NAIR-SR.GP, SRI.R.PRASANTH KUMAR-CGC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.02.2019, ALONG WITH WP(C).22799/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).Nos. 20232 & 22799 of 2017

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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 13TH DAY OF FEBRUARY 2019 / 24TH MAGHA, 1940

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WP(C).No. 22799 of 2017

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PETITIONER/S:

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RAMESH V.K.

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AGED 35 YEARS, S/O VK.UNNIKRISHNAN NAIR,NAIVEDYAM, PAZHUPATHOOR PO, SULTHAN BATHERY-673592.

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BY ADVS. SRI.ALEX.M.SCARIA SMT.SARITHA THOMAS

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RESPONDENT/S:

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1 V.K.UNNIKRISHNAN NAIR AGED 68 YEARS, VAKKETHUMMEL, KUNDALANCHERRY HOUSE, PAZHUPATHOOR PO,SULTHAN BATHERY, WAYAND.

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2 LATHA W/O SAJEESHKUMAR, AGED 36 YEARS,VAROPPADIKKAL HOUSE, VAROPPADIKKAL PO,KUPPADI VILLAGE, SULTHAN BATHERY.

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3 GEETHA W/O MANOHARAN, AGED 40 YEARS, KUNIYIL HOUSE,KALLAMKORI, BEENACHI, PZHUPATHOOR PO,SOUTHAN BATHERY.

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4 THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY ,SOCIAL WELFARE DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM. 695001.

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WP(C).Nos. 20232 & 22799 of 2017

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5 THE SUB COLLECTOR MANANTHAVADY, IN THE CAPACITY OF THE MAINTENANCE TRIBUNAL, UNDER THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT 2007,OFFICE OF THE SUB COLLECTOR, MANANTHAVADY -670645.

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6 THE UNION OF INDIA REPRESENTED BY THE SECRETARY TO MINISTRY OF LAWAND JUSTICE , 4TH FLOOR, A-WING, SHASTRI BHAWAN,NEW DELHI. 110001.

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BY ADVS. SMT.CELINE JOSEPH GOVERNMENT PLEADER SRI.R.PRASANTH KUMAR, CGC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.02.2019, ALONG WITH WP(C).20232/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).Nos. 20232 & 22799 of 2017

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JUDGMENT

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The petitioners in these cases are the children of Sri.Unnikrishnan, who is concededly a Senior Citizen coming within the sweep of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (herein after referred to as “Act” for short). Among all the allegations and averments based on facts, the legal contention raised by them is that the Senior Citizen had earlier approached the Family Court by invoking the provisions of Chapter IX of the Code of Criminal Procedure, 1973 (herein after referred to as Cr.P.C for short) and had obtained an order for maintenance which, when assailed before this Court, had culminated in Exhibit-P3 order, whereby, the amount of maintenance was reduced. They say that once the Senior Citizen had thus invoked the provisions of the Cr.P.C, he could not have, thereafter, moved an application for maintenance under the Act on account of the statutory embargo placed on such action through Section 12 of the Act. They, therefore, say that the orders impugned in these writ petitions, namely Exhibit-P7 in W.P.(C).No.20232 of 2017 and Exhibit-P9 in W.P.(C).No.22799 of 2017, are incompetent and therefore,

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WP(C).Nos. 20232 & 22799 of 2017

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illegal.

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I have heard the learned counsel appearing for the petitioners in both these cases as also the learned counsel appearing for the Senior Citizen and the learned Government Pleader appearing for the Maintenance Tribunal and the official respondents.

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As I have indicated above, a consideration into the factual circumstances and factors in these case will become necessary only after I decided the question of competence of the Maintenance Tribunal in considering the application of the Senior Citizen under the provisions of the Act. The specific contention of the petitioners in these cases is that on account of the stipulations in Section 12 of the Act, the Senior Citizen cannot obtain the locus to make an application before the Maintenance Tribunal and, therefore, that the impugned orders, based on such an application, are impermissible and illegal.

