1 Mrs. Priti Dhoundial & Ors vs Tribunal (Under Maintenance & ...

on 26 November, 2009

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Tribunal under Maintenance and Welfare of the Parents and Senior Citizens Act, 2007 (hereinafter referred to as "the Act").
2. It is submitted by the petitioners that the impugned order was passed on an application or complaint dated 19th October, 2009
alleged to have been made by the President of All India Centre for Development of Education and Environment (ACIDEE)
against the petitioners. The petitioners learnt about this order from reports appearing in newspapers on 30th October, 2009 and
obtained a copy of the order on that day from the Tribunal. It is stated that although an appeal can be preferred against the order
to a W.P. (C) No.12813/2009 Page No.1 of 10 Appellate Tribunal, however, there is no Appellate Tribunal in existence so that
an appeal could be preferred, moreover, the reliefs being sought by the petitioners are not on merits of the order but on the order
being per se illegal and contrary to the provisions of the Act. It is stated that the procedure adopted by the Tribunal was patently
illegal and the order reflected a grave bias of the Tribunal and the Tribunal had given a go bye to the principles
gift deed, whether the gift deed was linkable to the maintenance or not. 7. Though, the Tribunal had made loud claims in its
order about its inherent powers and authority to do investigative proceedings but unfortunately the Tribunal in this case did no
investigation of its own before entertaining the complaint. What the least was required from the Tribunal was to summon the
affected senior person and if the Tribunal considered that the senior person was not in a capacity to appear before it, it could
depute a Commissioner to go and record the statement of the senior person. Clause 6 of the Act provides that the proceedings of
the Tribunal can be carried against the children or relatives in any district where he resides or lastly resided or where the
children or relative resided. It also provides that all evidence in such proceedings shall be taken in presence of children or relative
against whom the order is proposed to be made. Unfortunately, the Tribunal gave a go bye to the very Act under which it was
constituted and it had been given power to record evidence. The Tribunal seemed to be in a hurry to pass an order
essential principles of a fair trial and natural justice. This is the only way one can look upon the manner in which Tribunal
recorded statements of different witnesses in absence of the petitioners and the manner in which the Tribunal acted in this case.
Such a procedure as adopted by the Tribunal is fraught with danger. Any person or an NGO with ulterior motive, in order to
defame or bring a disrepute to somebody, can use the Tribunal as a tool and file a complaint in respect of his/her parents before
the Tribunal and without investigating whether the complaint was true or not and without making even an inquiry from the
concerned senior person or parent, the Tribunal can just record statement of some witnesses and pass an order against the
children or W.P. (C) No.12813/2009 Page No.6 of 10 relative, without giving an opportunity to the children or relative either to
cross-examine the witnesses or to confront the witnesses with adverse material. The procedure adopted by the Tribunal is
unheard of. This procedure is not even adopted by investigating agencies known for their shoddy investigation. Even
investigating agencies examine the complainant/victim
receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is
gratuitous; but not against the transferee for consideration and without notice of right. (3) If, any senior citizen is incapable of
enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organization referred to in
Explanation to sub-section (1) of section 5. 11. The very first line of Section 23 provides that instruments sought to be cancelled
by the Tribunal must have been executed by a senior citizen after the commencement of this Act. The Tribunal in its zeal to
show its existence to the world thought it proper to put the Act into dustbin and take upon its responsibility of legislating also.
