Suresh Sharma S/O Late Laxmi ... vs Dhanwanti Sharma W/O Late Laxmi ...
2022 Latest Caselaw 2933 Raj/2

             HIGH COURT OF JUDICATURE FOR RAJASTHAN
                         BENCH AT JAIPUR

                     S.B. Civil Writ Petition No. 6089/2019

     1.      Suresh Sharma S/o Late Laxmi Narayan Sharma, Aged
             About    46    Years,        Resident      Of     264,      AWHO     Colony,
             Ambabari, Jaipur, Rajasthan.
     2.      Rashmi Sharma W/o Suresh Sharma, Aged About 38
             Years, Resident Of 264, AWHO Colony, Ambabari, Jaipur,
             Rajasthan.
                                                                          ----Petitioners
                                           Versus
     Dhanwanti Sharma W/o Late Laxmi Narayn Sharma, Resident Of
     264, Awho Colony, Ambabari, Jaipur, Presently Residing B-803,
     Roohin Tower, Opposite Star Bazar Setelite, Ahmedabad, Gujrat.
                                                                         ----Respondent

    For Petitioner(s)           :     Mr. Deepak Sharma
    For Respondent(s)           :     Mr. Ashok Mehta, Sr. counsel
                                      assisted by Mr. Mudit Singhvi



                  HON'BLE MR. JUSTICE SAMEER JAIN


Reportable

    Judgment reserved on:                  24/02/2022
    Judgment Pronounced on: 07/04/2022

1. The present writ petition under Article 226 & 227 of the

Constitution of India is filed by the petitioners against the order

dated 08.03.2019 passed by the Maintenance and Welfare of

Parents and Senior Citizen Tribunal (S.D.O.) Jaipur City, Jaipur

whereby, petitioners were directed to vacate the premises and the

rights of respondent mother were restored.

2. Learned counsel for the petitioners submits that the

respondent is mother of petitioner No.1 and mother-in-law of

petitioner No.2, whose husband was Army Colonel, who passed

(2 of 11) [CW-6089/2019]

away in the year 2003 bequeathing all movable and immovable

properties in favour of the respondent by way of will prior to his

death. The respondent has three sons and one daughter. In the

year 2004, the respondent purchased a house bearing No. 264,

Army Welfare Housing Organisation Colony, Ambabari, Jaipur

(hereinafter referred to as 'AWHO Colony' which is registered in

her name. The said property, referred to as 'disputed property',

has two floors consisting of two bedrooms, one dinning room-

cum-drawing room, one kitchen and two washrooms on both

ground floor and first floor.

3. The petitioner has averred that in the year 2006, after

demise of his father, he married petitioner No.2 against the wish

of the respondent, as a result of which, he was directed to leave

the disputed property of the respondent. It was only in the year

2010, on insistence of the relatives, that the petitioners were

allowed to move back in the disputed property under the belief

that they will take care of their ailing, old, senior citizen mother,

whose elder son had died, whose family is living separately, and

younger son is not well to do. He submits that the allegations of

ill-treatment qua abusive language, neglect, mental and physical

torture against him and his wife are only cooked story. The fact of

not providing food, not taking appropriate care of relatives or

visitors of the respondent and not providing medical facilities to

the respondent are also part of the sham story. The petitioners

further submit that it is on her own sweet will that the respondent

went to Bhiwani, her native town, to her sister-in-law in the year

2010 and thereafter since March,2018 until today she is residing

at her daughter's house and the petitioners had no role to play in

forcing her out of the disputed property for the said period. The

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petitioners have submitted that though in the year 2004, the

disputed property was purchased by the respondent and was

registered in her name but in the year 2010, the petitioner has

invested approximately Rs. 8 lacs out of his own funds. It is

further averred that the petitioner had filed a suit before the Civil

Court for declaration of said property to the extent of 85% in his

name. In the said litigation, the Civil Court rejected the plaint

upon Order 7 Rule 11 application by order dated 06.08.2021

against which an appeal was preferred which is sub judice before

this Court bearing Civil First Appeal No. 305/2021. He has

requested for maintaining status quo and continuation of interim

order in the facts and circumstances of the matter. The petitioners

have also reiterated the contents of writ petition in support of

their claim.

