Human Rights and Social Welfare Forum v Union of India and State of Kerala

W.P.(C) No. 23514/2021 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY MONDAY, THE 8[TH] DAY OF NOVEMBER 2021 / 17TH KARTHIKA, 1943 ## WP(C) NO. 23514 OF 2021 ## PETITIONER/S: HUMAN RIGHTS AND SOCIAL WELFARE FORUM 359/IX, ERIYAD P. O., THRISSUR, KERALA 680 666 REPRESENTED THROUGH ITS CHAIRMAN DR. VIJEESH C. THILAK. AGED 37 YEARS, S/O THILAKAN, RESIDING AT CHENATTU VEEDU, ERIYADU VILLAGE, KODUNGALLUR TALUK, THRISSUR, PIN – 680 666. BY ADV RAYJITH MARK ## RESPONDENT/S: - 1 UNION OF INDIA REPRESENTED BY SECRETARY, MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT, SHASTRI BHAWAN, C WING, DR. RAJENDRA PRASAD ROAD, NEW DELHI, PIN – 110 011. 2 THE STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT DEPARTMENT OF SOCIAL WELFARE, SECRETARIAT THIRUVANANTHAPURAM, PIN – 695 001. BY ADV ASG OF INDIA R3 BY SRI.JAGADEESH LAKSHMAN, CGC, R2 BY SRI. K.P.HARISH, SR. GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 23514/2021 : 2 : ## **Dated this the 8[th] day of November, 2021.** ## **JUDGMENT** ## **S. MANIKUMAR,CJ.** The petitioner, a Forum registered under the Societies Registration Act, 1860 and stated to be formed with an object to _inter alia_ give legal awareness and also to help the poor, old and infirm people, has filed the instant writ petition with the following prayers: 1. To delete/declare the words “after the commencement of this Act' in subSection (1) of Section 23 of the Maintenance and Welfare of Parents & Senior Citizens Act, 2007 as arbitrary, irrational and not in square with Article 14 of the Constitution of India. 2. To issue a writ of certiorari or such other writ or appropriate nature to strike down the words 'after the commencement of this Act' in subSection (1) of Section 23 of the 'Maintenance and Welfare of Parents & Senior Citizens Act, 2007' and direct the 2[nd] respondent to give retrospective effect to the said provision. 2. Petitioner has contended that the legislative intention of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 ('Act, 2007' for short) is to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognized under the Constitution to effectively implement the legislative intentions in its letter and spirit to the benefit of all the senior citizens equally. W.P.(C) No. 23514/2021 : 3 : 3. According to the petitioner, the words “after the commencement of this Act” in Section 23(1) needs to be either suitably amended or struck down. 4. It is also stated that since the provisions of the section are qualified by the words 'after the commencement of this Act', the senior citizens are classified into two: (a) senior citizens who have transferred their property by way of gift or otherwise after the commencement of this Act (for brevity 'Class 1 senior citizens'); (b) senior citizens who have transferred their property by way of gift or otherwise before the commencement of this Act (for brevity 'class 2 senior citizens'). The words "after the commencement of this Act" in Section 23(1) is causing prejudice to Class 2 category of senior citizens without any just cause and the said division of senior citizens into two on the basis of date of execution of a document is unreasonable, irrational and arbitrary, is the primary contention. 5. It is also contended that despite undergoing similar harassment and continuing acts of neglect, irrespective of the recitals in the transfer deed(s), senior citizens in class 2 category are not getting equal protection under the Act, since they happened to have transferred their property before/prior to the commencement of the Act. Further, the Maintenance and Welfare of parents and Senior W.P.(C) No. 23514/2021 : 4 : Citizens Bill, 2OO7 was introduced in the Lok Sabha on 20.03.2007, _inter alia_ with an object to provide simple, inexpensive and speedy provisions to claim maintenance for parents and to 'cast an obligation on the persons who inherit the property of their aged relatives to maintain such aged relatives. According to the petitioner, the continuing acts of neglect or refusal were the malice which the legislature intended to stop and the classification of senior citizens on the basis of the date of transfer of the property has no nexus to the said object and therefore, qualifying the section with such words has no reasonableness and the same is unfair, unjust and causes hardship to a particular class of senior citizens. 6. It is further stated that the words "after the commencement of this Act”, in Section 23(1) has been widely misused and the same needs to be prevented. The words "after the commencement of this Act” in Section 23(1) causes an irrational and arbitrary differentia and a major impediment while interpreting and constructing the beneficial statute. The words 'after the commencement of this Act' in Section 23 (1) does not sub-serve the test of justice and reason. It is accepted law that justice and reason constitute the great general legislative intent in every piece of legislation and the legislative intention cannot be to produce an unreasonable result is the argument. W.P.