“Whether the vote cast by a Member of the Legislative Assembly in an election to the Rajya Sabha, in the forenoon on the date of election, would become invalid, consequent upon his disqualification, arising out of a conviction and sentence imposed by a Criminal Court, in the afternoon on the very same day?”

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 611 0F 2020

PRADEEP KUMAR SONTHALIA … APPELLANT(S)

VERSUS

DHIRAJ PRASAD SAHU @ DHIRAJ SAHU & ANR. …RESPONDENT(S)

WITH

CIVIL APPEAL NO. 2159 OF 2020

J U D G M E N T

S.A. Bobde, CJI

1. An interesting but important question of far-reaching

consequence arises for consideration in these appeals. It is this.

“Whether the vote cast by a Member of the Legislative Assembly in

an election to the Rajya Sabha, in the forenoon on the date of

election, would become invalid, consequent upon his disqualification,

arising out of a conviction and sentence imposed by a Criminal Court,

in the afternoon on the very same day?”

2. We have heard learned counsel for the parties.

1

3. The brief facts sufficient for answering the issue arising for

consideration in these appeals are as follows: -

(i) By a notification dated 05.03.2018, the Election Commission of

India notified the biennial elections for two seats in the Council

of States from the State of Jharkhand;

(ii) Three candidates by name Pradeep Kumar Sonthalia, Samir

Uraon and Dhiraj Prasad Sahu, filed their nominations on

12.03.2018. It is stated that the first two candidates belonged

to the Bharitya Janata Party (BJP), and the third candidate

belonged to the Indian National Congress (INC);

(iii) On 23.03.2018, the election was held between 9.00 A.M. and

4.00 P.M. at the Vidhan Sabha. A total of 80 members of the

Legislative Assembly of the State of Jharkhand cast their votes;

(iv) One Shri Amit Kumar Mahto who was an elected member of

the Assembly belonging to Jharkhand Mukti Morcha Party (JMM)

admittedly cast his vote at 9.15 A.M. on 23.03.2018;

(v) As fate (not of the voter but of the contestant) would have it,

Shri Amit Kumar Mahto was convicted by the Court of the

Additional Judicial Commissioner XVIII, Ranchi, in Sessions Trial

No.481 of 2010, for the offences punishable under Sections

147, 323/149, 341/149, 353/149, 427/149 and 506/149 IPC, on

the same day, but the conviction and sentence were handed

over at 2.30 P.M. He was sentenced to various periods of

imprisonment for those offences, but all of them were to run

concurrently. The maximum punishment was for the offence

2

under Section 506/149 and the Court awarded RI for a period

of two years;

(vi) Since the election to the Council of States is by a system of

proportional representation by means of single transferable

vote, the counting of votes began at 7.30 P.M on 23.03.2018.

Out of the 80 votes cast, two were declared invalid by the

Returning Officer. The remaining 78 votes, which were validly

cast, were converted into points (at the rate of 100 points per

vote) and Pradeep Kumar Sonthalia was declared to have

secured 2599 value of votes, Samir Uraon was declared to

have secured 2601value of votes and Dhiraj Prasad Sahu was

declared to have secured 2600 value of votes. Thus, the

election petitioner was declared defeated and the other two,

declared duly elected;

(vii) It appears that an objection was lodged at 11.20 P.M.

requesting the Returning Officer to declare the vote cast by

Shri Amit Kumar Mahto invalid, on the basis of the conviction

and sentence imposed in the afternoon on the same day by

the Criminal Court;

(viii) However, the Returning Officer went ahead and declared the

results at 12.15 A.M. on 24.03.2018. Shri Samir Uraon and

Shri Dhiraj Prasad Sahu were declared by the Returning Officer

to be duly elected and they were also issued with a certificate

in Form No. 24 in terms of Rule 85 of the Conduct of Election

Rules, 1961;

3

(ix) Therefore, Pradeep Kumar Sonthalia, the defeated candidate

filed an election petition in Election Petition No.01/2018,

praying for a declaration that the Returning Officer has caused

improper reception of the void vote of Shri Amit Kumar Mahto.

He also prayed for setting aside the election of Shri Dheeraj

Prasad Sahu with a consequential declaration that the

petitioner was duly elected as a member of Rajya Sabha;

(x) The High Court framed as many as 6 issues for consideration

in the Election Petition and they are as follows: -

1. Whether Shri Amit Kumar Mahto has cast his vote in

favour of respondent no. 1 in Biennial Election to the

Council of States, 2018 in connection with State of

Jharkhand?

2. Whether on conviction and sentence of two years in

Sessions Trial No. 481 of 2010 by the Additional Judicial

Commissioner-XVIII, Ranchi, Shri Amit Kumar Mahto

ceased to be a Member of Legislative Assembly and his

disqualification came into effect immediately from the

date of his conviction and sentence of two years and,

therefore, the vote of Shri Amit Kumar Mahto could not

have been taken into consideration at the time of

counting?

3. Whether the disqualification of Shri Amit Kumar Mahto

rendered his vote void/illegal that was cast to

respondent no.1 and, therefore, reception of his vote

was improper and, thus, in terms of Section 100 (1) (d)

4

(iii) of the Representation of People Act, 1951, the

election of respondent no. 1 is liable to be declared void?

4. Whether the communication from the Returning Officer

(e-mail dated 24.03.2018) rejecting the objection made

on behalf of the petitioner on the ground that the

Returning Officer had not received the judgment of

conviction of Shri Amit Kumar Mahto till the declaration

of the results, is absolutely illegal and unlawful?

5. Whether disqualification of Shri Amit Kumar Mahto in

terms of Section 8 (3) of the Representation of People

Act, 1951, takes effect from the date of his conviction

and sentence of two years i.e. 23.03.2018 which means

the day as per English calendar beginning at midnight

and covering a period of 24 hours i.e. with effect from

23.03.2018 at 00.00 hours?

6. The respondent no. 1 having been declared to be elected

in the Biennial Election to the Council of States – 2018 by

a margin of 0.01 vote and in the event, the vote of Shri

Amit Kumar Mahto which has been received improperly

is ignored, then whether the petitioner is entitled to be

declared successful and consequently for being elected

as a Member of Rajya Sabha?

(xi) By a judgment dated 17.01.2020, the High Court dismissed the

Election Petition, after recording a finding in favour of the

election petitioner on Issue Nos. 1, 2, 3 & 5. On Issue Nos. 4 &

6, the High Court did not record any finding.

5

(xii) Despite deciding Issue Nos. 1, 2, 3 & 5 in favour of the election

petitioner, the High Court refused to grant any relief to the

election petitioner, primarily on the ground that the election to

the Council of States by a system of proportional

representation by means of single transferable vote, is a highly

complex, technical issue and that it is not possible for the

Court to find out whether the election petitioner could have

won the election, if that one vote had been rejected;

(xiii) Finding that the surgery was successful but the patient died,

the election petitioner has come up with one appeal in Civil

Appeal No.611 of 2020. Aggrieved by the findings on Issue

Nos. 1, 2, 3 & 5, one of the two returned candidates, namely

Shri Dhiraj Prasad Sahu, has come up with the other appeal

namely Civil Appeal No.2159 of 2020.For the purpose of

convenience, we refer to the appellant in Civil Appeal No. 611

of 2020, as the appellant throughout and the appellant in the

other appeal as the returned candidate.

4. Before proceeding further, it must be recorded that there is no

dispute either before us or before the High court, about the fact that

Shri Amit Kumar Mahto cast his vote at 9.15 A.M. on 23.03.2018 and

that the judgment of the criminal court was rendered at 2.30 p.m. on

the very same day.

5. Before the High court, a preliminary objection was raised

about the validity of the presumption on the part of the election

petitioner that Sri. Amit Kumar Mahto cast his vote in favour of Shri

6

Dhiraj Prasad Sahu. Unless Shri Amit Kumar Mahto had cast his vote

in favour of Shri Dhiraj Prasad Sahu, the entire edifice on which the

election petition was built could have crumbled. Therefore, the

Returning Officer, Mr. Binay Kumar Singh was examined as

PW-1 and through him the original ballot paper by which Shri Amit

Kumar Mahto cast his vote was marked as Exhibit-9. On the basis of

the same, the High Court came to the conclusion that Shri Amit

Kumar Mahto cast his vote in favour of Shri Dhiraj Prasad Sahu, the

Congress candidate. It was also clear from the evidence of PW-1 and

Exhibit-9 that Shri Amit Kumar Mahto did not cast his 2nd, 3rd and 4th

preference vote. Therefore, the validity of the vote cast by Amit

Kumar Mahto assumed significance, especially in view of the margin

of victory.

6. Since the factual position that Amit Kumar Mahto cast his vote

in favour of Dhiraj Prasad Sahu has now become unassailable, many

of the issues framed by the High Court have now paled into

insignificance. There are only 2 issues which now survive for

consideration and they are: -

(i) Whether the vote admittedly cast by Shri Amit Kumar Mahto in

favour of Shri Dhiraj Prasad Sahu at 9.15 A.M. on 23.03.2018

should be treated as an invalid vote on account of the

disqualification suffered by the voter under Article 191(1)(e) of

the Constitution of India read with Section 8(3) of the

Representation of the People Act, 1951, by virtue of his

conviction and sentence by the Sessions Court in a criminal

7

case, rendered at 2.30 P.M. on the very same date 23.03.2018;

and

(ii) Whether, in the event of the first issue being answered in the

affirmative, the election petitioner is entitled to be declared as

duly elected automatically.

7. It is needless to say that the second question as formulated

above would arise only if the answer to the first question is in the

affirmative and not otherwise.

8. Before proceeding further, we may point out that two ancillary

issues namely (i) the non-joinder of the Election Commission of India

as a party to the election petition; and (ii) the absence of a specific

prayer for recounting of votes, were also dealt with by the High Court.

These issues may have gained importance, but for the appeal filed by

Shri Dhiraj Prasad Sahu against the findings on Issue Nos. 1, 2, 3 & 5.

Therefore, these ancillary issues need not deter us at this stage.

9. The primary contention of Shri Mukul Rohatgi and Shri K.V.

Vishwanathan, learned senior counsel appearing for the defeated

candidate who is the appellant in the first civil appeal, is that

wherever a statute uses the word “date” with reference to an event,

courts have always interpreted the same to have happened at the

intersection of the previous day and the present day, namely 00.01

a.m. This is firstly because it is at that time that the day begins and

secondly because law abhors fractions. Therefore, it is their

contention that though the Sessions Court delivered its judgment of

conviction and sentence at 2.30 P.M. on 23.03.2018, the date of such

8

conviction is deemed in law to have commenced at about 00.01 A.M.

when the date of March 22 lapsed and the date of March 23 began. It

is the further contention of the learned Senior Counsel that if the time

at which the judgment was delivered is irrelevant and the focus is

actually on the date of conviction, then the disqualification would also

commence at 00.01 A.M. on 23.03.2018. As a corollary, the vote cast

at 9.15 A.M. on 23.03.2018 would be a vote by a disqualified member

and thus invalid.

10. In order to test the veracity of the above contention, it is

necessary first to take note of the relevant provisions of the

Constitution and the Representation of the People Act, 1951.

11. Article 191 of the Constitution speaks of the circumstances

under which a person will be treated as disqualified (i) either for

being chosen as (ii) or for being, a member of the State

Legislative Assembly. The language of Article 191 makes it clear that

it covers both a contest in an election and the continuance in office

after getting elected. It reads as follows: -

“191. Disqualifications for membership

(1) A person shall be disqualified for being chosen as,

and for being, a member of the Legislative Assembly

or Legislative Council of a State

(a) if he holds any office of profit under the

Government of India or the Government of any State

specified in the First Schedule, other than an office

declared by the Legislature of the State by law not to

disqualify its holder;

(b) if he is of unsound mind and stands so declared

by a competent court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily

acquired the citizenship of a foreign State, or is under

any acknowledgement of allegiance or adherence to

a foreign State;

9

(e) if he is so disqualified by or under any law made

by Parliament

[Explanation.- For the purposes of this clause] a

person shall not be deemed to hold an office of profit

under the Government of India or the Government of

any State specified in the First Schedule by reason

only that he is a Minister either for the Union or for

such State.

[(2) A person shall be disqualified for being a

member of the Legislative Assembly or Legislative

Council of a State if he is so disqualified under the

Tenth Schedule]”

12. If a person, being a member of the Assembly, suffers a

disqualification, his seat becomes vacant. This situation is taken care

of by Article 190 which reads as follows:

“190. Vacation of seats-

(1)……

(2)…….

(3) If a member of a House of the Legislature of a

State-

(a) becomes subject to any of the disqualifications

mentioned in clause ( 1 ) or clause ( 2 ) of Article

191; or

(b) resigns his seat by writing under his hand

addressed to the Speaker or the Chairman, as the

case may be, and his resignation is accepted by the

Speaker or the Chairman, as the case may be,

his seat shall thereupon become vacant:

[Provided that in the case of any resignation referred

to in sub clause (b), if from information received or

otherwise and after making such inquiry as he thinks

fit, the Speaker or the Chairman, as the case may be,

is satisfied that such resignation is not voluntary or

genuine, he shall not accept such resignation]”

13. It is clear as daylight that the event which causes the

disqualification under Article 191(1)(e) read with Section 8(3) is a

conviction of a person for any of the specified offences. The

consequence of such disqualification is that the seat becomes vacant.

Obviously therefore, a Member of the Legislative Assembly who has

become disqualified and whose seat has become vacant is not

10

entitled to cast his vote for electing a representative from his State

under Article 80(4) which provides that the representatives of each

State “shall be elected by the elected members”. His name is liable to

be deleted from the list of members of the State Legislative Assembly

maintained under Section 152 of the Representation of the People

Act, 1951. He ceases to be an elector in relation to election by

assembly member and cannot cast his vote.

