SEEMA Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) 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 dtd. 26/8/2019 (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 dtd. 7/6/2018 (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 dtd. 3/12/2018 (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.) 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 Sec. 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 and 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.