Chattisgarh High Court
Manjit Jaiswal vs Aakriti Jaiswal on 12 May, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA(MAT) No. 34 of 2020
• Manjit Jaiswal S/o Shri Yogendra Jaiswal Aged About 31 Years R/o 27 Kholi
Nandkishore Vihar, House Of Ambikacharan Pandey, Bilaspur, Tahsil And
District Bilaspur Chhattisgarh.
---- Appellant /plaintiff
Versus
• Aakriti Jaiswal D/o Omprakash Jaiswal Aged About 25 Years R/o Myorpur,
District Sonabhadra (U.P.) Pin Code - 231208
Present R/o Ankit Jaiswal Behind Old L.I.C. Building, Savarkar Ward, Katni
M.P. Pin Code 483501
---- Respondent /Defendant
FA(MAT) No. 132 of 2020
• Aakriti Jaiswal D/o Omprakash Jaiswal, Aged About 25 Years R/o Myorpur,
District Sonabhadra (U.P.) 231208
Present R/o C/o Ankit Kumar Jaiswal, Ward No. 11 Veer Saverkar Ward,
Behind Old LIC Office, Murwara, Katni (M.P.)
---- Appellant /Defendant
Versus
• Manjit Jaiswal S/o Shri Yogendra Jaiswal, Aged About 27 Years R/o 27 Kholi,
Nandkishore Vihar, House Of Ambikacharan Pandey, Bilaspur, Tahsil And
District Bilaspur Chhattisgarh, District : Bilaspur, Chhattisgarh
---- Respondent/ Plaintiff
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For Manjit Jaiswal : Mr. Y.C. Sharma, Sr. Adv. with Ms. Shailja Shukla, Adv.
For Aakriti Jaiswal : Mr. Ravindra Sharma, Adv.
Reserved on : 21-4-2022
Judgment delivered on : 12-5-2022
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Hon'ble Mr. Goutam Bhaduri, Judge
Hon'ble Mr. N.K. Chandravanshi, Judge
CAV Judgment
Per N.K. Chandravanshi, J.
1. As both the above appeals arise out of the judgment and decree
dated 24-12-2019 passed by learned Additional Principal Judge, Family Court,
Bilaspur in Civil Suit No. 47-A/2018, they are heard together and being
disposed of by this common judgment.
2. FA (MAT) No. 34/2020 (Manjit Jaiswal -v- Aakriti Jaiswal) has
been preferred against the aforesaid judgment and decree dated 24-12-2019,
whereby the appellant-husband has been directed to pay a lump-sum
permanent alimony of Rs. 6 Lakh and Rs. 20 Lakh towards the value of
articles and cash given to the respondent-wife as Stridhan.
3. FA (MAT) No. 132/2020 (Aakriti Jaiswal -v- Manjit Jaiswal) has
been preferred by the wife against the above judgment and decree praying for
enhancement of the lump-sum amount granted as permanent alimony and
also the amount granted against the property, under Section 25 and 27 of the
Hindu Marriage Act.
For convenience, hereinafter parties shall be referred as 'husband' and
'wife'.
4. Vide the impugned judgment, a decree of dissolution of marriage
between the parties has also been granted in favour of the husband, but this
portion of the judgment has not been challenged and the same has attained
finality.
5. Brief facts of the case are that the husband and wife got married
on 5-2-2017. However, their matrimonial relations went well only for about 6-7
months, thereafter, their relations became bitter. Attempt for settlement went
in vain. On 7-2-2018, husband filed a divorce petition under Section 13 of the
Hindu Marriage Act, 1955 (for short, "the Act of 1955"), which was granted in
his favour. During pendency of the divorce petition, the wife filed an
application under Section 25 and 27 of the Act of 1955 stating therein that at
or about the time of marriage, huge amount in cash, various ornaments of
gold and silver and other articles were given by her family members, which
are her Stridhan. Hence, they be returned to her and Rs. 75,000/- per month
be also granted to her for her maintenance, from the husband. Detail of cash
amount, ornaments and various other articles, has been enclosed by her as
Schedule - 'A' along with her application.
