Sreelatha Nair & Greeshma Nair v. Reveendran Nair & Gopakumar Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS MONDAY ,THE 29TH DAY OF OCTOBER 2018 / 7TH KARTHIKA, 1940** **WP(C).No. 23511 of 2012** ## **PETITIONER/S:** |**1**|**SREELATHA NAIR,**| |---|---| ||**AGED 50 YEARS,**| ||**DAUGHTER OF LEKSHMIKUTTY AMMA,**| ||**PANCHAJANYAM, TC.10/134 (1), HOUSE NO.112C,**| ||**SWATHY NAGAR, PIPPINMOODU, PEROORKADA P.O.,**| ||**THIRUVANANTHAPURAM AND NOW RESIDING AT**| ||**KOYIKKALETHU HOUSE, PALLIPAD P.O., HARIPAD.**| |**2**|**GREESHMA NAIR,**| ||**AGED 23 YEARS,**| ||**DAUGHTER OF SREELATHA NAIR,**| ||**PANCHAJANYAM, TC.10/134 (1), HOUSE NO.112C,**| ||**SWATHY NAGAR, PIPPINMOODU, PEROORKADA P.O.,**| ||**THIRUVANANTHAPURAM AND NOW RESIDING AT**| ||**KOYIKKALETHU HOUSE, PALLIPAD P.O., HARIPAD.**| ||**BY ADVS.**| ||**SRI.V.SURESH**| ||**SMT.M.JAYASREE**| ||**SMT.N.P.ASHA**| ||**SRI.G.SUDHEER**| ## **RESPONDENT/S:** |**1**|**REVEENDRAN NAIR,**| |---|---| ||**AGED 60 YEARS,**| ||**S/O RAMAN PILLAI, PANCHAJANYAM,**| ||**TC.10/134 (1), HOUSE NO.112C, SWATHY NAGAR,**| ||**PIPPINMOODU, PEROORKADA P.O.,**| ||**THIRUVANANTHAPURAM.**| ## **W.P.(C)No.23511 of 2012** **..2..** **2 GOPAKUMAR NAIR, AGED 29 YEARS, S/O RAVEENDRAN NAIR, RESIDING AT KOYIKKALETHU HOUSE, PALLIPAD P.O., HARIPAD, PIN 690001.** ## **OTHER PRESENT:** ## **SRI.JESTIN MATHEW, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C)No.23511 of 2012** **..3..** ## **ALEXANDER THOMAS, J. -------------------------** **W.P.(C)No.23511 of 2012 --------------------------Dated this the 29[th] day of October, 2018** ## **JUDGMENT** **The prayers in this writ petition (civil) are as follows:-** _**“A. Calling for the records relating to Ext.P14 order and setting it aside or quashing it;**_ _**B. Allowing such other relief as this Hon'ble court may deem fit and expedient to grant in the nature and circumstances of the case.”**_ **2. Heard Sri.G.Sudheer (Karakonam), learned** **counsel appearing for the petitioners and Sri.Jestin Mathew, learned Government Pleader appearing on behalf of the Tribunal. Notice to respondent No.2 was returned with the endorsement** _**“addressee out of India”**_ **and accordingly this Court had passed order dated 25.6.2013 dispensing notice to respondent No.2, as he has no conflict of interest with the petitioners. Though** **W.P.(C)No.23511 of 2012** **==> picture [34 x 8] intentionally omitted <==** **respondent No.1 has been duly served, there is no appearance for that party.** **3. The first petitioner is the mother of the second petitioner and the second respondent. The first respondent is the husband of the first petitioner and the father of the second petitioner and the second respondent. The first petitioner had filed Ext.P2 O.P. before the Family Court, Thiruvananthapuram seeking divorce as against respondent No.1 on the ground of cruelty and she had also filed Ext.P3 proceedings under Section 12 of the Protection of Women from Domestic Violence Act, 2005 and Ext.P5 interim order dated 14.6.2011 was issued by the Magistrate Court under Section 23 of the said Act.** **4. Thereafter the first respondent had filed Ext.P7 application before the Maintenance Tribunal constituted as per the provisions of the** **W.P.(C)No.23511 of 2012** **==> picture [34 x 8] intentionally omitted <==** **Maintenance and Welfare of Parents and Senior Citizens Act, 2007 seeking maintenance from the second petitioner and the second respondent. The petitioners would contend that without taking evidence or considering the documents submitted by the petitioners and without granting permission to the Advocates for the petitioners who represent them before the Tribunal, the Tribunal has passed the impugned Ext.P14 order dated 06.08.2012. It can be seen from a mere reading of the impugned Ext.P14 order that the Tribunal had sent the entire case file relating to the petition to one Sri.M.B.Sasidharan Nair, Advocate, who had interacted with the first respondent and had submitted a report to the Tribunal to the effect that the first petitioner is entitled for maintenance and on this basis the impugned Ext.P14 order was passed. The petitioner would contend that Exts.P9 to P13 produced by** **W.P.