Senior Citizen Not Entitled To Receive Maintenance From Children Unless Shows Inability To Maintain Himself: Orissa High Court

The Orissa High Court has held that simply being a 'senior citizen' does not automatically entitle a person to receive maintenance from children unless shown that he/she is unable to maintain himself/herself from own earnings or out of owned property. While clarifying the position of law under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 ('the 2007 Act'), the Single Bench of Justice Sashikanta Mishra observed – “Thus, an order of maintenance can be passed on the finding that the children or the relatives, as the case may be, have neglected or refused to maintain a senior citizen being unable to maintain himself.” Case Background The petitioner is the son of opposite party no.3. Due to certain disputes between the father and son, the father made an allegation that the son has ousted him from the house and that despite being aged about 69 years, his son is not maintaining him. Thus, the father filed an application under Section 5 of the 2007 Act claiming maintenance of Rs.5,000/- against his son. The case was registered in the Court of Sub-Collector, S.D.M., Rayagada-cum-Maintenance Tribunal. After hearing the parties, the Maintenance Tribunal directed the petitioner to handover the key of the gate of the building to his father and pay Rs.5,000/- towards monthly maintenance. The petitioner filed an appeal before the Collector-cum-appellate authority. The Appellate Authority, after taking note of the stand of the parties, did not find any reason to disturb the findings of the Maintenance Tribunal. As such the appeal was rejected and the order passed by the Tribunal was confirmed. Being aggrieved by the confirmation order of the Appellate Authority, the petitioner filed this writ petition. Contentions of Parties Referring to Section 4 of the 2007 Act, the counsel for the petitioner submitted that neither the Tribunal nor the Appellate Authority rendered any finding as to whether the father is unable to maintain himself from his own earnings or out of the property owned by him. Without assessment of this foundational fact, he argued, the application for maintenance should not have been considered. Further, it was argued that Section 9 of the Act provides for grant of monthly maintenance only if the children or relatives, as the case may be, neglect or refuse to maintain a senior citizen. However, neither of the forums rendered any finding in this regard. Above all, he alleged that the Tribunal as well as the Appellate Authority failed to consider Rule 14 of the Odisha Maintenance of Parents and Senior Citizens Rules, 2009 ('the 2009 Rules'), which provides for the mode of calculation of the maximum maintenance allowance, while fixing the maintenance amount. Notably, Rule 14 says that, “the maximum maintenance allowance which a Tribunal may order the opposite party to pay shall, subject to a maximum of rupees ten thousand per month/be fixed in such a manner that it does not exceed the monthly income from all sources of the opposite party, divided by the number of persons in his family, counting the applicant or applicants also among the opposite party's family members”. The counsel appearing for the aged father submitted that the aforesaid pleas were not taken by the petitioner before the forums below. Furthermore, the father is a person aged about 69 years and has no source of income, who was thrown out of his house by the petitioner and therefore, the impugned order is just and proper. Court's Observations Having considered the rival contentions of the respective parties, the Court first referred to the definition of 'senior citizen' as provided under Section 2(h) of the 2007 Act, which says that a senior citizen means any person being a citizen of India, who has attained the age of sixty years or above. Admittedly, the opposite party-father is above the threshold age of sixty years and thus, he was found to be a senior citizen. Justice Mishra then examined the stipulations provided under Section 4 of the Act, which deals with maintenance of parents and senior citizens. Interpreting the provision, he held that simply being a senior citizen does not automatically entitle a person to receive maintenance from his children. He further held that inability to maintain himself from his own earnings or out of property owned by him is a precondition for claiming maintenance under the provision. The Court was of the view that the Tribunal as well as the Appellate Authority failed to provide any finding on the aforesaid aspect. It further interpreted the language employed in Section 9 of the Act, which encompasses 'order for maintenance'. “The language used is 'the Tribunal may, on being satisfied of such neglect.' Therefore, it is imperative that the Tribunal has to be subjectively satisfied about the above aspect before passing any order of maintenance. In the instant case,...

Senior Citizen Not Entitled To Receive Maintenance From Children Unless Shows Inability To Maintain Himself: Orissa High Court

Jyoti Prakash Dutta

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