14. The Representation of the People Act, 1951 was enacted for

the purpose of providing for the conduct of elections of both houses of

Parliament and to the House/Houses of State Legislatures, the

qualifications and disqualifications for membership of those houses,

the corrupt practices etc.,. Section 8 of the Act deals with

disqualification on conviction for certain offences. For the purpose of

disqualification, the offences are classified in section 8 into 3

categories, namely

(i) offences falling under sub-section (1)

(ii) offences falling under sub-section (1) and

(iii) offences not falling either under sub-section (1) or under subsection (2).

15. The disqualification results in the Member becoming liable to

be removed from the list of voters under Section 152 of the

Representation of the People Act, 1951, though the actual deletion

may take time. In any case, he ceases to be an elector vide Rule 2(d)

of the Conduct of Election Rules, 1961 which provides that an elector

11

in relation to an election by assembly members means any person

entitled to vote at that election.

16. We are concerned in this case with sub-section (3) of section 8,

as Amit Kumar Mahto was convicted for offences which do not fall

either under sub-section (1) or under sub-section (2). Therefore, Subsection (3) of section 8 alone is extracted as follows: -

“8. Disqualification on conviction for certain

offences.-(1)………

(2) ………….

(3) A person convicted of any offence and sentenced

to imprisonment for not less than two years [other

than any offence referred to in sub-section (1) or subsection (2)] shall be disqualified from the date of

such conviction and shall continue to be disqualified

for a further period of six years since his release.]”

17. The disqualification under Section 8 of Act 43 of 1951 is

relatable to Article 191(1)(e) of the Constitution. Therefore, any

interpretation to Section 8 should be in sync with the Constitutional

scheme.

18. As this Court had an occasion to point out in Saritha S. Nair

vs. Hibi Eden

1

, Section 8(3) of the Act deals both with the conditions

of disqualification and with the period of disqualification. As regards

the period of disqualification, Section 8(3) is comprehensive in that it

indicates both the commencement of the period and its expiry. The

date of conviction is prescribed to be the point of commencement of

disqualification and the date of completion of a period of six years

after release, is prescribed as the point of expiry of the period of

disqualification.

1

SLP (C) No. 10678 of 2020 dated 08-12-2020

12

19. Once the period of disqualification starts running, the seat

hitherto held by the person disqualified becomes vacant by virtue of

Article 190(3) of the Constitution. While speaking about the seat of

the disqualified person becoming vacant, Article 190(3) uses the

expression “thereupon”. We may have to keep this in mind while

interpreting the words “the date of such conviction”.

20. One fundamental principle that we may have to keep in mind

while interpreting the phrase appearing in Section 8(3) is that in cases

of this nature, the Court is not dealing with a fundamental right or a

common law right. As pithily stated by this Court in Jyoti Basu vs.

Devi Ghosal

2

, an election dispute lies in a special jurisdiction and

hence it has to be exercised without importing concepts familiar to

common law and equity, unless they are ingrained in the statute

itself. We may usefully extract the relevant portion of the decision in

Jyoti Basu which reads as follows: -

“8. A right to elect, fundamental though it is to

democracy, is, anomalously enough, neither a

fundamental right nor a Common Law Right. It is pure

and simple, a statutory right. So is the right to be

elected. So is the right to dispute an election. Outside

of statute, there is no right to elect, no right to be

elected and no right to dispute an election. Statutory

creations they are, and therefore, subject to statutory

limitation. An Election petition is not an action at

Common Law, nor in equity. It is a statutory

proceeding to which neither the Common Law nor the

principles of Equity apply but only those rules which

the statute makes and applies. It is a special

jurisdiction, and a special jurisdiction has always to

be exercised in accordance with the statutory

creating it. Concepts familiar to Common Law and

Equity must remain strangers to Election Law unless

statutorily embodied”.

2

(1982) 1 SCC 691

13

21. Placing heavy reliance upon the decision of this Court in

Pashupati Nath Singh vs. Harihar Prasad Singh

3

, it is contended

that wherever the statute uses the words “on the date”, it should be

taken to mean “on the whole of the day” and that law disregards

as far as possible, fractions of the day.

22. But in our considered view Pasupati Nath Singh hardly

supports the contention of the Appellant. In that case the election to

the Bihar legislative Assembly from Dumro constituency was in issue.

As per the schedule, the filing of nominations was to take place from

13.01.1967 to 20.01.1967. The date of scrutiny of nomination papers

was fixed as 21.01.1967. The returning officer, upon scrutiny of

nominations on 21.01.1967, rejected the nomination paper of the

Appellant before this Court, on the ground that he had not made and

subscribed the requisite oath or affirmation as enjoined by clause (a)

of Article 173, either before the scrutiny or even subsequently on the

date of scrutiny. The question that arose in that case was formulated

in paragraph 4 as follows: -

“4. The short question which arises in this appeal is

whether it is necessary for a candidate to make and

subscribe the requisite oath or affirmation as

enjoined by clause (a) of Art. 173 of the Constitution

before the date fixed for scrutiny of nomination

paper. In other words, is a candidate entitled to make

and subscribe the requisite oath when objection is

taken before the Returning Officer or must he have

made and subscribed the requisite oath or

affirmation before the scrutiny of nomination

commenced?”

23. The answer to the above question turned on the interpretation

to Section 36(2) of the Act, clause (a) of which used the words “on

3 AIR 1968 SC 1064

14

the date fixed for scrutiny”. The contention of the appellant before

this court in Pashupati Nath Singh was that he was entitled to take

the oath or affirmation, before the Returning Officer, immediately

after an objection is made but before the objection was considered by

the Returning officer. Since Section 36(2)(a) uses the expression “on

the date fixed for scrutiny” it was contended by the appellant in

Pashupati Nath Singh that the whole of the day on which the

scrutiny took place was available to him. However, this contention

was rejected by this Court in the following manner: -

“16. In this connection it must also be borne in

mind that law disregards, as far as possible,

fractions of the day. It would lead to great

confusion if it were held that a candidate would

be entitled to qualify for being chosen to fill a

seat till the very end of the date fixed for

scrutiny of nominations. If the learned counsel

for the petitioner is right, the candidate could

ask the Returning Officer to wait till 11.55 p.m.

on the date fixed for the scrutiny to enable him

to take the oath”.

24. In other words, this Court interpreted the words “date” in

Pashupati Nath Singh, not necessarily to mean 00.01 A.M. to 24.00

P.M. This was despite the fact that in common parlance a date would

mean 24 hours in time. But the running of time got arrested, the

moment the nomination of the appellant in Pashupati Nath Singh

was taken up for scrutiny. Thus, the benefit of the whole day of 24

hours was not made available by this court in Pashupati Nath

Singh to the appellant therein and the act of the Returning officer in

drawing the curtains down at the happening of the event namely

scrutiny of nomination papers, was upheld by this court in Pashupati

Nath Singh.

15

25. In fact, Pashupati Nath Singh can be said to be a mirror

image or the converse of the case on hand. In the case on hand the

period of commencement of an event is in question, while in

Pashupati Nath Singh the period of conclusion was in issue. If the

date on which scrutiny was taken up can be held to have

ended at the time when the event of scrutiny was taken up,

we should, by the very same logic, hold that the date of

commencement of an event such as conviction and the

consequent disqualification should also begin only from the

time when the event happened.

26. In fact, the argument of the appellant in this case is a double

edged weapon. If the event of conviction and sentencing that

happened at 2.30 P.M. on 23.03.2018 can relate back to 00.01 A.M.,

the event of voting by Shri. Amit Kumar Mahto which happened at

9.15 A.M. can also relate back to 00.01 A.M. Once both of them are

deemed to relate back to the time of commencement of the date, the

resulting conundrum cannot be resolved. This why, the emphasis in

Pashupati Nath Singh was to provide an interpretation that will

avoid confusion.

27. The learned Senior Counsel for the appellant relied upon the

decision of this Court in Prabhu Dayal Sesma vs. State of

Rajasthan

4

in support of their contention that a legal date

commences after 12 o’ clock midnight and continue until the same

hour of the following night. But Prabhu Dayal Sesma arose in the

context of Rule 11B of the Rajasthan State and Subordinate Services

4

(1986) 4 SCC 59

16

Rules 1962 which prescribed the minimum and maximum age for

participation in the selection for direct recruitment to Rajasthan

Administrative Service. The appellant in that case was born on

02.01.1956 and Rule 11B prescribed that an applicant for

participation in the selection, must not have attained the age of 28

years on the first day of January, next following the last date fixed for

receipt of application. Therefore, when a notification was issued in the

year 1983, the upper age limit was to be reckoned as on

January 1, 1984. Since the appellant was born on 02.01.1956 and

attained the age of 28 years on 01.01.1984, his candidature was

rejected. It was in such circumstances that this Court took note of

Section 4 of the Indian Majority Act 1875, which stipulated the

method of computation of the age of any person. In view of the fact

that Rule 11B used the words “must not have attained the age of

28 years”, this court concluded that the appellant therein attained

the said age at 12 o’clock midnight when January 1 was born. We

should point out here that if Prabu Dayal Sesma concerned a case

of retirement, he would be taken to have attained the age of

superannuation on January 1 by the very same logic, but at 2400

hours on January 1. But Rule 11B mandated that the candidate “must

not have attained”. Therefore, Prabhu Dayal Sesma also does not

go to the rescue of the appellant.

28. Tarun Prasad Chatterjee vs. Dinanath Sharma

5

, relied

upon by the learned senior counsel for the appellant concerned the

question of computation of the period of limitation for filing an

5

(2000) 8 SCC 649

17

Election petition under section 81(1) of the R.P. Act 1951. Therefore,

this Court referred to Section 9 of the General Clauses Act, 1897 that

laid down the manner in which statutes prescribing the

commencement and termination of time, can be worded by using

expressions such as “from” and “to”. But this decision is also of no

assistance to the appellant for the simple reason that Section 8(3) of

the Act uses the word “from” as well as the expression “the date of

conviction” and Tarun Prasad Chatterjee concerned the

interpretation to be given only to the word “from”.

29. In any case, Tarun Prasad Chatterjee need not have gone

as far as the General Clauses Act, since Section 12(1) the Limitation

Act, 1963 itself provides for the exclusion of the date from which the

period of limitation is to be reckoned, while computing the period of

limitation.

30. We must point out at this juncture that even in criminal law,

there is a vast difference between (i) the interpretation to be given to

the expression “date”, while calculating the period of imprisonment

suffered by a person and (ii) the interpretation to be given to the very

same expression while computing the period limitation for filing an

appeal/revision. Say for instance, a person is convicted and sentenced

to imprisonment and also taken into custody pursuant thereto, on

23.03.2018, the whole of the day of March 23 will be included in the

total period of incarceration. But in contrast, the day of March 23 will

be excluded for computing the period of limitation for filing an appeal.

18

Though one contrasts the other, both interpretations are intended to

benefit the individual.

31. Placing reliance upon the decision of the Constitution bench in

B.R Kapur vs. State of T.N. & Anr.

6

 it was contended by the learned

senior counsel for the appellant that the disqualification under Article

191 of the Constitution and Section 8 of the R.P. Act is not a penal

provision and that therefore the question of beneficial construction

would not arise, especially when the object of such disqualification is

to cleanse politics.

32. We have no doubt that disqualification is not a penal provision

and that the object of disqualification is to arrest criminalisation of

politics.

33. But what triggered the disqualification in this case, under

Section 8(3) was a conviction by a criminal Court, for various offences

under the Penal Code. Therefore, the phrase “the date of

conviction” appearing in Section 8(3) should receive an

interpretation with respect to the penal provisions under which a

person was convicted.

34. The rule that a person is deemed innocent until proved guilty

is a long-standing principle of constitutional law and cannot be taken

to be displaced by the use of merely general words. In law this is

known as the principle of legality and clearly applies to the present

case. In Pierson vs. Secretary of State for the Home

Department

7

, House of Lords held that unless there be clearest

6

(2001) 7 SCC 231

7

(1997) 3 All ER 577

19

provision to the contrary, Parliament is presumed not to legislate

contrary to rule of law which enforces ‘minimum standard of fairness

both substantive and procedural’.

35. In our view to hold that a Member of the Legislative Assembly

stood disqualified even before he was convicted would grossly violate

his substantive right to be treated as innocent until proved guilty. In

Australia this principle has been described as an aspect of the rule of

law “known both to Parliament and the Courts, upon which statutory

language will be interpreted”8

.

36. In the present case, it would be significant to add that it is not

necessary to make a declaration incompatible in the use of the word

“date” with the general rule of law since the word “date” is quite

capable of meaning the point of time when the event took place

rather than the whole day.

37. The well-known presumption that a man is innocent until he is

found guilty, cannot be subverted because the words can

accommodate both competing circumstances. While it is known that

an acquittal operates on nativity, no case has been cited before us for

the proposition that a conviction takes effect even a minute prior to

itself. Moreover, the word “date” can be used to denote occasion,

time, year etc. It is also used for denoting the time up to the present

when it is used in the phrase “the two dates”. Significantly, the word

“date” can also be used to denote a point of time etc. (See Roget’s

International Thesaurus third edition Note 114.4).

8 K-Generation Pty. Ltd. vs. Liquor Licensing Court, (2009) 83 ALJR 327 para 47.

20

38. To say that this presumption of innocence would evaporate

from 00.01 A.M., though the conviction was handed over at 14.30 P.M.

would strike at the very root of the most fundamental principle of

Criminal Jurisprudence.