6. In reply, husband has pleaded that Rs. 12 Lakh were given by
the family of wife through bank for arrangement of marriage function and
purchase of jewelry and other articles, which were spent for the same.
Various ornaments and other articles were given by the husband and his
family members to the wife at the time of engagement and the marriage,
which have been mentioned in Schedule - 'B' enclosed with the reply filed by
the husband. It has been further pleaded that when she left the house of the
husband in the month of September, 2017, she had taken all the ornaments
with her. Utensils, furniture, box, almira, were also purchased at the instance
of her family, which are still remaining with the husband and he is ready to
return the aforesaid articles. Except above, no other cash amount or articles
had been given by her family. After hearing both the parties vide impugned
judgment dated 24-12-2019, learned Family Court granted the decree of
divorce in favour of the husband. Vide impugned judgment, also the wife was
granted a lump-sum amount towards permanent alimony and return of
Stridhan. This later part of the judgment has been challenged by both the
parties in these appeals.
7. Learned counsel for the husband would submit that learned
Family Court has granted decree of divorce in favour of husband on the
ground of cruelty meted out to him by the wife. Thus, wife is responsible for
annulment of their marital relation. Hence, as per provisions of Section 23 of
the Act of 1955, she is not entitled for permanent alimony, despite that,
learned Family Court has saddled the liability upon him to pay permanent
alimony, which is not sustainable under the provisions of Section 23 of the Act
of 1955. Apart from that, wife is doing Ph.D. and she is getting stipend of Rs.
35,000/- per month. Thus, she is well educated and capable also to maintain
her livelihood. Whereas, the husband is an Asstt. Professor in the Guru
Ghasidas University, Bilaspur and after deduction, he is getting net monthly
salary of only about Rs. 76,000/- and Rs. 40,000/- is being deducted every
month as EMI against home loan taken by him. Apart from this, his mother,
father are old aged persons and suffering from ailments. Younger brother is
pursuing his education, hence all the liabilities to maintain his family is upon
the husband. Therefore, the amount of permanent alimony granted to the wife
is not only unsustainable but it is very much on higher side also.
8. Learned counsel for the husband, to buttress his arguments,
placed reliance on the decisions in the matter of Sudha Suhas
Nandanvankar Versus Suhas Ramrao Nandanvankar (AIR 2005 Bom 62),
S. Rashmi Pradipkumar Jain Versus Pradeepkumar s/o. Nemichand Jain
(1994 SCC Online Bom 52), Mrs. Meena Dinesh Parmar vs Shri Dinesh
Hastimal Parmar (AIR 2005 Bom. 298), and Deb Narayan Halder -v-
Anushree Halder (Smt) [(2003) 11 SCC 303],
9. Learned counsel for the husband further contended that the wife
has not proved by adducing any legal evidence that alleged cash amount,
jewelry and other articles were given by her family members at the time of
marriage to the husband and the wife, which belong jointly to them. It is further
submitted that only Rs. 12 Lakh were given through bank by family members
of the wife for making arrangement of marriage function and purchase of
jewelry and other articles like furniture, box, Almira, utensils, etc. which were
spent for making aforesaid arrangements, as asked by the family members of
the wife. It is further submitted that learned Family Court has directed to return
Rs. 20 Lakh towards value of ornaments and other articles, as also the cash
which is said to have been given to the wife as Stridhan by her parents, but
Section 27 of the Act of 1955 makes a specific provision regarding power of
the court to deal with the joint property of the parties presented to them at or
about the time of marriage. But in the instant case, it has not been proved by
the wife that alleged ornaments or other valuable articles were presented to
them at or about the time of marriage, which belongs to both of them, except,
furniture, almira, utensils. It is further submitted that cash amount given by the
family members for arrangement of marriage were spent and jewelry of gold
and silver, which were also purchased from the amount given by her parents,
were taken by the wife along with ornaments given by the husband also, when
she left the house of husband. But, learned Family Court, without properly
appreciating the evidence adduced by the husband, has made aforesaid
order. Hence, the order of learned Family Court for return of Rs. 20 Lakh
towards value of ornaments, articles, as also the cash, is also not in
accordance with the evidence and the law and, therefore, the part of the
judgment, which is under challenge is liable to be quashed.
