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Can Right Of Woman To Reside In Shared Household Under DV Act Be Defeated By Power Of Eviction U/S 23 of Senior Citizens Act?: SC Reserves Judgement
Mehal Jain
25 Nov 2020 8:52 AM GMT
The Supreme Court on Wednesday considered if the right of a woman to reside in the share household under section 17 of the Domestic Violence Act, 2005 could be defeated by the power of eviction under section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007The bench of Justices D. Y. Chandrachud, Indu Malhotra and Indira Banerjee was hearing the plea of a married...
The Supreme Court on Wednesday considered if the right of a woman to reside in the share household under section 17 of the Domestic Violence Act, 2005 could be defeated by the power of eviction under section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007
The bench of Justices D. Y. Chandrachud, Indu Malhotra and Indira Banerjee was hearing the plea of a married Hindu woman, residing at her in-laws' residence, challenging the order of eviction passed against her by the Deputy Commissioner. The property in question was purchased three months after the marriage, and was claimed to be partly paid for out of the money given by the petitioner's father to her husband at the time of marriage. Subsequently, the plot was sold by the husband to the petitioner's father-in-law, who, on construction of the house, gifted the same to the petitioner's mother-in-law. An order for payment of maintenance of Rs. 10,000 per month to his parents by the husband has also been passed. The facts of the case are that the husband has deserted the petitioner and is not living with her, and has married for a second time, even as the petition for divorce stands remanded. It was alleged by the petitioner that the proceedings under the 2007 Act have been initiated in connivance with each other by the petitioner's in-laws and her husband.
"The Senior Citizens Act is intended to prevent destitution of senior citizens. But we can't create a situation where the daughter-in-law is left in a lurch...there is no doubt that senior citizens are subject to grave abuse, as are women in a marital relationship. We need to balance the two ends of the spectrum", observed Justice Chandrachud.
"Yes, the High Courts have upheld the power of eviction as being implicit in section 23, but that is in the case of sons refusing to maintain their parents. Those facts don't arise before us", continued the judge.
"Can the 2007 Act even be used in this case? The land is purchased in the name of the son, 4 years later, thinking that the woman would create trouble, the son sells it to his father and files for divorce, the father gifts it to his wife, and a suit for eviction is filed against the daughter-in-law? Section 23(2) doesn't say the transaction would be void but only speaks of enforcement of the right of maintenance. Where do you get the power to evict the daughter-in-law and the grandchild? Can the daughter-in-law be evicted by the summary procedure under the Act?", reflected Justice Chandrachud.
"Even if we take your case (the respondents) at the highest and deem her as a trespasser, we can't apply the norms of a commercial transaction here! We are aware of the judgment of this court of October 15 (holding that the right to residence under Section 19 of the DV Act is not an indefeasible right of residence in shared household, especially when the daughter-in-law is pitted against an aged father-in-law and mother-in-law, and while granting relief both in application under Section 12 of the D.V. Act or in any civil proceedings, the Court has to balance the rights of both the parties). But this is a poor woman who has been deserted by her husband and is struggling to bring up her child!", said the judge.
"By the time you have a daughter-in-law and grandchildren, you have crossed the age of 60. But if we allow this sort of a thing, what would be the repercussions? I have grave doubt that the power of eviction is implicit in section 23. 23(1) only says that the transfer would be void. You may stretch that and go to a civil court. But under 23(2)? It says that the right to receive maintenance may be enforced against the transferee. Was a transfer ever made by you to your daughter-in-law?...", observed Justice Chandrachud.
"'A', a senior citizen, transfers his property to his son or daughter, subject to the pre-existing right of maintenance, and if the son/daughter does not maintain him, the transfer would be void...here, nothing has become void", said the judge.
Noting that the petitioner has not initiated any proceedings under the DV Act to claim her right and that the husband and the in-laws have come to be acquitted under section 498A, IPC (dowry), Justice Chandrachud said, "498A is not dispositive of any claim of the daughter-in-law. We can't find fault with her for being non-litigious!". Justice Banerjee also pointed out that by virtue of section 26 of the DV Act, the petitioner can take recourse to the relief under the Act at any stage.
"In the 498A proceedings, the woman herself said that she had brought only Rs. 30,000, a gold chain and a gold ring! It is false that the property was purchased out of the dowry!", it was argued by the respondents counsel.
"In India, everyone knows that dowry is not always by cash. You bought the plot for Rs. 1 lakh and four years later, sold the property to your father for the exact same amount? And it is strange that the son should transfer property to his father, it generally the reverse- parents transfer to children", remarked Justice Malhotra. The argument that it was the respondent-father-in-law who had incurred the cost of construction of the house from his pension fund did not find favour with the bench.
"If it were in the husband's name, the right to matrimonial home was established. Now it is inchoate because it is the father-in-law's and the mother-in-law's property. The transfer was to defeat the claim of the wife at the onset of matrimonial disputes?", wondered Justice Chandrachud.
The judge asked if in view of the chain of transactions, the maintenance tribunal under the 2007 Act, which exercises its powers in a summary procedure, could adjudicate such rights of the parties.
"This is an interesting point", said Justice Chandrachud, reserving the judgment.
The bench also pulled up the respondent-husband- "A father's responsibility does not end at what the trial court says. The trial court has asked you to pay a maintenance of Rs. 3000 per month to your daughter, but in today's times, can you bring up a child with this amount? She is doing engineering, is it not part of your obligation to maintain your child? You will only pay Rs. 3000 even if she is to starve and there is no school, no college? You will leave her to the winds?", asked Justice Chandrachud.
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