Accordingly, it is to be held that the house in question
which is owned by respondent No. 2 (father-in-law of petitioner )
is not a “shared household” in which the petitioner has any right of
residence which can be enforced under the 2005 Act.
This being the position, no question of the 2007 Act
being used at cross purposes with the 2005 Act arises in this case.
Thus, the judgment in Harmohinder Singh's case is not
relevant. In that case ejectment of the divorced wife and sons was
being sought by the husband under the 2007 Act regarding which he
had also filed a suit. It is settled that even a divorced wife is to be
protected against her husband by a provision for maintenance which
includes a right of residence. Such a right could undeniably be
enforced under the 2005 Act. It was in this context that the Hon'ble
Court observed that the 2007 Act cannot be used at cross purposes
with and to annihilate the rights available under the 2005 Act.
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No.18009 of 2015 (O&M)
Date of decision: January 25, 2016
Hamina Kang V District Magistrate (U.T.), Chandigarh and others
Coram: MR.JUSTICE HARINDER SINGH SIDHU
Citation:AIR 2016(NOC)455 P&H
This petition has been filed praying for directions to
quash the order dated 6.8.2015 passed by respondent No.1 under
the Maintenance and Welfare of Parents and Senior Citizens Act,
2007 (hereinafter referred to as the “2007 Act”) directing the
petitioner to vacate house No.112 , Sector 9-B, Chandigarh within
ten days from the passing of this order.
The petitioner is the daughter-in-law of respondents No.2
and 3, being the wife of their son Kanwar Bir Singh Kang. The
petitioner was married to Kanwar Bir Singh Kang on 3.5.1992 in
accordance with Sikh rites. The marriage was registered on
11.5.1992 with the Registrar of Marriages, UT Chandigarh. After
marriage, the petitioner stayed for some time at the matrimonial
home i.e. H.No.112, Sector 9, Chandigarh. Thereafter the petitioner
and her husband alongwith respondents No.2 and 3 (who are U.S.
Citizens) went to the United States of America. While in the U.S,
three daughters were born to the petitioner, namely Amber Kang,
(aged about 19 years), Summer Kang (aged about 15 years) and
Joon Kang (aged about 15 years). In the year 2005 the husband of
the petitioner who was working in a multinational company in the
U.S. , got posted in India. Along with him, the petitioner and her
three daughters also shifted to India. Since then the petitioner is
residing in rear portion of H.No.112, Sector 9, Chandigarh which is a
six kanal house. The petitioner claims to have spent considerable
amount in furnishing the house.
Respondent No. 2 and 3 who had been residing in U.S.A
came to India in November, 2014. It is alleged that due to
differences between the petitioner and her husband, respondent
no.2 started harassing the petitioner so as to compel her to leave
the matrimonial house, regarding which the petitioner filed a
complaint to the police on 5.11.2014. After spending some days in
Chandigarh, in November 2014, respondent No.2 went back to USA.
Respondents No.2 and 3 again came to India in the month of April
2015, where after the harassment and humiliation of the petitioner
resumed regarding which she filed complaints Annexure P-4 to P-6.
Apprehending ouster from the matrimonial home, the
petitioner filed an application under Section 12 of the Protection of
Women from Domestic Violence Act, 2005 (hereinafter to be
referred to as the “2005 Act”) before Judicial Magistrate, Chandigarh
on 27.4.2015 against respondents 2 and 3 alleging that after coming
to India, they have, in connivance with their son (husband of the
petitioner), started harassing and humiliating the petitioner with a
view to forcibly dispossess her from her matrimonial home. Learned
JMIC, Chandigarh vide order dated 28.4.2015 directed that the
petitioner be not dispossessed from H.No.112, Sector 9-B,
Chandigarh till the next date. Thereafter, the order has been
continued from time to time and status quo regarding possession
has been directed to be maintained.
It is alleged that as a counter blast to the aforesaid
application filed by the petitioner, respondents No.2 and 3 filed CWP
No.9021 of 2015 praying for direction to the police of U.T.
Chandigarh to protect their life and liberty at the hands of the
petitioner and her mother. During pendency of this writ petition,
respondents No.2 and 3 filed an application dated 8.6.2015 under
section 21 and 22 of the 2007 Act read with Rule 19 of the
Chandigarh Maintenance of Parents and Senior Citizens Rules,
2009 (hereinafter referred to as the “2009 Rules”) for protection of
their life and property i.e. the residential H.No.112, Sector 9,
Chandigarh at the hands of the petitioner and her mother Smt.
Surender Kaur. It was claimed therein that house No.112, Sector 9-
B, is wholly owned by respondent No.2. Fifty per cent share in
respect of this plot was transferred in his favour on the basis of
registered Will dated 23.1.1991 of his late father Shri Ajmer Singh. CWP-18009-2015 (O&M) -4-
The remaining 50 per cent of this house held by Smt. Jagir Kaur
(wife of late Ajmer Singh and mother of respondent No.2) was
transferred in his favour vide letter dated 9.5.2002 on the basis of
court decree dated 24.7.1996. It was stated in the application that
Respondents No.2 and 3 were earlier working in USA and decided
to shift to H.No.112, Sector 9, Chandigarh in the evening of their life
as they were not keeping too well and as domestic help was very
expensive in the U.S. Ever since they started residing in the said
house, they have been harassed by the petitioner and her mother
who has come to stay with her. The petitioner filed false complaints
against them on two occasions i.e. 15.4.2015 and 24.4.2015 and
even called the police and abused them in the presence of the
Police. On 3.5.2015 she forcibly locked some of the rooms on the
ground floor blocking their access, besides, false applications were
made against the domestic help of respondents so that she may
refuse to work for them. The driver of respondents No.2 and 3,
Ganga Ram was involved in a false case. They accordingly prayed
that the petitioner be prohibited to interfere in their peaceful
possession.
