Thursday, 12 May 2016

Whether children are liable to provide 'welfare measure' to live-in-partner of their mother?

  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.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                            PRESENT:

                   THE HONOURABLE 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.




                                 A.MUHAMED MUSTAQUE, JUDGE
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