The Tribunal considered that irrespective of the Act providing that only an instrument executed after its coming into force can
be annulled under given circumstances; it has authority to cancel an instrument which was executed even before passing of the
Act. The Tribunal observed that public interest does not demand that the Tribunal should interpret Section 23 of the Act in the
manner
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2 Rajubhai vs Manubhai on 9 December, 2010

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appeal filed by the present petitioners. 3. Issues arise under the Maintenance and Welfare of Parents and Senior Citizens Act,
2007(hereinafter referred to as the 'Said Act'). 4. Respondent No.1 herein, is owner of a constructed property in Ghanchiwad area
of Bhavnagar town. The petitioners are residing therein for some time. On the premise that respondent No.1 along with his wife
and unmarried daughter, was driven out of the said property, by his son and daughter-in-law, he applied to the Deputy Collector,
Bhavnagar, for being re-inducted in the property in question. Under the purported exercise of powers, under the provisions of
Section-23 of the said Act, the Deputy Collector, after hearing the parties, vide his impugned order dated 10.03.2010, accepted
the application of respondent No.1. He held that the property in question is self-acquired property of respondent No.1 and
directed that the petitioners shall handover the vacate and peaceful possession to the said respondent, within 30 days, from the
date of the said order. 5. Petitioners, therefore, preferred appeal, purportedly under Section-16 of the said Act. The District
Magistrate, however, dismissed the appeal, by an order dated
First and foremost, I have serious doubts about the maintainability of appeal under Section-16(1) of the said Act, which reads as
under: "16. Appeals.-(1) Any senior citizen or a parent, as the case may be, aggrieved by an order of a Tribunal may, within
sixty days from the date of the order, prefer an appeal to the Appellate Tribunal: Provided that on appeal, the children or relative
who is required to pay any amount in terms of such maintenance order shall continue to pay to such parent the amount so
ordered, in the manner directed by the Appellate Tribunal: Provided further that the Appellate Tribunal may, entertain the
appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from
preferring the appeal in time." 7. Admittedly, Sub-section(1) of Section-16 permits a senior citizen or a parent
aggrieved by an order of the Tribunal, to prefer an appeal before the Appellate / Maintenance Tribunal, constituted under
Section-7 of the said Act. The term 'tribunal' has been defined under Section-2(j), which reads as follows: "2. ... (j) "Tribunal"
means the Maintenance Tribunal constituted under section 7;" 8. The terms 'parent' and 'senior citizens' have been defined
under Sections-2(d) and 2(h) respectively, in the following manner: "2. ... (d) "parent" means father or mother whether
biological, adoptive or step-rather or step-mother, as the case may be, whether or not the father or the mother is a senior citizen
... (h) "senior citizen" means any person being a citizen of India, who has attained the age of sixty years or above; " 9. The
petitioners, being neither the parents nor senior citizens, it is doubtful whether, could have preferred appeal under Sub-
section(1) of Section 16 of the said Act. 10. I have examined the legality of the order passed by the Deputy Collector. Section-23
of the said Act pertains to transfer of property to be void in certain circumstances and reads as follows: "23. Transfer of property
to be void in certain circumstances
3 Glory Bai vs S.K.A.Noorjakan Beevi on 2 March, 2011

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negates the rights guaranteed to women under Part III of the Constitution. She proceeded further that if the parents of the
married daughter are held as not the dependents of their married daughter, it offends Articles 14, 15, 21 and 51(A) of the
Constitution. The dependency of the parents does not cease on the marriage of their daughter. Further, if such a view is
permitted, it would amount to treating the women as properties / chattel given in marriage. This is impermissible under our
constitutional Scheme. On the coming into force of the Constitution, equality of women and equal protection to women are
guaranteed. Therefore, she contended that the parents of the deceased daughter should be treated as dependents for all purposes,
including for the grant of compensation. 8.Mr.M.Mahaboob Athiff, learned amicus curiae submitted that our Parliament enacted
the Maintenance and Welfare of Parents and Senior Citizens Act 2007, recognizing statutorily that the parents are dependents
of their daughters as well and are entitled to seek maintenance even from the married daughters. He took me through Section
2(a), 2(b) and Section 4 of the said Act, in support of his submission. According
Discrimination against Women should be given effect to, in view of Article 51 of the Constitution of India. He further submitted
that the statute, namely, the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 should be read in the context
of the aforesaid International Convention read with Article 51 of the Constitution of India. 13.Mr.M.Mahaboob Athiff, the
learned amicus curiae further submitted that a similar issue arose before the Delhi High Court in Smt. Ganni Kaur Vs. The
State(NCT) and others reported in AIR 2007 Delhi 273, wherein a Sikh family consisting of husband, wife and children were
bunt to death and the parents of the married daughter claimed compensation for the death of her daughter. While the claim made
by the parents of the husband was allowed, the claim made by the parents of the married daughter was rejected on the ground
that they were not the legal representatives under Section 15 of the Hindu Succession Act. The Delhi High Court granted
compensation to the parents and dealt the issue in detail. 14.In the case of married daughter claiming compensation for the death
of her father / mother, the learned counsel submitted that
Motor Vehicles Act. According to him, the same principle would apply in cases where the parents of the married daughter make
a claim for compensation for the death of their married daughter. 15.Mr.M.Mahaboob Athiff, the learned amicus curiae further
submitted that in similar circumstances, when the parents of the deceased married daughter made a claim for compensation, a
Division Bench of the Kerala High Court in Anandavally Amma and others Vs. Kerala State Road Transport Corporation and
others reported in 1997 ACJ 1044 granted compensation to the parents by applying multiplier method without reference to
dependency. 16.Therefore, Mr.M.Mahaboob Athiff, learned amicus curiae concluded that the parents of the deceased married
daughter in the present appeal are entitled to compensation by applying multiplier method. 17.On the other hand, the learned
counsel for the insurance company submitted that as per the decision of the Honourable Apex Court in Smt.Manjuri Bera Vs.
