S Vanitha vs Deputy Commissioner, Bengaluru Urban District & Ors

Dr. Dhananjaya Y Chandrachud, J

Index

A Background

B Submissions

C Legislative scheme: Senior Citizens Act 2007

D A womanâ€​s right of residence: safeguard against domestic violence

E Harmonising competing reliefs under the PWDV Act 2005 and Senior Citizens Act 2007

F Summation

A Background

1 The present dispute arises out of an application filed by the Second and Third respondents against the appellant, who is their daughter-in-law. The

Second and Third respondents are the parents of the Fourth respondent, who is the estranged spouse of the appellant. The Second and Third

respondents filed an application under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act 2007 [“Senior Citizens

Act 2007â€​], and inter alia, sought the appellant and her daughterâ€​s eviction from a residential house in North Bengaluru [“suit premisesâ€​].

2 The Assistant Commissioner, and the Deputy Commissioner in appeal, allowed the application under the Senior Citizens Act 2007 and directed the

appellant to vacate the suit premises. Aggrieved by this order, the appellant unsuccessfully pursued a writ proceeding under Article 226 of the

Constitution before a Single Judge, and in appeal before a Division Bench of the High Court of Karnataka. The Division Bench by its judgment dated

17 September 2019 held that the suit premises belonged to the mother-in-law (the Second respondent) of the appellant and the remedy of the appellant

for maintenance and shelter lies only against her estranged husband (the Fourth respondent). The Division Bench upheld the Order of the Deputy

Commissioner, and directed the appellant to vacate the suit premises before 31 December 2019. Challenging the jurisdiction of the authorities [The

Assistant Commissioner, Bengaluru North Sub-Division at Bengaluru and the Deputy Commissioner, Bengaluru District] to decree her eviction under

the Senior Citizens Act 2007, the appellant has moved this Court under Article 136 of the Constitution.

3 The appellant and the Fourth respondent were married on 30 May 2002. Soon thereafter, a matrimonial dispute arose between the parties. The

appellant alleges that she was harassed for dowry and even compelled to institute a suit for partition against her father in 2003 [OS 211 of 2003]

which she later withdrew, after her spouse allegedly deserted her to be in a relationship with another woman. The subject matter of the controversy is

a residential house situated at Gangondonahalli, Dasanapura, Hobli, Bengaluru North Taluk. The land was purchased by the Fourth respondent on 2

May 2002, a few months before the appellant married him. The appellant alleges that her father had financed a portion of this purchase.

4 On 5 October 2006, the Fourth respondent sold the land to his father - the Third respondent. The transaction of sale between the father and the son

was for the same consideration of Rs.1.19 lacs, as was paid by the Fourth respondent for the original purchase of the property in 2002. By then, the

appellant and the Fourth respondent had a daughter. In 2009, the Fourth respondent instituted a petition for divorce [MC 22 of 2009] under Section

13(1)(ia) and (ib) of Hindu Marriage Act 1955 before the Senior Civil Judge and Judicial Magistrate, First Class, Nelamangala [“Trial Judgeâ€].

The Third respondent, following the purchase of the property and after constructing a house, gifted it to his spouse - the Second respondent, on 19 July

2010. Soon thereafter, on 17 August 2010, the Second respondent instituted a suit against the appellant [OS 312 of 2010] before the JMFC,

Nelamangala seeking a permanent injunction restraining the appellant from interfering with the possession of the suit property. The suit is pending. On

5 December 2013, the petition for divorce was allowed by the Trial Judge and the marriage between the appellant and the Fourth respondent was

dissolved. On 19 March 2014, the appellant instituted a proceeding [Criminal Miscellaneous 114 of 2014 before the Civil Judge (Jr. Dn.), JMFC

Nelamangala] for maintenance. She also filed an appeal before the High Court of Karnataka [MFA 3968 of 2014] against the dissolution of her

marriage by the Trial Judge. The proceedings for divorce and maintenance are also pending.

5 In 2015, the Third and Fourth respondents invoked the provisions of the Senior Citizens Act 2007 by instituting an application before the Assistant

Commissioner, Bengaluru North Sub Division. Their son (the Fourth respondent) and the appellant were impleaded as respondents to the petition

[Petition 31 of 2015]. The reliefs sought were:

(i) Eviction of the appellant from the suit premises where she was residing;

(ii) A direction to the Fourth respondent to pay an amount of Rs.15,000 to the parents by way of monthly maintenance; and

(iii) A direction to the appellant and fourth respondent to pay an amount quantified at Rs. 25,000 towards legal expenses.

The appellant filed an objection to the petition filed under the Senior Citizens Act 2007, alleging it to be a malicious proceeding that was instituted with

the sole intent to evict her from the suit premises. The appellant also claimed that the proceedings were collusive in nature and an attempt by the

Second and Third respondents and her estranged spouse (the Fourth respondent) to evict her from her matrimonial home. The appellant specifically

raised an objection to the jurisdiction of the authorities to entertain the proceedings seeking her eviction from the premises. She submitted that while

the Senior Citizens Act 2007 provides for the maintenance of a senior citizen or a parent, there is no provision envisaging an order of eviction, and that

the authorities had no jurisdiction to direct her removal from the premises.

6 The Assistant Commissioner by an Order dated 25 June 2015, held that the residential house was the self-acquired property of the Third respondent

which he subsequently gifted to the Second Respondent. The appellant was residing in the property, but was held to have no right or authority. The

appellantâ€s plea for maintenance could (in the view of the Assistant Commissioner) only be raised against the Fourth respondent. Therefore, the

Assistant Commissioner allowed the petition by directing (i) the Fourth respondent to pay a monthly maintenance of Rs.10,000 to his parents; and (ii)

the appellant to vacate the premises.

