Senior Citizens Entitled To Claim Past Maintenance From Children : Kerala High Court

A Division bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas added that the lack of statutory provisions to seek maintenance retrospectively does not mean that the law restricts senior citizens from making past maintenance claims from their children. 

"If the law entitles a senior citizen in old age the claim for maintenance prospectively, it does not mean the law negates the claim for past maintenance. A man with self-respect might have resisted himself in approaching the court at first instance on a belief that his children would respect his needs. His patience and respect for the children cannot be encashed to deny his claim for past maintenance." 

The Court added that parents due to their self-respect might hesitate to approach Courts to make maintenance claims from their children. They might be hoping that their children would understand their needs and thus wait in patience. This patience shown by the parents cannot be used as a reason to deny their claim for past maintenance, the Court stated thus:

“If the law entitles a senior citizen in old age the claim for maintenance prospectively, it does not mean the law negates the claim for past maintenance. A man with self-respect might have resisted himself in approaching the court at first instance on a belief that his children would respect his needs. His patience and respect for the children cannot be encashed to deny his claim for past maintenance.”

The Court made the afore observations in an appeal made by a father, a Christian senior citizen who was seeking arrears of maintenance from his children. The maintenance claim was rejected by the Family Court on the ground that the law does not allow a Christian to get past maintenance.

Regarding claiming maintenance retrospectively, the Court found that there were no statutory provisions for seeking past maintenance. It held that under the Maintenance and Welfare of Parents and Senior Citizens Act, the maintenance can only be claimed prospectively, that is, after the date of application for maintenance. It further noted that even under Section 125 of CrPC, maintenance can be claimed by a father or mother who was unable to maintain himself or herself and such allowance shall be payable from the date of the order or from the date of the application for maintenance.

The Court observed that even without legislation, the Courts have recognised the right of senior citizens to seek maintenance, irrespective of religion. The Court referred to the decision of the Karnataka High Court in K. Kumar v. Leena (2010), to state that the lack of statutory provision under the Indian Christian Marriage Act, 1872 for granting maintenance to the wife and children was overcome by adopting the principles of equity natural justice and good conscience.

“The Karnataka High Court noting the silence in the above statutory provisions had taken the view that the court will have to strive to redress the grievances by adopting the principles of equity natural justice and good conscience (see the views of the Karnataka High Court in K. Kumar v. Leena [(2010) 0 AIR (Kar) 75].”

In the same decision, the Court had held that positive law is not a prerequisite to claim past and future maintenance. Thus, the Court observed that lack of legislation does not restrict the Court from allowing the right of the elders, irrespective of religion, to claim past maintenance and future maintenance.

On the afore findings, 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