Senior Citizen's Inability To Maintain Himself Is A Jurisdictional Prerequisite, Not Every Family Dispute Attracts Maintenance Act: Bombay High Court
Sanchayita Lahkar
The High Court of Bombay, Single Bench of Justice Somasekhar Sundaresan, recently quashed a Maintenance Tribunal's order directing two sons to vacate a residential property owned by their father, holding that not every conflict between a senior citizen and his children attracts the remedial jurisdiction of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The Court found that the foundational requirement under the Act — that a senior citizen must demonstrate an inability to maintain himself from his own earnings or property — had not been established, and in fact the Tribunal itself had returned a finding against granting maintenance to the father. The dispute arose after the father, a retired municipal employee drawing a pension, sought eviction of his sons from a slum unit in Malad, Mumbai that stood in his name, while residing elsewhere himself. The Court granted the father liberty to file a fresh application with supporting empirical evidence.
The sons contended that the Maintenance Tribunal had itself held that the father was not entitled to maintenance under Section 4 of the Act, as he had pension income and had not established inability to maintain himself. They argued that the absence of this foundational jurisdictional fact rendered the eviction order unsustainable. They also relied on Sections 9 and 23 of the Act, submitting that no transfer subject to a maintenance condition had been pleaded.
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The father contended that maintenance under the Act included emotional needs and that he was entitled to derive income from property standing in his name. He asserted that the sons were exploiting the premises. The Tribunal had declined maintenance but directed eviction.
The Court examined the scheme of Sections 4, 5, 9 and 23 of the Act. It observed, “under Section 4, the jurisdictional fact necessary to be demonstrated is that the senior citizen should be unable to maintain himself from his own earnings and earnings out of the property owned by him.” The Court further observed, “These two elements of Section 4 do not operate in a vacuum.”
On the Tribunal’s findings, the Court recorded, “The Maintenance Tribunal has positively reached a conclusion that it would not be appropriate to grant maintenance to the Father.” It noted that the Tribunal had found that the father had not set out his income and expenses. The Court stated, “Therefore, 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… is the proven inability of the senior citizen to maintain himself.”
On the scope of Section 23, the Court stated, “Section 23 provides for a serious and drastic measure – of declaring void, a transfer of property made after the commencement of the Act.” It added, “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.”
Applying the law to the facts, the Court observed, "All of these facets, coupled with the Maintenance Tribunal positively holding that it would be inappropriate to grant maintenance, undermine the case for an intervention for vacating a residential unit that the Father is in fact not living in. The objective of directing a relative to vacate the premises to enable maintaining the emotional needs and peace expected in normal life would presuppose the family living under one roof, with the need to remove the relative to enable the senior citizen's peace. A situation where the parties have been in conflict for long and one desires the other to be removed from a property where they do not reside jointly, or worse, where neither resides (the Father alleges that even the Sons do not live there) is not a matter that would fall within the ambit and scope of remedial intervention under the Act.”
It further recorded: "Every conflict between a senior citizen and his offspring would not attract the jurisdiction of the Act. Whether the factual matrix in a given case brings out the jurisdictional facts necessary for the intervention envisaged in the Act is a question that must necessarily be answered in each case. If the answer to the same in a given case is one where the jurisdictional fact is not made out, it would necessarily follow that the absence of a jurisdictional fact would lead to the remedies under the Act not being available – of course, making it clear that other remedies available in law would, in no manner, be eroded by such finding."
The Court directed that, “the Sons have indeed made out a case for exercise of intervention by this Court in exercise of its writ jurisdiction to quash and set aside the Impugned Order, particularly in view of the jurisdictional fact having been answered against the Father, which has not been challenged.”
“Needless to say, it would always be open to all parties to initiate appropriate proceedings in an appropriate forum in accordance with law, to assert their perceived rights.” The Court recorded that the analysis in the judgment was confined to jurisdiction and stated that it “is not an expression of an opinion on merits and facts but an expression of an opinion on the exercise of jurisdiction vested in the Maintenance Tribunal, and whether it was validly exercised.”
“Liberty is granted to the Father to make a fresh application but subject to the condition that he ought to demonstrate how he fits within the ambit and scope of Section 4 and provide empirical evidence for the same. Should such an application be made with attendant evidence to support the same, the Sons shall be entitled to provide their response and evidence and meet the foundational element of whether the jurisdiction of the Act is at all available to the Father, and if available, what remedies would be appropriate in the facts of the case. With the aforesaid directions, the Petition is finally disposed of. Rule is made absolute in the aforesaid terms. No costs.”
Advocates Representing the Parties
For the Petitioners: Mr. S.C. Mangle, a/w Tanmay M. Shembavanekar, Learned Advocate
For the Respondents: Ms. Vijayalaxmi Obhan, i/b Pankaj Jadhav, Learned Advocate
Case Title: Prakash Krishna Gamare & Anr v Krishna Ganpat Gamre & Anr
Neutral Citation: 2026: BHC-AS:7137
Case Number: Writ Petition No. 5932 of 2024
Bench: Justice Somasekhar Sundaresan
