Ancy Beevi W/o Sakeer Hussain v. The Maintenance Tribunal and Revenue Divisional Officer, Tiruvalla; Jameela Beevi; Zakkir Hussain

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **THURSDAY, THE 17[TH] DAY OF NOVEMBER 2022 / 26TH KARTHIKA, 1944** **WP(C) NO. 24328 OF 2022** ## **PETITIONER/S:** ANCY BEEVI W/O SAKEER HUSSAIN AGED 34 YEARS ELAVA HOUSE CHERUTHOTTUVAZHI, KOTTANGAL VAIPUR.P.O,PATHANAMTHITTA DISTRICT, PIN -689 588. BY ADVS. FRANKLIN ARACKAL M.B.SOORI ## **RESPONDENT/S:** 1 THE MAINTENANCE TRIBUNAL AND REVENUE DIVISIONAL OFFICER OFFICE OF THE REVENUE DIVISIONAL OFFICER, TIRUVALLA, PIN - 689 101 . 2 JAMEELA BEEVI AGED 75 YEARS W/O ABDUL RAHMANKUTTY , ELAVA HOUSE, KOTTANGAL VILLAGE VAIPUR.P.O,PATHANAMTHITTA DISTRICT, PIN 689 588. 3 ZAKKIR HUSSAIN, AGED 43 YEARAS S/O ABDUL RAHMANKUTTY, ELAVA HOUSE, KOTTANGAL VILLAGE VAIPUR.P.O, PATHANAMTHITTA DT PIN 689 588,WORKING AT AL DOHA POWER PLANT DOHA POWER STATION,DOHA SPUR MOTORWAY KUWAIT, PO BOX 25371000. BY ADV K.N.RADHAKRISHNAN(THIRUVALLA) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 24328 OF 2022** **2** ## **JUDGMENT** Order dated 11.7.2022 of the Maintenance Tribunal, Ext.P8 imposing certain conditions on the petitioner being daughter in law of the respondent No.2 is under challenge in the present writ petition. 2. The marriage between the petitioner and 3[rd] respondent ie., her husband, Zakkir Hussain was performed on 28.5.2005. The 3[rd] respondent, the husband of the petitioner was in possession and ownership of 9.93 Ares of property comprised in Sy.No.285/3-1-1 of Kottungal Village as per the documents bearing No.2052 of 2010 of SRO, Mallappally along with the house. The house, at the time of the marriage, was not in a habitable state. Therefore after the marriage the petitioner along with the 3[rd] respondent started residing in the house of the elder brother of the 3[rd] respondent. After 40 days of the marriage, the 3[rd] respondent, her husband went abroad and thereafter did not return for considerable period, which impelled the petitioner to return to her parental home on account of the alleged mental and physical atrocities from the part of the 2[nd] respondent and wife of brother in law. After a period of 2 years as and when the 3[rd] respondent returned to India, the petitioner by making use of 50 sovereigns of gold which was gifted **WP(C) NO. 24328 OF 2022** **3** to her by her family at the time of marriage, started the construction of a house in the property belonged to the 3[rd] respondent. Before the completion of construction, 3[rd] respondent returned to gulf. In the meanwhile, two children were also born out of the wedlock. The petitioner sold 10 sovereigns of gold ornaments for completing the construction and spent another sum of Rs.1,00,000/- which she had obtained from her parents as her share in the parental property. Since there was perpetual harassment at the hands of the 2[nd] respondent, petitioner preferred MC No.65/2019 before the Judicial Magistrate of the First Class, Thiruvalla under the provisions of Protection of Women from Domestic Violence Act, 2005 against the mother in law and the husband, respondent No.2 and 3. Another petition under Section 23 of the Domestic Violence Act was also filed seeking interim maintenance and also for restraint order against the 3[rd] respondent from alienating the shared house hold. The learned Judicial Magistrate vide order dated 17.9.2019 directed the 3[rd] respondent to pay Rs.5000/- as compensation to the petitioner per month, Ext.P2. 3. Husband of the petitioner suffered a settlement deed dated 18.10.2019 of SRO Mallappilly in favour of the 2[nd] respondent, transferring the property comprised in Sy.No.285/3-1- **WP(C) NO. 24328 OF 2022** **4** 1 of Kottungal Village in favour of the 2[nd] respondent to overcome the order Ext.P2. The 2[nd] respondent, mother in law of the petitioner, filed a civil suit OS No.356 of 2020 before the Munsiff's Court for permanent injunction against the forcible eviction from the scheduled property. The trial court allowed the interim application and protected the possession of the 2[nd] respondent. 