It is the case of the petitioner that she had denied all the
allegations made against her by the respondents in their application,
but without considering the same, the District Magistrate
Chandigarh vide the impugned order directed the petitioner to
vacate the house No.112, Sector 9-B, Chandigarh within ten days. It
is this order, which has been assailed in the instant writ petition. CWP-18009-2015 (O&M) -5-
In the written statement filed by respondents No.2 and 3,
they have denied all the allegations regarding harassment and
victimization levelled by the petitioner. Rather, to the contrary they
have been the victim of false allegations and complaints made by
the petitioner. Giving details of what the respondents have done for
the family of the petitioner it is stated that the three daughters of the
petitioner were got admitted in Woodstock Residential School
Mussoorie, one of the most prestigious schools in India.
Respondents No.2 has contributed about 50 lakhs towards their
education. Respondents No.2 has also paid more than Rs.12 lakhs
to the petitioner and her husband. The eldest daughter of the
petitioner Ms. Amber Kang, is presently studying in Foothill College,
Palo Alto California, USA. Respondent No.2 has created US
Government Approved Fund of 26,161 US dollars to pay for the
college fee of all his grand daughters. He has paid the college fee of
1708 US dollars for academic year 2014-15. The allegations that
there are differences between the petitioner and her husband have
been denied. It has been stated that the petitioner is being provided
an amount of Rs.1,32,000 per month by her husband for staying at
Chandigarh. It is further stated that the husband of the petitioner is
earning about Rs.6.00 lakhs per month and is presently Chief
Executive Officer and Managing Director of subsidiary of an
American Company incorporated in India namely TrimedicX in
Bangalore. A large estate `Shanti Bagh' spreading over an area of
eight acres has been purchased at Ranthambhore near Swai CWP-18009-2015 (O&M) -6-
Madhopur, Rajathan in the name of the petitioner. The two younger
grand-daughters of the petitioner stay in the boarding school at
Mussorie and stay in the petitioner's estate in Rajasthan during
their holidays. The eldest daughter is studying in USA. The
petitioner is also running a business alongwith her brother namely
Shri Sandeep Singh Khatra in the name of `Swai Madhopur EcoTourism
Private Limited, Ranthambhore'. It has been denied that
the petitioner has been residing in the rear portion of the house
since 2005. It has been asserted that the petitioner and her husband
were always welcomed during their visits to Chandigarh by
respondents No.2 and 3 in the house owned and possessed by
them. It has been stated that all the electricity bills are being paid by
respondents no.2 and 3. The house was on monthly rent of
Rs.40,000/- which was got vacated by respondent No.2 for their
stay during their visits to India. It is alleged that when the petitioner,
her mother and husband became aware that respondents No.2 and
3 are intending to permanently reside in the house and they have
shifted their household goods from USA to Chandigarh, they started
harassing them by making false complaints against them. The
answering respondents had brought their households goods in
November 2014, thereafter respondent No.2 went to USA to get his
dental treatment and returned in March 2015.
It is stated that respondent No.2 is aged about 79 years,
is a diabetic, walks with a cane and is suffering from high blood
pressure. Respondent No.3 is a doctor by profession, aged about 75 CWP-18009-2015 (O&M) -7-
years and is suffering from `Failed Spine Surgery Syndrome' and is
currently under treatment in USA.
Assailing the order of the Ld. District Magistrate, Dr.
Puneet Kaur Sekhon, Learned counsel for the petitioner has raised
the following substantial arguments:-
1. Jurisdiction under the 2007 Act can be invoked only by “Senior
Citizens”. Respondents No. 2 and 3 are U.S. Citizens. As they
are not “Citizens of India”, they are not “senior citizens” within
the meaning of the term in Section 2 (h) of the 2007 Act.
2. An order under the provisions of the 2007 Act cannot be
passed to render the order passed under the 2005 Act
nugatory. The provisions of the 2007 Act cannot be used at
cross purposes with the 2005 Act and to annihilate the rights
flowing therefrom.
3. Under the 2007 Act and the 2009 Rules eviction order can be
sought only against son, daughter or legal heirs and not
against the daughter-in-law.
4. There is concealment of material facts/documents in the
application filed by respondents No.2 and 3 under the Act
which dis-entitles them from seeking any relief. They did not
disclose that they were U.S. Citizens, and that had filed CWP
No.9021 of 2015 seeking similar relief and also the fact that
status quo orders had been earlier passed in favour of the
petitioner under Section 12 of the 2005 Act
On the other hand, Sh. Saggar Ld. Senior Counsel for CWP-18009-2015 (O&M) -8-
the respondents has defended the impugned order.
I have heard Ld. Counsel for the parties and perused the
record.
The first submission of Ld. Counsel for the petitioner is
that the application under Sections 21 and 22 of the 2007 Act filed
by respondents 2 and 3, who admittedly are U.S. Citizens is not
maintainable. It has been argued that such an application can be
filed only by a “Senior Citizen” which term as per its definition in
Section 2(h), means a person who is a citizen of India and is of the
age of sixty years or above.
In order to appreciate this argument, a reference to the
relevant provisions of the 2007 Act and the 2009 Rules is
necessary.
The Preamble to the 2007 Act states that it is an “An
Act to provide for more effective provisions for the maintenance and
welfare of parents and senior citizens guaranteed and recognised
under the Constitution and for matters connected therewith or
incidental thereto”
As per Section 2(d) “parent” means father or mother,
whether biological, adoptive or step father or step mother, as the
case may be, whether or not the father or the mother is a senior
citizen.
