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Madhya Pradesh High Court · body

2014 DIGILAW 171 (MP)

Kirti v. Mata Prasad

2014-02-10

G.D.SAXENA, S.K.GANGELE

body2014
JUDGMENT Saxena, J. -- 1. By preferring this appeal under section 96 of Code of Civil Procedure read with section 28 of the Hindu Marriage Act, 1955 the order dated 7th September, 2013 passed in Case No.78/2013 (Matrimonial) by the Fourth Additional District Judge, Bhind has been made pivot by the appellant-applicant, whereby the trial Judge dismissed the application under section 27 of the Hindu Marriage Act, 1955 filed by the appellant-applicant against the respondents-non-applicants, who are father-in-law and mother-in-law of the appellant-applicant, for return of Stridhan (gifts) presented to the appellant by her father at the time of marriage, as not maintainable. 2. In nutshell, the facts of the case necessary for disposal of this appeal are that marriage of appellant-applicant was solemnized on 6th December, 2008 with Jitendra Kumar Gupta son of the respondents-non-applicants. It has been pleaded by the appellant-applicant in the application that at the time of marriage her father gave cash of Rs. Ten lacs and other articlels viz. T.V., A.C., Double Bed, Fridge, Washing Machine and other household utensils as well as gold and silver ornaments as Stridhan to her. The above mentioned Stridhan was handed over by her father to her father-in-law and mother-in-law (respondents herein). It has further been pleaded that before marriage the fact that Jitendra Kumar Gupta has born out of the wedlock of respondent No.1 with her first wife was kept behind the curtains and was not disclosed by respondent No.1 to her father. Before marriage, even it was not brought to the notice of her father that the respondent No.2 is the second wife of respondent No.1. After marriage the respondents used to harass the appellant. The gold and silver ornaments (mentioned at para 5 of the application) which were gifted at the time of marriage by her father and respondent No.1 have also been taken in their possession by the respondents-non-applicants on 24.12.2009 and even after request made by her, they are not intending to return the Stridhan (gifts) presented at the time of marriage. Thus, she filed an application under section 27 of the Hindu Marriage Act, 1955 praying therein for a direction to the respondents-non-applicants for returning the Stridhan (gifts) to her, which was presented to her at the time of marriage. 3. Thus, she filed an application under section 27 of the Hindu Marriage Act, 1955 praying therein for a direction to the respondents-non-applicants for returning the Stridhan (gifts) to her, which was presented to her at the time of marriage. 3. The respondents instead of filing any reply to the aforesaid application filed by the appellant-applicant, chose to file an application praying therein for rejection of the application under section 27 of the Hindu Marriage Act filed by the appellant on the ground of maintainability. It was pleaded by the respondents that order under section 27 of the Hindu Marriage Act is of concomitant nature and that can be passed only during pendency of the main matrimonial suit, however, separate suit/application under the aforesaid section is not maintainable. 4. Reply to the aforesaid application filed by the respondents was filed by the appellant-applicant submitting that when Stridhan is in possession of any member of the family other than husband, an application under section 27 of the Hindu Marriage Act for return of that Stridhan is maintainable. It was prayed that the application filed by the respondents may be rejected. 5. The learned trial Judge after hearing learned counsel for both the parties allowed the application filed by the respondents-non-applicants and dismissed the application under section 27 of the Hindu Marriage Act filed by the appellant-applicant as not maintainable on the ground that neither the suit was filed against the husband nor any relief was sought against the husband and in such situation, no relief against father-in-law and mother-in-law regarding return of Stridhan can be granted in favour of appellant-applicant. 6. The contention of learned counsel for the appellant-applicant is that the order under challenge in the present appeal passed by learned Court below is wrong and against the law. He submitted that while passing the impugned order learned trial Court erred in not considering the maintainability of the application filed by the respondents, as it was not under any provision of law. He submitted that while passing the impugned order learned trial Court erred in not considering the maintainability of the application filed by the respondents, as it was not under any provision of law. He further submitted that aforesaid Stridhan was given to the appellant-applicant at the time of her marriage, which has wrongly been retained in their possession by the respondents and is not being handed over to the appellant-applicant and as per Order VII rule 7 of CPC the Court was having power to grant appropriate relief to the appellant because as per the provisions enshrined under section 27 of the Hindu Marriage Act there is no bar for entertaining an application for return of Stridhan. Learned counsel further submitted that the decision in the case of Manish Nema v. Sandhya Nema [ 2009(II) MPWN 91 =ILR (2009) MP 2057], has wrongly been interpreted by the learned Court below and thus, it erred in rejecting the application under section 27 of the Hindu Marriage Act filed by the appellant-applicant. Learned counsel prayed that by allowing the instant appeal the order under challenge in the appeal may be set aside and the trial Court may be directed to decide the application under section 27 of Hindu Marriage Act on merits. 