Siju K Bhanu v. State of Kerala and Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 8[TH]DAY OF FEBRUARY 2023 / 19TH MAGHA,1944 WP(C) NO. 39535 OF 2022 ``` ``` PETITIONER: ``` ``` SIJU K BHANU AGED 46 YEARS S/O K. BHANU, HOUSE NO. 39 A, ERSWARA VILASOM ROAD, KOCHAR ROAD, JAGATHY, THIRUVANANTHAPURAM, PIN – 695014. BY ADVS. UNNIRAJA T.I. S.G.SREEKANTH(K/755/2011) S.BADUSHA(K/673/2010) SREEJITH S.(K/002264/2019) JOEL ANTONY GEORGE(K/742/2020) FAHEEM AHSAN.S(K/001986/2019) NANDALAL H.(K/000226/2021) ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001. 2MAINTENANCE TRIBUNAL REVENUE DIVISIONAL OFFICER AND SUB DIVISIONAL MAGISTRATE), OFFICE OF THE REVENUE DIVISIONAL OFFICER, CIVIL STATION, KUDAPPANAKUNNU, THIRUVANANTHAPURAM PIN – 695043. 3KAMEELA G.S.K BHAVAN, MAJAVILAKAM, NEYYATTINKARA, THIRUVANANTHAPURAM, PIN – 695503. 4KERALA MENTAL HEALTH AUTHORITY REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, RED CROSS ROAD, RISHIMANGALAM ROAD, VANCHIYOOR, THIRUVANANTHAPURAM, PIN – 695035. ``` 2 W.P.(C) No.39535 of 2022 ``` BY ADVS. PIRAPPANCODE V.S. SUDHEER AKASH S.(K/980/2008) GIRISH KUMAR M S(K/001593/2018) V.S.VARALEKSHMI(K/000910/2019) DEVIKA JAYARAJ(K/003117/2022) ``` ``` SMT.MABLE C KURIAN, SR GP ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 08.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C) No.39535 of 2022 ## **JUDGMENT** The petitioner herein is the son of the 3rd respondent, and she is aged about 79 years. The father of the petitioner, Sri. K. Bhanu is aged 87 years. A complaint was lodged by the 3rd respondent before the Maintenance Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as ‘Act 2007’ for the sake of brevity) complaining that the petitioner herein has forcefully taken her husband from the family house and that he is being kept under the custody of the petitioner. 2. In the complaint, the mother stated that she and her husband are retired school teachers, and they have been residing together for over a decade in the family house after settling all their properties in favor of their three children. As the parents are getting pensions, they do not require the support of their children. She has stated that they have been sustaining themselves with the help of their daughter and the employees they have employed. She also said that it is the wish and desire of the spouses to spend the remainder of their lives in each other’s company. 3. The Maintenance Tribunal issued notice to the parties concerned. The petitioner herein appeared and stated that his father is suffering from dementia, and he has a habit of going out of his house without being 4 W.P.(C) No.39535 of 2022 accompanied by any person. It is with a view to protecting his father that he has taken his father to his residential home at Trivandrum. He is providing proper and prompt treatment to his father. If the custody of his sick father is handed over to the mother, he would be neglected. 4. The Tribunal, after considering the facts and circumstances and in purported exercise of the powers conferred under the provisions of the Act, 2007 and the Rules framed thereunder, ordered the petitioner to shift the father from his house to the family home within a period of one week, and directions were also issued to the children to provide the service of a full-time caretaker. Directions were also issued to the SHO, Marayamuttom, to implement the order. 5. The learned counsel appearing for the petitioner submitted that the Tribunal has exceeded its authority and traveled beyond the statutory provisions while issuing the order. The learned counsel also relies on Exts.P1 and P2 medical certificates to substantiate his contention that the health condition of his father is very poor. 6. The counsel appearing for the respondent would justify the order passed by the Tribunal, and it is urged that the Tribunal has to ensure that the parents and senior citizens spend their life with respect and dignity. It is 5 W.P.(C) No.39535 of 2022 submitted that the relevant aspects were considered by the Tribunal while passing the order impugned. 7. I have heard the submissions. 8. Section 2(b) of the Act 2007 defines 'maintenance' to include provision for food, clothing, residence, and medical attendance and treatment. Section 4 provides that a senior citizen, including a 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 for maintenance under Section 5 against one or more of his children not being a minor. Section 9 provides that if the children or relatives, as the case may be, neglect or refuse to maintain a senior citizen being unable to maintain himself, the Tribunal may, on being satisfied of such neglect or refusal, order such children or relative to make a monthly allowance at such monthly rate for the maintenance of such senior citizens subject to the maximum allowance of Rs.10,000/- per month. A senior citizen, including a parent who is unable to maintain himself from his own earning or out of the property owned by him alone, is entitled to maintain an application under Section 5. The object of the enactment is to provide financial support and to prevent aged parents and senior citizens from being exploited and becoming destitute. 