Karnataka High Court
Mrs Luviza vs The Assistant Commissioner on 19 December, 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE K. V. ARAVIND
WRIT PETITION No.699/2021(GM-RES)
BETWEEN:
MRS. LUVIZA,
W/O NARAYANA MURTHY,
AGED ABOUT 38 YEARS,
R/AT NO 101, ITC COLONY,
5TH CROSS, COX TOWN,
JEEVANAHALLI,
BENGALURU 560005.
...PETITIONER
(BY SRI K. P. BHUVAN, ADVOCATE)
AND:
1. THE ASSISTANT COMMISSIONER,
TRIBUNAL OF MAINTENANCE AND
WELFARE OF PARENTS AND SENIOR CITIZENS,
BENGALURU NORTH SUB DIVISION,
BENGALURU.
2. SRI SUBRAMANI M.,
S/O LATE MUNISWAMY,
AGED ABOUT 75 YEARS,
R/AT NO 101, ITC COLONY,
5TH CROSS, COX TOWN,
JEEVANAHALLI,
BENGALURU 560005.
...RESPONDENTS
(BY SRI MANJUNATHA RAYAPPA, AGA FOR R1;
SRI B.J. MAHESH, ADVOCATE FOR R2)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 5.11.2020 PASSED BY RESPONDENT No.1
IN MSC.CR.No.55/2019-20 AS PER ANNEXURE-E.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 01.12.2023, THIS DAY THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
This petition is preferred challenging the order dated
05.11.2020 passed in MSC.CR.No.55/2019-20 by
respondent No.1 as per Annexure-E.
2. The brief facts leading to filing of this petition are:
The Petitioner is daughter-in-law of respondent No.2.
She is married to Sri S. Narayana Murthy S/o respondent
No.2. The marriage was solemnized on 25.04.2005. Due to
the said wedlock, the petitioner has a daughter
Kum.Sanchitha studying in IX Standard in Clarence High
School, Richard's Town, Bengaluru.
3. In view of dispute between the petitioner and her
husband, divorce petition filed by the husband is pending
before the Family Court in M.C.No.2230/2019. The said
divorce petition is being contested by the petitioner.
Respondent No.2 in collusion with his son pressurized the
petitioner to agree for divorce and with ill-motive has filed
petition in MSC.CR.55/2019 under the provisions of
Maintenance and Welfare of Parents and Senior Citizens
Act, 2007, (hereinafter referred to as 'Act' for short)
seeking direction to the petitioner to quit and deliver
vacant schedule premises where she is residing along with
her minor daughter.
4. The impugned order passed by respondent No.1
without providing an opportunity of hearing to the
petitioner has prejudiced her fundamental right of shelter
and caused hardship due to the order of eviction being
passed. The petitioner and her daughter have not been
provided shelter by petitioner's husband. The impugned
order is in violation of principles of natural justice for not
affording an opportunity to participate in the proceedings.
5. It is the case of respondent No.2 that he has five
children, two daughters and three sons, among them, one
daughter and one son are married. Respondent No.2 is
residing with his wife and three unmarried children in the
said property. The petitioner and her husband were
residing separately in a rented house. Considering the
mental condition of the grand-daughter born to the
petitioner, petitioner was offered a small accommodation
to extend care, love and affection to the grand-daughter.
In view of continuous ill-treatment and quarrelsome nature
of the petitioner, she was requested to vacate the
premises. She refused and continued to stay in the same
premises. It is further alleged that the petitioner has
registered FIR in Pulikeshinagar Police Station, which is
causing disturbance to the health and mental peace of his
family.
6. Respondent No.1 after recording that notice has
been refused by petitioner, accepting the submissions
made by respondent No.1, without conducting any further
enquiry, proceeded to pass ex parte order directing the
petitioner to vacate the subject property within 60 days
from the date of the order.
7. Sri K P Bhuvan, learned counsel for the petitioner
submits that petition under Section 23 of the Act is not
maintainable against the daughter-in-law. The impugned
order is without jurisdiction. The impugned order being
passed without providing an opportunity to the petitioner,
principles of natural justice has been violated. He further
submits that in view of pending matrimonial dispute
between the petitioner and her husband, respondent No.2
in collusion with his son has filed the petition under Section
23 of the Act. The petitioner and her minor daughter have
no other accommodation if they are evicted from the
subject property. The husband is not providing any
accommodation to the petitioner and her minor daughter.
