PREFACE:
More usual than not, whenever relationship between the daughter-in-law and the parents-in-law becomes acrimonious, the daughter-in-law seeks protection under the Protection of Women from Domestic Violence Act, 2005 (DVA) while the parents-in-law seek to protect themselves by knocking the door of the Maintenance Tribunal.
The problem multiples when the parents-in-law put the law into motion vide the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (PSC Act) to cause eviction of the son and the daughter-in-law, while the daughter-in-law approaches the court of law to avail “residence order” by invoking the provisions of the DVA. The question of law that arise for determination regard being had to the interface between the DVA and the PSC Act is as follows:
“Whether obligation of providing shelter or roof to the daughter-in-law is upon the parents-in-law or the husband?”
PRECEDENTS BASED ANALYSIS:
| Precedent & Citation | Ratio | |
| THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 (DVA) AND THE ARGUMENT OF “SHARED HOUSEHOLD” | ||
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1. |
S.R. Batra & Anr V/s Taruna Batra, (2007) 3 SCC 169 | 1. A daughter-in-law cannot claim “right of residence” in the property belonging to her mother-in-law.
2. It was observed that: “… 17. There is no such law in India like the British Matrimonial Homes Act, 1967, and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in-law or mother-in-law. 18. Here, the house in question belongs to the mother-in-law of Smt. Taruna Batra and it does not belong to her husband Amit Batra. Hence, Smt. Taruna Batra cannot claim any right to live in the said house. 19. Appellant No. 2, the mother-in-law of Smt. Taruna Batra has stated that she had taken a loan for acquiring the house and it is not a joint family property. We see no reason to disbelieve this statement.” |
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2. |
Vimalben Ajitbhai Patel & Ors V/s Vatslabeen Ashokbhai Patel & Ors, AIR 2008 SC 2675 | 1. The Supreme Court considered a petition filed by the in-laws where it noticed that both the in-laws were very old and the daughter-in-law was permitted to pursue her remedies against her husband.
2. It was observed that: “… 24. The Domestic Violence Act provides for a higher right in favour of a wife. She not only acquires a right to be maintained but also thereunder acquires a right of residence. The right of residence is a higher right. The said right as per the legislation extends to joint properties in which the husband has a share.” |
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3. |
Hiral P. Harsora & Ors V/s Kusum Narottamdas Harsora & Ors, 2017 Cri. LJ 509 | 1. The Supreme Court struck down Section 2 (q) of the DVA in view of the definition of “shared household” in Section 2 (s) of the DVA, and held that Section 2 (q) of the DVA was restrictive in nature.
2. It was observed that: “… 18. … Equally, a shared household includes a household which belongs to a joint family of which the respondent is a member.” |
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4. |
Neetu Mittal V/s Kanta Mittal & Ors, 2008 (106) DRJ 623 | 1. It was held that the parents/ in-laws have a right to turn the son and daughter-in-law out of the house if the property belongs to them. Only if it is an ancestral house, the son can enforce partition. The right of the woman to seek maintenance is only against the husband or her children but she cannot thrust herself against the parents of the husband.
2. It was observed that: “… 8. … Matrimonial home is not necessarily the house of the parents of the husband. In fact the parents of the husband may allow him to live with them so long as their relations with the son (husband) are cordial and full of love and affection. But if the relations of the son or daughter-in-law with the parents of husband turn sour and are not cordial, the parents can turn them out of their house. The son can live in the house of parents as a matter of right only if the house is an ancestral house in which the son has a share and he can enforce the partition. Where the house is self-acquired house of the parents, son, whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow.” |
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5. |
Sardar Malkiat Singh V/s Kanwaljit Kaur & Ors, 2010 (116) DRJ 295 | 1. It was held that the father-in-law has no obligation to maintain his daughter-in-law.
2. It was observed that: “… 17. … The appellant is the sole and absolute owner of the suit property and at best the possession of the respondent No. 1 during the subsistence of her marriage with the appellant’s son could be said to be permissive in nature. This by itself cannot entitle the respondent No. 1 to claim a right of residence against her father-in-law, who has no legal obligation to maintain his daughter-in-law during the lifetime of her husband, more so when the respondent No. 1 has parted the company with her husband and is admittedly residing in Chandigarh since the year 1992.” |
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6. |
Shumita Didi Sandhu V/s Sanjay Singh Sandhu & Ors, (2010) 174 DLT 79 (DB) | 1. That the house belonging to the parents-in-law cannot per se be called the “shared household” or “matrimonial home” of the daughter-in-law.
