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Pramod Ranjankar vs Arunashankar 2 Wps/4633/2018 S. … on 18 July, 2018

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AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CRMP No. 600 of 2018

1. Pramod Ranjankar S/o Dharmi Mohankar Aged About 87 Years R/o
Block 1-D, Sadak 8, Sector-9, Bhilai, Tahsil District Durg
Chhattisgarh.

2. Smt. Kshipra W/o Pramod Rajankar Aged About 77 Years R/o Block
1-D, Sadak 8, Sector-9, Bhilai, Tahsil District Durg Chhattisgarh —
Petitioners

Versus

1. Arunashankar S/o Pramod Rajankar Aged About 37 Years R/o Block
1-D, Sadak 8, Sector-9, Bhilai, Tahsil District Durg Chhattisgarh,

2. Smt. Rinkukar W/o Shri Arunashankar, R/o Block 1-D, Sadak 8,
Sector-9, Bhilai, Tahsil and District Durg Chhattisgarh.

3. State of Chhattisgarh through the Police Station Bhilai Nagar, Tahsil
District Durg Chhattisgarh. — Respondents

For the Petitioners : Mr. T. K. Jha, Advocate.
For the Respondents 1 2 : Mr. Rahul Tamaskar, Advocate
For the State/R-2 : Mr. Sangharsh Pandey

Hon’ble Shri Justice Goutam Bhaduri

C.A.V. ORDER

(Reserved on 17-05-2018)

(Pronounced on 18-07-2018)

1. The jurisdiction of this Court under Section 482 of Cr.P.C.,

1973 has been sought to be invoked by the petitioners who

are father and mother of respondent No.1 and father-in-law

and mother-in-law of respondent No.2. The petitioners are

stated to be aged about 89 years and 77 years. The order

under challenge is dated 28.2.2018 passed in Criminal

Revision No.1/2018 by the IVth Additional Sessions Judge,
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Durg whereby the order passed by the Judicial Magistrate

First Class, Durg, in Criminal Case No.1382/2017 dated

06.10.2017 is confirmed.

2. The brief facts of the case are that the petitioners who are

apparently Senior Citizens, aged about 89 years and 77

years had moved an application u/s 24 of The Maintenance

and Welfare of the Parents and Senior Citizens Act, 2007

(hereinafter referred to as the Act of 2007) against their son

and daughter-in-law and complained before the police that

they are subjected to torture, cruelty and misbehavior. The

first informtion report shows that the complaint was made

stating that after retirement they were living in the house

owned by Petitioner no.1 along-with his son and daughter in

law who is Ex-Serviceman and is presently working in Indian

Oil Corporation and the daughter-in-law who is working as

teacher in a school. It was complained that the daughter-in-

law used to conduct tuition classes in the house and had

forcibly encroached upon their plot and house. It is further

complained that for the last 4-5 years they were isolated and

driven to a corner of the house and further they were made

to live in captivity in their own house. It was further

complained that they have endured the violent pathetic

atmosphere created by the respondents and they had also

sustained utmost grief, pain and suffering. It was also

complained that they were treated as dead alive and they

were subjected to torture, ill-treatment and misbehavior/

manhandling committed by the son and daughter in law and

eventually claimed for help.

3. The JMFC took the cognizance on the basis of said complaint
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and found that prima facie case is made out u/s 24 of the

Act, 2007. The notices were issued to respondent 1 2 and

while such proceeding was pending an application was filed

by Petitioner No.1 seeking interim relief for eviction from the

house. It was prayed that virtually they have been ousted

from the house owned by them and though the report was

made to the police for restoring possession but it has failed.

It was categorically stated that disposal of pending criminal

case which is registered may take some time, therefore, the

son and daughter should be ousted from the house to protect

the petitioners. The said application was dismissed by the

JMFC on the ground that the eviction so prayed for is of civil

nature, therefore, the application cannot be entertained and

the same was dismissed.

4. The said order of dismissal to get the house vacated was

challenged in Criminal Revision before the IVth Addl. District

and Sessions Judge who by the impugned order dated

20.04.2018 dismissed the revision by holding that the

ejectment of like nature is not maintainable under the

provisions of the Act, 2007. It was also held that when the

petition filed u/s 24 of the Act is pending, ejectment cannot

be passed by the Court.

5. Learned counsel for the petitioners would submit that the

Courts below failed to understand the spirit and object of the

Act of 2007 wherein the implicit protection is provided for the

senior citizen. It is further submitted that the senior citizens

cannot be resorted to different courts when the Act, 2007

itself takes care of the rights of the senior citizens. He,

therefore, submitted that the order passed by the courts
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below are liable to be set aside.

