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2020 DIGILAW 695 (KER)

Philomina v. Appellate Tribunal, Kudapanakunnu

2020-08-12

RAJA VIJAYARAGHAVAN V.

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JUDGMENT : Raja Vijayaraghavan V., J. 1. In this writ petition filed under Article 226 of the Constitution of India, the petitioners have mounted a challenge against the order passed by the Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 ('Act 56 of 2007' for short). By the impugned order the Tribunal has allowed the application filed by the 3rd respondent and he was permitted to reside in the residential home owned by him. The petitioners herein, who are his wife, daughter and others were directed to refrain from causing any obstruction to his peaceful residence. 2. The facts indispensable for the present adjudication portray that the 1st petitioner is the wife of the 3rd respondent herein. The petitioners 2 and 3 are the daughter and son-in-law and the 4th petitioner is the mother of the 1st petitioner. The 3rd respondent, who is aged 59 years, approached the Tribunal constituted under Act 56 of 2007 and filed an application under Section 5 arraying the petitioners as respondents. In his application, he contended that he had worked overseas for over 30 years, and using his hard-earned money had purchased property having an extent of 64 cents in Attipra village. His grievance was that after returning back to India, after his extended stay abroad, he was not permitted by the petitioners herein to enter the house constructed by him. 3. The Tribunal issued notice to the petitioners and after considering their contentions, by Exhibit P 3 order went on to hold that the 3rd respondent was entitled to reside in the home owned by him without any obstruction from the petitioners. A specific direction was issued to Station House Officer, Thumba to ensure that the order is complied with. 4. Challenging the order passed by the Tribunal, the petitioners have preferred Ext. P4 appeal before the Appellate Tribunal. Simultaneously, they have also mounted a challenge before this Court presumably because Section 16 of the Act enables only the senior citizen or the parent to challenge the order passed by the Tribunal before the Appellate Forum. It has been held by this Court that a respondent in the application filed before the Tribunal is not empowered to avail the appellate remedy in terms of S. 16(1), even if he is aggrieved by the order (See Najeeb v. Maintenance Tribunal reported in 2018 (3) KHC 825 ) 5. It has been held by this Court that a respondent in the application filed before the Tribunal is not empowered to avail the appellate remedy in terms of S. 16(1), even if he is aggrieved by the order (See Najeeb v. Maintenance Tribunal reported in 2018 (3) KHC 825 ) 5. The specific contention of the petitioners herein is that the complaint filed by the 3rd respondent before the Maintenance Tribunal is not maintainable as he is not a senior citizen as defined under Section 2(h) of the Act. According to the petitioners, a senior citizen has been defined to be a person who is a citizen of India who has attained the age of 60 years or above. The 3rd respondent is just 59 years old and hence the Tribunal would have no jurisdiction to entertain his petition. It is further contended that the Tribunal has exceeded in its powers to permit the 3rd respondent to reside in the house as, under Section 5, the Tribunal could only have ordered the daughter to pay maintenance and nothing more. Finally, it is submitted that the complaint is bad for misjoinder as no order could have been passed against petitioners 1,3 & 4. 6. Sri. Sunil Joseph, the learned counsel has reiterated the contentions raised by him in this petition. He would contend that the construction of the residential home bearing No. 1/162 and 1/163 was carried out by the 1st petitioner herein using her income. According to the learned counsel, the key to House No. 1/162 has already been handed over to the 3rd respondent and he can very well reside there without causing any disturbance to the petitioners who are residing in House No. 1/163. He would also contend that the application filed by him cannot be sustained as the relief is sought against his wife and in-laws. 7. Sri. Liju Stephen, the learned counsel appearing for the 3rd respondent has strenuously opposed the submissions. He would point out that the 3rd respondent herein is a 'parent' as defined under section 2(d) of the Act. According to the learned counsel, either the senior citizen or the parent, as the case may be, is entitled to move an application for maintenance. The learned counsel would also refer to Section 2(b) of the Act and it was argued that maintenance includes provisions for food, clothing residence, medical attendance and treatment. 8. According to the learned counsel, either the senior citizen or the parent, as the case may be, is entitled to move an application for maintenance. The learned counsel would also refer to Section 2(b) of the Act and it was argued that maintenance includes provisions for food, clothing residence, medical attendance and treatment. 8. I have heard Sri. Sunil Joseph, the learned counsel appearing for the petitioners and Sri. Liju Stephen, the learned counsel appearing for the 3rd respondent and have carefully gone through the records. 9. The first and foremost contention of the petitioners is that a person who has not attained the age of 60 years cannot maintain an application under Act 56 of 2007 as he would not fall within the category of a senior citizen as defined under Section 2(h) of the Act. The second contention of the petitioners is that the Tribunal was not justified in passing an order permitting the 3rd respondent to reside in the building bearing No. 1/163 as the jurisdiction of the Tribunal was only to grant maintenance when an application is filed under Section 5 of the Act. 10. I am afraid that I am unable to accede to the said submissions. 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 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. Under Section 2(b) 'maintenance' includes provision for food, clothing, residence and medical attendance 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. Section 4 of the Act states that a senior citizen including a parent who is unable to maintain himself or herself from his or her own earning or out of the property owned by him shall be entitled to make an application under Section 5. Section 4(2) states that it is the obligation of the children or relative, as the case may be to maintain a senior citizen so that the senior citizen may lead a normal life. In the same manner, Section 4(3) states that 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 the parent may lead a normal life. Section 5 of the Act provides for filing an application for maintenance. It states that an application for maintenance under Section 4 may be made either by a senior citizen or a parent as the case may be. A holistic reading of the provision would show that it is open for either a senior citizen or a parent to approach the Maintenance Tribunal seeking an order of maintenance and it is not necessary that the parent must be a senior citizen. The only difference is that in the case of a senior citizen, he or she can file an application against a relative or the children as the case may be. However, in the case of a parent, relief can be granted only against the children as defined under Section 2(a). It is pertinent to note that maintenance has been defined to include provision for food, clothing, residence and medical attendance and treatment. 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. It is pertinent to note that maintenance has been defined to include provision for food, clothing, residence and medical attendance and treatment. 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. 13. In that view of the matter the contention of the learned counsel that a parent who has not attained senior citizen status as defined under Section 2(h) cannot sustain an application does not appeal to me. The 3rd respondent is entitled to live with security and dignity and all that has been granted to the 3rd respondent is that protection by the Maintenance Tribunal. 14. Having considered the entire facts, I find no reason to interfere with the impugned order. This writ petition will stand dismissed.