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Shakuntala v. Mahesh Atmaram Badlani .
Factual and Procedural Background
The appellant-wife and respondent-husband were married under Hindu rites on 25th September 1974. The husband filed a petition for annulment of the marriage on 24th September 1975, citing the wife's relative impotency. Subsequently, the husband filed a petition for divorce on the ground of desertion in 1983. Consent terms were agreed upon in January 1984, whereby the divorce petition was to be heard immediately, evidence from the annulment petition was to be read, and the wife agreed not to contest the divorce or challenge the husband's second marriage. The parties agreed to address questions of alimony, maintenance, and the wife's entitlement to certain property (ornaments and articles) claimed in the annulment petition. The husband withdrew allegations of impotency and cruelty and withdrew the annulment petition. The trial court considered the property claim but, relying on precedent, held it had no jurisdiction under Section 27 of the Hindu Marriage Act to decide on the wife's claim to exclusive property and awarded maintenance and costs to the wife. The wife appealed against the judgment only to the extent that the court did not record a finding on the property claim.
Legal Issues Presented
- Whether the trial court had jurisdiction under Section 27 of the Hindu Marriage Act to adjudicate the wife's claim to ornaments and articles presented to her.
- Whether the wife was entitled to a finding and relief regarding the property claimed.
Arguments of the Parties
Appellant's Arguments
- The wife argued that the trial court erred in not recording a finding on her claim to the property.
- Her counsel relied on the judgment in Nandini Sanjiv Ahuja v. Sanjiv Birsen Ahuja, which construed Section 27 of the Hindu Marriage Act as broader than Section 42 of the Parsi Marriage and Divorce Act, suggesting the court had jurisdiction to decide on "any property," not limited to joint property.
- It was contended that the consent terms conferred jurisdiction on the trial court to decide the property question.
Respondent's Arguments
- The respondent's position, as reflected in the consent terms and trial court judgment, was that the court lacked jurisdiction to decide on the wife's exclusive property claim under Section 27, which is limited to joint property presented at or about the time of marriage.
- The husband withdrew allegations of impotency and cruelty and the annulment petition, focusing the proceedings on maintenance and costs.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Banoo Jal Daruwalla v. Jal C. Daruwalla, AIR 1964 Bom 124 | Interpreted Section 42 of the Parsi Marriage and Divorce Act to limit court jurisdiction to joint property presented at or about the time of marriage, excluding exclusive property claims. | The court applied this interpretation by analogy to Section 27 of the Hindu Marriage Act, holding it did not have jurisdiction over the wife's claim to exclusive property. |
| Nandini Sanjiv Ahuja v. Sanjiv Birsen Ahuja, AIR 1988 Bom 239 | Interpreted Section 27 of the Hindu Marriage Act as potentially broader than Section 42 of the Parsi Marriage and Divorce Act, distinguishing "any property" from "joint property." | The court acknowledged this interpretation but ultimately rejected it in favor of the precedent in Daruwalla, finding the sections pari materia and similarly limited. |
Court's Reasoning and Analysis
The court analyzed Section 27 of the Hindu Marriage Act alongside Section 42 of the Parsi Marriage and Divorce Act, noting the provisions are pari materia (similar in substance). It relied on the precedent set in Banoo Jal Daruwalla v. Jal C. Daruwalla, which held that the court's jurisdiction under the Parsi Act was limited to joint property presented at or about the time of marriage and did not extend to questions of title or exclusive ownership. The court found that the same reasoning applied to Section 27 of the Hindu Marriage Act. Although the appellant cited the Nandini Sanjiv Ahuja case, which distinguished the two sections based on marginal notes and wording, the court held that the unambiguous statutory language controls and the marginal note cannot override it. Therefore, the court concluded that its jurisdiction was confined to joint property only and not to the wife's claim to exclusive property. The court also rejected the argument that consent terms could confer jurisdiction where none existed under law. Consequently, the court dismissed the appeal regarding the property claim.
Holding and Implications
Appeal dismissed.
The court upheld the trial court's ruling that it lacked jurisdiction under Section 27 of the Hindu Marriage Act to adjudicate the wife's claim to exclusive property. The decision means that disputes over exclusive property are outside the scope of matrimonial proceedings under this section and must be resolved in ordinary civil courts. The maintenance and costs awarded to the wife were not challenged and remain unaffected. This ruling does not set new precedent but reaffirms the existing interpretation of Section 27 in line with prior case law.
1. The appellant-wife and the respondent-husband were married under Hindu rites on 25th Sept., 1974. On 24th Sept. 1975 the husband filed a petition (being M.J Petition No. 7405 of 1975) in the City Civil Court at Bombay for annulment of the marriage on the ground of the wife's relative impotency. A petition for divorce on the ground of desertion was thereafter filed by the husband (being M.J Petition No. 427 of 1983).
2. Consent terms were taken on 10th January, 1984 in the petition for annulment By Cl. (1) thereof the petition for divorce was agreed to be heard immediately and the evidence of the husband recorded in the petition for annulment was agreed to be read as evidence therein. By Cl. (2) the wife stated that she did not desire to contest the petition for divorce and had no objection to it being made absolute. By Cl. (3) the wife agreed not to challenge the legality or validity of the husband's second marriage. Clauses (4) and (5) read thus:
“(4) Parties to address the Hon'ble Court on the questions of alimony, past and future maintenance, as also on the question of the Respondent being entitled to ornaments and other expenses as claimed in the Written Statement and the costs of the petitions on the evidence already recorded on behalf of both the parties in Petition No. 7405 of 1975.
