Gujarat High Court
Hiral Valjibhai Bhua vs Manjulaben Manjibhai Savaliya on 13 January, 2023
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.6618 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the No
judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as to No
the interpretation of the Constitution of India or any order made
thereunder ?
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HIRAL VALJIBHAI BHUA
Versus
MANJULABEN MANJIBHAI SAVALIYA
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Appearance:
MR PRATIK Y JASANI(5325) for the Petitioner(s) No. 1
for the Respondent(s) No. 10,2,3,4,5,6,7,9
MR JAY B TRIVEDI, AGP for the Respondent(s) No. 8
MR HRIDAY BUCH, ADVOCATE for MR PINANK J RAIYANI(10166) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 13/01/2023
ORAL JUDGMENT
Rule. Learned AGP Mr. Jay B. Trivedi waives service of notice of Rule for respondent No.8 while Mr. Pinank Raiyani, learned advocate waives service of notice of Page 1 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 Rule for respondent No.1.
1. By way of this Petition under Article 226 of the Constitution Of India, the Petitioner has challenged the Order dated 9.11.2021 passed by the Presiding Officer Tribunal and Sub-Divisional; Magistrate, Gondal and the Order dated 21.03.2022 in Appeal No.3 of 2022 passed by the District Collector Rajkot (Appellate Tribunal), by which, the directions have been issued to evict the petitioner from her matrimonial home.
2. The facts in brief are as under:
2.1. It is the case of the Petitioner that she was married to one Lakshitbhai Manjibhai Savaliya on 25.2.2022 at Village Devgam. The husband is a Dentist practicing at Gondal. It is her case that she was residing with him at the "premises in question" or "shared household".Page 2 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 2.2. The petitioner - wife and the husband are engaged in several litigations inasmuch as FIRs have been filed by him as well as the petitioner and the Petitioner was once arrested in the case of an FIR filed by her husband and then released on bail. Proceedings under the Protection Of Women from Domestic Violence Act, 2005 (for short `the Domestic Violence Act') have been initiated by the petitioner wherein the Petitioner has also sought relief under Section 17 of the Domestic Violence Act to reside in the shared household. Various efforts have been made to dispossess the petitioner from the shared household. A complaint has been filed by her mother in law under the Land Grabbing Act.
2.3. The respondent No.1 filed Maintenance Case No.1 of 2021 under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 Page 3 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 (for short 'the Senior Citizens Act') seeking custody of the premises in question which was allowed by the impugned order dated 9.11.20021 and confirmed in Appeal vide order dated 21.3.2022.
3. Mr. Pratik Y. Jasani, learned advocate for the petitioner made the following submissions:
1). Inviting the Court's attention to the Memo of the Application filed by the Respondent No.1, Mr Jasani would submit that if the prayers of the Application are perused, the same would indicate that they are misconceived. Reading the provisions of Section 2(b) which defines "maintenance" and also reading the provisions of Section 23 of the Senior Citizens Act, he would submit that Section 23 of the Act only provides for the maintenance of a senior citizen or a parent and there is no provision envisaging an order of eviction and therefore the orders directing eviction of the Page 4 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 Petitioner are without jurisdiction.
2). Mr. Jasani would further submit that the house is a "shared household" and the petitioner has a right to reside in the said house. That a complaint is also filed under the provisions of the Domestic Violence Act and by the order under the Senior Citizens Act, the right of the Petitioner under the Domestic Violence Act gets frustrated.
3). Mr Jasani would submit that complaints have also been filed by the respondent No.1, mother-in-law. He would invite the Court's attention to the prayers in the Application under the Domestic Violence Act and submit that therein too a prayer has been made by the Petitioner that she may not be evicted from the shared household. He would submit that it is evident from the perusal of the reply filed by the Petitioner to the Application under the Senior Citizens Act wherein the Page 5 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 Petitioner has specifically stated that the provisions of Section 23 of the Senior Citizens Act would not apply.
4). Mr Jasani would further submit that it is specifically pleaded in the Application filed by the Petitioner under the Domestic Violence Act that the respondent No.1 or her husband have multiple properties at various places.
5). Mr. Jasani inviting the Court's attention to the findings of the original order and the appellate order would submit that no reasons have been assigned by both the authorities and none of the contentions raised by the Petitioner have been dealt with and therefore the orders are non speaking orders and only on this ground deserve to be quashed and set aside.
6). Mr. Jasani would submit that the Petitioner lady is being unnecessarily harassed and as a result of a Page 6 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 complaint filed by the Petitioner she was arrested and had to apply for bail and was ultimately released. That a Chapter case was lodged against her. That a Land Grabbing Case has been filed against the Petitioner wherein there was a negative opinion however after the impugned orders there has been an attempt at reopening of the Land Grabbing Case against the Petitioner.
4. In support of his submissions that the proceedings under the Maintenance Act have been initiated purely with a view to frustrate the proceedings under the Domestic Violence Act, Mr. Jasani would invite the Court's attention to the provisions of Section 2(s) of the Domestic Violence Act which defines the term "shared household" read with Section 17 of the Act which deals with the right to reside in the shared household. He would also read the definition of "respondent" as defined under Section 2(q) of the Act.
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5. Mr Jasani would rely on a decision of the Supreme Court in the case of S. Vanitha versus Deputy Commissioner, Bengaluru Urban District and Others reported in 2020 SCC Online 1023 to submit that both the Acts i.e. the Senior Citizens Act and the Domestic Violence Act have to be read in harmony and the Senior Citizens Act cannot deny the petitioner, her right to reside in the shared household under the Domestic Violence Act. Relying on Paras 1, 2, 6, 9 and Paras 13-20, 22-23 and 38-40 of the Judgment, Mr. Jasani would submit that the order of eviction made under the Senior Citizens Act would completely displace the Petitioner from seeking recourse to her remedies under the Domestic Violence Act which are provided under Section 12(1) and Section 19 of the Domestic Violence Act in respect of her premises which is her shared household as defined under Section 2(s) of the Act. He would submit that the Page 8 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 Supreme Court in the case has held that the right of a woman to secure a residence order in respect of a shared household cannot be defeated by the simple expeditious remedy of an eviction order adopting the summary procedure under the Senior Citizens Act.
