That a wife has an independent right to recover "Stridhan " by filing a civil suit or by invoking any other independent remedy under the common law, can be no ground to oust the special jurisdiction conferred upon the matrimonial Court under Section 27 of the Act. There appears to be explicit legislative intendment behind Section 27 of the Act that all ancillary and allied disputes between a husband and wife should also be resolved along with the main controversy. Only the items with a definite life span like the clothes, shoes or other wearables, can fall within the scope of 'exclusive property' of either the husband or the wife and not the other valuable assets which can be utilized by any one of them. Traditionally, the gold ornaments are considered to be a valuable property and an addition to the joint assets of a family and, thus, can not be excluded from the purview of Section 27 of the Act even if it is a part of "Stridhan". The aforesaid conclusion stands fortified by the views taken by their Lordships of the Apex Court in Balkrishna Ramchandra Kadam's case (supra) where the wife's claim for return of jewelry was not turned down on the ground that it was an " Stridhan " or that a petition under Section 27 of the Act for recovery of those items was not maintainable, as also in Pratibha Rani's case (supra).
{Para 19}
20.A perusal of the list (Ex.PA) reveals that the "ornaments" include items like a 'gold ring' given to the appellant (Sr. No. 18 of the list). Similarly, several other items like the Television, Stablizer, Wall Clock, Alarm, Wrist Watch, Iron Press, Transistor, Table Fan and Suit case etc. are of common and joint use, though most of the jewelry items, (mentioned in the said list Ex.PA) are those which might be exclusively belonging to the respondent. However, all such items having been given by the parents of the respondent at or about the time of marriage, the same can not be segregated to compel the respondent to seek recovery thereof through multifarious legal proceedings.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
F.A.O. No. 159-M of 1995
Decided On: 11.08.2006
Subhash Chander Rohila Vs. Asha
Hon'ble Judges/Coram:
Surya Kant, J.
Citation: MANU/PH/0657/2006.
1. This appeal has been preferred against the order dated 13th August, 1995 passed by the learned Additional District Judge, Rohtak, whereby, upon an application under Section 27 of the Hindu Marriage Act, 1955 (hereinafter referred to as `the Act'), the appellant has been directed to return ornaments and cash, valuing Rs. 80,000/- to the respondent-wife.
2. The brief resume of the facts is that the appellant and respondent got married on 20th November, 1988. However, on account of matrimonial discord, the respondent-wife filed a petition under Section 13 of the Act for dissolution of their marriage. In the said petition, the appellant-husband was proceeded against ex-parte and a decree of divorce dated 14th February, 1992 was granted in favour of the respondent-wife. Vide the same judgment and order, petition under Section 27 of the Act was also decided and the appellant was directed to pay a sum of Rs. 1,35,413.40 to the respondent-wife towards the value of the articles retained by him. The appellant moved an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the afore-stated ex-parte judgment and decree. The learned Additional District Judge, Rohtak, vide his order dated 8th August, 1994 refused to set aside the ex-parte decree of divorce, however, the order passed on the application under Section 27 of the Act, was set aside after holding that the appellant had no knowledge or information of the said application.
3. There is no dispute that the ex-parte decree of divorce between the parties has attained finality as the same was not further assailed by the appellant.
4. The application under Section 27 of the Act has been readjudicated by the learned Additional District Judge, Rohtak and vide the impugned order dated 13th August, 1995, it has been allowed to the extent that the appellant has been directed to pay a lump-sum amount of Rs. 80,000/- towards the value of `ornaments' as also the cash within a period of three months, failing which the respondent has been held entitled to recover the same with interest @12% per annum from the date of judgment.
5. Aggrieved, the appellant-husband has filed this appeal.
6. I have heard learned Counsel for the parties and have perused the impugned order as well as records of the case with their assistance.
