When suit filed by wife for recovery of stridhan is maintainable after passing of divorce decree?

Learned Counsel for the appellant argued that the earlier suit in which decree was granted was instituted by the husband and not by the wife. While the present suit is filed by wife. As such, it cannot be said that the provision of Order II Rule 2 gets attracted to the present case. Sub-section (3) of Rule 2 of Order II of Code of Civil Procedure, 1908, requires that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs but if he so omits, except with the leave of the court to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Since in the present case, wife was not the plaintiff in the suit filed earlier there is no question of holding that the subsequent suit filed by her is not maintainable as the cause of action arisen to husband was different to the cause of action arisen to wife.

6. Apart from above error of law committed by the trial court, it has further committed the error of law by observing that in view of the fact that application under Section 27 of Hindu Marriage Act, 1955, was not moved in the suit decided, no fresh suit can be maintained. Perusal of Section 27 of Hindu Marriage Act clearly shows that it pertains to the disposal of property belonged jointly by both the husband and wife. The provision does not cover the Stridhan. Stridhan is wife's personal property owned exclusively by her.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Decided On: 22.05.2008

Appellants: Meeta Salani D/o Sri Kailash Narayan Salani
Vs.
Respondent: Ravikant Sharma S/o Sri Dharm Dutt Sharma

Hon'ble Judges/Coram:
Prafulla C. Pant and Dharam Veer, JJ.

 Citation: II(2009)DMC194, 2008(3)UC1563, 2008(1)U.D.630

1. This appeal, preferred under Section 19 of Family Courts Act, 1984, is directed against the judgment and order dated 04.12.2006, passed by Principal Family Judge, Dehradun, in Original Suit No. 284 of 2005, whereby suit for return of Stridhan filed by the plaintiff is dismissed by said court.

2. Brief facts of the case are that in the earlier round of litigation, Ravikant Sharma (husband/present respondent), filed suit No. 79 of 2002, for decree of divorce against Meeta Salani (present plaintiff/appellant). Said suit was dismissed by the trial court vide order dated 06.11.2003. The husband (present respondent) challenged the judgment and order of the trial court by filing First Appeal No. 8 of 2003, which was decided by this Court vide judgment and order dated 16.02.2005. Said order whereby the appeal is disposed of, reads as under:

Shri Ravi Kant Sharma, appellant and Smt. Meeta Sharma, Opp. Party i.e. Husband and Wife appeared before this Court in person alongwith their respective counsel and both the parties made a statement jointly that if Rs. 3.00 lacs be paid to Smt. Meeta Sharma by Shri Ravi Kant Sharma within two months as permanent alimony, the appeal may be disposed of and decree of divorce may be passed in terms of one time settlement.

The parties also agreed that the child Master Ananya Sharma shall remain with the mother but the father would be allowed to visit whenever he desires. For the child, the father shall pay Rs. 1,000/- per month for his education till he attains the age of majority. In the light of the aforesaid terms, the parties agree that the appeal may be disposed of.

The appeal is disposed of accordingly. The decree of divorce shall be prepared by the Family Court concerned in terms of said compromise.

A copy of this order may be sent to the Family Court concerned to pass a decree of divorce in the aforesaid terms.

Sd/- Sd/- (J.C.S. Rawat, J.) (P.C. Verma, J.)

3. It appears that after the divorce granted, as mentioned above, Meeta Salani alias Meeta Sharma (present plaintiff/appellant) filed suit No. 284 of 2005 against Ravikant Sharma, for return of Stridhan.

4. The trial court vide the impugned order dated 04.12.2006, dismissed the suit holding it not maintainable. The impugned order reads as under:

(Vernacular omitted)

5. Learned Counsel for the appellant argued that the earlier suit in which decree was granted was instituted by the husband and not by the wife. While the present suit is filed by wife. As such, it cannot be said that the provision of Order II Rule 2 gets attracted to the present case. Sub-section (3) of Rule 2 of Order II of Code of Civil Procedure, 1908, requires that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs but if he so omits, except with the leave of the court to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Since in the present case, wife was not the plaintiff in the suit filed earlier there is no question of holding that the subsequent suit filed by her is not maintainable as the cause of action arisen to husband was different to the cause of action arisen to wife.

6. Apart from above error of law committed by the trial court, it has further committed the error of law by observing that in view of the fact that application under Section 27 of Hindu Marriage Act, 1955, was not moved in the suit decided, no fresh suit can be maintained. Perusal of Section 27 of Hindu Marriage Act clearly shows that it pertains to the disposal of property belonged jointly by both the husband and wife. The provision does not cover the Stridhan. Stridhan is wife's personal property owned exclusively by her.

7. Learned Counsel for the respondent argued that the plaintiff/appellant should have instituted the suit before the civil court as it is a dispute of property between the two individual, who are not parties to the matrimony. However, in view of the provision contained in Clause (c) to the explanation to Sub-section (1) of Section 7 of Family Courts Act, 1984, we do not find any force in the contention advanced on behalf of the respondent.

8. In the above circumstances, and for the reasons as discussed above, this appeal is allowed. Impugned order dated 04.12.2006, and judgment dated 15.12.2006, passed in suit No. 284 of 2005, by Principal Judge, Family Court, Dehradun, is hereby set aside. The trial court is directed to decide the suit on merits.

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