Gujarat High Court

Lataben W/O Vyomeshbhai Makwana ... vs Mohanlal Maganlal Makwana on 5 October, 2023

Bench: Vaibhavi D. Nanavati

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 23297 of 2019

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     LATABEN W/O VYOMESHBHAI MAKWANA AND D/O PRAVINBHAI
                           PARMAR
                            Versus
                 MOHANLAL MAGANLAL MAKWANA
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Appearance:
MR JIGAR D DAVE(6528) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
MOIZ K RAFIQUE(8043) for the Respondent(s) No. 1
MR D V KANSARA(7498) for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                           Date : 05/10/2023

                             ORAL ORDER

1. By way of present petition, the petitioner herein has

prayed for quashing and setting aside the order dated

21.11.2019 passed by the President, Maintenance Tribunal and

Sub-Divisional Magistrate (East), Ahmedabad in Parent Act -

Appeal No.23 of 2019.

2. The brief facts leading to the filing of the present petition

read thus:

2.1 The petitioner herein is daughter-in-law of the respondent

No.1. The respondent No.1 had written a letter to the District

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Collector, Ahmedabad, which narrated that the respondent

No.4 (husband of the petitioner herein and son of the

respondent No.1) is residing illegally in the property of the

respondent No.1 and requested the Collector to handover the

possession of the property-in-question, which is a residential

property being 1/A, 1st Floor, Bhartiyanagar Co. Op. Housing

Society, Gordhanwadi Cross Road, Kankaria, Ahmedabad, from

the respondent No.4 i.e. husband of the present petitioner,

under the Maintenance and Welfare of Parents and Senior

Citizens Act, 2007 (as Amended in 2019). The respondent No.2

by order dated 21.11.2019 allowed the said application being

Parent Act- Appeal No.23 of 2019. The relevant part of the said

order dated 21.11.2019 reads thus: (true translation)

"The final order of Ld. Court shall be binding on the parties. The applicant states in his application that he is being harassed. I, the respondent, do not harass him. The applicant, at the instigation of his daughter Ushaben Makwana, wants to get the house vacated so as to make us homeless and to take possession of the said house to sell the same. The applicant files false cases against me due to instigation. Further, my wife Lataben has filed a case against me in the Metro Court. The respondent has stated by way of affidavit of neighbours residing in Bhartiynagar that it is not felt that respondent or his wife and his son or daughter has ever harassed applicant mentally or driven him out of the house. Ushaben Kapadiya, who happens to be daughter of Mohanbhai Maganbhai Makwana, wants to usurp the property situated in Bhartiynagar Society, Kankariya, Ahmedabad, and frequently instigates Mohanlal Makwana to get aforesaid property vacated by Vyomesh Makwana, Lataben and his children. Mohanlal Makwana has made this application before you at the instance of Ushaben Kapadiya. The same is declared by way of the affidavit. As matter being subjudice, you do not have jurisdiction in connection with the present application, and therefore, it is prayed to reject the application.







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                                     -:: ORDER ::-

The application of the applicant is allowed. In pursuance of the section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and in exercise of the powers conferred by Notification dated 19/05/2009 of Department of the Social Justice and Empowerment, Government of Gujarat, and this Department' Circular No. VNP-10- 2009-CTS-11-(284997)-CHH dated 21/03/2013, respondent no. 1 Mr. Vyomesh Maganlal Makwana is hereby ordered to hand over the direct possession of vacant house to the applicant Mr. Mohanlal Maganlal Makwana and to pay Rs. 5000/- per month to him towards maintenance latest by fifth of every month.

If aggrieved by aforesaid order, appeal can be preferred to the District Magistrate, Ahmedabad within 60 days.

The applicant/respondents be informed of this order.

Pronounced in the open Court today on 21/11/2019."

