Gujarat High Court
Hiral Valjibhai Bhua vs Manjulaben Manjibhai Savaliya on 13 January, 2023
Bench: Biren Vaishnav
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.6618 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the No
judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as to No
the interpretation of the Constitution of India or any order made
thereunder ?
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HIRAL VALJIBHAI BHUA
Versus
MANJULABEN MANJIBHAI SAVALIYA
==================================================================
Appearance:
MR PRATIK Y JASANI(5325) for the Petitioner(s) No. 1
for the Respondent(s) No. 10,2,3,4,5,6,7,9
MR JAY B TRIVEDI, AGP for the Respondent(s) No. 8
MR HRIDAY BUCH, ADVOCATE for MR PINANK J RAIYANI(10166) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 13/01/2023
ORAL JUDGMENT
Rule. Learned AGP Mr. Jay B. Trivedi waives service of
notice of Rule for respondent No.8 while Mr. Pinank
Raiyani, learned advocate waives service of notice of
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
Rule for respondent No.1.
1. By way of this Petition under Article 226 of the
Constitution Of India, the Petitioner has challenged the
Order dated 9.11.2021 passed by the Presiding Officer
Tribunal and Sub-Divisional; Magistrate, Gondal and
the Order dated 21.03.2022 in Appeal No.3 of 2022
passed by the District Collector Rajkot (Appellate
Tribunal), by which, the directions have been issued to
evict the petitioner from her matrimonial home.
2. The facts in brief are as under:
2.1. It is the case of the Petitioner that she was
married to one Lakshitbhai Manjibhai Savaliya on
25.2.2022 at Village Devgam. The husband is a Dentist
practicing at Gondal. It is her case that she was
residing with him at the "premises in question" or
"shared household".
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
2.2. The petitioner - wife and the husband are
engaged in several litigations inasmuch as FIRs have
been filed by him as well as the petitioner and the
Petitioner was once arrested in the case of an FIR filed
by her husband and then released on bail. Proceedings
under the Protection Of Women from Domestic
Violence Act, 2005 (for short `the Domestic Violence
Act') have been initiated by the petitioner wherein the
Petitioner has also sought relief under Section 17 of the
Domestic Violence Act to reside in the shared
household. Various efforts have been made to
dispossess the petitioner from the shared household. A
complaint has been filed by her mother in law under
the Land Grabbing Act.
2.3. The respondent No.1 filed Maintenance Case
No.1 of 2021 under the provisions of the Maintenance
and Welfare of Parents and Senior Citizens Act, 2007
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
(for short 'the Senior Citizens Act') seeking custody of
the premises in question which was allowed by the
impugned order dated 9.11.20021 and confirmed in
Appeal vide order dated 21.3.2022.
3. Mr. Pratik Y. Jasani, learned advocate for the petitioner
made the following submissions:
1). Inviting the Court's attention to the Memo of the
Application filed by the Respondent No.1, Mr Jasani
would submit that if the prayers of the Application are
perused, the same would indicate that they are
misconceived. Reading the provisions of Section 2(b)
which defines "maintenance" and also reading the
provisions of Section 23 of the Senior Citizens Act, he
would submit that Section 23 of the Act only provides
for the maintenance of a senior citizen or a parent and
there is no provision envisaging an order of eviction
and therefore the orders directing eviction of the
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
Petitioner are without jurisdiction.
2). Mr. Jasani would further submit that the house is a
"shared household" and the petitioner has a right to
reside in the said house. That a complaint is also filed
under the provisions of the Domestic Violence Act and
by the order under the Senior Citizens Act, the right of
the Petitioner under the Domestic Violence Act gets
frustrated.
3). Mr Jasani would submit that complaints have also
been filed by the respondent No.1, mother-in-law. He
would invite the Court's attention to the prayers in the
Application under the Domestic Violence Act and
submit that therein too a prayer has been made by the
Petitioner that she may not be evicted from the shared
household. He would submit that it is evident from the
perusal of the reply filed by the Petitioner to the
Application under the Senior Citizens Act wherein the
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
Petitioner has specifically stated that the provisions of
Section 23 of the Senior Citizens Act would not apply.
4). Mr Jasani would further submit that it is
specifically pleaded in the Application filed by the
Petitioner under the Domestic Violence Act that the
respondent No.1 or her husband have multiple
properties at various places.
5). Mr. Jasani inviting the Court's attention to the
findings of the original order and the appellate order
would submit that no reasons have been assigned by
both the authorities and none of the contentions raised
by the Petitioner have been dealt with and therefore
the orders are non speaking orders and only on this
ground deserve to be quashed and set aside.
6). Mr. Jasani would submit that the Petitioner lady is
being unnecessarily harassed and as a result of a
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
complaint filed by the Petitioner she was arrested and
had to apply for bail and was ultimately released. That
a Chapter case was lodged against her. That a Land
Grabbing Case has been filed against the Petitioner
wherein there was a negative opinion however after
the impugned orders there has been an attempt at
reopening of the Land Grabbing Case against the
Petitioner.
4. In support of his submissions that the proceedings
under the Maintenance Act have been initiated purely
with a view to frustrate the proceedings under the
Domestic Violence Act, Mr. Jasani would invite the
Court's attention to the provisions of Section 2(s) of the
Domestic Violence Act which defines the term "shared
household" read with Section 17 of the Act which deals
with the right to reside in the shared household. He
would also read the definition of "respondent" as
defined under Section 2(q) of the Act.
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
5. Mr Jasani would rely on a decision of the Supreme
Court in the case of S. Vanitha versus Deputy
Commissioner, Bengaluru Urban District and
Others reported in 2020 SCC Online 1023 to
submit that both the Acts i.e. the Senior Citizens Act
and the Domestic Violence Act have to be read in
harmony and the Senior Citizens Act cannot deny the
petitioner, her right to reside in the shared household
under the Domestic Violence Act. Relying on Paras 1, 2,
6, 9 and Paras 13-20, 22-23 and 38-40 of the
Judgment, Mr. Jasani would submit that the order of
eviction made under the Senior Citizens Act would
completely displace the Petitioner from seeking
recourse to her remedies under the Domestic Violence
Act which are provided under Section 12(1) and Section
19 of the Domestic Violence Act in respect of her
premises which is her shared household as defined
under Section 2(s) of the Act. He would submit that the
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
Supreme Court in the case has held that the right of a
woman to secure a residence order in respect of a
shared household cannot be defeated by the simple
expeditious remedy of an eviction order adopting the
summary procedure under the Senior Citizens Act.
6. Mr. Hriday Buch, learned counsel appearing with Mr.
Pinank J. Raiyani, learned advocate for the respondent
No.1 would make the following submissions:
1). Mr. Buch would submit that the property in
question which the Petitioner terms as a shared
household is a property purchased and owned by the
Mother-In-Law respondent No.1 herein. Mr.Buch would
invite the Court's attention to the statement made in
the proceedings under Section 498A of the Indian Penal
Code that she was residing at Devagam after being
released on bail.
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
2). Inviting the Court's attention to certain dates he
would submit that the Respondent No.1 had purchased
the house in the Year 2007. The Petitioner had left the
matrimonial house on 15.3.2020. Before the Petitioner
having moved out, the husband had filed a complaint
before the Gondal Police Station against the wife owing
to her misbehavior. The Respondent No.1 and his
husband had shifted to a rented premises in December
2019 at Rajkot. Another written complaint had been
filed by the husband against the Petitioner on
15.3.2020 and pursuant to a Chapter case she was
arrested and subsequently released on Bail.
