The Petitioner is placing implicit reliance on the MOU
which does not have any probative value taking into consideration the
circumstances, in which it was executed. The Act of 2007 confers on
the maintenance tribunal express power to declare a transfer of
property void at the option of the transferor. Under section 23 of the
said Act, it is to be presumed that the intent of the legislature is to
empower the maintenance tribunal to pass effective and meaningful
orders including consequential directions to give effect to the said
order. The Act empowers the tribunal to grant speedy consequential
relief. In the present case, although the interim relief was vacated,
the Petitioner and Respondent No.3 has continued to harass the
parents and therefore, it is necessary to evict the Petitioner and
Respondent No. 3 from the said bungalow i.e. i.e. Girnar Bungalow,
Plot No. 59, Sector No. 27/A, Pradhikaran, Nigadi, District Pune.
43 It is in these circumstances that the Writ Petition being
sans merits stands dismissed on the following terms:
(i) The Order passed by the Learned SubDivisional Officer,
Pune in Criminal/SR/2/2015 and confirmed by the learned
Additional Collector, Pune in Appeal No. 2 of 2016, Pune is
hereby maintained.
(ii) The Petitioner and the Respondent No. 3 to pay Rs.
2,000/ each to the parents/Respondent Nos. 1 and 2 from 1st
August, 2017.
(iii) The Petitioner and the Respondent No. 3 are further
directed to vacate the premises of bungalow i.e. Girnar
Bungalow, Plot No. 59, Sector No. 27/A, Pradhikaran, Nigadi,
District Pune within two weeks from the date of passing of this
order.
(iv) In the eventuality that the Petitioner and Respondent No.
3 do not vacate the premises of above bungalow voluntarily the
Respondent Nos. 1 and 2 are at liberty to seek police aid to
execute the present order.
(v) The Petitioner to pay cost of Rs. 25,000/ towards the
cost of litigation to the Respondent Nos. 1 and 2 jointly within 2
weeks from today. The amount to be deposited before the
Tribunal, Pune constituted under the Maintenance and Welfare
of Parents and Senior Citizens Act, 2007, which shall not be
included in the maintenance amount.
(vi) The Tribunal at Pune is hereby directed to implement and
execute the Order dated 20/2/2016 passed by the Sub
Divisional Officer, Pune in Criminal/SR/2/2015 within two
weeks from today.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1791 OF 2016
Shri Santosh Surendra Patil. V Shri Surendra Narasgopnda Patil & ors. ..
CORAM : SMT.SADHANA S. JADHAV,J
PRONOUNCED ON : JUNE 23, 2017
1 This is an unfortunate litigation between old aged parents
and middle aged sons. The Petitioner herein impugned the order
dated 20th February, 2016 passed by the Sub Divisional Officer, Pune
in Criminal/SR/2/2015 confirming the order passed by the learned
Additional Collector, Pune in Appeal No. 2 of 2016 under the
provisions of the Maintenance and Welfare of Parents and Senior
Citizen Act, 2007(for short “the said Act”) and Rules made
thereunder.
2 The Petitioner herein happens to be the elder son of
Respondent Nos. 1 and 2 and respondent No. 3 happens to be the
younger brother of the Petitioner.
3 The Petitioner had challenged the impugned Order before
the Vacation Court (Coram : P.D. Naik, J). It was submitted before
the Vacation Court that the Appeal was rejected by the Additional
Collector on 30th April, 2016 directing the Petitioner to vacate
residential premises, constructed and owned by respondent Nos. 1
and 2. It was submitted that the reasoned order of the Appellate
Authority was not available and therefore, the advocate representing
the Petitioner had no idea as to whether any reasoned order is passed.
He had drawn the attention of the Vacation Court to the single line
operative order. It appears that the learned APP had placed on record
the communication received by Nigadi Police Station directing the
police to execute order dated 30th April, 2016 and file a compliance
report. It was also submitted that the Petitioner was willing to take
care of Respondent Nos. 1 and 2 and that no prejudice would be
caused to the Respondent Nos. 1 and 2 in the eventuality that the
order is stayed. Considering the submission, this Court (Coram : P.D.
Naik, J) was pleased to issue notice to Respondent Nos. 1 to 3. On
the date of filing of the petition, spare copies were not supplied and
therefore, notices could not be issued to the Respondent Nos. 1 and 2.