2.2 The petitioner herein being aggrieved by the said order,

is constrained to approach this Court invoking Article 226 of

the Constitution of India and has prayed for the following

reliefs:

"(A) This Hon'ble Court may be pleased to admit and allow the present petition;

(B) This Hon'ble Court may be pleased to issue a writ of mandamus or any other writ, order or direction, by quashing and setting aside the Order dated 21.11.2019 passed by the President, Maintenance Tribunal and Sub-Divisional Magistrate (East), Ahmedabad in Parent Act - Appeal No.23/2019 in the interest of justice and further be pleased to quash and set aside the Notice issued by the Police Inspector, Kagdapith Police Station, Ahmedabad dated 21.12.2019 pursuant to the Order passed by the President, Maintenance Tribunal and Sub-Divisional Magistrate (East), Ahmedabad in Parent Act - Appeal No.23/2019 in the interest of justice;

(C) Pending admission, hearing and final disposal of the present petition, this Hon'ble Court may be pleased to stay the implementation, execution and operation of the Order passed by the President, Maintenance Tribunal and Sub-Divisional Magistrate (East), Ahmedabad in Parent Act - Appeal No.23/2019 and also be pleased to stay the Notice issued by the Police Inspector, Kagdapith Police Station, Ahmedabad dated 21.12.2019 in the interest of justice;

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(D) Pending admission, hearing and final disposal of the present petition, this Hon'ble Court may be pleased to direct the respondents not to take any coercive action against the present petitioner and her family members regarding taking over the possession of the property in question in the interest of justice;

(E) That this Hon'ble Court may be pleased to pass such further and other orders or directions as the nature and circumstances of the case may require."

3. Heard Mr. Jigar M. Dave, learned advocate appearing for

the petitioner, Ms. Dipali Patel, learned advocate for Mr. Moiz

K. Rafique, learned advocate appearing for the respondent

No.1 and Mr. D.V. Kansara, learned advocate appearing for the

respondent No.4.

4. Mr. Jigar Dave, learned advocate appearing for the

petitioner, submitted that the respondent No.1 was the Karta

of the HUF family and the same is reflected from the sale deed

in the name of the respondent No.1 with respect to the subject

property. Mr. Dave, learned advocate, submitted that the

respondent No.1 has two other properties and is receiving

Pension amount of Rs.1,05,000/- from the Government of

Gujarat and is also receiving Family Pension of Rs.13,000/-

(approx.) of his wife and therefore, it is not the case that the

respondent No.1 is not in a position to maintain himself on his

own earning or out of the property owned by him.








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4.1     Mr. Dave, learned advocate, submitted that the petitioner

was not a party in the aforesaid proceedings; no notice was

issued to the petitioner before passing the impugned order.

The petitioner and the respondent No.4 are residing

separately. Mr. Dave, learned advocate, submitted that the

petitioner is also in the possession of the property and the

petitioner is also a member of the HUF family and in view

thereof, the petitioner is required in the proceedings before the

respondent No.2 - Authority. Mr. Dave, learned advocate,

submitted that it is well settled that a person cannot be

condemned without being heard and no adverse order can be

passed without being heard in the interest of justice and in

view thereof, the order impugned dated 21.11.2019 passed by

the respondent No.2 - Authority is required to be quashed and

set aside on the sole ground of violation of principles of natural

justice.

4.2 Mr. Dave, learned advocate, submitted that no reasons

are assigned by the respondent No.2 - Authority before

passing of the impugned order. Mr. Dave, learned advocate,

submitted that the application is not filed in a proper format

and that, no affidavit in support of the application is filed by

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the respondent No.1. Mr. Dave, learned advocate, submitted

that the respondent No.2 - Authority cannot give direction for

handing over the possession of the property and the said

direction results in the respondent No.2 - Authority assuming

jurisdiction of the Civil Court. Mr. Dave, learned advocate,

submitted that it is only the Civil Court which can pass the

order of handing over the possession of the property and/or

directing any person to evict the property and on the said

ground also, the impugned order is required to be interfered

with.

4.3 Mr. Dave, learned advocate, submitted that no procedure

was followed by the respondent No.2 - Authority while passing

the impugned order and on the ground of procedural

irregularities also the impugned order is required to be

quashed and set aside. Mr. Dave, learned advocate, submitted

that the respondent No.1 preferred the said application before

the respondent No.2 - Authority in connivance with the

husband of the petitioner i.e. respondent No.4 herein.

