Chattisgarh High Court
Toran Sahu vs Smt. Sunita Sahu on 8 November, 2021
-1-
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
FA (MAT) No. 99 of 2020
Toran Sahu S/o Shri Shankarlal Sahu Aged About 25 Years R/o
Changorabhatha, Shri Ram Nagar, Near Gitti Khadan, Raipur, Tahsil and
District Raipur Chhattisgarh.
---- Appellant(s)
Versus
Smt. Sunita Sahu D/o Chaturbhuj Sahu Aged About 22 Years R/o
Changorabhatha, Raipur, District Raipur Chhattisgarh. Current Address
Village Bhendra, Tahsil Kurud, District Dhamtari Chhattisgarh.
---Respondent(s)
For Appellant : Shri Malay Jain and Shri Palash
Agrawal, Advocats.
For Respondent : Shri Shatruhan Lal Sahu, Advocate.
Hon'ble Shri Justice P. Sam Koshy
Hon'ble Smt. Justice Rajani Dubey, JJ.
Judgment on Board
Per, P. Sam Koshy, Judge
08.11.2021
1. The present appeal under Section 19(1) of the Family Courts Act, 1984 (in
short, The Act, 1984) has been filed assailing the judgment and decree of
the Family Court, Dhamtari in Civil MJC Case No.106-A/2019, decided on
19.12.2019. Vide the impugned judgment, the court below has allowed the
application under Section 27 of the Hindu Marriage Act, 1955 (in short, the
Act, 1955) and ordered for handing over the Streedhan along with the
goods and an amount of Rs.20,400/- in favour of the respondent-applicant.
2. At the outset, the counsel for the appellant submits that the judgment and
decree is bad in law to the extent that the proceedings under Section 27 of
the Act, 1955 itself was not maintainable for the simple reason that there
was no matrimonial proceeding between the parties instituted or pending at
the time when the application under Section 27 was filed. Nor was there
any matrimonial proceedings earlier filed and already stood decided
between the parties. That, under the circumstances an independent
application under Section 27 of the Act, 1955 was not maintainable.
3. Learned counsel appearing for the respondent on the other hand opposing
the appeal submits that under Section 19 of the Act, 1984, the present
appeal itself is not maintainable for the reason that the plain reading of the
impugned judgment would show that the judgment of the court below has
been on the consent of the two parties. That, when the judgment has been
passed on consent between the parties, under Sub-section (2) of Section
19 of the Act, 1984, challenge to such an order of the Family Court when
made with consent, is not maintainable.
4. As regards the factual aspect is concerned, the counsel appearing for the
respondent have accepted the fact that either in the past or when the
application under Section 27 of the Act, 1955 was filed there has been no
matrimonial proceeding instituted, decided or pending between the parties.
The application under Section 27 was independently filed by the
respondent-applicant before the Family Court at Dhamtari and this stood
entertained, registered and decided. The other admitted factual position as
is reflected from the proceedings is that the appellant herein had not
submitted his written statement before the court below though he was
served upon the notice on an earlier occasion and had also appeared
before the court. The appellant had also been proceeded exparte by the
court below from the stage of filing of written statement. The only basis
upon which the court below has proceeded and passed the impugned
judgment is the alleged statement given by the appellant before the court
below where he has appeared initially on an earlier date of hearing i.e. on
27.09.2019.
5. The question to be considered now is whether the said statement or the
observations made by the appellant before the court on 27.09.2019 can be
construed as a consent for the disposal of the application under Section 27
of the Act, 1955.
6. It would be relevant at this juncture to take note of the contents of the
impugned judgment in paragraph 2 which reads as under:
**2- izdj.k esa fufoZokfnr gS fd vkosfndk dk fookg vukosnd ds
lkFk fgUnw jhfr&fjokt vuqlkj laiUUk gqvk Fkk rFkk vukosnd
izdj.k esas mifLFkr gksdj dkmWlfayax dk;Zokgh i'pkr
[email protected] ds Lrj ij fnukad 06-12-2019 dks
U;k;ky; easa vuqifLFkr jgk] ftlls mlds fo:) ,di{kh;
dk;Zokgh dh xbZ gSA**
7. In just opposite the contents stated in the preceding paragraph, it would be
relevant also to take note of the findings recorded by the court below in
paragraph 11, which again is being quoted hereinunder :
**11- orZeku ekeys esa Hkh mHk;i{kksa dk fookg lkekftd
jhfr&fjokt vuqlkj ekrk firk ds }kjk r; fd;s x;s fookg ds
ek/;e ls gqvk gS ,slh fLFkfr esa bl rF; ls badkj ugh fd;k tk
ldrk gS fd vkosfndk dks mlds fookg ds volj ij mlds
ifjtuksa }kjk migkj Lo:i mijksDr lkexzh o uxn jkf'k iznku
dh x;h Fkh rFkk vukosnd us Hkh Hkys gh tokcnkok izLrqr dj
bl rF; dks Lohdkj uk fd;k gks rks Hkh vukosnd U;k;ky; ds
le{k fnukad 27-09-2019 dks ;g lgefr fn;k Fkk fd nkok
vkosnu esa mYysf[kr L=h/ku dks og vkosfndk dks okil djus
rS;kj gS rFkk ijke'kZnk=h ds le{k Hkh vukosnd }kjk fn;s x;s
lgefr ds vk/kkj ij ijke'kZ izfrosnu esa Hkh bl rF; dk mYys[k
gS fd vukosnd okafNr L=h/ku dks okil nsus dks lger gSA**
8. From the plain perusal of the contents of paragraph 11 of the impugned
judgment it clearly reflects that there was no written statement submitted by
the appellant herein, the respondent before the court below. He was also
proceeded exparte by the court below and that the court below has taken
note of some oral statement made by the appellant in the court at the
preliminary stage of hearing and has presumed it as a consent on his part
while allowing the application under Section 27 of the Act, 1955. The
observation or statement made by the appellant at the preliminary stage
before the court cannot be construed as his consent for the disposal of the
application under Section 27 of the Act, 1955 particularly when the same
court has on a subsequent date of hearing have proceeded exparte against
him.