3). Mr.Buch would further submit that on 16.3.2020
the Petitioner left her matrimonial home and went to
stay with her parents at Vadiya District, Amreli. She
then lodged an FIR under Section 498A on
20.3.2020.The husband shifted to Rajkot to reside with
his parents.
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
4). Mr Buch would submit that it is the specific case
as is pleaded in the memo of the application that the
Petitioner broke open the lock on 10.7.2020 and
forcibly took over the possession of the property as a
result of which a complaint was made to the local
police station and the concerned police officer visited
the Police Station and when questioned she admitted
that as she was not having the keys she broke open
the lock.
5). The Application therefore under Section 5 of the
Senior Citizens Act was filed on 19.7.2021 and the
Petitioner filed the Application under the Domestic
Violence Act on 8.09.2021. He would therefore submit
that it is incorrect to say that the authorities had
exceeded the jurisdiction in passing the orders.
6). Mr. Buch would distinguish the judgment in the
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case of S. Vanitha (Supra) and submit that the
concept of shared household and the reading of the
provisions of the two Acts was made in light of the
distinguished facts where before the Supreme Court
the property in question was sold/transferred in favour
of the in-law pending the matrimonial disputes
between the spouses whereas in the present case the
property in question was purchased by the Respondent
No.1 mother-in-law in the year 2006/2007, 14 years
prior to the matrimonial dispute. The Petitioner has
unauthorizedly broken the lock.
7). Adverting to the provisions of Section 19 of the
Domestic Violence Act and relying on the Additional
Affidavit filed and the one tendered today in Court, Mr.
Buch would submit that the Petitioner has been offered
a property and reading Section 19(f) of the Domestic
Violence Act he would submit that the judgment on the
facts in the case of Vanitha (Supra) would not apply
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
as in that case the property was transferred to the in-
laws pending the matrimonial proceedings and
therefore the Acts had to be read harmoniously as held
by the Supreme Court. He would read the relevant
paras of the Judgment to satisfy the Court that on the
facts both the statutes had to be read harmoniously
and therefore once an alternative residence had been
offered, there was no frustration to the rights under
these provisions as submitted by the Learned Advocate
for the Petitioner. He would submit that the provisions
of the Domestic Violence Act particularly Section 19(f)
thereof allows the grant of a relief and strike a balance
between the two statutes.
7. Mr. Jay Trivedi, learned AGP for the respondent - State
would support the Orders passed by the Authorities
under the Act. He would submit that the Senior Citizens
Act has now been amended with effect from the Year
2019. Section 2(b) of the Act which defines the term
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
"maintenance" includes provision of housing.
8. Having considered the submissions made by the
learned advocates for the respective parties for the
purposes of the consideration as suggested by the
decision of the Supreme Court in the case of S.
Vanitha (Supra), the facts have to be considered in
order to see that the harmony of the two legislations
i.e. Senior Citizens Act and the Domestic Violence Act
are maintained, especially in light of the concept of
"shared household" in the premises in question.
9. The prayers made in the application under the Senior
Citizens Act has to be read in the context of the
pleadings in the application and not in isolation.
10. The application filed by respondent No.1 factually
indicates that the Petitioner had married in the year
2012. It was the case of the Respondent No.1 mother-
in-law that the premises in question was her self-
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
acquired property purchased in the year 2007. The
respondent No.1 had been residing in the said property
with her husband. On 28.11.2019 the husband had to
file a police complaint against the Petitioner owing to
her misbehavior in the matrimonial home. In
December, 2019, the parents i.e the Respondent No.1
with her husband had to shift to a rented premises at
Rajkot from Gondal. On 15.3.2020 another written
complaint had to be filed by the husband of the
Petitioner regarding the Petitioner's misbehavior as
well as physical and mental cruelty. A Chapter case
was therefore filed and the Petitioner was arrested and
then released on bail. The Petitioner left her
matrimonial home and went to live with her parents on
and from 16.3.2020.The Petitioner lodged an FIR on
17.3.2020 against the in-laws and her husband under
the provisions of Section 498A and other provisions of
the Indian Penal Code wherein a charge sheet was filed
on 25.5.2020.
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
11. When these assertions are made by the Respondent
No.1 in the Application,the assertion of the Petitioner
that she was evicted from the shared household and
needed to be given the benefit of restoration of
possession of the premises in question needs to be
taken with a pinch of salt. The assertion of the
Petitioner's Counsel that there was no question of the
allegation of the Respondent No.1 to have barged into
the premises of the parents has to be considered in
light of these facts and the subsequent behaviour of
the Petitioner which indicates that after the episode
where the Parents had to shift out to a rented premises
in Rajkot on 20.3.2020,on 10.7.2020 the Petitioner-wife
broke open the locks of the premises in question and
forcibly took over the possession of the property of the
Respondent No.1 situated at Gondal. A complaint was
lodged on the same day with the local police station.
What is evident from reading the version of the
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statement made by the Petitioner before the Police
Authority which has been read by the parties is that
when the Petitioner was questioned on the same day
she stated that as she was not having the keys of the
house and therefore she had no alternative but to
break open the lock. This clearly proves the manner
and the method in which the Petitioner, in absence of
her in-laws, especially the Respondent No.1 who was
compelled to shift to a rented premises forcefully took
over the possession of the premises which she asserts
to be a "shared household" as comes out from the
submissions of the Learned Counsel for the Petitioner.
This has to be again viewed in light of considering the
fact that it was undisputed between the parties that
the property was a self-acquired property of the
Respondent No.1 herself.
12. Keeping these rival claims in mind, the case whether
the Orders under challenge are without jurisdiction and
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
the claim of the Petitioner that they are made de hors
the provisions of Section 23 of the Senior Citizens Act
and whether the relief that has been granted frustrates
the rights of a woman who has claimed a relief under
the Domestic Violence Act has to be considered.
13. The position of law as discussed in the case of S.
Vanitha (Supra) has to be appreciated in the light of
the facts of the present case and the facts before the
Supreme Court in the decision that it rendered. Since
the contentions and the facts somewhat are similar
except the question of the ownership of the premises
in question the basic facts before the Supreme Court
indicate that the appellant before the Supreme Court
was the daughter-in-law, who aggrieved by the Orders
of the competent authorities under the Senior Citizens
Act filed by her parents-in-law, had approached the
High Court challenging the orders of eviction,as is the
case in the present dispute. Both, the learned Single
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Judge and the Division Bench of the High Court upheld
the Orders and directed that the appellant ought to
vacate the premises in question. The appellant
therefore moved the Supreme Court under Article 136
of the Constitution Of India.
* The marriage between the Appellant therein and
the fourth respondent husband had taken place on
30/5/2002, soon thereafter which matrimonial dispute
arose. The subject matter of the controversy was a
residential house. The facts (before the Supreme Court)
indicate that it was that husband who had purchased
the land on 02/05/2002 a few months before the
marriage and the allegation of the appellant was the
the purchase was financed by her father. On
05/10/2006 the husband sold the house to his father
which was for the same consideration as was paid by
the husband at the time of his original purchase in the
year 2002. The father after constructing the house in
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
question gifted the house to his wife i.e. the appellant's
mother-in-law on 19/7/2010. In the year 2015, the in-
laws invoked the provisions of the Senior Citizens Act
and filed an Application before the Competent
Authorities. The appellant filed objections and having
lost in the proceedings, before the Supreme Court
contended that the authorities had no jurisdiction to
order eviction under Section 23 of the Senior Citizens
Act in view of the protection offered by Section 17 of
the Protection Of Women from Domestic Violence
Act,2005. It was submitted, as in the present case, that
the authorities constituted under the Senior Citizens
Act had no jurisdiction to secure eviction so as to deny
her claim of a right to reside in the shared household
under the Domestic Violence Act. The contention of the
in-laws,like in the case on hand was that the Tribunal
constituted under the Senior Citizens Act had the
jurisdiction to pass orders including orders of eviction
as the power has to be read within its jurisdiction.