6. Mr. Hriday Buch, learned counsel appearing with Mr. Pinank J. Raiyani, learned advocate for the respondent No.1 would make the following submissions:
1). Mr. Buch would submit that the property in question which the Petitioner terms as a shared household is a property purchased and owned by the Mother-In-Law respondent No.1 herein. Mr.Buch would invite the Court's attention to the statement made in the proceedings under Section 498A of the Indian Penal Code that she was residing at Devagam after being released on bail.Page 9 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023
C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
2). Inviting the Court's attention to certain dates he would submit that the Respondent No.1 had purchased the house in the Year 2007. The Petitioner had left the matrimonial house on 15.3.2020. Before the Petitioner having moved out, the husband had filed a complaint before the Gondal Police Station against the wife owing to her misbehavior. The Respondent No.1 and his husband had shifted to a rented premises in December 2019 at Rajkot. Another written complaint had been filed by the husband against the Petitioner on 15.3.2020 and pursuant to a Chapter case she was arrested and subsequently released on Bail.
3). Mr.Buch would further submit that on 16.3.2020 the Petitioner left her matrimonial home and went to stay with her parents at Vadiya District, Amreli. She then lodged an FIR under Section 498A on 20.3.2020.The husband shifted to Rajkot to reside with his parents.
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4). Mr Buch would submit that it is the specific case as is pleaded in the memo of the application that the Petitioner broke open the lock on 10.7.2020 and forcibly took over the possession of the property as a result of which a complaint was made to the local police station and the concerned police officer visited the Police Station and when questioned she admitted that as she was not having the keys she broke open the lock.
5). The Application therefore under Section 5 of the Senior Citizens Act was filed on 19.7.2021 and the Petitioner filed the Application under the Domestic Violence Act on 8.09.2021. He would therefore submit that it is incorrect to say that the authorities had exceeded the jurisdiction in passing the orders.
6). Mr. Buch would distinguish the judgment in the Page 11 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 case of S. Vanitha (Supra) and submit that the concept of shared household and the reading of the provisions of the two Acts was made in light of the distinguished facts where before the Supreme Court the property in question was sold/transferred in favour of the in-law pending the matrimonial disputes between the spouses whereas in the present case the property in question was purchased by the Respondent No.1 mother-in-law in the year 2006/2007, 14 years prior to the matrimonial dispute. The Petitioner has unauthorizedly broken the lock.
7). Adverting to the provisions of Section 19 of the Domestic Violence Act and relying on the Additional Affidavit filed and the one tendered today in Court, Mr. Buch would submit that the Petitioner has been offered a property and reading Section 19(f) of the Domestic Violence Act he would submit that the judgment on the facts in the case of Vanitha (Supra) would not apply Page 12 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 as in that case the property was transferred to the in-
laws pending the matrimonial proceedings and therefore the Acts had to be read harmoniously as held by the Supreme Court. He would read the relevant paras of the Judgment to satisfy the Court that on the facts both the statutes had to be read harmoniously and therefore once an alternative residence had been offered, there was no frustration to the rights under these provisions as submitted by the Learned Advocate for the Petitioner. He would submit that the provisions of the Domestic Violence Act particularly Section 19(f) thereof allows the grant of a relief and strike a balance between the two statutes.
7. Mr. Jay Trivedi, learned AGP for the respondent - State would support the Orders passed by the Authorities under the Act. He would submit that the Senior Citizens Act has now been amended with effect from the Year 2019. Section 2(b) of the Act which defines the term Page 13 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 "maintenance" includes provision of housing.
8. Having considered the submissions made by the learned advocates for the respective parties for the purposes of the consideration as suggested by the decision of the Supreme Court in the case of S. Vanitha (Supra), the facts have to be considered in order to see that the harmony of the two legislations i.e. Senior Citizens Act and the Domestic Violence Act are maintained, especially in light of the concept of "shared household" in the premises in question.
9. The prayers made in the application under the Senior Citizens Act has to be read in the context of the pleadings in the application and not in isolation.
10. The application filed by respondent No.1 factually indicates that the Petitioner had married in the year 2012. It was the case of the Respondent No.1 mother-
in-law that the premises in question was her self-
Page 14 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 acquired property purchased in the year 2007. The respondent No.1 had been residing in the said property with her husband. On 28.11.2019 the husband had to file a police complaint against the Petitioner owing to her misbehavior in the matrimonial home. In December, 2019, the parents i.e the Respondent No.1 with her husband had to shift to a rented premises at Rajkot from Gondal. On 15.3.2020 another written complaint had to be filed by the husband of the Petitioner regarding the Petitioner's misbehavior as well as physical and mental cruelty. A Chapter case was therefore filed and the Petitioner was arrested and then released on bail. The Petitioner left her matrimonial home and went to live with her parents on and from 16.3.2020.The Petitioner lodged an FIR on 17.3.2020 against the in-laws and her husband under the provisions of Section 498A and other provisions of the Indian Penal Code wherein a charge sheet was filed on 25.5.2020.
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11. When these assertions are made by the Respondent No.1 in the Application,the assertion of the Petitioner that she was evicted from the shared household and needed to be given the benefit of restoration of possession of the premises in question needs to be taken with a pinch of salt. The assertion of the Petitioner's Counsel that there was no question of the allegation of the Respondent No.1 to have barged into the premises of the parents has to be considered in light of these facts and the subsequent behaviour of the Petitioner which indicates that after the episode where the Parents had to shift out to a rented premises in Rajkot on 20.3.2020,on 10.7.2020 the Petitioner-wife broke open the locks of the premises in question and forcibly took over the possession of the property of the Respondent No.1 situated at Gondal. A complaint was lodged on the same day with the local police station.