10. On the other hand, learned counsel appearing for the wife would
submit that the husband is Asstt. Professor in the Guru Ghasidas University,
Bilaspur getting salary Rs. 1,09,996/- per month, whereas the respondent is
still studying and doing Ph. D. For doing her research and other work, she is
getting stipend only Rs. 30,875/- per month, which is spent for doing her
research work. The stipend given to her cannot be termed as her income,
because the aforesaid amount is not given to her to maintain her livelihood.
More over, her Ph.D. is going to be completed in the month of March, 2023.
Therefore, she is entitled to get permanent alimony from the husband, but the
amount of Rs. 6 Lakh which has been given to her by learned Family Court is
very much on lower side. It is further submitted that Rs. 21 Lakh cash, golden
ornaments and various articles had been given at or about the time of
marriage to the husband, his relatives and the wife, but in-spite of that,
learned Family Court has ordered to be returned to the wife only Rs. 20 Lakh,
which is very less against the cash, ornaments and articles given to them by
parents of the wife. Hence, amount on both the heads is required to be
enhanced suitably. It is further submitted that although the decree of divorce
has been granted to the husband on the ground of cruelty but despite that,
she cannot be deprived of getting permanent alimony from the husband
because she has no source of income to maintain her livelihood and the
husband is liable to pay the amount for the same.
11. In support of his arguments, learned counsel for the wife placed
reliance on Vishwanath Agrawal -v- Sarla Vishwanath Agrawal [(2012) 7
SCC 288], Vidhya Vishwanathan -v- Kartik Balakrishnan [(2014) 15 SCC
21], wherein despite decree of divorce granted on the ground of cruelty,
amount of permanent alimony was granted to the wife.
12. We have heard learned counsel for the parties and perused the
material available on record.
13. It is not in dispute that the husband is working as Asstt. Professor
in the Guru Ghasidas University, Bilaspur. Neither he had filed his pay-slip to
show his monthly salary nor the wife had filed the same, before the Court
below. In reply to the application under Section 25 and 27 of the Act of 1955,
the husband has stated that presently his monthly salary is Rs. 79,000/- and
after deduction of about Rs. 20,000/-, he is receiving net salary Rs. 59,000/-
per month. But, as per his salary slip of the month of February, which was
filed pursuant to order dated 9-3-2022 of this Court, his gross monthly salary
is Rs. 1,09,996/- and after deduction, he is getting net salary Rs. 76,486/- per
month. The wife has not proved any other income of the husband. The wife is
said to be pursuing her Ph.D. and getting stipend Rs. 30,875/- per month, but
it cannot be said that it is being given to her to maintain her livelihood, as,
such stipend is given to the researchers for works pertaining to research. No
other income of the wife has been proved by the husband. Therefore,
considering the monthly salary of the husband, his other liabilities and other
factors of both the parties, we find that the amount of lump-sum permanent
alimony Rs. 6 Lakh granted to the wife by the Family Court, is appropriate
and it does not call for any interference.