9. It would be relevant at this juncture to take note of contents of Section 27 of
the Act, 1955, which again for ready reference is reproduced hereinunder:
"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."
10. The opening words of the Section itself says as in any proceeding under
this Act, which by itself means that in a pending proceeding alone can there
be an application under Section 27 of the Act be filed and not otherwise. In
the instant case, admittedly there has been no matrimonial proceeding
instituted between the parties either in the past which has got decided, nor
was there any such application or proceedings pending when the
application under Section 27 was filed by the respondent in the present
appeal before the court.
11. Division Bench of this High Court in the recent past had an occasion of
dealing with an issue of identical nature in case of Smt. Babita @ Gayatri
Vs. Modprasad @ Pintu, AIR 2018 CG 40 wherein in paragraphs 9 and 10,
it has been held as under:
"9. In FAM No.5/2008 (Sanjay Kumar Manu vs Shrimati Urmila
Manu), decided on 13.07.2010 by one of us (Prashant Kumar
Mishra), a similar view as has been taken that an independent
proceeding under Section 27 of the Act, 1955 has not been
contemplated from the language contained in Section 27 of the
Act, 1955. It is held thus in paragraph 11:-
(11). On the basis of what has been observed by
the Hon'ble Supreme Court and the Single Bench
of Punjab & Haryana High Court it would appear
that an independent proceeding under Section 27
of the Act has not been contemplated from the
language contained in Section 27. For application
of the provision of Section 27 first there has to be a
proceeding which can be said to be main
proceeding under the Act 1955 and while passing a
decree in the said main petition, Court is
empowered to make provision in the decree as it
deems proper with respect to any property
presented, at or about the time of marriage, which
may belong jointly to both the husband and wife. In
the present case the respondent/wife has not
instituted any petition seeking decree of divorce or
judicial separation or restitution of conjugal rights
and has straightway preferred an application under
Section 27 for return of 'Stridhan' property on the
allegation that the property were presented at the
time of marriage. Taking guidance from judgment
rendered by Hon'ble Supreme Court Balkrishna
Ramchandra Kadam Vs. Sangeeta Balkrishna
Kadam (supra), and in the Punjab & Haryana High
Court Smt. Surinder Kaur Vs. Madan Gopal Singh
(supra), this Court is of the opinion that an
independent proceeding under Section 27 without
there being any main petition pending under any
other provision of the Act 1955, is not maintainable.
10. A Division Bench of Madhya Pradesh High Court in the
matter of Manish Nema vs Sandhya Nema, reported in 2009 (2)
MPHT 267, has held held that relief under Section 27 of the Act
seeking Court's direction for return of Streedhan can be
obtained even in a subsequently instituted proceeding, after
disposal of the matrimonial proceeding. This judgment has been
pressed into service by the learned counsel for the appellant to
canvass that an independent proceeding under the Act is
maintainable. However, on a complete reading of the judgment,
we find that decision is in sink with the law laid down by the
Supreme Court in Balkrishna Ramchandra Kadam (supra),
inasmuch as a subsequent application under Section 27 of the
Act for return of Streedhan would be maintainable after a
previously instituted matrimonial proceeding has been decided
between the parties. However, the judgment nowhere lays down
the proposition that a proceeding commenced for the first time
between the parties in form of application under Section 27 is
maintainable even in a case where no other matrimonial
proceeding has ever been initiated, decided or pending
between the parties."
12. The aforesaid judgment of Division Bench of this High Court has been
taking into consideration the judgment of Supreme Court in case of
Balkrishna Ramchandra Kadam Vs. Sangeeta Balkrishna Kadam, AIR
1997 SC 3562.
13. In view of the aforesaid authoritative decision rendered on the issue and
also on the admitted factual matrix as is reflected in the preceding
paragraphs that there was no any matrimonial proceedings either decided
in the past or was pending at the time when the application under Section
27 of the Act, 1955 was filed by the respondent herein. Thus, at the first
instance itself the application under Section 27 of the Act, 1955 before the
court below was not tenable and it ought to have rejected at the threshold.
14. As regards the contention of the counsel for the respondent that the appeal
is not maintainable in view of Sub-Section (2) of Section 19 of the Act,
1984, we are of the firm view that once when the court below has
proceeded exparte from the stage of non filing of the written statement by
the appellant-respondent before the court below and there being no written
consent or an oral consent given by the parties at the time of the disposal
of the suit before the court below, it cannot be construed to be a judgment
on a consent given by the parties. Therefore, the said objection also is not
sustainable. The impugned judgment dated 19.12.2019 passed by the
Family Court Dhamtari in Civil MJC Case No.106-A/2019 is therefore not
sustainable in the eye of law. The same therefore deserves to be and is
accordingly set aside/quashed.
15. The appeal stands allowed.
16. A fresh decree accordingly be issued or passed.
Sd/- Sd/-
(P. Sam Koshy) (Rajani Dubey)
Judge Judge
inder
