Kerala High Court
Joice P vs Sub Collector And Maintenance Tribunal on 28 September, 2018
Equivalent citations: AIRONLINE 2018 KER 907
Author: Alexander Thomas
Bench: Alexander Thomas
(C.R)
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY ,THE 28TH DAY OF SEPTEMBER 2018 / 6TH ASWINA, 1940
WP(C).No. 31784 of 2018
PETITIONER/S:
JOICE P.,
AGED 94 YEARS
D/O. PONNAMMA, CHERIYA PULLINGAL, THIRUPURATHOOR DESOM,
THIRUPURAM VILLAGE, NEYYATTINKARA TALUK.
BY ADVS.
SRI.G.SUDHEER
SRI.R.HARIKRISHNAN (H-308)
RESPONDENT/S:
1 SUB COLLECTOR AND MAINTENANCE TRIBUNAL
NEDUMANGADU, THIRUVANANTHAPURAM DISTRICT, (FORMERLY SUB
COLLECTOR, THIRUVANANTHAPURAM WAS IN OFFICE), PIN - 695
001.
2 SUB INSPECTOR OF POLICE,
POOVAR POLICE STATION, POOVAR P.O, THIRUVANANTHAPURAM
DISTRICT.
3 K. SATHYADAS,
S/O. KUTTAN NADAR, AGED 49 YEARS, CHERIYA PULLINGAL
VEEDU, THIRUPURATHOOR DESOM, THIRUPURAM P.O,
NEYYATTINKARA TALUK.
OTHER PRESENT:
SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER FOR R1 AND R2
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
28.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C).31784/18 2
ALEXANDER THOMAS, J.
==================
W.P.(C).No. 31784 of 2018
==================
Dated this the 28th day of September, 2018
JUDGMENT
The prayers in this Writ Petition (Civil) are as follows:
"i. issue appropriate direction to 1st respondent to execute Exts.P1 to P-3 as per the provisions contained in Section 5(8) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 as well as under section 421 of Cr.P.C. within a time limit.
ii) Issue a writ of mandamus or any other appropriate writ order or direction, directing the 2nd respondent to see that the directions contained in Exts.P1 to P-3 and the injunction granted in Exts.P7(c) is not violated by 3 rd respondent.
iii) such other appropriate writ order or direction as this Honourable Court may deem fit and proper to meet the ends of justice."
2. Heard Sri.G.Sudheer, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for official respondents 1 and 2. In the nature of the order that is proposed to be passed in this petition, notice to contesting respondent No.3 will stand dispensed with.
3. The petitioner, who is a 93 year old lady, is the mother of the 3rd respondent (son). The petitioner had filed an application for maintenance under the provisions of the Maintenance and Welfare of Parents & Senior Citizens Act, 2007, praying for directions from the Tribunal so as to direct the respondent therein (R-3 herein) for payment of maintenance. The Tribunal after hearing both sides, had W.P.(C).31784/18 3 passed Ext.P-1 order dated 12.1.2015 directing that all reasonable measures should be taken to ensure the welfare of the petitioner and that the respondent therein (R-3 herein) should pay maintenance of Rs.1,500/- per month to the petitioner. The operative portion of Ext.P-1 reads as follows:
"ഉതരവ എല മകൾക മ ത വ ന വന ക ണ ക മ ക ര ങൾ അക ഷ ക മ ള വഴ എത ർക തടസന#ട ത ൻ പ ട നലന ഹർജ ക ര ക( 2015 ജ വര മ സ മ തൽ പപത മ സ 1,500/- ര,പ വ-ത എത ർക ജ-വ ശമ യ ലകണനമന ഈ ടപടബ ണൽ ഇത ൽ ഉതരവ ക ന ."