7 The appeal filed by the appellant under Section 28 of the Hindu Marriage Act 1955 against the decree for dissolution of marriage, was allowed by a

Division Bench of the Karnataka High Court on 14 January 2016. The High Court set aside the order of the Trial Court and remanded the

proceedings to the jurisdictional Family Court, for passing fresh orders after hearing the parties. During the pendency of the appeal, the Fourth

respondent entered into a marriage with another woman. On remand, the proceedings for divorce and the application for maintenance are pending

disposal.

8 On 29 February 2016, the Deputy Commissioner, acting as the appellate authority under the Senior Citizens Act 2007, dismissed the appeal filed by

the appellant as well as a companion appeal by the Fourth respondent against the order of the Assistant Commissioner. The order requiring the

appellant to vacate the suit premises was thereby confirmed. The appellant challenged the order passed by the Deputy Commissioner in proceedings

under Article 226 of the Constitution. The Single Judge of the Karnataka High Court, by a judgement dated 18 June 2019, held that the suit premises

have been transferred by the Third respondent to his wife - the Second respondent - by a registered gift deed dated 19 July 2010. The Single Judge

noted the contention of the Second and Third respondents that following a matrimonial dispute, their son (the Fourth respondent) had left the house

after which the appellant had ousted them on 12 August 2010 and they are currently living in their “native placeâ€. In light of the fact that the

marriage between the appellant and Fourth respondent had been dissolved by the Trial Judge, the Single Judge held that the appellant had no right over

the suit premises and her claim for maintenance could only by asserted against the Fourth respondent. Though, the appellant has specifically

questioned the jurisdiction of the authorities under the Senior Citizens Act 2007 to order her eviction, the Single Judge did not address the submission.

Aggrieved by the order of the Single Judge, the appellant challenged the order in a writ appeal. Once again, it was urged in the course of the hearing

that the proceedings which were instituted under the Senior Citizens Act 2007 were only a device to oust the appellant and that the authorities had no

jurisdiction to direct her eviction. The Division Bench reiterated the views of the Single Judge, and held that the appellant had no cause of action

against the Second and Third respondents who owned the suit premises. It held that the appellantâ€s claim for maintenance and shelter would lie only

against the Fourth respondent. In dealing with the preliminary objection as regards the jurisdiction of the Assistant Commissioner to direct eviction, the

Division Bench merely observed that it was not in agreement with the submission that “the Assistant Commissioner was powerless to pass an

order directing dispossession of the appellantâ€​.

B Submissions

9 The appellant, aggrieved by the judgement of the Division Bench of the High Court, has preferred the present special leave petition. Mr Yatish

Mohan, learned Counsel appearing on behalf of the appellant submitted that:

(i) The appellant is residing in her matrimonial home as the lawfully wedded spouse of the Fourth respondent and she cannot be evicted from her

shared household, in view of the protection offered by Section 17 of the Protection of Women from Domestic Violence Act 2005 [“PWDV Act

2005â€​];

(ii) The proceeding under Sections 3 and 4 of the Senior Citizens Act 2007 was filed by her mother-in-law and father-in-law in connivance with her

estranged spouse to deprive her of her matrimonial home;

(iii) The finding of the Division Bench on the appellantâ€s current residential status was based on a fraudulent set up. The alleged postal cover was

dispatched on 21 June 2018, during the pendency of the proceedings before the Single Judge, and merely indicated a postal endorsement (“no such

personâ€​) as it arrived when nobody was present at home to receive it;

(iv) The decree for the dissolution of marriage which was passed against the appellant by the Trial Judge on 5 December 2013 has been set aside by

the High Court on 14 January 2016 and the proceedings have been remanded back to the jurisdictional Family Court for a disposal afresh. Hence, as

of date, the appellant continues to be in a lawful relationship of marriage with the Fourth respondent and she has no other place to live except the suit

premises, with her minor daughter;

(v) The provisions of the Senior Citizens Act 2007 have been manipulated to defeat the rights of the appellant. The manner in which the premises

were transferred by the spouse of the appellant to his father and the gift deed thereafter to mother-in-law of the appellant are indicative of an attempt

to misuse the provisions of the Act, to defeat the claims of the appellant; and

(vi) In asserting her right under Section 17 of the PWDV Act 2005, the appellant relies on the decision of this Court in Satish Chander Ahuja vs Sneha

Ahuja Civil Appeal No. 2483 of 2020, decided on 15 October 2020 . In sum and substance, it has been urged that the authorities constituted under the

Senior Citizens Act 2007 had no jurisdiction to order the eviction of the appellant. Moreover, the proceedings have been utilised to secure the eviction

of the appellant so as to deny her claim of a right to reside in the shared household under the PWDV Act 2005.

10 On the other hand, while seeking to rebut the submissions of the appellant, Mr Rajesh Mahale, learned Counsel appearing on behalf of the Second

and Third respondents submits that:

(i) Both the Second respondent (who is 72 years old) and the Third respondent (who is 82 years old) are senior citizens;

(ii) The suit premises was constructed by the Third respondent- the father-in-law of the appellant, on a plot of land admeasuring 1200 square feet

situated in Gangondanahalli, Bengaluru North Taluk. This was subsequently gifted to the Second respondent, the mother-in-law of the appellant;

(iii) The appellant has been concurrently found to have ousted the Second and Third respondents from the property belonging to them and to have

illegally entered into possession; and

(iv) The Second and Third respondents filed an application under the Senior Citizens Act 2007 before the Assistant Commissioner for evicting the

appellant and for the restoration of their possession, which has been allowed by the authorities and the High Court concurrently.