The spare copies were supplied only on 16th May, 2016. Thereafter
on 10/6/2016, the matter was listed for admission. The Respondent
Nos. 1 and 2 had caused their appearance. On 15/7/2016 interim
relief was continued.
4 Before reverting to the facts of the case, it would be
necessary to see the need for enactment of the Maintenance and
Welfare of Parents and Senior Citizens Act, 2007. Filial responsibility
laws are derived from England's Elizabethan Poor Laws of 1601,
which made blood relatives responsible for the support of their family
members, including aging parents. In fact, such a law can be traced
back to the third century in Roman Society. The moral obligation to
support one's aged parents can be found in many different cultures
and religions. A peculiar tension arises in the eventuality when this
moral obligation crystallizes into a duty enforceable by law. Just like
all other religious code, the need for enactment of the present act was
the question which needed to be answered as to whether besides
filial responsibility laws, no legal rules satisfies what duty, if any,
children owe to their parents. The argument that, such coercive
legislation may do little to encourage positive and normal
relationship and merely enables indigent and helpless parents to sue
their children for financial support or seek enforcement of mental
peace against their children cannot hold any substance as by enacting
this Act, the State has taken upon itself the guardianship of Senior
Citizens and old aged infirm parents.
5 It is in this backdrop that the facts of the present case
need to be examined which are as follows :
(i) On 29/7/2015 the respondent Nos. 1 and 2 filed an application
before the District Collector under the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007. The respondent No. 1 had
contended in his application that at the time of filing of the
application, he was about 78 years old. That in 1991 he retired from
M/s. Advani Orlicorn Company, where he was working as machine
shop supervisor. Since it was a private job, he was not entitled for
pension. On retirement he had received Rs. 6 Lakhs towards
Provident Fund, Gratuity, etc.
(ii) The respondent No.2 was working as a teacher in Municipal
School during the period 1966 to 1995 and was officiating as a Head
Mistress during the period 1995 to 2001. At the time of filing of the
complaint, she was receiving pension of Rs. 13,000/ per month and
therefore, she could run the family and meet the medical expenses of
her husband. Upon retirement, the respondent No. 2 had received Rs.
3,75,000/ towards pension and gratuity.
(iii) While in service, respondent No. 1 had obtained loan from
Pawana Sahakari Bank and Cosmos Bank and had constructed the
ground floor of his house. He had also borrowed money from his
brotherinlaw. He had repaid that amount.
(iv) After retirement, he had constructed the first floor of the house.
While constructing the first floor of the house, he had anticipated
that he would give the said premises on rent and earn regular income
from the same and therefore, had invested the said amount in
constructing the first floor.
(v) That he was diagnosed with diabetes in the year 1982. In the
year 2002 due to blood hemorrhage in the left eye, he had to undergo
laser treatment but had lost vision of right eye and had blurred vision
in left eye. He was thereby incapacitated to work and earn his living
after retirement.
(vi) That his sons were not looking after him. He had to be
operated on his left leg. During the said operation, he was bed
ridden for almost 5 months.
(vii) His elder son i.e. present petitioner got married on 5/12/1994.
He was working as a partner in Shriyash Classes. That his younger
son Sandeep was running an industry, which had to be closed down.
The parents were not aware of the nature of business of the younger
son. His younger son got married on 26th March, 1998. Since there
was difference of opinion in the house, the elder son i.e. the Petitioner
and his wife had started living separately in the same bungalow. The
elder son i.e. the petitioner had not provided any help to the
Respondentsparents.
(viii) His daughter was married in the year 1990 and was living in the
matrimonial home. The younger son i.e. respondent No. 3 had lived
with respondent Nos. 1 and 2 initially for a period of 10 years and
subsequently, he had also decided to live separately. Their daughter
was residing in a tin shed on the second floor and she used to look
after them.
(ix) According to the respondent No. 1/complainant, his elder son
was doing an independent business and residing separately with his
wife. He had never paid a single farthing to his parents. He had not
even enquired about their welfare. Thereafter the complainant got his
younger son married. The younger son i.e. respondent No. 3 had
stayed with the complainant for almost 10 years.
(x) The complainant and his wife were running family. The
complainantfather had no source of income and therefore, there used
to be intermittent quarrel. For some time, they had stayed with their
daughter. She had also lent helping hand them to the best of her
capacity.
