A parent's claim for residential protection was challenged because he was below sixty and had impleaded family members besides his daughter. The court held that a parent need not be a senior citizen to claim maintenance and upheld the residential protection order, dismissing the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 09TH DAY OF SEPTEMBER 2020 / 18TH BHADRA, 1942
WA.No.1175 OF 2020
AGAINST THE JUDGMENT IN WP(C) 10290/2020(I) OF HIGH COURT OF KERALA DATED 12.8.2020
APPELLANTS/PETITIONERS:
1 PHILOMINA
AGED 60 YEARS, D/O.JUSANA MERCIAR, SONA COTTAGE, PALLITHURA, T.C.NO.01/163, THIRUVANANTHAPURAM DISTRICT
2 SONA, AGED 32 YEARS, D/O PHILOMINA HYLES, SONA COTTAGE, PALLITHURA, T.C.NO.01/163, THIRUVANANTHAPURAM DISTRICT
3 SEBASTIAN ALPHONSE, AGED 36 YEARS, S/O ALPHONSE, SONA COTTAGE, PALLITHURA, T.C.NO.01/163, THIRUVANANTHAPURAM DISTRICT
4 JUSANA MERCIER AGED 88 YEARS, D/O PRAKASIAL FERNANDES, SONA COTTAGE, PALLITHURA, T.C.NO.01/163, THIRUVANANTHAPURAM DISTRICT
BY ADV. SRI.N.SUNIL JOSEPH
2
W.A.1175/2020
RESPONDENTS/RESPONDENTS:
SRI.LIJU V STEPHEN FOR R3
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
3
W.A.1175/2020
JUDGMENT
Dated this the 9th day of September, 2020
S. Manikumar, CJ.
Instant writ appeal is filed challenging the judgment in W.P(C). No.10290 of 2020 dated 12.08.2020, by which, the writ court dismissed the writ petition filed against the order made in case No.J/1206/19/ K.Dis. dated 17.03.2020, on the file of the Presiding Officer, Maintenance Tribunal, Thiruvananthapuram, under the provisions of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Act 56 of 2007, for brevity).
4
W.A.1175/2020
5
W.A.1175/2020
creating any encumbrance over the subject property. Exhibit-P1 is the order dated 22.02.2019 in C.M.P No. 579/2019 in M.C.No 21/2019 on the file of JFCM-V, Thiruvananthpuram.
6
W.A.1175/2020
of sixty years or above. In fact, the 3rd respondent has filed the said complaint on 25.02.2019 and that his date of birth is 03.06.1961. Hence, he cannot be said to be a senior citizen, entitled to prefer a complaint under Section 5 of Act 56 of 2007. The driving license issued to the 3rd respondent produced as Exhibit P2. The reliefs sought for by the 3rd respondent before the 2nd respondent is beyond the scope of the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
7
W.A.1175/2020
the petitioners from their house viz. House No. 1/163 of Thiruvananthapuram Corporation. Hence, the 1st petitioner has filed a complaint before the Thumba Police Station.
(iii) To issue such other reliefs as this Hon'ble Court may deem it
8
W.A.1175/2020
appropriate considering the facts and circumstances of the case.
(iv) To award the cost of the proceedings. ”
9
W.A.1175/2020
10
W.A.1175/2020
the said petition is not maintainable under Section 5 of the Act.
11 to 14, in the impugned judgment, held thus :
“11. The object of Act 56 of 2007 is to provide for strong and effective provisions for the maintenance and welfare of parents and senior citizens which is guaranteed and recognized under the Constitution of India. The provisions of the Act enable parents and senior citizens to seek maintenance from their children and relatives, provide provisions for medical care, to ensure that life and property of the senior citizen is well protected and prosecute the offenders. The provisions of the Act would show that both the parents as well as the senior citizens are entitled to approach the Tribunal seeking maintenance. Under Section 2(a), ‘children’ are defined to include son, daughter, grandson and granddaughter but does not include a minor. Under Section 2(b) ‘maintenance’ includes provision for food, clothing, residence and medical attendance
11
W.A.1175/2020
and treatment. The term ‘parent’ has been defined under Section 2(d) to mean father or mother whether biological, adoptive or step-father or stepmother as the case may be, whether or not, the father or mother is a senior citizen. A ‘senior citizen’ under Section 2(h) of the Act has been defined to mean any person being a citizen of India, who has attained the age of 60 years or above.
