Gurcharan Singh vs Ajmer Kaur

Gokal Chand Mital, J.—The parties to the litigation are husband and wife. On 18th August, 1950 the husband filed a petition for dissolution of marriage u/s 13 of the Hindu Marriage Act, 1955 (hereinafter called the ''Act''). While that petition was almost at the concluding stage, the wife filed a petition on 20th January, 1981 u/s 27 of the Act for passing order for disposal for the property like ornaments, utensils, dressing table and other pieces of furniture as detailed in the schedule attached to the application. Notice of that application was given to the husband but in the meantime the main petition for divorce filed by the husband was dismissed on 30th January, 1981. The husband filed his reply to the application u/s 27 of the Act on 16th February, 1981 in which a preliminary objection was raised regarding which issue No. 4 was framed as follows :

Whether the application is liable to be dismissed after the decision of the application u/s 13 of the Hindu Marriage Act ?

The parties treated the issue to be a legal one and did not adduce evidence. In view of the decision of this Court in Surinder Kaur Vs. Madan Gapal Singh, it was concluded by order dated 7th March, 1982 that if a petition u/s 27 of the Act is filed during the pendency of any other proceedings under the Act, that can be concluded even beyond the decision of the main petition. Consequently, the preliminary issue was decided in favour of the wife and against the husband and it was ordered that the parties should lead evidence on merit of the case. Against the aforesaid order, the husband came to this Court in this revision.

The main ground in the revision was that the wife had filed petition u/s 27 of the Act after the main proceedings u/s 13 of the Act had been concluded. This is so stated in ground No. 3. The learned counsel for the wife has pointed out from the impugned order wherein it is clearly mentioned that the application u/s 27 of the Act was filed on 20th January, 1981 and that the main petition u/s 13 of the Act was decided on 30th January, 1981 and that the husband filed reply to petition u/s 27 of the Act on 16th February, 1981. From the copies of the application and reply, which were with the counsel it is clear that the application u/s 27 of the Act was filed before the main divorce petition was decided. Accordingly the ground raised in para 3 is factually wrong.

It is also urged in the grounds of revision that the provision as envisaged in section 27 of the Act has to be made in the final order passed in the main proceedings because section 27 is in the following terms :--

In any proceeding under this Act, the Court may make such provisions in the decree as it deem 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.

Emphasis is laid on the word ''in any proceedings under the Act ''and'' the Court may make such provisions in the decree''. It is true that section 27 does provide that a provision can be made in the decree in any proceedings under the Act but that does not show that such J a provision cannot be made after the main case is decided. I fully agree with the observations of M. M. Punchhi, J. in Smt. Surinder Kaur''s case (supra) that in case petition u/s 27 of the Act is filed before the conclusion of the final proceedings, decision on that application can be taken even after the final disposal of the new proceedings.

To illustrate that the aforesaid view is correct, suppose any one of the parties is not satisfied with the order passed u/s 27 of the Act which may have been contained in the main decree passed in the main case and both the parties are satisfied with the decision in the main proceedings, can it be said that there is no remedy with the aggrieved party against order passed en application u/s 27 of the Act. If the argument was to be accepted then no appeal Revision would be competent because it will not be possible to make provision in the decree as appeal or revision would be filed in this Court only against the order u/s 27 of the Act and not in the main proceedings, as none of the parties was aggrieved therefrom. If in, appeal or revision, order passed by the Court below u/s 27 of the Act can be modified in the aforesaid circumstances then there can be no reasonable ground why the Court below cannot pass order on application u/s 27 of the Act after the decision of the main case.

For the reasons recorded above, this revision is devoid of merit and is dismissed. The petitioner shall pay the cost to the respondent.