Bombay High Court quashes eviction order against sons, says father must prove ‘inability to maintain himself’

“The impugned order sets out to focus solely on the entitlement of the father in his capacity as the senior citizen under Section 4 of the Act, but loses sight of the fact that the jurisdictional fact necessary for such entitlement, and for the remedy of enforcement of such entitlement to be granted, is the proven inability of the senior citizen to maintain himself,” the Bombay High Court observed in an order dated February 9.

Background

• On February 2, 2024, the petitioners (sons) were directed by the maintenance tribunal under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, to vacate the premises owned by their father, which they occupied.
• Feeling aggrieved by the eviction order, the sons approached the Bombay High Court, contending that the jurisdiction of the Act would be attracted when a senior citizen is unable to maintain himself.
• It was further submitted that their father was living on different premises and that there was nothing to indicate that he would need to live on the premises from which eviction of the sons had been directed.

What were the court’s observations?

• Section 4(1) of the Act creates an entitlement in a senior citizen to make an application for maintenance under Section 5 of the Act. Section 4(2) creates an obligation on the offspring of the senior citizen to maintain the senior citizen parent by providing for the needs to lead a normal life.
• These two elements of Section 4 do not operate in a vacuum. Such entitlement and such obligation would apply where the senior citizen makes out a case of inability to maintain himself out of his earnings and earnings from his property.
• The maintenance tribunal positively reached a conclusion that it would not be appropriate to grant maintenance to the father who has an income from a pension.
• The tribunal pointed out that the father had not set out his expenses and needs for maintaining a normal life. The income from pension is also not set out.
• Therefore, when the tribunal has positively stated that there is a need to take a holistic reading of Section 4, Section 5 and Section 23 (transfer of property to be void in certain circumstances), it ought to have considered that in its own analysis, it had returned a finding that the father is not entitled to be maintained.
• By necessary implication, the jurisdictional fact for falling within the ambit of Section 4 is a requirement to be met for purposes of Section 23. Therefore, each and every case of conflict between a senior citizen and his offspring would not be covered by the remedial jurisdiction of the Act.
• It would be necessary for the parties to fall within the ambit and scope of the legislative intent and coverage of the Act, and with it, comes the necessary ingredient of demonstrating the inability to maintain oneself.
• When one applies the above analysis to the facts of the case, unmistakably, the maintenance tribunal has returned a finding that it would not be appropriate to grant maintenance to the father.
• Indeed, one can take a view that the needs for a normal life are not just financial needs but also emotional needs, but that would be a declaration of the law in aid of a factual matrix where there is harassment and disharmony in a shared living space, necessitating remedies.
• In this case, there is hardly any scope for analysis of whether maintenance of emotional needs is relevant inasmuch as the parties have separated and lived separately for long, and the property that the sons have been asked to vacate is not the property in which the senior citizen lives.
• The sons have indeed made out a case for intervention in exercise of its writ jurisdiction to quash and set aside the impugned order.

What is Maintenance and Welfare of Parents and Senior Citizens Act, 2007?

The maintenance and welfare of parents and senior citizens Act contains provisions for the maintenance and welfare of parents and senior citizens. It provides for establishment of old-age homes, medical support for senior citizens and measures for publicity, awareness, etc., for welfare of senior citizens.