7. The appellant's main contention is that no petition in relation to the recovery of "Ornaments" is maintainable under Section 27 of the Act. It is contended that the property, namely, "Ornaments" was not a `joint property' of the husband and wife which is a condition precedent to entertain a petition under Section 27 of the Act. Reliance has been placed on a judgment of the Hon'ble Supreme Court in the case of (i) Pratibha Rani v. Suraj Kumar and Anr. MANU/SC/0090/1985 : 1985CriLJ817 as well as the judgments of this Court in the cases of (i) Vinod Kumar Sethi and Ors. v. State of Punjab and Ors. MANU/PH/0203/1982, (ii) Sumer Chand v. Bimla Rani (1996) PLR 453, (iii) Vijay Kumar Duggal v. Kamlesh Kumari 2005 (2) RCR 271, and (iv) Suresh Kumar v. Smt. Saroj Bala MANU/PH/0175/1988. Similarly, he has also referred to a judgment of the Delhi High Court in the case of Anju Bhargava v. Rajesh Bhargava 1986 (2) HLR 393 as well as of the Madras High Court in the case of V.B. Jaganathan v. A.R. Srividhya 1998 (1) MLJ 428.
8. On the other hand, learned Counsel for the respondent vehemently contends that the appellant has failed to prove that the "ornaments" were gifted for the exclusive use of the respondent or none of them was meant for the appellant. It is argued that the "ornaments" having been gifted at the time of marriage and being an addition to the family's properties, these ornaments were their "joint property". It is also pointed out that in addition to the `Ornaments', several other items are also sought to be recovered, therefore, a common petition for recovery thereof is very much maintainable under Section 27 of the Act.
9. Before adverting to the issue, a brief reference to the pleadings and evidence is necessitated. While the respondent-wife in her application under Section 27 of the Act has asserted that the articles, enlisted in Scheduled "A" thereto, were given by her parents "to the petitioner and the respondent" at the time of marriage "for their common use", the appellant took the plea of total denial and alternatively averred that the articles which were given at the time of marriage by the respondent's parents were returned to her vide list (Ex.R1) and there remains nothing to be returned. The appellant also took the stand that certain articles presented at the time of their marriage were later on returned vide a `settlement deed' which is duly signed by the respondent and her father. Since the respondent-wife denied execution of any such settlement deed (Ex.R1), the appellant produced a Hand-writing Expert (RW3) who upon comparison of the signatures, opined that the document (Ex.R1) bears the signatures of the respondent and her father. Relying upon the statement of Handwriting Expert, learned Additional District Judge has held that after excluding the value of the articles mentioned in Ex.R-1 out of the value of the articles mentioned in Scheduled "A" which was later on exhibited as `P-A', the appellant is liable to pay a sum of Rs. 80,000/- to the respondent towards the value of the unreturned articles.
10. On a perusal of the list (Ex.PA) and the findings returned by the learned trial Court in para No. 11 of the impugned order, it may be seen that out of the sum of Rs. 80,000/-, a substantial part appears to be the value of the `Ornaments' whereas a sum of Rs. 30,000/- is shown to have been given in cash to the appellant. The learned trial Court vide the impugned order has accordingly concluded that since the appellant has failed to plead and prove that the said `ornaments' were returned to the respondent, he is liable to pay the value thereof, apart from returning the cash amount of Rs. 30,000/- taken by him.
11. In order to appreciate the rival contentions, it will be apposite to reproduce Section 27 of the Act which reads as under:-
Section 27-Disposal of property :- In any proceeding under this Act, the Court may make 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 wife.
12. On a plain reading of the provision, it is apparent that the Matrimonial Court is competent to pass an appropriate order with regard to return of the property presented at or about the time of marriage and which may belong jointly to the husband and wife.
