James Kutty vs Appellate Tribunal For Protection And Welfare Of Parents And Senior Citizen And Ors

Elykutty Joseph, the 2nd respondent herein is an Octogenarian. The petitioner herein is her son. In addition to the petitioner, Elykutty Joseph has

two other sons, who are the 3rd respondent herein and one Late Sri.I.G.Issac. The 4th respondent is the widow of late Issac. Respondents 5 to 7 are

the daughters of Elykutty Joseph.

The 2nd respondent approached the Maintenance Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act,

2007 and lodged an application against her children invoking Sections 4, 5 and Section 23 of the Act. She contended that her late husband was the

owner of property having an extent of 29 cents. After the death of her husband, she was given false inducements and was made to part with 15 cents

by Sri.James Kutty, the petitioner herein. Later, her elder son, Sri.Vijayakumar, persuaded her to assign the balance extent of 9.5 cents to him.

Sri.Vijayakumar, had assured the second respondent that he would look after his mother. However, he went back on his word and refused to look

after the mother. The second respondent is depending on her daughters for her maintenance during the last lap of her life. She states that her elder

son had worked in the military and had worked overseas for a considerable period. The petitioner herein, on the other hand, had retired from the

Kerala Police service while working as an ASI. His wife was a school teacher and they are living in affluent circumstances.

The petitioner as well as the other children entered appearance before the Tribunal and filed counter statements. The petitioner contended that he

had handed over substantial amounts to his elder brother for the purpose of looking after the mother. According to him, his father had executed the gift

deed in his name taking note of his poor financial condition. It is stated that Sri. Isaac, who is now no more, was very affluent and was a captain in the

merchant Navy. After his death, the mother had received huge sums of money towards her share which is sufficient and more for her maintenance.

According to the petitioner, he was getting only a meagre amount by way of pension, and every paise is required for him and his aged wife and for the

education of his daughter.

The Maintenance Tribunal conducted an enquiry and by order dated 22.3.2019 ordered that the documents executed prior to the coming into force

of the Act cannot be unsettled. However, the mother was held entitled to live with any of her children as per her wishes and wants. The petitioner and

Sri Vijayakumar, the sons who are living, were ordered to pay a sum of Rs.4000/ towards maintenance per month. The petitioner, Sri. Vijayakumar

and two of the daughters, namely Sicily Clattis and Margaret Roberts were ordered to pay the expenses incurred towards the maintenance of a home

nurse to take care of the medical expenses of the mother.

The order passed by the Maintenance Tribunal was challenged by the mother as well as the petitioner before the Appellate Tribunal constituted to

hear appeals against the order passed by the Maintenance Tribunal. By a common order dated 16.9.2019, the appeals were dismissed confirming the

order passed by the Tribunal.

This Writ petition is filed by the petitioner challenging the said order. It would be pertinent to note that none of the other children or the mother has

chosen to challenge the order.

The petitioner contends that no enquiry as contemplated under Section 8 of the Act was conducted by the Maintenance Tribunal. No proper

opportunity was granted by either the Maintenance Tribunal or the Appellate Tribunal to substantiate his contentions. He contends that the Appellate

Tribunal has merely endorsed the findings of the Maintenance Tribunal and did not even appreciate the valid contentions advanced by the petitioner. It

is further contended that the petitioner had preferred a petition to reopen the hearing of the appeals but the Appellate Tribunal refused to consider the

request. The petitioner further states that the other children of the mother are living in affluent circumstances whereas the petitioner is living in

impecunious circumstances. According to him, the daughters are instrumental in the filing of the frivolous petition with intent to harass the petitioner.

According to the petitioner, the treatment expenses are inflated and quarter share is being demanded from the petitioner.

I have considered the submissions advanced by the learned counsel appearing for the petitioner and the learned counsel appearing for the

respondents.

I have also gone through the counter affidavits filed by the respondents.

One of the main contentions of the petitioner is that the Appellate Tribunal failed to consider the contentions raised by him in his appeal. It is also

contended that an application to rehear the appeal was preferred but the same was not considered by the Tribunal. Under Section 16 of the Act, only

a senior citizen or a parent, who is aggrieved by an order of the Tribunal is entitled to prefer an appeal within 60 days from the date of the order

passed by the Tribunal. No right to prefer appeal is granted to the children or relatives. In that view of the matter, the contentions advanced on that

ground is liable to be rejected.

The next contention advanced by the petitioner is that the amount ordered by the Tribunal as confirmed by the Appellate Tribunal is highly

onerous.

The records reveal that the mother is living with daughters and she is happy with them. Substantial landed property owned by the family was in

fact gifted to the petitioner by the father. The records reveal that the mother requires a dedicated home nurse for taking care of her needs. She would

be incurring expenses also for her treatment. The amount payable by the petitioner towards maintenance is Rs 4000/ per mensem. The petitioner was

formerly an ASI in the Kerala Police department and he has retired from service. The records reveal that his wife was a teacher. The amount

ordered to be paid cannot be said to be excessive in the facts and circumstances. The contention of the petitioner is that he had paid a sum of Rs 1

Lakh to his elder brother and he had agreed to take care of the mother. Both the Tribunal as well as the appellate authority have concluded that the

said contention is unsubstantiated. Even otherwise, if any agreement is entered into between the children, the same will not bind the mother and she

can always approach the Maintenance Tribunal seeking relief. The Maintenance Tribunal has also directed the petitioner to share one fourth of the

amount spent by the children towards hospital and treatment expenses and also for the salary to be paid to the home nurse. The directions issued by

the Tribunal as confirmed by the Appellate Tribunal is reasonable and proper in the facts and circumstances.

Act 56 of 2007 was enacted for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and

recognised under the Constitution. Except the petitioner, none of the children have any objection to the directions issued by the Maintenance Tribunal.

Having considered the matter in all its perspectives, I find no reason to interfere with the order passed by the Tribunal as confirmed by the Appellate

Tribunal.

This Writ petition will stand dismissed.