Allowed

Mrs Luviza v. the Assistant Commissioner

Karnataka HC19 Dec 2023WP/699/2021

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging an eviction order passed under the Maintenance and Welfare of Parents and Senior Citizens Act. The Court quashed the order passing it without a hearing and remitted the matter for fresh consideration, citing pending matrimonial disputes and no alternative shelter for the daughter-in-law.

What did the court decide?

The impugned order dated 05.11.2020 passed in MSC.CR.No.55/2019-20 was quashed. The matter was remitted for fresh consideration after providing an opportunity of hearing.

Mrs Luviza Vs the Assistant Commissioner — Pension and Retirement Benefits | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE K. V. ARAVIND

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WRIT PETITION No.699/2021(GM-RES)

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BETWEEN:

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MRS. LUVIZA, W/O NARAYANA MURTHY, AGED ABOUT 38 YEARS, R/AT NO 101, ITC COLONY, 5^TH CROSS, COX TOWN, JEEVANAHALLI, BENGALURU 560005.

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...PETITIONER

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(BY SRI K. P. BHUVAN, ADVOCATE)

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AND:

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1 . THE ASSISTANT COMMISSIONER, TRIBUNAL OF MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS, BENGALURU NORTH SUB DIVISION, BENGALURU.

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2 . SRI SUBRAMANI M., S/O LATE MUNISWAMY, AGED ABOUT 75 YEARS, R/AT NO 101, ITC COLONY, 5^TH CROSS, COX TOWN, JEEVANAHALLI, BENGALURU 560005.

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…RESPONDENTS

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(BY SRI MANJUNATHA RAYAPPA, AGA FOR R1; SRI B.J. MAHESH, ADVOCATE FOR R2)

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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.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 01.12.2023, THIS DAY THE COURT PRONOUNCED THE FOLLOWING:

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ORDER

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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.

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The brief facts leading to filing of this petition are:

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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.

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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

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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.

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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.

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It is the case of respondent No.2 that he has five children, two daughters and three sons, among them, one

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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.

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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

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petitioner to vacate the subject property within 60 days from the date of the order.

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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

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S. Vanitha vs. Deputy Commissioner, Bengaluru

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Urban District and others¹ .

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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.

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Sri Manjunatha Rayappa, learned Additional Government Advocate appearing for respondent No.1 defends the impugned order on jurisdiction as well as on merits.

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1 AIR 2021 SC 177

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Heard learned counsel for the parties and perused the records.

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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

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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.

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The notice issued to the petitioner by respondent

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No.1 has been recorded as refused to accept without reference to any evidence on record.

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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

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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.

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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.

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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;

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Order

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i) Writ petition is allowed.

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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.

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iii) The petitioner is at liberty to file objections and other documents in support of her case, if necessary.

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iv) No order as to costs.

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Sd/JUDGE

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Mrs Luviza v. the Assistant Commissioner

Case brief

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Mrs Luviza v. the Assistant Commissioner

Case brief

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