4. Since the 3rd respondent did not comply with the abovesaid directions in the matter of payment of maintenance amount, the petitioner (mother) was constrained to file an application to ensure the enforcement of Ext.P-1 order. Thereupon, it appears that the 3rd respondent has also filed an application under Sec.10 of the abovesaid Act, seeking alteration in the monthly maintenance amount. Thereafter, the Tribunal has passed Ext.P-2 order dated 18.12.2015, whereby the 3rd respondent was directed to pay Rs. 16,500/- and also pay Rs. 2250/- per month from December, 2015 to September 2017, and thereafter @ Rs. 1500/- per month from October, 2017 onwards. Further the Tribunal had directed the 3 rd respondent to deposit the said amount in the bank account of the petitioner in the bank mentioned therein. The operative portion of W.P.(C).31784/18 4 Ext.P-2 order dated 8.12.2015, reads as follows:
"ഉതരവ സ,ച (1) ഉതരവ പപക ര 2015 വ ബർ മ സ വനര ക ട ശ കയ ള 16,500/- ര,പയ ത ടർന ള ജ-വ ശ ത കയ ത നഴപറയ പപക ര ഹർജ ക ര ക( ലഭ മ കകണത ണ. 2015 ഡ സ ബർ മ തൽ 2017 നസപറ ബർ മ സ വനര പപത മ സ 2,250/-
ര,പയ ത ടർന( 2017 ഒകകട ബർ മ സ മ തൽ 1,500/-
ര,പ വ-തവ ഹർജ ക ര ക( മ ടങ നത ലഭ മ കകണത നണന( ഈ
ടപടബ ണൽ ഉതരവ ക ന . ട ത ക ഹർജ ക ര കപര ല ള
തമ ഴ ട നമർകനറൽ ബ ങ നല ത ര പറ പബ ഞ നല
062100050302564-ആ മർ അകGണ ൽ എല മ സവ 10-ആ
ത-യത ക( മ ൻപ യ ക പ കകണത ണ. ട ഉതരവ ന ത ടർന
ജ-വ ശതക ക ട ശ ക വര തന പ ത ങൾനകത നര ഈ
ആകട ൽ ഷകർഷ ച ര ക ന പപക ര ത ടർ ടപട കൾ സ -കര ക
നത യ ര ക ."
5. According to the petitioner, even thereafter the 3rd respondent has refused to comply with the directions of the Tribunal and thereupon, the petitioner was again constrained to approach the Tribunal seeking execution and enforcement of the earlier orders.
Thereupon the Tribunal had issued Ext.P-3 order dated 25.11.2017, whereby the 2nd respondent Station House Officer, Poovar Police Station, Thiruvananthapuram, was authorised under Sec. 22 of the abovesaid Act to implement the above order. The operative portion of Ext.P-3 order dated 25.11.2017 reads as follows:
"ഉതരവ 2007 നല ര കർത കളKനടയ മ ത ർനപGരന ര നടയ സ ര ണത ക മത മ യ ള ആകട നല വ വസകൾ പപക ര പര ത ക യ യ പശ-മത കജ യസ നനറ മകൾ എല കപര കചർന( ട യ നള സ ര കകണത , മറK മകൾക ട പര ത ക ര യ നട വ-ട ൽ പപകവശ ക വ ൻ അ വദ ൽക നക ണ ഈടപടബ ണൽ ഉതരവ ക ന .
W.P.(C).31784/18 5
ട ഉതരവ എത ർ ക യ യ പശ-. സത ദ സ പ ല ക ന കണ
എന ക ര ത ൽ പ,വ ർ കSഷൻ ഹGസ ഓഫ-സർ പപകത ക പശദ
പത # കകണത ട യ നനറ പര ത ക കയ ട ള
ഉപപദവങൾനകത നര യമ ടപട കൾ സ -കര കകണത ക,ട നത
ഉതരവ ട# ക നത ഇത സ ബന ചKള ത ടർ ആക പങളK
പര ത കളK പര ഹര ചK പര ത ക രനനറ ക മ
ഉറ#Kവര തനത 2007 നല ര കർത കളKനടയ മ ത ർന
പGരന ര നടയ ക മത സ ര ണത മ യ ള യമ
വക #( 22 പപക ര പ,വ ർ കSഷൻ ഹGസ ഓഫ-സനറ
ച മതലനപട ത യ ഉതരവ ക ന ."
6. According to the petitioner, in spite of all these, the 3 rd respondent has refused to pay a single paise as maintenance and its arrears to the petitioner. The petitioner had thereupon consistently approached the Tribunal and the 2 nd respondent, Station House Officer and the one such petition before the 2 nd respondent is Ext.P-4 dated 20.3.2018 and last such reminder sent is at Ext.P-5. Thereafter, the petitioner has been constrained to file Ext.P-8 application dated 6.8.2018 before the Tribunal for execution of the abovesaid orders earlier passed by the Tribunal. According to the petitioner, the stand taken by the Tribunal that the 2 nd respondent Police officer could enforce the order in terms of Sec.22 of the Act is incorrect and untenable and that the Tribunal has been specifically conferred with power to enforce the attendance of a defaulting party like the 3 rd respondent by recourse to the powers under Sec. 6(3) of the Act. Sec.
