Shail Devi vs The State Of Jharkhand
2023 Latest Caselaw 1041 Jhar

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     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     W.P. (C) No.66 of 2022
                              With
                     I.A. No.11461 of 2022
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     Shail Devi                                     .......... Petitioner.
                             -Versus-
     1. The State of Jharkhand
     2. The Deputy Commissioner, Ranchi.
     3. Sub Divisional Magistrate, Sadar, Ranchi.
     4. Rana Sangram Singh
     5. Rana Ram Ekbal Singh
                                                    .......... Respondents.
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     CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR
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     For the Petitioner :        Mr. Nirupama, Advocate
     For the State        :      Mr. Saurav Mahto, A.C. to G.P.II
                               -----
     Order No.06                                    Date: 02.03.2023

1. The present writ petition has been filed for quashing/setting aside the

order as contained in Memo No.139 dated 06.10.2020 passed by the

Sub-Divisional Judicial Magistrate, Sadar, Ranchi- respondent no.3 in

MAWOPASC Case No.03 of 2020, whereby the petitioner, her husband

and son have been directed to vacate House No.A-2/129, HEC Colony,

Dhurwa, Ranchi and to handover the same to the respondent no.4.

Further prayer has been made for quashing the order dated

11.12.2021 passed by the Deputy Commissioner, Ranchi- respondent

no.2 in MAWOPASC Appeal No. 26 of 2020-21, whereby the said

respondent has dismissed the appeal filed by the petitioner and has

upheld the order dated 06.10.2020 passed by the respondent no.3.

2. Learned counsel for the petitioner submits that the petitioner is

daughter-in-law of the respondent no.4 and wife of respondent no.5

and she is residing with her husband, father-in-law and mother-in-law

in quarter no. A-2/129, H.E.C. Colony, Dhurwa, Ranchi (hereinafter

referred as the said house). The respondent no.4 filed an application

under section 2(b)(k), 22(2), 23 and 24 of the Maintenance and

Welfare of Parents and Senior Citizens Act, 2007 (in short Act, 2007)

for eviction of the petitioner, her husband and son, which was

registered as MAWOPASC Case No. 03 of 2020. In the said case, notice

as contained in memo no.71 dated 04.06.2020 was issued to the

petitioner, her husband and son, whereafter reply was filed by her

husband (respondent no.5) on 26.06.2020. However, the respondent

no.3 vide impugned order dated 06.10.2020 directed to vacate the said

house within 15 days of the order. Aggrieved thereby, the petitioner

and her husband (respondent no.5) filed an appeal under section 16

of the Act, 2007 before the Deputy Commissioner-cum-Appellate

Authority, Ranchi, which was registered as MAWOPASC Appeal No.

26/R-15 of 2020. During pendency of the said appeal, the respondent

no.4 moved this Court by filing a writ petition being W.P.(C) No. 3554

of 2021 which was disposed of vide order dated 18.11.2021, giving

liberty to the respondent no.4 to file a fresh application for execution

of the order dated 06.10.2020 before the respondent no.3 and on filing

of such application, the respondent no.3 was directed to take

appropriate steps in accordance with law for implementing the order

dated 06.10.2020. Finally, the respondent no.2 vide order dated

11.12.2021 dismissed the said appeal upholding the order dated

06.10.2020 passed by the respondent no.3.

3. Learned counsel for the petitioner further submits that the Tribunal

constituted under the Act, 2007 should have appropriately moulded

the reliefs after noticing the competing claims of the parties under the

provisions of Protection of Women from Domestic Violence Act, 2005

(in short 'the Act, 2005') and the Act, 2007 since section 3 of the Act,

2007 cannot be deployed to nullify other protections in law particularly

a woman's right over a shared household under section 17 of the Act,

2005. The petitioner being the daughter-in-law of the respondent no.4

is residing in the said house and as such she is entitled for protection

under section 17 of the Act, 2005. The petitioner is also a senior citizen

and thus she is entitled for protection under the Act, 2007 as well. The

petitioner and her husband have no alternative house to live in,

whereas the respondent no.4 has more than eight houses and he is

the owner of several vehicles, quarters, school etc. as well as he is also

in occupation of the houses registered in the name of three brothers

of the respondent no.5.

4. Learned counsel for the petitioner puts reliance on the judgment

rendered by the Hon'ble Supreme Court in the case of Smt. S.

Vanitha Vs. The Deputy Commissioner, Bengaluru Urban

District & Ors., reported in 2020 SCC OnLine SC 1023, and

submits that the authorities constituted under the Act, 2007 have no

jurisdiction to order for eviction of the petitioner, her husband and son

since the proceeding has been utilized to ensure the eviction of the

petitioner so as to deny her claim of right to reside in the shared

household under the provisions of Act, 2005.

