Subhash Lata vs V.N. Khanna
1991 Latest Caselaw 199 Del

JUDGMENT

1. This appeal is directed against the judgment dated 4-6-1988 of the learned Addl. District Judge, Delhi by which she dismissed a petition under S. 27 of the Hindu Marriage Act filed by the appellant along with her divorce petition. The divorce, however, was granted.

2. By this application the appellant stated that her parents/ other relations had presented to her the following article's at the time of her marriage.

i) One golden set (Jaru) comprising of gulubind for neck, two karas, earrings.

ii) One another golden set called Manhi set comprising of neckless, two ponches, ear rings and three rings.

iii) One golden set of small weight consisting of Kanti for the neck, karas for hand and three rings.

iv) golden churies 20

v) One Nath golden, one tika, one sangarpari nath.

vi) 31 utensils of silver consisting of thals, katoras etc.

vii) Utensils of brass (make Muradabadi) comprised in one bucket.

3. Learned ADJ held that since there was no averment in the application that the property was jointly presented to the appellant as well as her husband at the time of the marriage so it was not maintainable under S.27 of the Act.

4. I have heard arguments advanced by learned counsel for the parties. Learned counsel for the appellant drew my attention to some authorities. The first case is that of Anju Bhargava v. Rajesh Bhargava, (1986) 2 DMC 467. A perusal of this authority shows that both the parties came to a settlement in that case.The husband agreed to pay Rs. 20,000/- Installments of Rs. 2,000/- to the wife. The agreement was accepted by this Court and the case disposed of. I am of the view that the other observations made in this authority holding that the words "May belong jointly" may also mean, "may not belong jointly" in S. 27 of the Act are in the nature of obiter and cannot be called ratio decedendi. This Court held in the case of Sint. Shukla v. Brij Bhushan Makkar, AIR 1982 Delhi 223,

"Section 27, Hindu Marriage Act, 1955 is a substantive provision empowering the Court in any proceeding under the said Act to make a just and proper order regarding property presented at or about the time of the marriage of the pat-ties and belonging jointly to both of them. The Court exercising the jurisdiction under the Act is powerless to deal with properties exclusively belonging to one or the other spouse". In the above case the wife who pleaded that the properties were presented to her and, therefore, belonged to her was held not entitled to the relief of their recovery under S. 27 of the Act. Her remedy lay before the Civil Courts. Neither could an order be based on 0. 7, R. 7 read with S. 15 1, Civil P.C." The aforesaid view was followed by this Court in Ashok Kumar Kad v. Usha Rani Kad, FAO No. I I I of 1983 reported in 1985 MLR 21. The Court said (at page 23):

"It is no doubt true that the operation of the provision embodied in S. 27 of the Act is confined only to property presented to the parties at or about the time of the marriage which belong jointly to both of them."

Therefore, in matters which were contested by the parties before this Court, the consistent view is that S. 27 of the Act is attracted when the property presented at or about the time of the marriage is alleged to belong jointly to both the spouses. In the present case, the allegation is that all the aforesaid articles were presented to her at the time of marriage by her parents/ other relations, meaning thereby that the same belonged to her. Learned counsel for the appellant also drew my attention to the case of Pratibha Rani v. Suraj Kumar, . After going through the aforesaid authority, I am of the view that the same is not applicable to the facts of the present case. In that case the wife had filed a criminal complaint against the husband alleging misappropriation of the property absolutely owned by her.. The Court of first instance summoned the husband as an accused. But the High Court quashed the proceedings under S. 482 of the Criminal P.C. and directed the wife to file a civil suit. The Hon'ble Supreme Court observed in para 15.

"We are of the opinion that this view of the High Court is not legally sustainable because neither of the two Acts (Hindu Marriage Act and Hindu Succession Act), referred to above, go to the extent of providing that the claim of a woman on the basis of stridhan is completely abolished. All that the two sections, mentioned above, provide is that if the husband refuses to return the stridhan property of his wife, it will be open to the wife to recover the same by a properly constituted suit. The sections nowhere provide that the concept of stridhan is abolished or that a remedy under the criminal law for breach of trust is taken away."

5. Therefore, I am of the view that the appellant does not seem to derive any strength for her case from the aforesaid ruling. I am, therefore, of the view that the conclusion of the learned Addl. District Judge is correct. This appeal has no merit and the same is hereby dismissed.

6. Appeal dismissed.