PUNJAB AND HARYANA HIGH COURT
Harinder Singh Sidhu, J.
Hamina Kang —Petitioner
versus
District Magistrate (U.T.), Chandigarh & Ors. —Respondents
CWP No.18009 of 2015 (O&M)
Decided on 25.1.2016

Headnote:(i) Maintenance and Welfare of Parents and Senior Citizens Act, 2007 — Section 2(h), 21 and 22 — Order passed by District Magistrate directing petitioner, daughter-in-law of respondents No.2 and 3 to vacate the house which belonged to respondent No.2 — Writ challenging order on plea that respondents were U.S. citizens and were not citizens of India and thus were not “senior citizens” as per definition in the Act and that eviction order could be passed only against son, daughter or legal heirs and not against daughter-in-law — Definition “parent” did not require the parent to be a citizen of India — A person who is a parent would be entitled to benefits of the Act which are conferred on parents, irrespective of his or her age of nationality — Application filed by respondents was maintainable thought they were not citizens of India — Eviction order could be passed against any person who was in unauthorized occupation of property of senior citizen/parent — Application against the daughter-in-law was maintainable.

       Held: In order to appreciate this argument, a reference to the relevant provisions of the 2007 Act and the 2009 Rules is necessary.

       The Preamble to the 2007 Act states that it is an “An Act to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognised under the Constitution and for matters connected therewith or incidental thereto”

       As per Section 2(d) “parent” means father or mother, whether biological, adoptive or step father or step mother, as the case may be, whether or not the father or the mother is a senior citizen.

       Section 2(h) defines “Senior Citizen” as under:

       “senior citizen” means any person being a citizen of India, who has attained the age of sixty years or above;

       It is clear that 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.

       An application for protection and eviction by respondents No. 2 and 3, the old and aged parents (79 and 75 years respectively), from their property even though they are not citizens of India, is maintainable.

       Keeping in view the aforesaid objectives, it is inconceivable that the Parliament could have intended to deny the benefits of Chapter V of the Act to the aged parents, merely because they were not Citizens of India. Anyway, as already stated above, a plain reading of the 2009 Rules does not support such a contention.

       Ld. Counsel has next argued that in terms of Rule 3(1) of the 2009 Rules, eviction can be ordered only against the son, daughter or legal heirs and not against a daughter-in-law. In this context reference has been made to Rule 3(1)(iv) which is as under:

        “If the District Magistrate is of opinion that any son or daughter or legal heir of a senior citizen/parents are in unauthorized occupation of any property as defined in the Maintenance and Welfare of parents and Senior citizens Act, 2007 and that they should be evicted, the District Magistrate-cum-Estate Officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause as to why an order of eviction should not be issued against them/him/her.”

       The argument is that as only son, daughter or legal heir of the parent/ senior citizen is mentioned herein, hence eviction order can be passed only against any of them and against no other.

       This argument of the Ld. Counsel is also without merit as would be clear from a consideration of Rules 3(1), 3(2) and 3(3) which outline the procedure for eviction and which have already been reproduced above.

       No doubt, the first part of Rule 3(1)(iv) , which relates to the opinion of the District Magistrate about the property being in unauthorized occupation, makes a mention only of son or daughter or legal heir of a senior citizen/ parent, but from this alone it cannot be concluded that eviction orders can be ordered only against son, daughter or legal heir. The other provisions of these Rules clearly militate against such a conclusion.

       First, the latter part of Rule 3(1)(iv) itself, which is in relation to issuance of show cause notice is not limited to son, daughter or legal heir, but requires issuance of such notice to “all persons concerned to show cause why an order of eviction should not be issued against them/him/her”.

       Similarly, as per Rule(3)(1) (v)(b) such notice shall “require all persons concerned, that is to say, all persons who are or may be, in occupation of, or claim interest in, the property/ premises” to show cause against the notice.

       In Rule 3(2) (i) the Eviction order from the property/ residential building of Senior Citizen/ Parent may be passed “directing that the property/ residential building shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof.”

       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.

       This Court in Balbir Kaur Vs. Presiding Officer-cum- SDM (CWP No.15477 of 2014 decided on June 29, 2015) after an analysis of various provisions of the 2007 Act held that the exercise of the right under Section 22 regarding protection of right of life or property of a Senior citizen has been conferred irrespective of the fact whether the person who threatens the life or property is related to the senior citizen or not. An application under Sections 21 and 22 against the daughter-in-law was held to be maintainable. (Paras 13 to 17, 20, 23 to 33)

       (ii) Maintenance and Welfare of Parents and Senior Citizens Act, 2007 — Section 21 and 22 — Protection of Women from Domestic Violence Act, 2005 — Section 12 and 17 — Petitioner, daughter-in-law of respondents 2 and 3, obtained an order for stay of dispossession from premises claiming to be her matrimonial home — Order passed by District Magistrate under the Act of 2007 in favour of respondents directing petitioner to vacate the house — Writ challenging order on plea that 2007 Act could not be used at cross purposes with 2005 Act and to annihilate the rights following therefrom — Question arose whether impugned order was sustainable in view of rights claimed by petitioners under the Act of 2005 ? — Though petitioner claimed that the house was Joint Hindu Family property but recorded showed that it was to be treated to be separate property of respondent No.2 — A residence belonging to mother-in-law or father-in-law would not be a shared household under Act 2005 and daughter-in-law would have no right of residence therein — Question of 2007 Act being used at cross purposes with 2005 Act did not arise.

       Held: In the light of these pleas, the question that squarely arises for consideration is whether the impugned order is sustainable in view of the rights claimed by the petitioner under the 2005 Act? Having thoughtfully considered the matter, I find it difficult to agree with the view of the Delhi High Court that the observations of the Hon’ble Supreme Court regarding ‘shared household’ have to be read as being limited to the fact situation obtaining in those cases. The Hon’ble Supreme Court in S.R. Batra’s case took note of the definition of ‘shared household’ in Section 2(s) and the rights under Section 17 and 19 of the 2005 Act and negatived the contention of the wife that a ‘shared household’ would include a household where the person aggrieved lives or had lived at any stage in a ‘domestic relationship’. It held that such an interpretation besides being absurd would lead to chaos. It also concluded that the definition of ‘shared household’ was not happily worded and that it had given it a sensible interpretation.

       Thus, it is difficult to agree that in S.R. Batra’s case the Hon’ble Supreme Court has not interpreted the term ‘shared household’ and that the decision cannot be relied on in a different fact situation. More so, when the observations were cited with approval by the Hon’ble Supreme Court in the subsequent case of Vimlaben Ajitbhai Patel (supra)

       In this context it will be useful to refer to a decision of the Division Bench of the Kerela High Court in A.R.Hashir’s case (supra). The Division Bench over-ruled the decision of the Learned Single Judge, which while distinguishing S.R.Batra’s case had held that if a woman along with her husband had stayed in a particular house either belonging to her mother-in-law or father-in-law after her marriage and if the marriage was arranged by the parents, it could be treated as a ‘shared household’ giving the wife a right to residence. The Division Bench observed that when the Supreme Court has laid down the principles based on interpretation of the definition of the Statute, High Court is not entitled to tinker with that interpretation and deviate from the dictum laid down by the Supreme Court.

       I am in agreement with the aforesaid view.

       Accordingly, it is to be held that the house in question which is owned by respondent No. 2 (father-in-law of the petitioner ) is not a “shared household” in which the petitioner has any right of residence which can be enforced under the 2005 Act.

       This being the position, no question of the 2007 Act being used at cross purposes with the 2005 Act arises in this case. (Paras 39, 53 to 58)

       Result: Petition disposed of.