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1998 DIGILAW 93 (MP)

KARAN v. MAMATABAI

1998-02-03

S.B.SAKRIKAR

body1998
S. B. SAKARIKAR, J. ( 1 ) -NON-APPLICANT/appellant has directed this appeal against the judgment and decree dated 4. 11. 1996 passed by 9th Addl. District Judge, Indore, in Hindu marriage Petition No. 11/92, thereby passed a decree of dissolution of marriage on the application of the respondent and also passed decree for payment of maintenance to the respondent (wife) @ 200/- per month under section 25 of the Hindu Marriage Act, 1955 (in short 'the Act ). Learned Judge also ordered for the return of the articles presented at the time of the marriage or the price of the articles amounting to Rs. 35,000/- to the respondent-applicant under Section 27 of the Hindu marriage Act. ( 2 ) BRIEFLY stated the facts of the case are that the appellant and the respondent are the followers of the Hindu religion and they were married under the customs prevailing in their casts. After the marriage due to the cruel behaviour of the appellant respondent (wife) has filed petition under Section 13 of the Hindu marriage Act, for passing a decree for divorce against the appellant. In the same petition, she also prayed for award of maintenance @ 800/- per month under Section 25 of the Act and also prayed for return of the articles presented at the time of the marriage of the parties and retained by the appellant under Section 27 of the Act. The list of such articles. was filed as annexure-A alongwith the petition. ( 3 ) THE aforesaid application, filed by the respondent was resisted by the appellant. But, in the written statement he consented for the decree of divorce, if considered proper. ( 4 ) ON the basis of the pleadings of the parties, the learned trial court framed issues and on the basis of the evidence available on the record, allowed the petition filed on behalf of the respondent and passed decree in her favour as indicated above. Partly aggrieved by the impugned judgment and the decree the appellant has filed this appeal under Section 28 of the Act. ( 5 ) 1 have heard Mr. S. A. Mev, learned counsel for the appellant and Mr. B. N. Tiwari, learned counsel for the respondent. Partly aggrieved by the impugned judgment and the decree the appellant has filed this appeal under Section 28 of the Act. ( 5 ) 1 have heard Mr. S. A. Mev, learned counsel for the appellant and Mr. B. N. Tiwari, learned counsel for the respondent. ( 6 ) DURING the course of the arguments, it is submitted on behalf of the appellant that in this appeal he challenged the decree only with regard to return of the articles or the price of the articles to the extent of Rs. 35,000/- presented at the time of the marriage under Section 27 of the Act. In this respect the learned counsel contended that from the evidence of the respondent, it is not proved that the articles as mentioned in Annexure-A marked Ex. P1 were presented at the time of the marriage of the parties. He also contended that no evidence is led on behalf of the appellant with regard to the valuation of the articles alleged to have been presented at the time of the marriage. The decree passed by the court in this respect is contrary to the evidence available on record and deserves to be demolished. ( 7 ) AS against this, learned counsel for the respondent supported the judgment and the decree passed by the trial court with respect to return of the articles or the price of the articles to the respondent under the provisions of Section 27 of the Act. ( 8 ) I have considered the rival submissions of the learned counsel for the parties and perused the record and also the impugned judgment. ( 9 ) ON perusal of the written statement filed on behalf of the appellant, it is found that in reply to para No. 2 of the written statement, the non-applicant has admitted that certain articles enumerated in Ex. P. 1 were presented at the time of the marriage of the parties. The other articles mentioned in the list were denied. The respondent in support of her case has examined herself, her father Mr. Sohanlal (P. W. 2) as witnesses. Applicant mamata in para No. 6 of her statement stated that at the time of the marriage, her father presented one Black and White TV, one Table fan, certain brass articles and glasses, one cot, matresses and bed-sheets, etc. and Rs. 25,000/- cash. She only stated that Ex. Sohanlal (P. W. 2) as witnesses. Applicant mamata in para No. 6 of her statement stated that at the time of the marriage, her father presented one Black and White TV, one Table fan, certain brass articles and glasses, one cot, matresses and bed-sheets, etc. and Rs. 25,000/- cash. She only stated that Ex. P. 1 is the list of the articles presented by her father at the time of the marriage. In her statement, she did not say anything about the price of the articles mentioned in the list Ex. P. 1. Respondent witnesses sohanlal (P. W. 2) (father of the respondent) in para No. 1 of his statement, only stated that he presented certain articles to Mamata at the time of the marriage as per the list Ex. P. 1. He also stated that he did not remember the details of the articles presented to her daughter at the time of the marriage. No bills or vouchers are produced on behalf of the respondent to ascertain the price of the articles mentioned in list (Ex. P. 1 ). In view of the evidence available on the record, the trial court has committed an error in decreeing the claim of the respondent-applicant for return of the articles as per list (Ex. P. 1) or the price thereof to the extent of Rs. 35,000/- to the respondent (applicant) under Section 27 of the act. ( 10 ) ON perusal of Section 27 of the Act, it is found that the said section provides for sharing of only that property which the spouses received individually or collectively as presents at or about the time of the marriage and which had come to be, as a way of life in their joint use in their day to day living and thus belonging for the purpose. If matrimony is disrupted, such jointly belonging article would required the attention of the court to be apportioned between the spouses as a measure of remedial relief. ( 11 ) IN view of the aforesaid position of the law, the admission of the appellant in written statement and the evidence available on the record, I am of the opinion that the respondent (wife)was only entitled to the articles mentioned at SI. Nos. 2, 5, 6, 7, 19 and 21 in the list (Ex. P. 1 ). The cost of the aforesaid articles mentioned in list (Ex. Nos. 2, 5, 6, 7, 19 and 21 in the list (Ex. P. 1 ). The cost of the aforesaid articles mentioned in list (Ex. P. 1) cannot be said to be exhorbitant or unreaspnable. As such, if the appellant fails to return the aforesaid articles to the respondent, then the respondent shall be entitled for the cost of the aforesaid articles, amounting to Rs. 4,400/-only. ( 12 ) CONSEQUENTLY, this appeal is partly allowed and the decree passed under Section 27 of the Act for the return of the articles or the price of the articles is modified only to the extent of the articles indicated above or the price of the articles amounting to Rs. 4,440/-only. The rest of the decree of the trial court requires no interference and is accordingly affirmed. The parties are left to bear their own costs of this appeal. Counsel fee, Rs. 500/- is allowed to either party, if certified. Decree be drawn up accordingly. Appeal partly allowed. .