11 Dealing with the issue of jurisdiction, Mr Mahale submitted that

(i) The Tribunal constituted under the Senior Citizens Act 2007 has the jurisdiction to pass appropriate orders for protecting the life and property of

parents and senior citizens, including orders of eviction;

(ii) The intent and object of the Act is to provide for an inexpensive and speedy relief to parents and senior citizens;

(iii) While Chapter II entitles parents and senior citizens to apply for orders to provide monetary relief for sustenance and maintenance, Chapter V

contains provisions for protecting the life and property of parents and senior citizens;

(iv) The Tribunal constituted under the Act has been entrusted to issue orders after a summary enquiry, for effective maintenance of parents and

senior citizens including relief against neglect, harassment and protection of the property of senior citizens;

(v) Section 23 confers two separate and distinct rights:

(a) Section 23(1) empowers the Tribunal to declare a transfer of property by a senior citizen void, where the transfer was conditioned upon providing

basic amenities and physical needs to a senior citizen, where the transferee fails to provide them;

(b) Section 23(2) recognises a pre-existing right of a senior citizen to receive maintenance out of an estate and secures the right of making it

enforceable against a transferee who had notice of the right;

(vi) The expression “maintenance†in Section 2(b) includes provision for residence and a right to reside can be enforced by a senior citizen, if the

property is transferred without making a suitable provision for maintenance; and

(vii) Though the Senior Citizens Act 2007 does not contain an express provision enabling the Tribunal to pass eviction orders, the power has to be read

within its jurisdiction by necessary implication. Such an interpretation, it has been urged, would be purposive, in order to effectuate the provisions of

the Act. The contrary view would cause hardship to senior citizens who would be powerless, despite being forcibly dispossessed of their means of

sustenance. Parliament has empowered the State governments to authorise local authorities to take remedial measures for protecting the life and

property of senior citizens and it would be incorrect to limit the relief that can be granted by a Tribunal only to monetary relief. Relegating a senior

citizen to a civil court for the recovery of their property would result in defeating the provisions of the Act. Hence, it has been urged that such an

interpretation should not be adopted.

C Legislative scheme: Senior Citizens Act 2007

12 The rival submissions will now be analysed.

13 Our analysis of the rival submissions must begin with explaining and interpreting the salient feature of the Senior Citizens Act 2007 which have a

bearing on the present controversy. “Maintenance†is defined in an inclusive manner to incorporate, among other things, provisions for food,

clothing, residence, medical assistance and treatment. In defining the expression “propertyâ€, the legislation uses broad terminology encompassing

“property of any kind†and to include “rights or interests in such property†. Overriding effect is given to the provisions of the enactment by

Section 3. Besides the definitions which are comprised in Chapter I, Chapter II is titled “Maintenance of Parents and Senior Citizens†while

Chapter V is titled “Protection of Life and Property of Senior Citizenâ€. The Statement of Objects and Reasons indicates the rationale for the

enactment of the law:

2(b) “maintenanceâ€​ includes provisions for food, clothing, residence and medical attendance and treatment

2(f) “property†means property of any kind, whether movable or immovable, ancestral or self acquired, tangible or intangible and includes rights or

interests in such property;

Act to have overriding effect.â€"The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any

enactment other than this Act, or in any instrument having effect by virtue of any enactment other than this Act.

“Traditional norms and values of the Indian society laid stress on providing care for the elderly. However, due to withering of the joint family

system, a large number of elderly are not being looked after by their family. Consequently, many older persons, particularly widowed women are now

forced to spend their twilight years all alone and are exposed to emotional neglect and to lack of physical and financial support. This clearly reveals

that ageing has become a major social challenge and there is a need to give more attention to the care and protection for the older persons. Though

the parents can claim maintenance under the Code of Criminal Procedure, 1973, the procedure is both time - consuming as well as expensive. Hence,

there is a need to have simple, inexpensive and speedy provisions to claim maintenance for parents.â€​

Briefly reviewed, Section 4 recognises an entitlement of maintenance to inhere in parents and senior citizens. Section 5 lays down the procedure by

which an application for maintenance can be made. Section 6 elucidates provisions governing jurisdiction and procedure. Section 7 contains stipulations

for the constitution of a Maintenance Tribunal. Section 8 envisages a summary procedure for making an inquiry. Section 11 provides for the

enforcement of an order of maintenance.

14 A senior citizen, including a parent, who is unable to maintain themselves from their own earning or out of property owned by them, is entitled to

make an application under Section 4(i). A parent or grand-parent may make an application against one or more of their children. A childless senior

citizen can make an application against a relative specified in Section 2(g). Section 4 recognises a corresponding obligation on the part of the children

or relative to maintain a senior citizen, extending to such needs as would enable them to lead a normal life. In the case of a relative, the obligation is if

they are in possession of the property of the senior citizen or would inherit property from them. Hence, in the case of the children of a senior citizen,

the obligation to maintain a parent is not conditional on being in possession of property of the senior citizen or upon a right of future inheritance.

Maintenance of parents and senior citizens.â€"(1) A senior citizen including parent who is unable to maintain himself from his own earning or out of

the property owned by him, shall be entitled to make an application under section 5 in case ofâ€

(i) parent or grand-parent, against one or more of his children not being a minor;

(ii) a childless senior citizen, against such of his relative referred to in clause (g) of section 2.

(2) The obligation of the children or relative, as the case may be, to maintain a senior citizen extends to the needs of such citizen so that senior citizen

may lead a normal life.