(C)No.23511 of 2012** **==> picture [34 x 9] intentionally omitted <==** **them would conclusively establish that the first petitioner is not a senior citizen as pointed in the Act and that he has ample income to maintain himself and that he has no necessity to grant any maintenance. However the Tribunal has passed the impugned order as per Ext.P14 to the effect that the petitioners herein shall not cause any disturbance to the residence of the first respondent in the house owned by the second petitioner and that the second respondent has been directed to pay an amount of Rs.3,000/- per month to the first respondent and the second petitioner has been directed to pay an amount of Rs.5,000/- per month to the first respondent. In the light of these aspects that the petitioner has filed this instant writ petition with the afore-mentioned prayers.** **5. The operative portion of the impugned Ext.P14 order dated 06.08.2012 reads as follows:-** **W.P.(C)No.23511 of 2012** **..7..** **“** അപ�കകന�യ ശ� _**.**_ രവ�നൻ ന�യർ _**,**_ ന�ലവ�ൽ ത�മസ�ച വരന വ�ട�ൽ തടർന� ത�മസ�കനത�നന എത�ർ കക�കൾ ÏÞæÄÞøá ÕßÇJßÜᢠĿTæM¿áJáÕÞX ÉÞ¿ßÜï. 2_Þ¢ ®ÄßVµfßÏÞÏ dÖà.ç·ÞɵáÎÞV ÈÞÏV dÉÄßÎÞØ¢ 3000/_ øâÉÏᢠ3_Þ¢ ®ÄßVµfßÏÞÏ dÖàÎÄß. d·à×íÎ ÈÞÏV dÉÄßÎÞØ¢ 5000/_ øâÉÏᢠ¥çÉfµÈí ¼àÕÈÞ¢ÖÎÞÏß ÈWçµIÄÞÃí. ¨ ©JøÕßÈí 2012, ¼âèÜ ÎÞØ¢ ÎáÄW dÉÞÌÜcÎáIÞÏßøßAáKÄÞÃí. ²Mí/ ùÕÈcá ÁßÕß×ÃW ¦ËàØV” ## **6. Sri.G.Sudheer (Karakonam), learned** **counsel appearing for the petitioners would challenge the legality and correctness of Ext.P14 order on various grounds. The first contention raised by him is that the first respondent (who is the applicant in Ext.P7 petition for maintenance), was not a senior citizen who had completed the age of 60 years either at the time of the submission of Ext.P7 petition dated 18.6.2011 or at the time of issuance of the impugned Ext.P14 order dated 6.8.2012. In that regard he would submit that Ext.P1 is a registered partition deed executed on 15.1.1980, in which the first respondent herein was also a** **W.P.(C)No.23511 of 2012** **==> picture [34 x 9] intentionally omitted <==** **party and in which it is clearly shown that the first respondent herein was aged 27 years as on that day, and if that be so he would have completed the age of 60 years only in the year 2013. Section 4 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 mandates that only senior citizen including a parent who is unable to maintain himself from his earnings or the property owned by him shall be entitled to file an application for grant of maintenance under Section 5. In other words, a person like the first respondent can legally maintain an application in the nature of Ext.P7 for grant of maintenance under Section 5 only if he has completed the age of 60 years at the time of presentation of the petition. Section 2(h) of the Act defines** _**“senior citizen is a person who has attained the age of 60 years or above.”**_ **On this basis it is contended by the learned counsel for** **W.P.(C)No.23511 of 2012** **==> picture [34 x 9] intentionally omitted <==** **the petitioners that the first respondent was not a senior citizen either at the time of Ext.P7 application dated 18.6.2011 or even at the time of issuance of the impugned Ext.P14 order dated 06.08.2012.