Om Prakash Saini Son of Shri Kailash Chand Saini v. Smt. Manbhar Devi Wife of Late Shri Madan Lal Saini

Rajasthan HC17 Jul 2023CREF/3/2020

Case brief

AI extract

What is this about?

A Double Bench reference regarding the interpretation of Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act. The Court relied on the Supreme Court's decision in S. Vanitha to hold that eviction cannot be ordered mechanically, must consider competing claims, and cannot override protections under the Protection of Women from Domestic Violence Act.

What the court decided

AI extract

Om Prakash Saini Son of Shri Kailash Chand Saini Vs… — Service and Employment | Rajasthan HC (2023)

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[2023:RJ-JP:14456-DB]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Civil Reference No. 3/2020

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Om Prakash Saini son of Shri Kailash Chand Saini, aged about 34 Years, Resident of Plot No. 6, Roop Nagar-I, Near Imli Wali Kothi, Mahesh Nagar, Jaipur.

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Smt. Rukmani Wife of Shri Omprakash Saini, Resident of Plot No. 6, Roop Nagar-I, Near Imli Wali Kothi, Mahesh Nagar, Jaipur.

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----Petitioners

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Versus

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Smt. Manbhar Devi Wife of Late Shri Madan Lal Saini, Resident of Plot No. 6, Roop Nagar-I, Near Imli Wali Kothi, Mahesh Nagar, Jaipur.

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Authorized Officer, The Maintenance and Welfare of Parents and Senior Citizen Tribunal, Cum Sub Divisional Officer and Sub Divisional Magistrate, Jaipur-I, Jaipur.

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----Respondents

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For Petitioner(s)	:	Mr. Nitin Jain
For Respondent(s)	:	Mr. M.S. Singhvi, AG with Mr. Siddharth Jain
		Mr. Rajesh Kumar Mutha
		Mr. O.P. Mishra
		Mr. S.K. Budania
		Mr. Anoop Pareek
		Mr. Pranav Pareek

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HON'BLE THE CHIEF JUSTICE AUGUSTINE GEORGE MASIH HON'BLE MR. JUSTICE SAMEER JAIN Order

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17/07/2023

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Following legal questions fall for our determination in this reference made by the learned Single Judge of this Court vide order dated 12.09.2019 (in S.B. Civil Writ Petition No. 20305/2018):

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“(i) Whether the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 empowers the

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(2 of 6)

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[2023:RJ-JP:14456-DB]

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[CREF-3/2020]

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Maintenance Tribunal constituted under Section 7 of the Maintenance Act, 2007 to pass an order of eviction of a person who is in possession of the property of such senior citizen by birth or marriage by interpreting Section 23 of the Maintenance Act, 2007 to include possession as transfer with a condition?

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(ii) Whether the word ‘transfer’ used in Section 23 of the Maintenance Act, 2007 would include the possession held by birth or marriage and declaration of transfer as void would include eviction also?”

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Heard learned counsel for the parties.

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The Hon’ble Supreme Court, in S. Vanitha vs. The

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Deputy Commissioner, Bengaluru Urban District and Ors.:

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(2021) 15 SCC 730 , on being faced with the same controversy involved herein, while setting aside the judgments of High Court of Karnataka which affirmed the order of eviction of the daughter-inlaw, observed and held as under:

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“20. The substance of Sub-section (2) of Section 23, as submitted by the Second and Third Respondents, is that the Tribunal had the jurisdiction to pass an order directing the eviction of the Appellant who is their daughter-in-law. According to the submission, the power to order eviction is implicit in the provision guaranteeing a 'right to receive maintenance out of an estate' and the enforcement of that right. In supporting the submission, they have referred to the view which has been taken by several High Courts, indicating that the Tribunal may order the eviction of a child or a relative from the property of a senior citizen, where there has been a breach of the obligation to maintain the senior citizen. The Tribunal under the Senior Citizens Act 2007 may have the authority to order an eviction, if it is necessary and expedient to ensure the maintenance and protection of the senior citizen or parent. Eviction, in other words would be an incident of the enforcement of the right to maintenance and protection. However, this remedy can be granted only after adverting to the competing claims in the dispute. It is necessary to recapitulate that the situation in the present case is that the eviction was sought of the daughter-in-law, i.e. the Appellant. The land, where the house has been constructed, was originally purchased by the son of the applicants who are seeking eviction of their daughter-in-law. The son had purchased the property a few