(3) The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be,

so that such parent may lead a normal life.

(4) Any person being a relative of a senior citizen and having sufficient means shall maintain such senior citizen provided he is in possession of the

property of such citizen or he would inherit the property of such senior citizen:

Provided that where more than one relatives are entitled to inherit the property of a senior citizen, the maintenance shall be payable by such relative in

the proportion in which they would inherit his property.

15 The procedure to be followed by a Maintenance Tribunal (constituted under Section 7) is of a summary nature as provided in Section 8(1) and with

all the powers of a Civil Court, as provided in Section 8(2). Under Sub-section (1) of Section 9, where a senior citizen is not able to maintain himself or

herself and the children or relatives, as the case may be, neglect or refuse to maintain them, the Tribunal is empowered to order them to make a

monthly allowance at such monthly rate for the maintenance of the senior citizen, as the Tribunal may deem fit18. The amount of the monthly

allowance can be altered inter alia upon a change in circumstances, under Section 10.

Summary procedure in case of inquiry.â€

(1)In holding any inquiry under section 5, the Tribunal may, subject to any rules that may be prescribed by the State Government in this behalf, follow

such summary procedure as it deems fit.

(2) The Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses

and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Tribunal

shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974)

Order for maintenance.â€

(1) If children or relatives, as the case may be, neglect or refuse to maintain a senior citizen being unable to maintain himself, the Tribunal may, on

being satisfied of such neglect or refusal, order such children or relatives to make a monthly allowance at such monthly rate for the maintenance of

such senior citizen, as the Tribunal may deem fit and to pay the same to such senior citizen as the Tribunal may, from time to time, direct.

Alteration in allowance.â€

(1) On proof of misrepresentation or mistake of fact or a change in the circumstances of any person, receiving a monthly allowance under section 9,

for the maintenance ordered under that section to pay a monthly allowance for the maintenance, the Tribunal may make such alteration, as it thinks fit,

in the allowance for the maintenance. (2) Where it appears to the Tribunal that, in consequence of any decision of a competent Civil Court, any order

made under section 9 should be cancelled or varied, it shall cancel the order or, as the case may be, vary the same accordingly

16 Of particular relevance to the facts of the case at hand is Chapter V, which enacts provisions for protecting the life and property of a senior

citizen. Section 23 proceeds in the following terms:

“23. Transfer of property to be void in certain circumstances.â€"(1) Where any senior citizen who, after the commencement of this Act, has

transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical

needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed

to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.

(2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive

maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the

transferee for consideration and without notice of right.

(3) If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the

organisation referred to in Explanation to sub-section (1) of section 5.â€​

Sub-section (1) of Section 23 covers a situation where property has been transferred after the enactment of the legislation by a senior citizen (by gift

or otherwise) subject to the condition that the transferee must provide the basic amenities and physical needs to the transferor. In other words, Sub-

section (1) deals with a situation where the transfer of the property is accompanied by a specific condition to provide for the maintenance and needs

of a senior citizen. In such an event, if the transferee fails to provide the maintenance and physical needs, the transfer of the property is deemed to

have been vitiated by fraud, coercion or under undue influence. Sub-section 1, in other words, creates a deeming fiction of the law where the transfer

of the property is subject to a condition and the condition of providing for maintenance and the basic needs of a senior citizen is not fulfilled by the

person upon whom the obligation is imposed. Then, at the option of the transferor, the transfer can be declared as void by the Tribunal. On the other

hand, Sub-section (2) of Section 23 envisages a situation where a senior citizen has a right to receive maintenance out of an estate. Where such a

right exists, the right of maintenance can be enforced where the estate or a portion of it, is transferred against a transferor who has notice of the right;

or if the transfer is gratuitous. The right however cannot be enforced against a transferee for consideration and without notice of the right. Now, Sub-

section (1) of Section 23 envisages a situation where the transfer of property is by the senior citizen. This is evident from the language of sub-Section

(1) namely “where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property…â€. On

the other hand, sub-Section (2) of Section 23 does not confine itself to a transfer by a senior citizen, unlike sub-Section (1). Sub-Section (2) uses the

expression “such estate or part thereof is transferredâ€. Where a senior citizen has a right to receive maintenance out of the estate and any part of

it is transferred, sub-section 2 permits the enforcement of the right to receive maintenance out of the estate against a transferee with notice or against

a gratuitous transferee. Sub-Section (2), in other words, may cover a situation where the transfer of the estate (in which a senior citizen has a right to

maintenance) is by a third party, in which event, the provision provides the right to enforce the claim of maintenance against such transferee (other

than those transferees for consideration or without notice of the pre-existing right). Arguably, the language of sub-section (2) is broad enough to also

cover a situation where the transfer is by the senior citizen, in which event the transferee with notice of the right; or a gratuitous transferee, can be

made subject to the enforcement of the right against the transferred estate. Another distinction between sub-Section (1) and sub-Section (2) of

Section 23 must also be noticed. Under sub-Section (1), where a transfer has been made by a senior citizen subject to the condition that the transferee

will provided for basic amenities or physical needs of the transferor and if there is a failure of the transferee to fulfil the condition, two consequences

follow: (i) the transfer of property shall be deemed to have been made by fraud or coercion or under undue influence; and (ii) the transfer shall, at the

option of the transferor, be declared to be void by the Tribunal. The deeming consequence which is provided for in sub-Section (1) is not incorporated

in sub-Section (2). Sub-Section (2), in contradistinction, stipulates that the right to receive maintenance can be enforced against a gratuitous transferee

or a transferee with notice of the pre-existing right of a citizen to receive maintenance out of an estate notwithstanding who is the transferee of the

estate. In keeping with the salutary public purpose underlying the enactment of the legislation, the expression “transfer†would include not only the

absolute transfer of property but also transfer of a right or interest in the property. This would also be in consonance with the provisions of Section

2(f) which defines the expression property to include “rights or interests in such propertyâ€. The expression “transfer†not having been defined

specifically by the legislation, it must receive an interpretation which would advance the beneficent object and purpose of its provisions. Sub-section

(2) of section 23 speaks of the enforcement of the “right to receive maintenance†which is more comprehensive in its nature, than merely

enforcing an order for maintenance passed under Section 9 of the Act.

