Toran Sahu vs Sunita Sahu

The present appeal under Section 19(1) of the Family Courts Act, 1984 (in short, The Act, 1984) has been filed assailing the judgment and decree of the Family Court, Dhamtari in Civil MJC Case No.106-A/2019, decided on 19.12.2019. Vide the impugned judgment, the court below has allowed the application under Section 27 of the Hindu Marriage Act, 1955 (in short, the Act, 1955) and ordered for handing over the Streedhan along with the goods and an amount of Rs.20,400/- in favour of the respondent-applicant.

At the outset, the counsel for the appellant submits that the judgment and decree is bad in law to the extent that the proceedings under Section 27 of the Act, 1955 itself was not maintainable for the simple reason that there was no matrimonial proceeding between the parties instituted or pending at the time when the application under Section 27 was filed. Nor was there any matrimonial proceedings earlier filed and already stood decided between the parties. That, under the circumstances an independent application under Section 27 of the Act, 1955 was not maintainable.

Learned counsel appearing for the respondent on the other hand opposing the appeal submits that under Section 19 of the Act, 1984, the present appeal itself is not maintainable for the reason that the plain reading of the impugned judgment would show that the judgment of the court below has been on the consent of the two parties. That, when the judgment has been passed on consent between the parties, under Sub-section (2) of Section 19 of the Act, 1984, challenge to such an order of the Family Court when made with consent, is not maintainable.

As regards the factual aspect is concerned, the counsel appearing for the respondent have accepted the fact that either in the past or when the application under Section 27 of the Act, 1955 was filed there has been no matrimonial proceeding instituted, decided or pending between the parties. The application under Section 27 was independently filed by the respondent-applicant before the Family Court at Dhamtari and this stood entertained, registered and decided. The other admitted factual position as is reflected from the proceedings is that the appellant herein had not submitted his written statement before the court below though he was served upon the notice on an earlier occasion and had also appeared before the court. The appellant had also been proceeded exparte by the court below from the stage of filing of written statement. The only basis upon which the court below has proceeded and passed the impugned judgment is the alleged statement given by the appellant before the court below where he has appeared initially on an earlier date of hearing i.e. on 27.09.2019.

The question to be considered now is whether the said statement or the observations made by the appellant before the court on 27.09.2019 can be construed as a consent for the disposal of the application under Section 27 of the Act, 1955.

It would be relevant at this juncture to take note of the contents of the impugned judgment in paragraph 2 which reads as under:

In just opposite the contents stated in the preceding paragraph, it would be relevant also to take note of the findings recorded by the court below in paragraph 11, which again is being quoted hereinunder :

From the plain perusal of the contents of paragraph 11 of the impugned judgment it clearly reflects that there was no written statement submitted by the appellant herein, the respondent before the court below. He was also proceeded exparte by the court below and that the court below has taken note of some oral statement made by the appellant in the court at the preliminary stage of hearing and has presumed it as a consent on his part while allowing the application under Section 27 of the Act, 1955. The observation or statement made by the appellant at the preliminary stage before the court cannot be construed as his consent for the disposal of the application under Section 27 of the Act, 1955 particularly when the same court has on a subsequent date of hearing have proceeded exparte against him.

It would be relevant at this juncture to take note of contents of Section 27 of the Act, 1955, which again for ready reference is reproduced hereinunder:

"27. Disposal of property-In any proceeding under this Act, 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."

The opening words of the Section itself says as in any proceeding under this Act, which by itself means that in a pending proceeding alone can there be an application under Section 27 of the Act be filed and not otherwise. In the instant case, admittedly there has been no matrimonial proceeding instituted between the parties either in the past which has got decided, nor was there any such application or proceedings pending when the application under Section 27 was filed by the respondent in the present appeal before the court.

