Victor T Thomas and Wilson T Thomas v. District Collector and Appellate Tribunal, Maintenance and Welfare of Parents and Senior Citizens Act, 2007, and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 2[ND] DAY OF FEBRUARY 2024 / 13TH MAGHA, 1945** **WP(C) NO. 16079 OF 2023** ## **PETITIONER:** - **1 VICTOR T THOMAS, AGED 61 YEARS S/O LATE THOMAS MATHEW DR.GEORGE MATHEW NAGAR HOUSING COLONY KOZENCHERY PO, PATHANAMTHITTA, PIN – 689641** - **2 WILSON T THOMAS, AGED 62 YEARS S/O LATE THOMAS MATHEW RESIDING AT MULAMOOTTIL THUNDIYATHU T.C. / 731 (S) MERA 103/1 KAPPIL ROAD LANE CHALAKUZHY ROAD MEDICAL COLLEGE PO THRIUVANANTHAPURAM, PIN – 695011** **BY ADVS. LIJU.V.STEPHEN INDU SUSAN JACOB** ## **RESPONDENTS:** - **1 DISTRICT COLLECTOR AND APPELLATE TRIBUNAL, (U/MAINTENANCE AND WELFARE OF SENIOR CITIZENS ACT, 2007) CIVIL STATION, PATHANAMTHITTA, PIN – 689645** - **2 MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS TRIBUNAL AND RDO, REVENUE DIVISIONAL OFFICE ADOOR, PIN - 691523** W.P.(C) No.16079/2023 : 2 : - **3 SOSAMMA THOMAS, W/O. LATE THOMAS MATHEW NOW RESIDING AT MERRY VILLA CANAN, NELLIKALA P.O MALLAPUZHASSERY VILLAGE, PATHANAMTHITTA DISTRICT, PIN - 689643 REPRESENTED BY HER POWER OF ATTORNEY HOLDER, ELIZABETH ROY, A GED 68 YEARS, D/O LATE THOMAS MATHEW, MERRY VILLAGE CANAN, NELLIKALA P.O MALLAPUZHASSERY VILLAGE, PATHANMTHITTA DISTRICT, PIN – 689643** - **4 ELIZABETH ROY, AGED 68 YEARS D/O. LATE THOMAS MATHEW MERRY VILLAGE CANAN, NELLIKALA P.O MALLAPUZHASSERY VILLAGE, PATHANAMTHITTA DISTRICT, PIN – 689643** - **5 SUSIL T THOMAS, AGED 68 YEARS S/O LATE THOMAS MATHEW, KUZHIVELIL HOUSE, PADIMON P O MALAPPALLY TALUK, PATHANAMTHITTA DISTRICT, PIN – 689587** - **6 ANIL T THOMAS, AGED 68 YEARS S/O LATE THOMAS MATHEW, 24 DAVIS AVE, RENDOLPH, NEW JERSY 07869-1085, USA** - **7 JESSY VIJU CHERIYAN, AGED 63 YEARS PUTHENPARAMBIL HOUSE, NEAR GOVT. HOSPITAL THIRUVALLA P.O., PIN – 689101** - **8 SUMINA REJI, D/O. LATE THOMAS MATHEW VALANPARAMBIL BABY FARMS, KANAKAPPALAM P.O., ERUMELI, KOTTAYAM DISTRICT, PIN – 689509** W.P.(C) No.16079/2023 : 3 : **BY ADVS. SRI.S. GOPINATHAN, SENIOR GOVERNMENT PLEADER SRI.JACOB P. ALEX SRI.THOMAS ABRAHAM SRI.K.SHAJ SRI.JOSEPH P.ALEX(K/1-C/2002) SRI.MANU SANKAR P.(K/000823/2018) SRI.AMAL AMIR ALI(K/000773/2019) SMT.BEENA N.KARTHA(K/671/1995) SRI.C.IJLAL(K/826/2013) SMT.POORNIMA RAJAN(K/818/2013) SRI.ARUN CHAND(K/000860/2016) SRI.BHARAT VIJAY P.(K/000976/2018) SRI.MAJID MUHAMMED K.(K/673/2020) SMT.MINU VITTORRIA PAULSON(K/739/2020) SMT.GOPIKA GOPAL(K/643/2023) SMT.ARCHANA SURESH(K/000899/2023) SMT.MEERA NAIR.I.P(K/002847/2023) SMT.MERCIAMMA MATHEW(K/709/2002) SRI.ASWIN.P.JOHN(K/324/2013) SRI.R.ANANTHAPADMANABAN(K/000058/2017) SRI.PAUL BABY(K/1390/2021) SMT.SWATHY A.P.(K/001801/2021)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.16079/2023 : 4 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.16079 of 2023 ````````````````````````````````````````````````````````````` _Dated this the 2[nd] day of February, 2024_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioners have approached this Court filing this writ petition seeking to set aside Ext.P14 order of the Maintenance Appellate Tribunal, Pathanamthitta and to direct the 1[st] respondent to consider EXt.P6 appeal in accordance with law. 2. The petitioners and respondents 4 to 8 are the children of late Thomas Mathew and the 3[rd] respondentSosamma Thomas. The 3[rd] respondent is 92 years old. The petitioners state that the 3[rd] respondent has been residing in W.P.(C) No.16079/2023 : 5 : the family house for the past 74 years. 