Delhi High Court

Pawan Sharma vs State & Ors on 9 September, 2011

Author: Mukta Gupta

37#$~
*     IN THE HIGH COURT OF DELHI : NEW DELHI

+      W.P.(CRL) 1471/2010 & Crl. M.A. No. 15539/2010 (Stay)

%                                       Decided on : 9th September, 2011

       PAWAN SHARMA                                        ..... Petitioner
                  Through:              Mr. Harendra Prasad Sinha,
                                        Advocate.
                       Versus

       STATE & ORS                                   ..... Respondents
                            Through:    Mr. Kr. Vijayendra, Advocate for Mr.
                                        Saleem Ahmed, Additional Standing
                                        Counsel with SI P.N. Verma, PS Neb
                                        Sarai.
                                        Mr. Hamid Ali, Advocate for
                                        Respondent Nos. 2 and 3.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                         Not necessary
2. To be referred to Reporter or not?                      Yes

3. Whether the judgment should be reported
   in the Digest?                                          Yes

MUKTA GUPTA, J. (ORAL)

Mr. Siddharth Aggarwal, learned Amicus Curiae appointed by the

Delhi Legal Services Authority to represent the Respondent Nos. 2 and 3

seeks discharge as the Respondent Nos. 2 and 3 are now represented by Mr.

Hamid Ali, Advocate.

Mr. Siddharth Aggarwal, Advocate is discharged from the case.

1. The present petition is filed by a son against his father and elder

brother claiming that the order of maintenance dated 15th March, 2010

passed by the ADM (South) Maintenance Tribunal (South-District) under

the Maintenance and Welfare of Parents and Senior Citizen Act, 2007 (in

short the Act). The grievance of the Petitioner in brief is that his father the

Respondent No.2 herein did not make his elder brother Respondent No.3 as

the Respondent in the said maintenance petition before the Tribunal and,

thus, an order of maintenance has been passed only qua the Petitioner and

not the elder brother. Learned counsel for the Petitioner contends that the

Petitioner is a driver by profession and earns Rs. 4,000/- per month. The

Respondent No.2 is biased towards Respondent No.3 and because of his

affection towards Respondent No.3, Respondent No. 2 & 3 are living

together.

2. According to him the Petitioner alone is not liable to maintain

Respondent No.2, his father and Respondent No.3 is also legally bound to

share the said responsibility. The Petitioner was given some portion of the

property to live by the mother during her life-time who started living along

with his family over there by constructing two rooms over the said plot.

This has become the bone of contention and Respondent No.2 on the

instigation of Respondent No.3 harasses the Petitioner. The income of

Respondent No.3 is more than 20,000/- per month from all sources whereas

that of the Petitioner is only Rs. 4,000/- and he has no other source of

income except the salary. The Learned Tribunal has directed the Petitioner

to pay Rs. 2000/- per month to the Respondent No.2 and thus the Petitioner

and his family have no means to survive. It is thus prayed that the impugned

order be quashed.

3. Learned counsel for the Respondent Nos.2 & 3 on the other hand

contends that the Respondent No.3 has shifted to Faridabad and is living

over there for the last 15 years. He has no concern with the family. The

father i.e. Respondent No.2 is living separately in the property owned by

him which is his self-acquired property. The Respondent No.3 despite living

in Faridabad is sending regular help and maintenance to Respondent No.2

and thus he has no grievance against Respondent No.3. It is the Petitioner

who was not paying any maintenance to the father and thus Respondent

No.2 was constrained to file an application before the Learned Tribunal.

Hence there is no merit in the present petition and the same be dismissed.

4. I have heard learned counsels for the parties. In the petition filed by

the Respondent No.2 before the Learned Tribunal it was alleged that the

Petitioner and his wife are committing torture and cruelty physically,

mentally and emotionally. They want to grab the property of the

Respondent No.2 and throw him out of his own property. It was alleged that

due to illegal acts and omission of the Petitioner, the Respondent No.2 had

already disowned him from his immovable and movable properties by

publishing notice through his advocate in daily news paper ―Punjab Kesri‖.

Respondent No.2 had lodged several complaint against the Petitioner with

Police Station Sangam Vihar, New Delhi for beating, quarrelling and threat

to kill. Respondent No.2 also made a representation to the Office of Joint

Commissioner, Delhi Police H.Q. and DCP South Delhi, Hauz khas seeking

protection from the Petitioner. Respondent No.2 has alleged that he was

shocked and surprised to see that on the death of his wife the Petitioner did

not touch the dead body and refused to extend any help in cremation. The

Petitioner went away from the dead body saying that he had no concern with

the ―Budhia‖. Respondent No.2 submitted that being a very old man and

having no person to prepare food for him, to wash clothes for him and take

him to the Doctor in case of his illness inter-alia prayed for directions to the

Petitioner to vacate and hand-over the peaceful possession of the property

bearing No. E-499 and E-492, Tigri Colony, New Delhi, pass an order of

maintenance against Petitioner directing him to pay a sum of Rs.5,000/- per

month and take cognizance of the offences under Section 24 & 25 of the

Act.

5. On the said application, the Tribunal after hearing both the parties and

taking on record written submissions vide order dated 15 th March, 2010

directed the Petitioner to extend monthly financial support of Rs.2,000/- per

month for the upkeep and maintenance of Respondent No.2; the Petitioner,

his wife and son to maintain peace and cordiality and SHO, P.S. Sangam

Vihar was directed to keep vigil so that the protection of the senior citizen is

ensured. This order of the learned Tribunal is impugned in the present

petition.

6. The only issue raised for consideration in the present petition is

whether an aggrieved person can file a petition for maintenance under

Section 5 of the Act selectively against some or any of the children. At this

stage it would be appropriate to advert to the relevant provisions of the Act.

"2. Definitions : In this Act, unless the context otherwise requires,--

(a) ―children‖ includes son, daughter, grandson and grand- daughter but does not include a minor;

(b) ―maintenance‖ includes provision for food, clothing, residence and medical attendance and treatment;

(d) ―parent‖ means father or mother whether biological, adoptive or step father or step mother, as the case may be, whether or not the father or the mother is a senior citizen;

(g) ―relative‖ means any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death;

(h) ―senior Citizen‖ means any person being a citizen of India, who has attained the age of sixty years or above;

3. Act to have overriding effect : The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act, or in any instrument having effect by virtue of any enactment other than this Act.

4. Maintenance of parents and senior citizens : (1) A senior citizen including parent who is unable to maintain himself from his own earning or out of the property owned by him, shall be entitled to make an application under section 5 in case of--

(i) parent or grand-parent, against one or more of his children not being a minor;

(ii) a childless senior citizen, against such of his relative referred to in clause (g) of section 2.

(2) The obligation of the children or relative, as the case may be, to maintain a senior citizen extends to the needs of such citizen so that senior citizen may lead a normal life. (3) The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be, so that such parent may lead a normal life.

(4) Any person being a relative of a senior citizen and having sufficient means shall maintain such senior citizen provided he is in possession of the property of such senior citizen or he would inherit the property of such senior citizen:

Provided that where more than one relatives are entitled to inherit the property of a senior citizen, the maintenance shall be payable by such relative in the proportion in which they would inherit his property.

5. Application for Maintenance. - (1) An application for maintenance under section 4, may be made-

(a) by a senior citizen or a parent, as the case may be; or

(b) if he is incapable, by any other person or organization authorized by him; or

(c) the Tribunal may take cognizance suo motu.

Explanation.- For the purpose of this section ―organization‖ means any voluntary association registered under the Societies Registration Act, 1860 (21 of 1860), or any other law for the time being in force.