(xi) Sunanda Patil i.e. respondent No. 2 was working as principal of
school, run by Pimpri Chinchwad Municipal Corporation. She is
earning pension of Rs. 13,000/. She had earned about Rs.
3,75,000/ from her provident fund and gratuity fund, which was her
only financial asset. She had spent a lot of money towards domestic
expenses such as releasing their mortgaged property at their native
place, children's education, their marriage etc. Most of the pensionary
amount was spent towards their medical expenses and therefore,
they could not give any financial assistance to their sons. That the
respondent No. 3 was pestering his parents to give financial help.
(xii) It is specifically contended that in the year 2004 when the
couple i.e. respondent Nos. 1 and 2 were suffering from several
ailment, their elder son had got executed a Memorandum of
Understanding(for short MOU) on Rs. 100 nonJudicial stamp paper
which spelt that the ground floor of the house would remain in his
possession. That the MOU was drafted type without the consent of
the respondent Nos. 1 and 2 and he had obtained their signatures
when they were ailing and bed ridden. He had brought alongwith
him a public notary advocate advocate Shri Kumthe.
(xiii) As per the said MOU, the elder son was to pay the tax towards
ground floor. In fact, the respondent Nos. 1 and 2 were paying tax
towards whole building and the elder son had reimbursed his share.
As per the MOU the elder son was to pay an amount of Rs. 3000/ per
month to the respondent Nos. 1 and 2 commencing from 30/6/2004.
Thereafter, he was to pay Rs. 4,000/ per month and thereafter, pay
Rs. 5,000/ per month commencing from 31/7/2015 for 108 months.
It is pertinent to note that the elder son had resiled from the MOU.
(xiv) The respondent No. 3 was not residing with his parents.
However, portion of the first floor, which is to be shared by him was
given on rent without the consent of the respondent Nos. 1 and 2. He
used to collect rent and had never enquired about his parents. The
respondent Nos. 1 and 2 had no knowledge about the quantum of
rent received by him. The younger son i.e. Respondent No. 3 had
obtained loan from Rupee Bank and the same was repaid by the
respondent Nos. 1 and 2. The amount was Rs. 2,65,000/. In fact,
the respondent No. 2 had sold 15 tolas of gold to repay the said
amount.
(xv) It is contended in the complaint that their daughter Sujata Jain
was residing in the tin shed on the terrace of their house and was
paying Rs. 500/ towards rent. In the year 2009, both the sons had
quarreled with Sujata. She had vacated the said premises. She was
divorced in the year 2010. The respondent Nos. 1 and 2 were
residing in 2 rooms on the first floor. It is also contended that the tin
shed was given on rent and a portion of the rental amount was given
to Sujata as she was divorced and her son was pursuing his education
in engineering and the daughter was studying MBA.
(xvi) It is specifically contended in the complaint that the bungalow
was constructed in such a manner that it would accommodate both
the sons and the daughter. However, ground floor was in the
possession of the elder son and on the first floor two rooms were
given on rent by the younger son. The elder son had agreed to vacate
the ground floor on the condition that the first floor would be
transferred in his name. The state of affairs had driven the couple i.e.
respondent Nos. 1 and 2 in depression. They were suffering from
Arthritis. They were unable to ascend and descend steps from the
first floor. They had fallen and had to undergo surgery. However,
their children had ignored them and did not provide for medical aid.
Their daughterinlaw Sanyogita had threatened them that in the
eventuality they insisted upon them to vacate the premises she would
file criminal case against them. The parents of Sanyogita had also
advised respondent Nos. 1 and 2 to behave according to whims of
Sanyogita or else they would be prosecuted.
(xvii) In the year 2013 and on 15/5/2015 the respondent Nos. 1 and
2 had lodged complaint against Santosh and his wife. They had also
issued a legal notice to him on 13.5.2013. They had not filed any
complaint further due to love and compassion for their sons. They
were fed up with the atrocities meted out to them by their sons and
daughter in law and therefore, they were constrained to approach the
Collector under the Provisions of Maintenance and Welfare of Parents
and Senior Citizen Act, 2007 and Rules made thereunder(hereinafter
referred as Act of 2007).
(xviii)The SubDivisional Officer, Pune (Tribunal constituted under
said Act) by the Judgment and Order dated 20/2/2016 was pleased
to allow the Petition. The Authority had directed the Petitioner to
vacate the ground floor of the bungalow and had further directed the
Petitioner to pay an amount of Rs. 2,500/ per month as maintenance
to the Respondent Nos. 1 and 2.