(C) No. 23514/2021 : 5 : 7. It is also submitted that the said classification/categorization is in violation of fundamental rights guaranteed to the class 2 category of senior citizens or parent under Articles 14 and 2l of the Constitution of India and also goes against the legislative intention of providing more effective provisions for the maintenance and welfare. It is also contended, qualifying Section 23(1) with the words 'after the commencement of this Act' is not only causing prejudice and hardship to class 2 category of senior citizens, but the wrong doers (transferee/beneficiaries) are misusing it as a shield to defend their case. 8. It is further submitted that the Honourable High Court of Punjab & Haryana in _**Paramjit Kumar Saroya vs. Union of India**_ [AIR 20l4 P&H 121) had requested "... the Central Government to have a relook into the provisions of the said Act...,. and thereafter, the Central Government had introduced 'the Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2019, to further amend 2OO7 Act. In Section 23, by way of the Bill, for the words 'senior citizen,' the word 'parent or senior citizen' has been substituted. The issue relating to the words 'commencement of this Act' in the Section was neither considered in the said judgment nor in the Bill. 9. According to the petitioner, balance of convenience of allowing W.P.(C) No. 23514/2021 : 6 : the petition will be in favour of the best interests and welfare of the senior citizens of class 2 category, who are otherwise denied equal protection under the Act and no prejudice will be caused to any _bona fide_ transferee/beneficiary, who is actually taking care of the senior citizens. The statute itself under Section 23(2), protects the _bona fide_ transferees by expressly using the words "but not against the transferee for consideration and without notice of right”. 10. We have heard, Sri. Rayjith Mark, learned counsel for the petitioner, Sri. K.P. Harish, learned Senior Government Pleader for respondent No.2 and Sri. Jagadeesh Lakshmanan, learned Central Government Counsel appearing for the Union of India, and perused the pleadings and materials on record. 11. The paramount contention advanced by the learned counsel for the petitioner is that the legislative intention of the Act, 2007 is to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognised under the Constitution and therefore, according to the learned counsel for the petitioner the words “after the commencement of this Act” contained under Section 23(1) of the Act, 2007 either needs to be suitably amended or struck down. It was also pointed out by the learned counsel for the petitioner that by making such a qualifying provision, W.P.(C) No. 23514/2021 : 7 : the senior citizens are divided into two categories ie., the senior citizens who have transferred their property by way of gift or otherwise after the commencement of the Act and the senior citizens who have transferred their property by way of gift or otherwise before the commencement of the Act. 12. The sum and substance of the contention advanced is that the words “after the commencement of this Act” in Section 23(1) is causing serious prejudice to the second category of senior citizens i.e., those who have transferred the properties before the commencement of the Act without any just cause and therefore, the division of senior citizens into two on the basis of the date of execution of the document is unreasonable, irrational and arbitrary. It is also contended that the words so employed in Section 23(1) of Act, 2007 does not sub-serve the test of justice and reason and therefore, they are to be struck down in order to translate the true intention of Act, 2007. 13. Mr. Jagadeesh Lakshmanan, learned Central Government Counsel, and Mr. K.P.Harish, the learned Senior Government Pleader for the State, fully supported the provisions contained under Section 23(1) basically contending that the Parliament was thoughtful enough to fix the cut off date by employing the usage “after the commencement of the Act” knowing fully well that if that is not done, W.P.(C) No. 23514/2021 : 8 : it would create umpteen number of adverse situations leading to various family disputes. 14. We have evaluated the rival submissions made across the Bar. In our considered opinion, Act, 2007 is brought into force in order to ensure that maintenance and welfare of parents and senior Citizens are protected by providing sufficient safeguards through legislation. It is patent and clear that a senior citizen, including a parent who is unable to maintain himself from his own earnings or out of the property owned by him, shall be entitled to make an application under Section 5 of the Act, 2007 before the statutory authority, who has to consider the said application and make appropriate orders in contemplation of the provisions of the Act, 2007. 15. It is to protect the best interests of the Senior Citizens that Maintenance Tribunals are constituted by the State Government in accordance with the stipulations contained under Section 7 of Act 2007, which is vested with ample powers to order maintenance, if the children or relatives, as the case may be, neglect or refuse to maintain a senior citizen being unable to maintain himself and to order such children or relatives to make a monthly allowance at such monthly rate for the maintenance of such senior citizens, as the Tribunal may deem fit and to pay the same to such senior citizen as the Tribunal may, W.P.(C) No. 23514/2021 : 9 : from time to time, direct. 16. The Tribunal is also vested with powers to grant maintenance allowance as may be prescribed by the State Government, which shall not exceed Rs.10,000/- per month. However, it is also vested with powers to make alteration in allowance as per Section 10 of the Act. Section 11 empowers the Tribunal to enforce its order of maintenance, which has the same force and effect as an order passed under Chapter IX of the Code of Criminal Procedure, 1973 and shall be executed in the manner prescribed for the execution of such order by that Code. 17. Chapter IX of Cr.P.C deals with order for maintenance of wives, children and parents and the competent Magistrate is vested with powers to order maintenance and take steps for enforcement of the order through the Code of Criminal Procedure. That apart, Section 39 of the Transfer of Property Act, 1882, which deals with the transfer where third person is entitled to maintenance, stipulates that where a third person has a right to receive maintenance, or a provision for advancement or marriage, from the profits of immovable property, and such property is transferred, the right may be enforced against the transferee, if he has notice thereof or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the W.P.