6 W.P.(C) No.39535 of 2022 9. In the case on hand, while disposing of the application for maintenance, the Maintenance Tribunal has ordered that the petitioner shall, within a week, take his father to the family house and permit him to live with the 3rd respondent mother. Directions were also issued to the children to appoint a full-time caretaker. A learned Single Judge of this Court in **C.K. Vasu v. Circle Inspector of Police and Others** [2012 SCC OnLine Ker 10658] had occasion to hold that the Tribunal constituted under the Act can only pass an order for maintenance of a senior citizen or the parent unable to maintain himself, if the Tribunal is satisfied that there was neglect or refusal on the part of the children or relatives to maintain him. In the said case, it was held that the Tribunal did not have the authority in terms of the provisions of the Act to order eviction. In the instant case, I am unable to sustain the order of the Tribunal directing the petitioner to transfer the custody of the aged father to the mother. However, that part of the order wherein direction has been issued to the children to appoint a caretaker for the aged parents does not warrant any interference as 'maintenance' as defined under the Act would include provision for food, clothing, residence, and medical attendance and treatment. That does not mean the Maintenance Tribunal is powerless when faced with such a situation. As held by this Court in **Thoppil Anto v. Glancin T.A. and** 7 W.P.(C) No.39535 of 2022 **Ors.** [2020 (1) KHC 757], the District Magistrate, in the exercise of his powers under Rule 19 of the Maintenance and Welfare of Senior Citizens Rules, 2009, can ensure that the life and property of senior citizens within his jurisdiction are protected, and they are able to live with security and dignity. The ideal course was for the Maintenance Tribunal to refer the matter to the District Magistrate so that orders under Rule 19 could be passed. In view of the discussion above, I am of the considered opinion that while partly allowing the writ petition, necessary directions can be issued. 10. Resultantly, this writ petition is disposed of by issuing the following directions. In that view of the matter, the writ petition is ordered, and the following directions are issued:- (i) Ext.P3 order issued by the Maintenance Tribunal is quashed to the extent that directions were issued to the petitioner to shift Sri. Bhanu, the father of the petitioner, from the custody of the petitioner to the family house is set aside. However, that part of the direction ordering the children to appoint a caretaker for the father is sustained. 8 W.P.(C) No.39535 of 2022 (ii) The Maintenance Tribunal shall forward the petition filed by the 3rd respondent to the District Magistrate, who shall consider the contentions of the 3rd respondent as well as the petitioner and pass fresh orders in terms of Rule 19(1) of the Maintenance and Welfare of Parents and Senior Citizens Rules, 2009 and ensure that the 3rd respondent, as well as her husband, lead their life with dignity and respect. Such orders shall be passed within 4 weeks from the date of receipt of the copy of this judgment. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** Sru 9 W.P.(C) No.39535 of 2022 ## `APPENDIX OF WP(C) 39535/2022` ``` PETITIONER’S EXHIBITS ``` ``` Exhibit P1 ``` ``` THE TRUE COPY OF THE MEDICAL PRESCRIPTION ISSUED BY DR. S.R. CHANDRA, S.K. HOSPITAL, THIRUVANANTHAPURAM. ``` ``` Exhibit P2THE TRUE COPY OF THE CT SCAN REPORT DATED 29.08.2022 ISSUED BY S.K HOSPITAL, THIRUVANANTHAPURAM. ``` ``` Exhibit P3THE TRUE COPY OF THE ORDER BEARING NO. J1/9756/2022 DATED 19.11.2022 PASSED BY THE 2ND RESPONDENT. ``` ``` Exhibit P3(a)THE TRUE TRANSLATED COPY OF THE ORDER BEARING NO. J1/9756/2022 DATED 19.11.2022 ISSUED BY THE 2ND RESPONDENT. ``` ``` Exhibit P4THE TRUE COPY OF THE APPLICATION DATED 01.11.2022 FILED BY SIJU K. BHANU BEFORE THE MENTAL HEALTH BOARD, THIRUVANANTHAPURAM ALONG WITH TRANSLATION. ``` ``` Exhibit P5THE TRUE COPY OF THE LETTER DATED 11.11.2022 NO. A/460/2020/SMHA ISSUED BY THE KERALA STATE MENTAL HEALTH AUTHORITY ALONG WITH TRANSLATION. ``` ``` Exhibit P6THE TRUE COPY OF THE ORDER THE HON'BLE HIGH COURT OF KERALA IN O.P(CRL) NO. 487/2019 DATED 19.09.2022. ``` ``` Exhibit P7A TRUE COPY OF THE ORDER DATED 02.12.2022 IN WP (C ) NO. 38993 OF 2022. ``` ``` RESPONDENTS EXHIBITS : NIL ```