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2022 DIGILAW 1700 (PNJ)

Seema v. District Magistrate

2022-09-13

RAJBIR SEHRAWAT

body2022
JUDGMENT Rajbir Sehrawat, J. (Oral) - The petitioner has filed this petition under Articles 226/227 of the Constitution of India, for issuance of a writ in the nature of certiorari for quashing the impugned order dated 26.08.2019 (Annexure P-6) and for dismissing the appeal filed by respondent No.2-father-in-law (senior citizen) in connivance with respondent No.3-husband for evicting the petitioner-daughter-in-law; along with certain other prayers. 2. The brief facts of this case are that respondent No.2-father- in-law (senior citizen) of the petitioner herein, had filed an application before the Maintenance Tribunal, Bhiwani asserting therein that he was the owner of the house No.61, Vijay Nagar, Tehsil and District Bhiwani. He had retired from the Bank. His son and daughter-in-law were harassing him and because of that the entire family was being put under tension. The dispute between the son and daughter-in-law had reached even to the family court by way of divorce petition filed by his son-respondent No.3 herein. Feeling harassed, on account of conduct of his son and daughter-in-law the respondent No.2 had even excluded them from his inheritance and asked them to vacate the property. However, instead of vacating the same they asked respondent No.2 to leave that house and start residing anywhere else. After considering the application, the Maintenance Tribunal had dismissed the application filed by respondent No.2 on the ground that respondent No.2 and his son were colluding with each other and that their intention was only to throw the present petitioner-daughter-in-law, out of the house. Respondent No.2 filed an appeal before the Appellate Tribunal. However, even that was dismissed vide order dated 07.06.2018 (Annexure P-4). Challenging the said order passed by the Appellate Tribunal, respondent No.2 had filed CWP No.30574 of 2018 before this court. The said writ petition was disposed of by this court vide order dated 03.12.2018 (Annexure P-5), wherein it was observed that the order passed by the Maintenance Tribunal was non-speaking and that the said authority should reconsider the case and decide the matter afresh. It is thereafter that the Appellate Tribunal had taken up the case again and has passed the order evicting the petitioner from the house in question. It is challenging the said order that the present petition has been filed by the petitioner. 3. It is thereafter that the Appellate Tribunal had taken up the case again and has passed the order evicting the petitioner from the house in question. It is challenging the said order that the present petition has been filed by the petitioner. 3. While arguing the case learned counsel for the petitioner has submitted that it was the positive finding of the Maintenance Tribunal that the petition filed by respondent No.2 had been filed in collusion with his son, only to oust the petitioner from the matrimonial house. It is not even in dispute that respondent No.3-husband had filed divorce petition against the petitioner. The said petition was dismissed by the family court and thereafter the husband has filed the appeal before this court, which is pending adjudication. Hence, it is obvious that the father and the son are acting in collusion with each other to oust the petitioner from her residence with ulterior motive. The respondent No.2 has no right to throw the petitioner out of her shared household, under any law. She has 'right to residence' under Section 17 of the Domestic Violence Act, 2005. The counsel for the petitioner has further relied upon the judgment passed by the Supreme Court in the case of Smt S. Vanitha Versus The Deputy Commissioner Bengaluru Urban District & ors. SCC Online SC 1023 to submit that the petition, on behalf of senior citizen/parents is not even maintainable where, the same is filed in collusion with a purpose to oust the daughter-in-law from the shared household. The counsel has also pointed out that in the appellate order passed by the authority below, the aspect of collusion between the father and son is not even denied, rather, the same has been discussed by it and it has been observed that the said subject matter appeared to be of the Civil Court. However, the Supreme Court had held in the aforesaid judgment rendered in Smt S. Vanitha (supra) that in such a situation, the petition filed by the senior citizen is not even maintainable. Therefore, the application filed by respondent No.2 deserves to be ordered to be dismissed, and the present writ petition deserves to be allowed. 4. On the other hand, the counsel for respondent No.2 has submitted that there is no collusion between the father and son. Therefore, the application filed by respondent No.2 deserves to be ordered to be dismissed, and the present writ petition deserves to be allowed. 4. On the other hand, the counsel for respondent No.2 has submitted that there is no collusion between the father and son. The father had, in fact, disowned and disinherited the son, who is husband of the petitioner. Not only that, the son of respondent No.2 is not even residing in the same house where respondent No.2 is residing. The counsel has further submitted that the house in question was constructed by respondent No.2-senior citizen for his own convenience and for comfortable life for his wife. If the petitioner-daughter-in-law is not in a position to adjust with the parents-in-law, then she has no right to step in the house at all, rather she may avail her other remedies against her husband. The parents-in-law have every right to claim eviction of the petitioner-daughter-in-law from their property, so as to enjoy their life peacefully. 5. Having heard the counsel for the parties, this court finds that there is no dispute that the relation between the petitioner and her husband is far from being cordial. In fact, it has come on record that respondent No.3-husband of the petitioner had already filed divorce petition against her. Although, the said petition was dismissed by the trial court, however, the husband has even preferred appeal against the said judgment and decree passed by the trial Court. It has also come on record that the house in question is a two storied building, in which respondent No.2, his wife and the other son along with his family, are residing at ground floor. The petitioner is residing with her daughter on the first floor, which comprised of two rooms only. So far as the husband of the petitioner, is concerned, vide the previous order he was called to come present in court. Accordingly, today he is present before the court. However, he has not taken any committed stand on any aspect. He has also expressed that he is not in a position to maintain the petitioner, by any means, nor is he in a position to contribute anything towards the maintenance of his parents. Even on the aspect of residence there is nothing on record to show that respondent No.3-husband of the petitioner is residing at any other independent accommodation. He has also expressed that he is not in a position to maintain the petitioner, by any means, nor is he in a position to contribute anything towards the maintenance of his parents. Even on the aspect of residence there is nothing on record to show that respondent No.3-husband of the petitioner is residing at any other independent accommodation. Rather, the case of the respondents is that the husband of the petitioner is staying in the very guest house in which he is working, and which is owned by none other than respondent No.2-father. Therefore, it is obvious that the assertion made by the petitioner qua the collusion between the father and son cannot be brushed aside. Rather, the facts on record support the argument of the petitioner that the father and son, in fact, are in collusion. In view of this factual situation, the judgment of the Supreme Court in Smt S. Vanitha (supra) is fully applicable. Hence, the petition filed by respondent No.2 before the Maintenance Tribunal has to be held to be non-maintainable. Since the petition preferred by respondent No.2 before the Maintenance Tribunal qua the petitioner-daughter-in-law, is non-maintainable, in view of the above facts, therefore, respondent No.2 cannot claim any eviction against the petitioner. Hence, the argument of counsel for the petitioner has to be accepted. 6. Although, the counsel for respondent No.2 has submitted that the respondent No.2 want only peace of mind and that he had constructed the said house for his convenience and there cannot be any doubt regarding the assertions made by respondent No.2 in this regard, however, as per the judgment rendered by the Supreme Court in Smt S. Vanitha (supra), every convenience of senior citizen has been made subject to the rights of the daughter-in-law as available under the Domestic Violence Act, 2005. Therefore, whatever convenience, the senior citizen is seeking, has to be sought within the limits prescribed by and subject to the rights of the daughter-in-law to reside in the shared household. 7. In view of the above, the present petition is allowed. The order passed by the Appellate Tribunal is set aside. The order passed by the Maintenance Tribunal is upheld.