** **7. The second contention raised by the petitioners is that vital documents produced by them like Exts.P9 to P13 would clearly show that the first respondent has ample income and resources to maintain himself and that he could not have filed an application in that regard like Ext.P7 in view of the specific conditions in Section 4(1) that only a senior citizen who is unable to maintain himself from his own earning or out of the property owned by him, could maintain an application under Section 5 for the grant of maintenance. In that regard the petitioners would point out the relevance of details of the documents as per Exts.P9 to P13.** **W.P.(C)No.23511 of 2012** **==> picture [40 x 9] intentionally omitted <==** **It is stated that Ext.P9 is a partition deed dated 15.1.1980 in which the first respondent was a party which would show that he owns immovable properties yielding substantial income to him. Further that Ext.P10 is a copy of the application made by respondent No.1 in his own handwriting seeking transfer of registry of the property allotted to him under Ext.P9 partition deed and that Exts.P11, P12 and P13 are the tax receipts issued to the first respondent showing that he is possessed a vast area of property which yielding immense income. Further that the first respondent has also received pension and also has other house properties yielding him substantial income.** **None of these materials produced by the petitioners were not even taken on record by the Tribunal for consideration and that such nonconsideration of highly relevant materials is illegal and improper.** **W.P.(C)No.23511 of 2012** **..11..** **8. The third contention of the petitioners is that they had approached the Tribunal along with an Advocate and had requested the Tribunal to permit the Advocate to represent them which was summarily denied by the Tribunal purportedly in view of Section 17 of the Act which mentions that notwithstanding anything contained in any other law, no parties to a proceeding before a Tribunal or an appellate Tribunal shall be represented by a legal practitioner. In this regard, the learned counsel for the petitioners would place reliance on the judgment of this case in Latha Sumam v. District Collector reported in [2013 (2) KLT 233] in which it was held that in view of the coming into force of Section 30 of the Advocates Act with effect from 15.6.2011, parties as of right can seek their representations before the Tribunal by an Advocate of their choice and that it will have** **W.P.(C)No.23511 of 2012** **..12..** **override effect of Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. Hence it is contended that the refusal on the part of the Tribunal to grant permission to the petitioners to be represented through the Advocate of their choice is illegal and improper.** **9. Lastly it is contended by the petitioners that a very strange procedure is adopted by the Tribunal whereby the Tribunal had sent the entire case file to one Sri.M.B.Sasidharan Nair (Advocate) who had interacted with the first respondent and had submitted a report before the Tribunal to the effect that the first respondent is entitled for maintenance and that even copy of the said report was not furnished to the petitioners and it is on this basis that the Tribunal has passed the impugned Ext.P4 order.** **10. After hearing the petitioner and the learned Government Pleader, this Court is of the** **W.P.