Sharda Prasad Jaiswal VsUsha Jaiswal

The appellant has filed this appeal under Section 19 (1) of the Family Courts Act, 1984 against the judgment and decree dated 15.12.2017 (Annexure-A/1) passed by the learned Family Court, Korba in Civil Suit No.154-A/2016, whereby the learned Family Court has allowed the application under Section 27 of the Hindu Marriage Act, 1955 filed by the respondent wife.

The brief facts of the case are that the marriage of respondent wife was solemnized with the applicant husband on 29.04.1992 and out of their wedlock, two daughters were born. After some time, the appellant husband started living adulterous life with one lady and due to their illicit relation, one son was born and since then the appellant used to abuse and ill treat the respondent wife, therefore, she went to her parental house. The appellant filed divorce petition before the learned Family Court, Korba, which was dismissed vide judgment and decree dated 20.10.2015. The application under Section 12 of the Domestic Violence Act was filed against the appellant husband by the respondent wife before the learned JMFC, Mungeli, which was allowed and maintenance of Rs.12,000/- was directed to be paid to respondent wife and her children, who were living along with her. Thereafter, the respondent wife filed application under Section 27 of the Hindu Marriage Act before the learned Family Court, Korba for return of streedhan on the ground that at the time of marriage, the parents of the wife had given streedhan by way of gifts, presents etc., which are in possession of the husband.

The learned Family Court, Korba after appreciation of oral and documentary evidence available on record partly allowed the respondent's application vide judgment and decree dated 15.12.2017 (Annexure-A/1) and ordered that the respondent wife is entitled to her streedhans i.e. bed, mattress, quilt, divan bed, pillow, sofa, utensils, two steel buckets, two steel drums, brass platter, steel platter, pressure cooker, gas stove, two cylinder cards except scooter and jewellery in absence of any proof or valid document, therefore, the present appeal has been filed.

Learned counsel for the appellant submits that the impugned judgment and decree is perverse and bad in law, as the same has been passed without any evidence available on record. The learned Family Court has failed to interpret the provisions contained in Section 27 of the Hindu Marriage Act and has also failed to consider the material aspects of the case, as it is clear from the evidence available on record that the wife has already taken the alleged streedhans from the husband while leaving the matrimonial house. Thus, the learned Family Court has committed grave error of law, as such the impugned judgment and decree is liable to be set aside.

Learned counsel for the respondent supports the impugned judgment and decree.

Heard learned counsel for the parties and perused the material available on record.

Before the learned Family Court, the respondent examined two witnesses, the respondent herself as AW-1 and her brother Subhash Jaiswal as AW-2. The appellant also examined himself as DW-1 and one Anil Kodwani as DW-2. The respondent wife Smt. Usha Jaiswal (AW-1) stated in her evidence that at the time of marriage, her parents gave her bed, mattress, quilt, diwan, diwan pillow, utensils, two big steel drums, press, table fan, ceiling fan, scooter, chain of three tola, necklace (mangalsutra) of two tola, ear rings (kundal), two rings of half-half tola, but she admitted in her cross examination that she did not file any receipt of these articles and it is not true that she left away taking jwellaries. Her brother Subhash Jaiswal (AW-2) also stated the same and admitted that they do not have any receipt of any article.

Section 2 of the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985 reads as under:-

Rules in accordance with which lists of presents are to be maintained -

(1) The list of presents which are given at the time of the marriage to the bride shall be maintained by the bride.

(2) The list of presents which are given at the time of the marriage to the bridegroom shall be maintained by the bridegroom.

(3) Every list of presents referred to in sub-rule (1) or sub-rule (2) -

(a) shall be prepared at the time of the marriage or as soon as possible after the marriage;

(b) shall be in writing;

(c) shall contain:

(i) a brief description of each present;

(ii) the approximate value of the present;

(iii) the name of the person who has given the present;

and

(iv) where the person giving the present is related to the bride or bridegroom, a description of such relationship;

(d) shall be signed by both the bride and the bridegroom.

Explanation 1. Where the bride is unable to sign, she may affix her thumb impression in lieu of her signature after having the list read out to her and obtaining signature on the list of, the person who has so read out the particulars contained in the list.

Explanation 2. - Where the bridegroom is unable to sign, he may affix his thumb impression in lieu of his signature after having the list read out to him and obtaining the signature on the list, of the person who has so read out the particulars contained in the list.

(4) The bride or the bridegroom may, if she or he so desires, obtained on either or both of the lists referred to in sub-rule (1) or sub-section (2) the signature or signatures of any relations of the bride or the bridegroom or of any other person or persons present at the time of the marriage.”

The marriage of the respondent wife was solemnized with the applicant husband on 29.04.1992 and they have been living separately since 1997, but the respondent wife filed the application under Section 27 of the Hindu Marriage Act, 1955 before the Family Court, Korba on 20.07.2016 i.e. after about more than 18 years. The respondent wife did not state in her evidence that any list of articles, required under Section 2 of the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985, was prepared at the time of their marriage or soon after the marriage and the same was not filed before the learned Family Court. The learned Family Court finds in para 9 that as per the appellant himself's version, the family members of the respondent wife had given household articles, such as bed, mattress, quilt, divan bed, pillow, sofa, utensils, two steel buckets, two steel drums, brass platter, steel platter, pressure cooker, gas stove, two cylinder cards to the respondent wife, therefore, the respondent wife is entitled to the aforesaid articles, however, the respondent wife is not entitled to scooter and jwellery in absence of any proof or valid document and accordingly partly allowed the application.

The respondent wife did not file any receipt of any article and her brother also admitted that they do not have any receipt of the articles and the learned Family Court also finds that without receipt of registration certificate of scooter and in absence of any bill of jwellary, she is not entitled to scooter and jwellary. It is also to be seen that both the parties have been living separately since 1997 and wife filed the application for return of streedhan on 20.07.2016 i.e. after about more than 18 years without any receipt or list of the articles sought for. The learned Family Court partly allowed the application of the respondent wife without any receipt or list of the household articles as required under Section 2 of the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985, which is not based on the appropriate appreciation of law and evidence as well, therefore, the impugned judgment and decree (Annexure-A/1) deserves to be and is hereby set aside.

The appeal is allowed. No order as to cost (s).