A positive law is not necessary to claim past maintenance for elderly parents. The court can recognize the right to claim maintenance based on principles of equity, natural justice, and good conscience, as well as social order, religious norms, and precepts.

JUDGMENT :

A.Muhamed Mustaque, J.

“Wisdom belongs to the aged and understanding to the old [Job 12:12].

2. An octogenarian Christian failed before the Family Court, Malappuram against his children for arrears of maintenance on the ground that no law prescribes a Christian would be entitled to past maintenance. We thought the family court was right as there were no statutory provisions prescribing the same, but we probed many law and principles to understand the claim for maintenance. Is it a requirement that to claim maintenance there should be a positive law? We find the reasons recorded hereafter that, to claim past maintenance positive law is not a prerequisite.

3. The parties are Christians by faith. There is no statutory provision that prescribes the duty of the children to pay maintenance to the father in his old age as per the statutory law. Even under the Indian Christian Marriage Act, 1872, the grant of maintenance to the wife and children is silent. Karnataka High Court noting the silence in the above statutory provisions had taken the view that the court will have to strive to redress the grievances by adopting the principles of equity natural justice and good conscience (see the views of the Karnataka High Court in K. Kumar v. Leena [(2010) 0 AIR (Kar) 75].

4. Under the Maintenance and Welfare of Parents and Senior Citizens Act, the maintenance can only be claimed prospectively after the date of application for maintenance. Similar is the provision under Section 125 of the Criminal Procedure Code.

5. The law is nothing but principles that are implicit in the relationships formed privately through practices, traditions and culture. Some legal principles followed in society in past may have gotten statutory recognition through legislation. In a country where the social order is defined by the practice of the community or that of a denomination adhering to a long standing religious norms and precepts, the court will have to recognize those norms and precepts creating such relationship in that social order.

In Holy Bible it is written as:

“Honor your father and mother” (this is the first commandment with a promise), “that it may go well with you and that you may live long in the land.[ Ephesians 6:2-3]

Listen to your father who begot you, And do not despise your mother when she is old” [Proverbs 23:22]

But if anyone does not provide for his relatives, and especially for members of his household, he has denied the faith and is worse than an unbeliever”. [Timothy 5:8]”

In the Universal Declaration of Human Rights under Article 25, it was declared as follows:

“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control”.

Under Article 41 of the Indian Constitution, Though one may think that it is the duty of the State to provide measures to secure the needs of senior citizens during their old age, we cannot ignore the principles in a social order creating an obligation on the children to maintain their parents during old age. It is appropriate to refer to the views of Ronald Dworkin, expressed in Taking Rights Seriously about the judges' role in making decision and using discretion:

“The law does not simply state what private citizens ought or ought not to do; it provides what they have a duty to do or no right to do. It does not, moreover, simply advise judges and other officials about the decisions they ought to reach; it provides that they have a duty to recognize and enforce certain standards. It may be that in some cases a judge has no duty to decide either way; in this sort of case we must be content to speak of what he ought to do. This, I take it, is what is meant when we say that in such a case the judge has 'discretion'. But every