Smt. Sakshi Jain vs The State Of Jharkhand Through ...
2022 Latest Caselaw 811 Jhar

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       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 W.P.(C) No. 3668 of 2021

Smt. Sakshi Jain                              ...     ...        Petitioner
                                    Versus
1.   The State of Jharkhand through Deputy Commissioner, Palamau at
     Medininagar, Daltonganj
2.   The Sub-Divisional Officer, Medininagar (Daltonganj), Palamau
3.   The Senior Superintendent of Police, Palamau at Daltonganj
4.   The Police Station In-Charge, Daltonganj Police Station, Palamau at
     Medininagar, Daltonganj
5.   Smt. Kiran Jain
6.   Sri Pawan Kumar Jain
7.   Sri Rohit Kumar Jain                      ...     ...      Respondents

   CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Sheo Kumar Singh, Advocate For the Respondent Nos.1 to 4 : Mr. Rakesh Kumar Roy, AC to GA-III

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Order No. 04 Dated: 03.03.2022

At the request of the learned counsel for the petitioner, the remaining defect as pointed out by the office is ignored.

The present writ petition has been filed for quashing the order dated 27.08.2021 (Annexure-10 to the writ petition) passed by the respondent no. 2 - the Sub-Divisional Officer, Medininagar (Daltonganj), Palamau, whereby an order for eviction of the petitioner and her husband i.e., respondent no. 7 from the house of the respondent nos. 5 and 6, situated at Shiva Jee Maidan Road, Daltonganj, District - Palamau (hereinafter referred to as "the said house"), has been passed with a direction to the officer-in-charge, P.S.-Sadar, Medininagar to evict them from the said house, if they refuse to vacate the same within 30 days from the said order.

2. The factual background of the case as stated in the writ petition is that the petitioner was married to the respondent no. 7 on 01.05.2015 who is son of the respondent nos. 5 and 6 and out of the said wedlock, one male child was born on 12.11.2016. The petitioner along with her minor son is residing in her matrimonial home as a lawfully wedded spouse of the respondent no. 7. The respondent nos. 5 and 6 have executed a deed of disownment dated 13.07.2020 and published it in daily newspaper "Dainik Jagran" (Jharkhand Edition) on 16.07.2020 stating that they have disowned and disinherited their son

and daughter-in-law from their property. The respondent nos. 5 and 6 filed a complaint before the Superintendent of Police, Daltonganj, Palamau on 25.07.2020 for providing them protection alleging that the petitioner and her husband used to torture them mentally and physically. They also filed a complaint on the same day i.e., 25.07.2020 before the respondent no. 1, however, the same was kept pending. Thereafter, a writ petition being W.P.(C) No. 3581 of 2020 was filed by the respondent nos. 5 and 6 for issuance of direction upon the respondent nos. 1 and 2 to pass an order for evicting the petitioner and the respondent no. 7 from their house situated at Shiva Jee Maidan Road, Daltonganj, Palamau exercising of power conferred under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as "the Act, 2007") read with Jharkhand State Maintenance and Welfare of Parents and Senior Citizens Rules, 2014 (hereinafter referred to as "the Rules, 2014"). The said writ petition was disposed of vide order dated 13.01.2021 with a direction to the respondent no. 2 to take an appropriate decision on the application/complaint of the respondent nos. 5 and 6. Thereafter, the complaint petition filed by them was decided vide impugned order dated 27.08.2021 directing the petitioner and the respondent no. 7 to vacate the said house within 30 days from passing of the order, failing which the officer-in-charge, P.S.-Sadar, Medininagar was to evict them and to hand over the said house to the parents (the respondent nos. 5 and 6).

3. Learned counsel for the petitioner submits that the respondent no. 2 did not have any evidence of torture inflicted by the petitioner upon the respondent nos. 5 and 6. The respondent no. 2 has not complied the mandatory provisions of Section 6(6) of the Act, 2007 and rule 10 of the Rules, 2014 which provide that before hearing an application under Section 5, Maintenance Tribunal may refer the same to a conciliation officer who shall submit his findings within one month and if amicable settlement has been arrived at, the Tribunal shall pass an order to that effect. It is further submitted that the complaint under Sections 4 and 5 of the Act, 2007 was filed by the respondent nos. 5 and 6 in connivance with the respondent no. 7 just to oust the petitioner from her matrimonial house. The petitioner has no other place except the said house to live with her minor son and as such she cannot be

evicted from the said house in view of her right to reside in a shared household as provided by Section 17 of the Protection of Women from Domestic Violence Act, 2005. The respondent nos. 5 to 7 used to torture the petitioner mentally and physically for non-fulfilment of demand of dowry. The petitioner filed Original Maintenance Case No. 111 of 2020 under Section 125 Cr.P.C against her husband and the Principal Judge, Family Court, Palamau vide order dated 03.04.2021 allowed the said case directing the respondent no. 7 to pay an interim maintenance of Rs. 7000/- per month to the petitioner. It is also submitted that the petitioner has filed an informatory petition under Section 39 of the Cr.P.C being Criminal Miscellaneous Case No. 63 of 2021 against the respondent nos. 5 to 7 stating that respondent no. 6 tried to outrage her modesty and they had intention to oust her from matrimonial house. The petitioner has also filed Complaint Case no. 600 of 2021 under Sections 323/ 379/ 498A/ 504/ 506/ 354/ 354A/ 354B/34 of IPC against the respondent nos. 5 to 7 and the C.J.M, Palamau vide order dated 25.03.2021 has directed to register an FIR under Section 156(3) of Cr.P.C. and to hold a proper investigation.