4.4 Mr. Dave, learned advocate, submitted that the petitioner

herein has instituted Civil Suit before the City Civil Court,

Ahmedabad, being Regular Civil Suit No.1081 of 2019 for the

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property-in-question, copy of which is duly produced at

Annexure - C to the petition. Reliance was placed on the Panch

Rojkam undertaken pursuant to the order passed in Civil Suit

wherein, it is stated that while the respondent No.1 is in the

possession of the ground floor, the petitioner and her children

are also in possession of the said property.

4.5 Mr. Dave, learned advocate, submitted that the petitioner

preferred an Appeal under the Domestic Violence Act before

the City Civil Court, Ahmedabad, being Criminal Appeal No.574

of 2019. The petitioner preferred Criminal Misc. Application

No.2629 of 2019 under the provisions of the Domestic Violence

Act, which came to be partly allowed wherein, by order dated

31.03.2022, the respondent No.4 was directed to pay

Rs.4,000/- towards maintenance and the same came to be

rejected qua the respondent No.1 and the petitioner's sister-in-

law namely Ushaben. However, reliance was placed on Clause

- 4 of the said order wherein, it was held that the petitioner

herein being wife of the respondent No.4 and daughter-in-law

of the respondent No.1 was entitled to her right of shared

household and the respondent Nos.1, 2 and 3 in the said

proceedings were directed not to drove out the petitioner

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through themselves or their agents from the subject property.

Placing reliance on the same, it was submitted that the petition

is required to be allowed on the that both the Domestic

Violence Act and the Senior Citizens Act, are special Acts and

equities are required to be balanced qua the petitioner as well

as the respondent No.1 and in view thereof, the order

impugned is required to be quashed and set aside.

5. Ms. Dipali Patel, learned advocate appearing for the

respondent No.1, at the outset, submitted that the respondent

No.1 herein is aged 96 years and the respondent No.1 has

undergone undue harassment at the instance of the petitioner

and the respondent No.4 and in view thereof, the respondent

No.1 was constrained to approach the Maintenance Tribunal

for the reliefs as prayed for in the said application. Ms. Patel,

learned advocate, submitted that while the respondent No.1 is

at the twilight of his life, the respondent No.1 seeks to reside

peacefully and in view thereof, the reliefs as sought for in the

application are just and proper.

5.1 Ms. Dipali Patel, learned advocate, submitted that the

petitioner herein filed the complaint under the Domestic

Violence Act and approached the Deputy Commissioner of

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Police to get the house vacated from the possession of the

respondent No.4 on 18.04.2019. The petitioner preferred

Criminal Misc. Application No.2629 of 2019 under the Domestic

Violence Act thereafter, on 15.05.2019 and the order came to

be passed by the competent authority on 21.05.2019.

5.2 Placing reliance on the aforesaid submissions, it was

submitted that the petitioner herein preferred the said

complaint under the Domestic Violence Act to over reach the

process of law and cause further harassment to the respondent

No.1 herein and on the said ground, no interference is called

for in the impugned order.

5.3 Reliance was placed on the order passed by the Hon'ble

Delhi High Court in WP(Civil) No.15291 of 2022 dated

13.04.2023.

Analysis

6. Having heard the learned advocates appearing for the

respective parties, following emerge for the consideration of

this Court:



6.1     The respondent No.1 herein preferred an application






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before the Sub-Divisional Magistrate under the Maintenance

and Welfare of Senior Citizens and Parents Act, 2007 (for short

'the Act, 2007') on 18.04.2019, following which, had issued a

letter to the learned Collector dated 21.05.2019 requesting the

authority to take cognizance of the matter. The learned

Collector had remanded the matter to the Maintenance

Tribunal wherein, vide order dated 21.11.2019, the

Maintenance Tribunal directed the petitioner and the

respondent No.4 to vacate the property of respondent No.1

under the Act, 2007. The application filed by the respondent

No.1 came to be allowed with a direction to the respondent

No.4 to handover the possession of the property-in-question to

the respondent No.1 and further, directed to pay Rs.4000/-

towards maintenance latest by 5th of every month. The said

direction is qua respondent No.4 only.