17 The substance of sub-Section (2) of section 23, as submitted by the Second and Third respondents, is that the Tribunal had the jurisdiction to pass

an order directing the eviction of the appellant who is their daughter-in-law. According to the submission, the power to order eviction is implicit in the

provision guaranteeing a “right to receive maintenance out of an estateâ€​ and the enforcement of that right. In supporting the submission, they have

referred to the view which has been taken by several High Courts, indicating that the Tribunal may order the eviction of a child or a relative from the

property of a senior citizen, where there has been a breach of the obligation to maintain the senior citizen. The Tribunal under the Senior Citizens Act

2007 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. Eviction, in other words would be an incident of the enforcement of the right to maintenance and protection. However, this remedy can be

granted only after adverting to the competing claims in the dispute. It is necessary to recapitulate that the situation in the present case is that the

eviction was sought of the daughter-in-law, i.e. the appellant. The land, where the house has been constructed, was originally purchased by the son of

the applicants who are seeking eviction of their daughter-in-law. The son had purchased the property a few months before his marriage to the

appellant. He had subsequently transferred the property by a registered sale deed to his father and the fact that it was for the same consideration after

the lapse of several years is of significance. The father, in turn, executed a gift deed in favor of his spouse. The appellant has asserted that she had

been living in the house, as her matrimonial residence, until the application was filed. Her spouse has (according to her) deserted her and their minor

daughter and left them in the lurch. The electricity to the premises was disconnected for non-payment of dues. Their daughter has sought admission to

an engineering degree course however her father- Fourth respondent has not provided any financial support. The transfers which took place cannot be

viewed in isolation from the context of the on-going matrimonial dispute which has taken place. The issue is whether the appellant as the daughter-in-

law and the minor daughter could have been ousted in the above manner.

D A woman’s right of residence: safeguard against domestic violence

18 In arriving at a decision of this issue it becomes necessary to elucidate the right, which is asserted by the appellant. The appellant has submitted

that the premises constitute a “shared household†within the meaning of Section 2(s) of the PWDV Act 2005. Section 2(s) defines the expression

“shared householdâ€​ in the following terms:

“(s) ""shared household"" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or

along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or

owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title,

interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the

respondent or the aggrieved person has any right, title or interest in the shared household;â€​

(emphasis supplied)

Section 19 contemplates the passing of a residence order by the Magistrate on an application under sub-Section (1) of Section 12 of the PWDV Act

2005. The essence of the submission of the appellant is that the order of eviction which has been made in the exercise of the summary powers

entrusted by the Senior Citizens Act 2007 would completely displace the appellant from seeking recourse to her remedies under Section 12(1) read

with Section 19 of the PWDV Act 2005 in respect of the premises, which she claims to be her shared household. The definition of the expression

“shared household†in Section 2(s) uses the familiar legislative formula of a “means and includes†definition. Where the definition of an

expression in an enactment adopts a “means and includes†stipulation, it is intended to be exhaustive. The “means†part of the definition

indicates what would normally fall within the ambit of the expression, while the “includes†element gives it an extended meaning. Together they

indicate that the legislature has provided for an exhaustive enumeration of what falls within the ambit of the definition. Justice G P Singh in his seminal

treatise on the Principles of Statutory Interpretation [Lexis Nexis, 14th Ed. Page 197-199] observes:

Residence orders-

1) While disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place,

pass a residence order - (a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person

from the shared household, whether or not the respondent has a legal or equitable interest in the shared household; (b) directing the respondent to

remove himself from the shared household; (c) restraining the respondent or any of his relatives from entering any portion of the shared household in

which the aggrieved person resides; (d) restraining the respondent from alienating or disposing off the shared household or encumbering the same; (e)

restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or (f) directing the respondent to

secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the

circumstances so require: Provided that no order under clause (b) shall be passed against any person who is a woman.

“The Legislature has the power to define a word even artificially. So the definition of a word in the definitions section may either be restrictive of

its ordinary meaning or it may be extensive of the same. When a word is defined to “mean†such and such, the definition is prima facie restrictive

and exhaustive.â€​

On the other hand, “includesâ€​ is titled so as to comprehend an extensive meaning:

“Whereas, where the word defined is declared to “include†such and such, the definition is prime facie extensive. When by an amending Act,

the word “includes†was substituted for the word “means†in a definitions section, it was held that the intention was to make it more

extensive…..â€​

The use of the expression “means†is intended to make it exhaustive. On the other hand, the use of the expression “includes†is intended to

make it more extensive. The legislature by using an expression “includesâ€​ evinces, notwithstanding the meaning of the phrase, an intention:

“to enlarge the meaning of the words or phrases occurring in the body of the statuteâ€​.

“Includesâ€​ is utilized so as to comprehend:

“not only such things as they signify according to their nature and import but also those things which the interpretation clause declares that they

shall includeâ€​

However, when a statutory definition incorporates the “means and includesâ€​ approach, the intent is to make the definition exhaustive.