39. Inasmuch as a conviction for an offence is under a penal law, it

cannot be deemed to have effect from a point of time anterior to the

conviction itself. As rightly pointed by Dr. A.M. Singhvi, this court held

in Union of India vs. M/S G.S Chatha Rice Mills

9

that legal fiction

cannot prevail over facts where law does not intend it to so prevail. It

was a case where a notification was issued by the Government of

India under section 8A of the Customs Tariff Act 1975, introducing a

tariff on all goods originating in or exported from Pakistan. The

notification was uploaded on the e-gazette at 20:46:58 hours on

16.02.2019. The Government of India took a stand that the enhanced

rate of duty was applicable even to those who had already presented

bills of entry for home consumption before the enhanced rate was

notified in the e-gazette. The importers successfully challenged the

claim of the customs authorities before the High court and the Union

of India came up on appeal to this Court. An extensive analysis was

made in Section H of the decision in M/S G.S. Chatha Rice Mills, on

the interpretation of the words “day” and “date”. After taking note of

several decisions, some of which arose under the law of Limitation,

some under the law of Insurance and some under the Election law,

this Court pointed out that these expressions were construed in

varying contexts and that a general position in law, divorced from

9

(2020) SCC Online SC 770

21

subject, context and statute, has not been laid down. As succinctly

put by this Court, “Legislative silences create spaces for

creativity” and that “between interstices of legislative spaces

and silences, the law is shaped by the robust application of

common sense”.

40. The decision in K Prabhakaran vs. P Jayarajan

10

 relied upon

by the learned Senior Counsel for the appellant did not deal with the

question that we are now confronted with. It was a case where (i) the

effect of several sentences of imprisonment, each for a period of less

than 2 years ordered to run consecutively and not concurrently,

thereby totalling to more than the period prescribed under section

8(3) of the Act and (ii) the effect of the decision of the Appellate Court

rendered in a criminal case after the election was over, were in

question. It is in that context that the Constitution Bench held in K

Prabhakaran that Section 8 of the R.P Act has to be construed in

harmony with the provisions of Cr.P.C so as to give effect to the

provisions contained in both.

41. Cases arising under the law of insurance, have no relevance to

cases of disqualification. Even under the law of insurance, different

principles of interpretation have been carefully nurtured and

developed. For instance, New India Assurance Company Limited

vs. Ram Dayal & Ors.

11

, this Court was concerned with a case where

a vehicle had insurance cover upto 31.08.1984, which was not

renewed. However, a fresh policy was taken on 28.09.1984. It was on

10 (2005) 1 SCC 754

11 (1990) 2 SCC 680

22

the very same day that the vehicle got involved in an accident. The

Motor Accident Claims Tribunal upheld the repudiation of liability by

the insurer, but the High Court held that the policy of insurance

obtained on the date of the accident became operative from the

commencement of the date of insurance, namely from the previous

midnight. While upholding the view taken by the High Court, by a

short order, this Court referred to In Re F.B. Warren12, wherein it

was held that a judicial act will be referred to the first moment of the

day on which it is done. However, in a subsequent decision in

National Insurance Company Limited vs. Jijubhai Nathuji Dabhi

& Ors.

13

, this Court explained the decision in Ram Dayal (supra) by

stating that the same would hold good only in the absence of any

specific time mentioned in that behalf in the policy of insurance. In

Jijubhai Nathuji Dabhi (supra), the Court found that the contract

clearly stipulated that it would be operative from 4.00 p.m on

25.10.1983 and that therefore the insurance coverage was not

available in respect of an accident that happened before 4.00 p.m. on

the same day. The decision in Jijubhai Nathuji Dabhi (supra) was

also followed in New India Assurance Company vs. Bhagwati

Devi

14

.

42. It must be remembered that a policy of insurance lies in the

realm of contract. Therefore, the interpretation to be given to the

terms of such contract would largely depend upon the intent of the

parties, with a certain degree of latitude in favour of a party whose

12 (1938) 2 All ER 331

13 (1997) 1 SCC 66

14 (1998) 6 SCC 534

23

bargaining power is not equal to that of other contracting party.

Hence, it is not possible for us to adopt the interpretation given to the

word “the date” appearing in a contract of Insurance.

43. Accepting the appellant’s submission would require us to

construe the statutory scheme as intending something startling i.e.

positing that the consequence precedes the cause. This would

be reducing this provision to absurdity and require Courts to hold that

a consequence can precede its cause, but according to the learned

counsel this is the intended effect of the provision since it states that

a convicted person shall be disqualified from the date of his

conviction. But we do not agree. The disqualification arising

under Section 8(3) of the Act, is the consequence of the

conviction and sentence imposed by the criminal Court. In

other words, conviction is the cause and disqualification is

the consequence. A consequence can never precede the

cause. If we accept the contention of the appellant, the consequence

will be deemed to have occurred even before the cause surfaced.

44. It is contended by the learned Senior Counsel for the Returned

candidate, that the Constitution also takes care of the contingency of

disqualified persons sitting and voting despite suffering a

disqualification and that a court cannot travel beyond what is so

prescribed. Article 193 which takes care of this contingency reads as

follows: -

“193. Penalty for sitting and voting before

making oath or affirmation under Article 188 or

when not qualified or when disqualified. - If a

person sits or votes as a member of the Legislative

24

Assembly or the Legislative Council of a State before

he has complied with the requirements of Article 188,

or when he knows that he is not qualified or that he

is disqualified for membership thereof, or that he is

prohibited from so doing by the provisions of any law

made by Parliament or the Legislature of the State,

he shall be liable in respect of each day on which he

so sits or votes to a penalty of five hundred rupees to

be recovered as a debt due to the State.”

45. On the basis of Article 193, it is contended that when law

prescribes certain consequences for an act of commission, the Court

cannot impose additional consequences. Reliance is placed in this

regard on the decision of this Court in State of Madhya Pradesh vs.

Centre for Environment Protection Research and Development

& Ors.

15

,wherein it was held that when a Statute or the Statutory

Rules prescribes a penalty for any act or omission, no other penalty

not contemplated in the Statute or the Rules can be imposed.

46. But we do not think that the aforesaid decision can be applied

to cases where consequences other than a penalty arise on account

of an act or omission. While it is true that a penalty other than the

one prescribed by the Statute cannot be imposed for a particular act

or omission, the said principle has no place in so far as consequences

other than penalty which flow automatically out of such act or

omission, are concerned.

47. Article 193 deals with the penalty to be imposed upon an

erring member who sits or votes as a member of the Legislative

Assembly or the Legislative Council (i) either before he has complied

with the requirements of Article 188; (ii) or when he knows that he is

15 (2020) SCC Online SC 687

25

not qualified for membership; (iii) or when he knows that he is

disqualified from being a Member; (iv) or when he knows that he is

prevented by any law from sitting or voting.

48. A disqualification for which penalty is prescribed under Article

193, also invites civil consequences such as the denial of privileges

that go with the membership, other than the penalty stipulated in

Article 193. Once a person is disqualified, he ceases to be a member

and his right to vote also ceases alongwith his membership. This is a

natural consequence of a person ceasing to be a member and this

consequence is automatic and not dependent upon Article 193.

Therefore, we cannot stretch Article 193 to such an extent that even

the natural consequences of disqualification of a member will not get

attracted because of the prescription of a penalty.

49. However, Article 193 and the interpretation given to the same

by this Court may be of significance for finding out whether an act or

omission done by a person disqualified would also perish and if so in

what circumstances.

50. In Pashupati Nath Sukul vs. Nem Chandra Jain

16

, one of

the questions that arose for consideration was whether a person

elected as a member of the Assembly but who has not made and

subscribed the prescribed oath or affirmation as required by Article

188 can validly propose a person as a candidate at an election for

filling a seat in the Rajya Sabha. This question arose under peculiar

circumstances. The elections to the Legislative Assembly of the State

16 (1984) 2 SCC 404

26

of Uttar Pradesh were held in May, 1980 and the notification

containing the names of elected members was issued on 09.06.1980

under Section 73 of the Representation of the People Act, 1951. The

elected members were notified that they could take oath as required

by Article 188 at the Session of the Assembly summoned to meet on

27.06.1980. But in the meantime, election for filling up a vacancy in

the Rajya Sabha was notified on 17.06.1980. Therefore, the proposal

of the name of a candidate for election to the Rajya Sabha, made by

an elected member who was yet to take oath under Article 188, was

objected to. The objection was overruled and the nominated

candidate won the election. Therefore, the question as stated above

arose, before this Court in an Election Petition.

51. Article 188 reads as follows: -

“188. Oath or affirmation by members. - Every

member of the Legislative Assembly or the

Legislative Council of a State shall, before taking his

seat, make and subscribe before the Governor, or

some person appointed in that behalf by him, an oath

or affirmation according to the form set out for the

purpose in the Third Schedule.”

52. In view of the mandate of Article 188, it was argued before this

Court in Pashupati Nath Sukul (supra)that before taking his seat,

an elected person is required to take an oath or affirmation and that if

he had failed to do so, he could not be counted as a member entitled

to vote. Overruling the said contention, this Court held as follows: -

“We are of the view that an elected member who has

not taken oath but whose name appears in the

notification published under Section 73 of the Act can

take part in all non-legislative activities of an elected

member. The right of voting at an election to the

Rajya Sabha can also be exercised by him. In this

27

case since it is not disputed that the name of the

proposer had been included before the date on which

he proposed the name of the appellant as a

candidate in the notification published under Section

73 of the Act and in the electoral roll maintained

under Section 152 of the Act, it should be held that

there was no infirmity in the nomination. For the

same reason even the electoral roll which contained

the names of elected members appearing in the

notification issued under Section 73 of the Act cannot

be held to be illegal. That is how even respondent No.

1 appears to have understood the true legal position

as he was also proposed as a candidate by an elector

who had not yet made the oath or affirmation.”

53. Therefore, it is clear that dehors the liability for penalty under

Article 193, the act done by the elected member is not liable to be

invalidated, but only in certain circumstances. One of them may be a

case like the one on hand apart from cases falling foul of Article

188.But the position would have been different if Shri Amit Kumar

Mahto had been convicted and sentenced in the forenoon of

23.03.2018 and yet he voted in the election to the Rajya Sabha in the

afternoon with full knowledge.

54. The fallacy of the argument of the appellant that wherever the

word “date” is used in a Statute, it should be understood to relate

back to 00:01 a.m. can be best understood if we apply the same to a

reverse situation. If in a hypothetical situation, the conviction and

sentence had taken place in the forenoon and Shri Amit Kumar Mahto

had cast his vote in the afternoon, the defeated candidate would not

have argued that the voting should be deemed to have taken place at

00:01 a.m.

55. In any case the principle that the acts of the officers de facto

performed within the scope of their assumed official authority, in the

28

interest of the public or third persons and not for their own benefit,

are generally regarded as valid and binding as if they were the acts of

the officers de jure, articulated in Pulin Behari Das & Ors. vs. King

Emperor

17

, was invoked by this Court in Gokaraju Rangaraju vs.

State of Andhra Pradesh

18 when a question arose as to the validity

of the judgments pronounced by an Additional Session Judge whose

appointment was declared by the Court to be invalid subsequently.

This Court pointed out that the de facto doctrine is founded on good

sense, sound policy and practical expedience and that it is aimed at

the prevention of public and private mischief and the protection of

public and private interest. As stated by this Court this doctrine

avoids endless confusion and needless chaos.

56. Again, in Pushpadevi M. Jatia vs. M.L. Wadhawan,

Additional Secretary, Government of India & ors.

19, this Court

reiterated the de facto doctrine as one born of necessity and public

policy to prevent needless confusion and endless mischief. This Court

held that “where an office exists under the law, it matters not how the

appointment of the incumbent is made, so far as validity of his acts

are concerned.” So long as he is clothed with the insignia of the office

and exercises its powers and functions, the acts performed by him

were held by this Court to be valid.

57. Even in B.R. Kapur (supra), this Court invoked the de facto

doctrine to declare as valid, all acts performed by a Chief Minister

17 (1912) 15 Cal.LJ 517

18 (1981) 3 SCC 132

19 (1987) 3 SCC 367

29

whose appointment was held to be invalid from day one. Paragraph

57 of the said decision reads as follows:

“We are aware that the finding that the second

respondent could not have been sworn in as Chief

Minister and cannot continue to function as such will

have serious consequences. Not only will it mean

that the State has had no validly appointed Chief

Minister since 14th May, 2001, when the second

respondent was sworn in, but also that it has had no

validly appointed Council of Ministers, for the Council

of Ministers was appointed on the recommendation

of the second respondent. It would also mean that all

acts of the Government of Tamil Nadu since 14th

May, 2001 would become questionable. To alleviate

these consequences and in the interest of the

administration of the State and its people, who would

have acted on the premise that the appointments

were legal and valid, we propose to invoke the de

facto doctrine and declare that all acts, otherwise

legal and valid, performed between 14th May, 2001

and today by the second respondent as Chief

Minister, by the members of the Council of Ministers

and by the Government of the State shall not be

adversely affected by reason only of the order that

we now propose to pass.”

58. Therefore, it is not possible to hold that the vote cast by Shri

Amit Kumar Mahto at 9:15 a.m. on 23.03.2018 should be treated as

invalid on account of the conviction and sentence passed by the

criminal Court at 2:30 p.m. on the same day. This conclusion can be

drawn through another process of reasoning also. Article 191 (1) of

the Constitution deals with five different grounds of disqualification.

They are (i) holding an office of profit as specified in the First

Schedule; (ii) unsoundness of mind, which stands so declared by a

competent Court; (iii) undischarged insolvency; (iv) absence of

citizenship of India or acquisition of citizenship of a foreign State etc.;

and (v) disqualification by or under any law made by Parliament.

30

59. The interpretation to be given to the expression “the date”

appearing in Section 8(3) of the Representation of the People Act,

1951 will have a bearing upon the interpretation to be given to the

date of happening of any one of the above events of disqualification.