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(3 of 6)

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[2023:RJ-JP:14456-DB]

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[CREF-3/2020]

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months before his marriage to the Appellant. He had subsequently transferred the property by a registered sale deed to his father and the fact that it was for the same consideration after the lapse of several years is of significance. The father, in turn, executed a gift deed in favor of his spouse. The Appellant has asserted that she had been living in the house, as her matrimonial residence, until the application was filed. Her spouse has (according to her) deserted her and their minor daughter and left them in the lurch. The electricity to the premises was disconnected for non-payment of dues. Their daughter has sought admission to an engineering degree course however her father-Fourth Respondent has not provided any financial support. The transfers which took place cannot be viewed in isolation from the context of the on-going matrimonial dispute which has taken place. The issue is whether the Appellant as the daughter-in-law and the minor daughter could have been ousted in the above manner.

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35. Section 36 of the PWDV Act 2005 stipulates that the provisions of the Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force. This is intended to ensure that the remedies provided under the enactment are in addition to other remedies and do not displace them. The Maintenance and Welfare of Parents and Senior Citizens Act 2007 is undoubtedly a later Act and as we have noticed earlier, Section 3 stipulates that its provisions will have effect, notwithstanding anything inconsistent contained in any other enactment. However, the provisions of Section 3 of the Senior Citizens Act 2007 giving it overriding force and effect, would not by themselves be conclusive of an intent to deprive a woman who claims a right in a shared household, as under the PWDV Act 2005. Principles of statutory interpretation dictate that in the event of two special acts containing non obstante clauses, the later law shall typically prevail. In the present case, as we have seen, the Senior Citizen's Act 2007 contains a non obstante clause. However, in the event of a conflict between special acts, the dominant purpose of both statutes would have to be analyzed to ascertain which one should prevail over the other. The primary effort of the interpreter must be to harmonize, not excise .

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36. … In the present case, Section 36 of the PWDV Act 2005, albeit not in the nature of a non-obstante clause, has to be construed harmoniously with the non obstante Clause in Section 3 of the Senior Citizens Act 2007 that operates in a separate field.

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(4 of 6)

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[2023:RJ-JP:14456-DB]

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[CREF-3/2020]

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38. The above extract indicates that a significant object of the legislation is to provide for and recognize the rights of women to secure housing and to recognize the right of a woman to reside in a matrimonial home or a shared household, whether or not she has any title or right in the shared household. Allowing the Senior Citizens Act 2007 to have an overriding force and effect in all situations, irrespective of competing entitlements of a woman to a right in a shared household within the meaning of the PWDV Act 2005, would defeat the object and purpose which the Parliament sought to achieve in enacting the latter legislation. The law protecting the interest of senior citizens is intended to ensure that they are not left destitute, or at the mercy of their children or relatives. Equally, the purpose of the PWDV Act 2005 cannot be ignored by a sleight of statutory interpretation. Both sets of legislations have to be harmoniously construed. Hence the right of a woman to secure a residence order in respect of a shared household cannot be defeated by the simple expedient of securing an order of eviction by adopting the summary procedure under the Senior Citizens Act 2007.

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39. This Court is cognizant that the Senior Citizens Act 2007 was promulgated with a view to provide a speedy and inexpensive remedy to senior citizens. Accordingly, Tribunals were constituted Under Section 7. These Tribunals have the power to conduct summary procedures for inquiry, with all powers of the Civil Courts, Under Section 8. The jurisdiction of the Civil Courts has been explicitly barred Under Section 27 of the Senior Citizens Act 2007. However, the over-riding effect for remedies sought by the applicants under the Senior Citizens Act 2007 Under Section 3, cannot be interpreted to preclude all other competing remedies and protections that are sought to be conferred by the PWDV Act 2005. The PWDV Act 2005 is also in the nature of a special legislation, that is enacted with the purpose of correcting gender discrimination that pans out in the form of social and economic inequities in a largely patriarchal society. In deference to the dominant purpose of both the legislations, it would be appropriate for a Tribunal under the Senior Citizens Act, 2007 to grant such remedies of maintenance, as envisaged Under Section 2(b) of the Senior Citizens Act 2007 that do not result in obviating competing remedies under other special statutes, such as the PWDV Act 2005. Section 26/25 of the PWDV Act empowers certain reliefs, including relief for a residence order, to be obtained from any civil court in any legal proceedings. Therefore, in the event that a composite dispute is alleged, such as in the present case where the suit premises are a site of

