SHITAL PRASHANT AKLUJKARversusPRABHAKAR NARHAR AKLUJKAR AND ORS

                                                    J-905-WP-3103-2024(C).doc




              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIRCUIT BENCH AT KOLHAPUR

                        CIVIL APPELLATE JURISDICTION

                       WRIT PETITION NO.3103 OF 2024

Shital Prashant Aklujkar                      ]
Age: 39 years, Occu: Household                ]
Plot No.55D, Prajakta Niwas,                  ]
Dr. Antrolikar Nagar 1, Hotgi Road,           ]
Solapur.                                      ]...Petitioner
                                              ](Ori. Respondent)
           Versus                             ]
                                              ]
1.         Shri. Prabhakar Narhar Aklunjkar   ]
           Age: 80 years, Occu : Retired,     ]
                                              ]
2.         Shailaja Prabhakar Aklujkar        ]
           Age: 72 years, Occu: Retired       ]
                                              ]
3.         Prashant Prabhakar Aklujkar        ]
           Age : 40 years, Occu: Business     ]
                                              ]
           All R/at Block No.30, Mukteshwar   ]
           Housing Society, near Dyaneshwar   ]
           Nagar, Jule Solapur, Solapur       ]...Respondents
                                              ](Ori. Defendant)

                                    WITH
                    INTERIM APPLICATION NO. 11080 OF 2025
                                     IN
                       WRIT PETITION NO. 3103 OF 2024

1.         Prabhakar Narhar Aklunjkar ]
           Age: 80 years, Occu : Retired,    ]
                                             ]
2.         Shailaja Prabhakar Aklujkar       ]
           Age: 72 years, Occu: Retired      ]
                                             ]
           Both r/o. Block No.30, Mukteshwar ]
           Housing Society, Near Dnyaneshwar ]



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           Nagar, Jule Solapur, Solapur        ]...Applicants

IN THE MATTER OF

Shital Prashant Aklujkar                       ]
Age: 39 years, Occu: Household                 ]
Plot No.55D, Prajakta Niwas,                   ]
Dr. Antrolikar Nagar 1, Hotgi Road,            ]
Solapur.                                       ]...Petitioner

           Versus

1.         Shri. Prabhakar Narhar Aklunjkar    ]
           Age: 80 years, Occu : Retired,      ]
                                               ]
2.         Shailaja Prabhakar Aklujkar         ]
           Age: 72 years, Occu: Retired        ]
                                               ]
3.         Prashant Prabhakar Aklujkar         ]
           Age : 40 years, Occu: Business      ]
                                               ]
           R/o. Block No.30, Mukteshwar        ]
           Housing Society, near Dyaneshwar    ]
           Nagar, Jule Solapur, Solapur        ]...Respondents


                                   …..
Adv. Hrishikesh S. Shinde, for Petitioner.
Adv. Pradeep Salgar a/w Adv. Vaishnavi Shelar, for Respondent Nos.1
and 2.
Adv. Rishikesh Ajit Mohite, for Respondent No.3.
                                   …..


                                       CORAM : SHAILESH P. BRAHME, J.

                             RESERVED DATE : 29th AUGUST, 2026.
                          PRONOUNCED DATE : 11th SEPTEMBER, 2026.

JUDGMENT :

           Heard both sides finally.




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2.         The petitioner is taking exception to the order dated 10.10.2023

passed by Sub-Divisional Officer-cum-Senior Citizens Tribunal, directing

the petitioner to hand over possession of the premises to respondent

Nos.1 and 2, passed under Section 5 of the Maintenance and Welfare of

Parents and Senior Citizens Act, 2007 (hereinafter referred to as “ the

Act”, for the sake of convenience and brevity).


3.         The respondent Nos.1 and 2 are the parents-in-law of the

petitioner who had instituted proceedings under Section 5 of the Act.

The respondent No.3 is the husband of the petitioner. He had initiated

proceedings of dissolution of marriage bearing Petition No. A-53 of

2016 and secured decree on 22.01.2021, which is subjected to

challenge in High Court. The Family Court appeal is still pending and

execution is stayed.