13. In Pratibha Rani's case (supra) their Lordships of the Supreme Court held that a wife's absolute ownership in respect of Stridhan does not stand transferred into co-ownership or partnership with her husband or his relations and they are bound to return the same if and when demanded by the married woman. Upholding that the Stridhan property can be recovered under Section 27 of the Act as also under Section 14 of the Hindu Succession Act, the Supreme Court held as follows:
14. Some Courts were of the opinion that in view of Section 27 of the Hindu Marriage Act and Section 14 of the Hindu Succession Act, the concept of Stridhan property of a woman was completely abolished. For instance, the Punjab and Haryana High Court in a case reported in 1977 Chandigarh Law Reporter, 212 held thus:
That under the present law no claim can be made on the basis of Stridhan, as it has now been completely abolished and can not avail against the statute which makes it the joint property of the parties.
15. We are of the opinion that this view of the High Court is not legally sustainable because neither of the two Acts, referred to above, go to the extent of providing that the claim of a woman on the basis of stridhan is completely abolished. All that the two sections, mentioned above, provide is that if the husband refuses to return the stridhan property of his wife, it will be open to the wife to recover the same by a property constituted suit. The sections nowhere provide that the concept of stridhan is abolished or that a remedy under the criminal law for breach of trust is taken away.
14. A Full Bench of this Court in Vinod Kumar Sethi's case (supra) observed that Section 27 of the Act refers to the "property" which may belong `jointly' to both husband and wife and that the Statute expressly recognizes that a property which is exclusively owned by the wife, does not come within the ambit of Section 27 of the Act. However, the said judgment was over-ruled by the Hon'ble Supreme Court in Pratibha Rani's case (supra).
15. A learned Single Judge of this Court in Sumer Chand's case (supra), also took the view that the properties forming part of `Stridhan' can not be ordered to be returned under Section 27 of the Act, if at all they are in the husband's possession. In Vijay Kumar Duggal's case (supra) also, a learned Single Judge of this Court held that no order for return of gold ornaments, wrist watch, clothes and cash can be passed under Section 27 of the Act. A somewhat similar view was taken by another learned Single Judge of this Court in Suresh Kumar's case (supra).
16. The question whether the `ornaments' given to a wife at the time of marriage shall fall within the ambit of Section 27 of the Act or not, in my view, stands completely answered by their Lordships of the Supreme Court in the case of Balkrishna Ramchandra Kadam v. Sangeeta Balkrishna Kadam MANU/SC/0882/1997 : AIR1997SC3562 . In that case, the wife had claimed the return of the jewelry items which were given to her by her father at the time of marriage. In her deposition, she gave details of all those jewelry items. The husband denied that her jewelry was lying with him. The trial Court turned down the wife's claim holding that the Court had no jurisdiction to deal with the 'property rights' of the parties. Learned Single Judge of the High Court also turned down her claim but on the ground that there was no evidence on record to show that the property claimed by the wife was "presented to her at the time of marriage". A Division Bench of the High Court, however, accepted her claim but unfortunately, without determining the question that the jewelry items mentioned by the wife had been actually given to her "at or about the time of marriage".
17. Observing that the Division Bench of the High Court was right in holding that an order under Section 27 of the Act could be made by the trial Court while dealing with the matrimonial proceedings, the Apex Court set aside the Division Bench judgment and remitted the matter to the Family Court with a direction to give opportunity to the parties to adduce evidence to establish that the properties, sought to be recovered by the wife, namely, jewelry, was actually given or not at the time of marriage. Para 14 of the report reads as follows:
The High Court fell in complete error in directing a decree to be drawn up in favour of the respondent-wife in terms of Exhibit "A", treating as if the respondent wife had established through evidence that the jewelry mentioned therein had been given to her at or about the time of her marriage which may jointly belong to the husband and the wife. Whereas, the Division Bench was right in holding that an order under Section 27 of the Act could be made by the trial Court while dealing with matrimonial proceedings to form a part of the decree in the matrimonial proceedings, but no decree with regard to the property could be made unless it was established by evidence that the property was covered by Section 27 of the Hindu Marriage Act. There has been, in our opinion, no proper trial of the issue relating to the grant of relief under Section 27 of the Hindu Marriage Act, as claimed by the respondent-wife.
