The Kerala High Court recently while noting that there is no provision under the Indian Christian Marriage Act, 1872 to cast a duty on the children to pay maintenance to the father in his old age, quoted the Bible to highlight the necessity. The petition challenged an impugned order of the Family Court, which had denied an 80-year-old Christian father to seek arrears of maintenance from his children, on the ground that no law prescribes a Christian to be entitled to past maintenance. It is also to be noted that the Act is silent on the grant of maintenance to the wife and children.

Interestingly, the bench initially thought that the family court was right as there were no statutory provisions prescribing the same, however, upon probing many laws and principles to understand the claim for maintenance, observed that to claim past maintenance positive law is not a prerequisite.

A bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas observed, “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 social order that gives rise to the legal order in this country carefully narrates the traditional practice. 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”.

Advocate Alex.M.Scaria appeared for the petitioner, and Advocate P. Venugopal appeared for the respondents.

It is pertinent to note that under the Maintenance and Welfare of Parents and Senior Citizens Act, the maintenance can only be claimed prospectively after the date of application for maintenance, which is in pari materia with the provision under Section 125 of the Criminal Procedure Code.

The Holy Bible quoted in the judgment reads:

“Honor your father and mother” (this is the first commandment with a promise), “that it may go well with you and that you may live long in the land.[ Ephesians 6:2-3]

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 bench also cited Article 25 of the Universal Declaration of Human Rights. It further referred to Article 41 of the Indian Constitution, stating that one may think that it is the duty of the State to provide measures to secure the needs of senior citizens during their old age, however, ‘we cannot ignore the principles in a social order creating an obligation on the children to maintain their parents during old age’.

While noting the importance, the bench further observed, “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...”.

The Court while making observations in the matter, relied upon the Karnataka High Court’s views in K. Kumar v. Leena (2010) 0 AIR (Kar) 75, where noting the absence of such 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.

The bench thus while setting aside the impugned order, remanded back the matter to the Family Court for fresh consideration on merits. It further directed the parties to appear before the Family Court on September 12, 2023.

Cause Title: Chandi Samuval v. Saimon Samuval [Neutral Citation: 2023:KER:52070]

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Justice A. Muhamed MustaqueJustice Sophy Thomas

Agatha Shukla