(C)No.23511 of 2012** **==> picture [40 x 9] intentionally omitted <==** **considered view that the petitioners' contentions are tenable. The Tribunal has not considered the vital issue as to whether the first respondent was a senior citizen who had completed the age of 60 years as on the date of presentation of Ext.P7 application or at least at the time of issuance of the impugned Ext.P14 order. Prima facie it appears that even going by the version of first respondent as shown in Ext.P1 registered partnership deed, he was aged 27 as on 15.1.1980 (date of execution of Ext.P1 registered partnership deed) and if that be so, he would have completed the age of 60 years only in the year 2013 also. Section 4 clearly mandates that a senior citizen parent can maintain an application under Section 5 only if he has completed the age of 60 years or above and subject to other conditions in that provision. Therefore, the non-consideration of the above** **W.P.(C)No.23511 of 2012** **==> picture [40 x 9] intentionally omitted <==** **said rival contentions of the petitioners based on Ext.P1 deed is improper and unreasonable.** **11. Further vital documents as per Exts.P7 to P13 have not been taken by the Tribunal on record** **and the Tribunal has failed to consider the specific contention of the petitioners that the first respondent cannot be said to be a person who is unable to maintain income from his own earning or out of his property. Further the refusal on the part of the Tribunal to permit an Advocate of their choice to the petitioners to defend them before the Tribunal was highly illegal and improper more so particularly in the light of the dictum laid down by this Court in Latha Sumam v. District Collector reported in [2013 (2) KLT 233]. Lastly the procedure adopted by the Tribunal in entrusting the matter for the examination of an Advocate appointed by the Tribunal and rendering of the impugned Ext.P14** **W.P.(C)No.23511 of 2012** **==> picture [40 x 9] intentionally omitted <==** **order on the basis of his report and the nonfurnishing of that report to the petitioners are all highly strange and illegal procedures adopted by the Tribunal. Further it is stated that the residential house in question is owned by the second petitioner and lastly it is urged by the petitioners that the house in question in which the Tribunal had directed that the first respondent has the right to be accommodated as of right, is belonging exclusively to the second petitioner. These aspects have not been considered by the Tribunal.** **12. For all these reasons, the impugned Ext.P14 order is liable to be interdicted. Accordingly, Ext.P14 order dated 06.08.2012 will stand set aside and the matter will stand remitted to the Tribunal for consideration afresh. The Tribunal should permit an Advocate of the choice of the petitioners to defend them. The** **W.P.(C)No.23511 of 2012** **==> picture [40 x 9] intentionally omitted <==** **Tribunal cannot abdicate its responsibility and depend upon the so-called expert report of outsiders like the Advocate appointed by the Tribunal. So the Tribunal should exercise its own discretion after granting reasonable opportunity of being heard to all the parties concerned. The Tribunal should specifically consider the contention of the petitioners that the first respondent is having sufficient income and property to take care of himself and that he is not eligible to seek to grant maintenance. The specific contention of the petitioners that the first respondent was not a senior citizen at the time of submission of Ext.P7 application should also be duly considered and the first respondent should produce conclusive materials before the Tribunal to show that he was aged 60 years or more at the time of submission of Ext.P7 application dated 18.6.2011. The Tribunal should** **W.P.(C)No.23511 of 2012** **==> picture [40 x 9] intentionally omitted <==** **ensure that a proper and effective enquiry is conducted by the Village Officer concerned about the income of the petitioners and respondents 1 and 2. Copies of such reports should also be made available to the parties. After granting a reasonable opportunity of being heard to the parties concerned the Tribunal will pass orders afresh, without much delay preferably within a period of three months from the date of production of a certified copy of this judgment.