60. While it may be convenient for the appellant in this case to

interpret the expression “the date” appearing in Section 8(3) with

reference to Article 191(1)(e), we may have to see whether the same

would fit into the scheme of Article 191(1) in entirety. It may not. If

tested against each one of Sub-clauses (a) to (d) of Clause (1) of

Article 191 we would find that the interpretation offered by the

appellant would not survive. Justice Oliver Wendell Holmes, Jr. in

Henry R Towne vs. Mark Eisner

20 while dealing with the

construction of a word in the Constitution as well as a statute,

observed:-

“A word is not a crystal, transparent and unchanged;

it is the skin of a living though and may vary greatly

in colour and content according to the circumstances

and tie in which it is used”

61. Therefore, on the first issue we hold that the vote cast by Shri

Amit Kumar Mahto at 9:15 a.m. on 23.03.2018 was rightly treated as

a valid vote. To hold otherwise would result either in an expectation

that the Returning Officer should have had foresight at 9:15 a.m.

about the outcome of the criminal case in the afternoon or in vesting

with the Election Commission, a power to do an act that will create

endless confusion and needless chaos.

20 245 U.S. 418

31

62. In view of our above answer to the first issue, the second issue

does not arise for consideration. Therefore, the Civil Appeal No.611 of

2020 is dismissed. Civil Appeal No.2159 of 2020 is allowed, setting

aside the findings of the High Court on issue Nos. 2, 3 and 5 framed

by the High Court. There will be no order as to costs.

……………………………..CJI

[S.A. BOBDE]

……………………………….J.

[A.S. BOPANNA]

………………………………..J.

[V. RAMASUBRAMANIAN]

New Delhi

December 18, 2020

32

Smt. S Vanitha ....Appellant Versus The Deputy Commissioner, .... Respondents Bengaluru Urban District & Ors.

 1

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 3822 of 2020

(Arising out of SLP (C) No. 29760 of 2019)

Smt. S Vanitha ....Appellant

Versus

The Deputy Commissioner, .... Respondents

Bengaluru Urban District & Ors. 

2

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J

Index

A Background

B Submissions

C Legislative scheme: Senior Citizens Act 2007

D A woman‟s right of residence: safeguard against domestic violence

E Harmonising competing reliefs under the PWDV Act 2005 and Senior Citizens

Act 2007

F Summation 

PART A

3

A Background

1 The present dispute arises out of an application filed by the Second and Third

respondents against the appellant, who is their daughter-in-law. The Second and

Third respondents are the parents of the Fourth respondent, who is the estranged

spouse of the appellant. The Second and Third respondents filed an application

under the provisions of the Maintenance and Welfare of Parents and Senior Citizens

Act 20071

, and inter alia, sought the appellant and her daughter‟s eviction from a

residential house in North Bengaluru2

.

2 The Assistant Commissioner, and the Deputy Commissioner in appeal,

allowed the application under the Senior Citizens Act 2007 and directed the

appellant to vacate the suit premises. Aggrieved by this order, the appellant

unsuccessfully pursued a writ proceeding under Article 226 of the Constitution

before a Single Judge, and in appeal before a Division Bench of the High Court of

Karnataka. The Division Bench by its judgment dated 17 September 2019 held that

the suit premises belonged to the mother-in-law (the Second respondent) of the

appellant and the remedy of the appellant for maintenance and shelter lies only

against her estranged husband (the Fourth respondent). The Division Bench upheld

the Order of the Deputy Commissioner, and directed the appellant to vacate the suit

premises before 31 December 2019. Challenging the jurisdiction of the authorities3

1

“Senior Citizens Act 2007”

2

“suit premises”

3

The Assistant Commissioner, Bengaluru North Sub-Division at Bengaluru and the Deputy Commissioner,

Bengaluru District

PART A

4

to decree her eviction under the Senior Citizens Act 2007, the appellant has moved

this Court under Article 136 of the Constitution.

3 The appellant and the Fourth respondent were married on 30 May 2002.

Soon thereafter, a matrimonial dispute arose between the parties. The appellant

alleges that she was harassed for dowry and even compelled to institute a suit for

partition against her father in 20034 which she later withdrew, after her spouse

allegedly deserted her to be in a relationship with another woman. The subject

matter of the controversy is a residential house situated at Gangondonahalli,

Dasanapura, Hobli, Bengaluru North Taluk. The land was purchased by the Fourth

respondent on 2 May 2002, a few months before the appellant married him. The

appellant alleges that her father had financed a portion of this purchase.

4 On 5 October 2006, the Fourth respondent sold the land to his father - the

Third respondent. The transaction of sale between the father and the son was for

the same consideration of Rs.1.19 lacs, as was paid by the Fourth respondent for

the original purchase of the property in 2002. By then, the appellant and the Fourth

respondent had a daughter. In 2009, the Fourth respondent instituted a petition for

divorce5

under Section 13(1)(ia) and (ib) of Hindu Marriage Act 1955 before the

Senior Civil Judge and Judicial Magistrate, First Class, Nelamangala6

. The Third

respondent, following the purchase of the property and after constructing a house,

gifted it to his spouse - the Second respondent, on 19 July 2010. Soon thereafter, on

4 OS 211 of 2003

5 MC 22 of 2009

6

“Trial Judge”

PART A

5

17 August 2010, the Second respondent instituted a suit against the appellant 7

before the JMFC, Nelamangala seeking a permanent injunction restraining the

appellant from interfering with the possession of the suit property. The suit is

pending. On 5 December 2013, the petition for divorce was allowed by the Trial

Judge and the marriage between the appellant and the Fourth respondent was

dissolved. On 19 March 2014, the appellant instituted a proceeding 8

for

maintenance. She also filed an appeal before the High Court of Karnataka9

against

the dissolution of her marriage by the Trial Judge. The proceedings for divorce and

maintenance are also pending.

5 In 2015, the Third and Fourth respondents invoked the provisions of the

Senior Citizens Act 2007 by instituting an application before the Assistant

Commissioner, Bengaluru North Sub Division. Their son (the Fourth respondent)

and the appellant were impleaded as respondents to the petition10 . The reliefs

sought were:

(i) Eviction of the appellant from the suit premises where she was residing;

(ii) A direction to the Fourth respondent to pay an amount of Rs.15,000 to the

parents by way of monthly maintenance; and

(iii) A direction to the appellant and fourth respondent to pay an amount

quantified at Rs. 25,000 towards legal expenses.

7 OS 312 of 2010

8 Criminal Miscellaneous 114 of 2014 before the Civil Judge (Jr. Dn.), JMFC Nelamangala

9 MFA 3968 of 2014

10 Petition 31 of 2015

PART A

6

The appellant filed an objection to the petition filed under the Senior Citizens Act

2007, alleging it to be a malicious proceeding that was instituted with the sole intent

to evict her from the suit premises. The appellant also claimed that the proceedings

were collusive in nature and an attempt by the Second and Third respondents and

her estranged spouse (the Fourth respondent) to evict her from her matrimonial

home. The appellant specifically raised an objection to the jurisdiction of the

authorities to entertain the proceedings seeking her eviction from the premises. She

submitted that while the Senior Citizens Act 2007 provides for the maintenance of a

senior citizen or a parent, there is no provision envisaging an order of eviction, and

that the authorities had no jurisdiction to direct her removal from the premises.

6 The Assistant Commissioner by an Order dated 25 June 2015, held that the

residential house was the self-acquired property of the Third respondent which he

subsequently gifted to the Second Respondent. The appellant was residing in the

property, but was held to have no right or authority. The appellant‟s plea for

maintenance could (in the view of the Assistant Commissioner) only be raised

against the Fourth respondent. Therefore, the Assistant Commissioner allowed the

petition by directing (i) the Fourth respondent to pay a monthly maintenance of

Rs.10,000 to his parents; and (ii) the appellant to vacate the premises.

7 The appeal filed by the appellant under Section 28 of the Hindu Marriage Act

1955 against the decree for dissolution of marriage, was allowed by a Division

Bench of the Karnataka High Court on 14 January 2016. The High Court set aside

the order of the Trial Court and remanded the proceedings to the jurisdictional 

PART A

7

Family Court, for passing fresh orders after hearing the parties. During the pendency

of the appeal, the Fourth respondent entered into a marriage with another woman.

On remand, the proceedings for divorce and the application for maintenance are

pending disposal.

8 On 29 February 2016, the Deputy Commissioner, acting as the appellate

authority under the Senior Citizens Act 2007, dismissed the appeal filed by the

appellant as well as a companion appeal by the Fourth respondent against the order

of the Assistant Commissioner. The order requiring the appellant to vacate the suit

premises was thereby confirmed. The appellant challenged the order passed by the

Deputy Commissioner in proceedings under Article 226 of the Constitution. The

Single Judge of the Karnataka High Court, by a judgement dated 18 June 2019, held

that the suit premises have been transferred by the Third respondent to his wife - the

Second respondent - by a registered gift deed dated 19 July 2010. The Single Judge

noted the contention of the Second and Third respondents that following a

matrimonial dispute, their son (the Fourth respondent) had left the house after which

the appellant had ousted them on 12 August 2010 and they are currently living in

their “native place”. In light of the fact that the marriage between the appellant and

Fourth respondent had been dissolved by the Trial Judge, the Single Judge held that

the appellant had no right over the suit premises and her claim for maintenance

could only by asserted against the Fourth respondent. Though, the appellant has

specifically questioned the jurisdiction of the authorities under the Senior Citizens

Act 2007 to order her eviction, the Single Judge did not address the submission.

PART B

8

Aggrieved by the order of the Single Judge, the appellant challenged the order in a

writ appeal. Once again, it was urged in the course of the hearing that the

proceedings which were instituted under the Senior Citizens Act 2007 were only a

device to oust the appellant and that the authorities had no jurisdiction to direct her

eviction. The Division Bench reiterated the views of the Single Judge, and held that

the appellant had no cause of action against the Second and Third respondents who

owned the suit premises. It held that the appellant‟s claim for maintenance and

shelter would lie only against the Fourth respondent. In dealing with the preliminary

objection as regards the jurisdiction of the Assistant Commissioner to direct eviction,

the Division Bench merely observed that it was not in agreement with the

submission that “the Assistant Commissioner was powerless to pass an order

directing dispossession of the appellant”.

B Submissions

9 The appellant, aggrieved by the judgement of the Division Bench of the High

Court, has preferred the present special leave petition. Mr Yatish Mohan, learned

Counsel appearing on behalf of the appellant submitted that:

(i) The appellant is residing in her matrimonial home as the lawfully wedded

spouse of the Fourth respondent and she cannot be evicted from her shared

household, in view of the protection offered by Section 17 of the Protection of

Women from Domestic Violence Act 200511;

11

“PWDV Act 2005”

PART B

9

(ii) The proceeding under Sections 3 and 4 of the Senior Citizens Act 2007 was

filed by her mother-in-law and father-in-law in connivance with her estranged

spouse to deprive her of her matrimonial home;

(iii) The finding of the Division Bench on the appellant‟s current residential status

was based on a fraudulent set up. The alleged postal cover was dispatched

on 21 June 2018, during the pendency of the proceedings before the Single

Judge, and merely indicated a postal endorsement (“no such person”) as it

arrived when nobody was present at home to receive it;

(iv) The decree for the dissolution of marriage which was passed against the

appellant by the Trial Judge on 5 December 2013 has been set aside by the

High Court on 14 January 2016 and the proceedings have been remanded

back to the jurisdictional Family Court for a disposal afresh. Hence, as of

date, the appellant continues to be in a lawful relationship of marriage with the

Fourth respondent and she has no other place to live except the suit

premises, with her minor daughter;

(v) The provisions of the Senior Citizens Act 2007 have been manipulated to

defeat the rights of the appellant. The manner in which the premises were

transferred by the spouse of the appellant to his father and the gift deed

thereafter to mother-in-law of the appellant are indicative of an attempt to

misuse the provisions of the Act, to defeat the claims of the appellant; and

PART B

10

(vi) In asserting her right under Section 17 of the PWDV Act 2005, the appellant

relies on the decision of this Court in Satish Chander Ahuja vs Sneha

Ahuja 12

. In sum and substance, it has been urged that the authorities

constituted under the Senior Citizens Act 2007 had no jurisdiction to order the

eviction of the appellant. Moreover, the proceedings have been utilised to

secure the eviction of the appellant so as to deny her claim of a right to reside

in the shared household under the PWDV Act 2005.

10 On the other hand, while seeking to rebut the submissions of the appellant,

Mr Rajesh Mahale, learned Counsel appearing on behalf of the Second and Third

respondents submits that:

(i) Both the Second respondent (who is 72 years old) and the Third respondent

(who is 82 years old) are senior citizens;

(ii) The suit premises was constructed by the Third respondent- the father-in-law

of the appellant, on a plot of land admeasuring 1200 square feet situated in

Gangondanahalli, Bengaluru North Taluk. This was subsequently gifted to the

Second respondent, the mother-in-law of the appellant;

(iii) The appellant has been concurrently found to have ousted the Second and

Third respondents from the property belonging to them and to have illegally

entered into possession; and

(iv) The Second and Third respondents filed an application under the Senior

Citizens Act 2007 before the Assistant Commissioner for evicting the

12 Civil Appeal No. 2483 of 2020, decided on 15 October 2020

PART B

11

appellant and for the restoration of their possession, which has been allowed

by the authorities and the High Court concurrently.

