Senior Citizen Must Show Inability To Maintain Oneself; Not Every Family Dispute Attracts Maintenance Act: Bombay High Court

In a significant ruling, the Bombay High Court while quashing a Tribunal's order directing two sons to vacate the property of their father, recently held that every dispute or conflict between a senior citizen and his children will not fall within the ambit of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.Single-judge Justice Somasekhar Sundaresan quashed and set aside an order passed by the Maintenance Tribunal on February 2, 2024 directing the petitioner sons to vacate the residential units in suburban Malad, Mumbai after their father filed an application under section 4 and 5 of the Act. The judge noted that the provisions of the Act particularly section 4 entitles a senior citizen to knock the doors of the Maintenance Tribunal only when they establish that they are unable to maintain themselves from their own earnings or from the properties they own. This, is a jurisdictional fact which is mandatorily to be considered by the Maintenance Tribunals before passing any orders or entertaining the applications. The judge further noted that in the instant case, the father and the two sons (petitioners) lived separately from a long period and that the father who sought to evict the sons from the Malad property, does not live there as he lived separately with his second wife. The judge also considered the fact that the father failed to establish how he is unable to maintain himself from his earnings or through the properties he owned and instead, the sons brought the fact on record that the father was receiving Rs 40,000 per month as a pension. Based on this, the Maintenance Tribunal while passing the impugned order, held that it was not necessary to pass orders to the sons to pay monthly maintenance to the father, the court noted."All of these facets, coupled with the Maintenance Tribunal positively holding that it would be inappropriate to grant maintenance, undermine the case for an intervention for vacating a residential unit that the Father is in fact not living in. The objective of directing a relative to vacate the premises to enable maintaining the emotional needs and peace expected in normal life would presuppose the family living under one roof, with the need to remove the relative to enable the senior citizen's peace. A situation where the parties have been in conflict for long and one desires the other to be removed from a property where they do not reside jointly, or worse, where neither resides (the Father alleges that even the Sons do not live there) is not a matter that would fall within the ambit and scope of remedial intervention under the Act," Justice Sundaresan held in the order passed on February 9.In the result, in my opinion, the Sons have indeed made out a case for exercise of intervention by this Court in exercise of its writ jurisdiction to quash and set aside the Impugned Order, particularly in view of the jurisdictional fact having been answered against the Father, the judge added. The judge further made it clear, "Every conflict between a senior citizen and his offspring would not attract the jurisdiction of the Act. Whether the factual matrix in a given case brings out the jurisdictional facts necessary for the intervention envisaged in the Act is a question that must necessarily be answered in each case. If the answer to the same in a given case is one where the jurisdictional fact is not made out, it would necessarily follow that the absence of a jurisdictional fact would lead to the remedies under the Act not being available – of course, making it clear that other remedies available in law would, in no manner, be eroded by such finding."The judge, therefore, quashed and set aside the February 2, 2024 order of the Maintenance Tribunal, by which the petitioner sons were asked to vacate the residential units in Malad. However, Justice Sundaresan directed the father to make a fresh application but subject to the condition that he ought to demonstrate how he fits within the ambit and scope of Section 4, and provide empirical evidence for the same. "Should such an application be made with attendant evidence to support the same, the Sons shall be entitled to provide their response and evidence, and meet the foundational element of whether the jurisdiction of the Act is at all available to the Father, and if available, what remedies would be appropriate in the facts of the case," the judge ordered. With these observations, the bench disposed of the plea. Appearance: Advocates SC Mangle and Tanmay Shembhavnekar appeared for the Petitioners. Advocates Vijayalaxmi Obhan and Pankaj Jadhav represented the Father. Case Title: Prakash Krishna Gamre vs Krishna Ganpat Gamre (Writ Petition 5932 of 2024)Citation: 2026 LiveLaw (Bom) 64Click Here To Read/Download Judgment

Senior Citizen Must Show Inability To Maintain Oneself; Not Every Family Dispute Attracts Maintenance Act: Bombay High Court

Narsi Benwal

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