7. Per contra, learned counsel for respondents opposed the submissions and prayer made by learned counsel for the appellant. Learned counsel submitted that the learned trial Court has rightly rejected the application under section 27 of Hindu Marriage Act as not maintainable because the ingredients of the provision were not followed by the appellant-applicant and, therefore, no interference is called for in the order impugned passed by learned trial Court. The trial Judge did not err in dismissing the application and has rightly held that since no matrimonial proceeding was pending under Hindu Marriage Act, 1955 before the Court and present application was filed by the appellant-applicant against her in-laws, hence, it was not maintainable. 8. Heard the counsel for parties and perused the record of trial Court and law applicable to the present case. 9. 8. Heard the counsel for parties and perused the record of trial Court and law applicable to the present case. 9. The moot question for consideration is “whether the application under section 27 of the Hindu Marriage Act, 1955 filed by appellant-applicant against her father-in-law and mother-in-law, who retained the Stridhan (gifts) presented to her at the time of marriage and refused to return, especially in the circumstances that no proceeding under Hindu Marriage Act was pending against the parties, is maintainable or not”. 10. Before dealing with the aforesaid question, for better understanding it would be condign to quote section 27 of the Hindu Marriage Act, 1955, which reads thus : “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 the wife.” On going through the above-quoted provision, it appears that it applies with respect to any property received at or about the time of marriage, which may belong jointly to both the husband and the wife. 11. In the case of Manish Nema (supra), the Division Bench of this Court observed as follows : “Fair reading of the aforesaid provision reveals that it is applicable in respect of the property received at or about time to marriage, which may belong jointly to both husband and wife. It empowers the Court while deciding the matrimonial dispute to also pass decree in respect of property which may jointly belong to both husband and wife. It provides the civil remedy to an aggrieved wife or husband as case may be.” Further, while considering the judgment in Nirmala Gupta v. Ravendra Kaur [ 1996 JLJ 462 = AIR 1966 MP 227 ], the Division Bench observed that “the Act is a special enactment governing the matrimonial proceedings between the parties”. The Division Bench further took into consideration section 4(1) of the Code of Civil Procedure and observed as under : “From this provisions, it is clear that the procedure prescribed by the special law will not be limited by the Code of Civil Procedure. The Division Bench further took into consideration section 4(1) of the Code of Civil Procedure and observed as under : “From this provisions, it is clear that the procedure prescribed by the special law will not be limited by the Code of Civil Procedure. However, the Act itself adopts the CPC so far as it is applicable in the matrimonial proceedings under the Act and, therefore, all the provisions of the CPC will be applicable to the matrimonial proceedings under the Act. Section 151 read with Order VII, rule 7 of the Code of Civil Procedure will also be made applicable because there is no provision under the Act which bars the application of these provisions of the CPC. Order VII, rule 7 of the Code permits the Court to grant such relief not prayed for as would be just under the circumstances of the case.” 12. In the case of Balkrishna Ramchandra Kadam v. Sangeeta Balkrishna Kadam [1998(I) MPWN 71= (1997)7 SCC 500 ], the Hon’ble apex Court while considering section 27 of the Hindu Marriage Act has observed as follows : “8. On a plain reading of the section, it becomes obvious that the matrimonial Court trying any proceedings under the Hindu Marriage Act, 1955, has the jurisdiction to make such provision 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 the wife. This section provides an alternate remedy to the wife so that she can recover the property which is covered by the section, by including it in the decree in the matrimonial proceedings, without having to take recourse to the filing ofr a separate civil suit and avoid further litigation. In the instant case, we find that the wife had laid claim to certain items of jewellery and in her deposition, she had mentioned the items of jewellery which she had received “at or about the time of her marriage” and, in particular, had mentioned the items of jewellery which were given to her by her father at the time of the marriage.” Having observed so in para 8 of the judgment, the Hon’ble apex Court held as under : “12. .... .... 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. 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, unifluenced by any observations made by us herein.” 13. 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, unifluenced by any observations made by us herein.” 13. On due consideration of the provisions mentioned above as well as the case laws referred herein-above, it becomes crystal clear that an application under section 27 of the Hindu Marriage Act, 1955 for disposal of property presented at or about the time of marriage, which may belong jointly to both the husband and wife, may be decided only in matrimonial proceedings between the parties to the marriage pending before the matrimonial Courts at the time of passing of the decree and further, the order in this regard shall be made part of the decree. It further becomes clear like a noon day that no separate proceeding under section 27 of the Hindu Marriage Act is maintainable since it is of concomitant nature. Here, it is pertinent to mention that admittedly a civil suit has been instituted by the husband of the appellant-applicant against the respondents for restraining them from selling out the property situated at Gwalior. 14. In the result, in view of the above observations, this appeal fails and thus, dismissed. We embrace the order rejecting the application, under section 27 of the Hindu Marriage Act, of the appellant on the ground of maintainability passed by the trial Court and accordingly, it is affirmed. However, liberty is reserved to the parties to apply for an order for disposal of aforesaid property (Stridhan) presented at or about the time of marriage in matrimonial proceedings or to take the recourse of civil remedy.