** **With these observations and directions this writ petition (civil) will stand finally disposed of.** ## **Sd/-** **ALEXANDER THOMAS, JUDGE** ## **skj** **W.P.(C)No.23511 of 2012** **..18..** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.489/10 DATED 15.02.2010 IN FAVOUR OF THE 2ND PETITIONER** **EXHIBIT P2 TRUE COPY OF O.P.NO. 1044/2011 FILED BY THE 1[st] PETITIONER BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM DATED 06.07.2011** **EXHIBIT P3 TRUE COPY OF M.C.NO.103/2011 DATED 19.05.2011 FILED BY THE 1ST PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II THIRUVANANTHAPURAM EXHIBIT P4 TRUE COPY OF THE C.M.P.NO.1222/2011 IN M.C. NO.103/2011 FILED BY THE 1ST PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, THIRUVANANTHAPURAM DATED 19.05.2011 EXHIBIT P5 TRUE COPY OF THE ORDER DATED 14.06.2011 IN C.M.P. NO. 1222/2011 IN M.C. NO. 103/2011 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURTII, THIRUVNANTHAPURAM EXHIBIT P6 TRUE COPY OF THE STATEMENT OBJECTION FILED BY THE RESPONDENT IN M.C.NO. 103/2011 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, THIRUVANANTHAPURAM DATED 14.06.2011 EXHIBIT P7 TRUE COPY OF PETITION NO. J13750/2011 DATED 18.06.2011 FILED BY THE RESPONDENT BEFORE THE MAINTENANCE TRIBUNAL** ## **W.P.(C)No.23511 of 2012** ## **..19..** ## **EXHIBIT P8** **TRUE COPY OF MEDICAL RECORDS OF C.T.BRAIN (PLAIN SCAN) ISSUED BY THE KERALA INSTITUTE OF MEDICAL SCIENCES DATED 15.12.2008 THIRUVANANTHAPURAM** - **EXHIBIT P8 A TRUE COPY OF MEDICAL RECORDS OF ECHO DOPPLER REPORT ISSUED BY KERALA INSTITUTE OF MEDICAL SCIENCES DATED 15.12.2008, THIRUVANANTHAPURAM** - **EXHIBIT P8 B TRUE COPY OF MEDICAL RECORDS OF DEPARTMENT OF LABORATORY MEDICINE ISSUED BY KERALA INSTITUTE OF MEDICAL SCIENCES DATED 10.02.2009 THIRUVANANTHAPURAM** - **EXHIBIT P9 TRUE COPY OF PARTITION DEED NO.107/80 DATED 15.01.1980 SHOWING THAT THE FIRST RESPONDENT OWNS PRIME IMMOVABLE PROPERTIES YIELDING SUBSTANTIAL INCOME** - **EXHIBIT P10 TRUE COPY OF THE REQUEST SENT BY THE RESPONDENT BEFORE THE TAHSILDAR, CHENGANNUR TALUK DATED 10.06.1993** - **EXHIBIT P11 TRUE COPY OF TAX RECEIPT DATED 11.06.1997 ISSUED BY THE VILLAGE OFFICER, PULICKOOR VILLAGE** - **EXHIBIT P12 TRUE COPY OF TAX RECEIPT DATED 27.04.1995 ISSUED BY THE VILLAGE OFFICER, PULIKKOOR VILLAGE** - **EXHIBIT P13 TRUE COPY OF TAX RECEIPT DATED 26.06.1993 ISSUED BY THE VILLAGE OFFICER, PULIKKOOR VILLAGE** - **EXHIBIT P14 TRUE COPY OF ORDER J-13750/2011 DATED 06.08.2012 ISSUED BY THE REVENUE DIVISIONAL OFFICER, THIRUVANANTHAPURAM** **W.P.(C)No.23511 of 2012** **..20..** - **EXHIBIT P15** **TRUE COPY OF OBJECTION FILED BY THE 1ST RESPONDENT IN M.C.NO.103/2011 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, THIRUVANANTHAPURAM.** **EXHIBIT P15 A** - **TRUE COPY OF THE DEPOSITION OF THE FIRST RESPONDENT IN M.C.NO.103/2011 GIVEN BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, THIRUVANANTHAPURAM DATED 22.09.2012** - **EXHIBIT P16 TRUE COPY OF REPORT OF PSYCHOLOGIST SUBMITTED IN M.C.NO.103/2011 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, THIRUVANANTHAPURAM** - **EXHIBIT P17 TRUE COPY OF ORDER IN M.C.NO.103/2011 DATED 30.11.2012 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, THIRUVANANTHAPURAM** - **EXHIBIT P18 TRUE COPY OF LETTER SENT BY THE 1ST RESPONDENT TO THE KUWAIT AIRWAYS MANAGER** - **EXHIBIT P19 PHOTOCOPY NOTICE SENT BY THE 2ND RESPONDENT TO THE PETITIONER DATED 29.06.2013** - **EXHIBIT P20 TRUE COPY OF JUDGMENT IN CRL.APPEAL NO.613/2012 DATED 31.7.2014 OF THE ADDITIONAL SESSIONS JUDGE-I, THIRUVANANTHAPURAM** **EXHIBIT P21 TRUE COPY OF RENT DEED AND RECEIPTS OF PAYMENT OF RENT EXECUTED BY THE PETITIONERS**