2. That the daughter-in-law can be evicted from the property belonging to the parents-in-law by following the due process of law. |
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7. |
Smt. Preeti Satija V/s Smt. Raj Kumari & Anr, 2014 SCC Online Del 188 | It was held that even a tenanted/ leased property of the parents-in-law where the husband has no share, right, interest or title constitutes “shared household” for the daughter-in-law, if the daughter-in-law, husband and parents-in-law lived together under one roof as members of “joint family”. |
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8. |
Navneet Arora V/s Surender Kaur & Ors, 2014 SCC Online Del 7617 | 1. If a couple live as members of “joint family” in a domestic relationship with the relatives of the husband in a premises owned by such relatives of the husband, statutory prescription would indeed enable the wife to claim “right of residence” since it would fall within the realm of “shared household” as contemplated under Section 2 (s) of the DVA irrespective of whether she or her husband has any right, title or interest in the “shared household”.
2. Judgment in the matter of Taruna Batra (Supra) distinguished: “… 42. In light of the foregoing discussion, we are of the view that Taruna Batra’s case (Supra) is only an authority for the proposition that a wife is precluded under the law from claiming ‘right of residence’ in a premises, owned by the relatives of the husband, wherein she has lived with her husband separately, but not as a member of the ‘joint family’ along with the relatives of the husband who own the premises.” |
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9. |
Ekta Arora V/s Ajay Arora & Anr, AIR 2015 Del 180 | 1. In Ekta Arora (Supra), it was observed that, if mother-in-law is the absolute owner of the property then it cannot be termed as “shared household” vis-à-vis the daughter-in-law.
2. It was held that: “… 21. Considering the facts noted above, it is clear that during the lifetime of respondent No. 2, she is the absolute owner of the property in question and till then, said property cannot be held as a ‘shared household’. 22. In view of the above discussion and on the basis of the ‘Will’, the petitioner has no right in the property during the lifetime of her mother-in-law, i.e., respondent No. 2 herein. The property will devolve upon respondent No. 1 only after her death. Before that, the petitioner cannot claim any right or title in the property. …” |
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10. |
Shilpa Tandon V/s Harish Chand Tandon & Anr, RFA (OS) No. 113/ 2015, High Court of Delhi (Date of Decision: 15.11.2016) | 1. Following the ratio in the matter of Navneet Arora (Supra), it was held that the daughter-in-law had a right of residence in the “shared household”, although the property belonged to the father-in-law. It was observed that since the daughter-in-law had a “shared kitchen” with the parents-in-law, therefore, she had a right of residence in the property which in fact fell in the category of “shared household” within the meaning of Section 2 (s) of the DVA.
2. It was held that: “… 13. In the instant case the pleading by the first respondent in the plaint, in paragraph 3, is an admission that after the appellant and respondent No. 2 were married they shared a common kitchen with him on the ground floor; though they slept on the barsati/ first floor. That is to say, the shared residence would be the barsati/ first floor of his property. As per his pleadings they shifted their kitchen on the barsati/ first floor. Therefore, the barsati/ first floor of the property owned by the first respondent would be the shared residence and the appellant would have a right of residence therein notwithstanding said fact.” |
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11. |
Roma Rajesh Tiwari V/s Rajesh Dinanath Tiwari, Writ Petition No. 10696/ 2017, High Court of Bombay (Date of Decision: 12.10.2017) | 1. That the title or right in property is not of relevance in the DVA as the wife’s right to reside in the matrimonial home cannot be defeated if the same does not belong to the husband.