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(5 of 6)

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[2023:RJ-JP:14456-DB]

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[CREF-3/2020]

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contestation between two groups protected by the law, it would be appropriate for the Tribunal constituted under the Senior Citizens Act 2007 to appropriately mould reliefs, after noticing the competing claims of the parties claiming under the PWDV Act 2005 and Senior Citizens Act 2007 . Section 3 of the Senior Citizens Act, 2007 cannot be deployed to over-ride and nullify other protections in law, particularly that of a woman's right to a 'shared household' Under Section 17 of the PWDV Act 2005. In the event that the "aggrieved woman" obtains a relief from a Tribunal constituted under the Senior Citizens Act 2007, she shall duty-bound to inform the Magistrate under the PWDV Act 2005, as per Sub-section (3) of Section 26 of the PWDV Act 2005. This course of action would ensure that the common intent of the Senior Citizens Act 2007 and the PWDV Act 2005- of ensuring speedy relief to its protected groups who are both vulnerable members of the society, is effectively realized. Rights in law can translate to rights in life, only if there is an equitable ease in obtaining their realization.

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40. … The fact that specific proceedings under the PWDV Act 2005 had not been instituted when the application under the Senior Citizens Act, 2007 was filed, should not lead to a situation where the enforcement of an order of eviction deprives her from pursuing her claim of entitlement under the law. The inability of a woman to access judicial remedies may, as this case exemplifies, be a consequence of destitution, ignorance or lack of resources. Even otherwise, we are clearly of the view that recourse to the summary procedure contemplated by the Senior Citizen Act 2007 was not available for the purpose of facilitating strategies that are designed to defeat the claim of the Appellant in respect of a shared household. A shared household would have to be interpreted to include the residence where the Appellant had been jointly residing with her husband. Merely because the ownership of the property has been subsequently transferred to her in-laws (Second and Third Respondents) or that her estranged spouse (Fourth Respondent) is now residing separately, is no ground to deprive the Appellant of the protection that was envisaged under the PWDV Act 2005.”

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The Hon’ble Supreme Court, while upholding the power of the Tribunal to order eviction, only in necessary cases to ensure maintenance and protection of senior citizens, clearly cautioned

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(6 of 6)

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[2023:RJ-JP:14456-DB]

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[CREF-3/2020]

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that the remedy of eviction cannot be ordered mechanically and can only be granted after considering the competing claims of the dispute. The remedy that is provided under Protection of Women from Domestic Violence Act, 2005 and other special legislations cannot simply be obviated by ordering eviction in exercise of summary powers entrusted by the Senior Citizens Act 2007.

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The power of the Tribunal to order eviction has also been affirmed by different High Courts in Rakesh Soni & Anr vs. Premlata Soni & Ors.: (2020) 2 RLW 1522 (Raj.) , Shweta Shetty vs. State of Maharashtra and Ors.: (2022) 1 MahLJ 279 (Bom) , Sunny Paul vs. State of NCT of Delhi and Ors.: (2018) 253 DLT 410 (Del) , Shilpi & Anr vs. Shakuntala & Ors: 2022 SCC OnLine MP 3312 , Hemant Gamanlal Mehta and Ors. vs. The State of Maharashtra and Ors.: 2022 SCC OnLine Bom 4236 , Sheetal Devang Shah vs. Presiding Officer of the Maintenance and Welfare of Parents and Senior Citizens and Ors.: 2022 SCC OnLine Bom 1068 .

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In our considered view, the issue involved herein is squarely covered by judgment of the Hon’ble Supreme Court in S. Vanitha (supra) . Therefore, in light of the Apex Court judgment in S. Vanitha (supra) , the present reference is answered accordingly.

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The S.B. Civil Writ Petition No.20305/2018 is ordered to be listed before the Single Bench on 27.08.2023.

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(SAMEER JAIN),J

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(AUGUSTINE GEORGE MASIH),CJ

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JKP/23

Om Prakash Saini Son of Shri Kailash Chand Saini v. Smt. Manbhar Devi Wife of Late Shri Madan Lal Saini

Case brief

What is this about?

What the court decided

Om Prakash Saini Son of Shri Kailash Chand Saini v. Smt. Manbhar Devi Wife of Late Shri Madan Lal Saini

Case brief

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