6. Per contra, learned counsel for respondents 1 2 submits

that the entire dispute as has been projected is at the behest

of the sister-in-law and a dispute in between respondent

No.2 i.e., daughter-in-law of the petitioners and the daughter

of petitioners. It is stated that Annexure R-2 would show that

physical violence, scuffle took place in between respondent

no.2 and her sister-in-law as per Annexure R-2 and it is at the

behest of sister-in-law, the respondents are sought to be

ousted. It is further stated that the orders of the Courts

below are well merited and the Court trying the offence u/s

24 of the Act, 2007 is denuded the power of ejectment. It is

further stated that the respondents are ready and willing to

shift but some time may be provided.

7. Perused the order of the court below and the records. The

record would show that complaint u/s 24 was registered

against respondents 1 2. The affidavit has been filed by

petitioner No.1, aged about 89 years. He has stated that his

son is earning more than Rs.60,000/- per month and

respondent No.2 is a teacher and she uses to take tuition

classes in the premises wherein she is earning more than

Rs.20,000 – 25,000/- per month. It is stated that despite

huge earning by respondents 1 2 the petitioners are being

mentally and physically tortured and the respondents have

forcibly taken possession of the house and no payments of

electricity bills and the water cess are made. It is stated that

despite the fact that they are staying together, they have to

suffer from starvation and have to get the food from the

hotel and are subjected to abuses and physical manhandling.
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It is further submitted that if someone tries to help the

petitioners, they are also being abused. It is further stated

that the house was purchased by the petitioners after his

retirement and at this stage, they became old and infirm

there is all apprehension of life and liberty, therefore,

eventually when they were manhandled, a report was made

to the police but the police has filed a case under section 24

of the Maintenance Act.

8. While this petition was preferred before this Court, the State/

District Magistrate was directed to call for a report as to

whether the object and provisions of section 22 of the Act,

2007 read with rule 19 of Chhattisgarh Mata Pita Avam

Varisth Nagriko Ka Bharan Poshan Tatha Kalyan Niyam, 2009

are being carried out or not. As against this, the statements

of the petitioners were recorded by the District Magistrate.

The Statements would show that similar averments have

been made that both the respondents have taken over the

entire possession of the house which is owned by the

petitioners and the petitioners have been confined to live in

single room. They further stated that the son and daughter-

in-law do not provide them food, at some point of time they

stopped water supply and at someone point of time, the

electricity was also shut down and they had to get food from

out side. He further stated that the son comes to the room

and takes away the food instead they are being called as

thief. It is stated that the petitioners and her wife used to

survive on amount of interest which accrues on the lump-

sum amount deposited in the bank after his retirement and

except the house, no property exist in their name. It is
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further stated that the son had attacked him in the year

2017 to kill him for which the report was made. It is stated

that the parents are often subjected to continuous threats

and physical manhandling by respondents 1 2. It is further

stated that he wants to get the house vacated from the

possession of respondents.

9. During the course of hearing, respondents 1 2 were called

in person as also the petitioners and came to the Court. It is

not in dispute that the respondents are residing in the said

house which is exclusively belonged to the petitioner. The

petitioners before this Court also again requested to get the

house vacated for their survival as no other source of income

exists. Taking into consideration the statements of physical

violence of parents with abuses the gentle art of forgetting

cannot be applied. The facts cannot be continued along the

lines of holding a status quo. The object of the Act of 2007 is

to institutionalize suitable mechanism for protection of life

and property of senior citizens. The relevant portion of the

statement of objects and reasons of the Act, 2007 is

reproduced herein below:

STATEMENTS OF OBJECTS AND REASONS

Traditional norms and values of the Indian
Society laid stress on providing care for the elderly.
However, due to withering of the joint family system, a
large number of elderly are not being looked after by
their family. Consequently, many older persons,
particularly widowed women are now forced to spend
their twilight years all alone and are exposed to
emotional neglect and to lack of physical and financial
support. This clearly reveals that ageing has become a
major social challenge and there is a need to give more
attention to the care and protection for the older persons.

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Though the parents can claim maintenance under the
Code of Criminal Procedure, 1973, the procedure is both
time-consuming as well as expensive. Hence, there is a
need to have simple, inexpensive and speedy provisions
to claim maintenance for parents.

2. The Bill proposes to cast an obligation on the
persons who inherit the property of their aged relatives
to maintain such aged relatives and also proposes to
make provisions for setting up old-age homes for
providing maintenance to the indigent older persons.

The Bill further proposes to provide better
medical facilities to the senior citizens and provisions for
protection of their life and property.