“Further, a definition may be in the form of “means and includesâ€​, where again the definition is exhaustive.â€​

[See in this context the decisions in Jagir Singh vs State of Bihar; AIR 1976 SC 997, pp. 999, 1001 :1976 SCC (Tax) 204 : (1976) 2 SCC 94;2

Kasilingam vs P.S.G. College of Technology, supra, Bharat Coop. Bank (Mumbai) Ltd. vs Coop. Bank Employees Union, (2007) 4 SCC 685 (para 23)

: (2007) 4 JT 573 : (2007) 2 LLJ 825 : AIR 2007 SC 232;0 Paul Enterprise vs Rajib Chatterjee and Company, (2009) 3 SCC 709 para 28 : (2009) 1 JT

632]â€​

19 The definition of “shared household†in Section 2(s) of the PWDV Act 2005 is exhaustive. This has also recently been held to be so, by a

judgment of a three judge bench of this Court, delivered by Justice Ashok Bhushan, in Satish Chandra Ahuja vs Sneha Ahuja Civil Appeal No. 2483 of

2020, decided on 15 October 2020 [Satish Chandra].

The definition of the expression “shared household†in Section 2(s) of the PWDV Act of 2005 is in two parts: in the means part of the definition

the expression “shared householdâ€​ means

(i) A household where the person aggrieved lives in a domestic relationship either singly or along with the respondent or;

(ii) At any stage has lived in a domestic relationship either singly or along with the respondent.

This is followed by an inclusive element, so as to cover such a household (i) whether owned or tenanted either jointly by the aggrieved person and the

respondent or (ii) owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have

any right, title or equity. This has also been given an inclusive or extended meaning, which extends to a household which may belong to the joint family

of which a respondent is a member, irrespective of whether the respondent or the aggrieved person have any right, title or interest in the shared

household. The last part of the inclusive definition is intended to extend the meaning of a shared household to a situation where the household in fact

belongs to a joint family, of which the respondent is a member. The legislature has made it clear that though neither the respondent, nor the aggrieved

person in such case may have a right, title or interest in the shared household it would irrespective fall within the ambit of the definition.

The meaning which has been attributed above to the plain language of the definition is in consonance with the judgment of the three judge Bench in

Satish Chandra where it has been explained as follows:

“55…the definition can be divided in two parts, first, which follows the word “means†and second which follows the word “includesâ€. The

second part which follows “includesâ€​ can be further sub-divided in two parts. The first part reads “shared household means a household where

the person aggrieved has lived or at any stage has lived in a domestic relationship either singly or along with the respondentâ€. Thus, first condition to

be fulfilled for a shared household is that person aggrieved lives or at any stage has lived in a domestic relationship. The second part subdivided in two

parts is- (a) includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent and owned or tenanted by

either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and

(b)includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the

aggrieved person has any right, title or interest in the shared household. In the above definition, two expressions, namely, “aggrieved person†and

“respondentâ€​ have occurred. From the above definition, following is clear:-

(i) it is not requirement of law that aggrieved person may either own the premises jointly or singly or by tenanting it jointly or singly; (ii) the household

may belong to a joint family of which the respondent is a member irrespective of whether the respondent or the aggrieved person has any right, title or

interest in the shared household; and (iii) the shared household may either be owned or tenanted by the respondent singly or jointly.â€​

After noticing the ambit of the definition of “shared household†and the object and purpose of the PWDV Act of 2005, Justice Ashok Bhushan

noted:

“Section 2(s) read with Sections 17 and 19 of Act, 2005 grants an entitlement in favour of the woman of the right of residence under the shared

household irrespective of her having any legal interest in the same or not.â€​

The expression “respondentâ€​ has been defined in section 2 (q) of the PWDV Act of 2005 in the following terms:

“(q) ""respondent"" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the

aggrieved person has sought any relief under this Act:â€​

Noticing the above definition and the provisions of section 2(s), the Court in Satish Chandra held:

“64…The definition of shared household as noticed in Section 2(s) does not indicate that a shared household shall be one which belongs to or taken

on rent by the husband. We have noticed the definition of “respondent†under the Act. The respondent in a proceeding under Domestic Violence

Act can be any relative of the husband. In [the] event, the shared household belongs to any relative of the husband with whom in a domestic

relationship the woman has lived, the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household.â€​

The Bench concluded that:

“84…The definition of shared household given in Section 2(s) cannot be read to mean that shared household can only be that household which is

household of the joint family of which husband is a member or in which husband of the aggrieved person has a share.â€​

E Harmonising competing reliefs under the PWDV Act 2005 and Senior Citizens Act 2007

20 Section 36 [36-Act not in derogation of any other law- The provisions of this Act shall be in addition to, and not in derogation of the provisions of

any other law, for the time being in force] of the PWDV Act 2005 stipulates that the provisions of the Act shall be in addition to, and not in derogation

of, the provisions of any other law for the time being in force. This is intended to ensure that the remedies provided under the enactment are in

addition to other remedies and do not displace them. The Maintenance and Welfare of Parents and Senior Citizens Act 2007 is undoubtedly a later

Act and as we have noticed earlier, Section 3 stipulates that its provisions will have effect, notwithstanding anything inconsistent contained in any other

enactment. However, the provisions of Section 3 of the Senior Citizens Act 2007 giving it overriding force and effect, would not by themselves be

conclusive of an intent to deprive a woman who claims a right in a shared household, as under the PWDV Act 2005. Principles of statutory

interpretation dictate that in the event of two special acts containing non obstante clauses, the later law shall typically prevail. [Solidaire India Ltd. v.