(C) No. 23514/2021 : 10 : right, nor against such property in his hands. 18. As per Section 23 of Act, 2007, a senior citizen or a parent is entitled to approach the Tribunal seeking maintenance from the children or relatives in accordance with the parameters provided under the Act, 2007. Section 23 of Act, 2007 is a stand alone provision by which the Tribunal is vested with powers to declare any transfer made by way of gift or otherwise on the basis of the undertaking made in the deed that the transferor's basic amenities and basic physical needs would be taken care of and the transferee fails to comply with the undertakings contained in the deed. 19. It is true, the provisions of Section 23(1) and other provisions are confined to a senior citizen or parent, who has executed a deed of such nature, after the commencement of the Act. On a deeper analysis of the said provision, what we could gather is that such a rider is provided under Section 23(1) to ensure that the deeds executed prior to the introduction of the Act are protected to avoid unpleasant situations in the family, and also bearing in mind that due to the passage of time, innumerable transfers might have taken place and various other commitments would have been made by the transferees. Therefore, there is a clear nexus and object sought to be achieved by inserting the rider in question in Section 23(1) of Act, W.P.(C) No. 23514/2021 : 11 : 2007. 20. As we have pointed out above, the objective of Act, 2007 is to protect the interest and welfare of the senior citizens during the heydays of their life. This is quite reflected in Section 23(1) of Act, 2007, because it clearly says that the Tribunal is vested with powers only to declare the deed void, only if the transferee has refused or fails to provide amenities and physical needs to the transferor or such a deed was made by fraud or coercion or undue influence. This question with respect to the nature of Section 23(1) was considered by a Full Bench of this Court in _**Subhashini v. District Collector**_ [2020 (5) KLT 533 (FB)]. Paragraphs 51 and 52 are relevant to the context, which read thus: “51. Very pertinent is the fact that S.23(1) is prospective and applies only to agreements executed after the enactment came into force. S.23 applies only to transfers after the commencement of the Act. This further fortifies our interpretation that the provision insists on there being an express condition, written as part of the recitals, in the deed. If it were otherwise and the circumstances which led to the execution or a reservation clause could be relied on to infer or imply such a condition having regulated the execution, it would have been made applicable to deeds of all times, executed by senior citizens of a like nature. The measures of publicity as spoken of in S.21, under Chapter 5 is also intended at informing every senior citizen about the W.P.(C) No. 23514/2021 ## : 12 : speedy remedy provided for maintenance as also revocation of a gratuitous transfer and to alert them of the condition to be specified; which has to be a part of the recitals of the document. 52. We conclude by answering the reference, that the condition as required under S.23(1) for provision of basic amenities and basic physical needs to a senior citizen has to be expressly stated in the document of transfer, which transfer can only be one by way of gift or which partakes the character of gift or a similar gratuitous transfer. It is the jurisdictional fact, which the Tribunal will have to look into before invoking S.23(1) and proceeding on a summary enquiry. We answer the reference agreeing with the decision in W.A.No.2012 of 2012 dated 28.11.2012 (Malukutty Ponnarassery v. P.Rajan Ponnarassery). We find Shabeen Martin v. Muriel (2017 (1) KLT SN 2 (C.No. 2) = 2016 (5) KHC 603) and Sundari v. Revenue Divisional Officer (2018 (3) KLT 1082 = 2018 KHC 4655) to be wrongly decided. We approve Radhamani v. State of Kerala (2016 (1) KLT 185 = 2016 (1) KHC 9) which had a recital in the document akin to that required under S.23(1). 21. Giving due consideration to the above, we are of the view that the petitioner is not right in saying that the words 'after the commencement of this Act' incorporated in Section 23(1) is illegal or arbitrary, justifying to be struck down, or modified so as to eliminate the effect of the rider in question, and therefore the said contention cannot be sustained under law. We are of the clear view that the rider in question is made in Section 23 (1) of Act, 2007 with the laudable W.P.(C) No. 23514/2021 : 13 : object as discussed above, and therefore _intra vires_ the provisions of the Constitution as we could not locate any arbitrariness or illegality in the provision. To put it otherwise, the petitioner has not made out any case for interference exercising the writ jurisdiction conferred under Article 226 of the Constitution of India. Upshot of the discussion is that the writ petition fails and accordingly it is dismissed. sd/- **S. MANIKUMAR, CHIEF JUSTICE.** sd/- **SHAJI P. CHALY, JUDGE.** _Rv_