Oriental Insurance Company Limited and another reported in 2007 (1) TNMAC 385 (SC) and the decision of this Court in
G.Deivasigamani and others Vs. Metropolitan Transport Corporation Ltd., reported in 2008 (1) MLJ 1107, the appellants, who
are the parents
Motor Vehicles Act and the multiplier method for dependents could not be applied. 18.I have considered the submissions made
on either side and perused the materials available on record. 19.After coming into force of our Constitution, it could not be said
that the parents of the deceased son could be treated as dependents, but not the parents of the deceased married daughter, as it
would offend Articles 14, 15 and 21 of the Constitution of India. I am in entire agreement with the submissions made by
Mrs.N.Krishnaveni and Mr.M.Mahaboob Athiff. 20.As rightly contended by Mrs.N.Krishnaveni, the dependency of the parents
does not cease on the marriage of their daughter and if such a view is permitted, it would amount to treating the women as
property given in marriage. As rightly contended by the learned counsel, women are given equal rights in our Constitutional
Scheme. 21.As rightly contended by Mr.M.Mahaboob Athiff, the Honourable Apex Court in Anuj Garg and others Vs. Hotel
Association of India and others reported in 2008 (3) SCC 1 held that Section 30 of Punjab Exercise Act, 1914 prohibiting
employment of women in any premises
4 Pawan Sharma vs State & Ors on 9 September, 2011
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Tribunal is impugned in the present petition. 6. The only issue raised for consideration in the present petition is whether an
aggrieved person can file a petition for maintenance under Section 5 of the Act selectively against some or any of the children.
At this stage it would be appropriate to advert to the relevant provisions of the Act. "2. Definitions : In this Act, unless the
context otherwise requires,-- (a) children includes son, daughter, grandson and grand- daughter but does not include a minor;
(b) maintenance includes provision for food, clothing, residence and medical attendance and treatment; (d) parent means
father or mother whether biological, adoptive or step father or step mother, as the case may be, whether or not the father or the
mother is a senior citizen; (g) relative means any legal heir of the childless senior citizen who is not a minor and is in
possession of or would inherit his property after his death; W.P. (Crl.) No. 1471/2010 Page 5 of 8 (h) senior Citizen means
any person being a citizen of India, who has attained the age of sixty years or above; 3. Act to have overriding effect : The
provisions of this Act
other than this Act. 4. Maintenance of parents and senior citizens : (1) A senior citizen including parent who is unable to
maintain himself from his own earning or out of the 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. 5. Application for Maintenance. - (1) An application for maintenance
under section 4, may be made- (a) by a senior citizen or a parent, as the case may be; or W.P. (Crl.) No. 1471/2010 Page 6 of 8
(b) if he is incapable, by any other person or organization authorized by him; or (c) the Tribunal may take cognizance suo motu.
Explanation.- For the purpose of this section organization means any voluntary association registered under the Societies
Registration Act, 1860 (21 of 1860), or any other law for the time being in force. (2) to (4) xx xx xx xx (5) An application for
maintenance under sub-section (1) may be filed against one or more persons: Provided that such children or relative may
implead the other person liable to maintain parent in the application for maintenance. 7. Thus, a perusal of Sub-Section 4(1)(i)
and 5(5) itself shows that a senior citizen including a parent who is unable to maintain himself from
Thus, the contention of the Petitioner that the application of the Respondent No.2 before the Tribunal only against the Petitioner
without impleading Respondent No.3 that is his elder brother is not maintainable, is clearly fallacious. This position of law is
further fortified by Sub-Section 4 and the proviso thereto wherein unlike a parent seeking maintenance from the child in case of
a childless senior citizen the obligation is on the relatives W.P. (Crl.) No. 1471/2010 Page 7 of 8 to pay maintenance in the
proportion in which they would inherit his property. Further by virtue of Section 3 of the Act the provisions of this Act have an
over-riding effect on anything inconsistent thereto in any other enactments or law. Moreover, the Petitioner has also not filed an
application impleading Respondent No.3 as a party before the Tribunal as provided by the proviso to Section 5(5) of the Act.