What is evident from reading the version of the Page 16 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 statement made by the Petitioner before the Police Authority which has been read by the parties is that when the Petitioner was questioned on the same day she stated that as she was not having the keys of the house and therefore she had no alternative but to break open the lock. This clearly proves the manner and the method in which the Petitioner, in absence of her in-laws, especially the Respondent No.1 who was compelled to shift to a rented premises forcefully took over the possession of the premises which she asserts to be a "shared household" as comes out from the submissions of the Learned Counsel for the Petitioner.
This has to be again viewed in light of considering the fact that it was undisputed between the parties that the property was a self-acquired property of the Respondent No.1 herself.
12. Keeping these rival claims in mind, the case whether the Orders under challenge are without jurisdiction and Page 17 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 the claim of the Petitioner that they are made de hors the provisions of Section 23 of the Senior Citizens Act and whether the relief that has been granted frustrates the rights of a woman who has claimed a relief under the Domestic Violence Act has to be considered.
13. The position of law as discussed in the case of S. Vanitha (Supra) has to be appreciated in the light of the facts of the present case and the facts before the Supreme Court in the decision that it rendered. Since the contentions and the facts somewhat are similar except the question of the ownership of the premises in question the basic facts before the Supreme Court indicate that the appellant before the Supreme Court was the daughter-in-law, who aggrieved by the Orders of the competent authorities under the Senior Citizens Act filed by her parents-in-law, had approached the High Court challenging the orders of eviction,as is the case in the present dispute. Both, the learned Single Page 18 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 Judge and the Division Bench of the High Court upheld the Orders and directed that the appellant ought to vacate the premises in question. The appellant therefore moved the Supreme Court under Article 136 of the Constitution Of India.
* The marriage between the Appellant therein and the fourth respondent husband had taken place on 30/5/2002, soon thereafter which matrimonial dispute arose. The subject matter of the controversy was a residential house. The facts (before the Supreme Court) indicate that it was that husband who had purchased the land on 02/05/2002 a few months before the marriage and the allegation of the appellant was the the purchase was financed by her father. On 05/10/2006 the husband sold the house to his father which was for the same consideration as was paid by the husband at the time of his original purchase in the year 2002. The father after constructing the house in Page 19 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 question gifted the house to his wife i.e. the appellant's mother-in-law on 19/7/2010. In the year 2015, the in-
laws invoked the provisions of the Senior Citizens Act and filed an Application before the Competent Authorities. The appellant filed objections and having lost in the proceedings, before the Supreme Court contended that the authorities had no jurisdiction to order eviction under Section 23 of the Senior Citizens Act in view of the protection offered by Section 17 of the Protection Of Women from Domestic Violence Act,2005. It was submitted, as in the present case, that the authorities constituted under the Senior Citizens Act had no jurisdiction to secure eviction so as to deny her claim of a right to reside in the shared household under the Domestic Violence Act. The contention of the in-laws,like in the case on hand was that the Tribunal constituted under the Senior Citizens Act had the jurisdiction to pass orders including orders of eviction as the power has to be read within its jurisdiction.
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14. Considering the scheme of the Senior Citizens Act, the Supreme Court found that in the event the senior citizens are unable to maintain themselves out of their own property then they are entitled to make an Application under Section 4 of the Act. Considering the provisions of Section 23 of the Act, especially provisions under sub-section (2) thereof, it held that the Tribunal has powers to pass orders of eviction to ensure maintenance as it would be an incident of enforcement of the right to maintenance. However this remedy can be granted only after adverting to the competing claims in the dispute. Then in the facts before the Supreme Court as discussed in Paragraph No.20 thereof, it specifically found that the land where the house had been constructed from which the eviction was sought was originally purchased by the son of the applicants before the Tribunal. The son had purchased the property few months before the Page 21 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 marriage and the property was subsequently transferred by a registered sale deed to his father and the fact that it was so transferred for the same consideration after a lapse of several years is of significance. The father,in turn executed a deed of gift in favour of his spouse (mother-in-law of the appellant before the Supreme Court). The assertion of the daughter-in-law was that she was living in the house and was evicted. The Hon'ble Supreme Court observed that the transfer which took place cannot be viewed in isolation from the context of the on-going matrimonial dispute and the issue was whether she could have been ousted in the manner as from such facts.
* The Supreme Court then went on to consider the aspect of a woman's right to residence, as a safeguard against domestic violence and considering the definition of a " shared household" under Section 2(d) of the Domestic Violence Act read with Section 19 Page 22 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 thereof considered the aspect of harmonizing the competing reliefs under the Domestic Violence Act and the Senior Citizens Act and held that in the event of a conflict between the special acts, the dominant purpose of both the statutes would have to be analyzed.
* In paragraph No.38 of the decision, the Supreme Court in the case of S. Vanitha (Supra) observed that allowing the Senior Citizens Act to have an overriding effect in all situations,irrespective of the competing claims of a woman to a right in the shared household would defeat the purpose of the legislation. In paragraph No.39, the Supreme Court observed that in the event composite dispute is alleged, and the suit premises is the contestation between the two groups it would be appropriate for the Tribunal constituted under the Senior Citizens Act to appropriately mould reliefs, after noticing the competing claims of the parties Page 23 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 claiming under the Domestic Violence Act and the Senior Citizens Act. It is in light of this that the Supreme Court interfered with the decree of eviction on the facts of the case where it was evident that the property initially belonged to the husband and was transferred after marriage by way of gift to the mother-
in-law.
15. Before a comparative analysis to distinguish the judgment on facts is undertaken, it will be in the fitness of things to reproduce the relevant provisions of the two statutes i.e. the Senior Citizens Act and the Domestic Violence Act.
REPRODUCE RELEVANT PROVISIONS:
MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT 2007:
2(b). "maintenance" includes provision for food, clothing, residence and medical attendance and treatment.
Section 2(b) the Amended Act 0f 2019 (separate sheet is given). (TO BE ASKED to Divyaji) Page 24 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 Section 23. (To be asked to Divyaji) THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005:
2. Definitions.--In this Act, unless the context otherwise requires,--
(a) "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;
Section 2(q) "respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:
Section 2(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 house hold 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;
Section 17: Right to reside in a shared household.--
(1) Notwithstanding anything contained in any other Page 25 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. (2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.