On the above submissions prays for setting aside the
impugned order at Annexure-E. Learned counsel relies on
the judgment of Hon'ble Supreme Court in the case of
S. Vanitha vs. Deputy Commissioner, Bengaluru
Urban District and others1.
8. Sri B J Mahesh, learned counsel for respondent No.2
would submit that respondent No.1 is competent to pass
order under the provisions of the Act. The petition is
maintainable against the daughter-in-law. Sufficient
opportunity was provided, but the same has not been
availed by the petitioner. Hence, the question of violation
of principles of natural justice does not arise. Respondent
No.2 is residing in the same premises along with three
unmarried children and due to quarrelsome nature of the
petitioner, mental peace of respondent No.2 is being
disturbed. On the above submissions, sought to reject the
petition.
9. Sri Manjunatha Rayappa, learned Additional
Government Advocate appearing for respondent No.1
defends the impugned order on jurisdiction as well as on
merits.
AIR 2021 SC 177
10. Heard learned counsel for the parties and perused
the records.
11. It is not in dispute that respondent No.2 is the
father-in-law of the petitioner. Petitioner is married to
Narayana Murthy son of respondent No.2. The petitioner
and Narayana Murthy out of their marriage have daughter
Kum.Sanchitha studying in a school close to the property
in question. It is not in dispute that due to differences
between the petitioner and her husband divorce petition
has been preferred by husband before the Family Court
and the same is pending in M.C.No.2230/2019. The
petition filed by the petitioner's husband has been
seriously contested by the petitioner. Respondent No.2 in
his petition filed before respondent No.1 has admitted the
ongoing matrimonial dispute between the petitioner and
her husband. Respondent No.2 has categorically stated in
the petition before respondent No.1 that in order to
provide care, love and affection to his grand-daughter,
petitioner and her minor daughter were provided
accommodation in the same building, which is the subject
matter of the petition. Need of care, love and affection to
the grand-daughter has not changed. In fact, due to
matrimonial dispute between parents, need of care from
grand-parents has increased.
12. The notice issued to the petitioner by respondent
No.1 has been recorded as refused to accept without
reference to any evidence on record.
13. In view of the undisputed facts on record regarding
the need of care, love and affection of grandparents to the
minor grand-daughter of respondent No.2 and the
petitioner having no other alternative accommodation and
also considering the ongoing matrimonial dispute between
the petitioner and her husband, order of eviction at
Annexure-E would deprive the petitioner from pursuing her
claim entitled in law. In view of the specific contention of
the petitioner that petition under the aforesaid Act was
preferred by respondent No.2 at the instance of his son
due to ongoing matrimonial dispute for the purpose of
facilitating the strategies designed to defeat the claim of
the petitioner cannot be doubted, which requires to be
considered by respondent No.1 after granting an
opportunity of hearing to the petitioner.
14. Learned counsel for the petitioner relied on the
judgment of the Hon'ble Supreme Court in the case of
Smt.Vanitha v. Deputy Commissioner, Bengaluru
Urban District and others (supra) to contend that the
subject property would constitute shared household and
proceedings under the Act cannot be invoked to deprive
her rights in the shared household. In view of the specific
statement of respondent No.2 that the petitioner and her
minor daughter are jointly residing in the same building
and the contention regarding the shared household, are
required to be considered by respondent No.1.
15. In view of the aforesaid finding and the material on
record, this Court is of the view that the impugned order at
Annexure-E is in violation of principles of natural justice
and hence, not sustainable. Hence, the following;
Order
i) Writ petition is allowed.
ii) The impugned order dated 05.11.2020 passed
in MSC.CR.No.55/2019-20 by respondent No.1
as per Annexure-E is hereby quashed. The
matter is remitted to respondent No.1 for fresh
consideration after providing an opportunity of
hearing to the petitioner. All contentions of
both parties are left open.
iii) The petitioner is at liberty to file objections and
other documents in support of her case, if
necessary.
iv) No order as to costs.
Sd/-
JUDGE
mv
