Allahabad High Court
Deepali Chopraa @ Deepali Ahuja vs State Of U.P. Thru. Prin. Secy. Deptt. Of ... on 9 October, 2023
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVE JUDGMENT AFR Court No. - 17 Neutral Citation No. - 2023:AHC-LKO:65903 Case :- WRIT - C No. - 1041 of 2023 Petitioner :- Deepali Chopra @ Deepali Ahuja Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Social Welfare, Lko. And Others Counsel for Petitioner :- Abhishek Khare,Aahuti Agarwal Counsel for Respondent :- C.S.C.,Amarjeet Singh Rakhra,Ashok Kumar Singh,Dilip Kumar Verma,Jagrit Sharma,Radhika Singh Hon'ble Alok Mathur,J.
1. The unsavory controversies borne out of failed marriage are arising with great frequency, and the present case is also a fallout of the embittered escalation of dispute between the senior citizens and their daughter-in-law.
2. Heard Sri Abhishek Khare, learned counsel for the petitioner as well as Sri Prashant Chandra, learned Senior Advocate assisted by Ms. Radhika Singh, learned counsel appearing for respondent nos. 2 and 3 and Sri Amarjeet Singh Rakhra, learned counsel appearing for respondent no. 1.
3. The petitioner who is the daughter-in-law of respondent no. 6 has sought shelter of this Court assailing the order of eviction passed by the Sub Division Magistrate, Sadar, Lucknow dated 28.12.2022 under the provisions of Maintenance and Welfare of Parents and Senior Citizen Act, 2007 (hereinafter referred to as "the Senior Citizen Act, 2007") whereby the application preferred by respondent no. 6, who is the mother-in-law of the petitioner has been allowed and order of eviction has been passed against the petitioner, asking her to vacate the premises situated at House No. B/237, Sector B, Mahanagar, Lucknow within a period of fifteen days. The petitioner has also challenged the order dated 08.01.2023, passed by District Magistrate, Lucknow whereby the appeal preferred by the petitioner has been rejected.
4. It has been submitted by learned counsel for the petitioner that petitioner was previously married to one Sanjay Chandra and from the said marriage she has two children, one daughter and one son aged about 22 and 17 years. It has been stated that petitioner and Sanjay Chandra decided to mutually separate and were granted a decree of mutual divorce by the Principal Judge, Family Court, Lucknow on 12.08.2010. Subsequently the petitioner met respondent no. 7 and they started living together in 2011 and finally got married as per Hindu Rites and Rituals. The petitioner alongwith her husband started living on the ground floor of the house being House No. B-337, Sector-B, Mahanagar, Lucknow owned by husband of respondent no 6, while respondent no. 6 (petitioner's mother-in-law) alongwith her husband reside on the first floor of the same house.
5. That soon after marriage of petitioner with respondent no. 7 the relationship became sour and frequent disputes started erupting between them and complaints were also lodged by the petitioner with the Police Commissioner and suit for divorce was filed by respondent no. 7 before the Principal Judge, Family Court, Lucknow on 29.09.2022, which is pending consideration. Petitioner on the other hand filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "the Act, 2005"), in October 2022, before the Additional Chief Judicial Magistrate (CBI), Lucknow which is pending. She has also filed an application under Section 125 Cr.P.C. before the Family Court, Lucknow.
6. It is in the aforesaid facts that the petitioner has submitted that respondent no. 6 in collusion with respondent no. 7 have filed the application under Section 22 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as "the Act, 2007"). In the said proceedings notices were issued to the petitioner who has filed a written statement on affidavit denying the allegations made against her. The Sub-Divisional Magistrate/Maintenance Tribunal (hereinafter referred to "the Maintenance Tribunal"), duly considered the rival submissions and held that the applicant therein falls under the definition of "Senior Citizen" as provided under Section 2(h) of the Act, 2007 and her husband is the owner of house situated at B-337, Sector - B, Mahanagar, Lucknow and her husband is also aged and ailing and is not getting regular treatment. The petitioner, who is the daughter-in-law, is living on the ground floor and that neither the petitioner nor her husband i.e. respondent no. 7 are owners of the said house, but they were only given permission to live in the said house. Their behavior subsequently turned hostile and violent, and they are regularly fighting amongst themselves and also the petitioner has started misbehaving with the applicant and her husband and abusing and assaulting them.
