Chattisgarh High Court
Smt. Anjali Trivedi vs Rahul Tiwari on 17 August, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No. 66 of 2016
Smt. Anjali Trivedi, D/o Karuna Shankar, aged about 38 Years, R/o
Jhanda Chauk, Raipur, P.S., and P.O. and Tahsil Raipur, Civil and
Revenue District Raipur, Chhattisgarh.
----Appellant
Versus
Rahul Tiwari, S/o Sushil Tiwari, aged about 39 Years, R/o Village
Patpar, P.S., P.O. and Tashsil Dongargarh, Civil and Revenue District
Rajnandgaon, Chhattisgarh, Another Address Through A.V. Das,
Advocate, First Floor, Vardhman Nagar, Near Panabaras Office,
Rajnandgaon, P.S. and Post Rajnandgaon, Civil and Revenue District
Rajnandgaon, Chhattisgarh.
----Respondent
For Appellant Mr. Shubhank Tiwari, Advocate.
For Respondent Mr. Akash Kedia, Advocate.
Hon'ble Shri Justice Goutam Bhaduri
Hon'ble Shri Justice Radhakishan Agrawal
Judgment on Board
Per Goutam Bhaduri, Judge
17/08/2022
1. Heard.
2. The present appeal is against the judgment and decree dated
23.01.2016 whereby a claim preferred by the wife/appellant under
Section 27 of the Hindu Marriage Act, 1955 (in short 'the Act, 1955')
claiming the property presented during the marriage was dismissed.
The present appeal is by the wife.
3. Brief facts of the case are that on 22.01.2006, the appellant and the
respondent were married and thereafter the wife joined the company
of the husband. It was stated that during the marriage, certain
properties were presented to the wife along with the ornaments which
were not returned. The respondent/husband denied the averments to
have received any property during the marriage. On the basis of the
issues and the evidence adduced, the learned Family Court dismissed
the case of the appellant/wife on the ground that application under
Section 27 of the Act would not be maintainable.
4. Perusal of the judgment and the averments of the application filed by
the appellant/wife would show that the marriage of the appellant and
the respondent got dissolved by an order and decree dated
31.10.2008 which has attained its finality. Since no application was
filed during pendency of the proceeding, the subsequent application
by the appellant/wife under Section 27 of the Act was dismissed.
5. We have heard learned counsel for the parties at length.
6. In order to deliberate on these issues, it would be proper to reproduce
Section 27 of the Act, 1955 which reads as under:-
"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."
7. Reading of Section 27 of the Act primarily would show that it starts
with the word that disposal of property under Section 27 of the Act can
be pressed into motion when in any proceeding under the Act is
pending. The Supreme Court in the matter of Balkrishna
Ramchandra Kadam vs. Sangeeta Balkrishna Kadam reported in
AIR 1997 SC 3562 has laid down that Section 27 provides an
alternate remedy to the wife so that she can recover the property,
which is recovered by the section, by including it in the decree in the
matrimonial proceedings, without having to take recourse to the filing
of a separate civil suit and avoid further litigation. Plain reading of
Section 27 also contemplates that it has been made inter-dependent
and has not been considered to be a separate and independent
matrimonial proceeding.
8. To consider and entertain such independent application under Section
27 of the Act, 1955, this Court in the matter of Babita alias Gyatri vs.
Modprasad alias Pintu Kheersai Patel and others reported in
2017 SCC Online Chh 1562 has laid down at paras 8 & 9 as under:-
"8. In FAM No.5/2008 (Sanjay Kumar Manu vs Shrimati
Urmila Manu), decided on 13.07.2010, (Reported in (2011)
1 CGLJ (SN) 28 (Chh) 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 (AIR 1980 P & H 334)
(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.
9. A Division Bench of Madhya Pradesh High Court in the
matter of Manish Nema vs Sandhya Nema, reported in
2009 (2) MPHT 267 : (AIR 2009 MP 108), has 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."
9. There is no dispute in this case that the earlier matrimonial
proceeding terminated by way of a divorce on 31.10.2008, therefore,
applying the aforesaid principles separate independent proceeding of
Section 27 at the behest of the wife, which is about the disposal of the
property would not lie as no proceeding was pending under the Act,
1955. Consequently, we hold that the proceeding under Section 27 of
the Act would not lie independently when no proceedings are pending
under the Act, 1955.
10. Accordingly, the appeal fails and is hereby dismissed, leaving the
parties to bear their own cost(s).
Sd/- Sd/-
(Goutam Bhaduri) (Radhakishan Agrawal)
Judge Judge
Akhilesh
Head Note
Application under Section 27 would not lie
independently when no proceeding is pending
under the Hindu Marriage Act, 1955.
tc fgUnw fookg vf/kfu;e] 1955 ds rgr dksbZ dk;Zokgh
yafcr ugha gS] rc /kkjk 27 ds varxZr Lora= :i ls vkosnu
ugha fd;k tk ldrkA