3. According to the petitioners, their father executed a registered Will in the year 2002. Father died in the year 2010. The petitioners' father had reserved life interest over the properties including the family house, to the 3[rd] respondent. The petitioners allege that the 8[th] respondent, who is the petitioners' younger sister came and started to reside in the family house, in the year 2022. At the instance of respondents 4 and 8, the 3[rd] respondent filed a complaint against the petitioners under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The 3[rd] respondent sought maintenance from all her children and a direction for permitting her to stay peacefully in her family house. 4. The 2[nd] respondent-Tribunal allowed the petition and directed each children to look after the 3[rd] respondentmother on their respective turns, in the family house, as per Ext.P5 order dated 23.05.2022. As per the order, the eldest daughter, the 4[th] respondent, has to look after the 3[rd] respondent for the period June and July. The 4[th] respondent W.P.(C) No.16079/2023 : 6 : shifted the 3[rd] respondent from the family house to hospital and from there to the 4[th] respondent's matrimonial home. 5. The petitioners state that from the matrimonial home, the 4[th] respondent obtained an alleged Power Attorney of the 3[rd] respondent and filed an appeal against Ext.P5 order. In the appeal, the 3[rd] respondent stated that she needs maintenance from the petitioners and the 7[th] respondent alone. The appeal further sought a relief that the 3[rd] respondent wants to live in the matrimonial house of the 4[th] respondent-daughter. 6. The 4[th] respondent filed a petition before the 1[st] respondent-Appellate Tribunal seeking to re-examine the 3[rd] respondent. The 1[st] respondent without hearing the petitioners and without even serving any notice on them, allowed the petition and ordered re-examination of the 3[rd] respondent, as per Ext.P8 order. The petitioners challenged Ext.P8 filing OP(C) No.2193/2022. This Court set aside Ext.P8 order and directed the 1[st] respondent to dispose of the appeal considering the Advocate Commissioner's report W.P.(C) No.16079/2023 : 7 : also. 7. To the predicament of the petitioners, the 1[st] respondent, without hearing the petitioners or their counsel, allowed Ext.P6 appeal, set aside the order passed by the 2[nd] respondent and directed the 3[rd] respondent to live in the matrimonial house of the 4[th] respondent. The 1[st] respondent further ordered all the children except the 4[th] respondent to provide maintenance amount. The petitioners are challenging the said Ext.P14 order. 8. The petitioners submitted that the 3[rd] respondent had approached the Tribunal for claiming maintenance and for a direction to permit her to reside in her family house. The 3[rd] respondent was not, in fact, aggrieved by the orders passed by the Tribunal. The 4[th] respondent has created a Power of Attorney and filed appeal on behalf of the 3[rd] respondent, before the 1[st] respondent on untenable grounds. Ext.P6 appeal was filed without any valid reason or any substantial grievance. The appeal is therefore not maintainable. W.P.(C) No.16079/2023 : 8 : 9. The petitioners pointed out that the 3[rd] respondent had filed the petition seeking two reliefs, which were allowed. Therefore, in appeal, the 1[st] respondent ought not have given a new relief which was not originally prayed for by the petitioners. 10. The petitioners further argued that it is one of the norms of Christians that a Christian wife lives in the house of her husband the whole life. The direction of the 1[st] respondent to take care of the 3[rd] respondent-mother in the matrimonial house of the 4[th] respondent, is against Christian religious beliefs and customs. 