12
W.A.1175/2020
Furthermore, under Section 4(3) it is the obligation of the children to maintain his or her parent so that such parent may lead a normal life. In the case on hand, after being ousted from his residential home the 3rd respondent had approached the Maintenance Tribunal seeking assistance. It was after considering the rival contentions and the status of the petitioner that orders were passed permitting him to reside in the house constructed by him. No sum by way of maintenance was ordered. Admittedly, all the petitioners are residing in the house and it is for the said reason that those persons were arrayed as respondents in the petition. It would be harsh to reject the petition filed by the 3rd respondent on the ground that his wife and son in law were arrayed as respondents. The provisions of the Act have been framed in such a manner as to provide simple, inexpensive and speedy remedy to the parents and senior citizens, who are in distress, by a summary procedure. The provisions of the Act have to be liberally construed as the primary object is to give social justice to parents and senior citizens.
This writ petition will stand dismissed.”
13
W.A.1175/2020
“A. There is material irregularity and illegality in the impugned judgment of the learned Single Judge and it is opposed to law, evidence, facts, equity and against the express provisions of the Maintenance and Welfare of Parents and Senior Citizens Act.
B. The third respondent will not come within the definition of “parent”, as defined under Section 2(d) of the Act, as against the appellants 1, 3 & 4 viz. his wife, son-in-law and mother-inlaw.
C. A parent can maintain an application under the provisions of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 only against his children and not against his wife, son-inlaw or mother-in-law.
D. On 25.02.2019, when the 3rd respondent has filed an application before the 2nd respondent under Section 5 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, the date of birth of the 3rd respondent is 03.06.1961. Since the 3rd respondent has not attained 60 years as on the date of filing of the said application, the said application is not at all maintainable, in view of Section 2(h) of the Act.
E. Learned Single Judge was well convinced that there is no jurisdiction for the second respondent to grant relief to the third respondent, as in paragraph 12 of the impugned judgment, and has conceded that in the present case, relief can be granted only against the children, as defined under Section 2(a) of the Act, and that a senior citizen can maintain an application only against a relative or the children, as the case may be. Hence, the impugned judgment is unsustainable.”
14
W.A.1175/2020
parents and senior citizens and it reads thus:
(1) A senior citizen including parent who is unable to maintain himself from his own earning or out of the property owned by him, shall be entitled to make an application under section 5 in case of-
(ii) a childless senior citizen, against such of his relative referred to in clause (g) of section 2.
(2) The obligation of the children or relative, as the case may be, to maintain a senior citizen extends to the needs of such citizen so that senior citizen may lead a normal life.
15
W.A.1175/2020
(3) The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be, so that such parent may lead a normal life.
(4) Any person being a relative of a senior citizen and having sufficient means shall maintain such senior citizen provided he is in possession of the property of such citizen or he would inherit the property of such senior citizen:
Provided that where more than one relatives are entitled to inherit the property of a senior citizen, the maintenance shall be payable by such relative in the proportion in which they would inherit his property.”
the same reads thus:
“(1) An application for maintenance under section 4, may be made-
(a) by a senior citizen or a parent, as the case may be; or
(b) if he is incapable, by any other person or organisation authorised by him; or
(c) the Tribunal may take cognizance suo motu.
Explanation.— For the purposes of this section “organisation” means any voluntary association registered under the Societies Registration Act, 1860 (21 of 1860) or any other law for the time being in force.
(2) The Tribunal may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this section, order such children or relative to make a monthly allowance for the interim maintenance of such senior citizen including parent and to pay the same to such senior citizen including parent as the Tribunal may from time to time direct.
(3) On receipt of an application for maintenance under subsection (1), after giving notice of the application to the children or relative and after giving the parties an opportunity of being heard, hold an inquiry for determining the amount of maintenance.
(4) An application filed under sub-section (2) for the monthly allowance for the maintenance and expenses for proceeding shall be disposed of within ninety days from the date of the service of notice of the application to such person:
16
W.A.1175/2020
Provided that the Tribunal may extend the said period, once for a maximum period of thirty days in exceptional circumstances for reasons to be recorded in writing.