Section 2(h) defines “Senior Citizen” as under:
“senior citizen” means any person being a citizen of
India, who has attained the age of sixty years or above; CWP-18009-2015 (O&M) -9-
It is clear that there is no requirement for the parent to be
a citizen of India. A senior citizen is a person who is a citizen of
India and is of the age of sixty years or more.
Since the requirement of being a citizen of India is only a
part of the definition of a senior citizen, a father or mother, whatever
his or her nationality would be a `parent'. Thus, a person who is a
parent would be entitled to the benefits of the Act which are
conferred on parents, irrespective of his or her age or nationality.
Sections 21 and 22 are the relevant provisions of the Act
which fall in Chapter V 'Protection of Life and Property of Senior
Citizen.'
“21. Measures for publicity, awareness, etc., for
welfare of senior citizens.—The State Government
shall, take all measures to ensure that—
(i) the provisions of this Act are given wide publicity
through public media including the television, radio and
the print, at regular intervals;
(ii) the Central Government and State Government
Officers, including the police officers and the members
of the judicial service, are given periodic sensitization
and awareness training on the issues relating to this Act;
(iii) effective co-ordination between the services provided
by the concerned Ministries or Departments dealing with
law, home affairs, health and welfare, to address the
issues relating to the welfare of the senior citizens and
periodical review of the same is conducted.
22. Authorities who may be specified for
implementing the provisions of this Act.—(1) The
State Government may, confer such powers and impose CWP-18009-2015 (O&M) -10-
such duties on a District Magistrate as may be
necessary, to ensure that the provisions of this Act are
properly carried out and the District Magistrate may
specify the officer, subordinate to him, who shall
exercise all or any of the powers, and perform all or any
of the duties, so conferred or imposed and the local
limits within which such powers or duties shall be carried
out by the officer as may be prescribed.
(2) The State Government shall prescribe a
comprehensive action plan for providing protection of life
and property of senior citizens.”
It is true that the heading of Chapter V and the aforesaid
Sections make a mention only of `senior citizens'. But the 2009
Rules framed thereunder, which have been invoked by respondent 2
and 3 and in terms of which the impugned order has been passed
are in relation to both Parents and Senior Citizens. These rules
outline the procedure for eviction from property/residential building of
Senior Citizen/ Parent. Thus, on its plain language, these Rules can
be invoked by a `Parent', even though he may not be a `Senior
Citizen' as defined in the Act.
The relevant Rules are reproduced below:
“[3(1)Procedure for eviction from
property/residential building of Senior
Citizen/Parent.-
(i) Complaints received (as per provisions of the
Maintenance of Parents and Senior Citizens Act, 2007)
regarding life and property of Senior Citizens by different
Departments i.e. Social Welfare, Sub Divisional
Magistrates, Police Department, NGOs/Social Workers,
Helpline for Senior Citizens and District Magistrate
himself, shall be forwarded to the District Magistrate, CWP-18009-2015 (O&M) -11-
Union Territory, Chandigarh for further action.
(ii) The District Magistrate, Union Territory shall
immediately forward such complaints/applications to the
concerned Sub-Divisional Magistrates for verification of
the title of the property and facts of the case through
Revenue Department/ concerned Tehsildars within 15
days from the date of receipt of such
complaint/application.
(iii) The Sub-Divisional Magistrates shall immediately
submit its report to the District Magistrate for final orders
within 21 days from the date of receipt of the
complaint/application.
(iv) If the District Magistrate is of opinion that any son
or daughter or legal heir of a senior citizen/parents are in
unauthorized occupation of any property as defined in
the Maintenance and Welfare of parents and Senior
citizens Act, 2007 and that they should be evicted, the
District Magistrate-cum-Estate Officer shall issue in the
manner hereinafter provided a notice in writing calling
upon all persons concerned to show cause as to why an
order of eviction should not be issued against
them/him/her.
(v) The notice Shall-
(a) specify the grounds on which the order of
eviction is proposed to be made; and
(b) require all persons concerned, that is to say,
all persons who are, or may be, in occupation of, or
claim interest in, the property/premises, to show cause,
if any, against the proposed order on or before such
date as is specified in the notice, being a date not earlier
than ten days from the date of issued thereof.
(c) The District Magistrate shall cause the notice
to be served by having it affixed on the outer door or at CWP-18009-2015 (O&M) -12-
some other conspicuous part of the public premises and
in such other manner as may be prescribed, whereupon
the notice shall be deemed to have been duly given to all
persons concerned.
3(2) Eviction Order from property/residential building
of Senior Citizen/parents-
(i) If, after considering the cause, if any, shown
by any person in pursuance to the notice and any
evidence he/she may produce in support of the same
and after giving him/her a reasonable opportunity of
being heard, the District Magistrate is satisfied that the
property/premises are in unauthorized occupation, the
District Magistrate or other officer duly authorized may
make an order of eviction, for reasons to be recorded
therein, directing that the property/residential building
shall be vacated, on such date as may be specified in
the order, by all persons who may be in occupation
thereof or any part thereof, and cause a copy of the
order to be affixed on the outer door or some other
conspicuous part of the public premises;
(ii) The District Magistrate may also associate
NGOs/Voluntary organizations/social workers working
for the welfare of senior citizens for the enforcement of
orders.
