Jurisdiction under Maintenance and Welfare of Parents and Senior Citizens Act requires senior citizen prove inability to self-maintain from earnings/property; tribunal's denial of maintenance invalidates eviction order against children.

JUDGMENT :

SOMASEKHAR SUNDARESAN, J.

1. Rule. Made returnable forthwith, and by consent of the parties, taken up for final hearing.

Context and Factual Background:

2. The challenge in this Petition is to an order dated February 2, 2024 (“Impugned Order”) by which the Petitioners (“the Sons”) have been directed, in exercise of powers under the MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT , 2007 (“the Act”), to vacate the premises owned by their father, Respondent No. 1 (“the Father”), which the Sons currently occupy in Liberty Garden in Malad, which is admittedly a slum unit. The Sons are offspring of the Father and his late first wife. Respondent No. 2 is the current wife of the Father.

3. I have heard Mr. Tanmay Shembavanekar, Learned Advocate on behalf of the Sons and Ms. Vijayalaxmi Obhan, Learned Advocate on behalf of the Respondents. With their assistance I have reviewed the material on record.

Contentions of the Sons:

4. Mr. Shembavanekar on behalf of the Sons would submit that a plain reading of the Impugned Order indicates that the Maintenance Tribunal constituted under the Act has squarely held that the Father cannot be awarded maintenance. The Sons contend that the eligibility for grant of maintenance is a foundational jurisdictional fact for purposes of intervention under the Act because it is when a senior citizen is unable to maintain himself that the jurisdiction of the Act would be attracted.

5. He would contend that once it has held that under Section 4 of the Act no maintenance can be awarded, an order for eviction of the Sons is untenable, because such finding undermines the Impugned Order for eviction as being arbitrary and in conflict with the very scheme and legislative objective of the Act.

6. Mr. Shembavanekar would contend that the maximum maintenance that can be awarded under the Act is capped at Rs. 10,000 per month under Section 9(2) of the Act, while it is a matter of admitted record that the Father has annual taxable income of Rs.4.6 lakhs (nearly Rs. 40,000 per month) as is seen from his tax returns, and that he is a recipient of pension, having retired from a municipal job. Therefore, Mr. Shembavanekar would submit, the finding in the Impugned Order that the Father need not be granted maintenance under the Act is a valid and accurate finding. Such finding has also been embraced and become final, since the Father has not filed any challenge to it for over two years, while the statutory deadline for an appeal is 60 days, with delay being capable of condonation for sufficient cause.

7. Learned Advocate for the Sons would also submit that the Respondents are living in different premises and there is nothing to indicate that the Father would need to live in the premises from which eviction of the Sons has been directed. He would submit that the Father has both physical means in terms of alternate premises where he resides as well as financial means in terms of the pension received by him.

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