11. The counsel for the petitioners relied on the judgment of the Hon’ble Apex Court in _**Trojan and Company v. RM. N.N. Nagappa Chettiar**_ [(1953) 1 SCC 456] and argued that decision in a case cannot be based on grounds outside the pleadings of the parties. It is the case pleaded that has to be found. Without an amendment of the plaint, the court is not entitled to grant a relief not asked for and no prayer was ever made to amend the plaint, so as to W.P.(C) No.16079/2023 : 9 : incorporate in it an alternative. 12. I have heard the learned counsel for the petitioners and the respective counsel appearing for respondents 3, 4, 6 and 8. I have also heard the learned Senior Government Pleader appearing for respondents 1 and 2. 13. Ext.P3 is the application filed by the 3[rd] respondent before the Maintenance Tribunal, Adoor. In Ext.P3 application, the 3[rd] respondent prayed to allow a monthly maintenance of ₹50,000/- each from the opposite parties. The 3[rd] respondent also alleged that she is being forced to leave the family house and to leave elsewhere. After examining the materials on record, the Tribunal held that the 3[rd] respondent is entitled to protection which shall be ensured by the opposite parties 1 to 7. Petitioners 1 and 2 are opposite parties 6 and 5 respectively in Ext.P3. 14. In Ext.P5 order, the Tribunal directed the opposite parties to give protection to the 3[rd] respondent two months each. Petitioners 1 and 2 were to give protection to the 3[rd] W.P.(C) No.16079/2023 : 10 : respondent in the months December to March. The Tribunal held that the 3[rd] respondent is entitled to reside in the family house and she should be given safe residence, food, clothes, medical service, medicines and service of home nurse. The Tribunal further held that nobody should obstruct the children of the 3[rd] respondent to come and meet the 3[rd] respondent. The third opposite party alone was directed to pay ₹10,000/- as maintenance. 15. Respondents 3 and 4, however, filed Ext.P6 appeal in the Appellate Tribunal. The 3[rd] respondent was represented by the 4[th] respondent, who is the Power of Attorney holder. Before the Appellate Tribunal, it was pointed out that direction in Ext.P5 order to the six children to take turns for two months each for the maintenance and care of the 91 year old mother, is irrational, unworkable and unpractical. The mother requires steady and continuous care, support and nursing. The impugned direction is passed by the Tribunal without properly ascertaining the wishes of the 3[rd] respondent-mother. The 3[rd] respondent W.P.(C) No.16079/2023 : 11 : stated that the 4[th] respondent is ready to take care of her at her home and the 3[rd] respondent wishes to live in the care of the 4[th] respondent. 16. As regards maintenance amount, respondents 3 and 4 submitted that substantial amounts are required for medical treatment of the 3[rd] respondent. ₹18,000/- is required for the service of bystander / home nurse. An amount of ₹500/- per day is required for physiotherapy. The Maintenance Tribunal therefore ought to have fixed monthly maintenance taking into consideration all these aspects. The order confining maintenance amount of ₹10,000/- payable by the 4[th] respondent, is arbitrary and discriminatory. 17. The Appellate Tribunal on 25.10.2022, directed the Maintenance Tribunal to take the statement of the 3[rd] respondent. In W.P.