(3) Enforcement of Orders.-
(i) If any person refuses or fails to comply with
the order of eviction within thirty days from the date of its
issue, the District Magistrate or any other officer duly
authorized by the District Magistrate in this behalf may
evict that person form the premises in question and take
possession;
(ii) The District Magistrate, U.T. Chandigarh shall have
powers to enforce the eviction orders through Police CWP-18009-2015 (O&M) -13-
Department.
(iii) The District Magistrate, U.T. Chandigarh further
handover the property/premises in question to the
concerned Senior Citizens/Parents.
(iv) The District Magistrate, U.T. Chandigarh shall
forward a monthly report of such cases to the Social
Welfare Department by 7th of the following month for
review of such cases in the State Council for Senior
Citizens constituted under the Maintenance and Welfare
of Parents and Senior citizens Act, 2007 and Rules of
2009 framed under the said Act under the Chairmanship
of Secretary, Social Welfare, Chandigarh
Administration.”
Clearly, an application for protection and eviction by
respondents No. 2 and 3, the old and aged parents (79 and 75
years respectively), from their property even though they are not
citizens of India, is maintainable.
The respondents are not natives of U.S. They were
Indian Citizens by birth. They have had their education from India,
getting the Engineering and MBBS degree respectively from Punjab
Engineering College, Chandigarh and Government Medical College
Amritsar. Respondent No. 2 served the Indian Army for ten years
from 1959 to 1969 and went to USA after getting discharge from the
Army. It is thereafter that they acquired U.S. Citizenship. Having
retired from their jobs, they now want to settle in India. They are
presently registered as `Overseas Citizens of India'. They cannot be
denied the benefit of the 2007 Act.
It is noteworthy that there is no challenge to the 2009 CWP-18009-2015 (O&M) -14-
Rules which are in harmony with the objective and purpose of the
2007 Act which is to provide a simple, inexpensive and speedy
remedy for maintenance and welfare of parents and the elderly and
for protection of their life and property. This is reflected in the
`Statement of Objects and Reasons' of the Act which is reproduced
below:
“Statement of Objects and Reasons:
Traditional norms and values of the Indian society
laid stress on providing care for the elderly. However,
due to withering of the joint family system, a large
number of elderly are not being looked after by their
family. Consequently, many older persons, particularly
widowed women are now forced to spend their twilight
years all alone and are exposed to emotional neglect
and to lack of physical and financial support. This clearly
reveals that ageing has become a major social
challenge and there is a need to give more attention to
the care and protection for the older persons. Though
the parents can claim maintenance under the Code of
Criminal Procedure, 1973, the procedure is both timeconsuming
as well as expensive. Hence, there is a need
to have simple, inexpensive and speedy provisions to
claim maintenance for parents.
2. The Bill proposes to cast an obligation on the
persons who inherit the property of their aged relatives
to maintain such aged relatives and also proposes to
make provisions for setting-up old-age homes for
providing maintenance to the indigent older persons.
The Bill further proposes to provide better medical
facilities to the senior citizens and provisions for
protection of their life and property. CWP-18009-2015 (O&M) -15-
3. The Bill, therefore, proposes to provide for:-
(a) appropriate mechanism to be set up to provide
need-based maintenance to the parents and
senior citizens;
(b) providing better medical facilities to senior citizens;
(c) for institutionalisation of a suitable mechanism for
protection of life and property of older persons;
(d) setting up of oldage homes in every district.
4. The Bill seeks to achieve the above objectives.”
Keeping in view the aforesaid objectives, it is
inconceivable that the Parliament could have intended to deny the
benefits of Chapter V of the Act to the aged parents, merely
because they were not Citizens of India. Anyway, as already stated
above, a plain reading of the 2009 Rules does not support such a
contention.
Ld. Counsel has next argued that in terms of Rule 3(1) of
the 2009 Rules, eviction can be ordered only against the son,
daughter or legal heirs and not against a daughter-in-law. In this
context reference has been made to Rule 3(1)(iv) which is as under:
“If the District Magistrate is of opinion that any son
or daughter or legal heir of a senior citizen/parents are in
unauthorized occupation of any property as defined in
the Maintenance and Welfare of parents and Senior
citizens Act, 2007 and that they should be evicted, the
District Magistrate-cum-Estate Officer shall issue in the
manner hereinafter provided a notice in writing calling
upon all persons concerned to show cause as to why an
order of eviction should not be issued against
them/him/her.”
The argument is that as only son, daughter or legal heir
of the parent/ senior citizen is mentioned herein, hence eviction
order can be passed only against any of them and against no other. CWP-18009-2015 (O&M) -16-
This argument of the Ld. Counsel is also without merit as
would be clear from a consideration of Rules 3(1), 3(2) and 3(3)
which outline the procedure for eviction and which have already
been reproduced above.
No doubt, the first part of Rule 3(1)(iv) , which relates to
the opinion of the District Magistrate about the property being in
unauthorized occupation, makes a mention only of son or daughter
or legal heir of a senior citizen/ parent, but from this alone it cannot
be concluded that eviction orders can be ordered only against son,
daughter or legal heir. The other provisions of these Rules clearly
militate against such a conclusion.
First, the latter part of Rule 3(1)(iv) itself, which is in
relation to issuance of show cause notice is not limited to son,
daughter or legal heir, but requires issuance of such notice to “all
persons concerned to show cause why an order of eviction should
not be issued against them/him/her”.
Similarly, as per Rule(3)(1) (v)(b) such notice shall
“require all persons concerned, that is to say, all persons who are or
may be, in occupation of, or claim interest in, the property/ premises”
to show cause against the notice.
