SMT. RASHMI SAXENA WIFE OF SHRI NAVEEN SAXENA, RESIDENT OF BB Vs. SURESH PRAKASH SAXENA S/O SHRI PANNA LAL SAXENA, AGED ABOUT 65 YEARS, R/O BB

JUDGEMENT

(1.) This writ petition has been filed by Smt. Rashmi Saxena, who happens to be daughter-in-law of respondent Suresh Prakash Saxena, praying for setting aside order dated 26.11.2015 passed by the court of Sub Divisional Officer, Jaipur-Second (Sanganer), Jaipur, as also order dated 10.10.2016 passed by the court of District Collector & District Magistrate, Jaipur, with further prayer that respondent be directed not to create any hindrance in the staying of the petitioner in the matrimonial home.

(2.) Learned counsel for petitioner contended that marriage of the petitioner was solemnized with Mr. Navin Saxena on 23.01.2007, who is son of respondent Suresh Prakash Saxena. The petitioner, since then, was living with her husband, father-in-law, mother-in-law and mother-in-law at BB-39, Jai Ambey Nagar, Tonk Road, Jaipur. Allegation of the petitioner is that her husband obtained fraudulently consent for divorce under Sec. 13B of the Hindu Marriage Act, 1955 (for short, 'the Act of 1955'), which the petitioner revoked during pendency of proceedings before the Family Court. Even then, the learned Judge, Family Court No.2, Jaipur, passed illegal judgment and decree dated 26.10.2013. Petitioner filed Civil Miscellaneous Appeal challenging that judgment before Division Bench of this court, which has been admitted and presently pending for adjudication. The Division Bench attempted to persuade the parties to amicably settle their dispute out of court but no such compromise could take place. The petitioner's husband Mr. Navin Saxena tried to forcibly throw out the goods of the petitioner from the matrimonial home and when he failed to do so, he adopted a tactic by making his father i.e. the respondent herein, to move application under Sec. 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short, 'the Act of 2007') before the Sub Divisional Magistrate, who mechanically passed an illegal order and ordered eviction of the petitioner from her matrimonial home within one month. He further submitted that the petitioner then filed appeal against the aforesaid order before the District Magistrate, Jaipur, who too dismissed the same without application of mind.

(3.) Learned counsel for petitioner argued that the impugned orders are ex facie illegal and without jurisdiction. Sec. 23 of the Act of 2007 merely prohibit transfer of property in certain circumstances and provides that where any senior citizen, who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the court. Learned counsel argued that there is no question of any transfer of property or any part thereof in the present case. The impugned order passed by the Sub Divisional Officer as also the District Magistrate are perverse and erroneous being based on misapplication of law on the subject. The direction of eviction of the petitioner from matrimonial home is outside the purview of Sec. 23 of the Act of 2007. Even if marriage of the petitioner has been dissolved by the Family Court, since the appeal against the said judgment and decree has been admitted to hearing by the division bench of this court, the petitioner is entitled to live in her matrimonial home with dignity and respect till the appeal is decided by this court.