4.         The petitioner had filed Criminal M.A. No. 639 of 2013 under

Section 12 of Protection of Women from Domestic Violence Act, 2005

(D.V. Act), against respondents. It was partly allowed by judgment and

order dated 30.09.2024, awarding maintenance of Rs.3000/- to the

petitioner and Rs.2500/- to the daughter. The judgment has been

subjected to challenge by both sides. The petitioner had filed RCS

No.293 of 2014 for injunction. It was dismissed on 16.08.2019. She had

also filed proceedings for restitution of conjugal rights bearing Petition

No.152 of 2015 against the respondent - husband. It was dismissed on



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22.01.2021.


5.         The controversy pertains to residential house measuring 2222

square feet situated at Plot No. 55-D, Antrolikar Nagar, Solapur within

municipal limits. The respondent No.1 retired as custom officer. He had

purchased suit house on 27.01.1987. The respondents senior citizens

have another son Vijaykumar. A gift Deed has been executed by the

respondent No.1 on 18.06.2015 to Vijaykumar transferring a house

measuring 82.57 square meter situated at Plot No.30, Majrewadi, which

is also within municipal limits, Solapur.


6.         The Tribunal under Act passed impugned order which was

challenged by the petitioner before Collector. It was allowed on

25.10.2023. The respondents preferred Writ Petition No.14898 of 2023.

It was pointed out that the appeal preferred by the petitioner was not

maintainable. Hence, the Co-ordinate Bench quashed the order of

Collector and permitted the petitioner to assail order of Sub-Divisional

Officer and also restrained the respondent No.1 from creating third

party interest. As per the directions of High Court passed on

16.02.2024, present petition is filed.


7.         Learned counsel for the petitioner submits that first floor is in

possession of the petitioner and her daughter and the ground floor can

be retained by the respondent senior citizens. The petitioner has to look




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after teenage daughter and order of eviction is causing grave hardship

and it is detrimental to the daughter's interest. It is vehemently

submitted that petitioner is ready to cohabit with the husband. The

decree of dissolution has been assailed in High Court. Hence, the order

of eviction is arbitrary and harsh. It is submitted that application of the

respondent Nos.1 and 2 is not maintainable, as his financial position is

sound. He executed Gift Deed of another house to Vijaykumar. It is

vehemently contended that against the judgment and order dated

30.09.2024, both parties have preferred appeals which are pending. The

reliance is placed on the judgment of S. Vanitha Vs. Deputy

Commissioner, Bengaluru Urban Districts & Ors.1. It is further

contended that respondent No.3 is not paying maintenance. The

respondents have made baseless allegations on the fidelity of the

petitioner. It is further contended that alternate accommodations shown

by the respondents are not suitable.


8.         To repel above submissions, learned counsel Mr. Pradeep Salgar,

for the respondent Nos.1 and 2 would submit that the house in question

is a self acquired property of the respondent No. 1. Due to the strained

relations between the petitioner and the respondents, it is not possible

to reside together peacefully. My attention is adverted to the affidavit

in reply to point out that the respondents showed readiness to provide

alternate accommodation on rent till the Family Court appeals are
1    (2021) 15 SCC 730.



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decided finally. It is further submitted that near about four properties

are made available to the petitioner and readiness was shown to bear

the rent, but still the petitioner did not accept. My attention is adverted

to the undertaking filed by the respondents and the correspondence to

show that offer made by him is genuine. It is further submitted that the

petitioner threatened those proposed landlords. Her conduct is

objectionable and vindictive. The learned counsel has also informed this

Court that his client is ready to give post dated cheques for the future

rent.


9.         The respondent No. 3 had filed Petition No. A – 53 of 2016 for

dissolution of marriage. The petitioner had preferred Petition No. A –

152 of 2015 for restitution of conjugal rights.       Both petitions were

commonly decided by judgment dated 22.01.2021. The petition for

restitution of conjugal rights was dismissed, whereas the petition for

dissolution of marriage was allowed.          Both parties have preferred

Family Court Appeals in High Court.         The decree for dissolution of

marriage has been stayed in appeal. The petitioner’s application

preferred U/Sec. 12 of the D. V. Act was partly allowed by the Judicial

Magistrate First Class vide judgment dated 30.09.2024. Both sides have

preferred Criminal Appeal No. 33 of 2024 and Criminal Appeal No. 34

of 2024 before the Sessions Court, which are pending.


