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Sharmila vs State Of Haryana And Others on 5 February, 2018

CWP No.2330 of 2018 1

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.

CWP No.2330 of 2018
Date of Decision: 05.02.2018

Sharmila ….Petitioner

Versus

State of Haryana and others ….Respondents

BEFORE :- HON’BLE MRS. JUSTICE DAYA CHAUDHARY

Present:- Mr. Surinder Singh Duhan, Advocate
for the petitioner.

*****

DAYA CHAUDHARY, J.

The present petition has been filed under Articles 226/227 of

the Constitution of India for issuance of a writ in the nature of certiorari for

set asiding impugned order dated 10.01.2018 (Annexure P-3) passed by the

Presiding Officer-cum-Sub Divisional Magistrate, Jind, District Jind,

whereby, the petitioner has been ordered to vacate House No.3883, Urban

Estate, Jind, within a period of one month as per provisions of Section 22 of

the Maintenance and Welfare of Parents and Senior Citizens Act, 2007

(here-in-after referred to as `the Act, 2007)

Respondent no.4-Phool Kumari is mother-in-law of petitioner-

Sharmila. An application was moved by Phool Kumari under Section 22 of

the Act, 2007 before Sub Divisional Magistrate, Jind for getting House

No.3883, Urban Estate, Jind, vacated, stating therein, that being an old lady

of 77 years, she comes under the category of senior citizen. Said house was

purchased by her from her own income and the payment was made from

her retiral benefits. Reply of said application was filed by the petitioner

stating that her husband died due to Ulcer and the house, in dispute, was

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purchased from the joint Hindu account and also from the income of

deceased husband out of agriculture proceeds. Even huge amount was spent

to renovate the house from her own resources. The application filed by

respondent No.4 was allowed vide order dated 10.01.2018 and the order for

vacating the house, in dispute, within a period of one month was passed.

Said order dated 10.01.2018 has been challenged by the

petitioner by raising various grounds.

Learned counsel for the petitioner submits that the petitioner

does not fall under the definition of Children and Relative as defined under

Section 2(a) and 2(g) of the Act, 2007 being widow of son of respondent

No.4 and as such, the provisions of Act, 2007 are not applicable. Learned

counsel also submits that it is the duty of the District Magistrate to see as to

whether the life and property of the senior citizens is protected to the extent

that they are able to live with security and dignity. It is also the argument of

learned counsel for the petitioner that respondent No.4 is residing in

different house for the last more than 20 years along with her husband and

in such circumstances, it cannot be said that there is any danger to the

property of senior citizen and protection is required to save the property.

Respondent no.4 and her husband are retired government servants and they

are peacefully residing in different house. Petitioner herself is being

harassed by respondent No.4 after the death of her husband on 13.05.2016

and the petitioner is entitled for 50% share in the property left by her

husband. At the end, learned counsel for the petitioner submits that the

application moved by respondent No.4 is the misuse of process of law and

the impugned order has been passed contrary to the provisions of law.

Provisions of Act, 2007 which are not attracted in the present case.

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Notice of motion.

Notice on behalf of Caveator has been accepted by

Mr. Sanjay Kumar, Advocate, who submits that the petitioner has concealed

the material facts from the Court and the present petition is liable to be

dismissed on the ground of concealment and misrepresentation. Petitioner

(dauther-in-law) has remarried and various litigations are pending between

the parties. Even at the time of hearing of the application, the petitioner

could not produce any document to show that the house, in dispute, was

purchased by her or out of joint income.

Heard the arguments of learned counsel for the parties and have

also perused the impugned order as well as other documents available on

the file.

Facts are not disputed. The application moved by respondent

No.4 under Section 22 of the Act, 2007 was allowed vide order dated

10.01.2018 and order for vacation of house, in dispute, within a period of

one month was passed. The findings recorded by the Presiding Officer-cum-

Sub Divisional Magistrate, Jind are reproduced as under :-

” I have carefully perused the file and have heard
both the parties personally. The file has been perused and
after hearing both the parties, I came to the conclusion that
applicant Phool Kumari aged 77 years has purchased
house No.3883, Urban Estate, Jind from the benefits
received on her retirement, which is self acquired property,
whose registration is in the name of applicant Phool
Kumari, vide Deed No.548 dated 19.05.1998. Whose
photocopies is available on the file. From this, it clearly
proves that applicant is having complete right over this
property.

