Sumer Chand vs Bimla Rani

Sarojnei Saksena, J.—Husband appellant has filed this appeal against the judgment and decree passed by Mr. S.R. Bansal, Additional District Judge, Ambala, in Hindu Marriage Act Case No. 66/3 decided on 20th August, 1986.

The appellant was married to the respondent on 27th June, 1967 in Village Booka, P.S. Radaur, District Kurukshetra. The respondent filed a petition for dissolution of marriage u/s 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) which was decreed on 14.9.1984 when this petition u/s 27 of the Act was filed.

The respondent''s contention was that at the time of marriage, articles detailed in Annexure A were presented to her. Thus, these articles belong to her. The respondent was turned out from the matrimonial home in three clothes. The property items detailed in Annexure A-l are still lying with the appellant. Hence, it is prayed that at the time of or after (these two words are added by hand) passing of the decree for dissolution of marriage by a decree of divorce, provision be made that these items (property mentioned in Annexure A) are handed over to the respondent.

The appellant contested the petition and inter alia objected that the petition is not maintainable as the proceedings under Hindu Marriage Act are pending between the parties. The other allegations of the petition were also denied.

Parties adduced evidence. Relying on the respondent''s evidence, the Trial Court passed the impugned order and directed the appellant to return the articles mentioned in Annexure-A (except Rs. 12,000/- spent on the marriage party and Rokna) or their value amounting to Rs. 14,000/-. The Trial Court held that gold and silver ornaments worth Rs. 9,800/- were given to the respondent at the time of marriage. The exact value of other dowry articles could not be assessed but including the cash gift of Rs. l;500/-, the Trial Court ordered that appellant should pay Rs. 5,000/- to the respondent in lieu of other party.

Appellant''s learned Counsel relying on Smt. Surinder Kaur v. Madan Gopal Singh, 1980 Vol. III MLJ 483, and Dharambir v. Smt. Bimlesh Kumari, 1985 M.L.J. 116, contended that the respondent filed a divorce petition against the appellant on 2nd February, 1984 which was decided on 14.9.1984. Till that decree was passed no petition u/s 27 of the Act was presented in that proceeding. On 14.9.1984, the respondent filed this petition u/s 27 of the Act, though it is prayed in the petition that at the time of or after passing of the decree in divorce case an order about return of property should also be made but before this petition could go to the Court for adjudication the divorce petition was already decreed on 14.9.1984. Hence, the Trial Court has failed into an error in holding that the petition is maintainable.

Alternative argument was advanced that in such a petition only those properties can be ordered to be returned to the wife which were given at or after the marriage and which were jointly owned by both the spouses. Any property which is given exclusively to the wife cannot be ordered to be returned. He pointed out that the Trial Court has held that gold and silver ornaments worth Rs. 9,800/- were given to the respondents, at the time or after the marriage. She can file a regular suit for its recovery. Even cash amount of Rs. 1,500/- cannot be ordered to be returned because it cannot be said that this amount was owned jointly by the appellant and the respondent. Thus, he also contended that from a bare perusal of the respondents petition, it is evident that her case is that the property mentioned in Annexure A were presented to her at the time of her marriage; though, it has specified other items also like expenses of marriage party Rs. 10,900/- expenses for Rokna Rs. 2,000/- and expenses at the time of Pheras Rs. 1,500/- (all these items are disallowed by the Trial Court), suits for the father and uncles, suits for ladies and suits for mother. The respondent has also tried to prove that all these articles were given to her as presents. Hence, according to him the petition ought to. have been dismissed by the Trial Court on both the counts. For this preposition, he has relied on Suresh Kumar v. Smt. Saroj Bala AIR 1989 P & H 217 : (1988) DMC 526.

Counsel for the respondent did not appear at the time of arguments. I, therefore, did not have the advantage of hearing the learned Counsel for the respondent.

Section 27 of the Act has two essential parameters, (i) provision has to be made in the decree itself in any proceeding under the Act, and (ii) provision can be made only with respect to joint property of both husband and wife. In Dharmakir''s case and Smt. Surender Kumar''s case (supra), it is clearly held that application u/s 27 of the Act, must be made before the termination of the main proceedings for a matrimonial relief. Hence, there is a specific mention in the section that the provision has to be made in the decree itself in any proceedings under the Act. But in this case, respondent has filed a separate application u/s 27 of the Act. This application was filed on 14.9.1994 and on that very date divorce petition filed by her was disposed of and decree was passed accordingly. Thus, it is obvious that this petition u/s 27 of the Act was not filed in any proceeding under this Act. Hence, the Court had no occasion to make the provision in that decree with respect to property alleged to have been presented to her at or about the time of marriage. On this short ground, in my humble view, the respondent''s petition filed u/s 27 of the Act was not maintainable. Accordingly, the appeal is liable to be allowed on this Court alone.

In the alternative my finding is that since the respondent''s specific allegation is that all the properties mentioned in Annexure A, were presented to her at the time of marriage that is her Stridhan and as all these properties are lying with the appellant, he should be directed to return them to her. She has stated so on oath as well. Hence, even according to her all these properties do not belong jointly to them but they are part and partial of her Stridhan. u/s 27 of the Act properties which are characterised as Stridhan cannot be ordered to be returned by the husband if at all they are in, his possession. u/s 27 of the Act, only those properties can be ordered to be returned which are in husband''s possession and which belong jointly to both of them. See Anil Kumar v. Smt. Jyoti 1987(2) H.L.R. 162 Suresh Kumar''s case (supra) and Padmja Sharma v. Ratan Pal 1994(1) H.L.R. 576 (Raj.). But this was not the respondent''s case in the lower Court. On this count also, the appeal is liable to be accepted.

Accordingly, the appeal is hereby allowed. The Trial Court impugned judgment and decree is set aside with costs.