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14. Considering the scheme of the Senior Citizens Act, the
Supreme Court found that in the event the senior
citizens are unable to maintain themselves out of their
own property then they are entitled to make an
Application under Section 4 of the Act. Considering the
provisions of Section 23 of the Act, especially
provisions under sub-section (2) thereof, it held that
the Tribunal has powers to pass orders of eviction to
ensure maintenance as it would be an incident of
enforcement of the right to maintenance. However this
remedy can be granted only after adverting to the
competing claims in the dispute. Then in the facts
before the Supreme Court as discussed in Paragraph
No.20 thereof, it specifically found that the land where
the house had been constructed from which the
eviction was sought was originally purchased by the
son of the applicants before the Tribunal. The son had
purchased the property few months before the
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marriage and the property was subsequently
transferred by a registered sale deed to his father and
the fact that it was so transferred for the same
consideration after a lapse of several years is of
significance. The father,in turn executed a deed of gift
in favour of his spouse (mother-in-law of the appellant
before the Supreme Court). The assertion of the
daughter-in-law was that she was living in the house
and was evicted. The Hon'ble Supreme Court observed
that the transfer which took place cannot be viewed in
isolation from the context of the on-going matrimonial
dispute and the issue was whether she could have
been ousted in the manner as from such facts.
* The Supreme Court then went on to consider the
aspect of a woman's right to residence, as a safeguard
against domestic violence and considering the
definition of a " shared household" under Section 2(d)
of the Domestic Violence Act read with Section 19
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thereof considered the aspect of harmonizing the
competing reliefs under the Domestic Violence Act and
the Senior Citizens Act and held that in the event of a
conflict between the special acts, the dominant
purpose of both the statutes would have to be
analyzed.
* In paragraph No.38 of the decision, the Supreme
Court in the case of S. Vanitha (Supra) observed that
allowing the Senior Citizens Act to have an overriding
effect in all situations,irrespective of the competing
claims of a woman to a right in the shared household
would defeat the purpose of the legislation. In
paragraph No.39, the Supreme Court observed that in
the event composite dispute is alleged, and the suit
premises is the contestation between the two groups it
would be appropriate for the Tribunal constituted under
the Senior Citizens Act to appropriately mould reliefs,
after noticing the competing claims of the parties
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claiming under the Domestic Violence Act and the
Senior Citizens Act. It is in light of this that the
Supreme Court interfered with the decree of eviction
on the facts of the case where it was evident that the
property initially belonged to the husband and was
transferred after marriage by way of gift to the mother-
in-law.
15. Before a comparative analysis to distinguish the
judgment on facts is undertaken, it will be in the fitness
of things to reproduce the relevant provisions of the
two statutes i.e. the Senior Citizens Act and the
Domestic Violence Act.
REPRODUCE RELEVANT PROVISIONS:
MAINTENANCE AND WELFARE OF PARENTS
AND SENIOR CITIZENS ACT 2007:
2(b). "maintenance" includes provision for food,
clothing, residence and medical attendance and
treatment.
Section 2(b) the Amended Act 0f 2019
(separate sheet is given). (TO BE ASKED to
Divyaji)
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Section 23. (To be asked to Divyaji)
THE PROTECTION OF WOMEN FROM DOMESTIC
VIOLENCE ACT, 2005:
2. Definitions.--In this Act, unless the context
otherwise requires,--
(a) "aggrieved person" means any woman who is, or
has been, in a domestic relationship with the
respondent and who alleges to have been subjected to
any act of domestic violence by the respondent;
Section 2(q) "respondent" means any adult male
person who is, or has been, in a domestic relationship
with the aggrieved person and against whom the
aggrieved person has sought any relief under this Act:
Section 2(s) "shared household" means a
household where the person aggrieved lives or at any
stage has lived in a domestic relationship either singly
or along with the respondent and includes such a
house hold whether owned or tenanted either jointly by
the aggrieved person and the respondent, or owned or
tenanted by either of them in respect of which either
the aggrieved person or the respondent or both jointly
or singly have any right, title, interest or equity and
includes such a household which may belong to the
joint family of which the respondent is a member,
irrespective of whether the respondent or the
aggrieved person has any right, title or interest in the
shared household;
Section 17: Right to reside in a shared
household.--
(1) Notwithstanding anything contained in any other
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law for the time being in force, every woman in a
domestic relationship shall have the right to reside in
the shared household, whether or not she has any
right, title or beneficial interest in the same. (2) The
aggrieved person shall not be evicted or excluded from
the shared household or any part of it by the
respondent save in accordance with the procedure
established by law.
Section 19 Residence orders.
(f) directing the respondent to secure same level of
alternate accommodation for the aggrieved person as
enjoyed by her in the shared household or to pay rent
for the same, if the circumstances so require:
Provided that no order under clause (b) shall be passed
against any person who is a woman."
16. In the facts of the case as are set out before the
Supreme Court, what was found was that the property
in dispute was originally purchased by the husband of
the appellant therein a few months before marriage. It
was then sold for a same consideration four years after
the marriage to the father-in-law of the Appellant who
then gifted it to the mother-in-law. The appellant then
was residing in the premises in question and therefore
the same was household and therefore keeping in view
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the harmonious interpretation of the two statutes
where the appellant had filed an application under the
Domestic Violence Act, the Court held that the decree
of eviction involved in a composite claim in the facts of
that case and moulded the relief accordingly. The
appropriate forum to decide the claim of the appellant
was therefore under the Domestic Violence Act.
17. The relevant paras of the decision of the Supreme
Court in the case of S. Vanitha (Supra) read as
under:
"1 The present dispute arises out of an application filed by
the Second and Third respondents against the appellant, who
is their daughter-in-law. The Second and Third respondents
are the parents of the Fourth respondent, who is the
estranged spouse of the appellant. The Second and Third
respondents filed an application under the provisions of the
Maintenance and Welfare of Parents and Senior Citizens Act
20071, and inter alia, sought the appellant and her daughter‟s
eviction from a residential house in North Bengaluru.
2 The Assistant Commissioner, and the Deputy Commissioner
in appeal, allowed the application under the Senior Citizens
Act 2007 and directed the appellant to vacate the suit
premises. Aggrieved by this order, the appellant
unsuccessfully pursued a writ proceeding under Article 226 of
the Constitution before a Single Judge, and in appeal before a
Division Bench of the High Court of Karnataka. The Division
Bench by its judgment dated 17 September 2019 held that the
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suit premises belonged to the mother-in-law (the Second
respondent) of the appellant and the remedy of the appellant
for maintenance and shelter lies only against her estranged
husband (the Fourth respondent). The Division Bench upheld
the Order of the Deputy Commissioner, and directed the
appellant to vacate the suit premises before 31 December
2019. Challenging the jurisdiction of the authorities3 "Senior
Citizens Act 2007" "suit premises" The Assistant
Commissioner, Bengaluru North Sub-Division at Bengaluru and
the Deputy Commissioner, Bengaluru District PART A to
decree her eviction under the Senior Citizens Act 2007, the
appellant has moved this Court under Article 136 of the
Constitution.