11 Dealing with the issue of jurisdiction, Mr Mahale submitted that

(i) The Tribunal constituted under the Senior Citizens Act 2007 has the

jurisdiction to pass appropriate orders for protecting the life and property of

parents and senior citizens, including orders of eviction;

(ii) The intent and object of the Act is to provide for an inexpensive and speedy

relief to parents and senior citizens;

(iii) While Chapter II entitles parents and senior citizens to apply for orders to

provide monetary relief for sustenance and maintenance, Chapter V contains

provisions for protecting the life and property of parents and senior citizens;

(iv) The Tribunal constituted under the Act has been entrusted to issue orders

after a summary enquiry, for effective maintenance of parents and senior

citizens including relief against neglect, harassment and protection of the

property of senior citizens;

(v) Section 23 confers two separate and distinct rights:

(a) Section 23(1) empowers the Tribunal to declare a transfer of property

by a senior citizen void, where the transfer was conditioned upon

providing basic amenities and physical needs to a senior citizen, where

the transferee fails to provide them;

PART B

12

(b) Section 23(2) recognises a pre-existing right of a senior citizen to

receive maintenance out of an estate and secures the right of making it

enforceable against a transferee who had notice of the right;

(vi) The expression “maintenance” in Section 2(b) includes provision for residence

and a right to reside can be enforced by a senior citizen, if the property is

transferred without making a suitable provision for maintenance; and

(vii) Though the Senior Citizens Act 2007 does not contain an express provision

enabling the Tribunal to pass eviction orders, the power has to be read within

its jurisdiction by necessary implication. Such an interpretation, it has been

urged, would be purposive, in order to effectuate the provisions of the Act.

The contrary view would cause hardship to senior citizens who would be

powerless, despite being forcibly dispossessed of their means of sustenance.

Parliament has empowered the State governments to authorise local

authorities to take remedial measures for protecting the life and property of

senior citizens and it would be incorrect to limit the relief that can be granted

by a Tribunal only to monetary relief. Relegating a senior citizen to a civil court

for the recovery of their property would result in defeating the provisions of the

Act. Hence, it has been urged that such an interpretation should not be

adopted.

PART C

13

C Legislative scheme: Senior Citizens Act 2007

12 The rival submissions will now be analysed.

13 Our analysis of the rival submissions must begin with explaining and

interpreting the salient feature of the Senior Citizens Act 2007 which have a bearing

on the present controversy. „Maintenance‟ is defined in an inclusive manner to

incorporate, among other things, provisions for food, clothing, residence, medical

assistance and treatment13

. In defining the expression „property‟, the legislation uses

broad terminology encompassing “property of any kind” and to include “rights or

interests in such property” 14

. Overriding effect is given to the provisions of the

enactment by Section 315

. Besides the definitions which are comprised in Chapter I,

Chapter II is titled “Maintenance of Parents and Senior Citizens” while Chapter V is

titled “Protection of Life and Property of Senior Citizen”. The Statement of Objects

and Reasons indicates the rationale for the enactment of the law:

“Traditional norms and values of the Indian society laid stress

on providing care for the elderly. However, due to withering of

the joint family system, a large number of elderly are not

being looked after by their family. Consequently, many older

persons, particularly widowed women are now forced to

spend their twilight years all alone and are exposed to

emotional neglect and to lack of physical and financial

support. This clearly reveals that ageing has become a major

social challenge and there is a need to give more attention to

the care and protection for the older persons. Though the

parents can claim maintenance under the Code of Criminal

13 2(b) “maintenance” includes provisions for food, clothing, residence and medical attendance and treatment

14 2(f) “property” means property of any kind, whether movable or immovable, ancestral or self acquired,

tangible or intangible and includes rights or interests in such property;

15 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.

PART C

14

Procedure, 1973, the procedure is both time - consuming as

well as expensive. Hence, there is a need to have simple,

inexpensive and speedy provisions to claim maintenance for

parents.”

Briefly reviewed, Section 4 recognises an entitlement of maintenance to inhere in

parents and senior citizens. Section 5 lays down the procedure by which an

application for maintenance can be made. Section 6 elucidates provisions governing

jurisdiction and procedure. Section 7 contains stipulations for the constitution of a

Maintenance Tribunal. Section 8 envisages a summary procedure for making an

inquiry. Section 11 provides for the enforcement of an order of maintenance.

14 A senior citizen, including a parent, who is unable to maintain themselves from

their own earning or out of property owned by them, is entitled to make an

application under Section 4(i). A parent or grand-parent may make an application

against one or more of their children. A childless senior citizen can make an

application against a relative specified in Section 2(g). Section 4 recognises a

corresponding obligation on the part of the children or relative to maintain a senior

citizen, extending to such needs as would enable them to lead a normal life. In the

case of a relative, the obligation is if they are in possession of the property of the

senior citizen or would inherit property from them. Hence, in the case of the children

of a senior citizen, the obligation to maintain a parent is not conditional on being in

possession of property of the senior citizen or upon a right of future inheritance16

.

16 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;

PART C

15

15 The procedure to be followed by a Maintenance Tribunal (constituted under

Section 7) is of a summary nature as provided in Section 8(1) and with all the

powers of a Civil Court, as provided in Section 8(2)17

. Under Sub-section (1) of

Section 9, where a senior citizen is not able to maintain himself or herself and the

children or relatives, as the case may be, neglect or refuse to maintain them, the

Tribunal is empowered to order them to make a monthly allowance at such monthly

rate for the maintenance of the senior citizen, as the Tribunal may deem fit18

. The

amount of the monthly allowance can be altered inter alia upon a change in

circumstances, under Section 1019

.

(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.

17 8. Summary procedure in case of inquiry.—

(1)In holding any inquiry under section 5, the Tribunal may, subject to any rules that may be prescribed by the

State Government in this behalf, follow such summary procedure as it deems fit.

(2) The Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of

enforcing the attendance of witnesses and of compelling the discovery and production of documents and

material objects and for such other purposes as may be prescribed; and the Tribunal shall be deemed to be a

Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of

1974

18 9. Order for maintenance.—

(1) If children or relatives, as the case may be, neglect or refuse to maintain a senior citizen being unable to

maintain himself, the Tribunal may, on being satisfied of such neglect or refusal, order such children or relatives

to make a monthly allowance at such monthly rate for the maintenance of such senior citizen, as the Tribunal

may deem fit and to pay the same to such senior citizen as the Tribunal may, from time to time, direct.

19 10. Alteration in allowance.—

(1) On proof of misrepresentation or mistake of fact or a change in the circumstances of any person, receiving

a monthly allowance under section 9, for the maintenance ordered under that section to pay a monthly

allowance for the maintenance, the Tribunal may make such alteration, as it thinks fit, in the allowance for the

maintenance. (2) Where it appears to the Tribunal that, in consequence of any decision of a competent Civil

Court, any order made under section 9 should be cancelled or varied, it shall cancel the order or, as the case

may be, vary the same accordingly

PART C

16

16 Of particular relevance to the facts of the case at hand is Chapter V, which

enacts provisions for protecting the life and property of a senior citizen. Section 23

proceeds in the following terms:

“23. Transfer of property to be void in certain

circumstances.—(1) Where any senior citizen who, after the

commencement of this Act, has transferred by way of gift or

otherwise, his property, subject to the condition that the

transferee shall provide the basic amenities and basic

physical needs to the transferor and such transferee refuses

or fails to provide such amenities and physical needs, the

said transfer of property shall be deemed to have been made

by fraud or coercion or under undue influence and shall at the

option of the transferor be declared void by the Tribunal.

(2) Where any senior citizen has a right to receive

maintenance out of an estate and such estate or part thereof

is transferred, the right to receive maintenance may be

enforced against the transferee if the transferee has notice of

the right, or if the transfer is gratuitous; but not against the

transferee for consideration and without notice of right.

(3) If, any senior citizen is incapable of enforcing the rights

under sub-sections (1) and (2), action may be taken on his

behalf by any of the organisation referred to in Explanation to

sub-section (1) of section 5.”

Sub-section (1) of Section 23 covers a situation where property has been transferred

after the enactment of the legislation by a senior citizen (by gift or otherwise) subject

to the condition that the transferee must provide the basic amenities and physical

needs to the transferor. In other words, Sub-section (1) deals with a situation where

the transfer of the property is accompanied by a specific condition to provide for the

maintenance and needs of a senior citizen. In such an event, if the transferee fails to

provide the maintenance and physical needs, the transfer of the property is deemed

to have been vitiated by fraud, coercion or under undue influence. Sub-section 1, in 

PART C

17

other words, creates a deeming fiction of the law where the transfer of the property

is subject to a condition and the condition of providing for maintenance and the basic

needs of a senior citizen is not fulfilled by the person upon whom the obligation is

imposed. Then, at the option of the transferor, the transfer can be declared as void

by the Tribunal. On the other hand, Sub-section (2) of Section 23 envisages a

situation where a senior citizen has a right to receive maintenance out of an estate.

Where such a right exists, the right of maintenance can be enforced where the

estate or a portion of it, is transferred against a transferor who has notice of the

right; or if the transfer is gratuitous. The right however cannot be enforced against a

transferee for consideration and without notice of the right. Now, Sub-section (1) of

Section 23 envisages a situation where the transfer of property is by the senior

citizen. This is evident from the language of sub-Section (1) namely “where any

senior citizen who, after the commencement of this Act, has transferred by way of

gift or otherwise, his property…”. On the other hand, sub-Section (2) of Section 23

does not confine itself to a transfer by a senior citizen, unlike sub-Section (1). SubSection (2) uses the expression “such estate or part thereof is transferred”. Where a

senior citizen has a right to receive maintenance out of the estate and any part of it

is transferred, sub-section 2 permits the enforcement of the right to receive

maintenance out of the estate against a transferee with notice or against a

gratuitous transferee. Sub-Section (2), in other words, may cover a situation where

the transfer of the estate (in which a senior citizen has a right to maintenance) is by

a third party, in which event, the provision provides the right to enforce the claim of

maintenance against such transferee (other than those transferees for consideration

PART C

18

or without notice of the pre-existing right). Arguably, the language of sub-section (2)

is broad enough to also cover a situation where the transfer is by the senior citizen,

in which event the transferee with notice of the right; or a gratuitous transferee, can

be made subject to the enforcement of the right against the transferred estate.

Another distinction between sub-Section (1) and sub-Section (2) of Section 23 must

also be noticed. Under sub-Section (1), where a transfer has been made by a senior

citizen subject to the condition that the transferee will provided for basic amenities or

physical needs of the transferor and if there is a failure of the transferee to fulfil the

condition, two consequences follow: (i) the transfer of property shall be deemed to

have been made by fraud or coercion or under undue influence; and (ii) the transfer

shall, at the option of the transferor, be declared to be void by the Tribunal. The

deeming consequence which is provided for in sub-Section (1) is not incorporated in

sub-Section (2). Sub-Section (2), in contradistinction, stipulates that the right to

receive maintenance can be enforced against a gratuitous transferee or a transferee

with notice of the pre-existing right of a citizen to receive maintenance out of an

estate notwithstanding who is the transferee of the estate. In keeping with the

salutary public purpose underlying the enactment of the legislation, the expression

„transfer‟ would include not only the absolute transfer of property but also transfer of

a right or interest in the property. This would also be in consonance with the

provisions of Section 2(f) which defines the expression property to include “rights or

interests in such property”. The expression „transfer‟ not having been

defined specifically by the legislation, it must receive an interpretation which would

advance the beneficent object and purpose of its provisions. Sub-section (2) of 

PART C

19

section 23 speaks of the enforcement of the “right to receive maintenance” which is

more comprehensive in its nature, than merely enforcing an order for maintenance

passed under Section 9 of the Act.

17 The substance of sub-Section (2) of section 23, as submitted by the Second

and Third respondents, is that the Tribunal had the jurisdiction to pass an order

directing the eviction of the appellant who is their daughter-in-law. According to the

submission, the power to order eviction is implicit in the provision guaranteeing a

„right to receive maintenance out of an estate‟ and the enforcement of that right. In

supporting the submission, they have referred to the view which has been taken by

several High Courts, indicating that the Tribunal may order the eviction of a child or

a relative from the property of a senior citizen, where there has been a breach of the

obligation to maintain the senior citizen. The Tribunal under the Senior Citizens Act

2007 may have the authority to order an eviction, if it is necessary and expedient to

ensure the maintenance and protection of the senior citizen or parent. Eviction, in

other words would be an incident of the enforcement of the right to maintenance and

protection. However, this remedy can be granted only after adverting to the

competing claims in the dispute. It is necessary to recapitulate that the situation in

the present case is that the eviction was sought of the daughter-in-law, i.e. the

appellant. The land, where the house has been constructed, was originally

purchased by the son of the applicants who are seeking eviction of their daughter-inlaw. The son had purchased the property a few months before his marriage to the

appellant. He had subsequently transferred the property by a registered sale deed to

PART D

20

his father and the fact that it was for the same consideration after the lapse of

several years is of significance. The father, in turn, executed a gift deed in favor of

his spouse. The appellant has asserted that she had been living in the house, as her

matrimonial residence, until the application was filed. Her spouse has (according to

her) deserted her and their minor daughter and left them in the lurch. The electricity

to the premises was disconnected for non-payment of dues. Their daughter has

sought admission to an engineering degree course however her father- Fourth

respondent has not provided any financial support. The transfers which took place

cannot be viewed in isolation from the context of the on-going matrimonial dispute

which has taken place. The issue is whether the appellant as the daughter-in-law

and the minor daughter could have been ousted in the above manner.

D A woman’s right of residence: safeguard against domestic violence

18 In arriving at a decision of this issue it becomes necessary to elucidate the

right, which is asserted by the appellant. The appellant has submitted that the

premises constitute a “shared household” within the meaning of Section 2(s) of the

PWDV Act 2005. Section 2(s) defines the expression “shared household” in the

following terms:

“(s) "shared household" means a household where the

person aggrieved lives or at any stage has lived in a domestic

relationship either singly or along with the respondent and

includes such a household whether owned or tenanted either

jointly by the aggrieved person and the respondent, or owned

or tenanted by either of them in respect of which either the

aggrieved person or the respondent or both jointly or singly

have any right, title, interest or equity and includes such a

household which may belong to the joint family of which the 

PART D

21

respondent is a member, irrespective of whether the

respondent or the aggrieved person has any right, title or

interest in the shared household;”

(emphasis supplied)

Section 1920 contemplates the passing of a residence order by the Magistrate on an

application under sub-Section (1) of Section 12 of the PWDV Act 2005. The essence

of the submission of the appellant is that the order of eviction which has been made

in the exercise of the summary powers entrusted by the Senior Citizens Act 2007

would completely displace the appellant from seeking recourse to her remedies

under Section 12(1) read with Section 19 of the PWDV Act 2005 in respect of the

premises, which she claims to be her shared household. The definition of the

expression “shared household” in Section 2(s) uses the familiar legislative formula of

a “means and includes” definition. Where the definition of an expression in an

enactment adopts a „means and includes‟ stipulation, it is intended to be exhaustive.

