Not Instituting A Specific Proceeding shall Not Deprive A Person From Pursuing His Claim under law

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. (Para 23)

Not Instituting A Specific Proceeding Shall Not Deprive A Person From Pursuing His Claim Of Entitlement Under The Law - SC

Smt. S Vanitha v. The Deputy Commissioner, Bengaluru Urban District & Ors.

Civil Appeal No. 3822 of 2020 (Arising out of SLP (C) No. 29760 of 2019)

15th December, 2020.

Counsel for Appellant: Mr Yatish Mohan.

Counsel for Respondents: Mr Rajesh Mahale.

The Hon'ble Supreme Court Justices Dr Dhananjaya Y Chandrachud, Indu Malhotra and Indira Banerjee in an appeal against the order of the Division Bench of the High Court of Karnataka set aside the impugned judgment and allowed the appellant herein to pursue her remedies under the Protection of Women from Domestic Violence Act, 2005.

The Second and Third respondents, the parents of the Fourth respondent, who is the estranged spouse of the appellant filed an application under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act 2007, and inter alia, sought the appellant and her daughter's eviction from a residential house. Aggrieved by the of the Assistant Commissioner and Deputy Commissioner's order for vacation of suit premises, the appellant unsuccessfully pursued a writ proceeding under Art.226 of the Constitution before a Division Bench of the High Court of Karnataka which held that the 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). Hence, the appellant under Art.136 has filed this Appeal.

The counsel for appellant submits that 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 Sec.17 of the Protection of Women from Domestic Violence Act, 2005. He submitted that the finding of the Division Bench on the appellant's current residential status was based on a fraudulent set up as the alleged postal cover was dispatched 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. He further states that, 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. 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,2007 to defeat the claims of the appellant.

The counsel for respondent submits that the Tribunal constituted under the Act, 2007 has the jurisdiction to pass appropriate orders for protecting the life and property of parents and senior citizens, including orders of eviction. Though the 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. 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.

The issue raised before this court based on the contentions is as follows:

1. Whether the appellant as the daughter-in-law and the minor daughter could have been ousted?

The court observed that Sec.23(1) 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 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. It 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 person upon whom the obligation is imposed. Then, at the option of the transferor, the transfer can be declared as void by the Tribunal. Sec.23(2) 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.

"Sec.36 of the 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 Sec.3 stipulates that its provisions will have effect, notwithstanding anything inconsistent contained in any other enactment. However, the provisions of Sec.3 of the Senior Citizens Act, 2007 giving it overriding force and effect, would not by themselves be conclusive of an intent to deprive a woman who claims a right in a shared household, as under the PWDV Act 2005. Principles of statutory interpretation dictate that in the event of two special acts containing non obstante clauses, the later law shall typically prevail." (Para 20)

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 Act, 2007. In the event 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 Act, 2007. The fact that specific proceedings under the Act, 2005 had not been instituted when the application under the 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 court hence, sets aside the High Court order along with the order of the Deputy Commissioner and allowed the appellant to pursue her remedies under the Act, 2005. Therefore, the appeal stands allowed.

View/ Download judgment: Smt. S Vanitha v. The Deputy Commissioner, Bengaluru Urban District & Ors.

M. Maheswari