3 The appellant and the Fourth respondent were married on
30 May 2002. Soon thereafter, a matrimonial dispute arose
between the parties. The appellant alleges that she was
harassed for dowry and even compelled to institute a suit for
partition against her father in 2003 4 which she later
withdrew, after her spouse allegedly deserted her to be in a
relationship with another woman. The subject matter of the
controversy is a residential house situated at
Gangondonahalli, Dasanapura, Hobli, Bengaluru North Taluk.
The land was purchased by the Fourth respondent on 2 May
2002, a few months before the appellant married him. The
appellant alleges that her father had financed a portion of this
purchase.
4 On 5 October 2006, the Fourth respondent sold the land to
his father - the Third respondent. The transaction of sale
between the father and the son was for the same
consideration of Rs.1.19 lacs, as was paid by the Fourth
respondent for the original purchase of the property in 2002.
By then, the appellant and the Fourth respondent had a
daughter. In 2009, the Fourth respondent instituted a petition
for divorce 5 under Section 13(1)(ia) and (ib) of Hindu
Marriage Act 1955 before the Senior Civil Judge and Judicial
Magistrate, First Class, Nelamangala6. The Third respondent,
following the purchase of the property and after constructing a
house, gifted it to his spouse - the Second respondent, on 19
July 2010. Soon thereafter, on OS 211 of 2003 MC 22 of 2009
"Trial Judge" PART A 17 August 2010, the Second respondent
instituted a suit against the appellant 7 before the JMFC,
Nelamangala seeking a permanent injunction restraining the
appellant from interfering with the possession of the suit
property. The suit is pending. On 5 December 2013, the
petition for divorce was allowed by the Trial Judge and the
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marriage between the appellant and the Fourth respondent
was dissolved. On 19 March 2014, the appellant instituted a
proceeding for maintenance. She also filed an appeal before
the High Court of Karnataka9 against the dissolution of her
marriage by the Trial Judge. The proceedings for divorce and
maintenance are also pending.
5 In 2015, the Third and Fourth respondents invoked the
provisions of the Senior Citizens Act 2007 by instituting an
application before the Assistant Commissioner, Bengaluru
North Sub Division. Their son (the Fourth respondent) and the
appellant were impleaded as respondents to the petition. The
reliefs sought were:
(i) Eviction of the appellant from the suit premises where she
was residing;
(ii) A direction to the Fourth respondent to pay an amount of
Rs.15,000 to the parents by way of monthly maintenance; and
(iii) A direction to the appellant and fourth respondent to pay
an amount quantified at Rs. 25,000 towards legal expenses.
6. The appellant filed an objection to the petition filed
under the Senior Citizens Act 2007, alleging it to be a
malicious proceeding that was instituted with the sole intent
to evict her from the suit premises. The appellant also claimed
that the proceedings were collusive in nature and an attempt
by the Second and Third respondents and her estranged
spouse (the Fourth respondent) to evict her from her
matrimonial home. The appellant specifically raised an
objection to the jurisdiction of the authorities to entertain the
proceedings seeking her eviction from the premises. She
submitted that while the Senior Citizens Act 2007 provides for
the maintenance of a senior citizen or a parent, there is no
provision envisaging an order of eviction, and that the
authorities had no jurisdiction to direct her removal from the
premises.
7. The Assistant Commissioner by an Order dated 25 June
2015, held that the residential house was the self-acquired
property of the Third respondent which he subsequently gifted
to the Second Respondent. The appellant was residing in the
property, but was held to have no right or authority. The
appellant‟s plea for maintenance could (in the view of the
Assistant Commissioner) only be raised against the Fourth
respondent. Therefore, the Assistant Commissioner allowed
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the petition by directing (i) the Fourth respondent to pay a
monthly maintenance of Rs.10,000 to his parents; and (ii) the
appellant to vacate the premises.
10. The appellant, aggrieved by the judgement of the
Division Bench of the High Court, has preferred the present
special leave petition. Mr Yatish Mohan, learned Counsel
appearing on behalf of the appellant submitted that:
(i) The appellant is residing in her matrimonial home as the
lawfully wedded spouse of the Fourth respondent and she
cannot be evicted from her shared household, in view of the
protection offered by Section 17 of the Protection of Women
from Domestic Violence Act 200511; "PWDV Act 2005" PART
B
(ii) The proceeding under Sections 3 and 4 of the Senior
Citizens Act 2007 was filed by her mother-in-law and father-in-
law in connivance with her estranged spouse to deprive her of
her matrimonial home;
(iii) The finding of the Division Bench on the appellant‟s
current residential status was based on a fraudulent set up.
The alleged postal cover was dispatched on 21 June 2018,
during the pendency of the proceedings before the Single
Judge, and merely indicated a postal endorsement ("no such
person") as it arrived when nobody was present at home to
receive it;
(iv) The decree for the dissolution of marriage which was
passed against the appellant by the Trial Judge on 5 December
2013 has been set aside by the High Court on 14 January 2016
and the proceedings have been remanded back to the
jurisdictional Family Court for a disposal afresh. Hence, as of
date, the appellant continues to be in a lawful relationship of
marriage with the Fourth respondent and she has no other
place to live except the suit premises, with her minor
daughter;
(v) The provisions of the Senior Citizens Act 2007 have been
manipulated to defeat the rights of the appellant. The manner
in which the premises were transferred by the spouse of the
appellant to his father and the gift deed thereafter to mother-
in-law of the appellant are indicative of an attempt to misuse
the provisions of the Act, to defeat the claims of the appellant;
and
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(vi) In asserting her right under Section 17 of the PWDV Act
2005, the appellant relies on the decision of this Court in
Satish Chander Ahuja vs Sneha Ahuja 12 . In sum and
substance, it has been urged that the authorities constituted
under the Senior Citizens Act 2007 had no jurisdiction to order
the eviction of the appellant. Moreover, the proceedings have
been utilized to secure the eviction of the appellant so as to
deny her claim of a right to reside in the shared household
under the PWDV Act 2005."
12 Dealing with the issue of jurisdiction, Mr Mahale submitted
that;
(i) The Tribunal constituted under the Senior Citizens Act 2007
has the jurisdiction to pass appropriate orders for protecting
the life and property of parents and senior citizens, including
orders of eviction;
(ii) The intent and object of the Act is to provide for an
inexpensive and speedy relief to parents and senior citizens;
(iii) While Chapter II entitles parents and senior citizens to
apply for orders to provide monetary relief for sustenance and
maintenance, Chapter V contains provisions for protecting the
life and property of parents and senior citizens;
(iv) The Tribunal constituted under the Act has been entrusted
to issue orders after a summary enquiry, for effective
maintenance of parents and senior citizens including relief
against neglect, harassment and protection of the property of
senior citizens;
(v) Section 23 confers two separate and distinct rights:
(a) Section 23(1) empowers the Tribunal to declare a transfer
of property by a senior citizen void, where the transfer was
conditioned upon providing basic amenities and physical
needs to a senior citizen, where the transferee fails to provide
them;
(b) Section 23(2) recognises a pre-existing right of a senior
citizen to receive maintenance out of an estate and secures
the right of making it enforceable against a transferee who
had notice of the right;
(vi) The expression "maintenance" in Section 2(b) includes
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provision for residence and a right to reside can be enforced
by a senior citizen, if the property is transferred without
making a suitable provision for maintenance; and
(vii) Though the Senior Citizens Act 2007 does not contain an
express provision enabling the Tribunal to pass eviction
orders, the power has to be read within its jurisdiction by
necessary implication. Such an interpretation, it has been
urged, would be purposive, in order to effectuate the
provisions of the Act. The contrary view would cause hardship
to senior citizens who would be powerless, despite being
forcibly dispossessed of their means of sustenance. Parliament
has empowered the State governments to authorize local
authorities to take remedial measures for protecting the life
and property of senior citizens and it would be incorrect to
limit the relief that can be granted by a Tribunal only to
monetary relief. Relegating a senior citizen to a civil court for
the recovery of their property would result in defeating the
provisions of the Act. Hence, it has been urged that such an
interpretation should not be adopted.