In Rule 3(2) (i) the Eviction order from the property/
residential building of Senior Citizen/ Parent may be passed
“directing that the property/ residential building shall be vacated, on
such date as may be specified in the order, by all persons who may
be in occupation thereof or any part thereof.” CWP-18009-2015 (O&M) -17-
Rule 3(3)(i) which deals with enforcement of eviction
orders, again is that `if any person refused or fails to comply with the
order of eviction', then the District Magistrate or any person on his
behalf `may evict that person from the premises in question and
take possession'
Clearly, in terms of the above provisions, the eviction
order can be passed against any person who is in unauthorized
occupation of the property of the Senior Citizen/ Parent. The first
part of Rule 3 (1)(iv) which mentions only son or daughter or legal
heir cannot control the above referred specific provisions and limit
their operation and effect.
This Court in Balbir Kaur Vs. Presiding Officer-cumSDM
(CWP No.15477 of 2014 decided on June 29, 2015) after an
analysis of various provisions of the 2007 Act held that the exercise
of the right under Section 22 regarding protection of right of life or
property of a Senior citizen has been conferred irrespective of the
fact whether the person who threatens the life or property is related
to the senior citizen or not. An application under Sections 21 and
22 against the daughter-in-law was held to be maintainable.
Ld. Counsel for the petitioner next argued that impugned
order of eviction is unsustainable in view of the rights of the
petitioner to residence etc. in terms of the Protection of Women
from Domestic Violence Act, 2005 (hereinafter referred to as the
“2005 Act”.)
In this context, Ld. Counsel referred to the fact that CWP-18009-2015 (O&M) -18-
before the filing of the application by respondents No. 2 and 3 under
the 2007 Act, the petitioner had already filed an application under
Section 12 of the 2005 Act and was granted an order for stay of
dispossession from the premises claiming that to be her matrimonial
home since 2005.
She has placed strong reliance on a decision of this
Court in Major Harmohinder Singh Vs. State of Punjab and
others 2014(5) RCR 693 to contend that the provisions of the 2007
Act cannot be used to annihilate the rights conferred under the 2005
Act.
Mr. Saggar, Ld. Senior Counsel for the respondents has
argued that the house in question is the separate property of the
respondent No. 2, half share whereof devolved to him by the Will of
his father Late Sh. Ajmer Singh dated 21.11.1991 and the other half
was transferred in his name on 9.5.2002 in terms of Court decree
dated 24.7.1996. He states that neither the husband of the petitioner
(son of respondents No. 2 and 3) nor the petitioner have any right,
title or interest in this property. He relies on the decisions of the
Hon'ble Supreme Court in S.R. Batra v. Taruna Batra, (2007) 3
SCC 169 and Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai
Patel, (2008) 4 SCC 649 to contend that the right of residence of a
daughter-in-law claimed in terms of Sections 17 and 19 of the 2005
Act does not extend to a house belonging to the father-in-law or
mother-in-law, in which the husband has no right, title or interest.
He has further placed reliance on a decision of a Division Bench of CWP-18009-2015 (O&M) -19-
this Court in CWP No.25407 of 2015 titled “Gurpreet Singh vs.
State of Punjab and others” decided on 1.12.2015, to contend that
a son and his family is a mere licensee living in the property owned
by his father on the basis of concession. The license stands
terminated, the moment the licensor conveys a notice of termination
of the license. Once a senior citizen makes a complaint to the
District Magistrate against his son to vacate the premises, on which
he is a licensee, such summary procedure will enure to the benefit
of the senior citizen.
As against this Ld. Counsel for the petitioner has placed
reliance on the decisions of the Delhi High Court in Navneet Arora
vs. Surender Kaur and others, 2014 LawSuit (Del) 3411 and
Preeti Satija Vs. Raj Kumari and another 2014(2) RCR (Civil) 8 to
contend that if a couple lives as member of joint family in domestic
relationship with relatives of the husband in a premises owned by
such relatives, it would enable the wife to claim the right of
residence as it would fall within the meaning of `shared household'
under Section 2(s) of the 2007 Act, irrespective of the fact whether
the wife or her husband has any right, title or interest in the shared
household.
In the light of these pleas, the question that squarely
arises for consideration is whether the impugned order is
sustainable in view of the rights claimed by the petitioner under the
2005 Act?
The fact that respondent No.2 is the owner of the house
is not disputed. Ld. Counsel for the petitioner only states that the
house is Joint Hindu Family property and the petitioner along with
her three daughters has filed a civil suit for declaration to the effect
that they being members of the Joint Hindu Family are owners in
possession to the extent of their shares in all the Joint Family
property including House No. 112, Sector 9-B, Chandigarh. The said
suit is pending.
It is well settled that the apparent state of affairs shall
be taken as real state of affairs. It is not for an owner of the property
to establish that it is his self-acquired property. The onus would be
on the one, who pleads otherwise. [Vimlaben Ajitbhai Patel v.
Vatslaben Ashokbhai Patel, (2008) 4 SCC 649.)
Further, the existence of a joint family does not lead to
the presumption that property held by any member of the family is
joint, and the burden rests upon anyone asserting that any item of
property was joint to establish the fact. [Shrinivas Krishnarao
Kango v. Narayan Devji Kango AIR 1954 SC 379, Appasaheb
Peerappa Chamdgade v. Devendra Peerappa Chamdgade,
(2007) 1 SCC 521].
On the aforesaid principle, for the purposes of these
proceedings, the house in question has to be treated to be the
separate property of respondent No. 2 and it cannot be considered
to be Joint Family property in which the husband of the petitioner or
the petitioner has any right, share or interest.
Now, the question is, whether in this background does
the petitioner have any right to residence in the house in question in
terms of the 2005 Act ?