(5) The parties agree that findings recorded by the Court on questions in clause No. 4 above shall be accepted by them as final and binding upon them and there shall be a decree accordingly.”
By Cl. (6) the parties agreed not to apply for variation or modification or rescission of the order as to permanent alimony and maintenance. Under Cl. (7), having regard to the clauses that preceded it, the husband, withdrew all allegations against the wife relating to relative impotency and cruelty and withdrew the petition for annulment.
3. Counsel for the parties then addressed the Court on the questions of alimony, maintenance and the entitlement of the wife to the property claimed by her in her written statement to the petition for annulment. The learned Judge noted the consent terms and the issue that survived in view thereof, namely,
“(4) Does the Respondent prove that she was presented ornaments and articles as stated in para 16 of the Written Statement?
(5) Is the Respondent entitled to the return of the said ornaments and articles?”
The learned Judge referred to S. 27 of the Hindu Marriage Act and found that the claim of the wife to the said property was on the basis that it was her exclusive property and not property that belonged jointly to husband and wife. Having regard to the decision of a learned single Judge of this Court in Bano Jal Daruwalla v. Jal C. Daruwalla, 65 Bom LR 750 : (AIR 1964 Bom 124), which dealt with a pari materia provision in the Parsi Marriage and Divorce Act, 1936, the learned Judge held that his jurisdiction u/s. 27 did not cover the said property. Accordingly, he recorded no finding on Issue No. 4 quoted above. The learned Judge awarded to the wife maintenance and costs.
4. This appeal is filed by the wife against the judgment and order of the learned Judge in so far as it does not record a finding in regard to the said property. There is no appeal on either side in regard to the award of maintenance and costs.
5. S. 27 of the Hindu Marriage Act reads thus:
“Sec. 27. The 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.”
S. 42 of the Parsi Marriage and Divorce Act, 1936, reads thus:
“Disposal of joint property— In any suit under this Act the Court may make such provisions in the final decree as it may deem just and proper with respect to property presented, at or about the time of marriage, which may belong jointly to the husband and wife.”
It will be seen that the provisions are in pari materia.
6. In Banoo Jal Daruwalla v. Jal C. Daruwalla, 65 BLR 750 equal to AIR 1964 Bom 124, K.K Desai J. construed S. 42 of the Parsi Marriage and Divorce Act. He said that it was clear that thereunder the Court did not deal with questions of title to property and questions arising between husband and wife as co-owners, except only in respect of joint properties presented at or about the time of marriage. Questions of title to property and questions arising between husband and wife as co-owners, other than those so excepted, had to be disposed of by the ordinary civil Courts. This judgment answers the issue in the appeal against the wife.
7. But Mr. Rege, learned counsel for the wife, drew my attention to the judgment of a learned single Judge of this Court (sitting at Nagpur) in Nandini Sanjiv Ahuja v. Sanjiv Birsen Ahuja, (1988) 3 Bom CR 418 : (AIR 1988 Bom 239). The learned Judge construed S. 27 of the Hindu Marriage Act, 1955. He took into account the judgments of various High Courts and the judgment in Daruwalla v. Daruwalla (AIR 1964 Bom 124). He drew a distinction between the provisions of S. 27 of the Hindu Marriage Act and S. 42 of the Parsi Marriage and Divorce Act on the ground that (a) the marginal note of the two sections differed because the former spoke of “disposal of property” and the latter of “disposal of joint property” and (b) S. 27 of the Hindu Marriage Act empowered the Court to make a provision with respect to “any property” which may belong jointly to both the husband and wife whereas S. 42 of the Parsi Marriage and Divorce Act empowered the Court to make a provision with respect to “property” which may belong jointly to the husband and wife.
8. Where, as here, the section is unambiguous the marginal note may not be used as an aid to its interpretation.
9. S. 27 of the Hindu Marriage Act deals with “any property” presented at or about the time of marriage, which may belong jointly to both the husband and wife. S. 42 of the, Parsi Marriage and Divorce Act deals with “property presented, at or about the time of marriage, which may belong jointly to both the husband wife.” That the word “any” precedes the word “property” in S. 27 and not in S. 42 makes no difference. The jurisdiction of the Court is confined by both provisions to the property that has been presented at or about the time of marriage and which belongs jointly to the husband and wife.
10. In my view, therefore, the construction placed by the judgment in Daruwalla v. Daruwalla (AIR 1964 Bom 124) upon S. 42 of the Parsi Marriage and Divorce Act is the correct construction to place upon the pari materia provision of S. 27 of the Hindu Marriage Act.
11. Mr. Rege submitted that there being a difference between the views expressed by the two learned single Judges of this Court, I ought to make a reference to a larger bench. I cannot do so because I find no difficulty in following the earlier judgment in Daruwalla v. Daruwalla. The wife may carry this judgment and order in appeal.
12. Mr. Rege suggested that the learned Judge of the City Civil Court was in error in deciding the question in regard to property as he did because the parties had, by Cl. (4) of the consent terms, conferred the jurisdiction to decide it upon him. If the Court has no jurisdiction under law, the parties cannot validly confer it.
13. In the result, the appeal fails and is dismissed.
14. There shall be no order as to costs.
Appeal dismissed.
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