Division Bench of this High Court in the recent past had an occasion of dealing with an issue of identical nature in case of Smt. Babita @ Gayatri Vs. Modprasad @ Pintu, AIR 2018 CG 40 wherein in paragraphs 9 and 10, it has been held as under:

"9. In FAM No.5/2008 (Sanjay Kumar Manu vs Shrimati Urmila Manu), decided on 13.07.2010 by one of us (Prashant Kumar Mishra), a similar view as has been taken that an independent proceeding under Section 27 of the Act, 1955 has not been contemplated from the language contained in Section 27 of the Act, 1955. It is held thus in paragraph 11:-

(11). On the basis of what has been observed by the Hon'ble Supreme Court and the Single Bench of Punjab & Haryana High Court it would appear that an independent proceeding under Section 27 of the Act has not been contemplated from the language contained in Section 27. For application of the provision of Section 27 first there has to be a proceeding which can be said to be main proceeding under the Act 1955 and while passing a decree in the said main petition, Court is empowered to make provision in the decree as it deems proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and wife. In the present case the respondent/wife has not instituted any petition seeking decree of divorce or judicial separation or restitution of conjugal rights and has straightway preferred an application under Section 27 for return of 'Stridhan' property on the allegation that the property were presented at the time of marriage. Taking guidance from judgment rendered by Hon'ble Supreme Court Balkrishna Ramchandra Kadam Vs. Sangeeta Balkrishna Kadam (supra), and in the Punjab & Haryana High Court Smt. Surinder Kaur Vs. Madan Gopal Singh (supra), this Court is of the opinion that an independent proceeding under Section 27 without there being any main petition pending under any other provision of the Act 1955, is not maintainable.

A Division Bench of Madhya Pradesh High Court in the matter of Manish Nema vs Sandhya Nema, reported in 2009 (2) MPHT 267, has held held that relief under Section 27 of the Act seeking Court's direction for return of Streedhan can be obtained even in a subsequently instituted proceeding, after disposal of the matrimonial proceeding. This judgment has been pressed into service by the learned counsel for the appellant to canvass that an independent proceeding under the Act is maintainable. However, on a complete reading of the judgment, we find that decision is in sink with the law laid down by the Supreme Court in Balkrishna Ramchandra Kadam (supra), inasmuch as a subsequent application under Section 27 of the Act for return of Streedhan would be maintainable after a previously instituted matrimonial proceeding has been decided between the parties. However, the judgment nowhere lays down the proposition that a proceeding commenced for the first time between the parties in form of application under Section 27 is maintainable even in a case where no other matrimonial proceeding has ever been initiated, decided or pending between the parties."

The aforesaid judgment of Division Bench of this High Court has been taking into consideration the judgment of Supreme Court in case of Balkrishna Ramchandra Kadam Vs. Sangeeta Balkrishna Kadam, AIR 1997 SC 3562.

In view of the aforesaid authoritative decision rendered on the issue and also on the admitted factual matrix as is reflected in the preceding paragraphs that there was no any matrimonial proceedings either decided in the past or was pending at the time when the application under Section 27 of the Act, 1955 was filed by the respondent herein. Thus, at the first instance itself the application under Section 27 of the Act, 1955 before the court below was not tenable and it ought to have rejected at the threshold.

As regards the contention of the counsel for the respondent that the appeal is not maintainable in view of Sub-Section (2) of Section 19 of the Act, 1984, we are of the firm view that once when the court below has proceeded exparte from the stage of non filing of the written statement by the appellant-respondent before the court below and there being no written consent or an oral consent given by the parties at the time of the disposal of the suit before the court below, it cannot be construed to be a judgment on a consent given by the parties. Therefore, the said objection also is not sustainable. The impugned judgment dated 19.12.2019 passed by the Family Court Dhamtari in Civil MJC Case No.106-A/2019 is therefore not sustainable in the eye of law. The same therefore deserves to be and is accordingly set aside/quashed.

The appeal stands allowed.

A fresh decree accordingly be issued or passed.