IMPORTANT POINT
Section 3 of Senior Citizens Act, 2007 cannot be deployed to over-ride and nullify other protections in law, particularly that of a woman s right to a shared household under Sections 17 of DV Act 2005.

ORDER (ORAL)

By way of present petition, the petitioner herein has prayed for quashing and setting aside the order dated 21.11.2019 passed by the President, Maintenance Tribunal and Sub-Divisional Magistrate (East), Ahmedabad in Parent Act – Appeal No.23 of 2019.

2. The brief facts leading to the filing of the present petition read thus:—

2.1 The petitioner herein is daughter-in-law of the respondent No.1. The respondent No.1 had written a letter to the District Collector, Ahmedabad, which narrated that the respondent No.4 (husband of the petitioner herein and son of the respondent No.1) is residing illegally in the property of the respondent No.1 and requested the Collector to handover the possession of the property-in-question, which is a residential property being 1/A, 1st Floor, Bhartiyanagar Co. Op. Housing Society, Gordhanwadi Cross Road, Kankaria, Ahmedabad, from the respondent No.4 i.e. husband of the present petitioner, under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (as Amended in 2019). The respondent No.2 by order dated 21.11.2019 allowed the said application being Parent Act- Appeal No.23 of 2019. The relevant part of the said order dated 21.11.2019 reads thus: (true translation)

“The final order of Ld. Court shall be binding on the parties. The applicant states in his application that he is being harassed. I, the respondent, do not harass him. The applicant, at the instigation of his daughter Ushaben Makwana, wants to get the house vacated so as to make us homeless and to take possession of the said house to sell the same. The applicant files false cases against me due to instigation. Further, my wife Lataben has filed a case against me in the Metro Court. The respondent has stated by way of affidavit of neighbours residing in Bhartiynagar that it is not felt that respondent or his wife and his son or daughter has ever harassed applicant mentally or driven him out of the house. Ushaben Kapadiya, who happens to be daughter of Mohanbhai Maganbhai Makwana, wants to usurp the property situated in Bhartiynagar Society, Kankariya, Ahmedabad, and frequently instigates Mohanlal Makwana to get aforesaid property vacated by Vyomesh Makwana, Lataben and his children. Mohanlal Makwana has made this application before you at the instance of Ushaben Kapadiya. The same is declared by way of the affidavit. As matter being subjudice, you do not have jurisdiction in connection with the present application, and therefore, it is prayed to reject the application.

Order

The application of the applicant is allowed. In pursuance of the section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and in exercise of the powers conferred by Notification dated 19/05/2009 of Department of the Social Justice and Empowerment, Government of Gujarat, and this Department’ Circular No. VNP-10- 2009-CTS-11-(284997)-CHH dated 21/03/2013, respondent no. 1 Mr. Vyomesh Maganlal Makwana is hereby ordered to hand over the direct possession of vacant house to the applicant Mr. Mohanlal Maganlal Makwana and to pay Rs. 5000/- per month to him towards maintenance latest by fifth of every month.

If aggrieved by aforesaid order, appeal can be preferred to the District Magistrate, Ahmedabad within 60 days.

The applicant/respondents be informed of this order.

Pronounced in the open Court today on 21/11/2019.”

2.2 The petitioner herein being aggrieved by the said order, is constrained to approach this Court invoking Article 226 of the Constitution of India and has prayed for the following reliefs:—

“(A) This Hon’ble Court may be pleased to admit and allow the present petition;

(B) This Hon’ble Court may be pleased to issue a writ of mandamus or any other writ, order or direction, by quashing and setting aside the Order dated 21.11.2019 passed by the President, Maintenance Tribunal and Sub-Divisional Magistrate (East), Ahmedabad in Parent Act – Appeal No.23/2019 in the interest of justice and further be