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Since the ossature of the petitioners’ contentions are

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built on Section 12 of the Act, I deem it appropriate to extract it as under for ease of reference:-

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“12. Option regarding maintenance in certain cases.Notwithstanding anything contained in Chapter IX of the

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WP(C).Nos. 20232 & 22799 of 2017

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Code of Criminal Procedure, 1973 (2 of 1974), where a senior citizen or a parent is entitled for maintenance under the said Chapter and also entitled for maintenance under this Act may, without prejudice to the provisions of Chapter IX of the said Code, claim such maintenance under either of those Acts but not under both.”

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It is the singular contention of the petitioners that, as is ineluctable from a mere reading of the afore section, a Senior Citizen will have to elect between the two remedies that are available to him/her under the Cr.P.C and the Act; and that he/she will have to choose one among these two. The petitioners say that, as is conceded by the Senior Citizen, he had earlier approached the Family Court by invoking the provisions of the Cr.P.C and had obtained an order of maintenance, which was modified by this Court through the judgment in R.P. (F.C).No.129 of 2016. They, therefore, say that the Senior Citizen has clearly exercised his election to invoke the provisions of the Cr.P.C and, therefore, that he could not have moved an application under the provisions of the Act, thereafter.

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The learned counsel appearing for the Senior Citizen, in refutation of these submissions, says that even when Section 12 of the Act makes it incumbent upon the Senior Citizen to

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WP(C).Nos. 20232 & 22799 of 2017

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make an election between the two remedies shown therein, it does not say that the Senior Citizen cannot make an application under the Act after he had invoked the provisions of the Cr.P.C. She reads the section to contend that what is important in that section is that the Senior Citizen cannot claim maintenance under both these remedies and, therefore, that he can always give up the earlier order for maintenance, availed by him under the provisions of the Cr.P.C, so as to obtain the benefits under the Act, through a subsequent application. She says that the Senior Citizen has made his intention manifest in the complaint before the Maintenance Tribunal, by saying that he is giving up the benefits of the order that he had earlier obtained under the provisions of the Cr.P.C through the competent Family Court. She thus contends that the impugned orders are irreproachable and that this Court allow the same to operate.

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When I evaluate the submissions made by the parties as afore, the one real question that grabs my attention is whether the Maintenance Tribunal was justified in considering the complaint made by the Senior Citizen before it, under the provisions of the Act, even when it is expressly conceded therein that he has already obtained orders from the Family Court,

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WP(C).Nos. 20232 & 22799 of 2017

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under the provisions of the Cr.P.C. Even a cursory reading of section 12, afore extracted, makes it clear that the Senior Citizen has been vested with the option to make an election and to choose between the remedies that he is entitled to invoke, either under the Cr.P.C or under the provisions of the Act. There is no doubt that the intention of Section 12 is to make sure that a Senior Citizen does not get benefits under both these provisions and that he/she confines to the remedy that he/she thinks is more beneficial.

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In the case at hand, it is admitted by the Senior Citizen that he had earlier approached the Family Court and had obtained an order for maintenance, which was modified to a small extent by this Court in the judgment in R.P.(C).No.129 of 2016. Hence it is certain that the Senior Citizen had elected to first invoke the provisions of the Cr.P.C and after he obtained such an order, perhaps being under the impression that this order is not sufficient for him, chose to approach the Maintenance Tribunal by filing an application under the provisions of the Act. That being so, certainly the Maintenance Tribunal ought to have considered the impact of Section 12, before issuing the impugned orders. However, unfortunately,

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WP(C).Nos. 20232 & 22799 of 2017

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even on a closer reading of these orders, which not show how the Tribunal has excercised the jurisdiction, even while it is conceded by the Senior Citizen that he has filed the application already enjoying the benefits under the provisions of the Cr.P.C. I am, therefore, of the view that I cannot let these orders operate in the manner as it has been now been issued and that the Maintenance Tribunal must reconsider the question of its jurisdiction in terms of law, within a short time frame.