2. It was held that once it is a “shared household” and the husband and wife are in a matrimonial relationship, the wife gets a right to reside in terms of Section 2 (s) of the DVA. 3. The High Court of Bombay observed that the shifting of the son from the residence was a ploy. The house where the daughter-in-law resides would have to be considered as matrimonial home or shared household under Section 2 (s) of the DVA. |
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12. |
Hashir V/s Shima, ILR 2015 (2) Kerala 855 | That the High Court of Kerala was considering the provisions of the DVA and the definition of “shared household” and while following the ratio in the matter of Taruna Batra (Supra) held that the residence belonging to the in-laws does not constitute a “shared household”. |
| INTERFACE BETWEEN THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 (DVA) & THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007 (PSC Act) | ||
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1. |
Anita Barreja V/s Jagdish Lal Barreja, CM (M) No. 1043/ 2016, High Court of Delhi (Date of Decision: 26.09.2017) | 1. That the Ld. Single Judge of the High Court of Delhi was concerned with the PSC Act and an order passed by the Maintenance Tribunal under the PSC Act, and upheld the order by which the Maintenance Tribunal had directed the daughter-in-law to vacate the property.
2. While deliberating on the scope of Section 23 of the PSC Act, it was held that: “… Though I was of the view and expressed so during the hearing, that the residence of the petitioner as a licensee in the house of her father-in-law i.e. the respondent would not be a ‘transfer’ in law and accordingly not a ‘transfer’ within the meaning of Section 23 of the Senior Citizens Act but a Co-ordinate bench of this Court in Sunny Paul (Supra) has expressly held that even transfer of possession by parents to the son, daughter-in-law and grandchildren for residence would be covered under Section 23 of the Act and the Maintenance Tribunal under the Senior Citizens Act would have jurisdiction to direct removal of the said persons as well.” |
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2. |
Darshna V/s Govt. of NCT of Delhi & Ors, LPA No. 537/ 2018, High Court of Delhi (Date of Decision: 03.10.2018), and,
Sunny Paul V/s State of NCT of Delhi & Ors, 253 (2018) DLT 410 |
1. The Hon’ble Court upheld the rights of the parents and parents-in-law to evict their children (son, daughter, son-in-law and daughter-in-law) from their property, whether ancestral or self-acquired, in terms of Rule 22 (3) (i) of the Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009 as amended in 2017, if the children ill-treated them.
2. That Rule 22 (3) (i) of the Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009 (as amended in 2017) states as follows: “A senior citizen/ parents may make an application before the Deputy Commissioner/ District Magistrate of his district for eviction of his son and daughter or legal heir from his property of any kind whether movable or immovable, ancestral or self-acquired, tangible or intangible and include rights or interests in such property on account of his non-maintenance and ill-treatment.” |
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3. |
Dattatrey Shivaji Mane V/s Lilabai Shivaji Mane & Ors, AIR 2018 Bom 229 | While considering an order passed by the Maintenance Tribunal under the PSC Act, in a writ petition, the High Court of Bombay observed that:
1. Petition of daughter-in-law under the DVA was dismissed for default. 2. That once the senior citizen is the owner of the property, the possession of the senior citizen cannot be interfered with. 3. The order of the Maintenance Tribunal directing the son and his family to vacate the property was upheld by the High Court of Bombay. |
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4. |
Major Harmohinder Singh V/s State of Punjab & Ors, LPA No. 1588/ 2014, High Court of Punjab & Haryana (Date of Decision: 14.10.2014); Hamina Kang V/s District Magistrate (U.T.) & Ors, 2016 (2) Crimes 517 (P&H) | In the matter of Major Harmohinder Singh (Supra), it was observed that:
“… The provisions of the Act of 2007 and the Act of 2005, referred to above, cannot be used for cross purposes, one annihilating the other. A parent who invokes the provisions of the Act of 2007 cannot create a situation that makes irrelevant the right of a female for securing a protection which is guaranteed under the Act of 2005. The provisions of the protection which is contemplated under Chapter V is an empowering provision for the welfare of a senior citizen that must be read cohesively that the right of a woman to be protected which is guaranteed under the Act of 2005.” Therefore, in this case, the court upheld the right of the divorced wife who was given protection under the DVA. Nonetheless, the rights of parents-in-law to invoke the PSC Act was recognised by the court. In the matter of Hamina Kang (Supra), an order of the Maintenance Tribunal under the PSC Act was considered in the context of the daughter-in-law who had filed a petition under the DVA. The court held that a house owned by a father-in-law is not a “shared household” in which the daughter-in-law has a right of residence. The court observed that no right of the daughter-in-law under the DVA is sought to be nullified by the PSC Act. |
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5. |
Jayantram Vallabhdas Meswania V/s Vallabhdas Govindram Meswania, AIR 2013 Guj 160 | The Maintenance Tribunal under the PSC Act directed the son to handover the possession of the property to the father. The High Court of Gujarat considered the provisions of the PSC Act and held that a father who is not earning and has no money to sustain can make an application under Section 5 of the PSC Act to claim maintenance from his son since the son was in possession of the property of the father and was not taking sufficient care of the father.