10.        The relations between the parties are strained. There are couple



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of complaints filed by them against each others. The suit house was

purchased by the respondent No. 1 on 27.01.1987. It is comprising of

four rooms on ground floor and four rooms on first floor. The petitioner

and her daughter are occupying first floor. In this backdrop claim and

the submissions of the parties are required to be assessed.


11.     The respondent No. 1 is retired Customs Officer. The suit house

was purchased by him. Another house located within municipal limits

of Solapur was gifted by him on 18.06.2015 to his another son

Vijaykumar. Its an obligation of both sons as well as the petitioner to

maintain and look after respondent Nos. 1 and 2, the senior citizens. A

judicial notice can be taken that the respondent No. 1 might be getting

pension. It is not the claim of the respondent Nos. 1 and 2 that they are

unable to maintain themselves and the financial condition is precarious.

Their predominant claim is that the petitioner and the respondent No. 3

have been occupying the premises illegally and they are being harassed,

threatened and tortured by the petitioner.         No monetary relief is

claimed in the applications before the Tribunal.


12.     The respondent Nos. 1 and 2 have another son to whom one

house was gifted by them. No reason is forthcoming as to why they

have not made any claim against him. His house also can be said to be

available for them. The Gift Deed is executed after petitioner resorted

to the relief under D. V. Act and instituted suit R.C.S. No. 293 of 2014



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for injunction. The execution of the Gift Deed appears to be with the

purpose. Similarly exclusion of another son Vijaykumar from the

proceedings under the Act fortifies my inference that the respondent

Nos. 1 and 2 have deliberately filed proceedings under the Act for

eviction of the petitioner. There are two separate units of the suit house

and the parties can reside independently without any interference.


13.      In above circumstances and for the reasons recorded above in the

proceedings are filed under Section 4 of the Act, no relief can be

granted to the respondent Nos. 1 and 2. The pre-requisite for making

application under Section 4 of the Act is inability to maintain himself or

herself from his or her own earning or out of the property owned by

him or her, which is absent in the present case.                The Tribunal

committed error of jurisdiction for overlooking this aspect of the

matter. I find that respondents are not entitled to any relief under the

Act, muchless relief of eviction of the petitioner.


14.      The respondent No. 1 gets pension. The respondent No. 2 was

Head Mistress and she might be getting pension. They are shown to

have been residing at Block No. 30, Mukteshwar Housing Society, near

Dnyaneshwar Nagar, Solapur. Their another son Vijaykumar is there to

look after them. As against that the petitioner has to take care of minor

teenage daughter and they are staying on the first floor of the suit

house. The decree of dissolution of marriage has been challenged in



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the appeal, so also decree passed in restitution of conjugal rights. The

judgment and order dated 30.09.2024 passed in D. V. Act proceeding is

under challenge before the Sessions Court. I find that the impugned

order of eviction is unsustainable, for present.


15.      The learned counsel for the petitioner has heavily relied upon

judgment of the Supreme Court in the matter of S. Vanitha (supra).

Following are the relevant extracts :



         “37. The above extract indicates that a significant object of the
         legislation is to provide for and recognise the rights of women to
         secure housing and to recognise the right of a woman to reside in a
         matrimonial home or a shared household, whether or not she has
         any title or right in the shared household. Allowing the Senior
         Citizens Act 2007 to have an overriding force and effect in all
         situations, irrespective of competing entitlements of a woman to a
         right in a shared household within the meaning of the PWDV Act
         2005, would defeat the object and purpose which the Parliament
         sought to achieve in enacting the latter legislation. The law
         protecting the interest of senior citizens is intended to ensure that
         they are not left destitute, or at the mercy of their children or
         relatives. Equally, the purpose of the PWDV Act 2005 cannot be
         ignored by a sleight of statutory interpretation. Both sets of
         legislations have to be harmoniously construed. Hence 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.