14. Although, in the instant case, decree of divorce has been granted
in favour of the husband, on the ground of cruelty meted out to him by the
wife, despite that, she cannot be deprived of getting permanent alimony. In
the case of Raj Talreja versus Kavita Talreja [(2017)14 SCC 194], Hon'ble
Supreme Court has held that, even though conduct of wife of levelling false
accusations against husband amounts to cruelty, court cannot be oblivious to
the requirements of the wife to have a decent living. In the case of
Vishwanath Agrawal (supra), decree of divorce had been granted on the
ground of cruelty, despite that, permanent alimony was granted to the wife. In
that case, Hon'ble Supreme Court has held that, permanent alimony is to be
granted taking into consideration the social status, the conduct of the parties,
the way of living of the spouse and such other ancillary aspects. In the instant
case, since husband is working as Asstt. Professor and wife has no source of
income to maintain her livelihood, therefore, looking to their social status and
way of living, we cannot be oblivious to the requirement of the wife to have
decent living. Therefore, we do not agree with the submissions advanced by
learned counsel for the husband in this regard, and therefore, the case laws
cited by learned counsel for the husband are of no help to him.
15. So far as return of Rs. 20 Lakh towards value of articles and
cash amount to the wife is concerned, it is admitted fact between the parties
that Rs. 7 Lakh and Rs. 5 Lakh were deposited in the account of the husband
and his elder brother respectively by the family (father) of the wife. Mother of
the husband Neelam Jaiswal (P.W. 2) has admitted in para 15 of her cross-
examination that at the time of ritual - Tilak, golden bracelet and Rs. 2 Lakh
were given by the family of wife. She has also admitted in para 14 that since
the family of wife was resident of Uttar Pradesh and marriage ceremony was
held at Ambikapur, hence the family of wife had entrusted liabilities to make
arrangements of marriage hall etc. to them. Hence, they (family members of
wife) had given them Rs. 2.5 Lakh for the said purpose. She has also
admitted that at the time of engagement, golden ring and chain and silver
utensils were also given by the family members of the wife. She has also
admitted in her cross-examination in para 17 that at the time of marriage,
triple gate almira, box, double bed furniture, double bed mattress, blanket,
bed sheet, attachee, etc. were also given. At the time of Tilak, silver plate
(Thali) was also given. More or less, the husband Manjit Jaiswal (P.W. 1)
has admitted aforesaid facts in his cross-examination. He has also stated that
at the time of Tilak, bracelet was given to him.
16. Thus, it has been proved that at or about the time of marriage,
father of the wife had given Rs. 7 Lakh + 5 Lakh + 2.5 Lakh + 2 Lakh = total
Rs. 16.5 Lakh to the husband in cash. The appellant Manjit Jaiswal (P.W. 1)
has deposed in his statement that cash amount was given for arrangement
of marriage and purchase of ornaments and other articles by the respondent
family, which had been spent by them for aforesaid purpose, to support his
statement, he has filed Ex. P-10 bill - cash memo of Hotel Panchanan
Ambikapur, Ex. P-11, Ex. P-12, Ex. P-13 which are estimates of ornaments of
Shree Ram Jewelers, Ambikapur. He has also filed catering bill Ex. P-14
issued by Amarnath Ramchandra Kashyap (Halwai Mistri), Ambikapur but he
has not proved these documents as per Section 67 of the Evidence Act. Only
marking of exhibits in the documents, is not sufficient to suppose, that those
documents which are private documents, have been proved. A private
document cannot be considered as an evidence until and unless its existence
and execution is admitted by the opposite party, or it is established through
proof that the document was duly executed. This could be proved through the
signatures or any kind of marks being affixed to that document as a simbol of
execution by the person who is claiming to have executed it, which has not
been done in the instant case. Apart from it, Ex. P-11 to Ex. P-14 which are
estimates/bills of purchase of jewelery- ornaments and catering expenses, do
not contain any bill number or any other number, which could prove
authentication of those documents. Hence, statement of husband does not get
any support from those documents.
17. The husband has also filed various documents before this court
along with application under Section 41 Rule 27 of the Civil Procedure Code.
