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2006 DIGILAW 3286 (PNJ)

Subhash Chander Rohila v. Asha

2006-08-11

SURYA KANT

body2006
Judgment , J. 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 Sec.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 Sec.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 Sec.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 Sec.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 Sec.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. 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 appellants main contention is that no petition in relation to the recovery of "ornaments" is maintainable under Sec.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 Sec.27 of the Act. Reliance has been placed on a judgment of the Honble Supreme Court in the case of (i) Pratibha Rani V/s. Suraj Kumar and Anr. as well as the judgments of this Court in the cases of (i) Vinod Kumar Sethi and Ors. V/s. State of Punjab and Ors. (ii) Sumer Chand V/s. Bimla Rani (1996-1) PLR, 453, (iii) Vijay Kumar Duggal V/s. Kamlesh Kumari 2005 (2) RCR (Civil), 271, and (iv) Suresh Kumar V/s. Smt. Saroj Bala Similarly, he has also referred to a judgment of the Delhi High Court in the case of Anju Bhargava V/s. Rajesh Bhargava 1986 (2) HLR, 393 as well as of the Madras High Court in the case of V. B. Jaganathan V/s. 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 familys 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 Sec.27 of the Act. 9. Before adverting to the issue, a brief reference to the pleadings and evidence is necessitated. 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 Sec.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 Sec.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 respondents 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 lateron 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. 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 Sec.27 of the Act which reads as under:- Sec.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 Ranis case (supra) their Lordships of the Supreme Court held that a wifes 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 Sec.27 of the Act as also under Sec.14 of the Hindu Succession Act, the Supreme Court held as follows: 14. Some Courts were of the opinion that in view of Sec.27 of the Hindu Marriage Act and Sec.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. 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 Sethis case (supra) observed that Sec.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 Sec.27 of the Act. However, the said judgment was over-ruled by the Honble Supreme Court in Pratibha Ranis case (supra ).15. A learned Single Judge of this Court in Sumer Chands case (supra), also took the view that the properties forming part of `stridhan can not be ordered to be returned under Sec.27 of the Act, if at all they are in the husbands possession. In Vijay Kumar Duggals 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 Sec.27 of the Act. A somewhat similar view was taken by another learned Single Judge of this Court in Suresh Kumars case (supra ). 16. The question whether the `ornaments given to a wife at the time of marriage shall fall within the ambit of Sec.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/s. Sangeeta Balkrishna Kadam 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. 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 wifes 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 Sec.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 Sec.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 Sec.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 Sec.27 of the Hindu Marriage Act, as claimed by the respondent-wife. There has been, in our opinion, no proper trial of the issue relating to the grant of relief under Sec.27 of the Hindu Marriage Act, as claimed by the respondent-wife. XX XX XX xx XX XX XX except holding that Sec.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 Sec.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 repprobate. 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 Sec.27 of the Act. There appears to be explicit legislative intentment behind Sec.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 Sec.27 of the Act even if it is a part of "stridhan". 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 Sec.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 Kadams case (supra) where the wifes claim for return of jewelry was not turned down on the ground that it was an " Stridhan " or that a petition under Sec.27 of the Act for recovery of those items was not maintainable, as also in Pratibha Ranis 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 Honble Supreme Court in Balkrishna Ramchandra Kadams (supra ). It also appears that the aforesaid judgment of the Honble Supreme Court was not brought to the notice of the learned Single Judge of this Court in Vijay Kumar Duggals case (supra ). 22. Consequently and for the reasons aforementioned, I do not find any merit in this appeal which is accordingly dismissed. 23. It also appears that the aforesaid judgment of the Honble Supreme Court was not brought to the notice of the learned Single Judge of this Court in Vijay Kumar Duggals 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 inequitous 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.