THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
WRIT PETITION No.12929 of 2021
ORDER:
This writ petition is filed questioning the action of the respondents No.2 to 7 in not providing protection to the life and property of the petitioner against the respondents No.8 to 10 as envisaged under Rule 21 Chapter VI of the Andhra Pradesh Maintenance of Parents and Senior Citizens Rules, 2011 and Section 21 Chapter V of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
2. The grievance of the petitioner is that in spite of his representation dated 31.03.2021 to restore his possession over first floor portion of H.No.10-2-318/1/62, Feroz Gandhi Nagar, Beside Priya Talkies, Mallepally, Hyderabad (subject property) by evicting respondents No.8 to 10, no action has been initiated by the respondents No.2 to 7. Further, a direction is sought by the petitioner to the respondents No.4 to 7 to register crime against the respondent No.8 pursuant to complaints dated 09.10.2020 and 31.03.2021 lodged by the petitioner. It is alleged that the action of the official respondents is illegal and in violation of fundamental rights, more particularly, Article 300-A of the Constitution of India.
3. It is stated that the petitioner along with his wife have been residing in the subject property consisting of Ground + 1st Floor. He purchased the property through registered sale deed bearing document No.2839/2017 dated 16.05.2017, which is his self-acquired property. He got his son, Obaid Ali Khan, married to Smt Mohammed Uzma, respondent No.8 on 24.02.2018. The nikha ceremony was conducted over phone while his son was residing abroad. The marriage 2 was performed as per Muslim Personal Law (Sharia Law). His son came to India on 08.03.2019. The marriage reception was arranged on 15.03.2020. Within 10 days of marriage reception, the respondent No.8 started quarreling with the petitioner and his wife claiming that the subject property was gifted to her by her husband. The petitioner clarified that he is the absolute owner of the subject property. The respondents No.8 to 10 started harassing the petitioner and his wife to grab the house property. The petitioner is a senior citizen suffering from partial paralysis. The respondent No.8 had stolen his son's passport and blackmailed him to transfer the subject property in her name. The respondent No.8 along with her family members and anti-social elements attacked the petitioner, his wife and his son and forcefully took signatures on some blank non-judicial bond papers and on some white papers. On 19.05.2019, his son returned to Saudi Arabia to save his job and due to COVID-19 pandemic, he could not come back to Hyderabad.
4. On the request of the petitioner, his daughter, Smt Ghousia Shaheen, came to Hyderabad from Saudi Arabia and advised the respondent No.8 and her family members not to harass the petitioner for the property. But nothing worked out. In order to protect the subject property, the petitioner has gifted the said property in favour of his daughter under registered Gift Settlement Deed bearing document No.4137 of 2019 dated 03.07.2019. On 09.10.2010, the respondent No.8 and her mother pulled his wife out of the house and beat her mercilessly with an intention to kill her. A complaint was lodged with the Humayun Nagar Police Station on 09.10.2020. The police visited the scene of offence and verified the CCTV footage, but for the reasons best known, no criminal case was registered. Due to lethargic approach of the police, the respondent No.8 got encouraged 3 and continued to torture the petitioner and his wife. Being vexed with the behaviour of the respondent No.8, his son gave divorce to her on 31.10.2020 and communicated to her through Government Qazath Qile Mohammed Nagar through divorce certificate dated 20.11.2020. Thus, from that day, the respondent No.8 is no more his daughter-in- law. A false complaint is lodged by the respondent No.8 in Cr.No.753 of 2020 dated 23.12.2020 for the offences under Sections 498-A, 406, 506 IPC and Sections 3 and 4 of the Dowry Prohibition Act. The petitioner made a representation dated 31.03.2021 to the respondents No.2 to 7 praying them to grant protection to his life, property and dignity as per the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. However, there is no action initiated by the police and they are made to run from pillar to post. The petitioner is entitled under the provisions of the Act and the Rules made thereunder for restoration of possession of the first floor of the subject property, which is in possession of the respondent No.8.
5. In the counter affidavit filed by the respondents No.8 to 10, the allegations in the writ petition were denied. It was stated that the respondent No.8 has filed DVC case claiming right of residence in the subject property, which is her matrimonial house. The respondent No.8 filed several complaints regarding dowry harassment by her husband, family members including the petitioner. The marriage has been performed with the son of the petitioner and dowry amount was paid at the time of marriage. The respondent No.8 came to know that it was third marriage of her husband and by suppressing and playing fraud, her husband stated before the Qazi that it was his first marriage and the same is mentioned in the marriage booklet. Her husband was having two children from the first marriage. Her husband married first wife Arshiya on 02.02.2012 and pronounced divorce on 28.10.2018. 4 He performed second marriage with Nazia on 17.11.2017 and pronounced divorce on 28.12.2017. After marriage, her husband went abroad promising that he will provide all necessities. Her husband informed her that he will settle down in Indian within two months. Her sister-in-law came to India during Ramzan 2019 and started harassing her. Immediately, she called police, reconciliation meeting was held and her in-laws assured that they will not disturb her peaceful possession in the first floor of the subject property. She had been residing in the first floor since July 2019. Her husband has stealthily sent divorce papers to her. She approached the Women Protection Cell and filed DVC application on 11.02.2020 with a specific prayer to permit her to stay in her shared house i.e. subject property. The alleged divorce pronounced on 31.10.2020 is not valid. The writ petition is not maintainable during the pendency of DVC wherein the respondent No.8 has claimed right of residence in the shared household.