Section 19 Residence orders.
(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:
Provided that no order under clause (b) shall be passed against any person who is a woman."
16. In the facts of the case as are set out before the Supreme Court, what was found was that the property in dispute was originally purchased by the husband of the appellant therein a few months before marriage. It was then sold for a same consideration four years after the marriage to the father-in-law of the Appellant who then gifted it to the mother-in-law. The appellant then was residing in the premises in question and therefore the same was household and therefore keeping in view Page 26 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 the harmonious interpretation of the two statutes where the appellant had filed an application under the Domestic Violence Act, the Court held that the decree of eviction involved in a composite claim in the facts of that case and moulded the relief accordingly. The appropriate forum to decide the claim of the appellant was therefore under the Domestic Violence Act.
17. The relevant paras of the decision of the Supreme Court in the case of S. Vanitha (Supra) read as under:
"1 The present dispute arises out of an application filed by the Second and Third respondents against the appellant, who is their daughter-in-law. The Second and Third respondents are the parents of the Fourth respondent, who is the estranged spouse of the appellant. The Second and Third respondents filed an application under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act 20071, and inter alia, sought the appellant and her daughter‟s eviction from a residential house in North Bengaluru.
2 The Assistant Commissioner, and the Deputy Commissioner in appeal, allowed the application under the Senior Citizens Act 2007 and directed the appellant to vacate the suit premises. Aggrieved by this order, the appellant unsuccessfully pursued a writ proceeding under Article 226 of the Constitution before a Single Judge, and in appeal before a Division Bench of the High Court of Karnataka. The Division Bench by its judgment dated 17 September 2019 held that the Page 27 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 suit premises belonged to the mother-in-law (the Second respondent) of the appellant and the remedy of the appellant for maintenance and shelter lies only against her estranged husband (the Fourth respondent). The Division Bench upheld the Order of the Deputy Commissioner, and directed the appellant to vacate the suit premises before 31 December 2019. Challenging the jurisdiction of the authorities3 "Senior Citizens Act 2007" "suit premises" The Assistant Commissioner, Bengaluru North Sub-Division at Bengaluru and the Deputy Commissioner, Bengaluru District PART A to decree her eviction under the Senior Citizens Act 2007, the appellant has moved this Court under Article 136 of the Constitution.
3 The appellant and the Fourth respondent were married on 30 May 2002. Soon thereafter, a matrimonial dispute arose between the parties. The appellant alleges that she was harassed for dowry and even compelled to institute a suit for partition against her father in 2003 4 which she later withdrew, after her spouse allegedly deserted her to be in a relationship with another woman. The subject matter of the controversy is a residential house situated at Gangondonahalli, Dasanapura, Hobli, Bengaluru North Taluk. The land was purchased by the Fourth respondent on 2 May 2002, a few months before the appellant married him. The appellant alleges that her father had financed a portion of this purchase.
4 On 5 October 2006, the Fourth respondent sold the land to his father - the Third respondent. The transaction of sale between the father and the son was for the same consideration of Rs.1.19 lacs, as was paid by the Fourth respondent for the original purchase of the property in 2002. By then, the appellant and the Fourth respondent had a daughter. In 2009, the Fourth respondent instituted a petition for divorce 5 under Section 13(1)(ia) and (ib) of Hindu Marriage Act 1955 before the Senior Civil Judge and Judicial Magistrate, First Class, Nelamangala6. The Third respondent, following the purchase of the property and after constructing a house, gifted it to his spouse - the Second respondent, on 19 July 2010. Soon thereafter, on OS 211 of 2003 MC 22 of 2009 "Trial Judge" PART A 17 August 2010, the Second respondent instituted a suit against the appellant 7 before the JMFC, Nelamangala seeking a permanent injunction restraining the appellant from interfering with the possession of the suit property. The suit is pending. On 5 December 2013, the petition for divorce was allowed by the Trial Judge and the Page 28 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 marriage between the appellant and the Fourth respondent was dissolved. On 19 March 2014, the appellant instituted a proceeding for maintenance. She also filed an appeal before the High Court of Karnataka9 against the dissolution of her marriage by the Trial Judge. The proceedings for divorce and maintenance are also pending.
5 In 2015, the Third and Fourth respondents invoked the provisions of the Senior Citizens Act 2007 by instituting an application before the Assistant Commissioner, Bengaluru North Sub Division. Their son (the Fourth respondent) and the appellant were impleaded as respondents to the petition. The reliefs sought were:
(i) Eviction of the appellant from the suit premises where she was residing;
(ii) A direction to the Fourth respondent to pay an amount of Rs.15,000 to the parents by way of monthly maintenance; and
(iii) A direction to the appellant and fourth respondent to pay an amount quantified at Rs. 25,000 towards legal expenses.
6. The appellant filed an objection to the petition filed under the Senior Citizens Act 2007, alleging it to be a malicious proceeding that was instituted with the sole intent to evict her from the suit premises. The appellant also claimed that the proceedings were collusive in nature and an attempt by the Second and Third respondents and her estranged spouse (the Fourth respondent) to evict her from her matrimonial home. The appellant specifically raised an objection to the jurisdiction of the authorities to entertain the proceedings seeking her eviction from the premises. She submitted that while the Senior Citizens Act 2007 provides for the maintenance of a senior citizen or a parent, there is no provision envisaging an order of eviction, and that the authorities had no jurisdiction to direct her removal from the premises.
7. The Assistant Commissioner by an Order dated 25 June 2015, held that the residential house was the self-acquired property of the Third respondent which he subsequently gifted to the Second Respondent. The appellant was residing in the property, but was held to have no right or authority. The appellant‟s plea for maintenance could (in the view of the Assistant Commissioner) only be raised against the Fourth respondent. Therefore, the Assistant Commissioner allowed Page 29 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 the petition by directing (i) the Fourth respondent to pay a monthly maintenance of Rs.10,000 to his parents; and (ii) the appellant to vacate the premises.
