going by the nature of provisions in the Senior Citizens Act regarding
maintenance, these arguments would have a relevance if there is an
order to pay maintenance. Further, the order passed by the
Maintenance Tribunal would show that it has passed the order in
terms of Section 2(k) of the Senior Citizens Act for providing "welfare
measures" rather than invoking provision for maintenance under
Section 2(b) of the Senior Citizens Act. The welfare measures can be
imposed against any person, based on the accepted relationship
between the parties involving mutual obligations for a considerable
time though such persons may not have legal obligation to pay the
maintenance. The maintenance, of course, can be ordered only
against the persons mentioned as 'children' or 'relative' as defined
under the Senior Citizens Act. Though, there is no special provision
for providing "welfare" to the senior citizen, the scheme of Senior
Citizens Act itself gives a room for the Tribunal to protect the
"welfare" of a senior citizen. It is open for the Tribunal to impose a
liability for providing "welfare measures" on whom the Tribunal
deems fit that it can be imposed, based on the accepted relationship
between the parties. Otherwise, the very purpose of the Act would
be defeated. Thus, it has to be concluded that the direction as
ordered in the impugned order is only a direction to provide "welfare
measures" and not as maintenance and such measures can be
imposed against any persons, whom the Tribunal deems fit in
circumstances and for sufficient reasons, though, such persons would
not come within the ambit of 'children' or 'relative' as defined under
the Senior Citizens Act. In this case, the facts disclosed clearly
establish that the mother of the petitioners and the petitioners had
an accepted relationship involving mutual obligations with the senior
citizen. Therefore, this Court is of the view that the writ petition must
fail and accordingly, the same is dismissed.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE A.MUHAMED MUSTAQUE
FRIDAY,THE 18TH DAY OF MARCH 2016
WP(C).No. 4981 of 2015 (W)
-
REJU, AGED 38, S/O.SEKHARAN,
Vs
1. THE MAINTENANCE TRIBUNAL,
2. THE APPELLATE TRIBUNAL,
3. SASIDHARAN, AGED 50,
The petitioner, challenging an order passed by the Maintenance
Tribunal, constituted under the Maintenance and Welfare of Parents
and Senior Citizens Act, 2007 (for short, the "Senior Citizens Act"), has
approached this Court.
2. By the impugned order, the petitioners have been
directed to provide "welfare measures" to the third respondent.
3. The case of the petitioners is that they are not liable to
provide any maintenance or basic amenities to the third respondent.
It is their case that the third respondent is not their parent nor would
he come within the biological father/adopted or step father and
therefore, the application filed by the third respondent before the
Maintenance Tribunal is not maintainable.
4. The case of the third respondent, who is the complainant
before the Tribunal, is that he married to the mother of the
petitioners, namely, Devaki as per Ext.R3B and he expended a large
sum of money for the upkeep of immovable properties as well as, the
well being of the petitioners and therefore, he is entitled for the
benefits referred in the impugned order. It was also argued that the
petitioners cannot approach this Court bypassing the remedy of
appeal under Section 16 before the appellate authority.
5. Heard the learned counsel for the petitioners as well as
the learned counsel for the third respondent.
6. One of the arguments raised by the learned counsel for
the petitioners is that the third respondent cannot legally marry their
mother as he had a subsisting marriage at the time of co-habitation
with the mother of the petitioners. It is further submitted that the
third respondent has a son by name Vishnu. It is further argued that
nowhere in the Senior Citizens Act, a liability is cast upon the children
of the women, with whom the senior citizen had a relationship, to
maintain such senior citizen.
7. The object of the Senior Citizens Act is to protect and to
provide effective provisions for the maintenance and welfare of
parents and senior citizens. Under Part IV of the Constitution of India
in terms of Article 41, the State has a duty to take effective measures
to secure the wellbeing of a citizen during his old age.
8. This is a peculiar case, the facts otherwise would disclose
that the third respondent is not the biological father and he has a
biological son named Vishnu, in his wedlock. It appears that said
Vishnu is working as a Project Manager. However, the Tribunal taking
note of the fact that the senior citizen was residing with the mother
of the petitioner, he was permitted to stay in that residence without
any obstruction. There is no order to pay monetary maintenance to
the Senior Citizen. In such circumstances, the only question is
whether the measures ordered by the Maintenance Tribunal require
any interference by this Court or not.
9. It is apposite to refer Section 2(k) of the Senior Citizens
Act, which defines "welfare" as follows:
"(k) "welfare" means provisions for food, health care,
recreation centres and other amenities necessary for the
senior citizens."
10. The main argument of the petitioners is that the
petitioners are not biological children of the senior citizen. They refer
to the definition of "children" as well as definition of "parent" and
point out that the relationship between the petitioners and the senior
citizen do not come within the above definition and therefore, the
senior citizen cannot raise any claim against the petitioners. The
petitioners also refer to the definition of "relative" and submits that
since the senior citizen has a son and there is no scope for
inheritance of the property of the senior citizen after his death, by the
petitioners, to bring within the fold of "relative".
11. The above argument though appears to be meritorious,
going by the nature of provisions in the Senior Citizens Act regarding
maintenance, these arguments would have a relevance if there is an
order to pay maintenance. Further, the order passed by the
Maintenance Tribunal would show that it has passed the order in
terms of Section 2(k) of the Senior Citizens Act for providing "welfare
measures" rather than invoking provision for maintenance under
Section 2(b) of the Senior Citizens Act. The welfare measures can be
imposed against any person, based on the accepted relationship
between the parties involving mutual obligations for a considerable
time though such persons may not have legal obligation to pay the
maintenance. The maintenance, of course, can be ordered only
against the persons mentioned as 'children' or 'relative' as defined
under the Senior Citizens Act. Though, there is no special provision
for providing "welfare" to the senior citizen, the scheme of Senior
Citizens Act itself gives a room for the Tribunal to protect the
"welfare" of a senior citizen. It is open for the Tribunal to impose a
liability for providing "welfare measures" on whom the Tribunal
deems fit that it can be imposed, based on the accepted relationship
between the parties. Otherwise, the very purpose of the Act would
be defeated. Thus, it has to be concluded that the direction as
ordered in the impugned order is only a direction to provide "welfare
measures" and not as maintenance and such measures can be
imposed against any persons, whom the Tribunal deems fit in
circumstances and for sufficient reasons, though, such persons would
not come within the ambit of 'children' or 'relative' as defined under
the Senior Citizens Act. In this case, the facts disclosed clearly
establish that the mother of the petitioners and the petitioners had
an accepted relationship involving mutual obligations with the senior
citizen. Therefore, this Court is of the view that the writ petition must
fail and accordingly, the same is dismissed.
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