IMPORTANT POINT
Providing residence to a senior citizen under the Maintenance and Welfare of Parents and Senior Citizens Act is distinct from maintenance, and the Tribunal has jurisdiction to order such provision.

JUDGMENT :

D. K. Singh, J.

Petitioners are the daughter, son, and wife, respectively, who filed proceedings No. N2/217/2023 before the 1st respondent, Maintenance Tribunal, constituted under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007(‘the Act’ for short).

2. The 2nd respondent is the father of the 1st and 2nd petitioner, and the Husband of the 3rd petitioner, who is a senior citizen, filed a petition under Section 5 of the Act before the Maintenance Tribunal, Kozhikode (1st respondent). It is stated that the petitioners did not take care of providing the residence to him, and he needs maintenance to survive and lead a normal life. It is further stated that second respondent was living abroad, and after he came back from abroad, the petitioners did not permit him to reside in the flat purchased in the joint name of himself and his wife. Before going abroad, all the family members were staying together. After he came back from abroad with some ailments, the petitioners were not ready to accept him, and he had no place to live. It was also prayed that if the petitioners were not willing to permit him to stay with them, they should arrange a house or flat for him and should also provide the maintenance amount.

3. On the basis of these facts stated, the Tribunal passed an interim order on 27.02.2023, permitting the 2nd respondent to reside in the flat, which is in the joint name of husband and wife, subject to the final outcome of the proceedings before the Tribunal. The petitioners approached this Court in W.P(C)No. 16099/2023, and this court granted an interim stay on the interim order passed by the Tribunal on 27.02.2023.

4. This court set aside the interim order passed by the Tribunal and directed the parties to appear before the Tribunal on 26.09.2023. The Tribunal finally came to the conclusion that the 2nd respondent did not have a place to stay, and he was residing in the houses of the relatives changing from one to another. A report was also made available from the Village Officer regarding the financial status of the petitioners, and therefore, considering the age and health condition, the Tribunal directed the petitioners to arrange a house on rent to accommodate the 2nd respondent and also bear the monthly rent for the said residence. The Tribunal did not order for maintenance as the 2nd respondent had already filed proceedings under Section 125 of the Cr.P.C, claiming maintenance.

5. The learned counsel for the petitioners submitted that during these years, the 2nd respondent intentionally deserted his wife and children, who are the petitioners here. He was leading a luxurious life of his choice abroad, and he neglected to take care of and maintain the petitioners and his other daughter, who is not a petitioner in the writ petition.

6. It is submitted that Section 12 of the Act prohibits the Tribunal to entertain a plea for grant of maintenance to an applicant, who has already exercised an option to initiate proceedings under Section 125 of Chapter IX of the Code Criminal Procedure, demanding maintenance from his own children.

7. In the present case, the 2nd respondent had approached the Family Court, Kozhikode, seeking maintenance to be paid to him by the children. Therefore, the order passed for arranging the house for him and paying the rent by the petitioner is against the express provision of Section 12 of Act. Section 2(b) of the Act provides the definition of maintenance which would include inter alia providing residence as well.

8. It is further submitted that as providing residence is a facet of maintenance in the definition given in Section 2(b) of Act, the impugned order passed by the respondent Tribunal is unsustainable and liable to be set aside.

9. The next submission advanced by the learned counsel for the petitioner is that Section 4 of the Act prescribes that the parents or senior citizen would be entitled to the maintenance, who is unable to maintain himself/herself f