But those documents could have been filed before the Family Court, which
had not been filed. We do not find any sufficient reason as provided in Order
41 Rule 27 of the C.P.C. to allow the application at this stage. Apart from this,
considering evidence available on record, we find that judgment can be
pronounced without considering additional evidence sought to be adduced.
Hence, we are not inclined at this stage to allow the aforesaid application filed
by the appellant-husband.
18. The husband has deposed in his statement that the wife had
taken her ornaments with her, when she left his house in the month of
September, 2017. Although, he has mentioned this fact in written complaint
made to the Station House Officer, Civil Lines Police Station, Bilaspur, but he
has not stated in his report as to what kind of ornaments/ jewelries she had
taken with her. More over, in cross-examination, he has made very shaky
statement that jewelries were kept in almira in his house at Bilaspur, then he
has stated that they had no almira, hence the same were not kept in the
almira but they were in the bag. The wife was not living with her husband
permanently at Bilaspur as she was pursuing her studies at Raipur,
Therefore, she was doing up-down from Raipur to Bilaspur. For this reason
also, it does not seem reliable that ornaments were kept by them at Bilaspur.
Therefore, we find that learned Court below has rightly held that taking of
ornaments / jewelries by the wife when she left the house of the husband,
has not been proved.
19. It is evident from the pleading and evidence of parties that wife
and her family were residing in Uttar Pradesh and marriage ceremony was
held at the place of husband i.e. Ambikapur. Mother of husband Neelam
Jaiswal (P.W. 2) has deposed in para 14 of her cross-examination that Rs. 2.5
Lakh were given by the family members of the wife for arrangement of
marriage. Wife Aakriti Jaiswal (D.W. 1) has admitted in her cross-examination
para 46 that all the arrangements of marriage like hotel, catering, etc. had
been done by the husband's family, as her family had asked to make all the
arrangements and they will give the expenditure. Thus, since marriage
ceremony had taken place at Ambikapur, and the arrangements of marriage
had been done by the husband and his family at Ambikapur, therefore,
aforesaid amount Rs. 2.5 Lakh would have been spent by them in the
arrangements of marriage. Therefore, the wife is not entitled to get return of
the aforesaid amount i.e. Rs. 2.5 Lakh from the appellant, but she is entitled to
get back remaining amount of Rs. 14 Lakh from the husband.
20. Although, the husband and his mother has admitted that at the
time of engagement, golden ring, golden chain and golden bracelet were
given by the parents of the wife to the husband, but, these ornaments were
gifted to him personally. Hence, the wife is not entitled to get back these
ornaments or any amount towards it. The husband and his mother have
admitted that double bed, furniture, mattress, bed sheet, attachee (Ex. D-6)
were also given by the family members of the wife to the husband, which are
lying with them. The appellant has admitted in his reply that he is ready to
return aforesaid articles to the wife, but instead of returning those articles, it
would be better that some amount may be given in lieu of value of those
articles. Hence, we think it proper to direct the husband to pay Rs. 1 Lakh in
lieu of value of aforesaid articles. Thus, we find that the wife is entitled to
receive Rs. 1 Lakh also, from the husband.
21. Wife Aakriti Jaiswal (D.W. 1), her brother Raj Jaiswal (D.W. 2)
and mother Saroj Jaiswal (D.W. 3) have deposed in their examination-in-chief
that they had given Rs. 21 Lakh cash, golden and silver ornaments and
various other articles to the husband and his family which is lying with them
as Stridhan. Wife has enclosed Annexure - 'A' mentioning the cash amount,
ornaments and various other articles allegedly given by her parents to the
husband, but neither she nor her brother Raj Jaiswal nor mother Saroj
Jaiswal has stated in their statement that what kind of jewelries were given to
her by her parents. Only on the basis of filing of list of alleged articles, the
same cannot be held proved. The wife has filed bill Ex. D-8 to Ex. D-11 in this
regard, which are private documents, but the same have not been proved as
per provisions of Section 67 of the Evidence Act. Apart from that, no bill
number or any other particulars have been mentioned in those bills and even
name of seller of alleged jewelries has been hand written, more over, most of
the bills pertain to the year 2015-2016, whereas marriage in the instant case
had taken place in the month of February, 2017. Thus, statements of wife and
her witnesses do not get any support from these documents, in respect of her
prayer for enhancement of the amount granted by the Family Court. And,
therefore, we are not inclined to grant any relief, as sought for by the wife.