The „means‟ part of the definition indicates what would normally fall within the ambit

of the expression, while the „includes‟ element gives it an extended meaning.

Together they indicate that the legislature has provided for an exhaustive

20 19. Residence orders1) While disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied

that domestic violence has taken place, pass a residence order - (a) restraining the respondent from

dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared

household, whether or not the respondent has a legal or equitable interest in the shared household; (b)

directing the respondent to remove himself from the shared household; (c) restraining the respondent or any of

his relatives from entering any portion of the shared household in which the aggrieved person resides; (d)

restraining the respondent from alienating or disposing off the shared household or encumbering the same; (e)

restraining the respondent from renouncing his rights in the shared household except with the leave of the

Magistrate; or (f) directing the respondent to secure same level of alternate accommodation for the aggrieved

person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:

Provided that no order under clause (b) shall be passed against any person who is a woman.

PART D

22

enumeration of what falls within the ambit of the definition. Justice G P Singh in his

seminal treatise on the Principles of Statutory Interpretation21 observes:

“The Legislature has the power to define a word even

artificially. So the definition of a word in the definitions section

may either be restrictive of its ordinary meaning or it may be

extensive of the same. When a word is defined to „mean‟

such and such, the definition is prima facie restrictive and

exhaustive.”

On the other hand, “includes” is titled so as to comprehend an extensive meaning:

“Whereas, where the word defined is declared to „include‟

such and such, the definition is prime facie extensive. When

by an amending Act, the word „includes‟ was substituted for

the word „means‟ in a definitions section, it was held that the

intention was to make it more extensive…..”

The use of the expression „means‟ is intended to make it exhaustive. On the other

hand, the use of the expression „includes‟ is intended to make it more extensive. The

legislature by using an expression „includes‟ evinces, notwithstanding the meaning

of the phrase, an intention:

“to enlarge the meaning of the words or phrases occurring in

the body of the statute”.

“Includes” is utilized so as to comprehend:

“not only such things as they signify according to their nature

and import but also those things which the interpretation

clause declares that they shall include”

21 Lexis Nexis, 14th Ed. Page 197-199

PART D

23

However, when a statutory definition incorporates the „means and includes‟

approach, the intent is to make the definition exhaustive.

“Further, a definition may be in the form of „means and

includes‟, where again the definition is exhaustive.”

[See in this context the decisions in Jagir Singh vs State of

Bihar; AIR 1976 SC 997, pp. 999, 1001 :1976 SCC (Tax) 204

: (1976) 2 SCC 942; Kasilingam vs P.S.G. College of

Technology, supra, Bharat Coop. Bank (Mumbai) Ltd. vs

Coop. Bank Employees Union, (2007) 4 SCC 685 (para 23) :

(2007) 4 JT 573 : (2007) 2 LLJ 825 : AIR 2007 SC 2320; Paul

Enterprise vs Rajib Chatterjee and Company, (2009) 3 SCC

709 para 28 : (2009) 1 JT 632]”

19 The definition of „shared household‟ in Section 2(s) of the PWDV Act 2005 is

exhaustive. This has also recently been held to be so, by a judgment of a three

judge bench of this Court, delivered by Justice Ashok Bhushan, in Satish Chandra

Ahuja vs Sneha Ahuja22 [Satish Chandra].

The definition of the expression „shared household‟ in Section 2(s) of the PWDV Act

of 2005 is in two parts: in the means part of the definition the expression „shared

household‟ means

(i) A household where the person aggrieved lives in a domestic relationship

either singly or along with the respondent or;

(ii) At any stage has lived in a domestic relationship either singly or along with

the respondent.

22 Civil Appeal No. 2483 of 2020, decided on 15 October 2020

PART D

24

This is followed by an inclusive element, so as to cover such a household (i) whether

owned or tenanted either jointly by the aggrieved person and the respondent or (ii)

owned or tenanted by either of them in respect of which either the aggrieved person

or the respondent or both jointly or singly have any right, title or equity. This has also

been given an inclusive or extended meaning, which extends to a household which

may belong to the joint family of which a respondent is a member, irrespective of

whether the respondent or the aggrieved person have any right, title or interest in

the shared household. The last part of the inclusive definition is intended to extend

the meaning of a shared household to a situation where the household in fact

belongs to a joint family, of which the respondent is a member. The legislature has

made it clear that though neither the respondent, nor the aggrieved person in such

case may have a right, title or interest in the shared household it would irrespective

fall within the ambit of the definition.

The meaning which has been attributed above to the plain language of the definition

is in consonance with the judgment of the three judge Bench in Satish Chandra

where it has been explained as follows:

“55…the definition can be divided in two parts, first, which

follows the word “means” and second which follows the word

“includes”. The second part which follows “includes” can be

further sub-divided in two parts. The first part reads “shared

household means a household where the person aggrieved

has lived or at any stage has lived in a domestic relationship

either singly or along with the respondent”. Thus, first

condition to be fulfilled for a shared household is that person

aggrieved lives or at any stage has lived in a domestic

relationship. The second part subdivided in two parts is- (a)

includes such a household whether owned or tenanted either

jointly by the aggrieved person and the respondent and 

PART D

25

owned or tenanted by either of them in respect of which either

the aggrieved person or the respondent or both jointly or

singly have any right, title, interest or equity and (b)includes

such a household which may belong to the joint family of

which the respondent is a member, irrespective of whether

the respondent or the aggrieved person has any right, title or

interest in the shared household. In the above definition, two

expressions, namely, “aggrieved person” and “respondent”

have occurred. From the above definition, following is clear:-

(i) it is not requirement of law that aggrieved person may

either own the premises jointly or singly or by tenanting it

jointly or singly; (ii) the household may belong to a joint family

of which the respondent is a member irrespective of whether

the respondent or the aggrieved person has any right, title or

interest in the shared household; and (iii) the shared

household may either be owned or tenanted by the

respondent singly or jointly.”

After noticing the ambit of the definition of „shared household‟ and the object and

purpose of the PWDV Act of 2005, Justice Ashok Bhushan noted:

“Section 2(s) read with Sections 17 and 19 of Act, 2005

grants an entitlement in favour of the woman of the right of

residence under the shared household irrespective of her

having any legal interest in the same or not.”

The expression „respondent‟ has been defined in section 2 (q) of the PWDV Act of

2005 in the following terms:

“(q) "respondent" means any adult male person who is, or has

been, in a domestic relationship with the aggrieved person

and against whom the aggrieved person has sought any relief

under this Act:”

Noticing the above definition and the provisions of section 2(s), the Court in Satish

Chandra held:

“64…The definition of shared household as noticed in Section

2(s) does not indicate that a shared household shall be one

which belongs to or taken on rent by the husband. We have

PART E

26

noticed the definition of “respondent” under the Act. The

respondent in a proceeding under Domestic Violence Act can

be any relative of the husband. In [the] event, the shared

household belongs to any relative of the husband with whom in

a domestic relationship the woman has lived, the conditions

mentioned in Section 2(s) are satisfied and the said house will

become a shared household.”

The Bench concluded that:

“84…The definition of shared household given in Section 2(s)

cannot be read to mean that shared household can only be

that household which is household of the joint family of which

husband is a member or in which husband of the aggrieved

person has a share.”

E Harmonising competing reliefs under the PWDV Act 2005 and Senior

Citizens Act 2007

20 Section 3623 of the PWDV Act 2005 stipulates that the provisions of the Act

shall be in addition to, and not in derogation of, the provisions of any other law for

the time being in force. This is intended to ensure that the remedies provided under

the enactment are in addition to other remedies and do not displace them. The

Maintenance and Welfare of Parents and Senior Citizens Act 2007 is undoubtedly a

later Act and as we have noticed earlier, Section 3 stipulates that its provisions will

have effect, notwithstanding anything inconsistent contained in any other enactment.

However, the provisions of Section 3 of the Senior Citizens Act 2007 giving it

overriding force and effect, would not by themselves be conclusive of an intent to

deprive a woman who claims a right in a shared household, as under the PWDV Act

23 36-Act not in derogation of any other law- The provisions of this Act shall be in addition to, and not in

derogation of the provisions of any other law, for the time being in force

PART E

27

2005. Principles of statutory interpretation dictate that in the event of two special

acts containing non obstante clauses, the later law shall typically prevail.24 In the

present case, as we have seen, the Senior Citizen‟s Act 2007 contains a non

obstante clause. However, in the event of a conflict between special acts, the

dominant purpose of both statutes would have to be analyzed to ascertain which

one should prevail over the other. The primary effort of the interpreter must be to

harmonize, not excise. A two-judge bench of this Court, in the case of Bank of India

v. Ketan Parekh25

, in examining a similar factual scenario, observed that:

“28. In the present case, both the two Acts i.e. the Act of 1992

and the Act of 1993 start with the non obstante clause. Section

34 of the Act of 1993 starts with non obstante clause, likewise

Section 9-A (sic 13) of the Act of 1992. But incidentally, in this

case Section 9-A came subsequently i.e. it came on 25-1-

1994. Therefore, it is a subsequent legislation which will have

the overriding effect over the Act of 1993. But cases might

arise where both the enactments have the non obstante clause

then in that case, the proper perspective would be that one

has to see the subject and the dominant purpose for which the

special enactment was made and in case the dominant

purpose is covered by that contingencies, then notwithstanding

that the Act might have come at a later point of time still the

intention can be ascertained by looking to the objects and

reasons. However, so far as the present case is concerned, it

is more than clear that Section 9-A of the Act of 1992 was

amended on 25-1-1994 whereas the Act of 1993 came in

1993. Therefore, the Act of 1992 as amended to include

Section 9-A in 1994 being subsequent legislation will prevail

and not the provisions of the Act of 1993.”

(emphasis supplied)

This principle of statutory interpretation was also affirmed by a three-judge bench of

this Court in Pioneer Urban Land and Infrastructure Ltd. v. Union of India.

26 In the

24 Solidaire India Ltd. v. Fairgrowth Financial Services Ltd, (2001) 3 SCC 71

25 (2008) 8 SCC 148

26 (2019) 8 SCC 416

PART E

28

present case, Section 36 of the PWDV Act 2005, albeit not in the nature of a nonobstante clause, has to be construed harmoniously with the non obstante clause in

Section 3 of the Senior Citizens Act 2007 that operates in a separate field.

21 In this case, both pieces of legislation are intended to deal with salutary

aspects of public welfare and interest. The PWDV Act 2005 was intended to deal

with the problems of domestic violence which, as the Statements of Objects and

Reasons sets out, “is widely prevalent but has remained largely invisible in the

public domain”. The Statements of Objects and Reasons indicates that while Section

498A of the Indian Penal Code created a penal offence out of a woman‟s subjection

to cruelty by her husband or relative, the civil law did not address its phenomenon in

its entirety. Hence, consistent with the provisions of Articles 14, 15 and 21 of the

Constitution, Parliament enacted a legislation which would “provide for a remedy

under the civil law which is intended to protect the woman from being victims of

domestic violence and to prevent the occurrence of domestic violence in the

society”. The ambit of the Bill has been explained thus:

“4. The Bill, inter alia, seeks to provide for the following:-

(i) It covers those women who are or have been in a

relationship with the abuser where both parties have lived

together in a shared household and are related by

consanguinity, marriage or through a relationship in the nature

of marriage or adoption. In addition, relationships with family

members living together as a joint family are also included.

Even those women who are sisters, widows, mothers, single

women, or living with the abuser are entitled to legal protection

under the proposed legislation. However, whereas the Bill

enables the wife or the female living in a relationship in the

nature of marriage to file a complaint under the proposed

enactment against any relative of the husband or the male

partner, it does not enable any female relative of the husband 

PART E

29

or the male partner to file a complaint against the wife or the

female partner.

(ii) It defines the expression “domestic violence” to include

actual abuse or threat or abuse that is physical, sexual, verbal,

emotional or economic. Harassment by way of unlawful dowry

demands to the woman or her relatives would also be covered

under this definition.

(iii) It provides for the rights of women to secure housing. It

also provides for the right of a woman to reside in her

matrimonial home or shared household, whether or not she

has any title or rights in such home or household. This right is

secured by a residence order, which is passed by the

Magistrate.

(iv) It empowers the Magistrate to pass protection orders in

favour of the aggrieved person to prevent the respondent from

aiding or committing an act of domestic violence or any other

specified act, entering a workplace or any other place

frequented by the aggrieved person, attempting to

communicate with her, isolating any assets used by both the

parties and causing violence to the aggrieved person, her

relatives or others who provide her assistance from the

domestic violence.

(v) It provides for appointment of Protection Officers and

registration of non-governmental organisations as service

providers for providing assistance to the aggrieved person with

respect to her medical examination, obtaining legal aid, safe

shelter, etc.”

The above extract indicates that a significant object of the legislation is to provide for

and recognize the rights of women to secure housing and to recognize 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 

PART E

30

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.

22 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 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 S.2(b) of the

Senior Citizens Act 2007 that do not result in obviating competing remedies under 

PART E

31

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 realization.

27 26. Relief in other suits and legal proceedings. —(1) Any relief available under sections 18, 19,20, 21 and 22

may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the

aggrieved person and the respondent whether such proceeding was initiated before or after the

commencement of this Act.

(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that

the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.

(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding

under this Act, she shall be bound to inform the Magistrate of the grant of such relief.

