Gujarat High Court: Ashokkumar C. Joshi, J. dismissed a petition which was filed under Article 227 of the Constitution of India against the order of the Principal Judge, Family Court, Ahmedabad. Application had been filed inter alia praying for to issue order / directions that the plaintiff-respondent 1 herein, along with a minor may remove themselves from House No. 43, Nathalal Colony, Nr. Sardar Patel Colony, Post – Navjivan Station Road, Ahmedabad (suit property) and to restrain the plaintiff by injunction from using or occupying the said property as there residence.
Facts:
Petitioner was the father-in law of the respondent 1 and the father of the respondent 2 herein, pertinent to note that it was the second marriage of both the respondents after their divorce from the previous marriage from which respondent t No. 1 was having a daughter (minor) whereas, the respondent 2 was having a son. After the marriage, the respondents started living in the suit property; however, on 12-03-2017 the respondent 2 returned to the USA and on the very same day, the respondent 1 also left the suit property, so as to reside at her own flat. Respondent 1 never resided along with the petitioner in the absence of the respondent 2 and never cared for them. It was further submitted that it was only in March 2020 when the respondent 2 had come to India and due to Covid-19 pandemic since could not return to USA the respondents stayed in the suit property, however, in June 2020, the respondent No. 2 again left for USA in June 2020 and no sooner as he left for USA, the respondent No. 1 also left the suit property and started residing in her own flat. However, in September 2020, due to utter shock and surprise, the respondent No. 1 barged into the house of the petitioner with some people, including the lawyer, and forcefully entered the house and created a lot of ruckus and havoc. Petitioner gave an application in the police station and on the very same day respondent 1 also filed the suit in question i.e. Family Suit No. 2020 before the Family Court. Said application by the petitioner came to be rejected. The petitioner also filed his written statement-cum-Reply-cum-injunction application, which came to be dismissed by way of the impugned order, being grieved by the same, the petitioner was before this Court by this petition.
Contentions:
It was submitted by the senior advocate for the petitioner that the property belonged to the petitioner and the respondent 1 has by forcefully trespassing in the same, has breached the right of the petitioner and accordingly, an eviction order is solicited against the respondent 1.
Advocate for respondent 1 contended that t it may be true that the flat owned by the respondent No. 1 is given on rent, however, the same does not, in itself debar her from staying in her matrimonial home, besides, it is also a fact that the respondent 1 would have no other means to live if the order impugned herein would be set aside.
Advocate for respondent 2 supported the case of the petitioner submitting that he was residing in the USA and his father, the petitioner herein, was entitled to the shared house and the respondent 1 was not, in any way, entitled for any rights or title in the same.
Findings:
The Court after considering material on record was of the opinion that this case was more in regard to the applicability of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 vis-a-vis the Protection of Women from Domestic Violence Act, 2005 and inter se overriding effect thereof.
The petitioner is a senior citizen, whose son, the respondent 2 herein is residing in the USA and the daughter-in-law, the respondent No. 1 herein, has allegedly, illegally trespassed the house of the petitioner and eventually, the petitioner has to reside at a different place and accordingly, under the provisions of the Act of 2007, the petitioner is entitled for the said dwelling house by eviction of the respondent No. 1 therefrom. Whereas, the case of the respondent No. 1 is that she being the daughterin-law of the petitioner, is entitled to the share household in her matrimonial home and she cannot be evicted from the same under the provisions of the Domestic Violence Act, 2005.
The Supreme Court in Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329 has considered in detail the Scope of interference by this Court that, Article 227 can be invoked by the High Court Suo motu as a custodian of justice. Further explaining that in exercise of its power of superintendence, High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view.
In answering as to whether which enactment would prevail the High Court relied on the judgment of the Supreme Court in S. Vanitha v. Deputy Commissioner, Bengaluru Urban District, 2020 (0) AIJELSC 66818, where an identical issue was before them. The ratio decidendi was
“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.”
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 legislation have to be harmoniously construed.
Elaborating definitions of “Children” and “Parent” Court observed a bare reading of the provisions of Section 4 and 5 of the Act of 2007, revealed that a senior citizen including parent who is unable to maintain himself, shall be entitled to make an application under Section 5 to the Tribunal as constituted by the State Government under the provisions of Section 7 of the Act of 2007. In the case on hand, it was nobody’s case that any such application has been preferred by the petitioner and/or is pending before any Tribunal.
After observations and discussions the Court found that the Family Court had committed no error which required interference thus dismissed the petition.[Jagdeepbhai Chandulal Patel v. Reshma Ruchin Patel, R/Special Application No. 11129 of 2021, decided on 18-01-2022]
Suchita Shukla, Editorial Assistant has reported this brief.
Mr YN Oza, Senior Advocate with Shashvata U Shukla for the Petitioner
Mr Jamshed Kavina for the Respondent(s) 2
Mr Vishal P Thakker for the Respondent(s) 1