7. Respondent no. 7 has also filed an affidavit stating that he is living with his wife i.e. the petitioner in the said house of which his father is the owner. He has stated that due to differences with his wife the suit for divorce is pending. According to him the petitioner is of the opinion that differences between her husband and her have arisen only because of her mother. The respondent no. 7 has taken a house on rent at Sai Heights apartments, Mahanagar, Lucknow but the petitioner is not willing to stay with her husband in the said rented apartment. He has further stated that he is ready to vacate the disputed premises and has further stated that in case his wife is willing, he is ready to take another house on rent exclusively for her and children's use.
8. He has further submitted before the Maintenance Tribunal that disputed premises belongs to his father. The petitioner is frequently involved in physical fight with respondent no. 7. She has also broken most of the household goods and is also involved in assaulting his parents. The petitioner on the other hand blames her in-laws for the breakdown of their marriage. Respondent no.7 on the request of petitioner has taken separate three BHK apartment in Sai Heights, Lucknow. He has requested his wife to shift in the said house, but she has refused. It is further stated that he is ready and willing to take another house for rent for the petitioner if she desires.
9. The Maintenance Tribunal after recording the aforesaid facts has concluded that respondent no. 7 has shown his willingness to move out of the house but the petitioner had shown her reluctance from vacating the said premises and accordingly, in exercise of power provided under rule 21(2) of the Rules, 2014, he has ordered eviction of petitioner from the premises in question by means of order dated 28.12.2022.
10. The petitioner against the order dated 28.12.2022, passed by the Maintenance Tribunal, had preferred an appeal under Section 16 of the Act, 2007, which has also been rejected. It was submitted by learned counsel for the petitioner that said appeal was filed on incorrect legal advice, as there is no provision for filing an appeal under Section 16 of the Act, 2007 by the daughter-in-law as the same can be filed by a senior citizen or a parent.
11. Learned counsel for the petitioner has submitted that under the Act, 2007, a maintenance order can be passed as provided for under Section 9 of the Act, 2007 where it is provided that where senior citizen is being neglected by their children or relatives, monthly allowance may be directed to be paid to such senior citizen. Chapter V of the Act, 2007, provides for protection of life and property of the senior citizens. The said provisions provide for protection the senior citizen to the extent that in case they have transferred any property to their children or relatives who fail to take care of them after the said transfer, the Maintenance Tribunal under Section 23 of the Act, 2007, is empowered to declare the said transfer to be void. The right to seek maintenance is provided for in the act of 2007, but there is no provision for eviction and consequently submitted that the impugned order is illegal, arbitrary and deserves to be set aside.
12. It has been further contended that right of petitioner for residence is also protected under Section 17 and 19 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "the Act, 2005") and disputed property would be included in the definition of "shared household" as prescribed under Section 2(s) of the Act, 2005. Section 17(2) of the Act, 2007 which further provides that aggrieved persons shall not be evicted or excluded from any part of the property in dispute and if it is inevitable then it shall be done by following the procedure as set up by law and consequently it was submitted that impugned order is erroneous and contrary to statutory guarantee of residence provided in favour of petitioner under the Act, 2005 and consequently the impugned order arbitrary having been passed without application of mind.
13. The writ has been opposed by Sri Prashant Chandra, Senior Advocate appearing on behalf of the respondents. He has supported the impugned orders by submitting that respondent No. 6 has been subjected to physical and mental torture by the petitioner, and accordingly on her application before the maintenance Tribunal, order of eviction has rightly been passed. In support of his contention he has relied upon the judgement of the Supreme Court in the case of S. Vanitha Vs. Commr., 2021 (15) SCC 730 and submitted that in similar circumstances as occurring in the present case, it has been held that the Tribunal is clothed with sufficient powers to order eviction where it is demonstrated that the daughter-in-law has physically tortured the senior citizen and their well-being can only be ensured by such an order of eviction.
14. It was further submitted that the petitioner does not have an unconditional right of residence in the shared household. Respondent No. 7, who is the son of respondent No. 6, has already taken a house on rent to accommodate the petitioner. She had given her consent to move into the said house but has subsequently declined to shift. Respondent no. 7 has further offered to take any other house on rent which the petitioner desires, but she is insistent on residing in the disputed premises where she does not have any right of residence. He further placed reliance on the judgement of the Supreme Court in the case of Satish Chandra Ahuja Vs. Sneha Ahuja, 2021 (1) SCC 414 to buttress his submission that right of residence of the petitioner in the disputed house, as per section 17 of the act of 2005 is not a indefeasible right, and under the circumstances as occurring in the present case, the respondent No. 6 could legally and validly enforce an order for eviction as per the provisions of act of 2007.
