No Positive Law Required To Support Elder's Maintenance Claim, Irrespective Of Religion: Kerala High Court Grants Relief To Senior Citizen

The Kerala High Court last week held that a positive law is no sine qua non for granting past and future maintenance and that the right of the elder to such maintenance is recognised irrespective of their religion.

Justice A. Muhamed Mustaque and Justice Sophy Thomas observed thus:

“Even without any positive aid of law the court could have recognized the right of the elder irrespective of the religion to claim the past maintenance and future maintenance. Merely for the reason that the legislation had only provided measures for the award of prospective maintenance, that cannot result in denial of the claim for past maintenance.”

The father, a Christian senior citizen approached the Family Court seeking past maintenance. The maintenance claim was rejected on the ground that the law does not prescribe a Christian to get past maintenance. Hence, an appeal was preferred before the High Court.

The Court though initially felt that the Family Court was right in rejecting the maintenance claim because there were no Christian laws that provided that the children had to pay maintenance to the father in his old age. It also found that even under the Maintenance and Welfare of Parents and Senior Citizens Act and CrPC, the maintenance can only be claimed prospectively.

However, the Court quoted various verses from the Bible to state that it is the duty of the children to take care of their parents at their old age.

“Listen to your father who begot you, And do not despise your mother when she is old [Proverbs 23:22]”

“But if anyone does not provide for his relatives, and especially for members of his household, he has denied the faith and is worse than an unbeliever [Timothy 5:8]”

The Court referred to various sources to state that even though there was no legislation providing for past maintenance to a senior citizen belonging to Christian faith, social order creates an obligation on the children to maintain their parents during old age. The Court referred to the views of Ronald Dworkin from his books ‘Taking Rights Seriously’ and ‘Law’s Empire’ to state that judges have to interpret law with consistent moral principles that were followed in the society.

“The court cannot ignore the social rules that binds the social order in the light of the faith professed by parties, and generally based on the international instruments and professed promise declared in the Constitution. Ronald Dworkin championed the idea that the law is whatever follows on a constructive interpretation of the institutional history of the legal system”

The Court found that lack of a legislation does not mean that law negates the claim for past maintenance. It stated that sometimes a man might not approach the Court claiming maintenance due to his self-respect thinking that his children would understand his needs. The Court held that this cannot be a reason to deny his claim for past maintenance.

On the afore observations, the Court remanded the maintenance claim to the Family Court.

Case title: Chandi Samuval V Saimon Samuval

Citation: 2023 LiveLaw (Ker) 438

Case number: Mat. Appeal No. 782 OF 2022

Counsel for the petitioner: Advocates Alex M Scaria, Beas K Ponnappan, A.J.Riyas, Saritha Thomas, Alen J. Cheruvil, Sahl Abdul Kader and Sanjith Kumar R.

Counsel for the respondent: Advocate P Venugopal

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