(xix) Being aggrieved by the said order, the Petitioner had filed an
appeal before the Appellate Authority. The Appellate Authority had
stayed the order on 31st March, 2016. The Appellate Authority had
extended the same from time to time and after giving hearing to both
the parties, the Appeal was dismissed.
6 Being aggrieved by the said Order, the Petitioner has filed
this Criminal Writ Petition. The order was stayed by the Vacation
Court on 10/5/2016. The order passed by the SDO directing the
Petitioner to vacate the bungalow was stayed mainly on the ground
that the reasoned order of the Appellate Authority was not available
on the date of filing of the Petition.
7 On the first date of the hearing, the Petitioner had shown
his willingness to take care of the respondent Nos. 1 and 2 and in
view of that, the interim relief was extended from time to time. On
11/8/2016, the matter was heard at length. The learned Counsel for
the Petitioner had submitted that he was willing to part with the
ground floor premises in favour of the Respondent Nos. 1 and 2 and
that he would stay on the first floor.
8 It was brought to the notice of this Court that the
Respondent No. 3 i.e. younger son of the respondent Nos. 1 and 2 had
come to stay in the said premises only after interim orders were
passed by this Court on 10/5/2016. During the pendency of the
proceedings and even prior to that, the Respondent No. 3 was
residing separately with his family. Upon a query made by this Court,
the learned Counsel for the Respondent No. 3 had submitted that the
Respondent No. 3 had grave apprehension that the parents are filing
the complaint against the sons only to secure the future of their
daughter who is divorcee and in order to secure his own interest in
the property, he had come to reside in the said premises. The learned
Counsel for Petitioner and Respondent No. 3 have submitted that
their sister is instrumental in instigating their parents to file complaint
against them.
9 On the day of the hearing, the Petitioner was in
possession of the ground floor of the said bungalow, on the first floor,
the respondent No. 3 had occupied 3 rooms, whereas the old parents
were residing in two rooms. The learned Counsel for the Petitioner
had attempted to resolve the issue before the Court by submitting that
he was willing to reside on the first floor and that the parents would
stay on the ground floor.
10 The respondentparents were present in the Court and
had submitted that the orders passed by the Authorities should be
implemented and that the Petitioner and Respondent No. 3 be
directed to withdraw themselves from the bungalow and vacate the
residential premises. On the basis of their past experience with their
sons, they do not wish to permit them to stay in the said bungalow, as
they were deeply hurt by the conduct of the Petitioner and the
Respondent No. 3. At that juncture, the Court had asked the learned
Counsel for the Petitioner as to how much time, they would require to
vacate the said premises. The learned Counsel for the Petitioner and
the Respondent No. 3 expressed that the matter be decided on merits.
The learned Counsel had requested for time to take instructions. The
matter was adjourned and the interim orders were continued.
11 On 27/9/2016 the matter was heard at length. Taking
into consideration the conduct of the Petitioner and the arguments
advanced across the bar, interim relief was vacated and this Court
had passed order to the effect that pendency of this Petition shall not
be construed as a stay to the execution and implementation of the
impugned order dated 30/4/2016.
12 On 21st March, 2017, the learned Counsel for the original
complainant i.e. the present respondent Nos. 1 and 2 had made a
statement that despite the fact that the interim relief was vacated, the
Petitioner and the respondent No. 3 had ingressed the house and had
kept their lien on the said premises. The Respondent Nos. 1 and 2
had specifically submitted before the Court that their movements are
restricted because of the encroachment by the Petitioner and the
respondent No. 3. They are unable to live in peace. That the
situation was life threatening. It was in those circumstances that the
PSI of Nigadi Police Station was directed to visit the premises and
take photographs as well as record the statement of the tenants and
neighbours.
13 The matter was finally heard on 30th March, 2017 and the
photographs were placed on record for the perusal of this Court. It
had shocked the conscience of the Court that sons had occupied the
garage. All the house hold articles and domestic appliances were
stocked just outside the main door of the house. The Petitioner had
put up the furniture and was staying in the said area. The Petitioner
and the Respondent No. 3 had covered the said area with tarpaulin
and were staying there. The Respondent Nos. 1 and 2 were present
in the Court and had demonstrated their grief by disclosing the
atrocities meted out to them at the hands of the Petitioner and
Respondent No.3 after the interim relief was vacated.