15. I have heard the counsel for the parties and perused the record. The root of the present dispute lie in the marital discord between the petitioner and respondent no. 7. A direct fallout is the strained and severed relationship between the senior citizens and their daughter-in-law. The legislature has sought to protect both the rights by means of two separate legislations namely the "Maintenance and Welfare Of Parents and Senior Citizens Act, 2007" to protect the rights of senior citizens, and on the other hand "The Protection of Women from Domestic Violence Act, 2005" which ensures protection to the women who are subjected to domestic violence. On one hand the Act, 2007 has been enacted looking into the increasing incidents of withering of the joint family system resulting in number of parents not being maintained by the children as is the normal practice, resulting in senior citizens exposed to emotional trauma and lack of physical and financial support, while on the other hand women who are subjected to domestic violence are sought to be protected by the act of 2005.
16. The issue which arises for consideration in the present case is as to whether in the facts and circumstances of the case the Maintenance Tribunal could have validly passed an order of eviction against the petitioner, without considering the rights of the daughter-in-law as per the provisions of the act of 2005?
17. The power of the Maintenance Tribunal to pass an order of eviction of the daughter-in-law has been extensively dealt with by the Hon'ble Supreme Court in the Case of S.Vanitha vs Commr., (supra). Before the Apex Court also it was urged that under the Act, 2007 there was no provision for eviction and consequently such an order cannot be passed by the Maintenance Tribunal. The Apex Court after considering the Act, 2007 has answered the said question which is quoted herein below for ready reference:-
"25. 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 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 favour 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 ongoing 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."
18. The Apex Court has held that an order of eviction simplicitor cannot be passed but same can be passed as an incidence of enforcement of right to maintenance and protection. The Apex Court also considered the fact that woman has right to residence when she is a victim of domestic violence and is entitled for residence in "shared household" as described under Section 2(s) of the Act, 2005. Whenever there is a dispute with the competing claims of senior citizens, seeking eviction of daughter-in-law on one hand and the daughter-in-law being aggrieved woman and victim of domestic violence has a right to residence under Section 17 of the Act, 2005 on the other, the Court has to consider the rights of both the parties under the two enactments and only after considering the competing claims, decide the issue of eviction/residence. Considering the aforesaid judgment this Court is of the considered opinion that an order of eviction can be passed by the maintenance Tribunal if the conditions prescribed by the Apex Court exist, for which determination the Tribunal has to consider the rights of the daughter-in-law also. This aspect of the matter has also been considered in the case of S. Vanitha v. Commr., (supra) in the following terms:-
"36. In this case, both pieces of legislation are intended to deal with salutary aspects of public welfare and interest. The PWDV Act, 2005 was intended to deal with the problems of domestic violence which, as the Statements of Objects and Reasons sets out, "is widely prevalent but has remained largely invisible in the public domain". The Statement of Objects and Reasons indicates that while Section 498-A of the Penal Code, 1860 created a penal offence out of a woman's subjection to cruelty by her husband or relative, the civil law did not address its phenomenon in its entirety. Hence, consistent with the provisions of Articles 14, 15 and 21 of the Constitution, Parliament enacted a legislation which would "provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society".
The ambit of the Bill has been explained thus:
"4. The Bill, inter alia, seeks to provide for the following--
(i) It covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation. However, whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner.
(ii) It defines the expression "domestic violence" to include actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.
(iii) It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate.
(iv) It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence.
(v) It provides for appointment of Protection Officers and registration of non-governmental organisations as service providers for providing assistance to the aggrieved person with respect to her medical examination, obtaining legal aid, safe shelter, etc."
37. The above extract indicates that a significant object of the legislation is to provide for and recognise the rights of women to secure housing and to recognise 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 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.
38. 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 overriding 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 "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 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."] 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 the Senior Citizens Act, 2007. Section 3 of the Senior Citizens Act, 2007 cannot be deployed to override 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 be 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 realised. Rights in law can translate to rights in life, only if there is an equitable ease in obtaining their realisation."
