Disposed

Deepali Chopra v. State of U.P. Thru. Prin. Secy., Deptt. of Social Welfare, Lucknow and Others

Allahabad HC29 Apr 2024WRIC/3924/2024

Case brief

AI extract

What is this about?

Writ petition challenging an order by the Maintenance Tribunal directing the petitioner to leave her matrimonial home under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The Court observed that eviction simplicitor cannot be passed under the Act per S. Vanitha. The impugned order was stayed, and notice was issued.

What did the court decide?

Operation and implementation of the impugned order dated 22.03.2024 stayed; no hindrance in petitioner's right to reside in matrimonial home.

Deepali Chopra vs State of U.P. Thru. Prin. Secy… — Domestic Violence | Allahabad HC (2024)

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Court No. - 19

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Case :- WRIT - C No. - 3924 of 2024

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Petitioner :- Deepali Chopra

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Respondent :- State Of U.P. Thru. Prin. Secy., Deptt. Of Social Welfare, Lucknow And Others Counsel for Petitioner :- Abhishek Khare Counsel for Respondent :- C.S.C.,Vasu Aditya

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Hon'ble Subhash Vidyarthi,J.

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Shri Abhishek Khare, Advocate made a mention at 2.15 p.m. that he is filing an urgent petition and he has made a mention in the morning before a Coordinate Bench of this Court sitting in Court No.17 (Hon'ble Manish Mathur, J.) which request has been accepted by the Court and the Court has granted permission to list the matter today as per the jurisdiction. However, for some reason the Bench was not available after lunch. Therefore, he made a request for taking up the case today itself showing the urgency that the petitioner is not being allowed to enter her matrimonial home since yesterday and the matter is extremely urgent.

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Keeping in view the urgency involved in the matter as would appear from the later part of this order, the permission was granted and thus, the matter has been placed before this Court.

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Heard Shri Abhishek Khare, learned counsel for the petitioner, Shri Pankaj Srivastava, learned Additional Chief Standing Counsel for the State and Shri Vashishth Mishra,

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learned counsel for the opposite party no.6.

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Shri Vashishth Mishra, learned counsel for the opposite party nos.6 sought adjournment of the case on the ground that Shri Prashant Chandra, Senior Advocate will advance submissions of the opposite party no.6 and he is not well. Non-availability of a Senior Advocate is no ground to adjourn the hearing of a case when the counsel for the opposite party no.6 is present and there is urgency in the matter.

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Learned counsel for the petitioner has made a request for urgent hearing and he has submitted that the petitioner is not being allowed to enter her matrimonial home since yesterday and the matter is extremely urgent.

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In the aforesaid peculiar circumstances of the case, the request for adjournment of hearing is turned down and the Court proceeds to hear the submissions of the learned counsel for the parties present in the Court.

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By means of the instant writ petition filed under Article 226 of the Constitution of India the petitioner has challenged the validity of an order dated 22.03.2024 passed by the Maintenance Tribunal/Sub Divisional Magistrate, Sadar, Lucknow in Case No.27753 of 2023, under section 7(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as 'The Act, 2007') which has been

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instituted by the opposite party no.6. Earlier, the application filed by the opposite party no.6 was allowed by means of an order dated 28.12.2022 passed by the Maintenance Tribunal and the petitioner had challenged that order by filing Writ-C No.1041 of 2023 before this Court, which was allowed by means of a judgment and order dated 09.10.2023, the order passed by the Sub Divisional Magistrate, Lucknow was set aside and the matter was remanded for being decided afresh.

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In the aforesaid order dated 09.10.2023, this Court had relied upon an order passed by Hon'ble Supreme Court in the case of S. Vanitha vs. Commissioner, (2021) 15 SCC 730 wherein it was held that an order of eviction simplicitor cannot be passed under the provisions of the Act, 2007 and such an order can only be passed as an incidence of enforcement of right to maintenance and protection. After remand, the Sub Divisional Magistrate had passed the impugned order dated 22.04.2024 wherein it has been held that the petitioner is daughter-in-law of the opposite party no.6 and she is in a domestic relation with the opposite party no.6 and she has lived in a shared household with her, hence the provisions contained in the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'the Act, 2005') apply to the case. He further recorded that opposite party no.6 has offered a separate rented accommodation for residence of the petitioner and she will bear

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the rent of the premises. The impugned order further states that relations between the petitioner and opposite party no.7, who is the son of the opposite party no.6 are estranged and for ensuring peace between the parties, it would be proper to move the petitioner out of the house of the opposite party no.6. While passing this order, the opposite party no.2 has not dealt with the issue of scope of the Act, 2007 and has not addressed the issue whether any order of eviction can be passed in exercise of the powers conferred by the aforesaid Act.

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Learned counsel for the opposite party no.6 has opposed the writ petition and he has submitted that it is recorded in the impugned order passed by the Maintenance Tribunal that some video evidence has been produced indicating that there is atmosphere of terror and mistrust between the parties. There is also video evidence to the effect that the petitioner has levelled allegations against her husband and mother-in-law that they have entered into a conspiracy and they are creating domestic quarrel (Kalah). However, he could not give any answer to the Court's query as to whether the provisions of the Act, 2007 confer powers upon the authority to pass an order for eviction of any person from her matrimonial house on the ground that there is matrimonial discord between that person and her husband.

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Learned counsel for the opposite party no.6, however,

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submitted that in the earlier remand order dated 09.10.2023, this

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Court has observed that an order of eviction can be passed by the Maintenance Tribunal if the conditions prescribed by the Hon'ble Supreme Court in the case of S. Vinitha (supra) exists. However, he could not point out as to whether the Maintenance Tribunal has recorded a finding to the effect that the conditions prescribed by the Hon'ble Supreme Court in the case of S. Vinitha (supra) exists in the present case.

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The matter requires consideration.

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Learned counsel for the opposite party no.6 states that he will file a counter affidavit within 24 hours.

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Issue notice to the opposite party no.7 returnable at an early date.

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At this stage, Shri Sudeep Kumar, Advocate appeared and requested that he will file his Vakalatnama on behalf of opposite party no.7 on 29.04.2024.

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15. List this case on Monday i.e. 29.04.2024.

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Till the next date of listing, the operation and implementation of the impugned order dated 22.03.2024 passed by the Sub Divisional Magistrate, Lucknow in Case No.27753 of 2023 shall remain stayed. No hindrance will be caused in the right of the petitioner to reside in her matrimonial home.

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