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In the afore circumstances, I order these writ petitions, setting aside Exhibit-P7 in W.P.(C).No.20232 of 2017 and Exhibit-P9 in W.P.(C).No.22799 of 2017; and consequently, direct the Maintenance Tribunal to reconsider the complaint of the Senior Citizen, first deciding on the jurisdictional aspects, adverting to Section 12 of the Act and after affording necessary opportunities as per law to the parties, as expeditiously as is possible but not later than two months from the date of receipt of a copy of this judgment.

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I make it clear that I have not considered any of the other contentions of the parties on its merits and, therefore, that if the Maintenance Tribunal concludes that it has jurisdiction to decide the complaint, then the parties will be at liberty to

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WP(C).Nos. 20232 & 22799 of 2017

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pursue all such contentions without being trampled, in any manner, by my observations in this judgment.

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Sd/-

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DEVAN RAMACHANDRAN

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Dxy

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JUDGE

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WP(C).Nos. 20232 & 22799 of 2017

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 A TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE 2ND RESPONDENT IN MC 62/2014 FILED BEFORE THE FAMILY COURT, KALPETTA.

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EXHIBIT P2 TRUE COPY OF THE ORDER IN MC 62 OF 2014 FILED BEFORE THE FAMILY COURT, KALPETTA. EXHIBIT P3 TRUE COPY OF THE ORDER PASSED IN RPFC 129/2016 FILED BEFORE THE HON'BLE HIGH COURT OF KERALA. EXHIBIT P4 TRUE COPY OF THE NOTICE ISSUED BY THE MAINTENANCE TRIBUNAL THAT WAS NUMBERED AS F-3141/2014 EXHIBIT P5 THE PETITION FILED BY THE IST RESPONDENT BEFORE THE MAINTENANCE TRIBUNAL EXHIBIT P6 COUNTER AFFIDAVIT WAS FILED BY PETITIONERS IN EXHIBIT P5 EXHIBIT P7 A TRUE COPY OF THE ORDER PASSED BY THE MAINTENANCE TRIBUNAL DTD 2/11/2016.

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WP(C).Nos. 20232 & 22799 of 2017

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APPENDIX OF WP(C) 22799/2017

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE MC 62 OF 2014 FILED BEFORE THE FAMILY COURT, KALPETTA. EXHIBIT P2 TRUE COPY OF THE ORDER IN MC 62 OF 2014 FILED BEFORE THE FAMILY COURT, KALPETTA. EXHIBIT P3 TRUE COPY OF THE ORDER PASSED IN RP(F) 129/2016 BY THE HON'BLE HIGH COURT OF KERALA EXHIBIT P4 TRUE COPY OF THE NOTICE ISSUED BY THE MAINTENANCE TRIBUNAL THAT WAS NUMBERED AS F.3141/2014, EXHIBIT P5 THE PETITION FILED BY THE 1ST RESPONDENT BEFORE THE MAINTENANCE TRIBUNAL. EXHIBIT P6 THE NOT PRESS MEMO FILED BY THE 1ST RESPONDENT BEFORE THE MAINTENANCE TRIBUNAL IN F-3141/2014. EXHIBIT P7 A TRUE COPY OF THE PETITION THAT WAS NUMBERED AS J 6311/2015 BY THE MAINTENANCE TRIBUNAL. EXHIBIT P8 COUNTER AFFIDAVIT WAS FILED BY PETITIONERS IN EXHIBIT P5 EXHIBIT P9 A TRUE COPY OF THE ORDER PASSED BY THE MAINTENANCE TRIBUNAL DATED 2.11.2016.

Latha v. v.K.Unnikrishnan Nair

Case brief

What is this about?

What did the court decide?

Latha v. v.K.Unnikrishnan Nair

Case brief

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