4. The learned counsel appearing on behalf of the petitioner submitted that prior to the institution of the civil suit, respondent No.2 was residing with her elder son in the property and as a counter blast to the proceedings under the Domestic Violence Act preferred a petition in 2022 before the competent authority under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The tribunal without taking into consideration, definition of 2(a) of the Act pertaining to the family member ordered protecting the interest of the 2[nd] respondent not to forcibly evict, disturb or cause any hindrance. Once the proceedings are already in the trial court, the petition under the Provisions of 2007 Act was not maintainable. The petitioner is a daughter in law and do not fall within the definition of Children in view of the Division Bench judgment of Bombay High Court in **Sheetal Devang Shah v. Presiding Officer of the Maintenance and Welfare of Parents and Senior Citizens and** **WP(C) NO. 24328 OF 2022** **5** ## **Others (2022 SCC online Bom 1068 : (2022) 4 RCR (Civil) 388 (DB).** 5. On the other hand, learned counsel appearing for the 2[nd] respondent opposed the aforementioned prayer and submitted that the definition of Section 2(a), cannot be read lightily, rather it has to be read keeping in view the relationship between the petitioner and the 2[nd] respondent as the object of the Act is to protect and provide effective provisions of maintenance and welfare of the parents and senior citizens. In support of the contentions has relied upon Single Bench judgment of this Court **Reju and Another v. Maintenance Tribunal, Tvm and Others (2016 (2) KHC 429)** . 6. I have heard the learned counsel for the parties and appraised the paper book. The marriage between the petitioner and the 3[rd] respondent and relationship being sour are the matter on record for the reason that the petitioner has already availed the remedy under the provisions of Domestic Violence Act much less the maintenance, against the respondent No.3, who has been ordered to pay. It is only after the order of the Maintenance respondent No.3 executed a settlement deed in favour of his mother, respondent No.2/mother in law of the petitioner. The 2[nd] respondent also filed a civil suit and obtained an injunction qua **WP(C) NO. 24328 OF 2022** **6** eviction. Once there is already an order of forcible eviction and culminate into final judgment there was no occasion or a fresh cause of action in favour of the respondent No.2 to institute the petition under the Maintenance and Welfare of Senior Citizens Act, for, neither any maintenance had been claimed nor any cancellation of documents was sought. Munsiff Court had already injuncted the petitioner not to effect the life of the 2[nd] respondent nor any mental and physical cruelty much less any quarrel. The operative part of the order reads as under: 'Cases are pending before different courts raising various issues. Certain courts have passed orders. Keeping the right of the petitioner who is a senior citizen to reside with all the freedom in the property and the house which was conveyed over to her by her younger son, it is ordered that no action which affecting the life of the petitioner shall be taken by the respondent, and the petitioner shall not cause any mental or physical difficulties to the respondent who is living together with the petitioner in the house. Neither of the parties shall reside in the house without quarrelling each other. It is also hereby ordered directing that the parties shall Act subject to the final orders which are filed before different courts.' 