4. Per contra, learned senior counsel appearing on behalf of the

respondent-mother, (senior citizen), has submitted that the

respondent was expelled out of her house firstly in the year 2010

and therefore, had to go to her sister-in-law's place Bhiwani for

mental peace aggrieved by the conduct of petitioners. In the year

2016, on account of chronic ailment, ill health and lack of medical

facilities, the respondent returned to Jaipur with her sister-in-law

and was meted with severe ill treatment by the petitioners and

therefore, the sister-in-law of the respondent rushed back to

Haryana and on account of the same, in March 2018, the

respondent's daughter came and took the respondent to

Ahmedabad. It is only because of pension of her husband that she

is able to financially support herself otherwise, she is ousted out of

her house by the petitioners and is being harassed by them on

day to day basis and she is under pathetic condition suffering

(4 of 11) [CW-6089/2019]

mental and social torture as she has to live in her married

daughter's house, which is against the customs of hindu joint

family.

5. Learned counsel for the respondent has further submitted

that on 24.07.2018, a newspaper publication was also issued by

the respondent disentitling the petitioners from her property which

were bequeathed to her by way of will of her husband. The

respondent has further submitted that on 12.11.2018, when the

respondent came back with her daughter from Ahmedabad to get

her documents, she was not permitted to enter the disputed

property, was ill treated in her own house and therefore, she filed

a police complaint in Vidhyadhar Nagar Police Station. Due to

reasons beyond her control, the respondent was compelled to file

a complaint under the Maintenance and Welfare of Parents and

Senior Citizens Act, 2007 and the Government of Rajasthan

Maintenance of Parents and Senior Citizens Rules, 2010 (for short

'the Act of 2007' and 'the Rules of 2010') before the Senior Citizen

Tribunal also and after due service upon the petitioners vide order

dated 08.03.2019, the petitioners were directed by the Tribunal to

vacate the disputed property within a period of one month. As a

result, the present petition was filed and ex-parte ad-interim stay

order was granted by this Court on 03.04.2019. The respondent's

submission is that the order passed by learned Tribunal is just, fair

and proper and inspite of passing of the said order in her favour,

she is not able to live in her own house.

6. Learned counsel for respondent relied on judgment of this

Court rendered in D.B. Special Appeal (Writ) No.920/2019

titled Rakesh Soni & Ors. vs. Premlata Soni & Ors. Reported in

AIR 2020 Raj. 27 wherein, it was held that order of vacation of

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premises against son and daughter-in-law is valid and proper

when the parents are being ill treated by them.

7. Reliance was also placed on Sandeep Gulati vs. Divisional

Commissioner, Office of the Secretary-Cum-Divisional

Commissioner, Department of Revenue, Govt. Of NCT Of

Delhi And Ors. rendered by Hon'ble Delhi High Court in Writ

Petition (Civil) 2761/2020 and connected matters wherein,

eviction of son and daughter-in-law was justified as they were not

maintaining, rather harassing and ill treating the parents who

were senior citizens.

8. The matter was listed. Petitioners and respondent were

called upon in the Court in-person. Attempt to reconciliation,

mediation, settlement was made but failed. Parties in-person and

Advocates were heard at length. Matter was referred by this court

again for mediation which also failed. As agreed by both the

parties, the matter was taken up for final disposal.

9. I have considered the respective submissions of the counsels

for both the parties, heard the petitioners and respondent in-

person on previous dates, analyzed the mediation proceedings,

which have failed, and also considered the record of the writ

petition and the judgments cited at Bar.

10. The material facts of the case are that the respondent is a

widow, who is senior citizen aged about 72 years. At present, she

is living in Ahmedabad along with her married daughter for last 5

years. The disputed property was purchased and registered by the

respondent in the year 2004. The petitioner and his wife appeared

before this court in-person and have admittedly submitted that

they are running business having turnover of approximately Rs.

