Smt. Parmeshwari Dansena vs Onkar Dansena
2022 Latest Caselaw 5269 Chatt

                                    1
                                                    FAM No.187 of 2016

                                                                 NAFR

         HIGH COURT OF CHHATTISGARH, BILASPUR

                         FAM No.187 of 2016

{Arising out of judgment & decree dated 1-8-2016 passed by the Judge,
Family Court, Raigarh, in civil suit No.F-44A/2014}

1.    Smt. Parmeshwari Dansena Aged About 25 Years W/o Onkar
      Prasad Dansena (S/o Nilamber Dansena) Occupation- Panchayat
      Teacher Grade III, R/o Village-Kiritmal, PS Bhupdevpur, Tahsil-
      Kharsia and District-Raigarh, Chhattisgarh

                                                          ---- Appellant

                                  Versus

1.    Onkar Dansena S/o Shri Brijmohan Dansena, Aged About 29
      Years Occupation- Unemployed, R/o Village- Chaple, Tahsil/
      Police Station- Kharsia, District-Raigarh, Chhattisgarh

                                                        ---- Respondent


For Appellant            Mr. Ishwar Jaiswal, Advocate

For Respondent           Mr. Manoj Kumar Sinha, Advocate

                 Hon'ble Mr. Justice Goutam Bhaduri &
                Hon'ble Mr. Justice Radhakishan Agrawal
                          Judgment on Board

Per Goutam Bhaduri, J.

22-08-2022

1. The instant appeal is by the wife against the judgment & decree

dated 1-8-2016 passed by the Judge, Family Court, Raigarh, in

civil suit No.F-44A/2014.

2. Learned counsel appearing for the appellant/wife would submit

that the respondent/husband has remarried, as such, it will be

FAM No.187 of 2016

difficult for her to restore to the matrimonial ties and it is

submitted that the alimony which has been granted to the wife was

too meager and even return of the gift items, which were given at

the time of marriage, to the wife was not considered by the

learned Family Court for any return. Therefore, the same may be

directed to be returned to the wife along with prayer for

enhancement of alimony.

3. On the earlier date since the submission was made by the wife that

primarily challenge is not to the divorce for the reason that the

husband had already remarried the alimony part may be

reconsidered, both the parties were directed to file affidavits and

necessary documents to show the income and the properties held

by them, both movable and immovable. Accordingly, affidavits

have been filed.

4. Leaned counsel for the appellant would further submit that at para

7 of the statement of the wife recorded before the Court below the

list of gift items given to her were shown, which was around

Rs.6.00 lacs, however, the same have not been returned. He

would also submit that there is no cross-examination on this issue

and that evidence remained unrebutted. Under these

circumstances, return of gift items should have been ordered by

the learned Court below. He would next submit that the appellant

is a Teacher (Shiksha Karmi) and drawing Rs.35,000/- per month

towards salary. An application under Order 41 Rule 7 of the CPC

FAM No.187 of 2016

has been filed to show the details of properties jointly held by the

husband and his family members along with photographs of house

wherein the husband is shown to be running a shop of computer

and photocopy.

5. Learned counsel appearing for the respondent/husband would

submit that two affidavits have been filed by the husband. First

affidavit was filed on 16-11-2021 and subsequent affidavit was

filed on 21-4-2022. In the first affidavit, the respondent has stated

that he do not have any individual income and only earning

meager amount of Rs.6,000-7,000 per month, therefore, the

enhancement which has been sought for is unjustified.

6. We have heard learned counsel for the parties only with respect to

the issue of alimony. The alimony was allowed to the wife by the

learned Family Court was to the extent of Rs.1.00 lac. Since the

wife has stated that at this moment she is not challenging the

decree of divorce for the reason that the husband has remarried,

we are not inclined to go into the finding given by the Court

below on the issue of divorce.

7. Now coming back to the quantum of alimony and return of gift

items, Section 27 of the Hindu Marriage Act, 1955 contemplates

that 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.

FAM No.187 of 2016

8. At para 7 of the statement recorded before the Court below, the

wife disclosed that the followings items were gifted to her at the

time of marriage :

ARTICLES  Cooler  Dining Table  Almirah  Box  Mattress  Pillow  Television  Bed  Sofa Set  Dressing Table  Silver articles Weight 892 gms.  Gold Ornaments 49.300 gms. (Chain, Rings, Nose Pin, forehead jewellery & Gold Flower)  Brass Pot  Bronze Plate  Steel Drum 20 pieces  Steel Platter 25 pieces  Brass Platter 8 pieces  Brass Kopra 5 pieces  Cooker 5 pieces  Silver container 5 pieces  Small Hotpot 3 set  Jug 2 pieces  Kitchen Set 2 pieces  Stove  Idli Part 2 pieces  Water Filter  Mixi 2 pieces  Juicer 2 pieces  Iron 4 pieces  Ceiling Fan 3 pieces  Table Fan 1 piece  Gas Stove  Stitching Machine  Induction Stove  Briefcase 4 pieces  Chakka Wala 1 piece  Big Bag 2 pieces  Wrist Watch 2 pieces  Gift Item 60 pieces  Puri Banane ki Machine

FAM No.187 of 2016

 Silver Laxmi  Ganesh Idol  Rs.7500/- in briefcase  Rs.5000/- in purse  Total articles of Rs.4,92,895/- was gifted.

STRIDHAN

 Silver Anklet 2 pairs  Toe ring 5 set  Gold pendant  Gold necklase  Gold Mangalsutra  Cash 40,000/- rupees in envelope

9. A perusal of cross-examination of witness DW-1 Smt.

Parmeshwari Dansena shows that those facts which were stated to

be presented to her at the time of marriage remained unrebutted.

The husband in his first affidavit stated that he is earning an

amount of Rs.6,000-7000/- per month. In the subsequent affidavit

it has been disclosed that he is earning Rs.5,000/- per month. On

reading of both the affidavits filed by the husband, prima facie, it

appears that all deliberate efforts have been made to conceal the

income, which otherwise would amount to making a wrong

disclosure by way of affidavit. However, we are not inclined to

go into the issue at this stage because the statement of the wife

remained unrebutted in respect of the gift items which were

presented to her at the time of marriage.

10. Considering the fact that the marriage was solemnised on

24-4-2012 and the gift items, which were presented, might have

lost its value/efficacy with the passage of time, we deem it proper

to pay an amount of Rs.5.00 lacs (Rupees Five Lacs Only) to the

FAM No.187 of 2016

appellant/wife in lieu of items gifted to her at the time of marriage

within a period of one month from today, failing which it would

carry interest at the rate of 9% per annum. It is made clear that the

appellant/wife would be entitled to recover the amount by way of

coercive method.

11. Accordingly, the present appeal is disposed of in the above stated

terms, leaving the parties to bear their own cost(s).

12. A decree be drawn accordingly.

                Sd/-                                             Sd/-


         (Goutam Bhaduri)                        (Radhakishan Agrawal)
               Judge                                     Judge

Gowri