3. The Bill, therefore, proposes to provide for :

(a) appropriate mechanism to be set up to
provide need-based maintenance to the parents and
senior citizens;

(b) providing better medical facilities to senior
citizens;

(c) for institutionalization of a suitable
mechanism for protection of life and property of older
persons;

(d) setting up of old-age homes in every district.

4. The bill seeks to achieve the above objectives.

10. By virtue of section 3 of the Act, 2007, it will have an over

riding effect notwithstanding anything inconsistent therewith

contained in any other statute. In the instant case,

repeatedly the petitioner has stated that he is subjected to

abuse in between torture and inhuman ill-treatment in his

own house and was driven to a corner of one room of the

house thereby inundated with vulgar insult and humiliation.

The ownership of the house exclusively belonged to the

petitioner has not been disputed during the course of

argument. This fact cannot be ignored that since the acts of
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respondents complained by the petitioners are prima facie

made out, therefore, the Magistrate has registered the case

u/s 24 of the Act of 2007. To protect the property of a

senior citizen the provisions of section 23 of the Act 2017 are

in the statute book of Act of 2007 whereas section 24 is

meant for protection of senior citizen in person that is from

exposure and abandonment.

11. The relevant sections 23 24 of the Maintenance and

Welfare of Parents and Senior Citizens Act, 2007 are

reproduced herein:

23. Transfer of property to be void in
certain circumstances.– (1) Where any senior
citizen who, after the commencement of this Act,
has transferred by way of gift or otherwise, his
property, subject to the condition that the
transferee shall provide the basic amenities and
basic physical needs to the transferor and such
transferee refuses or fails to provide such
amenities and physical needs, the said transfer of
property shall be deemed to have been made by
fraud or coercion or under undue influence and
shall at the option of the transferor be declared
void by the Tribunal.

(2) Where any senior citizen has a right to
receive maintenance out of an estate and such
estate or part thereof is transferred, the right to
receive maintenance may be enforced against the
transferee if the transferee has notice of the right,
or if the transfer is gratuitous, but not against the
transferee for consideration and without notice of
right.

(3) If, any senior Citizen is incapable of
enforcing the rights under sub-sections (1) and (2),
action may be taken on his behalf by any of the
organization referred to in Explanation to sub-
section (1) of section 5.

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12. Further Chapter VI of the Act, 2007 deals with offences and

lays down procedure for trial thereof. Section 24 of the Act

relates to exposure and abandonment of senior citizen which

is reproduced as under :

“24. Exposure and abandonment of senior
citizen.– Whoever, having the care or protection
of senior citizen, leaves such senior citizen in any
place with the intention of wholly abandoning such
senior citizen, shall be punishable with
imprisonment of either description for a term which
may extend to three months or fine which may
extend to five thousand rupees or with both.”

Reading of section 24 would show that it started with

opening words “the exposure and abandonment of senior

citizen” meaning thereby the entire object is to protect the

senior citizen.

13. The JMFC in this case on a report made by the petitioners

registered a case u/s 24 of the Act. The statements have

been recorded before the District Magistrate in pursuance of

the direction given by this Court and the District Magistrate

came out with categorical finding that the petitioners are

being physically tortured and confined to single room in the

house owned by Petitioner no.1, which resulted into loss of

income as the property cannot be used for his own purpose

and it is being used by respondents 1 2. it is stated that

he is completely depending on the interest amount which

accrues on the deposits made in the Bank which he received

after his retirement.

14. Having regard to the object of the Act and the intention of

the legislature, there is no reason or justification or indication
10

to restrict the meaning and scope of the word protection. A

combined reading of sections 23 24 the Act would show

that even if the property has been transferred by way of a

gift or otherwise to the transferee, in lieu of such transfer of

property the transferee has to provide basic amenities and

physical needs to the transferor and if the transferee refuses

or fails to provide such amenities and needs, the said

transfer can be annulled. Like wise protection in person also

takes within its sweep when the senior citizen is abandoned.

Therefore, if the provisions are examined in the backdrop of

the object, the protection and concept of possession cannot

be narrowed down and alienated.

15. It is true that there is no express provision in the Code of

Criminal Procedure which authorises a magistrate to make

an interim order directing ejectment of respondents pending

disposal of an application for maintenance. The Act does

not also expressly prohibit the making of such an order. The

question is whether such a power can be implied to be

vested in a magistrate having regard to the nature of the

proceeding under Sections 23 24 of the Act 2007 and other

cognate provisions found in Chapter VI of the Act of 2007.

Reading of section 24 of the Act shows that it gives

protection to the senior citizens in any place if they are

abandoned and the said act is punishable with imprisonment

of 3 months or fine thereby the person who intentionally

abandons a senior citizen is liable for punishment. Reading

of the above provision shows that it is intended to provide for

a preventive remedy for the safety of senior citizen which

can be granted quickly.