14 By virtue of Chapter IV of the Constitution issues
pertaining to the elderly were taken into consideration. In fact, they
were not enforceable by law. Maintenance of parents by their
children is contemplated under Section 20 of the Hindu Adoption
and Maintenance Act 1956. There is similar provision under the
Muslim Law. However, these provisions were only moral
obligations. In the Code of Criminal Procedure, 1973 a provision was
introduced wherein elderly persons could approach the court seeking
maintenance under Section 125 of the Code of Criminal Procedure,
1973 and what was necessary to be considered by the Court was that
there should be sufficient material to indicate that the children have
neglected to maintain their elderly parents, who cannot maintain
themselves.
15 By Maintenance and Welfare of Parents and Senior
Citizens Act, 2007, a provision was made to the effect that if
Petitioner would substantiate before the Tribunal that there is a
neglect, it may order the children/relatives to give monthly allowance
upto Rs. 10,000/. The procedure of filing the complaint was made
simpler. It was also provided that any voluntary organisation could
help the senior citizen to approach the tribunal. Further provision
was made that the Tribunal could take up cause suo moto on failure
to comply with the maintenance order.
16 Keeping in view the growing problems of the elders, the
legislature has made earnest endeavour to introduce an Act in the
interest of senior citizens and parents who are old and infirm. It was
also noticed by the Legislature that apart from the economic
stringencies, due to lack of source of income, senior citizens and
parents were also exposed to emotional neglect and social insecurity.
The procedure to ventilate the grievances were made simpler.
17 It is also provided in the Act that if the children or
relatives, so ordered, fails without sufficient cause to comply with
the order, the Tribunal may, for every breach of the order, issue a
warrant for levying fine and sentence such person to imprisonment,
which may extend to one month or only payment of maintenance.
18 In the facts of the present case, it is apparent that even
after interim relief was vacated by this Court, the maintenance
amount was not paid and that the Petitioner and the Respondent No.
3 had continued to harass the respondent Nos. 1 and 2 by staying in
the same premises, which in fact is a self acquired property of the
respondent Nos. 1 and 2. The Petitioner had candidly submitted
before this Court that he holds lien over the said property by virtue
of being the son of the Respondent Nos. 1 and 2. Needless to state
that this is not an ancestral property.
19 Learned Counsel for the Petitioner has placed implicit
reliance upon the Memorandum of Understanding purportedly
executed between the Petitioner and the Respondent Nos. 1 and 2 on
30/6/2004. A nonjudicial stamp was purchased by the Petitioner
on 22/6/2004. The Court cannot be oblivious of the fact that the
said MOU was executed when the Respondent No. 1 was hospitalised
and was in dire need of care, emotional security, medical aid etc. It
was agreed in the MOU that the Respondent Nos. 1 and 2 would
permit the Petitioner to reside in the said bungalow. That under no
circumstances the Respondent Nos. 1 and 2 could ask the Petitioner
to vacate the premises. That the Petitioner would renovate the said
premises at his own cost. The Petitioner was to seek a loan of Rs. 2
Lakhs for the purpose of renovation. That the Petitioner would pay
the property tax only to the extent of the ground floor. The water bill
would be paid on the basis of the consumption made by the
respective parties. That the Petitioner would pay Rs. 3000/ to his
parents for the first 12 months, Rs. 4000/ for the next 12 months
and thereafter Rs. 5000/ per month during their life time.
20 The Petitioner submits that he has incurred expenses for
renovation. That he is paying the property tax to the extent of the
ground floor which is in his possession. and that he is also extending
said amount to the respondent Nos. 1 and 2. According to the
learned Counsel for the Petitioner, the Memorandum of
Understanding was voluntarily executed by his parents and that the
parents had undertaken that they would not evict the Petitioner from
the said premises under any circumstances.
21 On 15/5/2015 the parents had to approach the police
station complaining therein that the Petitioner is addicted to alcohol
and is insisting upon them to transfer the property in his name and
that he abused them and has also assaulted them. A noncognizable
offence is registered against the Petitioner on the basis of the said
complaint. On 13/5/2016 the respondent Nos. 1 and 2 had filed
complaint, which was again registered as noncognizable offence.