6(3) of the abovesaid Act reads as follows:
"Sec.6: Jurisdiction and procedure.- (1).....
xxx xxx xxx W.P.(C).31784/18 6 (3) For securing the attendance of children or relative the Tribunal shall have the power of a Judicial Magistrate of first class as provided under the Code of Criminal Procedure, 1973. (2 of 1974)"
Further that specific powers have been conferred on the Tribunal for enforcement of the orders on the grant of maintenance as per Sec. 8 and Sec. 11 of the said Act. Sec.5(8) and Sec. 11 of the abovesaid Act read as follows:
"Sec. 5: Application for maintenance.- (1).....
xxx xxx xxx (8) If, children or relative so ordered fail, without sufficient cause to comply with the order, any such Tribunal may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person for the whole, or any part of each month's allowance for the maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made whichever is earlier:"
Section 11 "Sec.11: Enforcement of order of maintenance.- (1) A copy or the order of maintenance and including the order regarding expenses of proceedings, as the case may be, shall be given without payment of any fee to the senior citizen or to parent, as the case may be, in whose favour it is made and such order may be enforced by any Tribunal in any place where the person against whom it is made, such Tribunal on being satisfied as to the identity of the parties and the non- payment of the allowance, or as the case may be, expenses, due.
(2) A maintenance order made under this Act shall have the same force and effect as an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be executed in the manner prescribed for the execution of such order by that Code." Sec.125 of the Cr.P.C. reads as follows:
"Sec. 125: Order for maintenance of wives, children and parents.- (1) If any person having sufficient means neglects or refuses to maintain--
(a) his wife, unable to maintain herself, or W.P.(C).31784/18 7
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means:
Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.
Explanation.-- For the purposes of this Chapter,-- (a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority;
(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month's allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on W.P.(C).31784/18 8 condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation.-- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.
(4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."
7. Since similar provisions for execution of the orders of maintenance are made in Sec. 5(8) as well as Sec. 11 of the Act and as Sec. 5(2) speaks about "interim maintenance", it appears that Sec. 5(8) should be linked with execution and enforcement of orders of interim maintenance, whereas final orders of maintenance are to be executed in terms of Sec. 11(2).
8. It is further pointed out by the petitioner that it is clearly evident from Ext.P-2 order dated 8.2.2015 that the petitioner had filed application dated 28.5.2015 for execution of the order at Ext.P-1 and the said application dated 28.5.2015 has been referred to as second paper in Ext.P-2 proceedings dated 8.12.2015, and that the Tribunal was legally obliged to have treated the said application as one for execution in terms of the abovesaid provisions of the Act, instead of relegating the matter to the 2 nd respondent Station House W.P.(C).31784/18 9 officer, etc. It is seen from Ext.P-3 order dated 25.11.2017 that the Tribunal has now authorised the 2nd respondent Station House Officer to enforce the orders in question in terms of Sec. 22 of the said Act. Sec. 22 of the abovesaid Act provides as follows:
"Sec. 22: Authorities who may be specified for implementing the provisions of this Act.- (1) The State Government may, confer such powers and impose such duties on a District Magistrate as may be necessary, to ensure that the provisions of this Act are properly carried out and the District Magistrate may specify the officer, subordinate to him, who shall exercise all or any of the powers, and perform all or any of the duties, so conferred or imposed and the local limits within which such powers or duties shall be carried out by the officer as may be prescribed.
(2) The State Government shall prescribe a comprehensive action plan for providing protection of life and property of senior citizens."
9. Therefore, in the facts and circumstances of the case, the order of the Tribunal as per Ext.P-3 directing the 2 nd respondent SHO to enforce the orders of maintenance as per Sec.22 of the Act is clearly misdirected, especially when specific powers have been conferred on the Tribunal to ensure due enforcement and execution of the orders for granting maintenance. From a reading of Ext.P-2 order it can be seen that the application for execution of the order has been made by the petitioner on 28.5.2015 (which is referred to as second paper in Ext.P-2). According to the petitioner, the orders of maintenance are still in force and they have not been altered in the manner known to law. In the light of these aspects, the matter will stand remitted to the Tribunal for due enforcement and execution of the orders in the matter of grant of maintenance. Before the Tribunal W.P.(C).31784/18 10 takes coercive proceedings, it will be only reasonable and fair to provide a last opportunity to the 3 rd respondent to pay the amounts in question. For that purpose the Tribunal may issue summons to the 3 rd respondent.
