Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Cal) 789

IN THE HIGH COURT AT CALCUTTA
Rajasekhar Mantha, J.
Sushanta Kumar Mukhopadhyay – Petitioner
Versus
The State of West Bengal & Ors. – Respondents
W.P.A. 16054 of 2022Decided On : 04-08-2023

Advocates:
Advocate Appeared:
For the Petitioner: Mr. Ashok Kumar Banerjee, Mr. Debjit Mukherjee, Ms. Manideepa (Paul) Roy, Ms. Urbasi Banerjee
For the Respondent: Ms. Chaitali Bhattacharya, Mr. Mrinal Kanti Biswas

A senior citizen can approach the High Court under Article 226 of the Constitution of India for eviction of his/her son and daughter-in-law from his/her property, despite the existence of an alternative remedy under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, if the alternative remedy would cause unnecessary delay and harassment.

Headnote:
SENIOR CITIZEN - EVICTION - RIGHT TO RESIDE - MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007 - PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 - JURISDICTION OF WRIT COURT - FRAUDULENT DECREE - RES JUDICATA - RIGHT OF DAUGHTER-IN-LAW TO RESIDE IN SHARED HOUSEHOLD.
Fact of the Case:

A senior citizen, the writ petitioner, filed a writ petition seeking eviction of his son and daughter-in-law along with their two daughters from his premises. The son and daughter-in-law had been living with the petitioner after their marriage, but disputes and differences arose in their marriage, leading to a divorce by mutual consent. As part of the consent terms filed by the son and daughter-in-law before the District Judge, the daughter-in-law was given a right by the son to live in the premises of the petitioner along with her two daughters. The petitioner was not a signatory to the terms of settlement and was unaware of the right of residence conferred on the daughter-in-law. The petitioner lodged several complaints with the police alleging harassment and torture by the daughter-in-law.
Finding of the Court:

The court held that the writ petition was maintainable despite the existence of an alternative remedy under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The court found that the Tribunal under the Act may have the authority to order an eviction, if it is necessary and expedient to ensure the maintenance and protection of the senior citizen or parent. However, the court also found that the Tribunal cannot be expected to give such an interpretation and there is substantial doubt as to whether the Tribunal has or will exercise jurisdiction to evict the private respondents. The court further held that the consent decree obtained by the son and daughter-in-law was fraudulent and unenforceable, as the petitioner was not a party to the consent terms and had not consented to the daughter-in-law staying in his property.
Issues: 1. Whether the writ petition is maintainable despite the existence of an alternative remedy under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007? 2. Whether the consent decree obtained by the son and daughter-in-law is valid and binding on the petitioner? 3. Whether the daughter-in-law has a right to reside in the petitioner's property under the Protection of Women from Domestic Violence Act, 2005?
Ratio Decidendi: 1. The High Court can exercise jurisdiction to grant relief to a senior citizen under Article 226 of the Constitution of India, despite the existence of an alternate remedy under the Act of 2007. Such jurisdiction should be exercised when the alternative remedy would cause unnecessary delay and harassment. The Writ Court should not be handicapped in granting relief in a given set of facts whereof the life of a citizen and in this case a senior citizen is at stake. 2. A fraudulent decree can be declared a nullity and unenforceable in collateral proceedings and even in a writ petition. A decree which is a nullity cannot attract the principle of res judicata in a subsequent proceeding. A Court cannot allow any party to benefit from its own wrong. The writ Court can and should do everything to rectify the wrong. 3. The right of a daughter-in-law to reside in a shared household under the Protection of Women from Domestic Violence Act, 2005, is not relevant in the instant case as the daughter-in-law is not staying in the premises under any orders of a competent Court under the Act and has not asserted or instituted any proceedings till date.
Final Decision: The writ petition was allowed and disposed of. The daughter-in-law was prevented from in any way visiting the house of the petitioner and was barred from entering into the house except with the latter's expressed consent. The son of the petitioner was also restrained from entering into the property, except with the express permission of the petitioner. The daughter-in-law was given a period of two months to remove any of her and her daughter's belongings from the house of the petitioner.

JUDGMENT :

Rajasekhar Mantha, J.

1. This Court had, at the interim stage on the 18th of January 2023, directed the daughter-in-law and son to explain as to why they should not be escorted out of the house along with their two daughters.

2. Against the said order, the respondent/daughter-in-law preferred MAT 180 of 2023. The said appeal was disposed of by order dated 1st March 2023, by a Division Bench of this Court directing this Court to consider the maintainability issue of the writ petition first, before proceeding further in the matter. The matter is taken up after remand.

3. The facts relevant to the case are that the writ petitioner is the absolute owner of premises No. D-11, New Garia Co-operative Housing Society Limited, Kolkata-700094 under the Panchasayar Police Station.

4. The added respondent no. 6/son, Saikat Mukherjee, along with the respondent no. 5/wife, Satarupa Mukherjee, since after marriage, had been living with his father/the writ petitioner at the aforesaid premises. The son and daughter-in-law have two daughters one of whom has attained majority as on date, and live in the same house.

5. Disputes and differences arose in the marriage of the son and daughter-in-law, as a consequence whereof, the daughter-in-law filed Matrimonial Suit 893 of 2016 before the Learned District Judge at Alipore, South 24 Parganas. In the suit, on 26 September 2016, a decree of divorce by mutual consent was passed.

6. As part of the consent terms filed by the said son and daughter-in-law before the learned District Judge, the daughter-in-law was given a right by the son to live in the said premises of the writ petitioner/father along with her two daughters. The father was totally unaware of the said right of residence conferred on Respondent no. 5 and her daughters. The father is not a signatory to the terms of settlement between the son and the daughter-in-law. He could not have been a party to MAT Suit 819 of 2017.

7. The writ petitioner thereafter lodged several complaints with the Panchasayar police, DSP, and SP, alleging harassment and torture by the daughter-in-law.

8. Learned counsel for the writ petitioner submits that he allowed the daughter-in-law to stay in the premises even after divorce out of his love and affection for his granddaughters. He has now filed the instant writ petition seeking eviction of both the son and daughter-in-law along with the granddaughters, from his premises, unable to bear the torture by the son, daughter-in-law and their children.

9. On the question of maintainability of such prayers in a writ petition under Article 226 of the Constitution of India, this Court had, in WPA 5605 of 2023 (Indu Bhushan Gayen v. State of West Bengal), by judgment and order dated March 27, 2023, held as follows:-

“On the question of alternative remedy available to the petitioner under the Act of 2007, a Constitution bench of the Supreme Court, in Calcutta Discount Co. Ltd. v. Income-Tax Officer, Companies District I Calcutta and Anr. reported in 1961 SCR (2) 241, observed the following:

“27. ………The existence of such alternative remedy is not however always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority acting without jurisdiction from continuing such action.”

Following the said decision, the Hon’ble Supreme Court in Assistant Collector Of Central Vs. Jainson Hosiery Industries reported in AIR 1979 SC 1889 : 1980 SCR (1) 134, observed the following:

“1…..It is correct to say that the High Court must have regard to the well established principles for the exercise of its writ jurisdiction and unless it is satisfied that the normal statutory remedy is likely to be too dilatory or difficult to give reasonably quick relief, it should be loath to act under Article 226….”

It would not be out of place to quote what the Hon’ble Supreme Court, in Whirlpool Corporation Vs. Registrar Of Trade Marks, Mumbai & Ors reported in (1988) 8 SCC 1, considered:

“16. Rashid Ahmad vs. Municipal Board,