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16. The point for consideration is whether the magistrate can

also make such an interim order or not. The jurisdiction of

the magistrate in Chapter VI of the Act 2008 is not strictly a

criminal jurisdiction. It contains a summary remedy for

securing the safety of the parents. The Act, therefore,

provides a quick remedy to protect the senior citizen to tide

over immediate difficulties. These provisions are intended to

fulfill a social purpose. The object is to compel a man to

perform the moral obligation which he owes to his parents

and give support to the shivering hands. Likewise the

children were protected during their childhood to become a

competent adult. The object of the Act, 2007 calls for a

simple, speedy but limited relief and seeks to ensure that the

parents are not shelved as a commodity or a good under the

scrap/heap of society and allow the children to sail on their

immorality for their own subsistence. The jurisdiction

conferred by this section on the Magistrate is more in nature

of a preventive, rather than a remedial jurisdiction. In view of

this, it is the duty of the Magistrate to interpret the

provisions of Chapter VI of the Act 2007 in such a way that

the construction placed on them would not defeat the very

object of the legislation. In absence of any express

prohibition, it is appropriate to construe the provisions in

chapter VI as conferring an implied power on the magistrate

to direct the person against whom an application is made

under Section 24 of the Act not to harm the senior citizen

also.

17. In the instant case, if the facts are looked into from other

angle, the two senior citizens aged about 89 years and 77
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years have complained of physical assault and torture by the

son and daughter-in-law by not providing them food,

medicine and also confining them to a corner of their own

house. It is not expected that a senior citizen will run from

pillar to post and the assault and abuses would be allowed

to be continued in the same house till the petition u/s 24 is

decided on merits. One can foresee the impact that when a

senior citizen who is subjected to torture occupying the same

house and is confined in a room and are assaulted daily by

the respondent son and daughter-in-law then strict measures

have to be followed to arrest such humiliation and assault

and the Court cannot follow the proposition of “wait and

watch” by sitting on the fences.

18. The Delhi High Court in case of Sunny Paul and another

v. State NCT of Delhi and others reported in

LAWS(DLH)-2017-3-3 decided on March 15,2017 while

interpreting the right over the immoveable property has

observed that direction of eviction is a necessary

consequential relief or a corollary to which a senior citizen

would be entitled upon a transfer being declared void

thereby the right over the immoveable property, possession

and ejectment thereof has been recognized which are

incidental and ancillary. The Court has further held and

quoted the text of Maxwell on Interpretation of statutes (11th

edn.,) “where an act confers a jurisdiction, it impliedly also

grants the power of doing all such acts, or employing such

means, as are essentially necessary to its execution.”

19. Further more, the Supreme Court in case of (1985) 4 SCC

337 – Savitri, w/o Govind Singh Rawat v. Govind
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Singh Rawat has interpreted the power of the Court in a

case of interim maintenance and held that every court must

be deemed to possess by necessary intendment all such

powers as are necessary to make its orders effective. In

para 6 of the said judgment, it was further held as under :

“6. …………… This principle is embodied in
the maxim “ubi aliquid conceditur, conceditur et id
sine quo res ipsa esse non potest” (Where anything is
conceded, there is conceded also anything without
which the thing itself cannot exist). [Vide Earl Jowitts
Dictionary of English Law, 1959 Edn., P. 1797.]
Whenever anything is required to be done by law and
it is found impossible to do that thing unless
something not authorized in express terms be also
done then that something else will be supplied by
necessary intendment. Such a construction though it
may not always be admissible in the present case,
however, would advance the object of the legislation
under consideration. A contrary view is likely to
result in grave hardship to the applicant, who may
have no means to subsist until the final order is
passed.”

20. Therefore interpreting in the line of the aforesaid facts it is

not expected that after the damage is done to a senior

citizen who is occupying some house with his son, the law

will come to the rescue of the petitioners through the route

of IPC. Therefore, the anxiety to stop the right of the abuse of

senior citizen is to be made effective as otherwise it would

be a symbolic collapse of the legal system by not responding

to the request or by adhering to the dummy mode by Courts.

21. Under the facts and circumstances of the case, it is directed

that the interim application filed by the petitioners seeking

eviction of the respondents is allowed. The District
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Magistrate is directed to evict the respondents within a

further period of 30 days from the date of receipt of the

order. Learned State Counsel is directed to communicate

this order to the District Magistrate forthwith and thereafter

the District Magistrate shall report the compliance of the

order to the Registry of this court.

With the above observations/direction, this petition

stands allowed.

Sd/-

GOUTAM BHADURI
JUDGE

Rao

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