Dr. Suraj Parkash vs Mohinder Pal Sharma

J.V. Gupta, J.—This judgment will also dispose of F.A.O. No. 12-M of 1987 as both these appeals arise out of order of Additional District Judge, dated 12.11.1986. passed u/s 27 of the Hindu Marriage Act (for short the ''Act'')

This is an unfortunate dispute as a result of repture of the marriage so happily celebrated on 25 11.1984 between Suraj Parkash wife and Mohinder Pal husband. A month after the marriage its happiness gave way to bitterness and differences developed between the couple with the result that Suraj Parkash wife filed an application u/s 10 of the Act for a decree of judicial separation which was allowed on 17.12 1985 and later on a decree of divorce by consent was passed on 6.2 1987. During the pendency of the petition u/s 10 of the Act, wife also moved an application u/s 27 of the Act on 25.7.1985. Ordinarily this should have been disposed of along with the main petition filed under section. 10 of the Act for judicial separation. However, it appears that no orders were passed on this application u/s 27 of the Act and was subsequently decided on 12 11.1986. By virtue of the said order, the learned Additional District Judge directed the husband to return certain articles as detailed in the last para of the judgment. Dissatisfied with the said order, both the parties have filed separate appeals F.A.O. No. 239-M of 1986 has been filed by the wife whereas the other F.A.O. No. 12-M of 1987 has been filed on behalf of the husband in the application urnder Section 27 of the Act filed by the wife, it was stated that since there are no circumstances of the compromise between the parties, the dowry aticles mentioned in the accompanying list may be ordered to be reurned to her. In the reply filed on behalf of Mohinder Pal husband, he raised certain preliminary objections to the effect that the petition was not maintainable as the petition u/s 27 of the Act could only be in a petition u/s 13 of the Act and not u/s 10 of the Act. Moreover, since it was a love marriage, the question of the dowry etc. did not arise The receipt of the articles mentioned in the list attached with the application allegedly received by Mohinder Pal in the dowry at the time of his marriage was denied. It was also pleaded that the wife could not claim more than Rs. 5000/- under the Dowry Prohibition Act.

On the pleadings of parties, the learned trial Court framed the following issues:-

Whether the Petitioner is entitled u/s 27 of the Hindu Marriage Act to any articles as mentioned in the petition ? If so, its effect ? OPP

Whether the petition is not maintainable ? OPR

Relief.

The parties were allowed to lead evidence. Under issue No. 1, the learned trial Judge concluded that "all these circumstances, when considered collectively do go to suggest that the Petitioner never trusted the Respondent or her parents-in-law and kept all her jewellery with her and when she left the matrimonial home on 8.3.1985 in the absence of her husband and her parents-in-law, she carried back the same to her parents'' house It has also come in evidence that while leaving the matrimonial home on 8 3.1985 she carried an attachee case or two with her. Therefore, the claim of the Petitioner regarding the jewellery is dismissed." However, it was held that the following articles given to the Petitioner in dowry are still lying with the Respondent and latter was directed to return the same:

(1) One Fridge.

(2) Steel Almirah.

(3) One double bed.

(4) Washing Machine.

(5) An iron petti containing various types of clothes.

(6) 3 or 4 attache case containing clothes for the bride and bridegroom.

Issue No. 2 was decided against the husband and it was held that the petition was maintainable.

The learned Counsel for the wife-Appellant submitted that it has been wrongly held that the wife was not entitled to the return of the jewellery which she had left at the house of her husband. The finding of the learned trial Judge in this behalf, according to the learned Counsel, is wrong and erroneous. It was further contended that u/s 27 of the Act, orders could be passed for returning the jewellery belonging to the wife. It was also contended that the trial Court has erred in not directing the husband to return all the articles as per list attached with the application. According to the learned Counsel, the finding of the learned trial Court in this behalf is also not tenable. On the other hand, the learned Counsel for the husband argued that no orders u/s 27 could be passed in a petition u/s 10 of the Act for judicial separation and such an order if any could be passed only in a petition u/s 13 of the Act for divorce. In any case, argued the learned Counsel, this application u/s 27 of the Act should have been disposed of at the time of passing the decree and not subsequently and as such the provision for returning the articles, if any, could be made in the decree itself. Thus, argued the learned Counsel, ''no separate order as such could be passed. It was further contended that as a matter of fact no jewellery was given in dowry as it was love marriage. In any case, whatever jewellery was brought by the wife was taken away by her. However, no orders could be passed u/s 27 of the Act for return of the jewellery being the exclusive property or Istridhan of the wife. According to the learned Counsel u/s 27 of the Act, the only property belonging jointly to the parties could be ordered to be returned. In support of this contention, be referred to Vinod Kumar Sethi and Ors. v. State of Punjab (1982) 9 Cr. L. T. 149 (Full Bench), Bhai Sher Jang Singh I A. S. (Retired) and Anr. v. Shrimati Virinder Kaur (1978) 80 P. L. R. 737 and unreported judgment in Suresh Kumar v. Smt Saroj Bala (1987) 92 P.L.R. 496, F.A.O. No. 49-M of 1986, decided on 17.7.1987 by this Court.

