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IN THE HIGH COURT OF PUNJAB & HARYANA
Before
The Hon’ble Mr. Justice Harinder Singh Sidhu
CWP No. 18009 of 2015 (O&M)
Hamina Kang
v.
District Magistrate (U.T.), Chandigarh & Ors.
{Decided on 25/01/2016}
Parents and Senior Citizens--Eviction Order can be passed against daughter-in-law also and not only against son, daughter or legal heirs as mentioned in 2007 Act.
Domestic Violence--Shared Household--House which is owned by father-in-law or mother-in-law of woman is not a 'shared household' qua her and she cannot enforce any right of residence against such house under the 2005 Act.
(A) Maintenance and Welfare of Parents and Senior Citizens Act, 2007, S.21--Foreign Citizens--Applicability of Act--An application for protection and eviction by, the old and aged parents from their property even though they are not citizens of India, is maintainable.
There is no requirement for the parent to be a citizen of India--A senior citizen is a person who is a citizen of India and is of the age of sixty years or more--Since the requirement of being a citizen of India is only a part of the definition of a senior citizen, a father or mother, whatever his or her nationality would be a 'parent'--Thus, a person who is a parent would be entitled to the benefits of the Act which are conferred on parents, irrespective of his or her age or nationality. (Para 17 to 21)
(B) Chandigarh Maintenance of Parents and Senior Citizens Rules, 2009, R.3(1)--Eviction--Order can be passed against daughter-in-law also and not only against son, daughter or legal heirs as mentioned in 2007 Act. (Paras 25 to 32)
Rule 3(3)(i) which deals with enforcement of eviction orders, again is that 'if any person refused or fails to comply with the order of eviction', then the District Magistrate or any person on his behalf 'may evict that person from the premises in question and take possession'--Clearly, in terms of the above provisions, the eviction order can be passed against any person who is in unauthorized occupation of the property of the Senior Citizen/ Parent. The first part of Rule 3 (1)(iv) which mentions only son or daughter or legal heir cannot control the above referred specific provisions and limit their operation and effect.
(C) Protection of Women from Domestic Violence Act, 2005, S.12--Shared Household--House which is owned by father-in-law or mother-in-law of woman is not a 'shared household' qua her and she cannot enforce any right of residence against such house under the 2005 Act. (Para 60)
(D) Joint Family Property--Presumption of--The existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. (Para 44)
(E) Maintenance and Welfare of Parents and Senior Citizens Act, 2007, S.21--Eviction--Shared Household--Petitioner was residing in house fully owned by her father-in-law--Father-in-law and Mother-in-law became US Citizens and returned to India to permanently settle in their house in their advance age (79 and 75 years)--Petitioner had harassed parents of her husband by filing false criminal complaints under 2005 Act, so as to prevent them from settling in house in dispute--Held;
(i) Complaint by parents even if they are not citizens of India is maintainable under 2007 Act;
(ii) Daughter-in-law cannot claim right to residence in house owned by her-in-laws;
(iii) Petitioner directed to vacate the house within one month;
(iv) Father-in-law to pay Rs.25,000/-p.m. for one year as offered by him;
(v) In present case, no right of petitioner under 2005 Act is being sought to be nullified by the 2007 Act--Protection of Women from Domestic Violence Act, 2005, S.12.
Mr. Harinder Singh Sidhu, J.: - This petition has been filed praying for directions to quash the order dated 6.8.2015 passed by respondent No.1 under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as the “2007 Act”) directing the petitioner to vacate house No.112, Sector 9-B, Chandigarh within ten days from the passing of this order.
2. The petitioner is the daughter-in-law of respondents No.2 and 3, being the wife of their son Kanwar Bir Singh Kang. The petitioner was married to Kanwar Bir Singh Kang on 3.5.1992 in accordance with Sikh rites. The marriage was registered on 11.5.1992 with the Registrar of Marriages, UT Chandigarh. After marriage, the petitioner stayed for some time at the matrimonial home i.e. H.No.112, Sector 9, Chandigarh. Thereafter the petitioner and her husband alongwith respondents No.2 and 3 (who are U.S. Citizens) went to the United States of America. While in the U.S, three daughters were born to the petitioner, namely Amber Kang, (aged about 19 years), Summer Kang (aged about 15 years) and Joon Kang (aged about 15 years). In the year 2005 the husband of the petitioner who was working in a multinational company in the U.S. , got posted in India. Along with him, the petitioner and her three daughters also shifted to India. Since then the petitioner is residing in rear portion of H.No.112, Sector 9, Chandigarh which is a six kanal house. The petitioner claims to have spent considerable amount in furnishing the house.
3. Respondent No. 2 and 3 who had been residing in U.S.A came to India in November, 2014. It is alleged that due to differences between the petitioner and her husband, respondent no.2 started harassing the petitioner so as to compel her to leave the matrimonial house, regarding which the petitioner filed a complaint to the police on 5.11.2014. After spending some days in Chandigarh, in November 2014, respondent No.2 went back to USA. Respondents No.2 and 3 again came to India in the month of April 2015, where after the harassment and humiliation of the petitioner resumed regarding which she filed complaints Annexure P-4 to P-6.
4. Apprehending ouster from the matrimonial home, the petitioner filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter to be referred to as the “2005 Act”) before Judicial Magistrate, Chandigarh on 27.4.2015 against respondents 2 and 3 alleging that after coming to India, they have, in connivance with their son (husband of the petitioner), started harassing and humiliating the petitioner with a view to forcibly dispossess her from her matrimonial home. Learned JMIC, Chandigarh vide order dated 28.4.2015 directed that the petitioner be not dispossessed from H.No.112, Sector 9-B, Chandigarh till the next date. Thereafter, the order has been continued from time to time and status quo regarding possession has been directed to be maintained.
5. It is alleged that as a counter blast to the aforesaid application filed by the petitioner, respondents No.2 and 3 filed CWP No.9021 of 2015 praying for direction to the police of U.T. Chandigarh to protect their life and liberty at the hands of the petitioner and her mother. During pendency of this writ petition, respondents No.2 and 3 filed an application dated 8.6.2015 under section 21 and 22 of the 2007 Act read with Rule 19 of the Chandigarh Maintenance of Parents and Senior Citizens Rules, 2009 (hereinafter referred to as the “2009 Rules”) for protection of their life and property i.e. the residential H.No.112, Sector 9, Chandigarh at the hands of the petitioner and her mother Smt. Surender Kaur. It was claimed therein that house No.112, Sector 9- B, is wholly owned by respondent No.2. Fifty per cent share in respect of this plot was transferred in his favour on the basis of registered Will dated 23.1.1991 of his late father Shri Ajmer Singh. The remaining 50 per cent of this house held by Smt. Jagir Kaur (wife of l
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