The court observed that the father was entitled to have his own income from the property and seek an order for eviction of the son. |
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6. |
G.S. Manju V/s K.N. Gopi & Ors, W.P. (C) No. 14802/ 2019, High Court of Kerala (Date of Decision: 10.10.2019) | It was held that:
1. Section 5 of the PSC Act refers to the application for maintenance. This can be filed by a senior citizen or a parent or any organisation authorised by him if he is incapable. The Maintenance Tribunal has power to initiate suo motu action. 2. Section 23 of the PSC Act gives power to the Maintenance Tribunal to declare transfer of deed as void in certain circumstances referred therein. It states that after the commencement of the enactment, transfer of property of a senior citizen by way of gift or otherwise, is subject to the condition that transferor would be provided basic amenity and physical needs and that if the transferee refused to provide basic amenities and physical needs thereafter, the Maintenance Tribunal can declare such deed as void invoking power under Section 23 of the PSC Act. |
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7. |
Radhamani & Ors V/s State of Kerala, 2016 (1) KHC 9 | It was held that there is no requirement under law that there should be a written stipulation in the deed to the effect that the transferee would maintain the transferor. The relevant paragraph in the judgment reads thus:
“… It is to be noted that the special scheme in terms of Senior Citizens Act, 2007 could declare certain transfer as void, taking note of the fact that by taking advantage of the emotionally dependent senior citizens, relatives grab the property on the pretext of providing emotional support. Therefore, legislature thought such transaction could be declared as void as the conduct leading to transaction was based on malice or fraud. Therefore, condition referred in Section 23 has to be understood based on the conduct of the transferee and not with reference to the specific stipulation in the deed of transfer.” Therefore, the court observed that: (a) It is not necessary that there should be a specific recital or stipulation as a condition in the deed of transfer itself. (b) The condition mentioned in Section 23 of the PSC Act is only referable to the conduct of the transferee, prior to and after execution of the deed of transfer. Thus, in light of Radhamani (Supra), it can be said that the scope of enquiry in a matter related to Section 23 of the PSC Act, must be related and confined to the circumstances under which the document was executed. The Maintenance Tribunal has to examine the circumstances under which the deed was executed. It is necessary for the Maintenance Tribunal to find out whether senior citizen expected that the transferor would provide amenities and physical needs to the transferor at the time of transfer. There may not be any written document in this regard. Normally this has to be concluded from human conduct and nature of relationship and circumstances in which the deed was executed. If love and affection were the circumstances for executing the deed, any failure on the part of the transferee to provide amenities and physical needs to the transferor would attract the grounds for revocation under Section 23 of the PSC Act. |
DELHI HIGH COURT PAVES THE PATH:
That after taking stock of almost all the cases tabulated above, the Hon’ble High Court of Delhi in the matter of: Vinay Varma V/s Kanika Pasricha & Anr, CM (M) 1582/ 2018 (Date of Decision: 29.11.2019) observed that:
i. One of the objects of the DVA is to provide for the rights of women to reside in their “matrimonial home” or “shared household” irrespective of whether their husband or in-laws have a title to the property.
ii. The DVA protects one of the three basic necessities of human life for woman viz. “shelter”.
iii. The provisions of the PSC Act did not fell for consideration before the Hon’ble Supreme Court of India in the matters of Taruna Batra (Supra) and Vimalben (Supra). The PSC Act was enacted to provide maintenance to parents and senior citizens.
iv. The purpose of the PSC Act is to ensure that senior citizens (including parents) are not subjected to harassment by their relatives (including children) in any manner. An obligation has been cast on the relatives to maintain senior citizens if the said relatives are in possession of the property of the senior citizens, or may lay in future claims to inherit the property of senior citizens. [See: Section 4 (4) of the PSC Act]
v. A specific Maintenance Tribunal has been constituted under Section 7 of the PSC Act for senior citizens to make applications for maintenance. The whole purpose of the PSC Act is to ensure that children do not simply take control of the assets of their parents while ignoring their well-being.