Fairgrowth Financial Services Ltd, (2001) 3 SCC 71 ]In the present case, as we have seen, the Senior Citizenâ€s Act 2007 contains a non obstante

clause. However, in the event of a conflict between special acts, the dominant purpose of both statutes would have to be analyzed to ascertain which

one should prevail over the other. The primary effort of the interpreter must be to harmonize, not excise. A two-judge bench of this Court, in the case

of Bank of India v. Ketan Parekh (2008) 8 SCC 148, in examining a similar factual scenario, observed that:

“28. In the present case, both the two Acts i.e. the Act of 1992 and the Act of 1993 start with the non obstante clause. Section 34 of the Act of

1993 starts with non obstante clause, likewise Section 9-A (sic 13) of the Act of 1992. But incidentally, in this case Section 9-A came subsequently

i.e. it came on 25-1-1994. Therefore, it is a subsequent legislation which will have the overriding effect over the Act of 1993. But cases might arise

where both the enactments have the non obstante clause then in that case, the proper perspective would be that one has to see the subject and the

dominant purpose for which the special enactment was made and in case the dominant purpose is covered by that contingencies, then notwithstanding

that the Act might have come at a later point of time still the intention can be ascertained by looking to the objects and reasons. However, so far as

the present case is concerned, it is more than clear that Section 9-A of the Act of 1992 was amended on 25-1-1994 whereas the Act of 1993 came in

1993. Therefore, the Act of 1992 as amended to include Section 9-A in 1994 being subsequent legislation will prevail and not the provisions of the Act

of 1993.â€​

(emphasis supplied)

This principle of statutory interpretation was also affirmed by a three-judge bench of this Court in Pioneer Urban Land and Infrastructure Ltd. v.

Union of India (2019) 8 SCC 416. In the present case, Section 36 of the PWDV Act 2005, albeit not in the nature of a non-obstante clause, has to be

construed harmoniously with the non obstante clause in Section 3 of the Senior Citizens Act 2007 that operates in a separate field.

21 In this case, both pieces of legislation are intended to deal with salutary aspects of public welfare and interest. The PWDV Act 2005 was intended

to deal with the problems of domestic violence which, as the Statements of Objects and Reasons sets out, “is widely prevalent but has remained

largely invisible in the public domainâ€. The Statements of Objects and Reasons indicates that while Section 498A of the Indian Penal Code created a

penal offence out of a womanâ€s subjection to cruelty by her husband or relative, the civil law did not address its phenomenon in its entirety. Hence,

consistent with the provisions of Articles 14, 15 and 21 of the Constitution, Parliament enacted a legislation which would “provide for a remedy

under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic

violence in the societyâ€​. The ambit of the Bill has been explained thus:

“4. The Bill, inter alia, seeks to provide for the following:-

(i) It covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are

related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living

together as a joint family are also included. Even those women who are sisters, widows, mothers, single women, or living with the abuser are entitled

to legal protection under the proposed legislation. However, whereas the Bill enables the wife or the female living in a relationship in the nature of

marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female

relative of the husband or the male partner to file a complaint against the wife or the female partner.

(ii) It defines the expression “domestic violence†to include actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic.

Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.

(iii) It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared

household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the

Magistrate.

(iv) It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act

of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting to

communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide

her assistance from the domestic violence.

(v) It provides for appointment of Protection Officers and registration of non-governmental organisations as service providers for providing assistance

to the aggrieved person with respect to her medical examination, obtaining legal aid, safe shelter, etc.â€​

The above extract indicates that a significant object of the legislation is to provide for and recognize the rights of women to secure housing and to

recognize the right of a woman to reside in a matrimonial home or a shared household, whether or not she has any title or right in the shared

household. Allowing the Senior Citizens Act 2007 to have an overriding force and effect in all situations, irrespective of competing entitlements of a

woman to a right in a shared household within the meaning of the PWDV Act 2005, would defeat the object and purpose which the Parliament sought

to achieve in enacting the latter legislation. The law protecting the interest of senior citizens is intended to ensure that they are not left destitute, or at

the mercy of their children or relatives. Equally, the purpose of the PWDV Act 2005 cannot be ignored by a sleight of statutory interpretation. Both

sets of legislations have to be harmoniously construed. Hence the right of a woman to secure a residence order in respect of a shared household

cannot be defeated by the simple expedient of securing an order of eviction by adopting the summary procedure under the Senior Citizens Act 2007.

22 This Court is cognizant that the Senior Citizens Act 2007 was promulgated with a view to provide a speedy and inexpensive remedy to senior

citizens. Accordingly, Tribunals were constituted under Section 7. These Tribunals have the power to conduct summary procedures for inquiry, with

all powers of the Civil Courts, under Section 8. The jurisdiction of the Civil Courts has been explicitly barred under Section 27 of the Senior Citizens