The term shared household is defined in the 2005 Act,
as under:
“Section 2. Definitions
(s) “shared household” means a household where the
person aggrieved lives or at any stage has lived in a
domestic relationship either singly or along with the
respondent and includes such a household whether
owned or tenanted either jointly by the aggrieved person
and the respondent, or owned or tenanted by either of
them in respect of which either the aggrieved person or
the respondent or both jointly or singly have any right,
title, interest or equity and includes such a household
which may belong to the joint family of which the
respondent is a member, irrespective of whether the
respondent or the aggrieved person has any right, title or
interest in the shared household;”
The Hon'ble Supreme Court in S.R. Batra v. Taruna
Batra, (2007) 3 SCC 169, held that the wife could claim the right of
residence in terms of Section 17(1) of the Act, only in a `shared
household' and a `shared household' would only mean the house
belonging to or taken on rent by the husband, or the house which
belongs to the joint family of which the husband is a member. It was
held that the house which was the exclusive property of the motherin-law
could not be said to be a `shared household' entitling the
daughter-in-law to claim a right of residence therein. The Hon'ble
Court negatived the contention on behalf of the daughter-in-law that
as per the definition, `shared household' would include a
household where the aggrieved person lives or at any stage had
lived in a domestic relationship. It was observed that if such
submission is accepted it would lead to chaos, because in that event
every place where the husband and wife had resided would be a
shared household. The Hon'ble Court also observed that the
definition of `shared household' in Section 2(s) appears to be the
result of clumsy drafting and that it had given it a sensible
interpretation.
The pertinent observations of the Hon'ble Court are as
under:
“24. Learned counsel for the respondent Smt. Taruna
Batra stated that the definition of shared household
includes a household where the person aggrieved lives
or at any stage had lived in a domestic relationship. He
contended that since admittedly the respondent had
lived in the property in question in the past, hence the
said property is her shared household.
25. We cannot agree with this submission.
26. If the aforesaid submission is accepted, then it will
mean that wherever the husband and wife lived together
in the past that property becomes a shared household. It
is quite possible that the husband and wife may have
lived together in dozens of places e.g. with the
husband’s father, husband’s paternal grandparents, his
maternal parents, uncles, aunts, brothers, sisters,
nephews, nieces, etc. If the interpretation canvassed by
the learned counsel for the respondent is accepted, all
these houses of the husband’s relatives will be shared
households and the wife can well insist in living in all
these houses of her husband’s relatives merely because
she had stayed with her husband for some time in those
houses in the past. Such a view would lead to chaos and
would be absurd.
27. It is well settled that any interpretation which leads
to absurdity should not be accepted.
28. Learned counsel for the respondent Smt. Taruna
Batra has relied upon Section 19(1)(f) of the Act and
claimed that she should be given an alternative
accommodation. In our opinion, the claim for alternative
accommodation can only be made against the husband
and not against the husband’s (sic) in-laws or other
relatives.
29. As regards Section 17(1) of the Act, in our opinion
the wife is only entitled to claim a right to residence in a
shared household, and a shared household would only
mean the house belonging to or taken on rent by the
husband, or the house which belongs to the joint family
of which the husband is a member. The property in
question in the present case neither belongs to Amit
Batra nor was it taken on rent by him nor is it a joint
family property of which the husband Amit Batra is a
member. It is the exclusive property of Appellant 2,
mother of Amit Batra. Hence it cannot be called a
“shared household”.
30. No doubt, the definition of “shared household” in
Section 2(s) of the Act is not very happily worded, and
appears to be the result of clumsy drafting, but we have
to give it an interpretation which is sensible and which
does not lead to chaos in society.”
This decision has been reiterated by the Hon'ble
Supreme Court in Vimlaben Ajitbhai Patel v. Vatslaben
Ashokbhai Patel, (2008) 4 SCC 649. In this case, the Hon'ble
Supreme Court adverted to the legal position that in terms of
Sections 18 and 19 the Hindu Adoption and Maintenance Act, 1956,
liability in regard to maintenance of wife is upon her husband and
only on his death does it become the liability of the father-in-law. In
the context of the 2005 Act, it was observed that it provided a higher
right in favour of wife, which extends to the joint properties in which
the husband has a share. It was held that an order of maintenance
against the husband can be executed only against the husband and
his properties but not against the property of her mother-in-law.
The relevant observations in this context are as under:
“27. The Domestic Violence Act provides for a higher
right in favour of a wife. She not only acquires a right to
be maintained but also thereunder acquires a right of
residence. The right of residence is a higher right. The
said right as per the legislation extends to joint
properties in which the husband has a share.
28. Interpreting the provisions of the Domestic Violence
Act this Court in S.R. Batra v. Taruna Batra held that
even a wife could not claim a right of residence in the
property belonging to her mother-in-law, stating: (SCC p.
173, paras 17-19)
“17. There is no such law in India like the British
Matrimonial Homes Act, 1967, and in any case, the
rights which may be available under any law can
only be as against the husband and not against the
father-in-law or mother-in-law.
18. Here, the house in question belongs to the
mother-in-law of Smt Taruna Batra and it does not
belong to her husband Amit Batra. Hence, Smt
Taruna Batra cannot claim any right to live in the
said house.
19. Appellant 2, the mother-in-law of Smt Taruna
Batra has stated that she had taken a loan for
acquiring the house and it is not a joint family
property. We see no reason to disbelieve this
statement.”
Following these decisions, different High Courts have
ruled that a residence belonging to the mother-in-law or father-in-law
would not be a `shared household' within the meaning of Section
2(s) of the 2005 Act and that a daughter-in-law would have no right
of residence therein in terms of Section 17(1) of the 2005 Act.