16. A senior citizen, including a parent, who is unable to
maintain themselves from their own earning or out of property
owned by them, is entitled to make an application under
Section 4(i). A parent or grand-parent may make an
application against one or more of their children. A childless
senior citizen can make an application against a relative
specified in Section 2(g). Section 4 recognises a corresponding
obligation on the part of the children or relative to maintain a
senior citizen, extending to such needs as would enable them
to lead a normal life. In the case of a relative, the obligation is
if they are in possession of the property of the senior citizen or
would inherit property from them. Hence, in the case of the
children of a senior citizen, the obligation to maintain a parent
is not conditional on being in possession of property of the
senior citizen or upon a right of future inheritance.
17 The procedure to be followed by a Maintenance Tribunal
(constituted under Section 7) is of a summary nature as
provided in Section 8(1) and with all the powers of a Civil
Court, as provided in Section 8(2) 17 . Under Sub-section (1) of
Section 9, where a senior citizen is not able to maintain
himself or herself and the children or relatives, as the case
may be, neglect or refuse to maintain them, the Tribunal is
empowered to order them to make a monthly allowance at
such monthly rate for the maintenance of the senior citizen, as
the Tribunal may deem fit 18. The amount of the monthly
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allowance can be altered inter alia upon a change in
circumstances, under Section 10.
18 Of particular relevance to the facts of the case at hand
is Chapter V, which enacts provisions for protecting the life
and property of a senior citizen. Section 23 proceeds in the
following terms:
"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 organisation referred to in Explanation to
sub-section (1) of section 5."
19. Sub-section (1) of Section 23 covers a situation where
property has been transferred after the enactment of the
legislation by a senior citizen (by gift or otherwise) subject to
the condition that the transferee must provide the basic
amenities and physical needs to the transferor. In other words,
Sub-section (1) deals with a situation where the transfer of the
property is accompanied by a specific condition to provide for
the maintenance and needs of a senior citizen. In such an
event, if the transferee fails to provide the maintenance and
physical needs, the transfer of the property is deemed to have
been vitiated by fraud, coercion or under undue influence.
Sub-section 1, in PART C other words, creates a deeming
fiction of the law where the transfer of the property is subject
to a condition and the condition of providing for maintenance
and the basic needs of a senior citizen is not fulfilled by the
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person upon whom the obligation is imposed. Then, at the
option of the transferor, the transfer can be declared as void
by the Tribunal. On the other hand, Sub-section (2) of Section
23 envisages a situation where a senior citizen has a right to
receive maintenance out of an estate. Where such a right
exists, the right of maintenance can be enforced where the
estate or a portion of it, is transferred against a transferor who
has notice of the right; or if the transfer is gratuitous. The right
however cannot be enforced against a transferee for
consideration and without notice of the right. Now, Sub-section
(1) of Section 23 envisages a situation where the transfer of
property is by the senior citizen. This is evident from the
language of sub-Section (1) namely "where any senior citizen
who, after the commencement of this Act, has transferred by
way of gift or otherwise, his property...". On the other hand,
sub-Section (2) of Section 23 does not confine itself to a
transfer by a senior citizen, unlike sub-Section (1). Sub-
Section (2) uses the expression "such estate or part thereof is
transferred". Where a senior citizen has a right to receive
maintenance out of the estate and any part of it is transferred,
sub-section 2 permits the enforcement of the right to receive
maintenance out of the estate against a transferee with notice
or against a gratuitous transferee. Sub-Section (2), in other
words, may cover a situation where the transfer of the estate
(in which a senior citizen has a right to maintenance) is by a
third party, in which event, the provision provides the right to
enforce the claim of maintenance against such transferee
(other than those transferees for consideration PART C or
without notice of the pre-existing right). Arguably, the
language of sub-section (2) is broad enough to also cover a
situation where the transfer is by the senior citizen, in which
event the transferee with notice of the right; or a gratuitous
transferee, can be made subject to the enforcement of the
right against the transferred estate. Another distinction
between sub-Section (1) and sub-Section (2) of Section 23
must also be noticed. Under sub-Section (1), where a transfer
has been made by a senior citizen subject to the condition
that the transferee will provided for basic amenities or
physical needs of the transferor and if there is a failure of the
transferee to fulfil the condition, two consequences follow: (i)
the transfer of property shall be deemed to have been made
by fraud or coercion or under undue influence; and (ii) the
transfer shall, at the option of the transferor, be declared to be
void by the Tribunal. The deeming consequence which is
provided for in sub-Section (1) is not incorporated in sub-
Section (2). Sub-Section (2), in contradistinction, stipulates
that the right to receive maintenance can be enforced against
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a gratuitous transferee or a transferee with notice of the pre-
existing right of a citizen to receive maintenance out of an
estate notwithstanding who is the transferee of the estate. In
keeping with the salutary public purpose underlying the
enactment of the legislation, the expression „transfer‟ would
include not only the absolute transfer of property but also
transfer of a right or interest in the property. This would also
be in consonance with the provisions of Section 2(f) which
defines the expression property to include "rights or interests
in such property". The expression „transfer‟ not having been
defined specifically by the legislation, it must receive an
interpretation which would advance the beneficent object and
purpose of its provisions. Sub-section (2) of PART C section 23
speaks of the enforcement of the "right to receive
maintenance" which is more comprehensive in its nature, than
merely enforcing an order for maintenance passed under
Section 9 of the Act.
20 The substance of sub-Section (2) of section 23, as
submitted by the Second and Third respondents, is that the
Tribunal had the jurisdiction to pass an order directing the
eviction of the appellant who is their daughter-in-law.
According to the submission, the power to order eviction is
implicit in the provision guaranteeing a „right to receive
maintenance out of an estate‟ and the enforcement of that
right. In supporting the submission, they have referred to the
view which has been taken by several High Courts, indicating
that the Tribunal may order the eviction of a child or a relative
from the property of a senior citizen, where there has been a
breach of the obligation to maintain the senior citizen. The
Tribunal under the Senior Citizens Act 2007 may have the
authority to order an eviction, if it is necessary and expedient
to ensure the maintenance and protection of the senior citizen
or parent. Eviction, in other words would be an incident of the
enforcement of the right to maintenance and protection.
However, this remedy can be granted only after adverting to
the competing claims in the dispute. It is necessary to
recapitulate that the situation in the present case is that the
eviction was sought of the daughter-in-law, i.e. the appellant.
The land, where the house has been constructed, was
originally purchased by the son of the applicants who are
seeking eviction of their daughter-in- law. The son had
purchased the property a few months before his marriage to
the appellant. He had subsequently transferred the property
by a registered sale deed to PART D his father and the fact
that it was for the same consideration after the lapse of
several years is of significance. The father, in turn, executed a
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gift deed in favor of his spouse. The appellant has asserted
that she had been living in the house, as her matrimonial
residence, until the application was filed. Her spouse has
(according to her) deserted her and their minor daughter and
left them in the lurch. The electricity to the premises was
disconnected for non-payment of dues. Their daughter has
sought admission to an engineering degree course however
her father- Fourth respondent has not provided any financial
support. The transfers which took place cannot be viewed in
isolation from the context of the on-going matrimonial dispute
which has taken place. The issue is whether the appellant as
the daughter-in-law and the minor daughter could have been
ousted in the above manner.
