Smt. Meena Choudhary vs Satya Narain Kanwar

J.V. Gupta, J.—The marriage between the parties was solemnised on 31.1.1971 Husband Satya Narain Kanwar filed a petition for divorce u/s 13 of the Hindu Marriage Act, 1955, (hereinafter refer to as ''the Act''), on 15.4 1977. The petition was contested but ultimately on 19 5 1979, counsel for the wife pleaded lack of instructions Consequently, an exparte decree, of divorce was passed in favour of the husband on that very day. An application to set aside the exparte decree was filed the same day. However, it was dismissed by the trial Court on 21.5.1981. Aggrieved with the same, the wife filed an appeal in this Court which was accepted on 13.1.1983.

The learned Additional District Judge, after hearing the arguments came to the conclusion that the wife had deserted the husband for a continuous period of not less than two years immediately preceding the presentation of the petition. However, meanwhile the husband had performed second marriage on 13.4.1980. In view of that conduct of the husband, the learned Additional District Judge while granting relief in the divorce petition, observed as under:

It is an unusual case in the sense the Petitioner contracted the second marriage when the application for setting aside the ex-parte decree was pending Though this aspect of the case has been discussed qua its effect on the ground of desertion as argued by the counsel for the Petitioner and it has been held to have no effect, yet feel that in the interest of justice, the Respondent should be compensated for this undue haste shown by the Petitioner On this score, I burden him with costs of Rs. 5,000/- which he shall pay to the Respondent. Though the costs are on the higher side and have been given against the person whose petition has been accepted, yet in the circumstances of the present case, J am of the view that these are perfectly justified-In para No. 3 of the preliminary objections of the written statement, it had been mentioned that dowry worth Rs. 35,000/- was given in the marriage. Spending of Rs. 35,00 /- was, however, denied. It was never stated that no dowry was accepted. Even otherwise, it can be presumed that in arranged marriages dowry is given. There is a reference also to the dowry articles in the letter written by the Respondent wherein she has asked the members of the Petitioner family not to touch the goods. u/s 27 of the Hindu Marriage Act. the Court is empowered to make provision in the decree with, respect to any property presented at or about the time of marriage which may belong jointly to both husband and wife. Since it has not been denied that no dowry was given and it has also not been alleged that the Respondent had taken away her dowry articles, the facts of the present case warrant an action u/s 27 of the Hindu Marriage Act also. Keeping into view the totality of the circumstances. I am further of the view that the Respondent should get another sum of Rs. 10,000/ - on account of these articles u/s 27 of the Hindu Marriage And and I order accordingly.

Aggrieved with the decree of divorce, the wife has filed this appeal. The husband did not file any appeal or cross-objections challenging the decree passed u/s 27 of the Act However, on 14.8 1987, counsel for the Appellant-wife wanted time to move an application u/s 25 read with Section 27 of the Act so that the same may be disposed of along with the appeal. On 11 9 1987, an affidavit was filed on behalf of Satya Narain Respondent-husband, that on enquiries he found that the Appellant Meena Chaudhary, was employed in the B Ed. College Sangria and drawing more than Rs. 1000/- per month as her pay. She was on medical leave from the college. According to the affidavit, it was also disclosed to the deponent (husbands that she had contracted a second marriage about one year ago and is said to be living at Hanumangarh, which is about 25-30 kilometers from Sangaria. Today an application u/s 25 read with Sections 27 and 28-A of the Hindu Marriage Act, has been filed on behalf of the Appellant. The same is supported by an affidavit of Smt. Meena Chaudhary. Therein she has denied that she has contracted any second marriage as alleged by Respondent Satya Narain. However, it was admitted by her that she was in service.

The learned Counsel for the Appellant (wife) did not challenge the finding of the trial Court on merits. This was so particularly, in view of the fact that the husband had already contracted a second marriage on 13 4 1980 and had also got two children therefrom. It is most unfortunate that these proceedings which were started in the year 1977 remained pending for more than 10 years. The trial Court has already awarded a sum of Rs. 5000/- as costs Be that as it may, in these circumstances, the findings of the learned Additional District Judge, could not be successfully challenged in appeal. The only argument raised on behalf of the Appellant in that in the written statement filed by her, she pleaded that dowry worth Rs. 35,000/- was given to the husband at the time of the marriage and. therefore, she was entitled to recover that amount from him According to the learned Counsel, the approach of the trial Court in this behalf was wrong when it only allowed a sum of Rs. 10,000/- instead of allowing a sum of Rs. 35.000/-. According to the learned Counsel, there being no rebuttal to the said evidence, the statement of the wife should have been accepted. On the other hand, the learned Counsel for the Respondent (husband) submitted that Section 27 of the Act, as such, did not apply because the wife has not given any list of articles which could be said to be jointly belonging to the parties for which an order could be passed u/s 27 of the Act. In support of his contentions, he referred to Anil Kumar Vs. Smt. Jyoti, . According to the learned Counsel even the wife was not entitled to a sum of Rs. 10,000/- as allowed by the trial Court, but in any case since he has not filed any appeal or cross objection he may not be in a position to challenge the same.

After hearing the learned Counsel for the parties and going through the pleadings and the relevant evidence on record, I do not find any merit in this appeal. In the replication filed on behalf of the husband, it was denied that any dowry much less the dowry worth Rs. 35,000/- was given to him at the time of marriage. No list of any articles etc. has been given by the wife either with the written statement or while appearing in the witness-box. In these circumstances, it could not be successfully argued on behalf of the Appellant that she was entitled to recover a sum of Rs. 35,000/- u/s 27 of the Act.

As regards maintenance u/s 25 of the Act. it is no more disputed that since the wife was also an earning hand, she was not entitled to any maintenance as such under the said provision

The result of the above discussion is that the appeal fails and is hereby dismissed with no order as to costs.