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2023 Supreme(Online)(KER) 29412
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 5TH DAY OF JANUARY 2023 / 15TH POUSHA, 1944
W.A. NO. 1999 OF 2022
AGAINST THE JUDGMENT DATED 17.11.2022 IN WP(C) 24328/2022
OF HIGH COURT OF KERALA
APPELLANT/SECOND RESPONDENT:
JAMEELA BEEVI
AGED 76 YEARS
W/O ABDUL RAHAMANKUTTY, ELAVA HOUSE, KOTTANGAL
VILLAGE, VAIPUR P.O., PATHANAMTHITTA DISTRICT,
PIN - 689588
BY ADV K.N.RADHAKRISHNAN(THIRUVALLA)
RESPONDENTS/RESPONDENTS 1 AND 3 AND PETITIONER IN WPC:
1
THE MAINTENANCE TRIBUNAL AND REVENUE DIVISIONAL
OFFICER, OFFICE OF THE REVENUE DIVISIONAL
OFFICER, THIRUVALLA, PIN - 689101
2
ZAKKIR HUSSAIN
AGED 43 YEARS
S/O ABDUL RAHAMANKUTTY, ELAVA HOUSE, KOTTANGAL
VILLAGE, VAIPUR P.O., PATHANAMTHITTA DISTRICT PIN
689 588, WORKING AT AL DOHA POWER PLANT DOHA
POWER STATION, DOHA SPUR MOTORWAY, KUWAIT P.O.BOX
25371000., PIN - 689588
3
ANCY BEEVI
AGED 34 YEARS
W/O SAKEER HUSSAIN, AGED 34 YEARS, ELAVA HOUSE,
CHERUTHOTTUVAZHI, KOTTANGAL VILLAGE, VAIPUR P.O.,
PATHANAMTHITTA DISTRICT. 689 588, PIN - 689588
R3 BY ADV.FRANKLIN ARACKAL
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
05.01.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.No. 1999 of 2022 2
The Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 does not have the power to issue a protection order.
Headnote:
MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007 - PROTECTION ORDER - JURISDICTION - TRIBUNALThe Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 does not have the power to issue a protection order. The power of the Tribunal is limited to issuing directions to the children or relatives to maintain a senior citizen in contemplation of the provisions of the Act.
Fact of the Case:
The appellant, a 74-year-old widow and senior citizen, filed an application before the Maintenance Tribunal under Sections 4 and 5 of the Act, 2007, seeking protection from her daughter-in-law, the third respondent. The Tribunal passed an order directing the daughter-in-law not to take any action affecting the life of the appellant and the appellant not to cause any mental or physical difficulties to the daughter-in-law. The appellant challenged the order before the High Court, which quashed the order on the ground that the Tribunal did not have the power to issue a protection order.
Finding of the Court:
The High Court held that the Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 does not have the power to issue a protection order. The power of the Tribunal is limited to issuing directions to the children or relatives to maintain a senior citizen in contemplation of the provisions of the Act.
Issues: Whether the Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 has the power to issue a protection order.
Ratio Decidendi: The power vested with the Tribunal under the Act, 2007 is as per Sections 4 and 5 of the said Act. Section 4 of the Act, 2007 deals with the maintenance of parents and senior citizens which reads as follows:-“4. Maintenance of Parents and Senior Citizens.- (1) A senior citizen including parent who is unable to maintain himself from his own earning or property owned by him, shall be entitled to make an application under section 5 in case of - (i)parent or grand-parent, against one or more of his children not being a minor.(ii)a childless senior citizen, against such of his relative referred to in clause (g) of section 2. (2) The obligation of the children or relative, as the case may be, to maintain a senior citizen extends to the needs of such citizen so that senior citizen may lead a normal life. (3) The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be, so that such parent may lead a normal life. (4) Any person being a relative of a senior citizen and having sufficient means shall maintain such senior citizen provided he is in possession of the property of such senior citizen or he would inherit the property of such senior citizen:Provided that where more than one relatives are entitled to inherit the property of a senior citizen, the maintenance shall be payable by such relative in the proportion in which they would inherit his property.” On an analysis of the said provision, it is clear that the power vested with the Tribunal is for issuing directions to the children or relative to maintain a senior citizen in contemplation of the provisions of the Act, 2007. Section 5 of the Act, 2007 deals with the manner in which the application is to be filed by a senior citizen which reads as follows:-
Final Decision: The writ appeal was dismissed.
JUDGMENT
Shaji P. Chaly,J.
This writ appeal is preferred by the second respondent in W.P.(C.) No.24328/2022 challenging the judgment of the learned Single Judge dated 17.11.2022 whereby the learned learned Single Judge allowed the writ petition and quashed Ext.P8 order passed by the Maintenance Tribunal, Thiruvalla, dated 11.07.2022 constituted under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as the 'Act, 2007'). It is thus challenging the legality and correctness of the judgment of the learned Single Judge, the writ appeal is filed.
2. The appellant and the third respondent in the appeal/writ petitioner are mother-in-law and daughter-in-law respectively. The mother-in-law has filed an application under Sections 4 and 5 of the Act, 2007 before the Sub Divisional Magistrate, Thiruvalla. In the said petition, the relief sought for by the appellant is as follows:-
“In the circumstances, it is prayed that sufficient steps may be taken for me, who is a 74-year-old, widow and a senior citizen, to reside peacefully in the house which is legally entitled to me by protecting me from the physical atrocities of Respondent, by giving protection to my life and property.”
3. The Tribunal after considering the submissions made by the rival parties and the objections filed has passed the following order dated 11.07.2022:-
“ORDER Cases are pending before different courts raising various issues. Certain courts have passed orders. Keeping the right of the Petitioner who is a senior citizen to reside with all the freedom in the property and the house which was conveyed over to her by her younger son, it is ordered that no action which affecting the life of the Petitioner shall be taken by the Respondent, and the petitioner shall not cause any mental or physical difficulties to the Respondent who is living together with the Petitioner in the house. Neither of the parties shall reside in the house without quarrelling each other. It is also hereby ordered directing that the parties shall act subject to the final orders which are filed before different courts.”
4. It is thus challenging the legality and correctness of the order passed by the Tribunal, the writ petition was filed. The learned Single Judge, after taking into account the provisions of the Act, 2007 and also taking note of the fact that O.S. No.356/2020 was filed by the appellant before the Munsiff's Court, Thiruvalla against forcible eviction, and the trial court allowed the interlocutory application and thereby protected the possession of the appellant, allowed the writ petition. The relevant portion of the judgment reads thus:-
“6. I have heard the learned counsel for the parties and appraised the paper book. The marriage between the petitioner and the 3rd respondent and relationship being sour are the matter on record for the reason that the petitioner has already availed the remedy under the provisions of Domestic Violence Act much less the maintenance, against the respondent No.3, who has been ordered to pay. It is only after the order of the Maintenance respondent No.3 executed a settlement deed in favour of his mother, respondent No.2/mother in law of the petitioner. The 2nd respondent also filed a civil suit and obtained an injunction qua eviction. Once there is already an order of forcible eviction and culminate into final judgment there was no occasion or a fresh cause of action in favour of the respondent No.2 to institute the petition under the Maintenance and Welfare of Senior Citizens Act, for, neither any maintenance had been claimed nor any cancellation of documents was sought. Munsiff Court had already injuncted the petitioner not to effect the life of the 2nd respondent nor any mental and physical cruelty much less any quarrel. The operative part of the order reads as under:
'Cases are pending before different courts raising various issues. Certain courts have passed orders. Keeping the right of the petitioner
