Whether the family court can pass second decree for disposal of matrimonial property after passing decree for divorce?

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 proceeding to from a part of the decree in the matrimonial proceedings, but no decree with regard 10 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. We are, therefore, constrained to set aside the judgment of all the courts below relating to the relief claimed by the respondent-wife under Section 27 of the Hindu Marriage Act only and remit the matter to the Family Court to decide that issue in accordance with law. The parties be granted opportunity to adduce evidence, necessary to establish their respective cases before the Family court. The Family Court shall thereupon, draw up a decree, accordingly. We are conscious that the decree of divorce has already been passed and any decree now to be made in respect of the property under Section 27 of the Hindu Marriage Act would be a separate decree, but, in the facts and circumstances of the case, when such a decree is made, it shall be treated to be a part of the decree of divorce already granted by the Family Court which has become final. 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 the observations made by us herein.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 126 of 1993

Decided On: 04.09.1997

Balkrishna Ramchandra Kadam Vs. Sangeeta Balkrishna Kadam

Hon'ble Judges/Coram:

Dr. A.S. Anand and K. Venkataswami, JJ.

Citation: MANU/SC/0882/1997,AIR1997SC3562,(1997)7SCC500.

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Whether independent application U/S 27 of Hindu marriage Act is maintainable?

 From the perusal of the provision of Section 27, it is clear that the application under Section 27 is not maintainable independently. As per Section 27 in any pending 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. The impugned order passed by Family Court appears to be justified, as under Section 27 of the Act no such independent application is maintainable. Thus, we do not find any illegality in the order passed by the Family Court. However, the appellant is free to avail the remedy available to her under the law.

IN THE HIGH COURT OF MADHYA PRADESH

Decided On: 20.09.2007

 Lalita Devi  Vs.  Laxminarayan

Hon'ble Judges/Coram:

A.K. Gohil and Sheela Khanna, JJ.

Citation: I (2008) DMC 351 (MP),MANU/MP/0571/2007

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Supreme Court: Family Court has jurisdiction to adjudicate upon any question relating to the properties of divorced parties

The fact of the matter, as noticed hereinbefore, clearly shows that the dispute between the parties to the marriage arose out of the properties claimed by one spouse against the other. The respondent herein made a categorical statement to the effect that the properties were purchased out the amount paid in cash or by way of ornaments and the source of consideration for purchasing the properties described in Schedules 'A' and 'B' of the suit having been borne out of the same, the appellant herein was merely a trustee in relation thereto and could not have claimed any independent interest thereupon. It is also apparent that whereas the agreement marked as Exhibit A1 was executed on 17.09.1994, the appellant pronounced Talaq on 01.11.1995. The wordings 'disputes relating to marriage and family affairs and for matters connected therewith' in the view of this Court must be given a board construction. The Statement of Object and Reasons, as referred to hereinbefore, would clearly go to show that the jurisdiction of the Family Court extends, inter alia, in relation to properties of spouses or of either of them which would clearly mean that the properties claimed by the parties thereto as a spouse of other, irrespective of the claim whether property is claimed during the subsistence of a marriage or otherwise.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3322 of 2003

Decided On: 10.04.2003

 K.A. Abdul Jaleel  Vs.  T.A. Shahida

Hon'ble Judges/Coram:

V.N. Khare, C.J., S.B. Sinha and A.R. Lakshmanan, JJ.

Citation : MANU/SC/0301/2003

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Supreme Court: The family Court should not give final relief at interim stage

 By the impugned order, the court has directed the Court Receiver to take possession of the flat from the appellant and induct respondent-wife in the flat during the pendency of the appeal.

{Para 3}

4. In the appeal filed, the appellant has called in question the correctness or otherwise of the findings and the conclusion reached by the Family Court in Petition No. A-1072/2000 dated 6.2.2007, wherein the Family Court has reached the conclusion that both the husband and wife are joint owners of flat bearing No. 303, Rajesh Nagar Co-operative Housing Society Ltd., Borivali (West), Mumbai.

Even before giving a verdict on the findings and the conclusions reached by the Family Court, by way of interim relief, the court has granted the main relief itself. This, in our opinion is unsustainable. It is settled legal position, that by way of interim relief, final relief should not be granted till the matter is decided one way or the other.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1788 of 2009 

Decided On: 23.03.2009

 Mehul Mahendra Thakkar  Vs. Meena Mehul Thakkar

Hon'ble Judges/Coram:

Tarun Chatterjee and H.L. Dattu, JJ.

Citation: 2009 (14) SCC 48: MANU/SC/0425/2009

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Whether Civil Court can grant Maintenance, Mehr & a Share in Matrimonial property to Muslim Woman?