10. The appellant, aggrieved by the judgement of the Division Bench of the High Court, has preferred the present special leave petition. Mr Yatish Mohan, learned Counsel appearing on behalf of the appellant submitted that:
(i) The appellant is residing in her matrimonial home as the lawfully wedded spouse of the Fourth respondent and she cannot be evicted from her shared household, in view of the protection offered by Section 17 of the Protection of Women from Domestic Violence Act 200511; "PWDV Act 2005" PART B
(ii) The proceeding under Sections 3 and 4 of the Senior Citizens Act 2007 was filed by her mother-in-law and father-in-
law in connivance with her estranged spouse to deprive her of her matrimonial home;
(iii) The finding of the Division Bench on the appellant‟s current residential status was based on a fraudulent set up. The alleged postal cover was dispatched on 21 June 2018, during the pendency of the proceedings before the Single Judge, and merely indicated a postal endorsement ("no such person") as it arrived when nobody was present at home to receive it;
(iv) The decree for the dissolution of marriage which was passed against the appellant by the Trial Judge on 5 December 2013 has been set aside by the High Court on 14 January 2016 and the proceedings have been remanded back to the jurisdictional Family Court for a disposal afresh. Hence, as of date, the appellant continues to be in a lawful relationship of marriage with the Fourth respondent and she has no other place to live except the suit premises, with her minor daughter;
(v) The provisions of the Senior Citizens Act 2007 have been manipulated to defeat the rights of the appellant. The manner in which the premises were transferred by the spouse of the appellant to his father and the gift deed thereafter to mother- in-law of the appellant are indicative of an attempt to misuse the provisions of the Act, to defeat the claims of the appellant; and Page 30 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023
(vi) In asserting her right under Section 17 of the PWDV Act 2005, the appellant relies on the decision of this Court in Satish Chander Ahuja vs Sneha Ahuja 12 . In sum and substance, it has been urged that the authorities constituted under the Senior Citizens Act 2007 had no jurisdiction to order the eviction of the appellant. Moreover, the proceedings have been utilized to secure the eviction of the appellant so as to deny her claim of a right to reside in the shared household under the PWDV Act 2005."
12 Dealing with the issue of jurisdiction, Mr Mahale submitted that;
(i) The Tribunal constituted under the Senior Citizens Act 2007 has the jurisdiction to pass appropriate orders for protecting the life and property of parents and senior citizens, including orders of eviction;
(ii) The intent and object of the Act is to provide for an inexpensive and speedy relief to parents and senior citizens;
(iii) While Chapter II entitles parents and senior citizens to apply for orders to provide monetary relief for sustenance and maintenance, Chapter V contains provisions for protecting the life and property of parents and senior citizens;
(iv) The Tribunal constituted under the Act has been entrusted to issue orders after a summary enquiry, for effective maintenance of parents and senior citizens including relief against neglect, harassment and protection of the property of senior citizens;
(v) Section 23 confers two separate and distinct rights:
(a) Section 23(1) empowers the Tribunal to declare a transfer of property by a senior citizen void, where the transfer was conditioned upon providing basic amenities and physical needs to a senior citizen, where the transferee fails to provide them;
(b) Section 23(2) recognises a pre-existing right of a senior citizen to receive maintenance out of an estate and secures the right of making it enforceable against a transferee who had notice of the right;
(vi) The expression "maintenance" in Section 2(b) includes Page 31 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 provision for residence and a right to reside can be enforced by a senior citizen, if the property is transferred without making a suitable provision for maintenance; and
(vii) Though the Senior Citizens Act 2007 does not contain an express provision enabling the Tribunal to pass eviction orders, the power has to be read within its jurisdiction by necessary implication. Such an interpretation, it has been urged, would be purposive, in order to effectuate the provisions of the Act. The contrary view would cause hardship to senior citizens who would be powerless, despite being forcibly dispossessed of their means of sustenance. Parliament has empowered the State governments to authorize local authorities to take remedial measures for protecting the life and property of senior citizens and it would be incorrect to limit the relief that can be granted by a Tribunal only to monetary relief. Relegating a senior citizen to a civil court for the recovery of their property would result in defeating the provisions of the Act. Hence, it has been urged that such an interpretation should not be adopted.
16. A senior citizen, including a parent, who is unable to maintain themselves from their own earning or out of property owned by them, is entitled to make an application under Section 4(i). A parent or grand-parent may make an application against one or more of their children. A childless senior citizen can make an application against a relative specified in Section 2(g). Section 4 recognises a corresponding obligation on the part of the children or relative to maintain a senior citizen, extending to such needs as would enable them to lead a normal life. In the case of a relative, the obligation is if they are in possession of the property of the senior citizen or would inherit property from them. Hence, in the case of the children of a senior citizen, the obligation to maintain a parent is not conditional on being in possession of property of the senior citizen or upon a right of future inheritance.
17 The procedure to be followed by a Maintenance Tribunal (constituted under Section 7) is of a summary nature as provided in Section 8(1) and with all the powers of a Civil Court, as provided in Section 8(2) 17 . Under Sub-section (1) of Section 9, where a senior citizen is not able to maintain himself or herself and the children or relatives, as the case may be, neglect or refuse to maintain them, the Tribunal is empowered to order them to make a monthly allowance at such monthly rate for the maintenance of the senior citizen, as the Tribunal may deem fit 18. The amount of the monthly Page 32 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 allowance can be altered inter alia upon a change in circumstances, under Section 10.
18 Of particular relevance to the facts of the case at hand is Chapter V, which enacts provisions for protecting the life and property of a senior citizen. Section 23 proceeds in the following terms:
"23. Transfer of property to be void in certain circumstances.
--(1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.
(2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right.
(3) If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of section 5."
