Husband in H.M.O.P No. 80 of 1994, on the file of the Subordinate Judge's Court, Trichy, is the revision petitioner herein. The marital relationship between petitioner and respondent has been terminated by a decree of divorce, and the same has become final. Pending the petition for divorce, respondent filed I.A 256 of 1996 for return of certain articles which she claimed as her own and she prayed before the Court below that necessary direction be given to the husband to return the same. In the affidavit filed by her in support of the Application she said that she was given 25 sovereigns of gold and cash of Rs. 10,000/- and other household articles and the same were entrusted to her husband, which were given to her as ‘Sridhana’. He was also given 16 grams of gold chain on the eve of First Deepavali. She wanted to return of all these things and also the cash.
2. Petitioner herein denied the above allegation and he also contested the jurisdiction of the Court to pass an order.
3. By the impugned order, after taking evidence, the lower court came to the conclusion that the respondent is entitled to get back all the ornaments and Rs. 10,000/- which was given to her at the time of marriage. The contention that the Court has no jurisdiction was found against. Before this Court, learned counsel for the revision petitioner submitted that the Order of the Court below is without jurisdiction and against the provisions of Section 27 of the Hindu Marriage Act. Learned counsel submitted that unless the respondent herein admits that it is the joint property that belonged to both parties, the Court below will not have a jurisdiction to dispose of the same. In this case, the respondent herein claimed that 25 sovereigns of ornaments and a gold chain and also a cash of Rs. 10,000/- belonged to her only and did not belong to both parties jointly. When the sole ownership is claimed by the wife, the Matrimonial Court will have no jurisdiction and the ordinary civil remedy will have to be resorted to for recovering the same.
4. How far the said contention can be accepted is the only question to be decided in this case.
5. Section 27 of the Hindu Marriage Act reads thus:—
“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.”
6. Learned counsel for the revision petitioner submitted that there is no reported decision of this Court on this point and the decision of other High Courts is to the effect that when one of the parties to a marriage claims the property as belonging to him or her exclusively, the Court will not pass an order under Section 27 of the Hindu Marriage Act.
7. Learned counsel for the revision petitioner relied on the following decisions:
(1) A.I.R 1968 Mysore 226 (M.D Krishnan v. M.C Padma). In para 17 of the judgment, a Division Bench of that High Court held thus:—
“…the jurisdiction of the matrimonial Court under Section 27 of the Act is only to make order with respect to property presented at or about the time of marriage and which belong jointly to both the husband and wife. So before an order is made under this Section, it must be shown that the property in respect of which a claim is made was presented at or about the time of marriage, the matrimonial Court would not get any jurisdiction to make order in respect of the property presented subsequent to the marriage.”
(2). In A.I.R 1982 Delhi 223 (Shukla v. Brij Bhusan), a learned Judge of that Court held that the individual property of a party of a marriage cannot be subject matter of disposal under Sec. 27 of the Act. In that case, the learned Judge said that Sec. 27 of the Hindu Marriage Act is 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 parties 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 that case, the learned Judge said since the wife claimed certain properties exclusively, the provisions of Sec. 27 will not come to her aid. Learned Judge further said that neither the provision under Section 151, C.P.C read with O. 7, R. 7, C.P.C can be invoked in such cases. The decision reported in A.I.R 1972 Allahabad 153 (Kamta Prasad… v. Smt. Om Wati….) was not followed.
(3) In A.I.R 1992 Delhi 14 (Subash Lata v. V.N Khanna,), a learned Judge of the Delhi High Court also followed an earlier decision of that High Court.
(4) In A.I.R 1982 Punjab and Haryana 372 (Full Bench) (Vinod Kumar v. State), a Full Bench of that High Court, in paragraph 30 held thus:—
“… The express words of the provision refer to property ‘which may belong jointly to both the husband and wife’. It nowhere says that all the wife's property belongs jointly to the couple or that Stridhana is abolished and she cannot be exclusive owner thereof. Indeed, in using the above terminology, the statute expressly recognises that the property which is exclusively owned by the wife is not within the ambit of Section 27 of the Hindu Marriage Act and it is concerned only with that property presented at or about the time of marriage, and belonging jointly to the couple….”