6. Heard Mr. Mirza Nisar Ahmed Baig, learned counsel for the petitioner and Ms. Farhath Firdous, learned counsel for the respondents No.8 to 10.
7. Learned counsel for the petitioner relied on the following judgments:
S. VANITHA v. DEPUTY COMMISSIONER, BENGALURU URBAN DISTRICT1; S.R. BATRA v. TARUNA BATRA2 M.P. TEJ BAHU v. STATE OF TELANGANA3; RAMAPADA BASAK v. STATE OF WEST BENGAL4; GURPREET SINGH v. STATE OF PUNJAB5; 1 AIR 2021 SC 177 2 (2007) 3 SCC 169 3 2016 (3) ALD 150 4 2021 SCC OnLine Cal 1261 5 2016 (2) LJR 641 5 SHAMSHER SINGH v. DISTRICT MAGISTRATE, U.T.
ADMINISTRATION, CHANDIGARH6; MANMOHAN SINGH v. UNION TERRITORY, CHANDIGARH7; HAMINA KANG v. DISTRICT MAGISTRATE (UT), CHANDIGARH8; SANDEEP GULATRI v. DIVISIONAL COMMISSIONER, O/o. THE SECRETARY-CUM- DIVISIONAL COMMISSIONER, DEPARTMENT OF REVENUE, GOVT. OF NCT OF DELHI9 and DARSHANA v. GOVT. OF NCT OF DELHI10.
8. Learned counsel for the respondents No.8 to 10 relied on the judgment of the Supreme Court in S. VANITHA's case (1 supra).
9. Admittedly, the respondent No.8 is residing in the first floor premises of the subject property. The DVC case in DVC.No.11 of 2021 before the III Metropolitan Magistrate, Hyderabad, filed by her is pending. There is a claim in the DVC case that the first floor of the subject property is a shared household. It is not in dispute that the respondent No.8 started living in the first floor of the subject property subsequent to her marriage with the son of the petitioner.
10. While the petitioner contends that it is his personal property purchased by him under sale deed dated 16.05.2017 and later transferred it to his daughter, the respondent No.8 contends that it is a shared household and she is entitled to live in the first floor of the subject property. However, this Court is not inclined to make any observations at this point of time. Photographs have been filed by learned counsel for the petitioner showing injuries allegedly sustained by the petitioner and his wife, said to have been caused by the 6 2017 (2) LJR 529 7 2016 RCR (CIV) 838 8 2016 Lawsuit (P&H) 1228 9 2021 (1) HLR 230 10 2018 (4) RCR (CIVIL) 693 6 respondents No.8 to 10 and their relatives. In order to give a quietus to the issue, this Court had personal interaction with the respondent No.8 in the presence of her counsel Ms. Farhath Firdous and enquired with her whether she is willing to settle the dispute. But, the respondent No.8 candidly stated that her husband was misguided by the petitioner, his wife and sister-in-law and she is not willing to take any divorce. The divorce pronounced by her husband is not valid as per the judgment of the Supreme Court. Further, the respondent No.8 states that if she is evicted from the subject property, she would be on roads. In such circumstances, as the conciliation failed, the writ petition was heard on merits.
11. In view of the competing rights and interests of the petitioner and his wife claiming to be senior citizens and seeking protection under Rule 21 Chapter VI of the Andhra Pradesh Maintenance of Parents and Senior Citizens Rules, 2011 and Section 21 Chapter V of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and the respondent No.8 claiming the first floor of the subject property to be a shared household under the provisions of the DVC Act, this Court is of the opinion that any observations/findings given would prejudice the case of the parties. In any case, the matter requires detailed consideration by the DVC Court. The DVC Court is directed to pass orders within a period of three (3) months from the date of receipt of a copy of this order and render decision whether the subject property is a shared household of the respondent No.8 and she has a right of residence. Subject to the outcome of the said order, the petitioners are given liberty to pursue further remedies under the provisions of Rule 21 Chapter VI of the Andhra Pradesh Maintenance of Parents and Senior Citizens Rules, 2011 and Section 21 Chapter V of 7 the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 or approach this Court, if so advised.
The writ petition is disposed of accordingly. Pending miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.
__________________ B. VIJAYSEN REDDY, J November 29, 2021 DSK