20. The Maintenance Tribunal, while deciding any such controversy is under mandate to pass composite order. In the case of S. Vanitha (supra) the Apex Court has elaborated the manner of exercise of power by the Maintenance Tribunal has been given in para 39, which is quoted herein below:-
"39. Adverting to the factual situation at hand, on construing the provisions of sub-section (2) of Section 23 of the Senior Citizens 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 procedure contemplated by the Senior Citizens 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."
21. While exercising powers under the Act, 2007, it has been noticed that any order passed by the Maintenance Tribunal could not obviate the competing remedy under the Act, 2005 and in an event of composite dispute the Maintenance Tribunal would be bound to consider the rights of daughter-in-law/aggrieved woman for residence under Section 17 of Act, 2005.
22. The maintenance Tribunal dealing with the application filed by the Senior Citizen for maintenance would be within its competence to consider the rights of the daughter-in-law under section 17 and 19 of the act of 2005. Such consideration is provided for in section 26 of the said act which is as under: -
"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 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."
23. This aspect of the matter was duly considered by the Supreme Court in the case of Satish Chandra Ahuja vs Sneha Ahuja (supra) rendering the opinion in the following terms: -
"102. After noticing the provision of Section 26 of the Act, this Court made the following observations in paras 23 and 24 : (Vaishali Abhimanyu Joshi v. Nanasaheb Gopal Joshi, (2017) 14 SCC 373) "23. Section 26 of the Act is a special provision which has been enacted in the enactment. Although, Chapter IV of the Act containing Section 12 to Section 29 contains the procedure for obtaining orders of reliefs by making application before the Magistrate whereas steps taken by the Magistrate and different categories of reliefs could be granted as noted in Sections 18 to 22 and certain other provisions. Section 26 provides that any relief available under Sections 18 to 22 may also be sought in any legal proceedings, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent. Section 26 is material for the present case since the appellant has set up her counterclaim on the basis of this section before the Judge, Small Cause Court. Section 26 is extracted below:
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 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.'
24. There cannot be any dispute that proceeding before the Judge, Small Cause Court is a legal proceeding and the Judge, Small Cause Court is a civil court. On the strength of Section 26, any relief available under Sections 18 to 22 of the 2005 Act, thus, can also be sought by the aggrieved person."
103. This Court held that Section 26 has to be interpreted in a manner to effectuate the purpose and object of the Act. This Court held that the determination of claim of the aggrieved person was necessary in the suit to avoid multiplicity of proceedings. This Court laid down the following in paras 40 and 41 of Vaishali Abhimanyu Joshi case (supra):-
"40. Section 26 of the 2005 Act has to be interpreted in a manner to effectuate the very purpose and object of the Act. Unless the determination of claim by an aggrieved person seeking any order as contemplated by the 2005 Act is expressly barred from consideration by a civil court, this Court shall be loath to read in bar in consideration of any such claim in any legal proceeding before the civil court. When the proceeding initiated by the plaintiff in the Judge, Small Cause Court alleged termination of gratuitous licence of the appellant and prays for restraining the appellant from using the suit flat and permit the plaintiff to enter and use the flat, the right of residence as claimed by the appellant is interconnected with such determination and refusal of consideration of claim of the appellant as raised in her counterclaim shall be nothing but denying consideration of claim as contemplated by Section 26 of the 2005 Act which shall lead to multiplicity of proceedings, which cannot be the object and purpose of the 2005 Act.
41. We, thus, are of the considered opinion that the counterclaim filed by the appellant before Judge, Small Cause Court in Civil Suit No. 77 of 2013 was fully entertainable and the courts below committed error in refusing to consider such claim."
104. In view of the ratio laid down by this Court in the above case, the claim of the defendant that suit property is shared household and she has right to reside in the house ought to have been considered by the trial court and non-consideration of the claim/defence is nothing but defeating the right, which is protected by the 2005 Act."