8. The said decision of the Punjab and Haryana High Court came for consideration before the Supreme Court in the decision reported in (1985) 2 SCC 370 (Pratibha Rani v. Suraj Kumar and another),
9. Learned counsel submitted that if the ‘Sridhana’ property absolutely belonged to the respondent herein and the same cannot be treated as jointly possessed or owned by the parties, no order could be passed by the Matrimonial Court, and the remedy can only be by an ordinary Civil Court for the said purpose. Learned counsel also submitted that the principle that the property belonging to the wife retains the character as her own is recognised by the Supreme Court in (1985) 2 SCC 370 (supra), and the decision reported in AIR 1982 Punjab and Haryana page 372 (Full Bench) (supra) still holds good.
10. As against the said contention, learned counsel for respondent relied on the decision reported in (1) AIR 1972 Allahabad 153 (supra) wherein a learned Judge of that Court held that even though Section 27 of the Hindu Marriage Act deals only with the joint properties of the husband and wife, since the provision of Civil Procedure Code is made applicable to proceedings under the Hindu Marriage Act, invoking the powers under Section 151, C.P.C read with Or 7, R. 7, C.P.C, the Court also can give directions regarding separate properties to either parties. It is only incidental to the power already exercised. It is not going against the provisions, of the Statute. It further held that where even disputed questions could be resolved and decided, and necessary relief could be granted, it was only natural that admitted or proved fact also can be taken into consideration to grant the relief. (2) Learned counsel also relied on the decision reported in AIR 1994 Bombay 1 (Sangeeta Balakrishna Kadam v. Balakrishna Ramachandra Kadam) where a Division Bench of that High Court held that the Court is entitled to exercise its discretion and pass orders in relation to other forms of property not covered under Section 27 of the Act.
10. In another decision reported in AIR 1996 Madhya Pradesh 227 (Nirmala Gupta v. Ravendra Kumar) also a similar view was taken.
11. The question that has to be considered is, whether the Court is entitled to pass orders on properties claimed by one of the spouses while exercising powers under the Hindu Marriage Act.
12. All the High Courts are unanimous in regard to the scope of Sec. 27 of the Hindu Marriage Act. Law says that Court is entitled to invoke its powers only if the property belongs jointly to husband and wife. The High Courts of Allhabad, Madhya Pradesh and Bombay, and in the earlier decision of the High Court of Delhi, in Anju Bhargava… v. Rajesh Bhargava… (1986) 2 Hindu LR 393) have also taken the view that even if the property belongs to one of the spouses, even though Section 27 of the Hindu Marriage Act may not apply, invoking Section. 151 read with Order 7, Rule 7, C.P.C, relief could be granted and the spouse retaining the property as such can be directed to return the same.
13. The lower Court has accepted the view by invoking the powers under Sec. 151, C.P.C Naturally, we have to consider, what is the scope of Sec. 151, C.P.C
14. In AIR. 1978 Patna 339 (Bajrang Rai & Others… v. Ismail Mian & Others…Opp. Party.), five Judges of that High Court considered the scope of Section 151, C.P.C and held thus:—
“(i) The inherent powers of the Court are very wide and are not in any way controlled by the provisions of the Code: (ii) They are in addition to the powers specially conferred on the Court by the Code and the Courts are free to exercise them; (iii) The only limitation put on the exercise of the inherent powers is that when exercised, they are not in conflict with what has been expressly provided for, or those exhaustively covering a particular topic, or against the intention of the Legislature. These limitations are not due to the fact that the inherent power is controlled by the Code, but because it should be presumed that the procedure specifically provided for orders in certain circumstances is dictated by the interests of justice; (iv) Inherent powers are to be exercised where specific provision does not meet the necessities of the case.”
