Mr. Ahmed Sayeed Khan vs The State Of Telangana And 9 Others
2021 Latest Caselaw 3813 Tel

           THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY


                     WRIT PETITION No.12929 of 2021
ORDER:

This writ petition is filed questioning the action of the

respondents No.2 to 7 in not providing protection to the life and

property of the petitioner against the respondents No.8 to 10 as

envisaged under Rule 21 Chapter VI of the Andhra Pradesh

Maintenance of Parents and Senior Citizens Rules, 2011 and Section

21 Chapter V of the Maintenance and Welfare of Parents and Senior

Citizens Act, 2007.

2. The grievance of the petitioner is that in spite of his

representation dated 31.03.2021 to restore his possession over first

floor portion of H.No.10-2-318/1/62, Feroz Gandhi Nagar, Beside Priya

Talkies, Mallepally, Hyderabad (subject property) by evicting

respondents No.8 to 10, no action has been initiated by the

respondents No.2 to 7. Further, a direction is sought by the petitioner

to the respondents No.4 to 7 to register crime against the respondent

No.8 pursuant to complaints dated 09.10.2020 and 31.03.2021 lodged

by the petitioner. It is alleged that the action of the official

respondents is illegal and in violation of fundamental rights, more

particularly, Article 300-A of the Constitution of India.

3. It is stated that the petitioner along with his wife have been

residing in the subject property consisting of Ground + 1st Floor.

He purchased the property through registered sale deed bearing

document No.2839/2017 dated 16.05.2017, which is his self-acquired

property. He got his son, Obaid Ali Khan, married to Smt Mohammed

Uzma, respondent No.8 on 24.02.2018. The nikha ceremony was

conducted over phone while his son was residing abroad. The marriage

was performed as per Muslim Personal Law (Sharia Law). His son

came to India on 08.03.2019. The marriage reception was arranged on

15.03.2020. Within 10 days of marriage reception, the respondent

No.8 started quarreling with the petitioner and his wife claiming that

the subject property was gifted to her by her husband. The petitioner

clarified that he is the absolute owner of the subject property.

The respondents No.8 to 10 started harassing the petitioner and his

wife to grab the house property. The petitioner is a senior citizen

suffering from partial paralysis. The respondent No.8 had stolen his

son's passport and blackmailed him to transfer the subject property in

her name. The respondent No.8 along with her family members and

anti-social elements attacked the petitioner, his wife and his son and

forcefully took signatures on some blank non-judicial bond papers and

on some white papers. On 19.05.2019, his son returned to Saudi

Arabia to save his job and due to COVID-19 pandemic, he could not

come back to Hyderabad.

4. On the request of the petitioner, his daughter, Smt Ghousia

Shaheen, came to Hyderabad from Saudi Arabia and advised the

respondent No.8 and her family members not to harass the petitioner

for the property. But nothing worked out. In order to protect the

subject property, the petitioner has gifted the said property in favour

of his daughter under registered Gift Settlement Deed bearing

document No.4137 of 2019 dated 03.07.2019. On 09.10.2010, the

respondent No.8 and her mother pulled his wife out of the house and

beat her mercilessly with an intention to kill her. A complaint was

lodged with the Humayun Nagar Police Station on 09.10.2020. The

police visited the scene of offence and verified the CCTV footage, but

for the reasons best known, no criminal case was registered. Due to

lethargic approach of the police, the respondent No.8 got encouraged

and continued to torture the petitioner and his wife. Being vexed with

the behaviour of the respondent No.8, his son gave divorce to her on

31.10.2020 and communicated to her through Government Qazath

Qile Mohammed Nagar through divorce certificate dated 20.11.2020.

Thus, from that day, the respondent No.8 is no more his daughter-in-

law. A false complaint is lodged by the respondent No.8 in Cr.No.753

of 2020 dated 23.12.2020 for the offences under Sections 498-A, 406,

506 IPC and Sections 3 and 4 of the Dowry Prohibition Act.

The petitioner made a representation dated 31.03.2021 to the

respondents No.2 to 7 praying them to grant protection to his life,

property and dignity as per the provisions of the Maintenance and

Welfare of Parents and Senior Citizens Act, 2007. However, there is no

action initiated by the police and they are made to run from pillar to

post. The petitioner is entitled under the provisions of the Act and the

Rules made thereunder for restoration of possession of the first floor of

the subject property, which is in possession of the respondent No.8.

5. In the counter affidavit filed by the respondents No.8 to 10,

the allegations in the writ petition were denied. It was stated that the

respondent No.8 has filed DVC case claiming right of residence in the

subject property, which is her matrimonial house. The respondent

No.8 filed several complaints regarding dowry harassment by her

husband, family members including the petitioner. The marriage has

been performed with the son of the petitioner and dowry amount was

paid at the time of marriage. The respondent No.8 came to know that

it was third marriage of her husband and by suppressing and playing

fraud, her husband stated before the Qazi that it was his first marriage

and the same is mentioned in the marriage booklet. Her husband was

having two children from the first marriage. Her husband married first

wife Arshiya on 02.02.2012 and pronounced divorce on 28.10.2018.

He performed second marriage with Nazia on 17.11.2017 and

pronounced divorce on 28.12.2017. After marriage, her husband went

abroad promising that he will provide all necessities. Her husband

informed her that he will settle down in Indian within two months.

