Haryana High Court · 2025

as of t he said Act . We have t o avoid t his. The only way t o avoid it is t o press int o service bot h t he principles of purposive The Parliam ent ary discussions on t he ot her provisions of t he said Act do not convey any int ent by which t here is any int ent of t he Parliam ent t o creat e such a different iat ion. There is no point in repeat ing what we have said, but suffice t o say t hat if not hing else, at least t o give a m eaning t o t he first proviso of Sect ion 16( 1) of t he said Act , t he only int erpret at ion can be t hat t he right of appeal is conferred on bot h t he sides. I t is a case of an accident al om ission and not of conscious exclusion. Thus, t o give a com plet e effect ive m eaning t o t he st at ut ory provision, we have t o read t he words int o it , t he course of act ion even suggest ed in N. Kannadasan's case ( supra) in para 55. How can ot herwise t he proviso t o sub sect ion ( 1) be reconciled wit h sub sect ion it self. I n fact , t here would be no need of t he proviso which would be m ade ot iose and redundant . I t is salut ary role of const ruct ion of t he st at ut e t hat no provision should be m ade superfluous. There t he Act denying t he right of appeal t o t he ot her part ies. The ot her provisions of t he Act and various sub sect ions discussed aforesaid would show t hat on t he cont rary an appeal from bot h sides is envisaged. Only except ion t o t his course of act ion is t he init ial words of sub sect ion ( 1) of Sect ion 16 of t he said Act which need t o be supplant ed t o give a m eaning t o t he int ent of t he Act , ot her provisions of t he said Act as also ot her sub sect ions of t he sam e Sect ion of t he said Act . I n fact , in Board of Muslim Wakfs Raj ast han's case ( supra) , even while caut ioning supply of casus om issus, it has been st ressed in para 29 t hat t he const ruct ion which t ends t o m ake any part of t he st at ut e m eaningless or ineffect ive m ust always be avoided and t he const ruct ion which advances t he rem edy int ended by t he st at ut e should be accept ed. This is t he only way we can have a consist ent enact m ent in t he form of whole st at ut e. is no negat ive provision

32. We are t hus of t he view t hat Sect ion 16( 1) of t he said Act is valid, but m ust be read t o provide for t he right of appeal t o any of t he affect ed part ies.”

10. He also relies upon a j udgm ent rendered by Division Bench of Hon’ble Allahabad High Court in t he case of Akhilesh Kum ar and anot her v. St at e of U.P. and ot hers, report ed in 2019, 3 AWC 2206. Paragraph nos. 8 & 9 of t he said j udgm ent relied by learned counsel for respondent are reproduced below: - “ 8. I n a sim ilar cont roversy t he Madras High Court in Balam urugan vs. Rukm ani ( C.R.P.( PD) ( MD) No. 437 of 2015 & M.P.( MD) Nos. 1 & 2 of 2015 decided on, 29 April 2015) ( Manu/ TN/ 2190/ 2015) t aken inParam j it Kum ar Saroya ( supra) has held t hat an appeal under sect ion 16 of t he Act , 2007 would be m aint ainable at t he behest of bot h t he part ies, i.e. at t he inst ance of t he aggrieved part y for t he reason t hat where t he Tribunal decides a case in favour of t he senior cit izens or parent s, t he children or dependent or relat ives against whom agreem ent wit h t he 4 t he order is passed and against whom it can be enforced under sect ion 11 of t he Act , 2007 would be t he aggrieved person and have a right t o file an appeal.

9. We find ourselves in agreem ent wit h t he view t aken by t he Punj ab and Haryana High Court in Param j it Kum ar Saroya ( supra) andBalam urugan ( supra) because if t he right of appeal is denied t o t he aggrieved part y, nam ely, child or children or relat ives t he appeal clause under t he Act , 2007 would be frust rat ed and t ant am ount t o denying t hem t he sim ilar right of appeal as provided t o anot her part y who is t he senior cit izens or parent s.”