6.2 In the meantime, the petitioner herein initiated

proceedings against the respondent No.1, respondent No.4 and

daughter of respondent No.1 namely Ushaben wherein, in the

said proceedings, while rejecting the appeal against the

respondent No.1 and daughter of the respondent No.1 -

Ushaben (sister-in-law of the petitioner), it is directed that the

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petitioner not to be dispossessed from the property-in-question

considering that the subject premises are ownership of the

respondent No.1, the petitioner in her capacity as wife of the

respondent No.4 and daughter-in-law of the respondent No.1 is

entitled to her rights in the subject property and in view

thereof, the respondent Nos.1, 2 and 3 are restrained from

creating any encumbrance to the petitioner herein in any

manner in the said property either by themselves or through

their agents.

6.3 It is undisputed that the petitioner herein is residing with

her two children in the subject premises, which is a residential

premises. While issuing the Notice, interim relief came to be

granted in terms of paragraph 8(D) by order dated 27.12.2019.

On 06.02.2023, following order came to be passed:

"1. The challenge in this petition is to orders dated 21.11.2019 and 21.12.2019 passed by the Tribunal and the Police Inspector, Kagdapith Police Station respectively under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

2. It is the case of the petitioner who is the daughterin-law of respondent no. 1 that the Tribunal in an application at the hands of the respondent no. 1 - fatherin-law of the petitioner passed an order of eviction of his son which took in its fold eviction of the petitioner too. The relationship between the son of respondent no. 1 (husband of petitioner) against whom the petition was filed and the petitioner are not cordial. It is further the case of the petitioner and which is undisputed that though proceedings between the petitioner and the contesting respondent son before the Tribunal are pending under the Domestic Violence Act.








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3. The fact remains that the petitioner continues to occupy the subject premises on the first floor. The respondent no. 1 is residing with his daughter (sister-inlaw of the petitioner). Ad-interim relief was granted by this court on 27.12.2019 without noticing the fact that the son who was a necessary party to this petition has not been joined in the proceedings. The ground floor of the subject premises is vacant and it is the case of the respondent no. 1 that he is not being permitted to enter into the premises by the petitioner and the son.

4. Leave to add Vyomesh Mohanlal Makwana as party respondent no.

4. Notice to the newly added party returnable on 22.02.2023. In the meantime, respondent no. 3 - Police Inspector shall see that the respondent no. 1, if willing to enter the premises for peaceful residence, shall not be restrained from entering his premises. Ad- interim relief granted earlier is accordingly modified. Direct service is permitted."

6.4. It is vehemently submitted by the learned advocate

appearing for the respondent No.1 that the premises are self-

acquired property of the respondent No.1 and the respondent

No.1 being Senior Citizen has a right to live peacefully by

himself.

7. At this stage, it is apposite to refer to the order dated

31.03.2022 passed in the Criminal Misc. Application No.2629 of

2019, which is instituted by the petitioner herein under the

Domestic Violence Act, 2005 which reads thus: (true

translation)

-:: O R D E R ::-

(1) The application of the applicant is partly allowed qua respondent no. 1 and rejected qua respondent no. 2 and 3.

(2) The respondent no. 1 is ordered to pay Rs. 4000/- (Rupees Four Thousand only) per month towards maintenance to the applicant from the date of main application including all the outstanding amount. Apart from this, no order in respect of all the reliefs as discussed in the judgement is made.







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        (3)    The Respondent no. 1 is ordered to pay Rs. 2000/- (Rupees Two

Thousand Only) separately to the applicant towards the costs of the application.

(4) As per the order of Hon'ble Supreme Court, it is declared that applicant, being the duaghter-in-law, has a right to reside in the place owned by the father of the respondent no. 1. The respondent nos. 1, 2 and 3 shall not make efforts by themselves or through other persons or agents to drive the applicant out of the residential accommodation.