22 The subsequent conduct of the Petitioner and his wife is
also brought before this Court. On 5/11/2016 Sanyogita, wife of
Petitioner Santosh had filed a complaint before the learned JMFC,
Pimpri, Morwadi, Pune, thereby alleging domestic violence against
the respondent Nos. 1 and 2. The said case is registered as 1057 of
2016. On 10/11/2016 the Petitioner broke open the lock of the
ground floor from the rear side and occupied the same by keeping his
household articles. The respondent Nos. 1 and 2 were constrained to
call the police and it was of no avail. On 10/11/2016 the Petitioner
had called upon the brother of the Respondent No. 2 and insisted
upon the respondentsparents to let out the premises on rent to
them. They had coerced the Respondent Nos. 1 and 2 to sign on
some document, which was not read over to them. On 13/11/2016
the police from the Nigadi Police Station had prepared a false
panchanama showing that the Petitioner had complied with the
order dated 8/11/2016 passed by the High Court and have handed
over the vacant possession. The Petitioner and Respondent No. 3 had
continued to harass their parents by threatening them of dire
consequences and danger to their life. The parents were being
abused by the Petitioner. It is apparent that they had no regard for
the judicial orders passed by this Court.
23 This Court, to resolve the rival contentions, had called for
the photographs of the said building, as there was an allegation by
the parents that their movements are restricted and the Petitioner
and his wife were only creating nuisance to make their life
miserable. The learned APP has placed on record the photographs
taken by the police which clearly substantiate the allegations made by
the parents.
24 The learned Counsel for the Petitioner has also candidly
admitted that the Petitioner has made his house in the open premises
i.e. within the compound of the bungalow. It is contended by the
learned APP that the Petitioner has also parked his car inside the
premises. The learned Counsel for the Petitioner has not denied the
said contention and has submitted that the Petitioner has a car which
he uses for his emergency purposes.
25 Upon perusal of the records, taking into consideration the
facts of the case and the arguments advanced by the respective
parties, it is crystal clear that the parents i.e. the Respondent Nos. 1
and 2 who are above 70 years old are being harassed by the
Petitioner and the Respondent No. 3. That the Petitioner and
Respondent No. 3 are interested only in the property of the
Respondent Nos. 1 and 2. That Respondent Nos. 1 and 2 are drawing
pensionary benefits and that is the only source of their income.
However, it is not sufficient to help them to take sufficient medical
aid. They are not only being neglected by their son, but also
traumatized by the illtreatment meted to them by their sons, who are
forcing them to transfer their property in their own name.
26 It is apparent that aging has become a major social
challenge and despite provisions of the Code of Criminal Procedure,
1973 for maintenance, it was deemed necessary to have inexpensive
and expeditious measures to claim maintenance for the parents. The
Act of 2007 casts an obligation upon the children to maintain their
old aging parents and make them fully secured in the advanced stage
of life and not just claim right of inheritance in the properties, which
they have earned by soil and toil. It is to make the children aware
that the parents need medical care and it is incumbent upon them to
extend all possible medical aid. It was found necessary to remind the
children that they were given all possible medical care in their
childhood by the parents. In todays set of affairs, the contention of
the grownup children is that it was the duty of the parents to look
after their children and the same was not demanded by them.
Similarly, the statutory duty is now cast upon the children also to
look after their aged parents and not just claim right of inheritance.
27 By virtue of the implementation of this Act, boundaries
between morality and illegality would be covered in a simpler
manner as the purpose of the common overlapping between the two
is often to protect most vulnerable section of the society.
28 In the present case, the Petitioner and the Respondent
No.3 are aggrieved by the apprehension that the parents are likely to
maintain the daughter's share in the property and therefore, they are
coercing the parents to transfer the property in their name.
29 In Ganduri Koteshwaramma v. Chakiri Yanadi, (2011)
9 SCC 788 it has been held by the Hon'ble Apex Court that in view
of the amendment of section 6 of the Hindu Succession Act, 1956, the
daughter is entitled to share in the ancestral property and is a coparcener
as if she had been a son with effect from 9/9/2005. The
daughter of coparcener becomes coparcener by birth in her own
rights and liability in the same manner as the son. The forcible
entrance of the Respondent No. 3 in the house is deprecated.
