The Bombay High Court has held that the protection available to senior citizens under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 cannot be invoked as a mechanism to defeat a residence order granted by a competent court, under a different legislation i.e.
The protection awarded u/s 4 r/w 5 of the Act of 2007 must not be used as a weapon.
In this context , the right under the 2007 Act is not absolutely unfettered.
Thereafter, the petitioner, the daughter-in-law's father-in-law, filed an application under Sections 4 and 5 of the Senior Citizens Act, 2007, seeking a direction that she vacate the same property and hand over possession to him under police protection.
The Sub-Divisional Officer, Shirpur, functioning as the First Authority under the 2007 Act, rejected the petitioner's application.
The Bombay High Court has held that the protection available to senior citizens under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 cannot be invoked as a mechanism to defeat a residence order granted by a competent court, under a different legislation i.e. under the Protection of Women from Domestic Violence Act, 2005. The Court held that the summary eviction procedure under the 2007 Act is not "unfettered" and cannot be used to circumvent judicial orders protecting a woman's right to reside in a shared household, even where the applicant senior citizen holds independent title to the property.
Dismissing the petition with exemplary costs, the Court found that the proceedings had been initiated not out of any genuine entitlement, but as a "proxy petition" instituted at the behest of the petitioner's son to frustrate rights his estranged wife and minor daughters had already secured through a competent court, thereby amounting to an abuse of process.
A Bench of Justice Ajit B. Kadethankar observed, “…It must be borne in mind that the proceedings under such benevolent legislation must be prosecuted bonafidely, with a bonafide intention, and for a bonafide object. The protection awarded u/s 4 r/w 5 of the Act of 2007 must not be used as a weapon. In this context , the right under the 2007 Act is not absolutely unfettered. The provisions cannot be used to frustrate the orders passed by the competent Courts or to harass the party who is otherwise protected by a judicial order under other legislature. I have also observed that the present proceeding is a proxy petition which is raised at the behest of petitioner’s son. This court strongly deprecates such practice and procedure; and finds that the 1st authority and the Appellate authority under the 2007 acts have rightly refused to subscribe to the case sought to set up by the Petitioner”.
Advocate Amol Joshi appeared for the petitioner and Advocate S.T. Kazi appeared for the respondent.
Respondent No. 1, the petitioner's daughter-in-law, was embroiled in matrimonial discord with the petitioner's son. She had obtained an order dated December 10, 2018 from the Judicial Magistrate First Class, Shirpur, under Section 12 of the Domestic Violence Act, granting her and her two minor daughters monthly maintenance and directing that they not be evicted from the shared household without due process of law.
This order was upheld in appeal and subsequently by the High Court. Thereafter, the petitioner, the daughter-in-law's father-in-law, filed an application under Sections 4 and 5 of the Senior Citizens Act, 2007, seeking a direction that she vacate the same property and hand over possession to him under police protection.
The Sub-Divisional Officer, Shirpur, functioning as the First Authority under the 2007 Act, rejected the petitioner's application. The Appellate Authority, the District Collector, Dhule, dismissed the petitioner's subsequent appeal under Section 16 of the Act by order dated March 28, 2023, concurring with the First Authority's findings. The petitioner then approached the High Court under writ jurisdiction challenging both orders.
The Court found that although the petitioner claimed to hold self-earned title to the property in question, he admittedly owned at least one other house in Shirpur, and his explanation for residing on rent elsewhere was internally inconsistent and unsupported by evidence.
“The proceedings nowhere show as to why the petitioner has made such averment that he has left his own premises and is residing in a rental premises. Even the entire set of documents produced before me, and the pleadings do not show any evidence showing that the petitioner is residing on rental basis in the premises of the said Mr. L. P. Kulkarni. Mere allegation that due to threatening by Respondent no.1, the Petitioner had to leave the Writ House is of no avail to the Petitioner. It is apparent that this is a cooked story”, the Bench noted.
Relying on the Supreme Court's decision in S. Vanitha v. M. Vannankutty (2021) 15 SCC 730, the Court reiterated that 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.
Accordingly, the writ petition was dismissed with costs of Rs. 50,000, to be deposited within two months, failing which the amount would be recovered as land revenue. Upon deposit, the Registry was directed to release the entire cost amount to Respondent No. 1 for herself and her two minor daughters. Rule was discharged.
Cause Title: Devba Pauladsing Girase v. Kavita Himmatsing Girase & Ors. (Neutral Citation: 2026:BHC-AUG:35727)
Appearances:
Petitioner : Amol Joshi, Advocate.
Respondent : S.T. Kazi, Advocate.
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