(5) A copy of the order be furnished to the parties to the application free of cost in accordance with section 24 of this Act. A copy of the order also be forwarded to the Protection Officer, Ahmedabad, and P.S.I. of the concerned police station immediately for information as per section 20(4).

(6) With a view to use latest technology and subject to the judgements of Hon'ble Gujarat High Court, applicant shall have to produce a xerox copy of the bank passbook showing account number along with documentary evidence list today in the Court so that he may get maintenance amount as the per order passed by this Court at doorstep and respondent no. 1 may find convenient to pay aforesaid amount. A copy of the same also be provided to the respondent today itself.

If, at present, the applicant does not hold bank account, he shall have to get his account opened in the bank within 15 days and to send xerox copy of the first page of the passbook to the respondent at the residential address mentioned in the application at Exh. No. 1 through Registered Post A.D. The evidence of having sent the same shall have to be adduced in this case. Accordingly, respondent no. 1 shall have to pay the amount mentioned in the order regularly otherwise respondent shall have to bear the costs of the application, which shall be made by the applicant in future for getting aforesaid amount.

Pronounced in the open Court today 31st March, 2022."

8. Considering the aforesaid, it is apposite to refer to the

position of law, which read thus:

8.1 The Hon'ble Supreme Court in case of Smt. S. Vanitha Vs.

Deputy Commissioner, Bengaluru Urban District and Others,

reported in AIR 2021 SC 177 has observed in paragraphs 21,

22 and 23 as under:

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"21. In this case, both pieces of legislation are intended to deal with salutary aspects of public welfare and interest. The PWDV Act 2005 was intended to deal with the problems of domestic violence which, as the Statements of Objects and Reasons sets out, "is widely prevalent but has remained largely invisible in the public domain". The Statements of Objects and Reasons indicates that while Section 498A of the Indian Penal Code created a penal offence out of a woman ‟ss subjection to cruelty by her husband or relative, the civil law did not address its phenomenon in its entirety. Hence, consistent with the provisions of Articles 14, 15 and 21 of the Constitution, Parliament enacted a legislation which would "provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society". The ambit of the Bill has been explained thus:

"4. The Bill, inter alia, seeks to provide for the following:- (i) It covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation. However, whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner. (ii) It defines the expression "domestic violence" to include actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition. (iii) It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate. (iv) It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence. (v) It provides for appointment of Protection Officers and registration of non-governmental organisations as service providers for providing assistance to the aggrieved person with respect to her medical examination, obtaining legal aid, safe shelter, etc."

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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 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.

22. This Court is cognizant that the Senior Citizens Act 2007 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 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‟ss right to a „shared household‟s 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

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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.

23. Adverting to the factual situation at hand, on construing the provisions of subSection (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 ‟ss simple plea is that the suit premises constitute her „shared household ‟s 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 motherin- 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 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 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 2005."

8.2. The Hon'ble Supreme Court considered both the above

mentioned legislations and noted that according to Senior

Citizens Act, Senior citizens may have the authority to order an

eviction but only if it is necessary to ensure the maintenance

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of the senior citizens or the parents.

8.3 The Hon'ble Supreme Court held that the law protecting

the interest of senior citizens is intended to ensure that they

are not left destitute, or at the mercy of their children or

relatives and on the other hand, the purpose of the PWDV Act

2005 can't be ignored by a sleight of statutory interpretation.

8.4 It was held that both the statutes should be harmoniously

construed. 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.

8.5 The Hon'ble Supreme Court observed that since both the

legislations are important special legislations, neither of them

can be ignored and 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. In view thereof, it was held that 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

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right to a "shared household‟ under Section 17 of the PWDV under Section 17 of the PWDV

Act 2005.

9. Considering the position of law, as referred above, in the

opinion of this Court, the respondent No.1 is a senior citizen

and is entitled to live peacefully in the respondent No.1's self

acquired subject property, the petitioner herein is also an

estranged wife of the respondent No.4 and the claim of the

petitioner cannot be simply obliterated by evicting her in

exercise of summary powers entrusted under the Maintenance

and Welfare of Parents and Senior Citizens (Amendment) Act,

2019 (for short 'the Act, 2019').