In concurring judgment delivered by Shanbhu Prasad Singh, J., it was held that “Presence of an alternative remedy by itself is not enough to debar the Court from exercising inherent powers “for the ends of justice”. Their Lordships further went on and said that as the power under S. 151, C.P.C is of necessity very wide, the Courts have to be very cautious and vigilant in exercising it. An application under S. 151 of the Code cannot be dismissed in limine as not maintainable on the ground that an alternative remedy is available, but before allowing such an application the Court must be convinced and ordinarily record a finding that it was for the ends of justice or to prevent abuse of the process of the Court.
14. Commenting on Section 27 of the Hindu Marriage Act, in Mulla's Principles of Hindu Law, 15th Edition, at page 890, the learned Author has said thus:—
“The rule laid down in this Section is intended to prevent multiplicity of litigation in respect of certain property between parties to any proceeding under the Act by laying down in effect that an application with respect to any property presented at or about the time of marriage to both the husband and the wife may be made by either party to such proceeding and that the Court may in the exercise of its discretion make provisions for disposal of such property as it deems just and proper.”
15. If the matrimonial relationship comes to end, the Court gives direction regarding the custody of the children, what are the rights and control over the joint properties owned or possessed by them, etc. From the above scheme, it is clear that all accounts are being settled by that decree. The party should not be again asked to file an action for recovery of any property though a suit may not be barred. But, as far as possible, all matters in dispute are to be settled by that Court itself. Again, it should always be the endeavour of the Court to see that the litigation comes to an end. One of the aims of Sec. 151, C.P.C is also to prevent multiplicity of suits. In this connection the decision reported in 1985 (2) SCC 370 (supra) (para 53) also requires consideration, In that case, their Lordships overruled in pan the decision of the Punjab High Court in Vinod Kumar's case (supra) wherein that Court held that when the wife brings property to the matrimonial home, the ‘Sridhana’ becomes joint with her husband or his relations. To that extent, Vinod Kumar's case was overruled, and it was declared that even if the property is kept in the custody of the husband or her in-laws, they must be treated as Trustees and are bound to return the same when demanded. If the scope of S. 151, C.P.C is to avoid multiplicity of suits and the Court also acts in accordance with the ends of justice, is not the Court entitled to exercise the power, and direct the return of articles to the owner. A further question may also be asked whether by invoking Sec. 151, C.P.C, is it against any of the provisions of the Hindu Marriage Act or against settled principles of law that the inherent power cannot be used where there is a statutory prohibition.
16. In the decision reported in A.I.R 1972 Allahabad 153 (supra), a learned Judge of that Court held that the Section does not exclude the power of the Court to pass appropriate decree in regard to property which exclusively belongs to the husband or solely to the wife. The learned Judge further went on and said that ‘difficulties are likely to arise in cases where there are properties which belong jointly to both of them. In such cases the Court has to adjust the equities between the parties having regard to all the material circumstances, and it was to ensure the making of such equitable adjustments that specific powers had to be conferred on the Court under Sec. 27 of the Act. Therefore, I am of opinion that Section 27 does not exclude the general power of the Court to pass an appropriate decree in regard to the property belonging exclusively to either the husband or the wife. The learned Judge, in the case cited, further held in paragraph 5 of the Reports that the proceedings under the Hindu Marriage Act, are governed by the Code of Civil Procedure and Sec. 151, C.P.C also applies to the proceedings. The learned Judge further took note of the fact that by a reading of Sec. 27, it should not be inferred that the Court has no power in regard to properties owned or possessed by the individual spouses. In that view of the matter, the power was recognised.