I have heard the learned Counsel for the parties and have also gone through the relevant evidence on record.

Section 27 of the Act reads as under:

Disposal of property; In any proceeding under this Act, the Court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.

From the language used therein, it is quite evident that any orders u/s 27 of the Act could be made at the time while passing the decree in a petition filed under the Act because such provision for return of the articles, if any, is to be made in the decree itself and, therefore, no separate order as such u/s 27 is contemplated by this Act.

Apart from that, application u/s 27 of the Act is a summary remedy and, therefore, that being so, provision to this effect should be made in the decree itself. Under Sub-section (i) of Section 28 of the Act all the decrees made by the Court in any proceeding under the Act have been made appealable whereas the orders passed u/s 25 or Section 26 only have been made appealable under Sub-section (2) if they are not interim orders. It is, therefore, clear that order u/s 27 of the Act as such has not been appealable u/s 28 of the Act This also supports the view that the provision should always be made in the decree itself as envisaged u/s 27 of the Act, no separate order is contemplated.

As regards the second contention that u/s 27 of the Act, only the property presented at or about the time of marriage which may belong jointly to both the parties could be directed to be returned has also force. The conception of Istridhan that it is the property exclusively belonging to the wife has not been done away with the Hindu Marriage Act. This matter has been settled by the Supreme Court in Pratibha Rani Vs. Suraj Kumar and Another, , wherein it was held that it cannot be said that upon a woman entering the matrimonial home, the ownership of the Istridhan property becomes joint with her husband or his relatious. In the Full Bench judgment of this Court in Vinod Kumar Sethi''s case (supra), this Court took the view that the express words of Section 27 refer to the property which may belong jointly to both the husband and the wife. It nowhere says that all the wife''s property belongs jointly to the couple or that Istidhana is abolished and she cannot be the exclusive owner thereof. The statute expressly recognises that property which is exclusively owned by the wife and the same is not within the ambit of Section 27 which is concerned only with that property which is presented at or about the time of the marriage, and belongs jointly to the couple.

It could not be disputed that the ornaments which are only meant for the use of the wife is her exclusive property and comes within the pureview of her Istridhan. It is, therefore, evident that u/s 27 of the Act, no provision could be made in the decree for the return of jewellery which exclusively belongs to the wife as her Istridhan. Contrary view was taken by the Delhi High Court in Anju Bhargava v. Rajesh Bhargava 1986 (2) H. L. R 393, wherein the learned Judge tried to explain that u/s 27 of the Act, the property forming subject matter of the case may belong jointly or may not belong jointly and, therefore, it includes both types of properties including the Istridhan of the wife. With due deference to the learned Judge, I do not subscribe to this reasoning. In any case, this case could not be used as a precedent because ultimately the learned judge observed in para No. 20 of the judgment that "I would have made a reference to a larger bench of this Court for resolving these judgments, had there not been an agreement between the parties before me regarding what is to be done in this matter. In my view the scope of Section 27 of the Act is wide, it does not need to be whittled down and covering of all the three categories mentioned by the Supreme Court in Pratibha Rani''s case would enable the intention of the legislature in Section 21 B of the Act, that matrimonial matters should be disposed of expeditiously, to be implemented."

Once it is held that no order could be passed with respect to the exclusive property belonging to the wife or the husband as the case may be the finding of the learned trial Courts in this behalf that no jewellery was left by the wife with her husband will not be binding on the parties in any subsequent proceedings which may be taken by the wife.

After coming to the conclusion that the order u/s 27 of the Act could only be passed while passing the decree and not separately as such the appeal of the husband would have been allowed but as regarding the articles directed to be returned, there is not much dispute between the parties. I do not feel that the order be set aside on this ground alone. Of course, the learned Counsel for the wife-Appellant contended that all the articles as per list attached with the application should have been directed to be returned but I do not find any force in this contention because on the appreciation of the entire evidence, the learned Judge has rightly concluded that only articles the details of which have been given in the earlier part of this judgment are joint of the parties which the husband was directed to return to the wife. Moreover I do not find any infirmity in the said finding as to be interfered with in appeal. In this view of the matter, both the appeals fail and are dismissed with no orders as to costs.