19. Sub-section (1) of Section 23 covers a situation where property has been transferred after the enactment of the legislation by a senior citizen (by gift or otherwise) subject to the condition that the transferee must provide the basic amenities and physical needs to the transferor. In other words, Sub-section (1) deals with a situation where the transfer of the property is accompanied by a specific condition to provide for the maintenance and needs of a senior citizen. In such an event, if the transferee fails to provide the maintenance and physical needs, the transfer of the property is deemed to have been vitiated by fraud, coercion or under undue influence. Sub-section 1, in PART C other words, creates a deeming fiction of the law where the transfer of the property is subject to a condition and the condition of providing for maintenance and the basic needs of a senior citizen is not fulfilled by the Page 33 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 person upon whom the obligation is imposed. Then, at the option of the transferor, the transfer can be declared as void by the Tribunal. On the other hand, Sub-section (2) of Section 23 envisages a situation where a senior citizen has a right to receive maintenance out of an estate. Where such a right exists, the right of maintenance can be enforced where the estate or a portion of it, is transferred against a transferor who has notice of the right; or if the transfer is gratuitous. The right however cannot be enforced against a transferee for consideration and without notice of the right. Now, Sub-section (1) of Section 23 envisages a situation where the transfer of property is by the senior citizen. This is evident from the language of sub-Section (1) namely "where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property...". On the other hand, sub-Section (2) of Section 23 does not confine itself to a transfer by a senior citizen, unlike sub-Section (1). Sub- Section (2) uses the expression "such estate or part thereof is transferred". Where a senior citizen has a right to receive maintenance out of the estate and any part of it is transferred, sub-section 2 permits the enforcement of the right to receive maintenance out of the estate against a transferee with notice or against a gratuitous transferee. Sub-Section (2), in other words, may cover a situation where the transfer of the estate (in which a senior citizen has a right to maintenance) is by a third party, in which event, the provision provides the right to enforce the claim of maintenance against such transferee (other than those transferees for consideration PART C or without notice of the pre-existing right). Arguably, the language of sub-section (2) is broad enough to also cover a situation where the transfer is by the senior citizen, in which event the transferee with notice of the right; or a gratuitous transferee, can be made subject to the enforcement of the right against the transferred estate. Another distinction between sub-Section (1) and sub-Section (2) of Section 23 must also be noticed. Under sub-Section (1), where a transfer has been made by a senior citizen subject to the condition that the transferee will provided for basic amenities or physical needs of the transferor and if there is a failure of the transferee to fulfil the condition, two consequences follow: (i) the transfer of property shall be deemed to have been made by fraud or coercion or under undue influence; and (ii) the transfer shall, at the option of the transferor, be declared to be void by the Tribunal. The deeming consequence which is provided for in sub-Section (1) is not incorporated in sub- Section (2). Sub-Section (2), in contradistinction, stipulates that the right to receive maintenance can be enforced against Page 34 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 a gratuitous transferee or a transferee with notice of the pre- existing right of a citizen to receive maintenance out of an estate notwithstanding who is the transferee of the estate. In keeping with the salutary public purpose underlying the enactment of the legislation, the expression „transfer‟ would include not only the absolute transfer of property but also transfer of a right or interest in the property. This would also be in consonance with the provisions of Section 2(f) which defines the expression property to include "rights or interests in such property". The expression „transfer‟ not having been defined specifically by the legislation, it must receive an interpretation which would advance the beneficent object and purpose of its provisions. Sub-section (2) of PART C section 23 speaks of the enforcement of the "right to receive maintenance" which is more comprehensive in its nature, than merely enforcing an order for maintenance passed under Section 9 of the Act.
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 months before his marriage to the appellant. He had subsequently transferred the property by a registered sale deed to PART D 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 Page 35 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 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.
D A woman's right of residence: safeguard against domestic violence 21 In arriving at a decision of this issue it becomes necessary to elucidate the right, which is asserted by the appellant. The appellant has submitted that the premises constitute a "shared household" within the meaning of Section 2(s) of the PWDV Act 2005. Section 2(s) defines the expression "shared household" in the following terms:
"(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 PART D respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household;" (emphasis supplied)
22. Section 19 contemplates the passing of a residence order by the Magistrate on an application under sub-Section (1) of Section 12 of the PWDV Act 2005. The essence of the submission of the appellant is that the order of eviction which has been made in the exercise of the summary powers entrusted by the Senior Citizens Act 2007 would completely displace the appellant from seeking recourse to her remedies under Section 12(1) read with Section 19 of the PWDV Act 2005 in respect of the premises, which she claims to be her shared household. The definition of the expression "shared Page 36 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 household" in Section 2(s) uses the familiar legislative formula of a "means and includes" definition. Where the definition of an expression in an enactment adopts a „means and includes‟ stipulation, it is intended to be exhaustive. The „means‟ part of the definition indicates what would normally fall within the ambit of the expression, while the „includes‟ element gives it an extended meaning. Together they indicate that the legislature has provided for an exhaustive 19. Residence orders- 1) While disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order -
(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household; (b) directing the respondent to remove himself from the shared household; (c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides; (d) restraining the respondent from alienating or disposing off the shared household or encumbering the same; (e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or (f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require: Provided that no order under clause
(b) shall be passed against any person who is a woman. PART D enumeration of what falls within the ambit of the definition. Justice G P Singh in his seminal treatise on the Principles of Statutory Interpretation21 observes:
"The Legislature has the power to define a word even artificially. So the definition of a word in the definitions section may either be restrictive of its ordinary meaning or it may be extensive of the same. When a word is defined to „mean‟ such and such, the definition is prima facie restrictive and exhaustive."
30. The meaning which has been attributed above to the plain language of the definition is in consonance with the judgment of the three judge Bench in Satish Chandra where it has been explained as follows:
"55...the definition can be divided in two parts, first, which follows the word "means" and second which follows the word "includes". The second part which follows "includes" can be Page 37 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 further sub-divided in two parts. The first part reads "shared household means a household where the person aggrieved has lived or at any stage has lived in a domestic relationship either singly or along with the respondent". Thus, first condition to be fulfilled for a shared household is that person aggrieved lives or at any stage has lived in a domestic relationship. The second part subdivided in two parts is- (a) includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent and PART D 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
(b)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. In the above definition, two expressions, namely, "aggrieved person" and "respondent" have occurred. From the above definition, following is clear:- (i) it is not requirement of law that aggrieved person may either own the premises jointly or singly or by tenanting it jointly or singly; (ii) the household may belong to a 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; and (iii) the shared household may either be owned or tenanted by the respondent singly or jointly."
