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Karnataka High Court · body

2014 DIGILAW 792 (KAR)

H. S. Subramanya v. H. S. Lakshmi

2014-09-08

S.ABDUL NAZEER

body2014
Judgment : 1. In these cases, the petitioners have called in question the validity of the order at Annexure 'G' in No.GA.06/2011-12/212 dated 5.11.2011 whereby the Maintenance Tribunal and the Assistant Commissioner, Madikeri, Kodagu, (for short 'the Tribunal') has directed the petitioners and the third respondent to pay maintenance of Rs.3,000/-per month to their mother, the first respondent under Section 9 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 ('Act' for short). 2. The first respondent is a widow, presently aged about 88 years. ii is her contention that her husband H.S.Srinivasa died on 2i 6.2002. Late H.S.Srinivasa had executed a Will dated 12.4.1994 bequeathing his properties in favour of his children. A provision was made in the Will for payment of maintenance to the first respondent. She was to be paid Rs.500/- per month by each of her sons. The second respondent is the only daughter of the first respondent. Late H.S.Srinivasa had bequeathed a house and land measuring 1 Vi acres in her favour also. The first respondent was staying with her daughter, who is also a widow. 3. The contention of the petitioners is that they were paying monthly maintenance of Rs.50G/-each to their mother regularly. The 3 respondent has not paid maintenance to the first respondent in terms of the Will. He has purchased major portion of the properties bequeathed in favour of the second petitioner. The third respondent has forced their mother to file the application before the Tribunal claiming maintenance. The third respondent is pocketing the maintenance amount paid to their mother. 4. Respondent Nos.1 and 2 filed a suit in O.S.No.120/2010 on the file of the Civil Judge, Madikere, claiming partition and separate possession of 2/5th share in the property. The petitioners received a notice from the 4th respondent in a proceedings initiated by the first respondent claiming maintenance under the Act. The third respondent has not been made a party to the said proceedings and the proceedings are engineered by the third respondent. However, the 4th respondent has passed the order directing payment of maintenance as stated above. 5. The first respondent has filed statement of objections. It is contended that the first respondent, is not assisted by anybody for her sustenance. The 4th respondent after holding proper enquiry has directed deposit of the maintenance as above. However, the 4th respondent has passed the order directing payment of maintenance as stated above. 5. The first respondent has filed statement of objections. It is contended that the first respondent, is not assisted by anybody for her sustenance. The 4th respondent after holding proper enquiry has directed deposit of the maintenance as above. The suit filed by her daughter and herself for partition of the properties has no relevance to this case. She has prayed for dismissal of the writ petitions. 6. Learned Counsel for the petitioners submits that petitioners are in possession of only 6.6 acres of land and they are getting an income of about two lakhs of rupees annually. The second petitioner is living with his wife, who has sustained a fracture of her hip joint. The first petitioner is a heart patient. After filing of the suit by respondent Nos.1 and 2 herein, petitioners have stopped payment of maintenance. Section 8 of the Act contemplates holding of an enquiry. The claim made by the first respondent is not a bonafide claim. The Tribunal has passed the order without holding an enquiry. If the maintenance is paid in terms of the order, the third respondent will be the beneficiary and not the first respondent. 7. On the other hand, learned Counsel appearing for respondent Nos.1 to 3 has sought to justify the impugned order. It is submitted that the first respondent is now aged about 88 years. She is not in a position to maintain herself. The court below has directed her sons to pay maintenance of Rs.3,000/- per month, which is most reasonable. He further submits that the procedure contemplated under Section 8 is a summary procedure. Holding of trial is not contemplated under this provision. The 4th respondent has issued notices to the petitioners as also the third respondent. The petitioners have filed objections to the said notice. After considering the said objections, the order has been passed. The 4th respondent has not committed any procedural irregularity while passing the order. 8. Having regard to the contentions urged, the question for consideration is whether the Tribunal is justified in directing payment of maintenance in a sum of Rs.3,000/-per month to the first respondent from her sons, the petitioners and the third respondent herein? 9. Ageing has become a major social challenge because of the decline in the joint family system. 8. Having regard to the contentions urged, the question for consideration is whether the Tribunal is justified in directing payment of maintenance in a sum of Rs.3,000/-per month to the first respondent from her sons, the petitioners and the third respondent herein? 9. Ageing has become a major social challenge because of the decline in the joint family system. A large number of elderly persons, particularly, widowed women are not being looked after by their families. They are forced to spend their twilight years all alone and are exposed to emotional neglect and are not being provided with financial support. To combat this social challenge, there is a need to give more attention to the care and protection for the older persons. Traditional norms and values of the Indian society laid stress on providing care for the elderly. However, due to withering of the joint family system, a large number of elderly people are not being looked after by their family. Though there is a provision in the Code of Criminal Procedure, 1973 under which parents can claim maintenance from their children but the procedure is time consuming and expensive With a view to have a simple, inexpensive and speedy provisions to claim maintenance by the suffering parents and to cast an obligation on the persons who inherit the property of their aged relatives to maintain them, to make provisions for setting up old-age homes for providing maintenance to the indigent older persons, to provide better medical facilities to the senior citizens and to make provisions for protection of their life and property, the Act has been enacted. 