         38. This Court is cognizant that the Senior Citizens Act 2007
         was promulgated with a view to provide a speedy and inexpensive
         remedy to senior citizens. Accordingly, Tribunals were constituted
         under Section 7. These Tribunals have the power to conduct
         summary procedures for inquiry, with all powers of the Civil
         Courts, under Section 8. The jurisdiction of the Civil Courts has
         been explicitly barred under Section 27 of the Senior Citizens Act
         2007. However, the over-riding effect for remedies sought by the
         applicants under the Senior Citizens Act 2007 under Section 3,
         cannot be interpreted to preclude all other competing remedies
         and protections that are sought to be conferred by the PWDV Act
         2005. The PWDV Act 2005 is also in the nature of a special
         legislation, that is enacted with the purpose of correcting gender



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          discrimination that pans out in the form of social and economic
          inequities in a largely patriarchal society. In deference to the
          dominant purpose of both the legislations, it would be appropriate
          for a Tribunal under the Senior Citizens Act, 2007 to grant such
          remedies of maintenance, as envisaged under Section 2(b) of the
          Senior Citizens Act 2007 that do not result in obviating competing
          remedies under other special statutes, such as the PWDV Act 2005.
          Section 2627 of the PWDV Act empowers certain reliefs, including
          relief for a residence order, to be obtained from any civil court in
          any legal proceedings. Therefore, in the event that a composite
          dispute is alleged, such as in the present case where the suit
          premises are a site of contestation between two groups protected
          by the law, it would be appropriate for the Tribunal constituted
          under the Senior Citizens Act 2007 to appropriately mould reliefs,
          after noticing the competing claims of the parties claiming under
          the PWDV Act 2005 and Senior Citizens Act 2007. Section 3 of the
          Senior Citizens Act, 2007 cannot be deployed to over-ride and
          nullify other protections in law, particularly that of a woman ‟s
          right to a „shared household‟ under Section 17 of the PWDV Act
          2005. In the event that the “aggrieved woman” obtains a relief
          from a Tribunal constituted under the Senior Citizens Act 2007, she
          shall duty-bound to inform the Magistrate under the PWDV Act
          2005, as per Sub-section (3) of Section 26 of the PWDV Act 2005.
          This course of action would ensure that the common intent of the
          Senior Citizens Act 2007 and the PWDV Act 2005- of ensuring
          speedy relief to its protected groups who are both vulnerable
          members of the society, is effectively realized. Rights in law can
          translate to rights in life, only if there is an equitable ease in
          obtaining their realisation.”



16.       The facts of the present case are identical with the facts before

the Apex Court. On the contrary in the case at hand both the senior

citizens are well of and they have sufficient accommodation with them.

Following the principles laid down by the Apex Court, I hold that

impugned order is bad in law.


17.       Learned counsel for the respondents has relied on the judgment

of the Supreme Court in the matter of Manju Arora Vs. Neelam Arora

and another2. The facts of that case are distinguishable. The inter play

2    (2026) 1 CCC 9456.



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between D. V. Act and Senior Citizen Act was not under consideration.

The readiness shown by the respondents to provide alternate

accommodate and expenses for it is not sufficient to protect the

petitioner’s interest. This judgment will not help the respondents.


18.       Further reliance is placed on the judgment of Sambhaji

Balkrishna Zambre Vs. Chhaya Balkrishna Zambre3. The case before the

Coordinate Bench was purely under the Senior Citizens Act.                        No

proceedings were filed under the D. V. Act. It was mother who was

claiming relief against son. In those context interest of the mother was

protected by the Courts. The facts are distinguishable. This judgment

would not enure to the benefits of the respondents. Similar is the case

cited by the respondents in the matter of Bholenath Mevalal Nishad Vs.

Shyamdulari Mevalal Nishad and others in Writ Petition No. 16375 of

2025, judgment dated 05.03.2026. Though it is held that relief of

eviction simplicitor without there being any monetary relief can be

claimed, in a given facts and circumstances of the present case the relief

of eviction cannot be granted.


19.       I reiterate that facts of the present case are more akin to the law

laid down by the Hon’ble Supreme Court in the case of S. Vanitha

(supra). Therefore, this Court is bound to follow the decision of the

Supreme Court and the petition succeeds.

3   2026 SCC OnLine Bom 2895.



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20.        I, therefore, pass following order :


                                    ::ORDER::


A.         The writ petition is allowed.

B.         The impugned judgment and order dated 10.10.2023 passed by

the Sub Divisional Officer and Sub – Divisional Magistrate, Solapur No.

1, Solapur is quashed and set aside.

C.         Application No. KV/419/2023 preferred by the respondent Nos. 1

and 2 under Section 5 of the Act stands rejected.

D.         It shall be open for them to re-agitate the claim in case of change

of circumstances in future.

E.         In view of disposal of writ petition, pending applications, if any,

also stand disposed of.


                                                  [ SHAILESH P. BRAHME, J.]




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