25 lacs. They are at present living in the house, which belongs to

(6 of 11) [CW-6089/2019]

respondent-mother and major portion of the said house are in

their possession and remaining portion of the first floor is with

second son and his family. In terms of finance, the respondent is

quite independent and approximately 40,000/- Rs. per month is

received by her as pension of her deceased husband. It is

noteworthy to mention that in the year 2006, the petitioner left

the house with his newly married wife and again re-entered the

house in the year 2010, on advice of relatives, to take care of his

respondent mother. He has invested approximately Rs. 8 lacs out

of joint account, of his mother and himself, which is disputed by

the respondent. In this regard, the petitioner has also filed one

Civil Suit No. 249/2019 for declaration, partition and permanent

injunction claiming 85% share in the said property. The

respondent-mother while appearing in-person before this Court

requested that the petitioners be evicted along-with their family

from the disputed property as she is being ill-treated by them,

there is a threat to her life if she lives with them and physical and

mental abuse is being meted out to her by the petitioners.

Whereas, the claim of the petitioner is that these are mere

allegations and he is ready to live with his mother, and has right

over the disputed property as he has spent Rs. 8 lacs from his

own funds and therefore, cannot be evicted from the disputed

property.

11. The Act of 2007 was enacted by the Legislature in the

background that the traditional norms and values of the Indian

Society are lost due to withering of the joint family system as a

large number of elderly are not being looked after by their family,

particularly the widowed women, who are forced to spend their

twilight years all alone and are exposed to emotional neglect, lack

(7 of 11) [CW-6089/2019]

of financial support and are rather treated as a waste. Even

otherwise than the Act of 2007, the land where Vasudhaiva

Kutumbakam was manuscripted, which considers the whole world

a single family, the ill- treatment meted out to parents by their

own children is both alarming and disturbing.

The Act of 2007 was formulated to redress the said grievance in a

simple, inexpensive and speedy manner qua maintenance of the

parents and senior citizens.

12. The Act of 2007 defines maintenance, property, Senior

Citizen and Welfare, which reads as under:-

"Section 2(b) "maintenance" includes provision for

food, clothing, residence and medical attendance and

treatment;

2(f) "property" means property of any kind, whether

movable or immovable, ancestral or self acquired, tangible

or intangible and includes rights or interests in such

property;

2(h) "senior citizen" means any person being a citizen

of India, who has attained the age of sixty years or above;

2(k) "welfare" means provisions for food, health care,

recreation centres and other amenities necessary for the

senior citizens."

13. Further, Section 3 of the Act of 2007 makes the Act supreme

having overriding effect if the same is inconsistent with the

provisions of any other Act as in times when social construct of

the society is changing and transforming, its important to keep the

social fabric and values intact and not let them tumble.

(8 of 11) [CW-6089/2019]

14. In S. Vanitha Versus Deputy Commissioner, Bengaluru,

Urban District and Ors., reported in 2020 SCC Online SC

1023, it has been held that when there are family laws and

personal laws and there is domestic conflict between in-laws and

daughter-in-law, both are protected by respective legislation. The

Protection of Women from Domestic Violence Act, 2005 and the

Act of 2007, both being special Acts containing non-obstante

clauses and therefore, in such event the later law shall typically

prevail. However, in the event of conflict between them, the

dominant purpose of both the statutes has to be seen in a

harmonious way as it is important to strike a balance between

family law and personal law and read them in a way so as to glue

the family and society.

15. In the case in hand, the question of living in residential

premises is involved. For the following reasons, the order passed

by the Tribunal is justified:

(i) As per Section 2(b) and 2(k) of the Act of 2007, it was the

duty of petitioner-son to maintain his mother and take care of her

welfare as she is not only a senior citizen, but his only living

parent as well and the petitioner son has to provide her with

clothing, food, residence and medical attention/treatment.