PART E

32

23 Adverting to the factual situation at hand, on construing the provisions of subSection (2) of section 23 of the Senior Citizen Act 2007, it is evident that it applies to

a situation where a senior citizen has a right to receive maintenance out of an estate

and such estate or part thereof is transferred. On the other hand, the appellant‟s

simple plea is that the suit premises constitute her „shared household‟ within the

meaning of Section 2(s) of the PWDV Act 2005. We have also seen the series of

transactions which took place in respect of the property: the spouse of the appellant

purchased it in his own name a few months before the marriage but subsequently

sold it, after a few years, under a registered sale deed at the same price to his father

(the father-in-law of the appellant), who in turn gifted it to his spouse i.e. the motherin-law of the appellant after divorce proceedings were instituted by the Fourth

respondent. Parallel to this, the appellant had instituted proceedings of dowry

harassment against her mother-in-law and her estranged spouse; and her spouse

had instituted divorce proceedings. The appellant had also filed proceedings for

maintenance against the Fourth respondent and the divorce proceedings are

pending. It is subsequent to these events, that the Second and Third respondents

instituted an application under the Senior Citizens Act 2007. The fact that specific

proceedings under the PWDV Act 2005 had not been instituted when the application

under the Senior Citizens Act, 2007 was filed, should not lead to a situation where

the enforcement of an order of eviction deprives her from pursuing her claim of

entitlement under the law. The inability of a woman to access judicial remedies may,

as this case exemplifies, be a consequence of destitution, ignorance or lack of

resources. Even otherwise, we are clearly of the view that recourse to the summary

PART F

33

procedure contemplated by the Senior Citizen Act 2007 was not available for the

purpose of facilitating strategies that are designed to defeat the claim of the

appellant in respect of a shared household. A shared household would have to be

interpreted to include the residence where the appellant had been jointly residing

with her husband. Merely because the ownership of the property has been

subsequently transferred to her in-laws (Second and Third Respondents) or that her

estranged spouse (Fourth respondent) is now residing separately, is no ground to

deprive the appellant of the protection that was envisaged under the PWDV Act

2005

F Summation

24 For the above reasons, we have come to the conclusion that the claim of the

appellant that the premises constitute a shared household within the meaning of the

PWDV Act 2005 would have to be determined by the appropriate forum. The claim

cannot simply be obviated by evicting the appellant in exercise of the summary

powers entrusted by the Senior Citizens Act 2007. The Second and Third

Respondents are at liberty to make a subsequent application under Section 10 of

the Senior Citizens Act 2007 for alteration of the maintenance allowance, before the

appropriate forum. For the above reasons, while allowing the appeal, we issue the

following directions:

(i) The impugned judgment and order of the Division Bench of the High

Court of Karnataka dated 17 September 2019 affirming the order of 

PART F

34

eviction against the appellant shall stand set aside with the

consequence that the order of the Assistant Commissioner ordering

and directing the appellant to vacate the suit premises shall stand set

aside;

(ii) We leave it open to the appellant to pursue her remedies under the

PWDV Act 2005. For that purpose, it would be open to the appellant to

seek the help of the District Legal Services Authorities and if the

appellant does so, all necessary aid and assistance shall be furnished

to her in pursuing her legal remedies and rights;

(iii) IA 111352/2020 for restoration of the electricity connection is allowed

by directing the Fourth respondent to take all necessary steps for

restoration of the electricity connection to the premises within a period

of two weeks from the receipt of a certified copy of this judgment. The

Fourth respondent shall also continue to pay the electricity dues in

future; and

(iv) In order to enable the appellant to pursue her remedies under the

PWDV Act 2005, there shall be an order and direction restraining the

respondents from forcibly dispossessing the appellant, disposing of the

premises or from creating any right, title and interest in favor of any

third party in any manner whatsoever for a period of one year, to

enable the appellant to pursue her remedies in accordance with law.

The appellant is at liberty to move the Court to espouse her remedies 

PART F

35

under the PWDV Act 2005 for appropriate orders, including interim

protections.

The directions contained in (iii) and (iv) above emanate in exercise of the powers of

this Court under Article 142 of the Constitution.

25 The Appeal is allowed in the above terms. The appellant is entitled to costs

quantified at Rs 25,000 from the private respondents.

26 Pending application(s), if any, stand disposed of.

…..….………….…………………...........................J.

 [Dr Dhananjaya Y Chandrachud]

……….…………………………...............................J.

 [Indu Malhotra]

……….…………………………...............................J.

 [Indira Banerjee]

New Delhi;

December 15, 2020.

DR. AKB SADBHAVANA MISSION SCHOOL OF HOMEO PHARMACY ...APPELLANT(S) VERSUS THE SECRETARY, MINISTRY OF AYUSH & ORS. ...RESPONDENT(S)

 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO. 4049 OF 2020

(arising out of SLP (C) No. 15293/2020 Diary No.

19638 of 2020)

DR. AKB SADBHAVANA MISSION

SCHOOL OF HOMEO PHARMACY ...APPELLANT(S)

VERSUS

THE SECRETARY,

MINISTRY OF AYUSH & ORS. ...RESPONDENT(S)

J U D G M E N T

 ASHOK BHUSHAN, J.

The application seeking permission to file

special leave petition is allowed.

Leave granted.

2. This appeal has been filed by the appellant

Dr. AKB Sadbhavana Mission School of Homeo Pharmacy

aggrieved by the part of Division Bench judgment of

Kerala High Court dated 21.08.2020 passed in Writ

Petition (C) No.9459 of 2020. The appellant, who was

not party in the writ petition feeling aggrieved by

2

certain directions issued by the High Court have come

up in this appeal.

3. We need to notice the contents and prayers of the

writ petition filed in the Kerala High Court by

respondent No.4 (proforma respondent). The writ

petition was filed by respondent No.4, an Advocate

praying for writ of Mandamus or for any other writ or

order directing the Secretary, Department of AYUSH,

Government Secretariat, Trivandrum to ensure that the

Homeopathic practitioners are immediately allowed to

perform in accordance with the Exhibit-P1

notification (Guidelines dated 06.03.2020 issued by

Secretary, Department of AYUSH (Ministry of Ayurveda,

Yoga & Naturopathy, Unani, Siddha, Sowa-Rigpa and

Homeopathy) (AYUSH, New Delhi).

4. The petitioner’s case in the writ petition is

that petitioner is an ardent admirer of the

Homeopathic medicine system, which system of medicine

in India is controlled and regulated by the Ministry

of AYUSH. The petitioner pleaded that to control the

3

spread of Coronavirus (COVID-19), notification dated

06.03.2020 was issued by the Secretary, Ministry of

AYUSH to the Chief Secretaries of all States in which

notification, it was pointed out that interventions

under AYUSH systems have been varyingly used for

making an effective public health response in similar

situations faced in many States/Union Territories

earlier. The petitioner’s grievance was that State

of Kerala and the Secretary, Department of AYUSH,

Government Secretariat, Trivandrum did not take steps

to implement the advisory dated 06.03.2020 whereas

many other State Governments have taken steps much

earlier. The petitioner pleaded that Homeopathic

system would have been absolutely able to control the

spread of COVID-19 through its immunity boosting

medicines. Petitioner further stated in the writ

petition that if the Homeopathic medicines had been

distributed earlier in highly affected pockets and

particularly to those under isolation and quarantine,

the explosive situation had not happened, which has

happened in the State of Kerala. The only prayer

made in the writ petition are to the following

effect:-

4

(i) To issue a Writ of Mandamus or any

other Writ or Order directing the

third respondent to ensure that the

Homeopathic practitioners are

immediately allowed to perform in

accordance with the Exhibit P-1

notification.

(ii) To grant such other reliefs as this

Honourable Court deems fit and

proper in the facts and

circumstances of the case.

5. The Division Bench of the High Court disposed of

the writ petition by judgment dated 21.08.2020. The

High Court in its judgment has extracted advisory

dated 06.03.2020 of the Government of India, Ministry

of AYUSH, the Government Order dated 08.04.2020 and

21.04.2020 issued by Government of Kerala and after

noticing the aforesaid, the High Court disposed of

the writ petition. In paragraphs 13 and 14 of the

judgment, the High Court has stated as follows:-

“13. It is the case of the petitioner that

Exhibit-P1 has not been implemented by the

State of Kerala, whereas it is the

5

submission of learned Senior Government

Pleader that Government has approved the

action plan of Homeo Department for giving

Homeo medicines as prophylactic. However,

the target population was not intended to

include COVID-19 patients or their

contacts or those people, under

quarantine. Advisory of the Ministry of

AYUSH is being followed by the Government

and tablets are given free of cost to

those persons as immunity boosters. As per

the State Medical Protocol, COVID-19

affected persons should not be treated by

anybody other than the Government and

those authorised by the Government. As per

the medical protocol of the Government,

doctors practising in AYUSH medicines are

not supposed to prescribe any medicines,

stating that it is curative for COVID-19

disease. However, as per the advisory,

there is nothing prohibiting the qualified

medical AYUSH practitioners to prescribe

immunity booster mixture or tablets, as

suggested by the Ministry of AYUSH,

Government of India, New Delhi. When the

Central as well as State Governments have

approved prescription of certain mixtures

and tablets, as immunity boosters,

qualified medical practitioners in AYUSH

can also prescribe the same, but only as

immunity boosters.

14. We also make it clear that if any

qualified doctor practising AYUSH

medicine, makes any advertisement or

prescribes any drugs or medicines, as a

cure for COVID-19 disease, except those

specifically mentioned in Annexure-I

advisory to Exhibit-P1 D.O. letter dated

6.3.2020, it is open for the respondents

to take appropriate action under the

provisions of the Disaster Management Act,

2005, and the orders of the Governments,

both Central as well as the State, issued

from time-to-time. Only those tablets or

6

mixtures shall be given as immunity

booster and not as cure for COVID-19.

AYUSH medical practitioners are further

directed not to violate the Government

Order dated 6.3.2020. In this regard,

Medical/Police Departments are also

directed to monitor the action of AYUSH

medical practitioners.

Writ petition is disposed of accordingly.”

6. The appellant, who was not party to the writ

petition, has filed this appeal and the reasons given

for filing this appeal by the appellant as stated in

paragraph 4 of the application seeking permission to

file special leave petition, are as follows:-

“4. It is respectfully submitted that the

Hon'ble High Court had not issued any

notice either to Ministry of AYUSH,

Government of India or to Homoeopathy

doctors or its organisation before passing

the impugned order. Homoeopathy Doctors

are treating all patients who come for

treatment. As is well known, most of the

Covid-19 patients, are asymptomatic and

therefore such blanket orders will cause

grave prejudice to the Homoeopathy

doctors, who treat the patients. The

direction to take action under the

Disaster Management Act is very harsh and

the said order has been passed without

hearing the doctors, who are affected by

such orders. The Writ Petition has been

filed by a lawyer, who is an ardent

follower of homoeopathy medicine. The

prayer was to implement the direction

passed by AYUSH on 06.03.2020. The Hon'ble

High Court unfortunately went beyond the

pleadings and made observations which will

7

affect the profession of Homoeopathy

doctors. It is pertinent to mention here

that many of the State Governments have

been prescribing Homoeopathy medicines as

an immunity booster. Even the Health

Minister, Government of Kerala had given a

press statement that Homoeopathy medicines

are very good for prevention of Covid-19.

In the State of Gujarat, the Government

itself had prescribed the homoeopathy

medicines for its citizens.”

7. The appellant is aggrieved by the directions of

the High Court contained in paragraph 14 only. The

High Court in its judgment dated 21.08.2020 itself

has extracted the G.O. dated 21.04.2020 of the

Government of Kerala where Government of Kerala was

pleased to approve the action plan outlining the

Homeopathy Strategies for prevention and management

of COVID-19 in Kerala. It is now useful to refer to

the G.O. dated 21.04.2020, which has been quoted in

the impugned judgment, which is to the following

effect:-

“GOVERNMENT OF KERALA

Abstract

AYUSH Dept. – COVID-19 - Action Plan

outlining the Homeopathy Strategies for

Prevention, and Management of COVID-19 in

Kerala – Approved - Orders issued.

------------------------------------------

AYUSH(B) DEPARTMENT

8

G.O.(Rt)No.161/2020/AYUSH

Dated,

 Thiruvananthapuram,

21/04/2020

------------------------------------------

Read:- 1. Letter No. DHTVM/2606/2019-P2

dtd. 13.04.2020 of the Director

of Homeopathy.

ORDER

In the circumstances explained by the

Director of Homeopathy vide letter read

above, Government are pleased to approve

the Action Plan outlining the Homeopathy

Strategies for prevention and management

of COVID-19 in Kerala as appended to this

order.

(By order of the Governor)

Bhooshan V.,”

8. We have heard Shri Venkita Subramoniam, learned

counsel for the appellant and Shri Tushar Mehta,

learned Solicitor General of India for the

respondent.

9. An affidavit has been filed on behalf of

Ministry of AYUSH to which rejoinder has also been

filed. The appellant being aggrieved only with

directions in paragraph 14 and no relief having been

claimed by the appellant against the State of Kerala,

9

we have not issued notice to respondent Nos. 2 and 3

and we proceeded to decide this appeal after hearing

the learned counsel for the petitioner as well as

learned Solicitor General of India for the

respondent.

10. Learned counsel for the appellant contends that

the directions issued by the Division Bench of Kerala

High Court in paragraph 14 to take actions against

Homeopathic doctors, who prescribe any drug as a cure

for COVID-19 disease should be proceeded with under

the provisions of Disaster Management Act, 2005 was

uncalled for and beyond the scope of the writ

petition. Learned counsel submits that even the

Government of India advisory dated 06.03.2020

permitted COVID-19 like illness to be managed by

AYUSH systems. The advisory itself permits

Homeopathy to be used as preventive, prophylactic,

symptom management of COVID-19 like illnesses and add

on interventions to the conventional care. The High

Court has erred in confining right of Homeopathic

medical practitioners to prescribe only as immunity

10

booster, which direction is not in accord to the

Guidelines dated 06.03.2020.