31. After noticing the ambit of the definition of „shared household‟ and the object and purpose of the PWDV Act of 2005, Justice Ashok Bhushan noted: "Section 2(s) read with Sections 17 and 19 of Act, 2005 grants an entitlement in favour of the woman of the right of residence under the shared household irrespective of her having any legal interest in the same or not."
32. The expression „respondent‟ has been defined in section 2 (q) of the PWDV Act of 2005 in the following terms:
"(q) "respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:"
33. Noticing the above definition and the provisions of section 2(s), the Court in Satish Chandra held: "64...The definition of shared household as noticed in Section 2(s) does not indicate that a shared household shall be one which belongs to or taken on rent by the husband. We have PART E Page 38 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 noticed the definition of "respondent" under the Act. The respondent in a proceeding under Domestic Violence Act can be any relative of the husband. In [the] event, the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived, the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household."
34. The Bench concluded that:
"84...The definition of shared household given in Section 2(s) cannot be read to mean that shared household can only be that household which is household of the joint family of which husband is a member or in which husband of the aggrieved person has a share."
E Harmonising competing reliefs under the PWDV Act 2005 and Senior Citizens Act 2007
35. Section 3623 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 36-Act not in derogation of any other law- The provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force PART E 2005. Principles of statutory interpretation dictate that in the event of two special acts containing non obstante clauses, the later law shall typically prevail. 24 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. A two-judge bench of this Court, in the case of Bank of India v. Ketan Parekh25, in examining a similar factual scenario, Page 39 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 observed that:
"28. In the present case, both the two Acts i.e. the Act of 1992 and the Act of 1993 start with the non obstante clause. Section 34 of the Act of 1993 starts with non obstante clause, likewise Section 9-A (sic 13) of the Act of 1992. But incidentally, in this case Section 9-A came subsequently i.e. it came on 25-1- 1994. Therefore, it is a subsequent legislation which will have the overriding effect over the Act of 1993. But cases might arise where both the enactments have the non obstante clause then in that case, the proper perspective would be that one has to see the subject and the dominant purpose for which the special enactment was made and in case the dominant purpose is covered by that contingencies, then notwithstanding that the Act might have come at a later point of time still the intention can be ascertained by looking to the objects and reasons. However, so far as the present case is concerned, it is more than clear that Section 9-A of the Act of 1992 was amended on 25-1-1994 whereas the Act of 1993 came in 1993. Therefore, the Act of 1992 as amended to include Section 9-A in 1994 being subsequent legislation will prevail and not the provisions of the Act of 1993." (emphasis supplied)
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 PART E 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.
39. This Court is cognizant that the Senior Citizens Act 2007 Page 40 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 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 S.2(b) of the Senior Citizens Act 2007 that do not result in obviating competing remedies under PART E other special statutes, such as the PWDV Act 2005. Section 2627 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 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. 26. Relief in other suits and legal proceedings. --(1) Any relief available under sections 18, 19,20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting Page 41 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. (2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief. PART E
40. Adverting to the factual situation at hand, on construing the provisions of sub- Section (2) of section 23 of the Senior Citizen Act 2007, it is evident that it applies to a situation where a senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred. On the other hand, the appellant‟s simple plea is that the suit premises constitute her „shared household‟ within the meaning of Section 2(s) of the PWDV Act 2005. We have also seen the series of transactions which took place in respect of the property: the spouse of the appellant purchased it in his own name a few months before the marriage but subsequently sold it, after a few years, under a registered sale deed at the same price to his father (the father-in-law of the appellant), who in turn gifted it to his spouse i.e. the mother- in-law of the appellant after divorce proceedings were instituted by the Fourth respondent. Parallel to this, the appellant had instituted proceedings of dowry harassment against her mother-in-law and her estranged spouse; and her spouse had instituted divorce proceedings. The appellant had also filed proceedings for maintenance against the Fourth respondent and the divorce proceedings are pending. It is subsequent to these events, that the Second and Third respondents instituted an application under the Senior Citizens Act 2007. 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 PART F 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 Page 42 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 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 F Summation
41. For the above reasons, we have come to the conclusion that the claim of the appellant that the premises constitute a shared household within the meaning of the PWDV Act 2005 would have to be determined by the appropriate forum. The claim cannot simply be obviated by evicting the appellant in exercise of the summary powers entrusted by the Senior Citizens Act 2007. The Second and Third Respondents are at liberty to make a subsequent application under Section 10 of the Senior Citizens Act 2007 for alteration of the maintenance allowance, before the appropriate forum. For the above reasons, while allowing the appeal, we issue the following directions: (i) The impugned judgment and order of the Division Bench of the High Court of Karnataka dated 17 September 2019 affirming the order of PART F eviction against the appellant shall stand set aside with the consequence that the order of the Assistant Commissioner ordering and directing the appellant to vacate the suit premises shall stand set aside; (ii) We leave it open to the appellant to pursue her remedies under the PWDV Act 2005. For that purpose, it would be open to the appellant to seek the help of the District Legal Services Authorities and if the appellant does so, all necessary aid and assistance shall be furnished to her in pursuing her legal remedies and rights; (iii) IA 111352/2020 for restoration of the electricity connection is allowed by directing the Fourth respondent to take all necessary steps for restoration of the electricity connection to the premises within a period of two weeks from the receipt of a certified copy of this judgment. The Fourth respondent shall also continue to pay the electricity dues in future; and (iv) In order to enable the appellant to pursue her remedies under the PWDV Act 2005, there shall be an order and direction restraining the respondents from forcibly dispossessing the appellant, disposing of the premises or from creating any right, title and interest in favor of any third party in any manner whatsoever for a period of one year, to enable the appellant to pursue her remedies in accordance with law. The appellant is at liberty to move the Court to espouse her Page 43 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 remedies PART F under the PWDV Act 2005 for appropriate orders, including interim protections."