D A woman's right of residence: safeguard against
domestic violence
21 In arriving at a decision of this issue it becomes necessary
to elucidate the right, which is asserted by the appellant. The
appellant has submitted that the premises constitute a
"shared household" within the meaning of Section 2(s) of the
PWDV Act 2005. Section 2(s) defines the expression "shared
household" in the following terms:
"(s) "shared household" means a household where the person
aggrieved lives or at any stage has lived in a domestic
relationship either singly or along with the respondent and
includes such a household whether owned or tenanted either
jointly by the aggrieved person and the respondent, or owned
or tenanted by either of them in respect of which either the
aggrieved person or the respondent or both jointly or singly
have any right, title, interest or equity and includes such a
household which may belong to the joint family of which the
PART D respondent is a member, irrespective of whether the
respondent or the aggrieved person has any right, title or
interest in the shared household;" (emphasis supplied)
22. Section 19 contemplates the passing of a residence
order by the Magistrate on an application under sub-Section
(1) of Section 12 of the PWDV Act 2005. The essence of the
submission of the appellant is that the order of eviction which
has been made in the exercise of the summary powers
entrusted by the Senior Citizens Act 2007 would completely
displace the appellant from seeking recourse to her remedies
under Section 12(1) read with Section 19 of the PWDV Act
2005 in respect of the premises, which she claims to be her
shared household. The definition of the expression "shared
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household" in Section 2(s) uses the familiar legislative formula
of a "means and includes" definition. Where the definition of
an expression in an enactment adopts a „means and includes‟
stipulation, it is intended to be exhaustive. The „means‟ part
of the definition indicates what would normally fall within the
ambit of the expression, while the „includes‟ element gives it
an extended meaning. Together they indicate that the
legislature has provided for an exhaustive 19. Residence
orders- 1) While disposing of an application under sub-section
(1) of section 12, the Magistrate may, on being satisfied that
domestic violence has taken place, pass a residence order -
(a) restraining the respondent from dispossessing or in any
other manner disturbing the possession of the aggrieved
person from the shared household, whether or not the
respondent has a legal or equitable interest in the shared
household; (b) directing the respondent to remove himself
from the shared household; (c) restraining the respondent or
any of his relatives from entering any portion of the shared
household in which the aggrieved person resides; (d)
restraining the respondent from alienating or disposing off the
shared household or encumbering the same; (e) restraining
the respondent from renouncing his rights in the shared
household except with the leave of the Magistrate; or (f)
directing the respondent to secure same level of alternate
accommodation for the aggrieved person as enjoyed by her in
the shared household or to pay rent for the same, if the
circumstances so require: Provided that no order under clause
(b) shall be passed against any person who is a woman. PART
D enumeration of what falls within the ambit of the definition.
Justice G P Singh in his seminal treatise on the Principles of
Statutory Interpretation21 observes:
"The Legislature has the power to define a word even
artificially. So the definition of a word in the definitions section
may either be restrictive of its ordinary meaning or it may be
extensive of the same. When a word is defined to „mean‟
such and such, the definition is prima facie restrictive and
exhaustive."
30. The meaning which has been attributed above to the
plain language of the definition is in consonance with the
judgment of the three judge Bench in Satish Chandra where it
has been explained as follows:
"55...the definition can be divided in two parts, first, which
follows the word "means" and second which follows the word
"includes". The second part which follows "includes" can be
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further sub-divided in two parts. The first part reads "shared
household means a household where the person aggrieved
has lived or at any stage has lived in a domestic relationship
either singly or along with the respondent". Thus, first
condition to be fulfilled for a shared household is that person
aggrieved lives or at any stage has lived in a domestic
relationship. The second part subdivided in two parts is- (a)
includes such a household whether owned or tenanted either
jointly by the aggrieved person and the respondent and PART
D owned or tenanted by either of them in respect of which
either the aggrieved person or the respondent or both jointly
or singly have any right, title, interest or equity and
(b)includes such a household which may belong to the joint
family of which the respondent is a member, irrespective of
whether the respondent or the aggrieved person has any
right, title or interest in the shared household. In the above
definition, two expressions, namely, "aggrieved person" and
"respondent" have occurred. From the above definition,
following is clear:- (i) it is not requirement of law that
aggrieved person may either own the premises jointly or
singly or by tenanting it jointly or singly; (ii) the household
may belong to a joint family of which the respondent is a
member irrespective of whether the respondent or the
aggrieved person has any right, title or interest in the shared
household; and (iii) the shared household may either be
owned or tenanted by the respondent singly or jointly."
31. After noticing the ambit of the definition of „shared
household‟ and the object and purpose of the PWDV Act of
2005, Justice Ashok Bhushan noted: "Section 2(s) read with
Sections 17 and 19 of Act, 2005 grants an entitlement in
favour of the woman of the right of residence under the
shared household irrespective of her having any legal interest
in the same or not."
32. The expression „respondent‟ has been defined in
section 2 (q) of the PWDV Act of 2005 in the following terms:
"(q) "respondent" means any adult male person who is, or has
been, in a domestic relationship with the aggrieved person
and against whom the aggrieved person has sought any relief
under this Act:"
33. Noticing the above definition and the provisions of
section 2(s), the Court in Satish Chandra held: "64...The
definition of shared household as noticed in Section 2(s) does
not indicate that a shared household shall be one which
belongs to or taken on rent by the husband. We have PART E
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noticed the definition of "respondent" under the Act. The
respondent in a proceeding under Domestic Violence Act can
be any relative of the husband. In [the] event, the shared
household belongs to any relative of the husband with whom
in a domestic relationship the woman has lived, the conditions
mentioned in Section 2(s) are satisfied and the said house will
become a shared household."
34. The Bench concluded that:
"84...The definition of shared household given in Section 2(s)
cannot be read to mean that shared household can only be
that household which is household of the joint family of which
husband is a member or in which husband of the aggrieved
person has a share."
E Harmonising competing reliefs under the PWDV Act
2005 and Senior Citizens Act 2007
35. Section 3623 of the PWDV Act 2005 stipulates that the
provisions of the Act shall be in addition to, and not in
derogation of, the provisions of any other law for the time
being in force. This is intended to ensure that the remedies
provided under the enactment are in addition to other
remedies and do not displace them. The Maintenance and
Welfare of Parents and Senior Citizens Act 2007 is
undoubtedly a later Act and as we have noticed earlier,
Section 3 stipulates that its provisions will have effect,
notwithstanding anything inconsistent contained in any other
enactment. However, the provisions of Section 3 of the Senior
Citizens Act 2007 giving it overriding force and effect, would
not by themselves be conclusive of an intent to deprive a
woman who claims a right in a shared household, as under the
PWDV Act 36-Act not in derogation of any other law- The
provisions of this Act shall be in addition to, and not in
derogation of the provisions of any other law, for the time
being in force PART E 2005. Principles of statutory
interpretation dictate that in the event of two special acts
containing non obstante clauses, the later law shall typically
prevail. 24 In the present case, as we have seen, the Senior
Citizen‟s Act 2007 contains a non obstante clause. However,
in the event of a conflict between special acts, the dominant
purpose of both statutes would have to be analyzed to
ascertain which one should prevail over the other. The primary
effort of the interpreter must be to harmonize, not excise. A
two-judge bench of this Court, in the case of Bank of India v.