Respondent has not produced any type of evidence

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that at the time of purchase of this house she was given any
help. Respondent has not proved that this property
H.No.3883, Urban Estate, Jind came to the share of her
husband under the ancestral property and respondent could
not be able to prove that the above said house came to her
share under the family settlement. Now respondent has
solemnized second marriage. Under the provisions of this
Act, Senior Citizen can file application for protection of
person and property against the concerned that relative and
person, from whom he apprehend loss. Hon’ble High Court
in 2015(6) PLJ 83, 2016 (2) PLJ page 641 para No.19 and
20 and Punjab Law Reports 139 para No.28 and 42 has
provided that any senior citizen can file an application for
protection of person and property against the person who is
causing the loss. Therefore, the above mentioned ruling is
fully applicable to this case. Whereas, with regard to the
pendency of the rent case in this regard before the Civil
Court, Jind, there is no effect on this case under the
provisions of Section 22 of this Act. Therefore, finding no
force in the averments of the respondents, while accepting
the application of the applicant, I passed the order that the
respondent shall vacate the above said house No.3883,
Urban Estate, Jind within one month. Whereas, no further
action is required on the file, the file be consigned to record
room and one-one copy of the order is given to both the
parties. Order is pronounced in the Court in the presence of
both the parties.”

It is apparent from the said order that the house, in dispute, was

purchased by respondent No.4 and the same is her self-acquired property.

Petitioner could not produce any evidence to show that any amount was

paid by her at the time of purchase of that house. Even it could not be

proved on record that the husband of the petitioner was having any share in

that property or any family settlement was there between the parties.

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Section 22 of the Act, 2007 is relevant for resolving the present

controversy, which is reproduced as under :-

“22. Authorities who may be specified for
implementing the provisions of this Act.-(1) The State
Government may, confer such powers and impose
such duties on a District Magistrate as may be
necessary, to ensure that the provisions of this Act are
properly carried out and the District Magistrate may
specify the officer, subordinate to him, who shall
exercise all or any of the powers, and perform all or
any of the duties, so conferred or imposed and the
local limits within which such powers or duties shall
be carried out by the officer as my be prescribed.

(2) The State Government shall prescribe a
comprehensive action plan for providing protection of
life and property of senior citizens.”

Chapter V of the Rules 2009 is also relevant which provides

the duties and powers of District Magistrate. Rule 23(2)(i) is reproduced as

under :-

“23. Duties and power of the District
Magistrate. (Section 19 and 22). – (1) The District
Magistrate shall perform the duties and exercise the
powers mentioned in sub-rules (2) and (3) so as to
ensure that the provisions of the Act are properly
carried out in his district.

(2) It shall be the duty of the District Magistrate
to –

(i) ensure that life and property of senior
citizens of the district are protected and they are able
to live with security and dignity.”

The object of the Act, 2007 and Rules 2012 is to ensure that in

case, a children or a relative neglects or refuse to maintain a senior citizen

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being unable to maintain himself/herself then on being satisfied of such

neglect or refusal, the authority has the power to order such children or

relative to maintain the senior citizen.

During hearing of the application moved by respondent No.4,

the petitioner could not produce any type of evidence to show that at the

time of purchase of that house, any financial assistance was given to

respondent No.4. Even it could not be proved that the house, in dispute,

came to the share of her husband being the ancestral property or it came to

her share under family settlement. Moreover, the petitioner has solemnized

second marriage.

In order to appreciate the object of Act, 2007, it is necessary to

analyze the relevant provisions of said Act. The statement of objects and

reasons set out that the traditional norms and values of the Indian Society

which emphasized on providing care for elderly persons in joint family

system under those circumstances when they are facing emotional neglect

and lack of physical and financial support. In spite of provisions of

maintenance under Section 125 Cr.P.C., it was deemed necessary that there

should be simple, inexpensive and speedy provisions to claim maintenance

for the parents. The Act is not restricted to only providing maintenance but

cast an obligation on the persons who inherit the property of their aged

relatives to maintain such aged relatives. One of the major aims was to find

out a suitable mechanism for the protection of `life and property of older

persons.’ Section 2 contains the definitions and clause (f) defines `property’,

which is as under :-

“Definitions :- In this Act, unless the context otherwise
requires :-

a) xx xx xx

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b) xx xx xx

c) xx xx xx

d) xx xx xx

e) xx xx xx
“(f) Property” means property of any kind, whether
movable or immovable, ancestral or self acquired,
tangible or intangible and includes rights or interests in
such property.”

The definition of property within the meaning of the Act is

wide and comprehensive with the object of securing the interest of the

elders. It is to be read along with Section 6 which makes the provisions of

the said Act to have overriding effect notwithstanding anything inconsistent

therewith contained in any enactment other than the said Act including any

instrument having effect under any other Act.

Chapter-II of the said Act deals with the maintenance of

parents and senior citizens while Chapter-IV deals with the medical care.

