Shibu Mathew vs District Maintenance Appellate ...
2021 Latest Caselaw 16571 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
               THE HONOURABLE MR. JUSTICE SUNIL THOMAS
    WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
                       WP(C) NO. 13693 OF 2021
PETITIONER:

          SHIBU MATHEW
          AGED 46 YEARS
          S/O. MATHEW, KALAPPURAYIL HOUSE, KUMARAMANGALAM, EAST
          KALOOR P.O, THODUPUZHA, IDUKKI DISTRICT, PIN-685608

          BY ADV JAISON JOSEPH



RESPONDENTS:

    1     DISTRICT MAINTENANCE APPELLATE TRIBUNAL
          OFFICE OF DISTRICT COLLECTOR, IDUKKI, PAINAVU P.O,
          KUYILMALA, PIN-685 603

    2     MAINTENANCE TRIBUNAL,
          REVENUE DIVISIONAL OFFICE, IDUKKI, PAINAVU, PIN-685 603

    3     ROSILY MATHEW,
          AGED 71 YEARS
          W/O. MATHEW, KALAPURAYIL HOUSE, KUMARAMANGALAM, EAST
          KALOOR P.O, THODUPUZHA, IDUKKI-685 608

          Y ADVS.
          B.S.SWATHI KUMAR
          ANITHA RAVINDRAN
          HARISANKAR N UNNI
          SARANGADHARAN P.
          REMYA MURALI



OTHER PRESENT:

          SR GP BIMAL K.NATH


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.13693/2021                      2



                                      JUDGMENT

Petitioner herein is the son of the 3 rd respondent. The 3rd respondent

filed an application before the Tribunal constituted under the Maintenance and

Welfare of Parents and Senior Citizens Act seeking reliefs under the Act.

Grievance of the third respondent mother is that, petitioner herein did not maintain

her, though she was suffering from various ailments. She is the owner of an item of

property with a residential building therein. Petitioner had availed loan for a sum

of Rs. One Crore for his agricultural/business purposes mortgaging the above

property which was defaulted and liabilities are in existence. Another item of

property was given to the petitioner which he had sold. Thereafter,due to the

harassment of the petitioner, the mother shifted her residence and started living

with her daughter.

2. After giving an opportunity of being heard to both sides and after recording

the statement of both sides, the Tribunal by Ext.P1 order directed the petitioner to

vacate the house within a period of six months to enable the mother to reside in the

house and exercise her complete right over the property.

3. The above order was challenged by the mother before the Maintenance

Appellate Tribunal contending that she was entitled for maintenance at the rate of

Rs.10,000/- per month. After giving notice to both sides and after hearing both

sides, the appellate court reiterated the order of the Tribunal, without granting any

relief of maintenance. It was brought to my notice that at para 5, it is recorded by

the appellate authority that the petitioner had undertaken to vacate the house

within three months. Aggrieved by this order, the petitioner has approached this

court.

4. Heard both sides and examined the records.

5. There is no dispute that the relationship between the parties is strained.

The mother had filed O.S.No.185/2019 arraying the petitioner herein as defendant

and sought decree of permanent prohibitory injunction restraining the son from

trespassing into plaint A and B schedule properties or making any obstruction in

plaint A & B properties or taking usufructs from these properties. Petitioner

remained ex parte and Ext.R3(a) decree was passed. It was also brought to the

notice of both the courts that the mother had moved the SHO, Thodupuzha with a

complaint that she was assaulted by the son. Ext.R3(b) is the Accident Register-

cum-wound certificate issued by the doctor who had examined her. She was seen

by the doctor on 16/7/2021 at 5.50 p.m.. She was allegedly assaulted by her son

and daughter-in-law on 15/7/2021 at 12 .p.m. Though physical injuries were seen,

she was discharged after initial treatment. On the other hand, the petitioner herein

contended that the mother had assaulted the wife of the petitioner and the

petitioner produced her treatment certificate as Ext.P4. It was stated therein that

the wife of the petitioner went to the hospital on 15/7/2021 alleging that she was

assaulted. She did not saw any extraneous physical injuries. This clearly shows

the strained relationship between two. It is further seen that his mother had moved

this court against son in W.P.(C) No.15581/2021 alleging that the son and his wife

are threatening her life. An interim order was granted by this Court by order dated

4/8/2021 directing the 2nd respondent SHO of the concerned police station to

ensure that no physical harm was caused to the mother by son and the wife. The

above materials clearly show the strained relationship between two.

6. Though the learned counsel for the petitioner vehemently sought for

mediation and contended that there was a further chance of settlement of dispute

even if mediation is adopted, I am not inclined to accept it. This is for the precise

reason that the conciliation was not seen attempted or at least records do not

indicate such an attempt and that the petitioner seems to have not raised such

contention at any point of time till today . For the first time, such a contention was

set up only at the time of reply when he realised that the entire materials are

against him. No offer was made even at the time of pendency of the case before

the courts below or even in the writ petition, petitioner has not raised any ground

that the Tribunal did not attempt for mediation. In the above scenario, I ruled out

the possibility of settlement between the parties through mediation.

7. Coming to the merits of the case, it is evident that the property including

the house belongs to the mother. Mother is admittedly residing with her daughter

and the house is found to be now occupied by the petitioner and his family.

Definitely, the mother is entitled to reside in the house, since it absolutely belongs

to her. In this scenario, the finding arrived at by both the authorities below on facts

and the order directing the petitioner herein to vacate the house within a specified

time is only to be sustained. Before the appellate authority, petitioner sought only

three months time which he did not obey. Having evaluated the entire facts, I find

no merits in the original petition, which is liable to be dismissed. I do so.

In the result, the writ petition is dismissed confirming Ext.P1 and Ext.P2

order.

Sd/-

SUNIL THOMAS

Judge

dpk

APPENDIX OF WP(C) 13693/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE PHOTOCOPY OF THE ORDER DATED 18.01.2021 ISSUED BY THE RESPONDENT NO.1.

Exhibit P2 THE TRUE COPY OF THE ORDER DATED 05.03.2021 ISSUED BY THE RESPONDENT NO.2.

Exhibit P3 TRUE COPY OF THE PLAINT IN O.S. NO. 185/2019 ON THE FILE OF HON'BLE MUNSIFF'S COURT, THODUPUZHA.

EXT.P4: COPY OF THE MEDICAL CERTIFICATE DATED 3/8/2021 ISSUED FROM THE ST.MARY'S HEALTH CARE PRIVTE LTD. ST. MARY'S HOSPITAL, THODUPUZHA

EXT.R3(A): COPY FO HE DECREE DATED 17/3/2020 OF THE MUNSIFF COURT, THODUPUZHA IN OS NO. 185/2019.

EXT.R3(B): COPY OF THE WOUND CERTIFICATE ISSUED BY THE MEDICAL OFFICER, THODUPUZHA DATED 16/7/2021

EXT.R3(C): COPY OF THE PETITION BEFORE STATION HOUSE OFFICER, THODUPUZHA POLICE STATION DATED 8/6/2021.