17 In AIR 1994 (Bombay page 1 (supra), a Division Bench of that Court invoked Sec. 151, C.P.C and held that to direct the parties to a separate suit is hardly fair and having regard to the volume of litigation that is pending, to direct the parties to institute normal civil suits in relations to the remaining property would be inequitable. In such cases, under Sec. 151, C.P.C, orders could be passed in regard to those properties which do not come under Sec. 27 of the Hindu Marriage Act. The Division Bench Judgment of the Bombay High Court was followed in AIR 1996 Madhya Pradesh 227 (supra). In paragraph 13 of the judgment, their Lordships after considering the scope of Section 151, C.P.C, held that ‘the Court is not giving the appellant any substantive right in the garb of interpretation. It is only providing the additional procedure to a wife who could not claim her ‘Stridhan’, under the provisions of Section 27 of the Act. In paragraph 12 of the judgment, their Lordships further went on and said how far Sec. 151 C.P.C could be applied in proceedings under the Hindu Marriage Act. It was held thus:—
“It may be noted that the Act is a special enactment governing the matrimonial proceedings between the parties. Section 4(1) of the Code of Civil Procedure reads as under:—
“4 Savings.— (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.”
From this provision, it is clear that the procedure prescribed by the special law will not be limited by the Code of Civil Procedure. However, the Act itself adopts the C.P.C so far as it is applicable in the matrimonial proceedings under the Act, and therefore, all the provisions, of the C.P.C will be applicable to the matrimonial proceedings under the Act. Section 151 read with Order V11. Rule 7 of the Code of Civil Procedure will also be made applicable because there is no provision under the Act which bars the application of these provisions of the C.P.C Order VII, Rule 7 of the Code permits the Court to grant such relief not prayed for as would be just under the circumstances of the case.”
In the decision cited by learned counsel for the revision petitioner, i.e, A.I.R 1968 Mysore 226 referred to supra, the question that came for consideration was, regarding the time of acquisition jointly owned by husband and wife that could be taken note of under Section 27, Hindu Marriage Act. The question whether direction could be issued for the individual properties of the spouses did not come up for consideration. On going through the judgment, I only find that only the Section has been extracted and nothing more. So, that may not be of any assistance to the learned counsel for the petitioner.
18 In AIR 1982 Delhi 223 (supra) the learned Judge did not follow the Allahabad decision referred to supra. It was held in paragraph 2 of the judgment that ‘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 parties and belonging to both of them jointly. It was further held that the remedy lay before the Civil Courts. The scope of Sec. 151, C.P.C was not considered in that case.
19. In A.I.R 1992 Delhi 14 (supra), except following an earlier decision of that High Court, the Court did not give any reason.
20. In the Full Bench decision of the Punjab High Court reported in AIR 1982 Punjab and Haryana 372 (supra), the only question that came for consideration was, whether an F.I.R could be quashed invoking the power under S. 482, Criminal Procedure Code, and what is the nature of right over ‘Sridhana’ property. In fact, the question of invoking Sec. 151, C.P.C was not considered at all in the Full Bench decision. As I said, already, even though to a certain extent, the decision of the Punjab High Court (referred to supra) was overruled by the Supreme Court, the decision is binding only to the extent, namely, that the wife after coming to the matrimonial home continues to be the owner of her ‘Stridhana’ property. The powers of Matrimonial Court were not a matter in issue, nor was it decided in that case.
21. On going by the various decisions, I agree with the conclusion arrived by the Allahabad Bombay and Madhya Pradesh High Courts wherein their Lordships have held that under Section 151, C.P.C, the Court can give necessary direction regarding disposal of the properties belonging to individual spouses and the same is within the jurisdiction of the Matrimonial Court. Section 27 of the Hindu Marriage Act is not a bar, nor does it restrict the power of Matrimonial Court in regard to disposal of the individual properties of the spouses. Merely because a specific provision has been made under Sec. 27 of the Hindu Marriage Act regarding joint properties of the spouses, it should not be construed that the Court has no power or the Court's power is excluded from giving necessary directions with regard to the individual properties.
22. The only legal point argued by learned counsel for the revision petitioner was on the scope of Sec. 27 of the Hindu Marriage Act. In view of my finding aforementioned, I dismiss this Civil Revision Petition, however, without any order as to costs. C.M.P 3821 of 1997 for stay is also dismissed consequently.
KA/RR/VCS.