Ketan Parekh25, in examining a similar factual scenario,
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observed that:
"28. In the present case, both the two Acts i.e. the Act of 1992
and the Act of 1993 start with the non obstante clause.
Section 34 of the Act of 1993 starts with non obstante clause,
likewise Section 9-A (sic 13) of the Act of 1992. But
incidentally, in this case Section 9-A came subsequently i.e. it
came on 25-1- 1994. Therefore, it is a subsequent legislation
which will have the overriding effect over the Act of 1993. But
cases might arise where both the enactments have the non
obstante clause then in that case, the proper perspective
would be that one has to see the subject and the dominant
purpose for which the special enactment was made and in
case the dominant purpose is covered by that contingencies,
then notwithstanding that the Act might have come at a later
point of time still the intention can be ascertained by looking
to the objects and reasons. However, so far as the present
case is concerned, it is more than clear that Section 9-A of the
Act of 1992 was amended on 25-1-1994 whereas the Act of
1993 came in 1993. Therefore, the Act of 1992 as amended to
include Section 9-A in 1994 being subsequent legislation will
prevail and not the provisions of the Act of 1993." (emphasis
supplied)
38. The above extract indicates that a significant object of
the legislation is to provide for and recognize the rights of
women to secure housing and to recognize the right of a
woman to reside in a matrimonial home or a shared
household, whether or not she has any title or right in the
shared household. Allowing the Senior Citizens Act 2007 to
have an overriding force and effect in all situations,
irrespective of competing entitlements of a woman to a right
in a shared household within the meaning of the PWDV Act
2005, would defeat the object and purpose which the
Parliament sought to achieve in enacting the latter legislation.
The law protecting the interest of senior citizens is intended to
ensure that they are not left destitute, or at the mercy of their
PART E children or relatives. Equally, the purpose of the PWDV
Act 2005 cannot be ignored by a sleight of statutory
interpretation. Both sets of legislations have to be
harmoniously construed. Hence the right of a woman to
secure a residence order in respect of a shared household
cannot be defeated by the simple expedient of securing an
order of eviction by adopting the summary procedure under
the Senior Citizens Act 2007.
39. This Court is cognizant that the Senior Citizens Act 2007
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was promulgated with a view to provide a speedy and
inexpensive remedy to senior citizens. Accordingly, Tribunals
were constituted under Section 7. These Tribunals have the
power to conduct summary procedures for inquiry, with all
powers of the Civil Courts, under Section 8. The jurisdiction of
the Civil Courts has been explicitly barred under Section 27 of
the Senior Citizens Act 2007. However, the over-riding effect
for remedies sought by the applicants under the Senior
Citizens Act 2007 under Section 3, cannot be interpreted to
preclude all other competing remedies and protections that
are sought to be conferred by the PWDV Act 2005. The PWDV
Act 2005 is also in the nature of a special legislation, that is
enacted with the purpose of correcting gender discrimination
that pans out in the form of social and economic inequities in
a largely patriarchal society. In deference to the dominant
purpose of both the legislations, it would be appropriate for a
Tribunal under the Senior Citizens Act, 2007 to grant such
remedies of maintenance, as envisaged under S.2(b) of the
Senior Citizens Act 2007 that do not result in obviating
competing remedies under PART E other special statutes, such
as the PWDV Act 2005. Section 2627 of the PWDV Act
empowers certain reliefs, including relief for a residence order,
to be obtained from any civil court in any legal proceedings.
Therefore, in the event that a composite dispute is alleged,
such as in the present case where the suit premises are a site
of contestation between two groups protected by the law, it
would be appropriate for the Tribunal constituted under the
Senior Citizens Act 2007 to appropriately mould reliefs, after
noticing the competing claims of the parties claiming under
the PWDV Act 2005 and Senior Citizens Act 2007. Section 3 of
the Senior Citizens Act, 2007 cannot be deployed to over-ride
and nullify other protections in law, particularly that of a
woman‟s right to a „shared household‟ under Section 17 of
the PWDV Act 2005. In the event that the "aggrieved woman"
obtains a relief from a Tribunal constituted under the Senior
Citizens Act 2007, she shall duty-bound to inform the
Magistrate under the PWDV Act 2005, as per Sub-section (3) of
Section 26 of the PWDV Act 2005. This course of action would
ensure that the common intent of the Senior Citizens Act 2007
and the PWDV Act 2005- of ensuring speedy relief to its
protected groups who are both vulnerable members of the
society, is effectively realized. Rights in law can translate to
rights in life, only if there is an equitable ease in obtaining
their realization. 26. Relief in other suits and legal
proceedings. --(1) Any relief available under sections 18,
19,20, 21 and 22 may also be sought in any legal proceeding,
before a civil court, family court or a criminal court, affecting
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the aggrieved person and the respondent whether such
proceeding was initiated before or after the commencement of
this Act. (2) Any relief referred to in sub-section (1) may be
sought for in addition to and along with any other relief that
the aggrieved person may seek in such suit or legal
proceeding before a civil or criminal court. (3) In case any
relief has been obtained by the aggrieved person in any
proceedings other than a proceeding under this Act, she shall
be bound to inform the Magistrate of the grant of such relief.
PART E
40. Adverting to the factual situation at hand, on construing
the provisions of sub- Section (2) of section 23 of the Senior
Citizen Act 2007, it is evident that it applies to a situation
where a senior citizen has a right to receive maintenance out
of an estate and such estate or part thereof is transferred. On
the other hand, the appellant‟s simple plea is that the suit
premises constitute her „shared household‟ within the
meaning of Section 2(s) of the PWDV Act 2005. We have also
seen the series of transactions which took place in respect of
the property: the spouse of the appellant purchased it in his
own name a few months before the marriage but
subsequently sold it, after a few years, under a registered sale
deed at the same price to his father (the father-in-law of the
appellant), who in turn gifted it to his spouse i.e. the mother-
in-law of the appellant after divorce proceedings were
instituted by the Fourth respondent. Parallel to this, the
appellant had instituted proceedings of dowry harassment
against her mother-in-law and her estranged spouse; and her
spouse had instituted divorce proceedings. The appellant had
also filed proceedings for maintenance against the Fourth
respondent and the divorce proceedings are pending. It is
subsequent to these events, that the Second and Third
respondents instituted an application under the Senior Citizens
Act 2007. The fact that specific proceedings under the PWDV
Act 2005 had not been instituted when the application under
the Senior Citizens Act, 2007 was filed, should not lead to a
situation where the enforcement of an order of eviction
deprives her from pursuing her claim of entitlement under the
law. The inability of a woman to access judicial remedies may,
as this case exemplifies, be a consequence of destitution,
ignorance or lack of resources. Even otherwise, we are clearly
of the view that recourse to the summary PART F procedure
contemplated by the Senior Citizen Act 2007 was not available
for the purpose of facilitating strategies that are designed to
defeat the claim of the appellant in respect of a shared
household. A shared household would have to be interpreted
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
to include the residence where the appellant had been jointly
residing with her husband. Merely because the ownership of
the property has been subsequently transferred to her in-laws
(Second and Third Respondents) or that her estranged spouse
(Fourth respondent) is now residing separately, is no ground to
deprive the appellant of the protection that was envisaged
under the PWDV Act
F Summation
41. For the above reasons, we have come to the conclusion
that the claim of the appellant that the premises constitute a
shared household within the meaning of the PWDV Act 2005
would have to be determined by the appropriate forum. The
claim cannot simply be obviated by evicting the appellant in
exercise of the summary powers entrusted by the Senior
Citizens Act 2007. The Second and Third Respondents are at
liberty to make a subsequent application under Section 10 of
the Senior Citizens Act 2007 for alteration of the maintenance
allowance, before the appropriate forum. For the above
reasons, while allowing the appeal, we issue the following
directions: (i) The impugned judgment and order of the
Division Bench of the High Court of Karnataka dated 17
September 2019 affirming the order of PART F eviction
against the appellant shall stand set aside with the
consequence that the order of the Assistant Commissioner
ordering and directing the appellant to vacate the suit
premises shall stand set aside; (ii) We leave it open to the
appellant to pursue her remedies under the PWDV Act 2005.