It is also not a case where the Civil Court cannot and does
not have the jurisdiction to grant these reliefs of maintenance and
share in the matrimonial property. Under the provisions of the
Protection of Women from Domestic Violence Act, 2005, Section 26
confers concurrent jurisdiction on all the three forums, including the
Family Court, the Court of Judicial Magistrate First Class and also the
Civil Court, as regards the relief like the maintenance. So far as the

relief in respect of the matrimonial property or the property standing
in the joint name of both the spouses which is a fact in this case also,
the Civil Court is having the jurisdiction to entertain such suit. As a
matter of fact, according to learned counsel for the Appellant also,
Section 22 of 'The Specific Relief Act, 1963', clearly provides for
partition of such jointly owned property and under the provisions of
'The Specific Relief Act, 1963', it is the Civil Court, which is having the
jurisdiction to grant such decree. Therefore, it is not a case, where the
Civil Court was not having the jurisdiction to grant the reliefs which
the Respondent had claimed in the suit. Hence, it also cannot be said
that the trial Court has exceeded its jurisdiction.
31] As regards the reliance placed by learned counsel for the
Appellant on the judgment of the Hon'ble Supreme Court in the case of
Chandrika Singh (supra), there the issue framed was relating to the
tenancy, for which a separate competent authority is established and
the Civil Court's jurisdiction to decide such issue is excluded.
Therefore, it was held that such issue was required to be referred to
the tenancy authorities. Here, in the case, the jurisdiction of the Civil
Court is not excluded in any way to decide both these issues relating to
maintenance of the children and the right and share of the
Respondent in the jointly owned flat. The Civil Court was having very

much jurisdiction and therefore, there is no question of the trial Court
exceeding its jurisdiction or acting beyond its jurisdiction or
exercising the jurisdiction, which was not vested in it. Hence, on this
score also, the contention raised by learned counsel for the Appellant
cannot be accepted.
32] Third and the most important factor which is required to
be considered is that the law always expect that all the disputes
between the parties should be decided in one forum and in one
proceeding, so as to avoid the multiplicity of proceedings and the
waste of time, energy and money of the parties in prosecuting the
remedies in different forums. The right of maintenance and right in
the matrimonial property are the consequences of the marriage or its
dissolution. Those reliefs are incidental to the main relief of
'dissolution of marriage' and therefore, these reliefs are very much
integral part of decree of 'dissolution of marriage'. Hence, they are
required to be considered in the same proceeding, even if at times
such reliefs are not asked for also. It is well recognized that the award
of maintenance is the fall out of the decree of 'dissolution of marriage',
hence even if at times, the Respondent has not asked for the
maintenance, she is awarded that maintenance for herself and her
children while passing the decree for 'dissolution of marriage'. It may

be stated that, even when the decree is of 'Restitution of Conjugal
Rights' under Section 9 of 'The Hindu Marriage Act, 1955' there is
provision for award of maintenance under Order 21, Rule 33 of the
Code of Civil Procedure, till the decree is complied with. The point to
be stressed is that the relief of maintenance whether to the wife or the
children is incidental to the relief of 'dissolution of marriage'. Merely
because 'The Dissolution of Muslim Marriages Act, 1939', does not
mention that the Court is also having the jurisdiction or power to
grant such relief, it cannot be said that the Court is not having
jurisdiction to grant it, if it is incidental, claimed and the Court finds it
necessary to grant the same. Moreover, the right of maintenance
given to wife and the minor children under the provisions of the
Muslim Women (Protection of Rights on Divorce) Act, 1986, is in
addition to the right, which the minor children are having under
Muslim Law to get maintenance from the father. The law expects that
the parties should not be driven to approach the different forums but
in one forum itself they should be granted whatever reliefs to which
they are entitled.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL (ST.) NO. 11650 OF 2017
WITH
CIVIL APPLICATION NO. 1570 OF 2017
IN
SECOND APPEAL (ST.) NO. 11650 OF 2017

Adnan Chara Vs Farhat Adnan


CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.

PRONOUNCED ON : 2nd AUGUST, 2018.
Citation:AIR 2018 Bom 282

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Supreme Court: Family court has jurisdiction to decide any dispute between husband and wife relating to property given before or after their marriage

In our opinion, the courts have not gone into the question in its correct perspective. The trial court proceeded to negative the claim of the respondent-wife by holding that the court had no jurisdiction to deal with the property rights of the parties and gave no opportunity to the parties to lead evidence in support of their respective claims. The finding of the trial court clearly overlooked the provisions of Sections 27 of the Hindu Marriage Act which unmistakably vests the jurisdiction in the court to pass an order, at the time of passing a decree in a matrimonial cause. In respect of the property presented, at or about the time of marriage, which may belong jointly to the husband and the wife. The learned single Judge also fell in complete error while concurring with the view of the trial court to say that there was no evidence on the record to show that the property claimed by the wife was presented to her at the time of her marriage. The learned single judge failed to take notice of the deposition of the respondent in that behalf. Moreover, the property which is given to the wife at the time of marriage only. It includes the property given to the parties before of after given to the parties before or after marriage also. So long as it is relatable to the marriage. the expression "at or about the time of marriage" has to be properly construed to includes such property which is given at the time of marriage as also the property given before or after marriage to the parties to become their "their property". Implying thereby that the property can be tracked to have connection with the marriage. All such property is covered by section 27 of the Act.

Supreme Court of India

Balkrishna Ramchandra Kadam vs Sangeeta Balkrishna Kadam on 4 September, 1997

Bench: A.S. Anand, K. Venkataswami

  Citation:1997(3) MHLJ(SC)597

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