Act 2007. However, the over-riding effect for remedies sought by the applicants under the Senior Citizens Act 2007 under Section 3, cannot be

interpreted to preclude all other competing remedies and protections that are sought to be conferred by the PWDV Act 2005. The PWDV Act 2005 is

also in the nature of a special legislation, that is enacted with the purpose of correcting gender discrimination that pans out in the form of social and

economic inequities in a largely patriarchal society. In deference to the dominant purpose of both the legislations, it would be appropriate for a Tribunal

under the Senior Citizens Act, 2007 to grant such remedies of maintenance, as envisaged under S.2(b) of the Senior Citizens Act 2007 that do not

result in obviating competing remedies under other special statutes, such as the PWDV Act 2005. Section 26 of the PWDV Act empowers certain

reliefs, including relief for a residence order, to be obtained from any civil court in any legal proceedings. Therefore, in the event that a composite

dispute is alleged, such as in the present case where the suit premises are a site of contestation between two groups protected by the law, it would be

appropriate for the Tribunal constituted under the Senior Citizens Act 2007 to appropriately mould reliefs, after noticing the competing claims of the

parties claiming under the PWDV Act 2005 and Senior Citizens Act 2007. Section 3 of the Senior Citizens Act, 2007 cannot be deployed to over-ride

and nullify other protections in law, particularly that of a womanâ€s right to a “shared household†under Section 17 of the PWDV Act 2005. In

the event that the “aggrieved woman†obtains a relief from a Tribunal constituted under the Senior Citizens Act 2007, she shall duty-bound to

inform the Magistrate under the PWDV Act 2005, as per Sub-section (3) of Section 26 of the PWDV Act 2005. This course of action would ensure

that the common intent of the Senior Citizens Act 2007 and the PWDV Act 2005- of ensuring speedy relief to its protected groups who are both

vulnerable members of the society, is effectively realized. Rights in law can translate to rights in life, only if there is an equitable ease in obtaining their

realization.

Relief in other suits and legal proceedings. â€"(1) Any relief available under sections 18, 19,20, 21 and 22 may also be sought in any legal

proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was

initiated before or after the commencement of this Act.

(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such

suit or legal proceeding before a civil or criminal court.

(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to

inform the Magistrate of the grant of such relief.

23 Adverting to the factual situation at hand, on construing the provisions of sub-Section (2) of section 23 of the Senior Citizen Act 2007, it is evident

that it applies to a situation where a senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred. On

the other hand, the appellantâ€s simple plea is that the suit premises constitute her “shared household†within the meaning of Section 2(s) of the

PWDV Act 2005. We have also seen the series of transactions which took place in respect of the property: the spouse of the appellant purchased it in

his own name a few months before the marriage but subsequently sold it, after a few years, under a registered sale deed at the same price to his

father (the father-in-law of the appellant), who in turn gifted it to his spouse i.e. the mother-in-law of the appellant after divorce proceedings were

instituted by the Fourth respondent. Parallel to this, the appellant had instituted proceedings of dowry harassment against her mother-in-law and her

estranged spouse; and her spouse had instituted divorce proceedings. The appellant had also filed proceedings for maintenance against the Fourth

respondent and the divorce proceedings are pending. It is subsequent to these events, that the Second and Third respondents instituted an application

under the Senior Citizens Act 2007. The fact that specific proceedings under the PWDV Act 2005 had not been instituted when the application under

the Senior Citizens Act, 2007 was filed, should not lead to a situation where the enforcement of an order of eviction deprives her from pursuing her

claim of entitlement under the law. The inability of a woman to access judicial remedies may, as this case exemplifies, be a consequence of destitution,

ignorance or lack of resources. Even otherwise, we are clearly of the view that recourse to the summary procedure contemplated by the Senior

Citizen Act 2007 was not available for the purpose of facilitating strategies that are designed to defeat the claim of the appellant in respect of a shared

household. A shared household would have to be interpreted to include the residence where the appellant had been jointly residing with her husband.

Merely because the ownership of the property has been subsequently transferred to her in-laws (Second and Third Respondents) or that her

estranged spouse (Fourth respondent) is now residing separately, is no ground to deprive the appellant of the protection that was envisaged under the

PWDV Act 2005

F Summation

24 For the above reasons, we have come to the conclusion that the claim of the appellant that the premises constitute a shared household within the

meaning of the PWDV Act 2005 would have to be determined by the appropriate forum. The claim cannot simply be obviated by evicting the

appellant in exercise of the summary powers entrusted by the Senior Citizens Act 2007. The Second and Third Respondents are at liberty to make a

subsequent application under Section 10 of the Senior Citizens Act 2007 for alteration of the maintenance allowance, before the appropriate forum.

For the above reasons, while allowing the appeal, we issue the following directions:

(i) The impugned judgment and order of the Division Bench of the High Court of Karnataka dated 17 September 2019 affirming the order of eviction

against the appellant shall stand set aside with the consequence that the order of the Assistant Commissioner ordering and directing the appellant to

vacate the suit premises shall stand set aside;

(ii) We leave it open to the appellant to pursue her remedies under the PWDV Act 2005. For that purpose, it would be open to the appellant to seek

the help of the District Legal Services Authorities and if the appellant does so, all necessary aid and assistance shall be furnished to her in pursuing her

legal remedies and rights;

(iii) IA 111352/2020 for restoration of the electricity connection is allowed by directing the Fourth respondent to take all necessary steps for

restoration of the electricity connection to the premises within a period of two weeks from the receipt of a certified copy of this judgment. The Fourth

respondent shall also continue to pay the electricity dues in future; and

(iv) In order to enable the appellant to pursue her remedies under the PWDV Act 2005, there shall be an order and direction restraining the

respondents from forcibly dispossessing the appellant, disposing of the premises or from creating any right, title and interest in favor of any third party

in any manner whatsoever for a period of one year, to enable the appellant to pursue her remedies in accordance with law. The appellant is at liberty

to move the Court to espouse her remedies under the PWDV Act 2005 for appropriate orders, including interim protections.

The directions contained in (iii) and (iv) above emanate in exercise of the powers of this Court under Article 142 of the Constitution.

25 The Appeal is allowed in the above terms. The appellant is entitled to costs quantified at Rs 25,000 from the private respondents.

26 Pending application(s), if any, stand disposed of.