4. Heard the learned counsel for the parties and perused the materials available on record. The petitioner seeks quashing of the impugned order dated 27.08.2021 passed by the respondent no. 2, whereby on an application of the respondent nos. 5 and 6 and in pursuance of the order dated 13.01.2021 passed in W.P.(C) No. 3581 of 2020, the petitioner and the respondent no. 7, who are daughter-in-law and son of the respondent nos. 5 and 6 respectively, have been evicted from the said house.

5. Learned counsel for the petitioner puts reliance on the judgment rendered by the Hon‟ble Supreme Court in the case of "S. Vanitha Vs. The Deputy Commissioner, Bengaluru Urban District & Ors." reported in 2020 SCC Online SC 1023 and submits that the impugned order is in the teeth of the ratio laid down in the said judgment.

6. This Court had an occasion to analyze the said judgment in the case of "Anil Kumar Tiwary & Anr. Vs. The State of Jharkhand & Anr." [W.P.(C) No. 3950 of 2020], wherein also the order of eviction was passed against both son and daughter-in-law as they were

subjecting mental torture to their old parents. The relevant part of the said judgment is quoted hereinbelow:

4. The learned counsel for the petitioners puts reliance on the judgment of the Hon‟ble Supreme Court rendered in the case of "Smt. S. Vanitha Vs. The Deputy Commissioner, Bengaluru Urban District & Ors." reported in 2020 Scc Online SC 1023. I have perused the said judgment. The fact in the said case is that the spouse of the appellant purchased a land in his own name a few months before the marriage, but subsequently sold it 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 case was instituted by the spouse of the appellant. Parallel to this, the appellant instituted case for dowry harassment against her mother-in-law and her estranged spouse. The appellant also filed a case for maintenance against her husband. Subsequent to these events, the father-in- law and mother-in-law filed an application before the Assistant Commissioner, Bengaluru North Sub-division at Bengaluru under the provisions of the Act, 2007. The said application was allowed in favour of the father-in- law and the mother-in-law of the appellant by the Assistant Commissioner, Bengaluru North Subdivision at Bengaluru as an original authority. Thereafter, the appellant (daughter-in-law) preferred an appeal against the order of the Assistant Commissioner, Bengaluru before the Deputy Commissioner, Bengaluru district as an appellate authority, which was dismissed. The writ petition filed by the appellant before the learned Single Judge as well as the appeal filed before the learned Division Bench of the High Court were also dismissed. Thereafter, the matter went up to the Hon‟ble Supreme Court wherein Their Lordships in paragraph-9 of the aforesaid judgment have held as under:

9. 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 Section7. 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 overriding 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 26 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 Subsection (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.

5. The Hon‟ble Apex Court in the said case has also held that the Tribunal constituted under the Act, 2007 has the authority to order an eviction if it is necessary and expedient to ensure maintenance and protection of the senior citizens or the parents. However, this relief can be granted only after noticing the competing claims of the parties in the dispute. It is true that one cannot be allowed to take benefit of any provision under a statute just to deprive the other from availing benefit of other statute. The provisions of a particular Act should be applied in harmony with any other Act.

6. The facts and circumstances of the present case is entirely different from the facts of the aforesaid case. In the present case, there is no such matrimonial dispute between the petitioners. Moreover, the said quarter has not been transferred to the respondent no. 2 just to oust the petitioner no. 2 from the said quarter taking advantage of the provisions of the Act, 2007. Rather, the fact is that the petitioners being the husband and wife are conjointly fighting with the respondent no. 2. It is also not a case where only the petitioner no. 2 is being ousted from the matrimonial home so as to deprive her

of the rights available under the Protection of Women from Domestic Violence Act, 2005. On the contrary, the allegation of the respondent no. 2 is that the petitioners have been subjecting mental torture to him and thus, he wants to evict both his son and daughter-in-law from his self-acquired quarter.

7. In the present case also, the respondent nos. 5 and 6 were seeking eviction of both the petitioner and the respondent no.

7. The respondent nos. 5 and 6 have made allegation of torture both against the petitioner and respondent no. 7. It has been alleged in the complaint that the respondent no. 7 is not engaged in any job and constantly demands money from his parents. It has further alleged that the petitioner and the respondent no. 7 are trying to grab the property of the respondent nos. 5 and 6.

8. Thus, the contention of the petitioner that the complaint under Sections 4 and 5 of the Act, 2007 was filed by the respondent nos. 5 and 6 in connivance with the respondent no. 7 to evict the petitioner from the matrimonial house, cannot be accepted. It is not a case in which the petitioner being the daughter-in-law of the respondent nos. 5 and 6 has alone been ordered to be evicted from the house, rather on an application of the respondent nos. 5 and 6, she along with her husband (the respondent no. 7) have been evicted. Had the situation been so, the respondent nos. 5 and 6 would have filed the said complaint only against the petitioner. Thus, considering the peculiar facts of this case, it will not be appropriate to mix up the cases filed by the petitioner against the respondent no. 7 with the present complaint filed by the respondent nos. 5 and 6 against both the petitioner and the respondent no. 7. Moreover, it is her own case that she has filed maintenance case against her husband (the respondent no. 7) and the Principal Judge, Family Court, Palamau has also passed order of interim maintenance against him and as such she cannot claim right of residence in the said house which is the property of the respondent nos. 5 and 6.

9. In view of the aforesaid factual and legal position, I do not find any infirmity in the order dated 27.08.2021 passed by the Sub-Divisional Officer, Medininagar (Daltonganj), Palamau so as to make any interference under the writ jurisdiction.

10. The writ petition being devoid of merit is accordingly dismissed.

I.A. No. 5770 of 2021 also stands disposed of.

(Rajesh Shankar, J.) Manish/AFR