Further as per Respondent No.2, Respondent No.3 is already looking after his needs, which is regarding provision of food,
clothing, medical attendance etc., however the Petitioner has failed to do the same. Since Respondent No.3 is already looking
after
5 K.K. Ambujakshy vs Under Secretary (Pva) on 19 October, 2010
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Annexure A-4 representation of the applicant during pendency of the O.A., rejecting her request for retention at Cochin. The
order of rejection is clearly illegal and ultra vires as it has been passed after filing this O.A. before the Tribunal. Section 19(4) of
the Administrative Tribunals Act, 1985, mandates that where an application has been admitted by a Tribunal, every proceeding
as to redressal of grievances in relation to the subject matter pending immediately before such admission shall abate and save as
otherwise directed by the Tribunal, no appeal or representation in relation to such matter thereafter be entertained. Further, the
1st respondent has not considered any of the contentions raised in the representation. The applicant has a legal duty and
obligation to maintain and look after her father-in-law under Section 4 of the Maintenance and Welfare of Parents and Senior
Citizens Act, 2007. The undertakings from all Superintendents have been obtained by pressure. At the time of giving the said
undertaking the applicant could not have contemplated that she would turn out to be a widow and her father-in-law would suffer
cardiac attack. As of now the applicant's permanent disability
minimum degree of disability in order for a person to be eligible for any concession/benefit would continue to be 40%. Therefore,
she is eligible for exemption from transfer as per protection available to her under the provisions of The Persons with Disabilities
(Equal Opportunities, Protection of rights and Full Participation) Act, 1995. Further, vide O.M. dated 13.03.2002 modifying the
O.M. dated 10.05.1990 of the DoP&T, it has been reiterated that the requests from physically handicapped employees for
posting at their choice station or near their native place may be given preference. In Writ Petition (C) Nos. 5989/08 and
10006/08, decided on 06.11.2008, Hon'ble High Court of Kerala held as under : "3. As per the notification issued by the
Central Government under the provisions of the Persons with Disabilities (Equal Opportunities, Protection of rights and Full
Participation) Act, 1995, 40% disability is the bench mark disability for treating a person as physically handicapped person. If
that be so, the respondents herein are also entitled to be treated as physically handicapped persons and further considered for the
benefits that are bestowed on them as per the norms in the matter
question of transfer, in exigencies of service." The applicant herein has sought for retention at the present place due to her
physical disability. The aspect of her physical disability was not considered by the respondents before transferring her. 9. The
applicant is a widow and she shoulders the responsibility to look after her 90 year old bed ridden father-in-law who suffered a
cardiac attack recently. As pointed out by the applicant, she has a legal duty and obligation to maintain and look after her father-
in-law under Section 4 of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The respondents cannot be
unaware of this legal obligation. 10. When the transfer order was issued on 26.06.2010, the applicant was more than 58 years old.
As per para V(iii) of general terms and conditions of transfer policy, 2010, one year prior to superannuation, efforts shall be made
to post officials working away from their native places to their place of choice in view of the welfare oriented policies of the
Government of India. Within one year of her posting in Bangalore, she is eligible to be given a posting to the place
also is a material point which needs consideration by the respondents besides the other facts. 13. The transfer order in respect of
the applicant violates the provisions of The Persons with Disabilities (Equal Opportunities, Protection of rights and Full
Participation) Act, 1995, The Maintenance and Welfare of Parents and Senior Citizens Act, 2007, the transfer guidelines and
the O.Ms mentioned above. Therefore, in the interest of justice, it is necessary that the respondents take a relook at the transfer of
the applicant. In view of the above, it is ordered as under. 14. The applicant is directed to file a fresh representation for
reconsideration of her transfer with all relevant facts within a period of 15 days from the date of receipt of a copy of this order.
The respondent No.1 is directed to consider the said representation within a period of 60 (sixty) days thereafter keeping in mind
the observations made by this Tribunal and pass a speaking order. The interim stay order granted by this Tribunal on
30.06.2010 on the transfer of the applicant shall continue till the decision on her representation taken by the respondent No.1, is
communicated