11. Learned counsel for the appellant submits that

guidelines for Homeopathic practitioners for COVID-19

has been issued by Government of India, Ministry of

AYUSH, which clearly permits medical practitioners,

which permission from local health authorities and

Medical Superintendent of the hospital to prescribe

medicines for COVID-19. When the guidelines issued

specifically permits treatment of COVID-19 patients,

the High Court erred in observing that Homeopathy

practitioners can only prescribe medicines as

immunity booster. It is submitted that the direction

issued by the High Court in paragraph 14 has made

vulnerable the Homeopathic practitioners from being

proceeded with under Disaster Management Act, 2005

and actions by police and other medical staff, which

is demoralising the practitioners of Homeopathy.

12. Shri Tushar Mehta, learned Solicitor General of

India appearing for Ministry of AYUSH, Government of

11

India has submitted that Government of India keeping

in view the unprecedented and unforeseen precarious

situation caused by COVID-19, the Ministry of AYUSH

decided to augment and strengthen the COVID -19

medical response of the country by using the

traditional healthcare system of the country, which

includes AYUSH Organisation, Homeopathic practices as

well as Unani practices. Learned Solicitor General

of India has referred to advisory dated 06.03.2020,

which covers the field and he has also referred to

the guidelines issued by Government of India. Shri

Mehta has referred to the affidavit filed on behalf

of Ministry of AYUSH. He submits that Homeopathy

practitioners are permitted by the Ministry of AYUSH

to prescribe medicines as (i) preventive and

prophylactic; (ii) symptom management of COVID-19;

(iii) add on interventions to the conventional care.

13. We have considered the submissions of the learned

counsel for the parties and have perused the records.

12

14. The advisory dated 06.03.2020 issued by the

Ministry of AYUSH has been relied by the learned

counsel for the appellant as well as learned

Solicitor General and was also extensively extracted

by the High Court in its judgment. The advisory

dated 06.03.2020 contains the object of AYUSH

systems. It is useful to extract following (relevant

of Homeopathic only), which is part of advisory dated

06.03.2020:-

“i. Preventive and prophylactic:

xxxxxxxxxxxxxx

Homoeopathy:

Arsenicum album 30, daily once in empty

stomach for three days. The dose should be

repeated after one month by following the

same schedule till Coronavirus infections

prevalent in the community.

In one of the studies Arsenic album as one

of the constituents in a formulation

affected HT29 cells and human macrophages.

Also, it showed SNF-KB hyperactivity

(reduced expression of reporter gene GFP

in transfected HT29 cells), tTNF-a release

in macrophages. More over, Arsenic album

is a common prescription in the cases of

respiratory infections in day to day

practice.

ii. Symptom management of COVID-19 like

illnesses

13

xxxxxxxxxxxxxx

Homoeopathy

Various medicines which found to be

effective in treating flu like illness are

Arsenicum album, Btyonia alba, Rhus toxico

dendron, Belladonna Gelsemium Eupatorium

perfoliatum. All these medicines should be

taken in consultation with qualified

physicians of respective AYUSH systems.

iii. Add on Interventions to the

conventional care

xxxxxxxxxxxxxx

Homoeopathy

Medicine mentioned Symptom management of

COVlD-19 like illnesses under subhead

Homoeopathy can also be given as add on to

conventional care.

All these medicines should be taken in

consultation with qualified physicians of

respective AYUSH systems.

15. The above clearly indicate that Ministry of AYUSH

specifically permits use of Homeopathy for following

three ways:-

(i) Preventive and prophylactic;

(ii) Symptom management of COVID-19 like illness;

(iii) Add on interventions to the conventional

care.

14

16. We may further notice the specific averments made

by Ministry of AYUSH in its affidavit dated

23.11.2020 regarding what is permitted to the

Homeopathy Medical Practitioner as per Ministry of

AYUSH. Paragraph 16 of the affidavit sworn on behalf

of the Ministry of AYUSH is as follows:-

“16. In addition to the above, it is

respectfully reiterated that Ministry of

AYUSH has clearly permitted the

homeopathic medical practitioners to

prescribe the chugs, as mentioned in the

guidelines, as an add-on drug to the

conventional treatment for patients who

have been tested Covid positive and are

undergoing conventional treatment.

Thus in the respectful submission of

the answering respondent, prescription of

the medication prescribed by the Ministry

of AYUSH to Covid positive patients as an

add-on treatment is permitted, and

therefore, any contention to the contrary

stating that homeopathic medical

practitioner cannot prescribe any

treatment to Covid-19 positive patients,

even as an add-on to conventional

treatment is liable to be rejected. It is

stated that the only embargo is that the

said Medicines should not be administered

or advertised as a cure but should be

administered as preventive

measure/immunity booster or as an add-on

to the conventional treatment.”

15

17. It is clear from the advisory dated 06.03.2020

and the specific stand taken by the Ministry of AYUSH

as contained in paragraph 16 extracted above that

Homeopathic medical practitioners are not only

confined to prescribe Homeopathic medicines only as

immunity booster. The following observations in

paragraph 13 by the High Court does not correctly

comprehend the guidelines dated 06.03.2020:-

“13. ……………………………………When the Central as

well as State Governments have approved

prescription of certain mixtures and

tablets, as immunity boosters, qualified

medical practitioners in AYUSH can also

prescribe the same, but only as immunity

boosters.”

18. The High Court in the impugned judgment has

emphasised that if any qualified doctor practising

AYUSH medicine, makes any advertisement or prescribes

any drugs or medicines, as a cure for COVID-19

disease, except as prescribed in letter dated

6.3.2020, it is open to the authorities to take

appropriate action under the provisions of the

Disaster Management Act, 2005. Insofar as

advertisement by Homeopathic practitioners is

concerned, i.e., clearly prohibited by the

16

regulations framed in Section 33 read with Section 24

of Homeopathy Central Council Act, 1973 namely the

Homeopathic Practitioners (Professional Conduct,

Etiquette and Code of Ethics) Regulations, 1982. The

Regulation 6 prohibits advertisement for solicitation

of patients personally or advertisement in the

newspaper by the Homeopathic practitioners.

Regulation 6 is to the following effect:-

“6. (1) Advertising

Solicitation of patients directly or

indirectly by a practitioner of

Homoeopathy either personally or by

advertisement in the newspapers, by

placards or by the distribution of

circular cards or handbills is unethical.

A practitioner of Homoeopathy shall not

make use of, or permit others to make use

of, him or his name as a subject of any

form or manner of advertising or publicity

through lay channels which shall be of

such a character as to invite attention to

him or to his professional position or

skill or as would ordinarily result in his

self-aggrandisement provided that a

practitioner of Homoeopathy is permitted

formal announcement in press about the

following matters, namely :-

(i) the starting of his practice;

(ii) change of the type of practice;

(iii) change of address;

(iv) temporary absence from duty;.

(v) resumption of practice

(vi) succeeding to another's practice. 

17

(2) He shall further not advertise himself

directly or indirectly through price lists

or publicity materials of manufacturing

firms or traders with whom he may be

connected in any capacity, nor shall he

publish cases, operations or letters of

thanks from patients in non-professional

newspapers or journals provided it shall

be permissible for him to publish his name

in connection with a prospectus or a

director's or a technical expert's

report.”

19. When statutory regulations itself prohibit

advertisement, there is no occasion for Homeopathic

medical practitioners to advertise that they are

competent to cure COVID-19 disease. When the

Scientists of entire world are engaged in research to

find out proper medicine/vaccine for COVID-19, there

is no occasion for making any observation as

contained in paragraph 14 with regard to Homeopathic

medical practitioners. The homeopathy does not cure

the disease, but it cures the patients.

20. We have already noticed that the writ petition,

which was filed in the Kerala High Court only with a

limited relief for issuing direction to respondent to

implement the advisory dated 06.03.2020 issued by

Ministry of AYUSH, there was no occasion for High

18

Court to make observations and issue direction as it

has been made in paragraph 14.

21. We, however, make it clear that what is

permissible for Homeopathic medical practitioner in

reference to COVID-19 symptomatic and asymptomatic

patients is already regulated by the said advisory

and guidelines. The Government of India, Ministry of

AYUSH has also brought on record the guidelines

issued subsequent to 06.03.2020 for Homeopathy

medical practitioners for COVID-19, where Homeopathic

approach to COVID-19 has been elaborately dealt with.

The said guidelines, which has been issued after

04.04.2020 has been brought on the record as Annexure

C by the Ministry of AYUSH. The guidelines contained

following under the heading “Homeopathic approach”-

“Homoeopathic Approach

It is advised that before taking up for

homoeopathic medicines for prophylaxis,

Amelioration and mitigation, physician

must acquaint himself of above sections.

In case of epidemics or pandemics, first

approach is to follow preventive measures

and educate people about general measures

and to provide such interventions which

will keep their immunity enhanced.

19

Homeopathy therefore recommends issuing of

public notice for Genus epidemics

identified by the designated experts for

immunity enhancement and practitioners may

suggest the same to the people and as per

the Advisory issued by Ministry of

AYUSH(6).

Second approach is to provide homoeopathic

symptomatic mitigation to affected

persons. Homoeopathic medicines are also

useful in the treatment of communicable

diseases like Influenza Like Illness(7)

(8), dengue(9), acute encephalitis

syndrome(10). Several studies are also

published which shows the immune

modulatory potential of homoeopathic

medicines in preclinical studies (11) (12)

(13) (14) (15) (16). These medicines can

be prescribed in an integrated manner or

standalone depending on the severity on a

case to case

Therapeutic Aid

As a system with wholistic approach

medicine were selected based on the

presenting signs and symptoms of each

patients (17) (18) (19) (20). The

medicines given here are suggestive based

on their use and studies in the past in

diseases of similar presentation like

COVID-19 (21) (22) (23). Patients of

COVID-19 are to be treated with adjuvant

Homoeopathic medicines with the permission

from local health authorities and Medical

Superintendent of the Hospital.

Homoeopathic doctors must follow all

preventive measures (using PPEs) as are

required for dealing with COVID 19

patients. 

20

The remedies according to different stages

of disease are given below:

Mild Disease (Symptomatic Amelioration and

Mitigation Approach):

Medicines like Aconite napellus, Arsenicum

album, Bryonia alba, Gelsemium

sempervirens, Rhus tox. Eupatorium

perfoliatum, Ipecacaucunha, Belladonna,

Camphora, may be used depending upon the

symptoms similarities.

Severe disease but not in critical

condition:

It is defined by following criteria

(Dyspnoea, respiratory frequency ≥ 30/min,

blood oxygen saturation (SpO2) ≤ 93%,

PaO2/FiO2 ratio < 300, and/or lung

infiltrates > 50% within 24 to 48 hours)/)

 Suggested medicines are as adjuvant to

Standard Management guidelines in the

hospital setting only with the

approval of authorities and

willingness of the patient/guardian.

 The prescription is to be given only

by institutionally qualified

practitioner.

 Medicines like Phosphorus,

Chelidonium, Veratrum Viride, Iodum,

Camphora, Cinchona officinalis,

Lycopodium, Ars. iod., Antim ars.,

Stannum met, Carbo veg., can be

prescribed on symptomatic indication.

Posology

21

The medicine selected for each patient is

tailored to person specific, taking into

consideration, his/her mental make-up,

physical symptoms, and characteristic

particulars etc. In case of long term

illness, besides the above mentioned

factors, age, occupation, previous

illnesses and life circumstance unique to

that individual irrespective of the

disease which he/she is suffering from,

are also taken into consideration; thus

the dictum “Homoeopathy treats the patient

but not the disease”.

After the appropriate medicine is

selected, it is essential to decide the

requisite potency, dose and repetition

which is imperative for optimum response

and faster recovery in each case.

Different types of potencies such as

decimal or centesimal potencies can be

employed for treatment as are required for

acute diseases. However, selection of

potency of the remedy is dependent on

various factors like susceptibility of the

patient (high or low), type of disease

(acute/chronic), seat/ nature and

intensity of the disease, stage and

duration of the disease and also the

previous treatment of the disease(24).”

22. The above guidelines make it clear that

Homeopathy has been envisaged by the Ministry as the

therapeutic aid.

22

23. The above guidelines refer to Homeopathy

medicines as medicines for prophylaxis, Amelioration

and mitigation. The guidelines, however,

specifically provides that “the prescription has to

be given only by institutionally qualified

practitioners”. The High Court in its impugned

judgment has not fully comprehended the guidelines

dated 06.03.2020 and taking a restricted view of the

guidelines and have made observations for taking

appropriate actions against the Homeopathic medical

practitioners, which cannot be approved. The High

Court, however, is right in its observation that no

medical practitioner can claim that it can cure

COVID-19. There is no such claim in other therapy

including allopathy. The High Court is right in

observing that no claim for cure can be made in

Homeopathy. The Homeopathy is contemplated to be

used in preventing and mitigating COVID-19 as is

reflected by the advisory and guidelines issued by

the Ministry of AYUSH as noticed above.

24. We, thus, observe that directions issued by the

High Court in paragraph 14 of the judgment need to be

23

modified to the extent as indicated above. It goes

without saying that Homeopathic medical practitioners

have to follow the advisory dated 06.03.2020 issued

by AYUSH Ministry as well as guidelines for

Homeopathic medical practitioners for COVID-19 issued

by Government of India, Ministry of AYUSH, as noted

above. The Civil Appeal is disposed of accordingly.

The interlocutory applications filed seeking

permission for impleadment is rejected.

......................J.

 ( ASHOK BHUSHAN )

......................J.

 ( R. SUBHASH REDDY )

......................J.

 ( M.R. SHAH )

New Delhi,

December 15, 2020.