10. Going by the specific powers conferred under Sec. 6(3) of the Act, for securing attendance of the respondents in the maintenance proceedings, the Tribunal is conferred with the powers of a Judicial First Class Magistrate's under the Code of Criminal Procedure and therefore, the Tribunal has the power to enforce personal attendance of the 3 rd respondent by summons and if necessary through bailable/ non-bailable warrant as the case may be. Therefore, as the first step, the Tribunal will issue summons to the 3rd respondent through the Station House Officer concerned so as to ensure the personal presence of the 3 rd respondent before the Tribunal on a date to be mentioned in the said summons. If the 3rd respondent personally appears before the Tribunal, he may be given minimum reasonable time for payment of the due amounts to the petitioner. On the other hand, if the 3 rd respondent is not personally appearing before the Tribunal in spite of service of summons, then the Tribunal will be at liberty to enforce personal attendance of the 3 rd respondent by issuance of the bailable warrant through the Station House Officer concerned. Thereafter, the 3rd respondent may be given a minimum reasonable time for payment of the amounts concerned and the matter should be monitored by the Tribunal whether payments have been so made W.P.(C).31784/18 11 to the bank account of the petitioner and if payments are not paid, the Tribunal should take steps under the abovesaid Act for execution of the order. As regards prayer No.ii in the matter of directions to the 2 nd respondent to ensure the compliance of the injunction order granted in Ext.P-7(c), etc., it is for the petitioner to initiate separate appropriate proceedings in that regard and those issues are left open.
The Registry will forward a certified copy of this judgment to the 3rd respondent at the cost of the petitioner. The office of the Advocate General will forward certified copies of this judgment to respondents 1 and 2.
Having regard to the fact that the petitioner is an senior citizen, who has crossed the age of 94, the Tribunal should ensure that the entire process in this regard should be duly completed without much delay, preferably within a period of 4 months from the date of receipt of a certified copy of this judgment.
With these observations and directions, the above Writ Petition (Civil) stands finally disposed of.
Sd/-
sdk+ ALEXANDER THOMAS, JUDGE
W.P.(C).31784/18 12
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF ORDER ISSUED BY THE PRESIDING OFFICER,
MAINTENANCE TRIBUNAL, THIRUVANANTHAPURAM DATED 12-1-2015. EXHIBIT P2 TRUE COPY OF ORDER ISSUED BY THE PRESIDING OFFICER, MAINTENANCE TRIBUNAL, THIRUVANANTHAPURAM DATED 8-12-2015 EXHIBIT P3 TRUE COPY OF ORDER ISSUED BY THE PRESIDING OFFICER, MAINTENANCE TRIBUNAL, THIRUVANANTHAPURAM DATED 25-11-2017 EXHIBIT P4 TRUE COPY OF PETITION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 23-3-2018 EXHIBIT P5 TRUE COPY OF REMINDER SENT BY THE PRESIDING OFFICER, MAINTENANCE TRIBUNAL, THIRUVANANTHAPURAM DATED 3-5-2017 EXHIBIT P6 TRUE COPY OF O.S NO. 964/2016 FILED BY K. SATHYADAS BEFORE THE MUNSIFF COURT, NEYYATTINKARA DATED 4-8-2016 EXHIBIT P6 A TRUE COPY OF ORDER DATED 3-1-2017 IN IA NO., 3473/2016 IN O.S NO. 964/2016 PASSED BY THE 1ST ADDITIONAL MUNSIFF COURT, NEYYATTINKARA.
EXHIBIT P7 TRUE COPY OF O.S NO. 841/2017 FILED BY THE PETITIONER AND OTHERS BEFORE THE MUNSIFF COURT, NEYYATTINKARA DATED 26-8- 2017.
EXHIBIT P7 A TRUE COPY OF ORDER IN I.A NO. 4073/2017 IN O.S NO. 841/2017 PASSED BY THE 1ST ADDITIONAL MUNSIFF COURT, NEYYATTINKARA DATED 30-08-2017 EXHIBIT P7 B TRUE COPY OF COMMISSION REPORT AND SKETCH SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S NO. 841/2017 DATED 27-06-2017 EXHIBIT P7 C TRUE COPY OF ORDER DATED 8-11-2017 IN I.A NO. 4724/2017 IN O.S NO. 841/2017 PASSED BY THE ADDITIONAL MUNSIFF COURT-I, NEYYATTINKARA.
EXHIBIT P8 TRUE COPY OF PETITION SUBMITTED BY THE PETITIONER BEFORE THE REVENUE DIVISIONAL OFFICER, NEDUMANGADU DATED 6-8-2018.