(C) No.2193/2022, this Court set aside the said direction dated 25.10.2022. After considering the materials on record, the Appellate Tribunal passed Ext.P14 order permitting the 3[rd] respondent to reside in the house of the 4[th] respondent. The 4[th] respondent was directed to give W.P.(C) No.16079/2023 : 12 : necessary protection to the 3[rd] respondent, including medical aid. The Appellate Tribunal found that other children have a right to visit the 3[rd] respondent. Petitioners 1 and 2 and the 5[th] respondent were directed to pay ₹3,000/- towards monthly maintenance. The 7[th] respondent was directed to pay ₹2,500/- and the 8[th] respondent was directed to pay ₹2,000/towards maintenance. The 6[th] respondent was directed to pay ₹10,000/- as monthly maintenance. 18. The petitioners are aggrieved by Ext.P14 order. The prime ground urged by the petitioners is that the reliefs granted by the Appellate Tribunal were not the reliefs sought for by the 3[rd] respondent in her application. In Ext.P3 application before the Maintenance Tribunal, the 3[rd] respondent sought for monthly maintenance of ₹50,000/each from the opposite parties, including the petitioners. The Appellate Tribunal in Ext.P14 ordered that the petitioners 1 and 2 and the 5[th] respondent shall pay ₹3,000/- towards monthly maintenance. The 7[th] respondent was directed to pay ₹2,500/- and the 8[th] respondent was directed to ₹2,000/- W.P.(C) No.16079/2023 : 13 : towards maintenance. The 6[th] respondent was directed to pay ₹10,000/- as monthly maintenance. As the 3[rd] respondent has sought for maintenance in her Ext.P3 application, I find that the Appellate Tribunal is justified in ordering maintenance to be paid by the children including the petitioners. 19. In Clause No.6 of the application of the 3[rd] respondent where “any other particulars as may be necessary” was sought to be recorded, the 3[rd] respondent has stated that she is an aged house wife and is living with the help of medicines and the 6[th] opposite party is harassing the 3[rd] respondent to leave the family house and to live elsewhere. The particulars so given by the 3[rd] respondent cannot be assumed as her desire to live in the family house on a permanent basis. At the appellate stage, the 3[rd] respondent stated that she would like to live with the 4[th] respondent in the matrimonial house of the 4[th] respondent. The 3[rd] respondent being a citizen, has every right to decide where she should reside. In this case, the 4[th] respondent is W.P.(C) No.16079/2023 : 14 : the elder daughter of the 3[rd] respondent and the 4[th] respondent has no objection in her mother, the 3[rd] respondent, living with her family. In the circumstances of the case, it cannot be said that the Appellate Tribunal has granted relief exceeding the prayers of the petitioners. 20. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is implemented for the welfare the senior citizens. The 3[rd] respondent, who is aged more than 90 years, if expresses her desire to live with the 4[th] respondent-daughter, the Maintenance Tribunal as well the Appellate Tribunal has a duty to protect the desire and interest of the 3[rd] respondent. At any rate, such technicalities cannot defeat the underlying objective of the Act, 2007. In the judgment in _**Trojan and Company**_ (supra) wherein the Hon’ble Apex Court has held that the judgment in a case cannot be based on grounds outside the pleadings of the parties, is of no help to the petitioners. The said judgment was delivered in the context of civil proceedings governed by the Code of Civil Procedure. Under Section 8 of the Act, W.P.