11. Learned counsel t he respondent also relies upon a Division Bench j udgm ent dat ed

29.11.2023 of Bom bay High Court rendered in Writ Pet it ion No. 36 of 2023, Jagdish Pit am ber Pawar v. Pit am ber Pundalik Pawar. Paragraph no. 10 of t he said j udgm ent is reproduced below: - “ 10. Once it is not iced t hat t here was no debat e in t he Parliam ent while passing t he bill t ouching t his very aspect qua Sect ion 16( 1) and when it is not iced t hat t hough t here was a discussion in t he Parliam ent on t he ot her pr ovisions of t he Act but which did not reflect anyt hing in respect of Sect ion 16, we are in respect ful agreem ent wit h t he observat ions ( supra) in t he m at t er is New 40.WP.36.23.odt not hing t o dem onst rat e t hat t he provision of Sect ion 16 was draft ed designedly t o prov ide t he right of appeal only t o a senior cit izen or a par ent , it is a clear case of casus om issus which can be supplant ed by t o purposive int erpr et at ion, t o avoid t he anom alous sit uat ion. We, t herefor e, r espect fully agree wit h t he reasoning in t he m at t er of Param j it Kum ar Saroya ( supra) .” resort ing Param j it Saroya. Kum ar Ther e

12. Wit h ut m ost hum ilit y at it s com m and, t his Court it difficult t o subscribe t o t he view expressed in t he aforesaid j udgm ent s relied by learned counsel t he respondent . Right t o appeal is a creat ion of st at ut e; it exist s only when it is explicit ly provided for by law or st at ut e. I n ot her words, right t o appeal is not a nat ural or inherent right and it m ust be specifically grant ed by a law. A st at ut e grant ing t he right t o appeal can also specify t he condit ions under which an appeal can be m ade, such as t im e lim it s or t he need t o deposit cert ain am ount of m oney. I t is now well set t led t hat right t o appeal is a subst ant ive right 5 and not m erely a procedural right .

13. Appeal like review is creat ure of st at ut e. The st at ut e m ay provide lim it ed right of appeal and it m ay provide right of appeal t o one part y and not t o t he ot her; it is for t he legislat ure t o decide which part y has t o be given right t o appeal. There are st at ut es, which require t he party filing appeal t o deposit a cert ain percent age of t he disput ed am ount as pre- condit ion for ent ert aining appeal.

14. A reading of Sect ion 16( 1) of t he aforesaid Act leaves no m anner of doubt t hat it is only t he senior cit izens and parent s, who are given a right t o prefer an appeal. There is no am biguity t he provision cont ained in Sect ion 16( 1) , which deals wit h right t o appeal, which is a subst ant ive right , t herefore, reading som et hing int o Sect ion 16 wit h a view t o provide right t o appeal t o children would not be proper.

15. The Maint enance and welfare of Parent s and Senior Cit izens Act , 2007 was enact ed wit h a view t o prot ect t he int erest of parent s and senior cit izens. The st at em ent of obj ect s and reasons of t he said Act refers t o t he t radit ional norm s and values of t he I ndian societ y which laid st ress on providing care for t he elderly, but due t o t he wit hering of t he j oint fam ily syst em , a large num ber of elderly are not being looked aft er by t heir fam ily. I t is observed t hat ageing has becom e a m aj or social challenge and t here is a need t o give m ore at t ent ion t o t he care and prot ect ion of t he elderly persons. I t is perceived t hat t he procedure for claim ing m aint enance under t he Code of Crim inal 6 Procedure, 1973 t im e consum ing as well as expensive, t herefore, t he need t o have a sim ple, inexpensive and speedy provision t o claim m aint enance for t he parent s was felt .

16. From t he schem e of t he Act , it is apparent t hat it was enact ed t o provide for inst it ut ionalizat ion of a suit able m echanism for prot ect ion of life and propert y of senior cit izens. Therefore, t he legislat ure it s wisdom conferred right of appeal only t o parent s and senior cit izens and not t o t heir children, as during t heir t wilight years, parent s/ senior cit izens need speedy rem edy and t hey cannot be m ade t o run from one forum t o anot her for rem edy.

17. Hon’ble Suprem e Court in t he case of Super Casset t es I ndust ries Lt d. v. St at e of U.P. & anot her, ( 2009) 10 SCC 531 has held t hat right of appeal is not a nat ural or inherent right and it cannot be assum ed t o exist unless expressly provided for by t he st at ut e. Paragraph no. 23 of t he said j udgm ent is reproduced below: - “ 2 3 . I t is well known t hat t he right of appeal is not a nat ural or inherent right . I t cannot be assum ed t o exist unless expressly provided for by st at ut e. Being a creat ure legit im at ely rem edy of appeal m ust be of st at ut e, t raceable t o t he st at ut ory provisions. I t is t rue t hat m ere om ission or error in quot ing t he provisions would not affect t he m aint ainabilit y of appeal, if ot herwise, t he order im pugned is am enable t o appeal.”