Except holding that Section 27 of the Act is attracted to the fact situation in the instant case, we express no opinion on the merits of the claim laid by the wife and disputed by the husband. The claim of the respondent shall be decided independently by the Family Court, uninfluenced by any observations made by us herein.
18. The expression "jointly" as contained in Section 27 of the Act, has to be read in conjunction with the expression "belong" and not in the context of "ownership". A property when given as a gift at or about the time of marriage, even if exclusively owned by the wife, may constitute and continue to be 'joint property' of the husband and wife. If the husband refuses to return certain articles to the wife and asserts his own right to retain the same or denies receipt of such articles but is proved otherwise, it would obviously mean that the 'exclusive belonging' of the wife qua such article (s) is being disputed by him. The husband then can not be permitted to approbate and reprobate .
19. That a wife has an independent right to recover "Stridhan " by filing a civil suit or by invoking any other independent remedy under the common law, can be no ground to oust the special jurisdiction conferred upon the matrimonial Court under Section 27 of the Act. There appears to be explicit legislative intendment behind Section 27 of the Act that all ancillary and allied disputes between a husband and wife should also be resolved along with the main controversy. Only the items with a definite life span like the clothes, shoes or other wearables, can fall within the scope of 'exclusive property' of either the husband or the wife and not the other valuable assets which can be utilized by any one of them. Traditionally, the gold ornaments are considered to be a valuable property and an addition to the joint assets of a family and, thus, can not be excluded from the purview of Section 27 of the Act even if it is a part of "Stridhan". The aforesaid conclusion stands fortified by the views taken by their Lordships of the Apex Court in Balkrishna Ramchandra Kadam's case (supra) where the wife's claim for return of jewelry was not turned down on the ground that it was an " Stridhan " or that a petition under Section 27 of the Act for recovery of those items was not maintainable, as also in Pratibha Rani's case (supra).
20. The facts of the present case are totally distinguishable from the facts of the cases dealt with by learned Single Judges of this Court, referred to above. A perusal of the list (Ex.PA) reveals that the "ornaments" include items like a 'gold ring' given to the appellant (Sr. No. 18 of the list). Similarly, several other items like the Television, Stablizer, Wall Clock, Alarm, Wrist Watch, Iron Press, Transistor, Table Fan and Suit case etc. are of common and joint use, though most of the jewelry items, (mentioned in the said list Ex.PA) are those which might be exclusively belonging to the respondent. However, all such items having been given by the parents of the respondent at or about the time of marriage, the same can not be segregated to compel the respondent to seek recovery thereof through multifarious legal proceedings.
21. With all humility at my command, it also appears that the views taken by the learned Single Judges of this Court in the cases of (i) Vinod Kumar Sethi and Ors.; (ii) Sumer Chand; and (iii) Suresh Kumar (supra) are inconsistent with the view taken by the Hon'ble Supreme Court in Balkrishna Ramchandra Kadam's (supra). It also appears that the aforesaid judgment of the Hon'ble Supreme Court was not brought to the notice of the learned Single Judge of this Court in Vijay Kumar Duggal's case (supra).
22. Consequently and for the reasons aforementioned, I do not find any merit in this appeal which is accordingly dismissed.
23. However, in view of the fact that the appeal was preferred on a pure question of law, without questioning the finding of fact returned by the Court below and the appellant has been able to raise a debatable issue, in my view, it will be too iniquitous to direct him to pay interest @12% on his failure to pay a sum of Rs. 80,000/- to the respondent wife within a period of three months. Consequently, I direct that if the appellant returns the amount of Rs. 80,000/- as directed by learned Additional District Judge, Rohtak vide his impugned order, to the respondent within a period of three months from the date of receipt of copy of this order, he shall not be liable to pay any interest, failing which he shall pay interest @ 6% per annum from the date of order of the learned Additional District Judge, i.e., 13th August, 1995, till its realization.
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