(C) No.16079/2023 : 15 : 2007, the Tribunals, subject to any Rules that may be prescribed by the State Government, are expected to follow only summary proceedings. 21. The argument of the petitioners based on the appeal being filed by the 4[th] respondent on the basis of a Power of Attorney executed by the 3[rd] respondent, is unsustainable. Section 5(1)(b) provides that an application for maintenance may be made by a senior citizen and if he is incapable, by any other person or organisation authorised by him. In this case, appeal has been filed by the 4[th] respondent-daughter on the basis of a Power of Attorney executed by the 3[rd] respondent. The petitioners have not brought anything on record to disbelieve execution of Power of Attorney by the 3[rd] respondent. As the 3[rd] respondent is more than 90 years old, I do not find any illegality in her executing Power of Attorney in favour of her daughter for filing the appeal. W.P.(C) No.16079/2023 : 16 : The writ petition filed by the petitioners is therefore devoid of any merit. The writ petition is therefore dismissed. Sd/- **N. NAGARESH, JUDGE** aks/31.01.2024 W.P.(C) No.16079/2023 : 17 : ## **APPENDIX OF WP(C) 16079/2023** ## **PETITIONERS' EXHIBITS** - **Exhibit P1 TRUE COPY OF THE PLAINT IN O.S NO. 86/2022 ON THE FILE OF THE HON'BLE MUNSIFF'S COURT, PATHANAMTHITTA** - **Exhibit P2 TRUE COPY OF THE PROTECTION OFFICER'S REPORT IN MAY, 2022** - **Exhibit P3 TRUE COPY OF THE PETITION NO. C432507/2021 FILED BY THE 3RD RESPONDENT BEFORE THE 2ND RESPONDENT, MAINTENANCE TRIBUNAL, ADOOR** - **Exhibit P4 TRUE COPY OF THE STATEMENT DATED 24-32022 GIVEN BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT ALONG WITH ENGLISH TRANSLATION** **Exhibit P5 TRUE COPY OF THE ORDER DATED 23-5-2022 PASSED BY THE 2ND RESPONDENT Exhibit P6 TRUE COPY OF THE APPEAL MEMORANDUM DATED 14-7-2022 FILED BY THE 4TH RESPONDENT BEFORE THE 1ST RESPONDENT Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 30-92022 IN WP.(C) NO. 31334/2022 OF THIS HON'BLE COURT** - **Exhibit P8 TRUE COPY OF THE ORDER DATED 25-102022 PASSED BY THE 1ST RESPONDENT FOR RE-EXAMINATION OF THE 3RD RESPONDENT** - **Exhibit P9 TRUE COPY OF THE ORDER DATED 1-12-2022 IN R.P. NO. 1141/2022 OF THIS HON'BLE COURT** - **Exhibit P10 TRUE COPY OF THE JUDGMENT DATED 18-12023 IN O.P(C) NO. 2193/2022 OF THIS HON'BLE COURT** - **Exhibit P11 TRUE COPY OF THE ADVOCATE COMMISSIONER'S REPORT DATED 17-12-2022 FILED BEFORE THIS HON'BLE COURT IN O.P.(C) NO. 2193/2022** - **Exhibit P12 TRUE COPY OF THE TREATMENT CERTIFICATE ISSUED BY MUTHOOT HEALTH CARE HOSPITAL DATED 4-4-2022** W.P.(C) No.16079/2023 : 18 : |**Exhibit P13**|**TRUE COPY OF THE PRESCRIPTION ISSUED**| |---|---| ||**BY LIFECARE MEDICAL CENTRE DATED 29-9-**| ||**2022**| |**Exhibit P14**|**TRUE COPY OF THE ORDER DATED 5-4-2023**| ||**PASSED BY THE 1ST RESPONDENT**| |**Exhibit P15**|**TRUE COPY OF THE PETITION IN M.C NO.**| ||**13 / 2022 FILED BY THE 3RD RESPONDENT**| ||**BEFORE THE JUDICIAL FIRST CLASS**| ||**MAGISTRATE COURT PATHANAMTHITTA DATED**| ||**NIL OF MARCH 2022**| |**Exhibit P16**|**TRUE COPY OF THE PLAINT DATED 24-6-**| ||**2023 FILED BY THE 4TH AND 8TH**| ||**RESPONDENTS BEFORE THE MUNSIFF'S**| ||**COURT, PATHANAMTHITTA AS O.S. NO.**| ||**198/2023**| |**Exhibit P17**|**TRUE COPY OF THE PHOTOGRAPH OF THE 1ST**| ||**PETITIONER VISITING HIS MOTHER**| |**Exhibit P18**|**TRUE COPY OF THE ORDER DATED 18-5-2022**| ||**IN W.P.(C) NO.15135/2022 OF THIS**| ||**HON'BLE COURT**| |**Exhibit P19**|**TRUE COPY OF THE TREATMENT CERTIFICATE**| ||**DATED 4-4-2022 ISSUED BY THE MUTHOOT**| ||**HEALTHCARE PVT. LTD**| |**Exhibit P20**|**TRUE COPY OF THE PHOTOGRAPH OF THE**| ||**PETITIONERS' FAMILY HOUSE**|