30 The Court cannot be oblivious of the fact that the matter
like the present one cannot be dealt with under the caption of moral
obligation or just sensitivity towards a particular case and therefore,
this Court had taken into consideration, at the outset, the need for
enactment of the present Act. In order to strike the balance between
the contentions of both the parties, this Court had called for the
photographs of the bungalow to ascertain the state of affairs after
vacating the interim relief. The conduct of the daughterinlaw i.e.
the wife of the Petitioner in filing a case under the Domestic Violence
Act against the inlaws and her husband speaks volumes for itself.
Needless to say that the said Petition was filed after vacating interim
relief rather during the pendency of the present petition.
31 Secondly, the Petitioner and the respondent No. 3 are
able bodied and have their source of income and yet they have
chosen to stay in the compound of the said bungalow. The learned
Counsel for the complainant has rightly submitted that the Petitioner
could have shifted in a rented premises to demonstrate his bonafide.
In the course of hearing of the Petition, the Petitioner had submitted
that he is ready to maintain his parents. At the same time, at the
stage of final hearing, it is submitted that the Petitioner has no
sufficient source of income and therefore, could not take any
premises on rent and was therefore, constrained to stay in the
compound of the said bungalow. The conduct of the Petitioner and
the Respondent No. 3 is more than sufficient to understand acrimony
faced by the respondent Nos. 1 and 2.
32 It is apparent that the family responsibilities are as
understood, less binding upon the Petitioner and the respondent No.
3. The Petitioner has insisted upon executing the MOU and
therefore, according to the Petitioner, he cannot be evicted from the
said house during his life time. The respondentsparents had
submitted that they were coerced to sign the said MOU. In any case,
it shocks the conscience of the Court that the Petitioner could get the
MOU executed when the parents were ailing. That was the time
when they needed care and medical aid. But the Petitioner had
forced them to sign the MOU. The same cannot be executed. It was
a conditional MOU. It is submitted that the Petitioner has failed to
abide by his obligations.
33 In the facts of the case, it is apparent on the face of the
record that the Petitioner and the Respondent No. 3 are making
attempts to throw out their aged parents from the property which
the parents have acquired during their life time. It is a perfect
example of the insensitivity of the children towards their aged
parents/senior citizens. It is clear that the responsibilities towards
the parents have degenerated.
34 It is reiterated that in such a case like the present one, the
morality of society or the moral conviction of the Court would take
back seat, as a duty is cast upon the Court to enforce the statutory
provisions and implement the rule of law. It would be in the given
facts of the case, the Petition deserves to be dismissed.
35 The manner in which the Petition was contested by the
Petitioner attempting to falsify every allegation, reflects upon their
conduct. There is record to show that the respondentsparents had to
approach the police station on more than two occasions to take
coercive action against their own children, is the convincing evidence
to dismiss the Petition.
36 It is apparent that the parents in the present case are not
only exposed to emotional neglect, feeling of rejection, social
insecurity, but to physical and financial support also. It has become a
major challenge to their very peaceful existence. It is fundamental
right of the present Respondent Nos. 1 and 2 to seek a life of dignity,
peace and liberty at this stage and that it is necessary to enforce the
provisions of law.
37 Section 21 of the said Act stipulates thus :
21. Measures for publicity awareness, etc., for welfare of
senior citizen.
The State Government shall, take all measures to ensure that
—
i. the provisions of this Act are given wide publicity through
public media including the television, radio and the print, at
regular intervals;
ii. the Central Government and State Government Officers,
including the police officers and the members of the judicial
service, are given periodic sensitization and awareness training
on the issues relating to this Act;
iii. effective coordination between the services provided by
the concerned Ministries or Departments dealing with law,
home affairs, health and welfare, to address the issues relating
to the welfare of the senior citizens and periodical review of
the same is conducted.
38 The Maintenance and Welfare of Parents and Senior
Citizens Act, 2007 necessitates that the State Government shall take
all measures to give wide publicity through public media including
television, radio and by regular intervals periodic sensitization and
awareness on the issues relating to this Act to the public and police
officers and the members of judicial services and to make effective
coordination between the services provided by the concerned
departments dealing with the law, Home Affairs, Health and Welfare
to address the issue relating to the welfare of the senior citizens and
their periodical review.