18. On facts on hand what is indicative is that it is not disputed that the site of the contestation that is the premises in question was purchased by the mother-in-
law herself prior to the marriage entered into between the Petitioner and her son. The property was purchased in the year 2006 whereas the marriage was solemnized in the year 2012.
19. The Petitioner as a result of her misbehavior faced a Chapter Case where she was arrested and subsequently released on bail and then she moved out of the matrimonial house. The mother-in-law had already been compelled to stay in a rented premises at Rajkot before the Petitioner moved out of the property that belonged to the mother-in-law. Therefore the Petitioner was not a part of the "shared household"
when the Application under the Domestic Violence Act Page 44 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 or the Senior Citizens Act were filed. In fact the mother-
in-law had filed the Application under the Senior Citizens Act on 19.7.2021 and thereafter the Petitioner filed an Application under the Domestic Violence Act on 08.09.2021.
20. What was also an undisputed fact that the husband had locked the house on 15.3.2020 after filing a complaint where the Petitioner was arrested, released on bail and went to reside at her parents' residence. On a subsequent date, it has come on record that when the Petitioner filed a complaint before the Police Authorities,she admitted that as she could not have the keys of the household she broke open the lock and entered the suit premises. This was also corroborated by the statements given by the neighbours of the household that belonged to the mother-in-law.
21. The distinguishing feature that stares on the face of the Page 45 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 facts that are distinct from the facts before the Supreme Court are as under:
a). The property was found in the ownership of the mother-in-law before the Hon'ble Supreme Court by "a series of transactions which took place in respect of the property: the spouse of the appellant having purchased it in his own name a few months before the marriage but subsequently sold it, after a few years, under a registered sale deed at the same price to this father (the father-in-law of the appellant), who in turn gifted it to his spouse i.e. the mother-in-law of the appellant after the divorce proceedings were initiated" by the husband.
(b) In the present case the property admittedly was owned by the mother-in-law before marriage and she had to move out and shift to Rajkot before the Petitioner moved out of the shared household after a Page 46 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 police complaint was filed. The Petitioner therefore had deprived the mother-in-law of the property owned by her and admittedly after having left too moved in after breaking open the lock and therefore the eviction of the Petitioner was necessary as she had moved in contrary to law after breaking open the lock.
22. The composite dispute therefore as observed by the Supreme Court has to be decided and the relief has to be moulded accordingly considering the harmony between the two competing statutes. It is here that the provisions of Section 19 of the Domestic Violence Act come into play.
23. Apart from Section 17,Section 19(1)(f) provides that while disposing of an application under Section 12 of the Domestic Violence Act the Magistrate may on being satisfied that the domestic violence has taken place pass a residence order directing that the respondent Page 47 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 secure the same level of alternative accommodation for the aggrieved person as enjoyed by her in the shared household or pay rent for the same, if the circumstances so require. In the present proceedings, an Affidavit has been filed by the respondent that the husband ,the "respondent" as defined, under the Domestic Violence Act has offered to provide the wife, "aggrieved person" so defined a separate residence by renting a property in the area of the Petitioner's choice within the Gondal Town which is an accommodation of the same level. A further affidavit has been filed during the course of the proceedings today that several open plots of land were purchased by the Petitioner and one Sonal Savaliya holding 50% share over the said property. After purchasing the property, several tenements have been raised on the land four of which have remained unsold which are in the ownership of the petitioner and Sonal Savaliya. The Respondent No.1 further states that with a view to put an end to Page 48 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 the litigation,out of those 4 tenements on which the petitioner holds 50% of the share, Ms Sonal Savaliya is willing to relinquish her right in favour of the Petitioner in respect of 2 tenements of the Petitioner's choice within a week from today and the husband of the petitioner is willing to provide all the suitable necessities i.e. Bed, Sofa, Television, Refrigerator, Washing Machine, water heater as well as all necessary requirements for functioning of the kitchen in one of the said tenements of the Petitioner's choice, The case of moulding the relief in order to ensure that the remedies provided under the enactment are in addition to the other remedies and do not displace them has to be considered.
24. In the facts as before this Court it is not a case where the right of the Petitioner is defeated by the mother-in-
law in securing an order of eviction adopting the summary procedure under the Senior Citizens Act.
Page 49 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 Here is a case where unlike the facts before the Supreme Court, the property belonged to the mother-
in-law and she was compelled to move out to a tenanted premises and had to lock her own premises.
The Petitioner forcibly moved in to the premises in question after breaking the lock after having shifted to her parental home. This was therefore a clear case where the mother-in-law had a right to have her possession restored and a decree of eviction needed to be passed in light of the provisions of Section 23 of the Senior Citizens Act.
25. The moulding of a relief in harmony of competing disputes have to be viewed accordingly. The relief has to be accordingly moulded. It is clear that initially the husband of the Petitioner had offered a rented accommodation. An affidavit is on record. Even during the course of proceedings, a further affidavit of which the offer has been narrated are put on record which is Page 50 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023 C/SCA/6618/2022 JUDGMENT DATED: 13/01/2023 a sufficient compliance of Section 19(1)(f) of the Domestic Violence Act.
26. Therefore the orders of the competent authority dated 09.11.2021 and 21.03.2022 are hereby confirmed. The petition is dismissed. Rule is discharged. Interim relief stands vacated. No costs.
27. Mr. Pratik Y. Jasani, learned counsel for the petitioner requests that by virtue of the order dated 4.4.2020 by which parties were directed to maintain status-quo be continued for a period of four weeks. At the request of Mr. Jasani, learned counsel for the petitioner, the order of status-quo shall continue till 03.02.2023.
Sd/-
(BIREN VAISHNAV, J) VATSAL Page 51 of 51 Downloaded on : Tue Jan 17 20:41:25 IST 2023