For that purpose, it would be open to the appellant to seek the
help of the District Legal Services Authorities and if the
appellant does so, all necessary aid and assistance shall be
furnished to her in pursuing her legal remedies and rights; (iii)
IA 111352/2020 for restoration of the electricity connection is
allowed by directing the Fourth respondent to take all
necessary steps for restoration of the electricity connection to
the premises within a period of two weeks from the receipt of
a certified copy of this judgment. The Fourth respondent shall
also continue to pay the electricity dues in future; and (iv) In
order to enable the appellant to pursue her remedies under
the PWDV Act 2005, there shall be an order and direction
restraining the respondents from forcibly dispossessing the
appellant, disposing of the premises or from creating any
right, title and interest in favor of any third party in any
manner whatsoever for a period of one year, to enable the
appellant to pursue her remedies in accordance with law. The
appellant is at liberty to move the Court to espouse her
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
remedies PART F under the PWDV Act 2005 for appropriate
orders, including interim protections."
18. On facts on hand what is indicative is that it is not
disputed that the site of the contestation that is the
premises in question was purchased by the mother-in-
law herself prior to the marriage entered into between
the Petitioner and her son. The property was purchased
in the year 2006 whereas the marriage was solemnized
in the year 2012.
19. The Petitioner as a result of her misbehavior faced a
Chapter Case where she was arrested and
subsequently released on bail and then she moved out
of the matrimonial house. The mother-in-law had
already been compelled to stay in a rented premises at
Rajkot before the Petitioner moved out of the property
that belonged to the mother-in-law. Therefore the
Petitioner was not a part of the "shared household"
when the Application under the Domestic Violence Act
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
or the Senior Citizens Act were filed. In fact the mother-
in-law had filed the Application under the Senior
Citizens Act on 19.7.2021 and thereafter the Petitioner
filed an Application under the Domestic Violence Act on
08.09.2021.
20. What was also an undisputed fact that the husband had
locked the house on 15.3.2020 after filing a complaint
where the Petitioner was arrested, released on bail and
went to reside at her parents' residence. On a
subsequent date, it has come on record that when the
Petitioner filed a complaint before the Police
Authorities,she admitted that as she could not have the
keys of the household she broke open the lock and
entered the suit premises. This was also corroborated
by the statements given by the neighbours of the
household that belonged to the mother-in-law.
21. The distinguishing feature that stares on the face of the
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
facts that are distinct from the facts before the
Supreme Court are as under:
a). The property was found in the ownership of the
mother-in-law before the Hon'ble Supreme Court by "a
series of transactions which took place in respect of the
property: the spouse of the appellant having purchased
it in his own name a few months before the marriage
but subsequently sold it, after a few years, under a
registered sale deed at the same price to this father
(the father-in-law of the appellant), who in turn gifted it
to his spouse i.e. the mother-in-law of the appellant
after the divorce proceedings were initiated" by the
husband.
(b) In the present case the property admittedly was
owned by the mother-in-law before marriage and she
had to move out and shift to Rajkot before the
Petitioner moved out of the shared household after a
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
police complaint was filed. The Petitioner therefore had
deprived the mother-in-law of the property owned by
her and admittedly after having left too moved in after
breaking open the lock and therefore the eviction of
the Petitioner was necessary as she had moved in
contrary to law after breaking open the lock.
22. The composite dispute therefore as observed by the
Supreme Court has to be decided and the relief has to
be moulded accordingly considering the harmony
between the two competing statutes. It is here that the
provisions of Section 19 of the Domestic Violence Act
come into play.
23. Apart from Section 17,Section 19(1)(f) provides that
while disposing of an application under Section 12 of
the Domestic Violence Act the Magistrate may on being
satisfied that the domestic violence has taken place
pass a residence order directing that the respondent
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
secure the same level of alternative accommodation
for the aggrieved person as enjoyed by her in the
shared household or pay rent for the same, if the
circumstances so require. In the present proceedings,
an Affidavit has been filed by the respondent that the
husband ,the "respondent" as defined, under the
Domestic Violence Act has offered to provide the wife,
"aggrieved person" so defined a separate residence by
renting a property in the area of the Petitioner's choice
within the Gondal Town which is an accommodation of
the same level. A further affidavit has been filed during
the course of the proceedings today that several open
plots of land were purchased by the Petitioner and one
Sonal Savaliya holding 50% share over the said
property. After purchasing the property, several
tenements have been raised on the land four of which
have remained unsold which are in the ownership of
the petitioner and Sonal Savaliya. The Respondent
No.1 further states that with a view to put an end to
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
the litigation,out of those 4 tenements on which the
petitioner holds 50% of the share, Ms Sonal Savaliya is
willing to relinquish her right in favour of the Petitioner
in respect of 2 tenements of the Petitioner's choice
within a week from today and the husband of the
petitioner is willing to provide all the suitable
necessities i.e. Bed, Sofa, Television, Refrigerator,
Washing Machine, water heater as well as all necessary
requirements for functioning of the kitchen in one of
the said tenements of the Petitioner's choice, The case
of moulding the relief in order to ensure that the
remedies provided under the enactment are in addition
to the other remedies and do not displace them has to
be considered.
24. In the facts as before this Court it is not a case where
the right of the Petitioner is defeated by the mother-in-
law in securing an order of eviction adopting the
summary procedure under the Senior Citizens Act.
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
Here is a case where unlike the facts before the
Supreme Court, the property belonged to the mother-
in-law and she was compelled to move out to a
tenanted premises and had to lock her own premises.
The Petitioner forcibly moved in to the premises in
question after breaking the lock after having shifted to
her parental home. This was therefore a clear case
where the mother-in-law had a right to have her
possession restored and a decree of eviction needed to
be passed in light of the provisions of Section 23 of the
Senior Citizens Act.
25. The moulding of a relief in harmony of competing
disputes have to be viewed accordingly. The relief has
to be accordingly moulded. It is clear that initially the
husband of the Petitioner had offered a rented
accommodation. An affidavit is on record. Even during
the course of proceedings, a further affidavit of which
the offer has been narrated are put on record which is
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
a sufficient compliance of Section 19(1)(f) of the
Domestic Violence Act.
26. Therefore the orders of the competent authority dated
09.11.2021 and 21.03.2022 are hereby confirmed. The
petition is dismissed. Rule is discharged. Interim relief
stands vacated. No costs.
27. Mr. Pratik Y. Jasani, learned counsel for the petitioner
requests that by virtue of the order dated 4.4.2020 by
which parties were directed to maintain status-quo be
continued for a period of four weeks. At the request of
Mr. Jasani, learned counsel for the petitioner, the order
of status-quo shall continue till 03.02.2023.
Sd/-
(BIREN VAISHNAV, J)
VATSAL