18. Sim ilar view was expressed by Hon’ble Suprem e Court in t he case of Raj Kum ar Shivhare v. Direct orat e of Enforcem ent , ( 2010) 4 SCC 772. Paragraph nos. 19, 27 & 29 of t he said j udgm ent are reproduced below: - 7 “ 1 9 . The word “ any” in t his cont ext would m ean “ all”. We are of t his opinion in view of t he fact t hat t his sect ion confers a right of appeal on any person aggrieved. A right of appeal, it is well set t led, is a creat ure of st at ut e. I t is never an inherent right , like t hat of filing a suit . A right of filing a suit , unless it is barred by st at ut e, as it is barred here under Sect ion 34 of FEMA, is an inherent right ( see Sect ion 9 of t he Civil Procedure Code) but a right of appeal is always conferred by a st at ut e. While conferring lim it at ion or pre- deposit of penalt y or it m ay lim it t he area of appeal t o quest ions of law or som et im e t o subst ant ial quest ions of law. Whenever such lim it at ions are im posed, t hey are t o be st rict ly followed. But in a case where t here is no lim it at ion on t he nat ure of order or decision t o be appealed against , as in t his case, t he right of appeal cannot be furt her curt ailed by t his Court on t he basis of an int erpret at ive exercise. right a st at ut e m ay rest rict ions, im pose 2 7 . I n a case where right of appeal is lim it ed only from a final order or j udgm ent and not from int erlocut ory order, t he st at ut e creat ing such right m akes it clear ( see Sect ion 19 of t he Fam ily Court s Act , 1984) which is set out below: “ 19. Appeal.—( 1) Save as provided in sub- sect ion ( 2) and not wit hst anding anyt hing cont ained in t he Code of Civil Procedure, 1908 ( 5 of 1908) or in t he Code of Crim inal Procedure, 1973 ( 2 of 1974) , or in any ot her from every j udgm ent or order, not being an int erlocut ory order, of a Fam ily Court t o t he High Court bot h on fact s and on law. law, an appeal shall ( 2) No appeal shall lie from a decree or order passed by t he Fam ily Court wit h t he consent of t he part ies or from an order passed under Chapt er I X of t he Code of Crim inal Procedure, 1973 ( 2 of 1974) : Provided t hat not hing in t his sub- sect ion shall apply t o any appeal pending before a High Court or any order passed under Chapt er I X of t he Code of Crim inal Procedure, t he com m encem ent of t he Fam ily Court s ( Am endm ent ) Act , 1991. before 1974) 1973 ( 2 ( 3) Every appeal under t his sect ion shall be preferred wit hin a period of t hirt y days from t he dat e of t he j udgm ent or order of a Fam ily Court .” ( em phasis supplied) 2 9 . By referring t o t he aforesaid schem es under different st at ut es, t his Court want s t o underline t hat t he right of appeal, being always a creat ure of a st at ut e, it s nat ure, am bit and widt h has t o be det erm ined from t he st at ut e it self. When t he language of t he st at ut e regarding t he nat ure of t he order from which right of appeal has been conferred is clear, no st at ut ory int erpret at ion is warrant ed eit her t o widen or rest rict t he sam e.”

19. Since t he m achinery provided t he aforesaid Act is not m eant t o decide civil or propert y right s but t o prot ect t he right s of parent s/ senior 8 cit izens, t herefore, only t he parent s/ senior cit izens, who are at t he receiving end due t o neglect by t heir children, are given t he right t o appeal.

20. Thus, t his Court is of t he considered opinion t hat in view of t he plain language of Sect ion 16 of t he aforesaid Act , only a parent / senior cit izen can m aint ain an appeal against an order passed by Maint enance Tribunal and children or relat ive of a senior cit izen are not ent it led t o file appeal under Sect ion 16 of t he Act .

21. I n view of t he legal posit ion, as discussed above, learned Dist rict Magist rat e / Appellat e Tribunal erred in ent ert aining and deciding t he appeal filed by respondent . The im pugned order passed by Appellat e Tribunal is t hus wit hout j urisdict ion. Accordingly, t he writ pet it ion is allowed. The im pugned order dat ed

25.11.2024 passed by Dist rict Magist rat e is set aside. This j udgm ent , however, will not preclude t he respondent from approaching t he appropriat e forum , if available, in law. ________________________ M A N OJ K UM A R TI W A RI , J. Dt : 03.07.2025 Navin NAVEEN CHANDRA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3be23325146e76a0642bdf4943fb9046f487df006d a82a131bb4e4403d3c0a15, postalCode=263001, st=UTTARAKHAND, serialNumber=18167EEFB5CA8CFFD421A103819DA875643 AF56D653D095C6ED9A86DAAB21CE5, cn=NAVEEN CHANDRA 9