The relevant Chapter-V provides for protection of life and property of

senior citizens. Section 21 provides for measures of publicity, awareness

etc. for welfare of senior citizens, while Section 22 provides for the

Authorities who may be specified for implementing the provisions of the

said Act. Section 22 reads as under:-

“22. Authorities who may be specified for implementing the
provisions of this Act

(1) The State Government may, confer such powers and impose
such duties on a District Magistrate as may be necessary, to
ensure that the provisions of this Act are properly carried out and
the District Magistrate may specify the officer, subordinate to
him, who shall exercise all or any of the powers, and perform all
or any of the duties, so conferred or imposed and the local limits
within which such powers or duties shall be carried out by the
officer as may be prescribed.

(2) The State Government shall prescribe a comprehensive action
plan for providing protection of life and property of senior

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citizens.”

Thus what is envisaged is both protection of life and protection

of property through a comprehensive action plan.

In order to prevent interference by Civil Courts qua any action

taken in furtherance of the provisions of the said Act, Section 27 bars the

jurisdiction of the Civil Courts, especially in respect of injunction. Section

27 of the said Act reads as under:-

“27. Jurisdiction of civil courts barred

No Civil Court shall have jurisdiction in respect of any matter to
which any provision of this Act applies and no injunction shall be
granted by any Civil Court in respect of anything which is done
or intended to be done by or under this Act.”

Sub Section (1) of Section 32 of the said Act requires the State

Government to make rules for carrying out the purposes of this Act which in

turn would imply that the same inter-alia provides for protection of life and

property of senior citizens under clause (f) of sub section (2) of section 32

of the said Act.

The Hon’ble Supreme Court in S.R. Batra v. Taruna Batra,

2007(1) RCR (Criminal) 403: 2007 (1) RCR (Civil) 378: 2007 (1) Recent

Apex Judgments (R.A.J.) 1: (2007) 3 SCC 169, held that the wife could

claim the right of residence in terms of Section 17(1) of the Act, only in a

`shared household’ and a `shared household’ would only mean the house

belonging to or taken on rent by the husband, or the house which belongs to

the joint family of which the husband is a member. It was held that the

house which was the exclusive property of the mother-in-law could not be

said to be a `shared household’ entitling the daughter-in-law to claim a right

of residence therein. The Hon’ble Court negatived the contention on behalf

of the daughter-in-law that as per the definition, `shared household’ would

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include a household where the aggrieved person had lived or at any stage

had lived in a domestic relationship. It was observed that if such submission

is accepted it would lead to chaos, because in that event every place where

the husband and wife had resided would be a shared household. The

Hon’ble Court also observed that the definition of `shared household’ in

Section 2(s) appears to be the result of clumsy drafting and that it had given

it a sensible interpretation.

The pertinent observations of the Hon’ble Court are as under:

“24. Learned counsel for the respondent Smt. Taruna Batra
stated that the definition of shared household includes a
household where the person aggrieved lives or at any stage
had lived in a domestic relationship. He contended that
since admittedly the respondent had lived in the property in
question in the past, hence the said property is her shared
household.

25. We cannot agree with this submission.

26. If the aforesaid submission is accepted, then it will
mean that wherever the husband and wife lived together in
the past that property becomes a shared household. It is
quite possible that the husband and wife may have lived
together in dozens of places e.g. with the husband’s father,
husband’s paternal grandparents, his maternal parents,
uncles, aunts, brothers, sisters, nephews, nieces, etc. If the
interpretation canvassed by the learned counsel for the
respondent is accepted, all these houses of the husband’s
relatives will be shared households and the wife can well
insist in living in all these houses of her husband’s relatives
merely because she had stayed with her husband for some
time in those houses in the past. Such a view would lead to
chaos and would be absurd.

27. It is well settled that any interpretation which leads to
absurdity should not be accepted.

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28. Learned counsel for the respondent Smt. Taruna Batra
has relied upon Section 19(1)(f) of the Act and claimed that
she should be given an alternative accommodation. In our
opinion, the claim for alternative accommodation can only
be made against the husband and not against the husband’s
(sic) in-laws or other relatives.

29. As regards Section 17(1) of the Act, in our opinion the
wife is only entitled to claim a right to residence in a shared
household, and a shared household would only mean the
house belonging to or taken on rent by the husband, or the
house which belongs to the joint family of which the
husband is a member. The property in question in the
present case neither belongs to Amit Batra nor was it taken
on rent by him nor is it a joint family property of which the
husband Amit Batra is a member. It is the exclusive
property of Appellant 2, mother of Amit Batra. Hence it
cannot be called a “shared household”.

30. No doubt, the definition of “shared household” in
Section 2(s) of the Act is not very happily worded, and
appears to be the result of clumsy drafting, but we have to
give it an interpretation which is sensible and which does
not lead to chaos in society.”