39 It is argued that the Respondent Nos. 1 and 2 have not
filed an application under Section 125 of the Code of Criminal
Procedure, 1973 and therefore, the Respondent Nos. 1 and 2 would
not be entitled under the provisions of the Act of 2007. In fact, the
provisions of Section 125 of the Cr. P.C. were not sufficient to meet
the cause and protect the senior citizens and parents. The present act
is not only restricted to maintain the aged parents, but cast an
obligation on the person who inherit the property of the aged parents
to maintain such aged relatives. Section 27 of the Act of 2007
stipulates that the jurisdiction of the Civil Code is barred with
respect to any matters to which any provisions of the Act of 2007
applies. Further by virtue of section 3 of the Act of 2007, the
provisions for an overriding effect notwithstanding anything
inconsistent contained in any other statute.
40 Section 11 of the said Act stipulates thus :
11. Enforcement of order of maintenance.
1. A copy or the order of maintenance and including the
order regarding expenses of proceedings, as the case
may be, shall be given without payment of any fee to
the senior citizen or to parent, as the case may be, in
whose favour it is made and such order may be enforced
by any Tribunal in any place where the person against
whom it is made, such Tribunal on being satisfied as to
the identity of the parties and the nonpayment of the
allowance, or as the case may be, expenses, due.
2. A maintenance order made under this Act shall have the
same force and effect as an order passed under Chapter
IX of the Code of Criminal Procedure, 1973 (2 of 1974)
and shall be executed in the manner prescribed for the
execution of such order by that Code.
The intent of the act is to provide simple, inexpensive, speedy remedy
to the parents and senior citizens who are in distress by way of
summary proceedings. Section 125 of Code of Criminal Procedure
would therefore, not be sufficient to meet the welfare of the old aged
parents and senior citizens.
41 Under section 23 of the Act of 2007 maintenance tribunal
can issue an eviction order to ensure that the senior citizens live
peacefully in their house without being forced to accommodate a son
who physically assaults and mentally harasses them or threatens to
dispossess them.
42 The Petitioner is placing implicit reliance on the MOU
which does not have any probative value taking into consideration the
circumstances, in which it was executed. The Act of 2007 confers on
the maintenance tribunal express power to declare a transfer of
property void at the option of the transferor. Under section 23 of the
said Act, it is to be presumed that the intent of the legislature is to
empower the maintenance tribunal to pass effective and meaningful
orders including consequential directions to give effect to the said
order. The Act empowers the tribunal to grant speedy consequential
relief. In the present case, although the interim relief was vacated,
the Petitioner and Respondent No.3 has continued to harass the
parents and therefore, it is necessary to evict the Petitioner and
Respondent No. 3 from the said bungalow i.e. i.e. Girnar Bungalow,
Plot No. 59, Sector No. 27/A, Pradhikaran, Nigadi, District Pune.
43 It is in these circumstances that the Writ Petition being
sans merits stands dismissed on the following terms:
(i) The Order passed by the Learned SubDivisional Officer,
Pune in Criminal/SR/2/2015 and confirmed by the learned
Additional Collector, Pune in Appeal No. 2 of 2016, Pune is
hereby maintained.
(ii) The Petitioner and the Respondent No. 3 to pay Rs.
2,000/ each to the parents/Respondent Nos. 1 and 2 from 1st
August, 2017.
(iii) The Petitioner and the Respondent No. 3 are further
directed to vacate the premises of bungalow i.e. Girnar
Bungalow, Plot No. 59, Sector No. 27/A, Pradhikaran, Nigadi,
District Pune within two weeks from the date of passing of this
order.
(iv) In the eventuality that the Petitioner and Respondent No.
3 do not vacate the premises of above bungalow voluntarily the
Respondent Nos. 1 and 2 are at liberty to seek police aid to
execute the present order.
(v) The Petitioner to pay cost of Rs. 25,000/ towards the
cost of litigation to the Respondent Nos. 1 and 2 jointly within 2
weeks from today. The amount to be deposited before the
Tribunal, Pune constituted under the Maintenance and Welfare
of Parents and Senior Citizens Act, 2007, which shall not be
included in the maintenance amount.
(vi) The Tribunal at Pune is hereby directed to implement and
execute the Order dated 20/2/2016 passed by the Sub
Divisional Officer, Pune in Criminal/SR/2/2015 within two
weeks from today.
44 This Court is hopeful that the Government of Maharashtra
would take effective steps to enforce Section 21 to bring about
awareness of this Act and implement Section 21 of the Maintenance
and Welfare of Parents and Senior Citizens Act, 2007.
45 The Writ Petition is disposed of accordingly.
(SMT. SADHANA S. JADHAV,J)
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