10. At this stage, Ms. Dharitri Pancholi, learned AGP placed

reliance on the definition of section 2(b) as also 2(k) of the Act,

2019, and submitted that it is necessary that a person be

permitted to live life of dignity. In the opinion of this Court,

both the petitioner as well as the respondent No.1 are entitled

to a dignified life.

11. It is also apposite to refer to the provisions of the

Maintenance and Welfare of Parents and Senior Citizens

(Amendment) Act, 2019. Sections 2(b) and 2(k) of the Act read

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thus:

"2(b) "maintenance" includes provision for food, clothing, housing, safety and security, medical attendance, healthcare and treatment necessary to lead a life of dignity;

2(k). "welfare" means provision for food, clothing, housing, safety and security, medical attendance, healthcare, treatment, recreation and other amenities necessary for the physical and mental well being of the parents and senior citizens".

12. Right to life enshrined in Article 21 means something

more than survival or animal existence. The concept of "right

to life and personal liberty" guaranteed under Article 21 of the

Constitution would include the "right to live with dignity".

12.1 At this stage, it is apposite to refer to the ratio as laid

down by the Hon'ble Supreme Court in case of Francis Coralie

Mullin Vs. The Administrator, Union Territory of Delhi and

Others, reported in AIR 1981 SC 746. Paragraphs 5, 6 and 7 of

the said decision read thus:

"5 ....."Legislation, both statutory and constitutional is enacted, it is true, from an experience of evils, but- its general language should not, therefore, be necessarily confined to the form that evil had, therefore taken. Time works changes, brings into existence new conditions and purposes. Therefore, a principle, to be vital, must be capable of wider application than mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, "designed to approach immorality as nearly as human institutions can approach it" The future is their care, and provisions for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little

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value, and be converted by precedent into important and lifeless formulas. Rights declared in the words might be lost in reality. And this has been recognised. The meaning and vitality of the Constitution have developed against narrow and restrictive construction."

This principle of interpretation which requires that a Constitutional provision must be construed, not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that the Constitutional provision does not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems and challenges, applies with greater force in relation to a fundamental right enacted by the Constitution. The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person.

6. Now obviously, the right to life enshrined in Article 21 can not be restricted to mere animal existence. It means something much more than just physical survival. In Kharak Singh v. State of Uttar Pradesh Subba Rao J. quoted with approval the following passage from the judgment of Field J. in Munn v. Illinois to emphasize the quality of life covered by Article 21:

"By the term "life" as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world."

and this passage was again accepted as laying down the correct law by the Constitution Bench of this Court in the first Sunil Batra case (supra). Every limb or faculty through which life is enjoyed is thus protected by Article 21 and a fortiorari, this would include the faculties of thinking and feeling. Now deprivation which is inhibited by Article 21 may be total or partial, neither any limb or faculty can be totally destroyed nor can it be partially damaged. Moreover it is every kind of deprivation that is hit by Article 21, whether such deprivation be permanent or temporary and, furthermore, deprivation is not an act which is complete once and for all: it is a continuing act and so long as it lasts, it must be in accordance with procedure established by law. It is therefore clear that any act which damages or injures or interferes with the use of, any limb or faculty of a person, either permanently or even temporarily, would be within the inhibition of Article 21.

7. But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and

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shelter and facilities for reading, writing and expressing one-self in diverse forms, freely moving about and mixing and commingling with fellow human beings."

13. Considering the aforesaid, no interference is called for in

the order impugned dated 21.11.2019 passed in Appeal No.23

of 2019 wherein, the directions are issued against the

respondent No.4 and the respondent No.4 is not before this

Court and in view thereof, no further orders are required to be

passed in the present petition considering the fact that at the

time when the petition came to be filed, the order dated

31.03.2022 passed under the Domestic Violence Act was not in

force. The order impugned passed in Appeal No.23 of 2019 is

dated 21.11.2019.

14. In the opinion of this Court, the petitioner herein has

been granted due protection by the competent Court vide