The Kerala High Court has observed that Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act can be invoked even if there was no condition of providing maintenance in the transfer deeds.
Justice A. Muhamed Mustaque observed that the scheme of the Senior Citizens Act is not intended at dispute resolution but to promote measures to secure the welfare and interest of the senior citizens and parents. Quoting verses from Kurma Purana, Manusmriti, Holy Quran and Holy Bible, the judge observed that traditional norms and values of the Indian society emphasize on the duty of taking care of elders. The court observed that, due to urbanisation and vast expansion in search for livelihood, parents have been treated as a liability because of their old age and physical.
Explaining the difference in adversarial legal system and inquisitorial legal system, the Court added that enquiry as contemplated under Senior Citizens Act is similar to the process adopted in an inquisitorial system. It said:
The duty on the Tribunal under the Senior Citizen Act therefore is to elicit truth. For that he can refer to pleadings and evidence. But that is not decisive. The Tribunal has to independently enquire into the truth and take measures to protect the well being of senior citizen/parents. The Tribunal is actually not deciding any dispute in like manner as involved in an adversarial system, but is only taking measures to protect the senior citizen/parents. The focus of the enquiry, therefore, is the protection of the senior citizen or parents as the case may be, through stages of decision taken by him at different level. Thus I make it clear in the light of the legislative intent assimilated on philosophical reasoning and narratives as afore referred, that the scheme of the Senior Citizens Act is not intended at dispute resolution but to promote measures to secure the welfare and interest of the senior citizens and parents. Through measures such as demanding an enquiry under the Act as in an investigation to protect well being of senior citizens or parents in a manner prescribed therein. In Adversarial Litigation, rights and interests of both parties will be adjudicated or decided. The Senior Citizens Act does not contain such process of adjudication. The Tribunal must be guided by those factors that are required to protect such interest by eliciting the truth. The Tribunal cannot act like a neutral umpire in an adversarial systems. Considering the object of the legislation as above, the Tribunal has to follow the procedure for enquiry as in an inquisitorial system and not as in an adversarial litigation. Irrespective of the pleadings raised by the senior citizen, he has to address the grievance of the senior citizen as expressed before him to elicit truth.
The court further noted that in Radhamani and others v. State of Kerala (2016 (1) KHC 9), it was held that there is no requirement under law that there should be a written stipulation in the deed to the effect that the transferee would maintain the transferor. The court observed:
The scope of enquiry in a matter related under Section 23, must be related and confined to the circumstances under which the document was executed. In the light of Radhamani's judgment, the Tribunal has to examine the circumstances under which the deed was executed. It is also necessary to find out whether senior citizen expected that the transferee would provide amenities and physical needs to the transferer at the time of transfer. There may not be any written document in this regard. Normally this has to be concluded from human conduct and nature of relationship and circumstances in which such deed was executed. Strict pleadings or evidence cannot be insisted in such proceedings. It is to be noted that law only contemplates breach on the part of the transferee in providing amenities and physical needs to the transferor. It does not stipulate that the condition of providing maintenance should be part of such transfer. If love and affection was the circumstances for executing such deed, any failure on the part of the transferee to provide amenities and physical needs to the transferor would attract the grounds for revocation under Section 23. Therefore, any emotional detachment or creation of an atmosphere as opposed to the one demanded by a senior citizen would be sufficient to attract Section 23.
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