24. On a fair reading of the judgments in the case of S. Vanitha (supra) as well as Satish Chandra Ahuja (supra) it becomes clear that whenever a composite dispute arises, meaning thereby where the senior citizens are seeking remedy of eviction of daughter-in-law and while on the other hand daughter-in-law claims herself to be a victim of domestic violence seeks remedy of residence under the Act, 2005, the Maintenance Tribunal while dealing with the application of senior citizen will have to consider the rights of daughter-in-law under Section 17 and 19 of the Act, 2005. It is when the Maintenance Tribunal duly considers the rights of the daughter-in-law under the Act, 2005, the said order can be called a composite order and as held by the Apex Court in the case of S. Vineetha (supra) the said composite order would have to be placed before a competent Court dealing with Section 25 of the Act, 2005. Similar view was echoed by the Supreme Court in the case of Satish Chander Ahuja v. Sneha Ahuja, (supra), in para 90 the Court held as under :-
"90. Before we close our discussion on Section 2(s), we need to observe that the right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law. While granting relief both in application under Section 12 of the 2005 Act or in any civil proceedings, the Court has to balance the rights of both the parties. The directions issued by the High Court [Ambika Jain v. Ram Prakash Sharma, 2019 SCC OnLine Del 11886] in para 56 adequately balance the rights of both the parties."
25. In the present case respondent no. 6 has approached the Maintenance Tribunal alleging that in the disputed property being House No. B/237, Sector B, Mahanagar, Lucknow is owned by her husband and is being occupied by respondent no. 7 (son of respondent no. 6) and petitioner, though they do not have any vested right in the said property, there also exists embittered matrimonial relationship between petitioner and respondent no. 7. The petitioner has also started torturing, humiliating and harassing respondent no. 6 and her husband and blocking the way and passage to seek medical treatment and also to go outside the house. Dispute between them escalated to such an extent that Police had to interfere in the matter. Respondent no. 6 has stated in her application that she and her husband fear for their life and safety looking to the cruel and abusive behavior of the petitioner and have accordingly sought her eviction from the said premises.
26. The petitioner had filed her objections before the Maintenance Tribunal where she has stated that respondent no. 7 has filed divorce petition before the Principal Judge, Family Court, Lucknow and that she is living alongwith her two children on the ground floor of the disputed property and had categorically stated that the said application has been filed as a result of conspiracy between respondent no. 6 and 7 in order to throw the petitioner out of the disputed property.
27. The petitioner has also moved an application under Section 12 of the Act, 2005 before the Additional Chief Judicial Magistrate, C.B.I., Lucknow stating that her husband i.e. respondent no. 7 is earning about Rs.6,00,000/- per month and is also a wealthy person having number of properties and the applicant on the other hand is a victim of domestic violence and has sought maintenance of Rs.2,00,000/- per month and compensation of Rs.15,00,000/- apart from costs. In the said application it is noticed that she has not sought right of residence.
28. The question, therefore, would also arise as to whether in absence of any application under Section 12 of the Act, 2005 before the competent court seeking residence by the daughter-in-law, the Maintenance Tribunal would be justified to consider her case for residence while considering the application for eviction filed by the senior citizen?
29. In the present case even though the petitioner has not specifically prayed for restraining respondent nos. 6 and 7 from evicting her from the matrimonial home in the application filed under section 19 of the Act of 2005, but she has prayed for the same in her objections before the Maintenance Tribunal filed. Such an objection taken by the daughter-in-law would be deemed to be an application under Section 17 of the Act, 2005 and therefore the Maintenance Tribunal would be duty bound to consider her right of residence as provided for under the Act, 2005. In the case of Satish Chander Ahuja v. Sneha Ahuja, (supra) the Hon'ble Supreme Court has held:-
"124. Drawing the analogy from the above case, we are of the opinion that the expression "save in accordance with the procedure established by law", in Section 17(2) of the 2005 Act contemplates the proceedings in the court of competent jurisdiction. Thus, suit for mandatory and permanent injunction/eviction or possession by the owner of the property is maintainable before a competent court. We may further notice that in sub-section (2) the injunction is "shall not be evicted or excluded from the shared household ... save in accordance with procedure established by law". Thus, the provision itself contemplates adopting of any procedure established by law by the respondent for eviction or exclusion of the aggrieved person from the shared household. Thus, in appropriate case, the competent court can decide the claim in a properly instituted suit by the owner as to whether the women need to be excluded or evicted from the shared household. One most common example for eviction and exclusion may be when the aggrieved person is provided same level of alternate accommodation or payment of rent as contemplated by Section 19 sub-section (f) itself. There may be cases where the plaintiff can successfully prove before the competent court that the claim of the plaintiff for eviction of the respondent is accepted. We need not ponder for cases and circumstances where the eviction or exclusion can be allowed or refused. It depends on facts of each case for which no further discussion is necessary in the facts of the present case. The High Court in the impugned judgment [Ambika Jain v. Ram Prakash Sharma, 2019 SCC OnLine Del 11886] has also expressed opinion that suit filed by the plaintiff cannot be held to be non-maintainable with which conclusion we are in agreement.