7. Section 2(a) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 reads as under: 2(a) 'children' includes son, daughter, grandson and granddaughter but does not include a minor; 8. By referring to the aforementioned provisions, the **WP(C) NO. 24328 OF 2022** **7** Division Bench of the Bombay High Court in paragraph 48 and 49 by noticing the provisions of Section 2(a), 2(b), 2(d), 2(f), 2(h) 2(j) and 2(k) has held that only the persons defined under Section 2(a) would be members of the family. Daughter in law is not included there. Para 48, 49, 50 and 51 read thus: 48. In Section 2 (a), "children" is defined and includes son, daughter, grandson and grand-daughter but does not include a minor. Section 2(b) defines "maintenance" to include provisions for food, clothing, residence and medical attendance and treatment. Section 2(d) defines "parent" to mean father or mother whether biological, adoptive or step father or step mother, as the case may be, whether or not the father or the mother is a senior citizen. Section 2(f) provides for definition of "property" to mean the property of any kind, whether movable or immovable, ancestral or self-acquired, tangible or intangible and includes rights or interests in such property. Section (g) defines "relative" to mean any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death. Section 2(h) defines "senior citizen" to mean any person being a citizen of India, who has attained the age of sixty years or above; As per Section 2(j), "Tribunal" means the Maintenance Tribunal constituted under section 7 and under Section 2(k), "welfare" means provision for food, health care, recreation centres and other amenities necessary for the senior citizens. 49. The important section is Section 3, which reads as under:- "3. Act to have overriding effect.- 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." 50. Section 3 would make it abundantly clear that the provisions of this Act shall have overriding effect on the provisions of any other Acts, which are inconsistent with the provisions of the said Act. **WP(C) NO. 24328 OF 2022** **8** 51. There is a provision under Section 4, which states about maintenance of parents and senior citizens, which reads as under:- "4. Maintenance of parents and senior citizens.- (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 of-- (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." The principle laid down in Section 11 of the CPC cannot be applied for the reason that once the respondent No.2 has already availed the remedy of civil suit and obtained an injunction order against the petitioner, no fresh cause of action as read out from the **WP(C) NO. 24328 OF 2022** **9** contents of the complaint or the order under challenge were made out for invoking the jurisdiction under the 2007 Act. There is no quarrel to the ratio of decidendi culled out in the judgment of the single bench of this Court **Reju and Another** (supra). But the findings rendered by the Divisions Bench are based upon the cumulative reading of the provisions of Maintenance and Welfare of Parents and Senior Citizen Act. Thus Ext.P8 order is not sustainable and hereby quashed. The writ petition stands allowed. **Sd/-** sab **AMIT RAWAL** **JUDGE** **WP(C) NO. 24328 OF 2022** **10** ## **APPENDIX OF WP(C) 24328/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE MC 65/2019 DATED! 16/9/2019 FILED BEFORE JFCM THIRUVALLA. Exhibit P2 TRUE COPY OF THE ORDER DATED 17/9/2019 CRL. MP 5897/2019 IN MC 65/2019 OF JFCM THIRUVALLA. - Exhibit P3 TRUE COPY OF THE SETTLEMENT DEED BEARING NO.1401/2019 DATED 18/10/2019 OF SRO MALLAPPILLY. - Exhibit P4 TRUE COPY OF THE PLAINT DATED 12/10/2020 IN OS 356/2020 OF MUNSIFF'S COURT THIRUVALLA. - Exhibit P5 TRUE COPY OF THE ORDER IN IA 1/2020 IN OS 356/2020 DATED 14/10/2020 OF MUNSIFF'S COURT THIRUVALLA. - Exhibit P6 TRUE COPY OF THE PETITION DATED 18/5/2022 IN B4-1260/2022 FILED BEFORE THE 1ST RESPONDENT BY THE 2ND RESPONDENT. - Exhibit P7 TRUE COPY OF THE REPLY DATED 28/6/22 IN B4-1260/2022 FILED BEFORE THE 1ST RESPONDENT BY THE PETITIONER. - Exhibit P8 TRUE COPY OF THE ORDER IN B4-1260/2022 DATED 11/7/2022 OF THE 1ST RESPONDENT.