(5) An application for maintenance under sub-section (1) may be filled against one or more persons: Provided that such children or relative may implead the other person liable to maintain parent in the application for maintenance.
(6) Where a maintenance order was made against more than one person, the death of one of them does not affect the liability of others to continue paying maintenance.
(7) Any such allowance for the maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or expenses of proceeding, as the case may be.
(8) If, children or relative so ordered fail, without sufficient cause to comply with the order, any such Tribunal may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person for the whole, or any part of each month’s 5 allowance for the maintenance and expenses of proceeding, as the case be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made whichever is earlier:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Tribunal to levy such amount within a period of three months from the date on which it became due.”
same reads thus:
(1) The proceedings under section 5 may be taken against any children or relative in any district—
(a) where he resides or last resided; or
(b) where children or relative resides.
(2) On receipt of the application under section 5, the Tribunal shall issues a process for procuring the presence of children or relative against whom the application is filed.
(3) For securing the attendance of children or relative the
17
W.A.1175/2020
Tribunal shall have the power of a Judicial Magistrate of first class as provided under the Code of Criminal Procedure, 1973 (2 of 1974).
(4) All evidence to such proceedings shall be taken in the presence of the children or relative against whom an order for payment of maintenance is proposed to be made, and shall be recorded in the manner prescribed for summons cases:
Provided that if the Tribunal is satisfied that the children or relative against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the Tribunal, the Tribunal may proceed to hear and determine the case ex parte.
(5) Where the children or relative is residing out of India, the summons shall be served by the Tribunal through such authority, as the Central Government may by notification in the official Gazette, specify in this behalf.
(6) The Tribunal before hearing an application under section 5 may, refer the same to a Conciliation Officer and such Conciliation Officer shall submit his findings within one month and if amicable settlement has been arrived at, the Tribunal shall pass an order to that effect.
Explanation.— For the purposes of this sub-section “Conciliation Officer” means any person or representative of an organisation referred to in Explanation to sub-section (1) of section 5 or the Maintenance Officers designated by the State Government under sub-section (1) of section 18 or any other person nominated by the Tribunal for this purpose.”
appellant) had contributed for construction of the house in which they are residing, whereas, it is the case of the 3rd respondent that, with all his earnings abroad, the house was constructed. Whatever be the rival submissions, it is candid admission of the learned counsel for the appellants that the subject property stands in the name of the 3rd respondent, which is also evident from the order made in C.M.P. No.579/2019 in M.C. No.21/2019 22.02.2019 on the file of the learned Judicial Magistrate of First
18
W.A.1175/2020
Class-V, Thiruvananthapuram, by which, the learned Magistrate has restrained the 3rd respondent from alienating the subject property.
19
W.A.1175/2020
obtained interim orders. That apart, it is also seen that alleging that the 3rd respondent and his brother had threatened the appellants, a complaint seemed to have been filed before the Thumba Police Station, whereas, based on the complaint of the 3rd respondent, Thumba Police Station has registered FIR No.0503/2020 for offences under Section 294(b), 506, 324 and 308 of the Indian Penal Code against the 1st appellant's brother. It is stated that today, the 3rd respondent is residing in the subject house.
20
W.A.1175/2020
caused. Going through the impugned judgment, we find that the writ court has considered the 2nd challenge in a pragmatic manner.
Giving due consideration to the material on record and submissions,
we do not find any error in the impugned judgment warranting interference in appeal. Writ appeal is dismissed. No costs.
Sd/S. Manikumar, Chief Justice
Sd/Shaji P. Chaly, Judge
sou.
2 issues framed by the court
Can a parent who has not attained sixty years seek maintenance under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007?
Did impleading the wife, son-in-law and mother-in-law alongside the daughter render the parent's application for residential protection unmaintainable?
3 provisions across 1 enactments
PHILOMINA
SONA
THE APPELLATE TRIBUNAL
THE PRESIDING OFFICER, MAINTENANCE TRIBUNAL
HIGHLES MIRANDA
THE DISTRICT SOCIAL JUSTICE OFFICER
S.MANIKUMAR
SHAJI P.CHALY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