10. Section 4 states that a senior citizen including parent who is unable to maintain himself from his own earning or out of the property owned by him against one or more of his children not being a minor or in the case of childless senior citizen, is entitled to make an application against his relative, who would inherit his property claiming maintenance. The said provision is as under: "4. The said provision is as under: "4. Maintenance of parents and senior citizens: (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 - (i) parent or grand-parent, against one or more of his children not being a minor; (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. (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 senior 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." 11. Sub-section (1) of Section 5 provides for making an application for maintenance. Under this provision, an application for maintenance under Section 4 may be made by a senior citizen or a parent as the case may be or if he is incapable, by any other person or organization authorized by him or the Tribunal may take cognizance suo motu. An 'organisation' means any voluntary association registered under the Societies Registration Act, 1860, which is clear from the explanation appended to this Section. Under sub-section (2) of Section 5, the Tribunal has power to direct payment of interim maintenance of such senior citizens including parent as the Tribunal may from time to lime direct pending disposal of the application made under Section 5. 12. Section 6 lays down the jurisdiction and procedure to be followed by the Tribunal. Under sub-section (2) of Section 5, the Tribunal has power to direct payment of interim maintenance of such senior citizens including parent as the Tribunal may from time to lime direct pending disposal of the application made under Section 5. 12. Section 6 lays down the jurisdiction and procedure to be followed by the Tribunal. Under this provision, an application for maintenance may be made by a senior citizen or a parent against any children or relative in any District, where the senior citizen or parent resides or where the children or relatives reside. It provides that the Tribunal has to issue process on the receipt of an application and the Tribunal will have the powers of the Judicial Magistrate First Class for securing the attendance of the children or relative. It also provides that the Tribunal may before hearing the application refer the same to a Conciliation Officer for amicable settlement. 13. Section 8 provides for the summary procedure in case of inquiry, which is as under: "8. Summary procedure in case of inquiry: (1) In holding any inquiry under Section 5, the Tribunal may, subject to any rules that may be prescribed by the State Government in this behalf, follow such summary procedure as it, deems fit. (2) The Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Tribunal shall be deemed to be a Civil Court for all purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). (3) Subject to any rule that may be made in this behalf, the Tribunal may, for the purpose of adjudicating and deciding upon any claim for maintenance, choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist it in holding the inquiry." 14. While interpreting this provision, the object of the Act has to be kept in mind. The object is not to punish a person for neglect to maintain those whom he is bound to maintain. It is to provide simple, inexpensive and speedy remedy to the parents and senior citizens, who are in distress by a summary procedure. While interpreting this provision, the object of the Act has to be kept in mind. The object is not to punish a person for neglect to maintain those whom he is bound to maintain. It is to provide simple, inexpensive and speedy remedy to the parents and senior citizens, who are in distress by a summary procedure. The provision has to be liberally construed as the primary object is to give social justice to parents and senior citizens by compelling those who can support those who are unable to support themselves. They are intended to achieve this social purpose. 15. It is clear from Section 8 that while holding the enquiry, the Tribunal has to follow such summary procedure as it deems fit and proper in the circumstances of the case. The word 'summary' implies a short and quick procedure instead of or as an alternative to the more elaborate procedure ordinarily adopted or prescribed for deciding a case. Section 8 authorises the Tribunal to follow a short and quick procedure for expeditious disposal of the case. Sub-section (1) of Section 8 does not contain the expression 'trial'. The Tribunal in its discretion has not directed the parties to lead evidence as it was unnecessary to decide the application filed by the first respondent. I do not find any error in the procedure adopted by the Tribunal. 16. As noticed above, the petitioners are the sons of the first respondent. The first respondent is aged about 88 years. The properties belonging to the father of the petitioners have already been bequeathed in favour of the petitioners and the respondent Nos.2 and 3. The petitioners have admittedly stopped payment of maintenance of Rs.500/-each per month after respondent Nos.1 and 2 filed a suit for partition of the properties. The Tribunal has directed the petitioners and the third respondent to pay a sum of Rs.3,000/-every month. The maintenance payable by the petitioners is for sustenance of their mother, who is unable to maintain herself. I do not find any substance in the submission of the learned Counsel for the petitioners that the third respondent will be the beneficiary if the order of the Tribunal is implemented. The 1st respondent is residing with her daughter, who is also a widow. In fact, the maintenance amount of Rs.3,000/- per month may not be sufficient to the 1st respondent to maintain herself. The 1st respondent is residing with her daughter, who is also a widow. In fact, the maintenance amount of Rs.3,000/- per month may not be sufficient to the 1st respondent to maintain herself. It is not the case of the petitioners that the 1st respondent has any other income. I do not agree with the learned Counsel for the petitioners that third respondent will be the beneficiary if maintenance amount is paid to the 1st respondent. 17. In the result, writ petitions fail. They are accordingly dismissed. The amount in deposit in this case shall be transferred to the 4th respondent forthwith. The 4th respondent is directed to disburse the amount in favour of the first respondent herein (Smt.H.S. Lakshmi-petitioner before the 4th respondent) either personally or through her power of attorney holder. 18. In view of the dismissal of the writ petitions as above, I.A.No. 1/2014 does not survive for consideration. If is accordingly dismissed. No costs.