Following cases may be usefully referred to : Ekta Arora vs. Ajay
Arora and another, 2015 AIR (Delhi) 180, V.P.Anuradha vs.
S.Sugantha alias Suganthi and others, 2015(4) RCR (Criminal)
631 and A.R.Hashir and others vs. Shima and others, 2015(5)
RCR (Civil) 35.
The Delhi High Court in two decisions which were relied
upon by the Ld. Counsel for the petitioner has distinguished the
aforementioned decisions of the Hon'ble Supreme in the matter of
the restricted meaning given to `shared household' as not including
a property wherein the husband does not have any right, title or
interest. In Navneet Arora's case(supra), the decision of the
Hon'ble Supreme Court in S. R. Batra's case was explained as
having been rendered in the fact situation obtaining therein where
Taruna Batra (the aggrieved daughter-in-law) and her husband Amit
Batra had been residing on the first floor, whereas the mother-inlaw,
(the owner of the house in question) along with her husband
were residing on the ground floor. The Court held that they were
not residing as members of a `shared household' as understood in
the legalistic sense as the residence and kitchen were separate. It
was concluded that S.R. Batra's case is only an authority for the
proposition that under the 2005 Act, a wife is precluded from
claiming the right of residence in a premises, not owned by the
husband, where she has lived with her husband separately, but not
as a member of the `joint family' along with the relatives of the
husband who own the premises. But if the couple live with the
relatives of the husband as members of `joint family' along with the
relatives of the husband in premises owned by such relatives of the
husband, then such residence would fall within the meaning of
`shared household' giving the wife the right of residence therein
irrespective of the fact whether her husband has any right, title or
interest therein. It was explained that living as `joint family' meant
living under one roof and having a common kitchen.
In Preeti Satija's case (supra), also the decisions in
S.R. Batra and Vimalben Ajitbhai Patel, were held to have been
rendered in a different context and it was observed that these
decisions did not decide the question that despite the definition of
`shared household' enabling a wife the right of residence in
premises not owned by the husband, she could not claim to live
there.
It needs to be noted that in both these cases Special
Leave Petitions have been filed which are pending. (Civil Appeal
No.9723 of 2014 and SLP (Civil) CC No.SC-14416/2015).
Having thoughtfully considered the matter, I find it
difficult to agree with the view of the Delhi High Court that the
observations of the Hon'ble Supreme Court regarding `shared
household' have to be read as being limited to the fact situation
obtaining in those cases. The Hon'ble Supreme Court in S.R. Batra's
case took note of the definition of `shared household' in Section 2(s)
and the rights under Section 17 and 19 of the 2005 Act and
negatived the contention of the wife that a `shared household' would
include a household where the person aggrieved lives or had lived
at any stage in a `domestic relationship'. It held that such an
interpretation besides being absurd would lead to chaos. It also
concluded that the definition of `shared household' was not happily
worded and that it had given it a sensible interpretation.
Thus, it is difficult to agree that in S.R. Batra's case the
Hon'ble Supreme Court has not interpreted the term `shared
household' and that the decision cannot be relied on in a different
fact situation. More so, when the observations were cited with
approval by the Hon'ble Supreme Court in the subsequent case of
Vimlaben Ajitbhai Patel (supra)
In this context it will be useful to refer to a decision of the
Division Bench of the Kerela High Court in A.R.Hashir's case
(supra). The Division Bench over-ruled the decision of the Learned
Single Judge, which while distinguishing S.R.Batra's case had held
that if a woman along with her husband had stayed in a particular
house either belonging to her mother-in-law or father-in-law after her
marriage and if the marriage was arranged by the parents, it could
be treated as a `shared household' giving the wife a right to
residence. The Division Bench observed that when the Supreme
Court has laid down the principles based on interpretation of the
definition of the Statute, High Court is not entitled to tinker with that
interpretation and deviate from the dictum laid down by the Supreme
Court.
I am in agreement with the aforesaid view.
Accordingly, it is to be held that the house in question
which is owned by respondent No. 2 (father-in-law of the petitioner )
is not a “shared household” in which the petitioner has any right of
residence which can be enforced under the 2005 Act.
This being the position, no question of the 2007 Act
being used at cross purposes with the 2005 Act arises in this case.
Thus, the judgment in Harmohinder Singh's case is not
relevant. In that case ejectment of the divorced wife and sons was
being sought by the husband under the 2007 Act regarding which he
had also filed a suit. It is settled that even a divorced wife is to be
protected against her husband by a provision for maintenance which
includes a right of residence. Such a right could undeniably be
enforced under the 2005 Act. It was in this context that the Hon'ble
Court observed that the 2007 Act cannot be used at cross purposes
with and to annihilate the rights available under the 2005 Act. Such
is not the position in the present case, where no right of the
petitioner under the 2005 Act is being sought to be nullified by the
2007 Act.
Similarly, the judgment in Natasha Sood vs
Chandigarh Administration 2015 (4) PLR 521, is distinguishable.
In that case, there was no pleading or evidence that the house in
question belonged to the father-in-law or mother-in-law. It was held
that as the question as to whether the house in question is a
`shared household' or not, was yet to be determined, hence the
order for ejectment passed under the 2007 Act was quashed. In the
present case it has already been concluded that the house is
question is not `shared household' qua the petitioner.