22. In order to appreciate the rival contentions in respect of return of
cash amount, given to the husband by the parents of the wife, it is necessary
to reproduce Section 27 of the Act of 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."
23. The expression 'belong jointly' as contained in aforesaid
provision, necessarily does not reflect title to the property in the sense of
ownership. It only denotes connection with the property and is a term
connecting a person with his possessions. It appears that the property thus
presented to the spouses within the above-explained time limit, may fall
jointly to belong to both the husband and the wife, irrespective of the title in
those properties to be vesting in one or the other, or both. Because, the
institution of marriage by itself requires common enjoyment of property
belonging to individual wife or husband. It is, therefore, said that when a
marriage takes place, husband and wife pool their properties together for
happy enjoyment or married life and so long as the marriage lasts, there is
hardly any dispute about the ownership of an individual item.
24. Hon'ble Apex Court has clarified the scope of this section in
Balkrishna R. Kadam vs. Sangeeta B. Kadam [(1997) 7 SCC 500]. In para
8 and 11 of this judgment, Hon'ble Apex Court held 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 of a separate civil suit and avoid
further litigation. ......
11. .........Moreover, the property, as contemplated by
Section 27 is not the property which is given to the wife at
the time of marriage only. It includes the property given to
the parties before or after marriage also, so long as it is
relatable to the marriage. The expression "at or about the
time of marriage" has to be properly construed to include
such property which is given at the time of marriage as
also the property given before or after marriage to the
parties to become their "joint property", implying thereby
that the property can be traced to have connection with the
marriage. All such property is covered by Section 27 of the
Act."
25. Thus, as per the dictum laid down by Hon'ble Apex Court in the
case of Balkrishna R. Kadam (supra), it is manifest that all such property is
covered by Section 27 of the Act, which is given at or about the time of
marriage and also includes such property which could be traced to have
connection with the marriage. In the instant case, it has been proved that
Rs. 12 Lakh were given by father of the wife before the marriage and Rs.
02 Lakh were given at the time of ritual - Tilak. Thus, it is evidently proved
that aforesaid amounts i.e. total Rs. 14 Lakh cash, were given by the parents
of the wife to the husband in connection with their marriage. Therefore,
learned Court below has not made any mistake in holding that the wife is
entitled to get back those amount given in cash to the husband.
26. As has been stated above that what kind of ornaments had been
given by the family of wife to her at the time of marriage has not been proved
by the wife. Hence, we find that she is also entitled to receive only Rs. 1 Lakh
towards the value of the articles i.e. furniture, almira, box etc. given to the
husband by her parents, as has been held in para 20 of this judgment.
27. Thus, we hold that the wife is entitled to receive Rs. 6 Lakh as
permanent alimony, as has been held by learned Family Court. She is not
entitled to receive Rs. 20 Lakh as has been granted by the Family Court,
instead thereof, she is entitled to receive only Rs. 15 Lakh towards the articles
as also the cash amount, from husband Manjit Jaiswal. Thus, she is entitled to
receive total Rs. 21 Lakh from the husband. Hence, FA(MAT) No. 132/2020
filed by the wife is dismissed and the FA(MAT) No. 34/2020 filed by the
husband is partly allowed to the above extent and the judgment of the Family
Court is modified accordingly.
28. A decree be drawn accordingly.
29. No costs.
Sd/- Sd/-
( Goutam Bhaduri) (N.K. Chandravanshi)
Judge Judge
pathak/-