125. In case, the shared household of a woman is a tenanted / allotted / licensed accommodation where tenancy/allotment/licence is in the name of husband, father-in-law or any other relative, the 2005 Act does not operate against the landlord/lessor/licensor in initiating appropriate proceedings for eviction of the tenant/allottee/licensee qua the shared household. However, in case the proceedings are due to any collusion between the two, the woman, who is living in the shared household has right to resist the proceedings on all grounds which the tenant/lessee/licensee could have taken in the proceedings. The embargo under Section 17(2) of the 2005 Act of not to be evicted or excluded save in accordance with the procedure established by law operates only against the "respondent" i.e. one who is respondent within the meaning of Section 2(q) of the 2005 Act."
30. Considering the above, the Maintenance Tribunal had to consider the right of residence of the petitioner as protected under the act of 2005. The Maintenance Tribunal having not considered the rights of the petitioner, has therefore misdirected itself and has failed to exercise the jurisdiction vested in them rendering the impugned order is illegal and arbitrary.
31. The maintenance Tribunal while considering the competing claims of the petitioner as well as respondent No. 6, will have to consider as to whether the disputed premises are covered with the definition of shared household as described in section 2(s) of the act of 2005, whether the respondent no.6 can be described as a "respondent " as per section 2(q) of the act of 2005 and as to whether they were in a domestic relationship. The Tribunal will also have to consider the offer made by respondent no. 7 of taking a house on rent for the petitioner, on the condition that payment of rent by respondent no. 7, should not stop, in case petitioner accepts the offer. It is only after considering all the necessary and foundational facts necessary for adjudication and for consideration of the rights of the parties under both the statutory provisions can the maintenance Tribunal arrive at a just and proper decision.
32. In light of the above discussion, a perusal of the impugned order passed by the Maintenance Tribunal indicates that though the contention of the parties has been duly recorded, but no findings have been discussed or analyzed. The maintenance Tribunal, being quasi-judicial body is required to analyze the evidence and return a finding on the issues arising for determination and record his satisfaction while deciding the application. No reasons have been given for allowing the application of the opposite party no.6.
33. Merely giving an opportunity of hearing is not enough. The necessity to record reason is even greater where a decision is on a disputed claim so as to ensure that the decision is not a result of caprice, whim or fancy but was arrived at after considering the relevant law and that the decision was just. The very requirement of giving reason is to prevent unfairness or arbitrariness in reaching conclusions and is based on the jurisprudential doctrine that justice should not only be done, it should also appear to be done as well.
34. In the present case perusal of the impugned order would indicate that no finding on any issue has neither been considered or recorded in favour of either of the party nor any evidence considered or analyzed which may indicate any application of mind and accordingly passing of such a cryptic order is illegal, arbitrary and deserves to be set aside. Learned counsel for the respondents also could not indicate any finding recorded in favour of the senior citizen (respondent no. 6) so as to pass an order of eviction. A quasi-judicial body while deciding any matter, where substantial rights of the parties are affected, has to duly consider the rival contentions and give reasons for deciding the said application. The reasons are bedrock of any judicial or quasi-judicial determination which indicates that the authority/Court has duly applied its mind to the facts of the case. In absence of reasons, the impugned order passed by the Maintenance Tribunal dated 28.12.2022 cannot be sustained and is hereby quashed.
36. The appellate order dated 18.01.2023 as per statement of the petitioner was without authority since an appeal under the Act, 2007 can be preferred only by a senior citizen or parents while in the present case the daughter-in-law has filed an appeal which was not maintainable and accordingly the appellate order as per stand of the petitioner was without jurisdiction and accordingly same is also set aside.
37. In light of the above, the matter is remitted to the Maintenance Tribunal to decide the matter afresh in the light of the observations made in the present judgment. Considering that pleadings are already before the Maintenance Tribunal, let the said exercise/hearing be conducted expeditiously and proceedings be concluded within six weeks from the date of production of certified copy of this order in accordance with law. The parties are directed to cooperate in expeditious disposal of the matter under the Act, 2007.
38. The petitioner was protected by an interim order of this Court from eviction and consequently the said protection will continue till final decision is made and orders are passed by the Maintenance Tribunal.
39. The writ petition stands allowed.
Order Date : 09-10-2023 A. Verma (Alok Mathur, J.)