On the issue of non-disclosure, in my view, the fact that
respondents No. 2 and 3 in their application have not made a
specific mention regarding them having filed CWP No. 9021 of 2015
seeking relief of protection and the order dated 27.4.2015 passed by
the JMIC on the application of the petitioner under the 2005 Act
directing respondents No. 2 and 3 not to dispossess the petitioner CWP-18009-2015 (O&M) -29-
from the house, cannot be a ground to reject their application. These
facts were highlighted by the petitioner in her reply to the application
and have been noticed by the Ld. District Magistrate in the
impugned order. Hence it cannot be concluded that the impugned
order has been procured by fraud by the respondents.
Apart from the legal position, the facts of this case need
to be noted. It is not disputed that the husband of the petitioner is
employed as Chief Executive Officer-cum-Managing Director of
subsidiary of an American Company. The respondents claim that he
is earning about Rs.6 lacs per month, though the petitioner claims
that she is not aware of the correct figure of salary of her husband,
as she is not having good relations with him. However, it has not
been disputed that the petitioner is being provided an amount of
Rs.1,32,000/- by her husband for her stay at Chandigarh. The
petitioner is also in possession of a large estate `Shanti Bagh'
spreading over an area of eight acres at Ranthombore near Swai
Madhopur (Rajasthan), which the respondents claim has been
purchased for the petitioner by her husband, but as per the
petitioner the said estate is a part of her `Istridhan' as she asserts
that the money to purchase the same was provided by her parents.
It is also not denied that the petitioner is running a Company by the
name of `Swai Madhopur Eco Tourism Pvt. Ltd. Ranthambore' along
with her brother, though the petitioner claims it is not doing good
business.
The respondents in their written statement have annexed CWP-18009-2015 (O&M) -30-
news reports showing the participation of the petitioner in a trade fair
at Pragati Maidan, where, she was a part of group of four women
selected by the Chandigarh Administration to exhibit their
handicrafts at the Chandigarh Pavilion. The petitioner herself in her
complaint dated 5.11.2014 (Annexure P-3) had referred to her being
chosen by the Director of Industries Department, Chandigarh to
represent Chandigarh in International Trade Fair, Pragati Maidan,
New Delhi from 14.11.2014 to 17.11.2014.
Respondents No.2 and 3 have placed on record details
of the amount spent by respondent No.2 towards providing
education to their three grand-daughters (daughters of the
petitioner) which amount is substantial and appears to cater to their
entire educational expenses.
Respondent No.2 is aged about 79 years and he is
stated to be a diabetic, walks with a cane and is suffering from High
Blood Pressure. Respondent No.3 is a doctor by profession and is
aged about 75 years and is stated to be suffering from a spinal
disease `Failed spine surgery syndrome'. They have spent about 40
years of their lives working and toiling in the United States and
contributing to their family, having provided the best of education to
their son (husband of the petitioner) and even at this advanced age,
are providing for the education of their grand-daughters. Now, when
they have decided to permanently settle in Chandigarh in the house
which is exclusively owned by respondent No.2, instead of a warm
and comfortable stay which they would have expected and eminently
deserved, they have met with stiff resistance at the hands of the
petitioner who has gone to the extent of locking various rooms and
blocking the access of the respondents to various parts of the
house, as evidence whereof they have annexed photographs with
the petitioner standing alongside the carpenter. The claim of the
petitioner that this has been done at the instance of the respondents
does not appear to be credible.
Despite the projection by the petitioner to be a harassed
daughter-in-law, the facts appear to speak otherwise. The timings
of her complaints to the police, unerringly coincide with the decision
of the respondents No.2 and 3 to permanently settle in Chandigarh.
At no time prior thereto, did she make any complaint against them. It
is only when their intention to permanently settle in Chandigarh
became known that the complaints started.
During the course of many hearings of this petition, I had
repeatedly made attempts to persuade the parties to arrive at an
amicable settlement. This is an illustrious and well known family and
it was expected that the matters would be sorted out. But that was
not to be.
Ld. Counsel for the petitioner submitted that the
petitioner should be permitted to stay in the rear portion of the house
where she has been staying since 2005. This would not cause any
disturbance to the respondents. But this was not acceptable to the
respondents. Respondents No.2 and 3 very clearly stated that the
presence of the petitioner in the house would disturb their peace
and, at least for the time being, keeping in view her conduct in
levelling false allegations and making police complaints, such an
arrangement would not be conducive. In the facts and
circumstances of this case this stand of the respondents does not
appear to be unfounded.
I had put it to the Ld. Counsel for the respondents if they
would be willing to meet the expenses of the petitioner staying at
some alternative place. The respondents readily agreed. They gave
a list of three places which they could take on rent for the petitioner
(which would cost about Rs.25,000 p.m.) and also stated that they
were willing to give the rent for one year in advance.
This was not acceptable to the petitioner who has filed
an affidavit pointing out that the location is neither suitable nor
secure nor in any way comparable with the present place of stay.
Thus, there has been no agreement on any point.
The facts disclose that the petitioner is not helpless.
She has sufficient means of her own, besides the provision being
made by her husband. The husband of the petitioner is employed at
Bangalore. It is always open to the petitioner to claim her rights
against him.
In view of the aforesaid factual and legal position, this
petition is disposed of with the following directions:
(i) The petitioner is directed to vacate House No. 112,
Sector 9-B, Chandigarh within one month from
today.
(ii) Respondents No.2 and 3, would be held bound to
their offer to pay a sum of Rs. 25,000/- per month
to the petitioner for one year.
(iii)It would be open to the petitioner to seek any
appropriate relief as may be permissible in law
against her husband.
It is clarified that the observations and findings in this
case are limited to these proceedings only.
It is earnestly hoped that the parties would soon resolve
their differences to live amicably.
January 25, 2015 (HARINDER SINGH SIDHU)
No comments:
Post a Comment