5. Learned counsel for the State while defending the impugned orders

submits that the petitioner is not a victim of domestic violence and she

has not filed any such case against the respondent nos.4. The

impugned orders suggest that the said house is not an ancestral

property and also not a shared household. Hence, the question of the

petitioner's share in the said house does not arise. The house, in

question, is a quarter of HEC which has been allotted exclusively to the

respondent no.4 and is not a shared household. As long as the parents

have legal possession of the property, they can evict their abusive

adult children. If a house is self-acquired property of the parents, the

son whether married or not has no legal right to live in that house. He

can live in that house only with the permission of his parents till that

time they desire. Merely because the parents allowed their children to

live in their house so long as the relationship between them were

cordial, does not mean that they have to bear the burden of children

throughout their life.

6. In reply to the said argument, learned counsel for the petitioner

submits that the respondent no.4 was in habit of abusing the petitioner

so as to oust her from the house against which she sought help from

the concerned police station, but the police officials did not protect her,

as the respondent no.4 is a union leader and an influenced person.

Thereafter, she represented the Senior Superintendent of Police,

Ranchi on 05.01.2022 requesting to take legal action against the

respondent no.4, her mother-in-law and family members of the two

other brothers of her husband. When the police officials did not take

any action against the respondent no.4 as well as other persons, the

petitioner filed application under section 12 of the Act, 2005 in the

court of Chief Judicial Magistrate, Ranchi vide Criminal Miscellaneous

Case No.4305 of 2022, which is still pending.

7. Heard the learned counsel for the parties and perused the materials

available on record. The respondent no.4 had filed MAWOPASC Case

No. 03 of 2020 wherein the respondent no.3 passed order of eviction

of the petitioner from the said house and the order of the respondent

no.3 has also been affirmed by the respondent no.2 in MAWOPASC

Appeal No. 26 of 2020-21.

8. Learned counsel for the petitioner puts much reliance on the judgment

rendered by the Hon'ble Supreme Court in the case of Smt. S.

Vanitha (Supra.). I have perused the said judgment wherein the fact

was 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. mother-in-law of the appellant after a

divorce case was instituted by the spouse of the appellant. Parallel to

this, the appellant instituted a 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. Thereafter, the appellant (daughter-in-law) preferred an

appeal against the order of the Assistant Commissioner, Bengaluru

before the Deputy Commissioner, Bengaluru district, which was

dismissed. The writ petition filed by the appellant before learned Single

Judge as well as the writ appeal filed before learned Division Bench of

the Karnataka High Court were also dismissed. Thereafter, the matter

went up to the Hon'ble Supreme Court, wherein it was held as under:

"39. 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 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."

9. The Hon'ble Apex Court in the said case 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 another Act.

10. The facts and circumstances of the present case are entirely different

from the facts of the aforesaid case. In the present case, there is no

such matrimonial dispute between the petitioner and her husband. On

perusal of the Criminal Misc. Case No.4305 of 2022 filed by the

petitioner, it is evident that there is a property dispute among the

family members. The petitioner has claimed that the consideration

amount of the said house was paid by her husband but the respondent

no.4 and other family members connived to evict the petitioner and

her husband from the said house. Further claim of the petitioner in the

said case is that the respondent no.4 and his other sons are also trying

to grab other properties of her husband. It is also not the case where

only the petitioner is being ousted from the matrimonial home so as to

deprive of her rights available under the Protection of Women from

Domestic Violence Act, 2005. On the contrary, the allegation of the

respondent no. 4 is that the petitioner and her husband have been

subjecting mental torture to him and his wife and, thus, he wants to

evict both of them from his self-acquired quarter. This court finds that

though the petitioner has impleaded her husband as respondent no.5

in the present writ petition, she has not made any allegation against

him, rather the record reveals that the petitioner and the respondent

no.5 have conjointly been fighting with the other family members for

property.

11. In view of the aforesaid factual and legal position, I do not find any

infirmity in the order as contained in Memo No.139 dated 06.10.2020

passed by the respondent no.3 in MAWOPASC Case No. 03 of 2020 as

well as the order passed by the respondent no.2 in MAWOPASC Appeal

No. 26 of 2020-21 so as to make any interference under the writ

jurisdiction of this Court.

12. The writ petition is, accordingly, dismissed.

13. I.A. No.11461 of 2022 also stands dismissed.

(Rajesh Shankar, J.) Sanjay/AFR