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Himachal Pradesh High Court · body

1996 DIGILAW 86 (HP)

Nirdosh Chandhary v. Mani Ram

1996-05-23

A.K.GOEL, KAMLESH SHARMA

body1996
JUDGMENT Arun Kumar Goel, J.—This is an appeal against the order dated 28-6-1994 passed by District Judge, Kangra at Dharamshala in H. M. P. No. 102/N/III-1993 filed by the present appellant whereby an application under section 27 of the Hindu Marriage Act, 1955, has been rejected. 2. Brief facts of the case are that parties were married but because their marriage did not make a good start, therefore, a petition for dissolution of marriage by a decree of divorce under section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘Act’) was filed before the Distt. Judge, Kangra at Dharamshala by the present appellant. Dissolution was sought on the plea of demand of dowry by the respondent as well as her having illicit relations with one Suraj thereby causing mental cruelty to her. An application under section 27 was also filed in such proceedings for return of articles mentioned in the list attached with the application. This application was contested and resisted by the respondent-husband From the case file of the present case it appears that except Ext. P-l the list, there was nothing on record of the file to show as to how and to whom these articles belonged. At this stage it may be appropriate to refer to the provisions of section 27 of the Hindu Marriage Act, 1955 which are extracted hereinafter: "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 wife." A bare reading of this provision shows that in any proceedings under this Act the court may make such provision in the decree as it may deem 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. 3. A perusal of the aforesaid provision also shows that the provision for any property presented at or about the time of marriage can be made in the proceedings under the Act and in the decree itself as the court deems just and further in order to invoke this provision the property may belong to both i. e. husband and wife jointly and not to an individual 4. Further, section 27 indicates that the application thereunder cannot be filed independently but in proceedings under the Hindu Marriage Act and in that case too no independent order can be passed and or needs to be passed, However, in case the Court deems it just and proper, subject to fulfilment of the other condition, it may pass the orders for disposal of the property In this context it may be appropriate to mention that the orders which are appealable under section 28 of the Act have been specified therein. For ready reference section 28 of the Act is also extracted herein below : "28. Appeals from decrees and orders : (1) All decrees made by the Court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction. (2) Orders made by the Court in any proceeding under this Act, under section 25 or section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction. (3) There shall be no appeal under this section on the subject of costs only. (4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order.” 5. Reading of section 27 of the Act shows that the court can make provision for disposal of the property but in a proceeding under Hindu Marriage Act and in the decree itself and not independently. This appears to be rightly so because matrimonial courts do not have authority to deal with the property matters and those are to be adjudicated upon by the appropriate courts in accordance with law through proper legal proceedings. However, legislature has conferred power upon the courts to deal with the property belonging to the parties i, e, husband and wife jointly given at or about the time of marriage. In this view of the matter the present appeal is not competent. 6. However, legislature has conferred power upon the courts to deal with the property belonging to the parties i, e, husband and wife jointly given at or about the time of marriage. In this view of the matter the present appeal is not competent. 6. Regarding maintainability of the appeal, it may be appropriate to refer to the provisions of Section 28 of the Hindu Marriage Act as it stood before coming into force of Marriages Laws (Amendment) Act, 1976 : "28. Enforcement of, and appeal from9 decrees and orders: All decrees and orders made by Court in any proceeding under this Act shall be enforced in like manner as the decrees and order of the Court made in the exercise of the original Civil jurisdiction are enforced, and may be appealed from under any law for the time being in force : Provided that there shall be no appeal on the subject of costs only.” Under this provision all decrees and orders made by court in any proceedings under the Hindu Marriages Act, were appealable whereas after the enforcement of Marriage Laws (Amendment) Act, 1976, section 28 has been substituted which has been reproduced herein this judgment, and according to this provision, all decrees are appealable and the orders under sections 25 and 26 are also appealable provided those are not interim orders Thus it will be seen that the orders like those passed under section 27 are also excluded from being appealed against. Matter relating to interpretation of section 28 of the Hindu Marriage Act, 1956 as amended by the Marriage Laws (Amendment) Act, 