That while taking note of the overlapping nature of the two enactments, namely, the DVA and the PSC Act, the court observed as follows:
“… 44. The question, however, is as to how the objectives and provisions of these two Acts [the DVA and the PSC Act] are to operate, considering the overlapping nature of the relationships which they seek to govern. Both are special statutes. While, the daughter-in-law’s right to residence and a roof over her head is extremely important, the parent’s right to enjoy their own property and earn income from the same is also equally important. There can be multitudinal situations which may arise before Courts wherein a view would have to be taken as to which rights are to be preferred over the other. …”
That while answering the question “whether the obligation of providing the shelter or roof is upon the in-laws or upon the husband of the daughter-in-law i.e., the son” and striking a balance between the DVA and the PSC Act, the High Court observed that:
“… Some broad guidelines as set out below, can be followed by Courts in order to strike a balance between the PSC Act and the DV Act:
1. The court/ tribunal has to first ascertain the nature of the relationship between the parties and the son’s/ daughter’s family.
2. If the case involves eviction of a daughter-in-law, the court has to also ascertain whether the daughter-in-law was living as part of a joint family.
3. If the relationship is acrimonious, then the parents ought to be permitted to seek eviction of the son/ daughter-in-law or daughter/ son-in-law from their premises. In such circumstances, the obligation of the husband to maintain the wife would continue in terms of the principles under the DV Act.
4. If the relationship between the parents and the son are peaceful or if the parents are seen colluding with their son, then, an obligation to maintain and to provide for the shelter for the daughter-in-law would remain both upon the in-laws and the husband especially if they were living as part of a joint family. In such a situation, while parents would be entitled to seek eviction of the daughter-in-law from their property, an alternative reasonable accommodation would have to be provided to her.
5. In case the son or his family is ill-treating the parents then the parents would be entitled to seek unconditional eviction from their property so that they can live a peaceful life and also put the property to use for their generating income and for their own expenses for daily living.
6. If the son has abandoned both the parents and his own wife/ children, then if the son’s family was living as part of a joint family prior to the breakdown of relationships, the parents would be entitled to seek possession from their daughter-in-law, however, for a reasonable period they would have to provide some shelter to the daughter-in-law during which time she is able to seek her remedies against her husband.”
Excursus:
The DVA is a social welfare legislation which aims to protect the wife/ daughter-in-law from destitution and vagrancy, while the PSC Act has its genesis in Article 41 of the Constitution of India, 1950, which calls for the protection of a citizen during his old age.
The adjudicatory mechanism that is employed by the court while deciding matters pertaining to domestic violence and abuse under the DVA is “adversarial”, however, the adjudicatory mechanism that the Maintenance Tribunal adopts in order to decide matters pertaining to protection and welfare of parents and senior citizens is “inquisitorial”. The scheme of the PSC Act is not intended at dispute resolution but to promote measures to secure the welfare and interest of the senior citizens and parents.
In G.S. Manju (Supra) it was observed that the Maintenance Tribunal cannot act like a neutral umpire as in case of adversarial systems, and considering the object of the PSC Act, the Maintenance Tribunal has to follow the procedure for enquiry as in an inquisitorial system and not as in an adversarial litigation.
Both, the DVA and the PSC Act, are special legislation and hence one cannot overpower the other. Any conflict, whatsoever, has to be resolved by adopting the principle of harmonization, keeping in mind the statement of objects and reasons of both the statutes.
The obligation of providing shelter or roof to the daughter-in-law is primarily upon the husband, nonetheless, if the daughter-in-law was living with her parents-in-law as a joint family, then she can avail right of residence in the shared household even if the property is a self-acquired property of the parents-in-law, with the husband having no share in it.