This decision has been reiterated by the Hon’ble Supreme Court

in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel, 2008 (2)

R.C.R. (Criminal) 699: 2008 (3) Recent Apex Judgments (R.A.J.) 50:

(2008) 4 SCC 649. In this case, the Hon’ble Supreme Court adverted to the

legal position that in terms of Sections 18 and 19 the Hindu Adoption and

Maintenance Act, 1956, liability in regard to maintenance of wife is upon

her husband and only on his death does it become the liability of the father-

in-law. In the context of the 2005 Act, it was observed that it provided a

higher right in favour of wife, which extends to the joint properties in which

the husband has a share. It was held that an order of maintenance against the

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husband can be executed only against the husband and his properties but not

against the property of her mother-in-law.

The relevant observations in this context are as under:

“27. The Domestic Violence Act provides for a higher
right in favour of a wife. She not only acquires a right to
be maintained but also thereunder acquires a right of
residence. The right of residence is a higher right. The
said right as per the legislation extends to joint properties
in which the husband has a share.

28. Interpreting the provisions of the Domestic Violence
Act this Court in S.R. Batra v. Taruna Batra held that
even a wife could not claim a right of residence in the
property belonging to her mother-in-law, stating:
“17. There is no such law in India like the British
Matrimonial Homes Act, 1967, and in any case, the rights
which may be available under any law can only be as
against the husband and not against the father-in-law or
mother-in-law.

18. Here, the house in question belongs to the mother-in-
law of Smt Taruna Batra and it does not belong to her
husband Amit Batra. Hence, Smt Taruna Batra cannot
claim any right to live in the said house.

19. Appellant 2, the mother-in-law of Smt Taruna Batra
has stated that she had taken a loan for acquiring the
house and it is not a joint family property. We see no
reason to disbelieve this statement.”

Following these decisions, different High Courts have ruled

that a residence belonging to the mother-in-law or father-in-law would not

be a `shared household’ within the meaning of Section 2(s) of the 2005 Act

and that a daughter-in-law would have no right of residence therein in terms

of Section 17(1) of the 2005 Act. Following cases may be usefully referred

to : Ekta Arora vs. Ajay Arora and another, 2015 AIR (Delhi) 180,

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V.P.Anuradha vs. S.Sugantha alias Suganthi and others, 2015(4) RCR

(Criminal) 631 and A.R.Hashir and others vs. Shima and others, 2015

(5) RCR (Civil) 35.

The Delhi High Court in two decisions which were relied upon

by the Ld. Counsel for the petitioner has distinguished the aforementioned

decisions of the Hon’ble Supreme in the matter of the restricted meaning

given to `shared household’ as not including a property wherein the husband

does not have any right, title or interest. In Navneet Arora’s case(supra), the

decision of the Hon’ble Supreme Court in S. R. Batra’s case was explained

as having been rendered in the fact situation obtaining therein where Taruna

Batra (the aggrieved daughter-in-law) and her husband Amit Batra had been

residing on the first floor, whereas the mother-inlaw, (the owner of the

house in question) along with her husband were residing on the ground

floor. The Court held that they were not residing as members of a `shared

household’ as understood in the legalistic sense as the residence and kitchen

were separate. It was concluded that S.R. Batra’s case is only an authority

for the proposition that under the 2005 Act, a wife is precluded from

claiming the right of residence in a premises, not owned by the husband,

where she had lived with her husband separately, but not as a member of the

`joint family’ along with the relatives of the husband who own the premises.

But if the couple live with the relatives of the husband as members of `joint

family’ along with the relatives of the husband in premises owned by such

relatives of the husband, then such residence would fall within the meaning

of `shared household’ giving the wife the right of residence therein

irrespective of the fact whether her husband has any right, title or interest

therein. It was explained that living as `joint family’ meant living under one

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roof and having a common kitchen.

It is a settled proposition of law that daughter-in-law cannot be

said to have a right in the house of father-in-law/mother-in-law who lodged

a complaint, where litigation is pending between the parties and in the

present case, the FIR was registered at the instance of respondent No.4. No

evidence has been placed on record to claim the ownership of the house,

whereas, as per definition of the property under Section 2(f) of the Act,

2007, any right or interest in such property is also included under the

definition of property. The right of the petitioner over the house, in dispute,

is totally misbelieved by considering the definition of property as provided

under Section 2(f) of the Act, 2007. It is clear that the property means

property of any kind, whether movable or immovable, ancestral or self-

acquired, tangible or intangible and even includes rights or interest in such

property.

In view of facts and law position as discussed above, there is

no merit in the contentions raised by learned counsel for the petitioner and

the present petition, being devoid of any merit, is hereby dismissed.

(DAYA CHAUDHARY)
05.02.2018 JUDGE
gurpreet

Whether speaking/reasoned Yes/No

Whether Reportable Yes/No

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