Her sister-in-law came to India during Ramzan 2019 and started

harassing her. Immediately, she called police, reconciliation meeting

was held and her in-laws assured that they will not disturb her

peaceful possession in the first floor of the subject property. She had

been residing in the first floor since July 2019. Her husband has

stealthily sent divorce papers to her. She approached the Women

Protection Cell and filed DVC application on 11.02.2020 with a specific

prayer to permit her to stay in her shared house i.e. subject property.

The alleged divorce pronounced on 31.10.2020 is not valid. The writ

petition is not maintainable during the pendency of DVC wherein the

respondent No.8 has claimed right of residence in the shared

household.

6. Heard Mr. Mirza Nisar Ahmed Baig, learned counsel for the

petitioner and Ms. Farhath Firdous, learned counsel for the

respondents No.8 to 10.

7. Learned counsel for the petitioner relied on the following

judgments:

S. VANITHA v. DEPUTY COMMISSIONER, BENGALURU

URBAN DISTRICT1; S.R. BATRA v. TARUNA BATRA2 M.P. TEJ

BAHU v. STATE OF TELANGANA3; RAMAPADA BASAK v. STATE

OF WEST BENGAL4; GURPREET SINGH v. STATE OF PUNJAB5;

AIR 2021 SC 177

(2007) 3 SCC 169

2016 (3) ALD 150

2021 SCC OnLine Cal 1261

2016 (2) LJR 641

SHAMSHER SINGH v. DISTRICT MAGISTRATE, U.T.

ADMINISTRATION, CHANDIGARH6; MANMOHAN SINGH v.

UNION TERRITORY, CHANDIGARH7; HAMINA KANG v. DISTRICT

MAGISTRATE (UT), CHANDIGARH8; SANDEEP GULATRI v.

DIVISIONAL COMMISSIONER, O/o. THE SECRETARY-CUM-

DIVISIONAL COMMISSIONER, DEPARTMENT OF REVENUE,

GOVT. OF NCT OF DELHI9 and DARSHANA v. GOVT. OF NCT OF

DELHI10.

8. Learned counsel for the respondents No.8 to 10 relied on the

judgment of the Supreme Court in S. VANITHA's case (1 supra).

9. Admittedly, the respondent No.8 is residing in the first floor

premises of the subject property. The DVC case in DVC.No.11 of 2021

before the III Metropolitan Magistrate, Hyderabad, filed by her is

pending. There is a claim in the DVC case that the first floor of the

subject property is a shared household. It is not in dispute that the

respondent No.8 started living in the first floor of the subject property

subsequent to her marriage with the son of the petitioner.

10. While the petitioner contends that it is his personal property

purchased by him under sale deed dated 16.05.2017 and later

transferred it to his daughter, the respondent No.8 contends that it is

a shared household and she is entitled to live in the first floor of the

subject property. However, this Court is not inclined to make any

observations at this point of time. Photographs have been filed by

learned counsel for the petitioner showing injuries allegedly sustained

by the petitioner and his wife, said to have been caused by the

2017 (2) LJR 529

2016 RCR (CIV) 838

2016 Lawsuit (P&H) 1228

2021 (1) HLR 230

2018 (4) RCR (CIVIL) 693

respondents No.8 to 10 and their relatives. In order to give a quietus

to the issue, this Court had personal interaction with the respondent

No.8 in the presence of her counsel Ms. Farhath Firdous and enquired

with her whether she is willing to settle the dispute. But, the

respondent No.8 candidly stated that her husband was misguided by

the petitioner, his wife and sister-in-law and she is not willing to take

any divorce. The divorce pronounced by her husband is not valid as

per the judgment of the Supreme Court. Further, the respondent No.8

states that if she is evicted from the subject property, she would be on

roads. In such circumstances, as the conciliation failed, the writ

petition was heard on merits.

11. In view of the competing rights and interests of the petitioner

and his wife claiming to be senior citizens and seeking protection

under Rule 21 Chapter VI of the Andhra Pradesh Maintenance of

Parents and Senior Citizens Rules, 2011 and Section 21 Chapter V of

the Maintenance and Welfare of Parents and Senior Citizens Act, 2007

and the respondent No.8 claiming the first floor of the subject property

to be a shared household under the provisions of the DVC Act,

this Court is of the opinion that any observations/findings given would

prejudice the case of the parties. In any case, the matter requires

detailed consideration by the DVC Court. The DVC Court is directed to

pass orders within a period of three (3) months from the date of

receipt of a copy of this order and render decision whether the subject

property is a shared household of the respondent No.8 and she has a

right of residence. Subject to the outcome of the said order,

the petitioners are given liberty to pursue further remedies under the

provisions of Rule 21 Chapter VI of the Andhra Pradesh Maintenance of

Parents and Senior Citizens Rules, 2011 and Section 21 Chapter V of

the Maintenance and Welfare of Parents and Senior Citizens Act, 2007

or approach this Court, if so advised.

The writ petition is disposed of accordingly. Pending

miscellaneous petitions, if any, shall stand closed. There shall be no

order as to costs.

__________________ B. VIJAYSEN REDDY, J November 29, 2021 DSK