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2025 Supreme(Online)(GUJ) 59
HIGH COURT OF GUJARAT
MR. JUSTICE ANIRUDDHA P. MAYEE, J
MITHILESH SINGH DILIP SINGH SISODIA – Appellant
Versus
STATE OF GUJARAT – Respondent
R/SPECIAL CIVIL APPLICATION NO. 26421 of 2022
The court affirmed the petitioners' right to representation by an advocate in maintenance proceedings, while not addressing the constitutionality of Section 17 of the Act.
Headnote:
(A) Maintenance and Welfare of Parents and Senior Citizens Act, 2007 - Section 17 - Petitioners sought to quash the order rejecting their representation through an advocate in maintenance proceedings initiated by their father under the Act - The court allowed the petitioners to represent through an advocate and quashed the impugned order. (Paras 1, 7, 12)
(B) The court did not address the vires of Section 17 as it was not necessary for the resolution of the present application. (Paras 7, 8)
Facts of the case:
The petitioners, residing in Mumbai, challenged the rejection of their request to be represented by an advocate in a maintenance case filed by their father under the Act, claiming he did not meet the criteria under the Act. (Paras 2, 3)
Findings of Court:
The court permitted representation through an advocate and quashed the order preventing such representation, allowing all contentions to be raised before the Tribunal. (Paras 7, 9)
Issues: Whether the petitioners could be represented by an advocate in the maintenance proceedings and the applicability of Section 17 of the Act. (Paras 1, 4)
Ratio Decidendi: The court ruled that the petitioners are entitled to representation by an advocate, and the merits of the case will be decided by the Tribunal. (Paras 7, 9)
Result: The Special Civil Application was disposed of, allowing representation through an advocate.
ORDER :
1. By the present Special Civil Application, the petitioners have prayed for the following reliefs:
“(A) YOUR LORDSHIPS may be pleased to issue appropriate writ, order or direction, quashing and setting aside the order dated 13.12.2022 (Annexure A) passed by the respondent no.2 in Parents Maintenance case no.31 of 2022 (old case no.19/2022) whereby, the respondent no.2 was pleased to reject the request made by the petitioners to be represented through their advocate in view of decision of Hon'ble Kerala High Court whereby, Section 17 of Maintenance and Welfare of Parents and Senior Citizen Act, 2007 is declared as Ultra Vires;
(B) YOUR LORDSHIPS may be pleased to issue a writ of certiorari and/or a writ of mandamus and/or a writ in nature of mandamus and/or writ in nature of certiorari to quash and set aside proceeding being Parents Maintenance case no. 31 of 2022 (old case no. 19/2022) pending before respondent no.2 because the respondent no.3 does no fulfill the criteria contemplated under Maintenance and Welfare of Parents and Senior Citizen Act, 2007;
(C) Pending hearing, admission and final hearing of the matter, YOUR LORDSHIPS be pleased to stay the implementation and execution of the order dated 13.12.2022(Annexure A) passed by the respondent no.2 in Parents Maintenance case no. 31 of 2022 (old case no. 19/2022) and further be pleased to stay the proceedings pending before respondent no.2 in Parents Maintenance case no. 31 of 2022 (old case no. 19/2022);
(D) Be pleased to pass any other order interest of Justice.”
2. It is the case of the petitioners that the respondent No.3, who is the father of the petitioners, has preferred proceedings under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, being Parents Maintenance Case No.31 of 2022 [old Case No.19 of 2022], before the City Deputy Collector and Sub-Divisional Magistrate (West), Ahmedabad, That in the said proceedings, notice dated 25.5.2022 came to be issued to the petitioners. It is the further case of the petitioners that since the petitioners are residing at Mumbai because of their jobs, the petitioners engaged an advocate to appear and represent them. By the impugned order dated 13.12.2022, the learned Tribunal has rejected the appointment of the advocate to represent the petitioners in the said maintenance case. Aggrieved, the petitioners have filed the present Special Civil Application.
3. In addition to the prayer for permitting the advocate to appear on behalf of the petitioners, the petitioners have also prayed that the maintenance proceedings so initiated under the Act, be quashed and set aside because the respondent No.3- father of the petitioners does not fulfill the criteria contemplated under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (‘the Act, 2007’ for short).
4. In support of the contentions, the learned counsel for the petitioners has relied upon the judgment of the Kerala High Court in the case of K.G. Suresh v. Union of India and others reported in AIR 2021 KERALA 152, whereby Section 17 of the Act, 2007 is declared as ultra vires. The learned counsel further submits that similar judgments declaring Section 17 of the Act, 2007 as ultra vires have also been passed by Punjab & Haryana High Court as well as Delhi High Court.
5. Mr. V.C. Vaghela, appearing for respondent No.3, submits, under instructions, that the petitioners may be permitted to represent the proceedings through their advocate.
6. Heard the learned counsels for the parties and perused the documents on record.
7. In view of the concession granted by the learned counsel for respondent No.3, this Court does not propose to go into the issue of vires of Section 17 of the Act, 2007. Further, there is no prayer to the said effect in the writ petition. By the concession of the learned counsel for respondent No.3, as recorded, the petitioners are permitted to represent them through their advocate in the Parents Maintenance Case No.31 of 2022 [old C
