Parmeshwari Dansena vs Onkar Dansena

Goutam Bhaduri, J

The instant appeal is by the wife against the judgment & decree dated 1-8-2016 passed by the Judge, Family Court, Raigarh, in civil suit No.F-44A/2014.

Learned counsel appearing for the appellant/wife would submit that the respondent/husband has remarried, as such, it will be difficult for her to restore to the matrimonial ties and it is submitted that the alimony which has been granted to the wife was too meager and even return of the gift items, which were given at the time of marriage, to the wife was not considered by the learned Family Court for any return. Therefore, the same may be directed to be returned to the wife along with prayer for enhancement of alimony.

On the earlier date since the submission was made by the wife that primarily challenge is not to the divorce for the reason that the husband had already remarried the alimony part may be reconsidered, both the parties were directed to file affidavits and necessary documents to show the income and the properties held by them, both movable and immovable. Accordingly, affidavits have been filed.

Leaned counsel for the appellant would further submit that at para 7 of the statement of the wife recorded before the Court below the list of gift items given to her were shown, which was around Rs.6.00 lacs, however, the same have not been returned. He would also submit that there is no cross-examination on this issue and that evidence remained unrebutted. Under these circumstances, return of gift items should have been ordered by the learned Court below. He would next submit that the appellant is a Teacher (Shiksha Karmi) and drawing Rs.35,000/- per month towards salary. An application under Order 41 Rule 7 of the CPC has been filed to show the details of properties jointly held by the husband and his family members along with photographs of house wherein the husband is shown to be running a shop of computer and photocopy.

Learned counsel appearing for the respondent/husband would submit that two affidavits have been filed by the husband. First affidavit was filed on 16-11-2021 and subsequent affidavit was filed on 21-4-2022. In the first affidavit, the respondent has stated that he do not have any individual income and only earning meager amount of Rs.6,000-7,000 per month, therefore, the enhancement which has been sought for is unjustified.

We have heard learned counsel for the parties only with respect to the issue of alimony. The alimony was allowed to the wife by the learned Family Court was to the extent of Rs.1.00 lac. Since the wife has stated that at this moment she is not challenging the decree of divorce for the reason that the husband has remarried, we are not inclined to go into the finding given by the Court below on the issue of divorce.

Now coming back to the quantum of alimony and return of gift items, Section 27 of the Hindu Marriage Act, 1955 contemplates that 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.

At para 7 of the statement recorded before the Court below, the wife disclosed that the followings items were gifted to her at the time of marriage :

ARTICLES

·         Cooler

·         Dining Table Almirah

·         Box

·         Mattress Pillow

·         Television Bed

·         Sofa Set

·         Dressing Table

·         Silver articles Weight 892 gms.

·         Gold Ornaments 49.300 gms. (Chain, Rings, Nose Pin, forehead jewellery & Gold Flower)

·         Brass Pot

·         Bronze Plate

·         Steel Drum 20 pieces Steel Platter 25 pieces Brass Platter 8 pieces Brass Kopra 5 pieces Cooker 5 pieces

·         Silver container 5 pieces Small Hotpot 3 set

·         Jug 2 pieces

·         Kitchen Set 2 pieces Stove

·         Idli Part 2 pieces Water Filter

·         Mixi 2 pieces Juicer 2 pieces Iron 4 pieces

·         Ceiling Fan 3 pieces Table Fan 1 piece Gas Stove

·         Stitching Machine Induction Stove Briefcase 4 pieces

·         Chakka Wala 1 piece Big Bag 2 pieces

·         Wrist Watch 2 pieces Gift Item 60 pieces

·         Puri Banane ki Machine

·         Silver Laxmi Ganesh Idol

·         Rs.7500/- in briefcase Rs.5000/- in purse

·         Total articles of Rs.4,92,895/- was gifted.

STRIDHAN

·         Silver Anklet 2 pairs Toe ring 5 set

·         Gold pendant Gold necklase

·         Gold Mangalsutra

·         Cash 40,000/- rupees in envelope

A perusal of cross-examination of witness DW-1 Smt. Parmeshwari Dansena shows that those facts which were stated to be presented to her at the time of marriage remained unrebutted. The husband in his first affidavit stated that he is earning an amount of Rs.6,000-7000/- per month. In the subsequent affidavit it has been disclosed that he is earning Rs.5,000/- per month. On reading of both the affidavits filed by the husband, prima facie, it appears that all deliberate efforts have been made to conceal the income, which otherwise would amount to making a wrong disclosure by way of affidavit. However, we are not inclined to go into the issue at this stage because the statement of the wife remained unrebutted in respect of the gift items which were presented to her at the time of marriage.

Considering the fact that the marriage was solemnised on 24-4-2012 and the gift items, which were presented, might have lost its value/efficacy with the passage of time, we deem it proper to pay an amount of Rs.5.00 lacs (Rupees Five Lacs Only) to the appellant/wife in lieu of items gifted to her at the time of marriage within a period of one month from today, failing which it would carry interest at the rate of 9% per annum. It is made clear that the appellant/wife would be entitled to recover the amount by way of coercive method.

Accordingly, the present appeal is disposed of in the above stated terms, leaving the parties to bear their own cost(s).

A decree be drawn accordingly.