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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Dattatrey Shivaji Mane - Petitioner
Versus
Lilabai Shivaji Mane and Ors. - Respondents
Writ Petition No. 10611 OF 2018
Decided On : 26-06-2018
Constitution of India, 1950 - Article 227 - Maintenance and Welfare of Parents and Senior Citizens Act, 2007 – Offence of harassment - amount of education fees of his child and has been living lavishly - Respondent filed complaint against petitioner inter alia praying for maintenance and eviction of petitioner on various grounds - Said complaint was resisted by petitioner - Tribunal passed an order on February thereby directing petitioner and his other family members to evict themselves from said tenement within days from date said order and hand over vacant possession thereof to respondent This order of Tribunal is impugned by petitioner in this petition Article Constitution of India – Held, In my view since Section said Act senior citizen is entitled to apply for declaration of gift or transfer of his her property by any other means given subject to condition that transferee shall provide basic amenities and basic physical needs to such senior citizen and such child or grandchild refuses to provide such amenities and physical needs such senior citizen can apply for declaration of such transaction to be void such senior citizen can even apply for recovery of possession from her child or grandchild in event of child refusing to maintain such senior citizen and parents or does not comply with obligations extending to needs senior citizen or such parents to enable such senior citizen or parents to lead normal life - Such parents and senior citizen can certainly apply for recovery of vacant possession of property and for relief restraining such child or grandchild or his other family members who are claiming through such child from entering upon property of such senior citizen or parents - In my view there is thus no merit in submission counsel for petitioner that Tribunal could not have passed an order of eviction against petitioner and his family members from tenement owned by respondent provisions said Act - Delhi High Court in case - Supra has that where house is self acquired house of parents son whether married or unmarried has no legal right to live in that house and he can live in that house only at mercy of his parents up to time parents allow – Petition dismissed
By this petition filed under Article 227 of the Constitution of India, the petitioner has impugned the order dated 1st February 2018 passed by the Tribunal for Welfare of Parents and Senior Citizens on a complaint filed by the respondent no.1 who is the mother of the petitioner no.1, under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short “the said Act”).
2. It is the case of the petitioner that the petitioner has been staying in the tenament i.e. Room No. 502, 5th floor, B-Wing, Darshan Heights, Zavaba Wadi, Thakurdwar, Girgaon, Mumbai along with his wife, son, daughter and the respondent no.1. Admittedly the said tenament belongs to the respondent no.1 exclusively.
3. The respondent no.1 filed a complaint against the petitioner inter alia praying for maintenance and eviction of the petitioner on various grounds. The said complaint was resisted by the petitioner. The Tribunal passed an order on 1st February 2018 thereby directing the petitioner and his other family members to evict themselves from the said tenament within 30 days from the date of the said order and hand over vacant possession thereof to the respondent no.1. This order of the Tribunal is impugned by the petitioner in this petition under Article 227 of the Constitution of India.
4. Learned counsel appearing for the petitioner challenged the said order on the ground that the complaint was filed by the respondent no.1 against the petitioner only whereas in the impugned order, the Tribunal has passed the impugned order of eviction also against the wife, son and daughter of the petitioner from the suit premises which is not permissible in law.
5. The next submission of the learned counsel for the petitioner is that under Section 4 of the said Act, the Tribunal has no jurisdiction to evict the petitioner as well as his family members from the tenament owned by the respondent no.1. The entire order is thus without jurisdiction.
6. The next submission of the learned counsel for the petitioner is that the petitioner has been maintaining the respondent no.1 for last several years. The respondent no.1 has been harassing the petitioner and his family members. All the criminal complaints filed by the respondent no.1 against the petitioner and his family members are disposed of. The complaint filed under the provisions of the Protection of Women from Domestic Violence Act, 2005 against the petitioner is dismissed for default.
7. It is submitted by the learned counsel for the petitioner that the respondent no.1 has been independently earning substantial amount and thus could not seek any relief against the petitioner by filing a complaint under Section 4 of the said Act.
8. Learned counsel appearing for the respondent no.1, on the other hand, submits that because of mental torture and continuous harassment to the respondent no.1 by the petitioner and his family members, the respondent no.1 has filed several complaints against them in last ten years. The Tribunal however has not taken any action on those complaints filed by the respondent no.1 against the petitioner and his family members.
9. In so far as the complaint filed by the respondent no.1 under the provisions of the Protection of Women from Domestic Violence Act, 2005 against the petitioner is concerned, the said complaint has been dismissed for default and not on merit.
10. Learned counsel for the respondent no.1 submits that even during the pendency of this petition, the petitioner had caused physical hurt to the respondent no.1 and thus the respondent no.1 was compelled to file a police complaint against the petitioner with the concerned police station.
11. Learned counsel for the respondent no.1 placed reliance on the judgment of the Delhi High Court in the case of Sunny Paul & Anr. Vs. State Nct of Delhi & Ors. delivered on 15th March 2017 in Writ Petition (C) No.10463 of 2015 and also another judgment of the Delhi High Court in the case of Sachin & Anr. Vs. Jhabbu
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