However, the contrary is happening in this situation. The

respondent-mother does not need any maintenance from her

petitioner-son, she is financially independent and has the property

in her name, still she is being abused physically, mentally and

socially by the petitioners, who have deprived her from living

peacefully in her own house despite the Tribunal order dated

08.03.2019 passed in the respondent's favor.

                                             (9 of 11)                [CW-6089/2019]


(ii)    The respondent-mother, despite of being the owner of the

disputed property, was ousted out of it by the petitioners and was

meted out with severe ill- treatment, including mental, social and

physical abuse by the petitioners and had to live with her married

daughter against the hindu social norms, especially at such an

elderly age, and such act/s of the petitioners are violative of her

right to live with dignity under Article 21 of the Constitution of

India. Being the owner of disputed property and as per mandate

of her husband's will, she has the first right to live in the disputed

property in the way she desires.

(iii) In light of judgment Rakesh Soni & Ors. (supra) and

Sandeep Gulati (supra), it is abundantly clear that it is to the

choice of the parents whether they want their son to be living with

them or not when ill treatment is being meted out to them. The

respondent mother in the instant case, while appearing in-person

before this court has categorically submitted that living with the

petitioners poses a threat to her life, and if she is directed to live

with them, it will jeopardize not only her mental health but

physical well-being as well.

(iv) The contention of the petitioner of having invested Rs. 8 lacs

of his own money in the said property is disputed. It is analysed

that major portion of the investment in the house is qua the land

super structure and is very minimal and the

construction/renovation done by the petitioners was for their own

use only. The action of the petitioner-son in filing a civil suit for

the declaration of disputed property to the extent of 85% in his

favor has no bearing in the present matter as the non-action of

the petitioner in terms of Section 2(b) and 2(k) of the Act of 2007

(10 of 11) [CW-6089/2019]

of not taking care of their respondent-mother stands on a

completely different footing than the suit filed for declaration.

(v) The petitioners are running their own business, having

turnover of Rs. 25 lakhs approximately, they are qualified enough

to earn their own living. Therefore, the petitioners are capable

enough to run their family at some other place.

(vi) The contention of the petitioners that principles of natural

justice were not followed while passing the impugned order dated

08.03.2019, that procedural lapses were there while adjudicating

the case and that the final relief was granted as an interim

measure which was contrary to Hon'ble Apex Court judgment

passed in State of U.P. And Ors. vs. Ram Sukhi Devi reported

in (2005) 9 SCC 733, cannot be a ground to oust the respondent

from her own house. Appropriate notices were issued, the

petitioners were heard before the learned Tribunal as well as

before this Court, through pleader as well as in-person, wherein,

they have admitted that they are having their own business,

mother is living with her daughter and that the disputed property

was registered and purchased in the name of respondent-mother.

Therefore, the contention of the petitioner does not hold field.

16. In light of the facts that ill-treatment is meted out to the

respondent-mother, she is expelled from her own house,

allegations of mental, physical and social abuse have been levelled

against the petitioners and during the proceedings before this

court respondent-mother categorically submitted that living with

the petitioners would pose a threat to her life and mental well-

being, the prayer of the petition to set aside the eviction order of

tribunal passed on 08.03.2019 does not have a leg to stand on.

(11 of 11) [CW-6089/2019]

17. Therefore, the petitioners along with their family are directed

to honor the impugned order dated 08.03.2019 and vacate the

premises within a period of 30 days from the date of

pronouncement of the judgment on their own cost and restore the

house in vacant manner and in appropriate condition to the

respondent-mother with due respect. The SHO of the concerned

Police Station may be provided a copy of this judgment by the

Registrar (Judicial) for carrying out the directions, within the

stipulated time, giving full security to the respondent. The

respondent will be at liberty to permit the petitioner and his family

to visit or live in the disputed property in future, if she so chooses.

18. The writ petition does not call for any interference and is

therefore, dismissed. All the interim orders and pending

applications are also disposed of in the above terms.

(SAMEER JAIN),J

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