1976 came up for discussion before the Division Bench of this Court in case Narain Singh v. Smt Rukmani, 1978 SLC 17, wherein it was held that an order under section 24 providing maintenance pendente lite is not appealable after the enforcement of the Marriage Laws (Amendment) Act, 1976 although this was not the provision before its substitution and it was appealable under section 28 as it stood prior to 1976, We see no reason to take different view in the present case. Similar view i s taken in another judgment of this Court reported in case Gurbaksh Singh v Smt Taran Jit, 1977 ILR Him Series 285. Similar view i s taken in another judgment of this Court reported in case Gurbaksh Singh v Smt Taran Jit, 1977 ILR Him Series 285. In no case an order under section 27 of the Act ibid can be said to be a decree even upon the amendment of section 28 of the Hindu Marriage Act, 1956. So on all these counts the appeal is not competent. 7. Trial Court while dealing with the matter had disallowed the application on the plea that in the application the appellant has clearly stated that jewellery and other articles of dowry which were presented to her by her parents and other relations and which are described in the list annexed with the said application form Stridhan of the applicant and such articles are in the custody of the respondent-husband In this application itself a prayer has been made that in the event of decree being passed, the applicant is entitled for the same and she has prayed for making an order for disposal of the listed property etc. forming Stridhan of the applicant in the event of acceptance of the petition for dissolution of the marriage that was filed by the appellant. Trial Court was further of the view that since the appellant is claiming the property detailed in Ex. P-l to be exclusively belonging to her, the application under section 27 was not maintainable and was dismissed accordingly. 8. We have heard teamed Counsel for the patties and we ate of the view that the present appeal must also fail on two grounds : firstly that the application under section 27 of the Act filed by the appellant shows that she claims the property and for making provision of which she had prayed to be exclusively belonging to her ; and secondly because the appeal is not maintainable as the application under section 27 of the Act appears to have been made as part and parcel of the other proceedings wherein such an application can be decided and while passing decree in such proceedings a provision can be made by the court subject to fulfilment of other conditions of this section and which may appear just and proper to the Court. In taking this view that the application in respect of exclusive property is not maintainable by the appellant, we are supported by the cases reported in the judgments : 9. In taking this view that the application in respect of exclusive property is not maintainable by the appellant, we are supported by the cases reported in the judgments : 9. Vinod Kumar Sethi and others v State of Punjab and another, AIR 1982 P & H 372 ; Suryakant Ratilal Oza v. Jashumati, 1981 HLR 473 and Yudhister Raj v. Sarla Kumari, Iv81 HLR 37. 10. Similarly where the property was presented at or about the time of marriage but belongs to one of the parties only as claimed by the appellant in her application under section 27 of the Act before the trial Court, such a matter would not fall within the purview of section 27 of the Act as has been held in A. K. Kad v. U. R Kad, (1985) I CCC 113 (Delhi) am} Dharamvir v. Bimlesh, (1985) 1 CCC 118 (Delhi) It may further be appropriate to mention here that section 27 of the Act also does not imply that all property i e, presented at or about the time of marriage will necessary belong to the parties although in the present case the case of the appellant is that the articles mentioned in Ext. P-l constitute her Stridhan. It may be appropriate to mention here that in the event of application under section 27 of the Act being dismissed as in the present case, the appellant is not left remediless for return of the Stridhan by establishing her claim before an appropriate forum in accordance with law nor can it be said to mean that her right to claim back the property if it exclusively belongs to her is sealed The only consequence of rejection of the application under section 27 of the Act is that she is not in a position to get the desired relief in the present proceedings At the same time, the concept of Stridhan and right to possess the same by the appellant is also not extinguished, therefore, on this ground also the appellant is free to establish her claim to the property referred to in Ext. P-l if she can otherwise do so in accordance with ordinary law of the land. 11. P-l if she can otherwise do so in accordance with ordinary law of the land. 11. For the aforesaid reasons the application under section 27 of the Hindu Marriage Act, 1955, filed by the appellant before the trial Court was not maintainable for the reasons set out hereinabove as well as the present appeal is also not maintainable under section 28 of the Hindu Marriage Act, 1955, consequently it must fail on both the counts. 12. As a result of the aforesaid discussion the appeal is dismissed on both the counts detailed hereinabove. No costs. Appeal dismissed.