Noxi Basheer vs The State Of Kerala
2021 Latest Caselaw 2537 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MR. JUSTICE SUNIL THOMAS

      FRIDAY, THE 22ND DAY OF JANUARY 2021 / 2ND MAGHA, 1942

                      WP(C).No.28877 OF 2020(H)


PETITIONERS:

      1        NOXI BASHEER,
               AGED 36 YEARS
               W/O.SAHEER,
               NO.67,
               AMMA BHAGYAM STREET,
               THIRUVALLUVAR NAGAR,
               THIRUVALLUVAR P.O.,
               CHENNAI DISTRICT,
               TAMIL NADU,
               PIN- 602 003.

      2        NISHA SIDDIQUE
               AGED 29 YEARS
               D/O.SAJITHA BASHEER,
               KANJIRAPARAMBIL HOUSE,
               NANDANAM TAILORING SHOP,
               NEAR THRISSUR BUS STOP,
               KOADAKARA DESOM,
               KODAKARA P.O.,
               CHALAKUDY TALUK,
               THRISSUR DISTRICT,
               PIN - 680 684.

               BY ADV. SRI.N.L.BITTO

RESPONDENTS:

      1        THE STATE OF KERALA
               REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
               REVENUE DEPARTMENT,
               GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM - 695 001.

      2        DISTRICT COLLECTOR THRISSUR
               APPELLATE TRIBUNAL
               (MAINTENANCE AND WELFARE OF PARENTS AND SENIOR
               CITIZENS ACT)
               COLLECTORATE, AYYANTHOLE P.O., THRISSUR,
               THRISSUR DISTRICT,
               PIN - 680 003.
 WP(C).No.28877 OF 2020

                                  2

       3       THE REVENUE DIVISIONAL OFFICER
               (MAINTENANCE TRIBUNAL) ,
               CIVIL STATION,
               IRINAJALAKUDA,
               THRISSUR DISTRICT - 680 703.

       4       ABDUL BASHEER
               AGED 66,
               S/O.KHADER MOIDEEN
               ANANTHAKATTUPARAMBIL HOUSE,
               KODAKARA DESOM,
               KODAKARA VILLAGE,
               CHALAKUDY TALUK,
               THRISUR DISTRICT,
               PIN - 680 684.

               R4 BY ADV. SMT.T.B.REMANI

               SR.GP K.P HARISH

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.28877 OF 2020

                                          3




                                    JUDGMENT

Dated this the 22nd day of January 2021

The petitioners are the married daughters of the

fourth respondent herein. Fourth respondent invoking

the provisions under the Maintenance and Welfare of

Parents and Senior Citizens Act,2007, moved the 3rd

respondent seeking monetary relief from the

petitioners herein.

2. It was contented by him that, he is aged,

infirm and that he has no independent source of

livelihood. Both the petitioners were educated by

him, married away to decent families and they are

well settled in their life. The wife of the fourth

respondent abandoned him and she is also not looking

after him. He is liable to be maintained by the

petitioners, it was claimed.

3. The petitioners herein appeared before the

tribunal and the first petitioner alone filed an

objection. It seems that, after appearance the

second petitioner did not participate in the WP(C).No.28877 OF 2020

proceedings thereafter. After having both Ext.P3

order was passed by the 3rd respondent. It was found

by the 3rd respondent that, the fourth respondent

herein did not have any income of his own. Though

it was also found that, the petitioners herein did

not have any independent source of income, however

considering the entire facts, maintenance at the

rate of Rs.500/- per month was liable to be paid by

each of the petitioners herein.

4. This order was challenged by the fourth

respondent, seeking an enhancement before the second

respondent. The second respondent, after giving a

reasonable opportunity of being heard to both sides,

by Ext.P4 order, enhanced the maintenance to

Rs.3000/- each. This is challenged by the

petitioners herein.

5. It is vehemently contented by the learned

counsel for the petitioners that, the third

respondent, after having arrived at a conclusion

that the petitioners had no independent source of

income, which is on record ought not have imposed WP(C).No.28877 OF 2020

liability on this. In appeal, the appellate

authority also should not have ordered enhancement

of the amount, that too, at a very high rate of

Rs.3000/- per month. It was contented that the

fourth respondent herein did not establish that, the

petitioners have their own independent source of

income. It was also pointed out that, their mother

had filed an application under the Domestic Violence

Act, alleging domestic violence against the fourth

respondent herein, which had triggered this

proceeding, initiated against the daughters by the

father. Father had abandoned them several years back

and they were not maintained by him. In fact since

child hood, they were looked after by the mother.

6. It is pertinent to note that, the 3 rd

respondent had arrived at a factual finding that the

petitioners herein did not have independent source

of income. In spite of that, the third respondent

proceeded to grand a minimum maintenance of Rs.500/-

per month. Thereafter, the appellate authority

enhanced the maintenance.

WP(C).No.28877 OF 2020

7. It is true that, there is no direct evidence

to establish that the petitioners have any

independent source of income or that they are

otherwise employed. However, that may not be a very

relevant consideration under this statute. On the

other hand, it is to be noted that, though the third

respondent had imposed maintenance on the

petitioners, that order was not challenged. In fact,

the challenge comes only when an adverse order is

passed in appeal filed at the instance of the 4th

respondent. Hence, the contention that, they are not

having an independent source of income is not

sustainable.

8. However, it is pertinent to note that, the

appellate authority had fixed maintenance at the

rate of Rs.3,000/- per month, payable by each of the

petitioners herein. Absolutely no material is

available on record, to show the basis on which the

appellate authority enhanced the amount to this

extent. Definitely the amount ordered by the

appellate authority is on the higher side. It is WP(C).No.28877 OF 2020

also clear that, the fourth respondent has not

disclosed, how he was living, after his return from

abroad.

Having considered this, I am inclined to modify

the order passed by the Court below by reducing the

amount to Rs.1,500/- (Rupees One Thousand Five

Hundred Only) payable by each of the petitioners.

This writ petition is allowed in part as above.

Sd/-

                                             SUNIL THOMAS
                                                    JUDGE




Jms                               //True Copy//   P.A to Judge
 WP(C).No.28877 OF 2020





                             APPENDIX
PETITIONERS' EXHIBITS:

EXHIBIT P1               A TRUE COPY OF THE APPLICATION FILED BY THE

4TH RESPONDENT BEFORE THE 3RD RESPONDENT DATED 4/1/2019.

EXHIBIT P2 A TRUE COPY OF THE ORDER PASSED BY THE JFCM IRINJALAKUDA IN CRL.MP 3208 OF 2018 IN MC 34 OF 2018 DATED 26/6/2018.

EXHIBIT P3 A TRUE COPY OF THE AWARD PASSED BY THE MAINTENANCE TRIBUNAL AS C2-102/19/KDIS DATED 6/3/2019.

EXHIBIT P4 A TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT APPELLATE TRIBUNAL THRISSUR DATED 29/9/2020.

//True Copy// P.A to Judge