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Case Number
Attorney(S)
  • — Mr. Mukul Rohtagi, Advocate.
  • — Mr. Devinder Singh, Advocate.
Judges
  • Mahinder Narain
Acts
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Cites
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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • — Mr. Mukul Rohtagi, Advocate.
  • — Mr. Devinder Singh, Advocate.
Judges
  • Mahinder Narain
Acts
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Smart Summary

Factual and Procedural Background

This opinion concerns an appeal by a wife, Smt. Anju Bhargava, against an order of the Additional District Judge dated 12th October 1983. The Additional District Judge had granted a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act on a petition filed by the appellant. During the pendency of this petition, the appellant filed an application under Section 27 of the Hindu Marriage Act seeking an order for return of certain properties presented at or about the time of marriage. The District Judge dismissed the application under Section 27, holding it to be not maintainable as the properties claimed were gifts admitted to be dowry and not joint property of the parties.

Legal Issues Presented

  1. Whether an application under Section 27 of the Hindu Marriage Act is maintainable for property presented at or about the time of marriage that is not necessarily jointly owned by the husband and wife.
  2. The scope and interpretation of the phrase "may belong jointly" in Section 27 of the Hindu Marriage Act.
  3. The extent to which Section 27 provides a remedy for restitution of property presented at or about the time of marriage.

Arguments of the Parties

Appellant's Arguments

  • The appellant contended that Section 27 of the Hindu Marriage Act provides a remedy for restitution of property presented at or about the time of marriage, regardless of whether it is jointly owned.
  • The appellant relied on the Supreme Court’s classification of presents at a Hindu marriage into three categories and argued that all categories should be covered under Section 27.
  • The appellant sought an order for return of the properties listed in the schedule to her Section 27 application.

Respondent's Arguments

  • The respondent argued that the application under Section 27 was not maintainable as the properties claimed were gifts constituting dowry and not joint property presented to the parties at the time of marriage.
  • The respondent’s counsel agreed to make a lump sum payment of Rs. 20,000 in installments as settlement of the property claim.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Kamta Prasad v. Smt. Om Wati, AIR 1972 Allahabad 153 Interpretation of Section 27 of the Hindu Marriage Act regarding joint property Held that Section 27 is not confined to joint properties alone; this view was considered but contrasted with other judgments.
Smt. Surinder Kaur v. Madan Gopal Singh, AIR 1980 Punjab & Haryana 344 Scope of Section 27 of the Hindu Marriage Act Supported the broader interpretation that Section 27 is not limited to joint property.
Smt. Shukla v. Brij Bhushan Makkar, AIR 1982 Delhi 223 Interpretation of Section 27 requiring property to be jointly owned Disagreed with broader interpretation; held Section 27 applies only to joint property.
Mr. Ashok Kumar Kad v. Smt. Usha Rani Kad, 1985 MLR 21 Scope of Section 27 regarding joint ownership Followed the view that Section 27 applies only to jointly owned property.
Pratibha Rani v. Suraj Kumar, AIR 1985 SC 628 Classification of presents at Hindu marriage and discussion on stridhan and Section 27 Referenced for the three categories of presents and the concept of Section 27 as an alternate remedy for restitution.
Dilbagh Rai Jerry v. Union of India & Ors., AIR 1974 SC 130 Principle that legislature does not indulge in tautology; words in statutes must be given full effect Used to interpret the phrase "may belong jointly" inclusively, not restrictively.

Court's Reasoning and Analysis

The Court examined the language of Section 27 of the Hindu Marriage Act, focusing on the phrase "may belong jointly". It concluded that these words should be construed together to include properties that may or may not belong jointly to both husband and wife. The Court relied on the principle that the legislature does not use redundant words, and thus the word "may" implies possibility, including the possibility that the property is not jointly owned.

The Court noted the Supreme Court's classification of presents at a Hindu marriage into three categories: exclusive personal use items, dowry for common use, and presents to the husband or his family. It held that Section 27 should cover all these categories, provided the property was presented at or about the time of marriage. The timing and context of the presentation of property was emphasized as crucial.

The Court distinguished Section 27 from Section 42 of the Parsi Marriage and Divorce Act, which explicitly restricts orders to joint property, noting the absence of such a limitation in the Hindu Marriage Act. The Court found that restricting Section 27 only to joint property would frustrate the legislative intent to provide restitution remedies in matrimonial matters.

Given the divergent views in various High Court decisions, the Court acknowledged the need for reconsideration of these precedents in light of the Supreme Court's observations in Pratibha Rani's case. However, as the parties agreed on a settlement, the Court did not refer the matter to a larger bench.

Finally, the Court accepted the parties’ agreement for a lump sum payment of Rs. 20,000 by the husband to the wife in installments as a resolution of the Section 27 claim.

Holding and Implications

The Court set aside the earlier dismissal of the Section 27 application and allowed the appeal in part, directing the respondent-husband to pay Rs. 20,000 to the appellant-wife in four installments.

The direct effect is that the appellant receives monetary restitution for the properties claimed under Section 27 of the Hindu Marriage Act. No order as to costs was made. The Court’s observations indicate a broad interpretation of Section 27, encompassing various categories of property presented at or about the time of marriage, not limited strictly to joint property. However, as the parties settled, the Court did not establish a binding precedent on the conflicting views of High Courts, leaving the scope of Section 27 open for future authoritative clarification.

Show full summary ...

    Anju Bhargava v. Rajesh Bhargava

    Mahinder Narain, J. (Oral):— This is a wife's appeal against an order of the Additional District Judge dated 12th October, 1983. The Additional District Judge, had, on a petition filed by the appellant, Smt. Anju Bhargava under Section 13 (1) (ia) decreed her petition or dissolution of marriage by a decree of divorce.

    2. The petition was not contested before the District Judge. During the pendency of the petition under Section 13 (1) (ia), the petitioner filed an application under Section 27 of the Hindu Marriage Act (hereinafter called “The Act”) on 9-5-83. By this application she had prayed that the properties which are mentioned in the schedule, filed along with it, be ordered to be given to the petitioner-wife.
    3. The District Judge dealt with the petition under Section 13 (1) (ia) and the application under Section 27 of the Act by the same order. The District Judge had come to the conclusion that the application, under Section 27 of the Hindu Marriage Act by the petitioner wife, was not maintainable because “it does not refer to any joint property presented to the parties at the time of marriage. It relates to gifts made to the petitioner and is admitted to be dowry”. The petitioner's claim for return of the articles mentioned in para 7 of the petition under Section 27 of the Hindu Marriage Act is rejected.
    Section 27 of the Hindu Marriage Act reads as under:
    “27. Disposal of property
    “In a 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.”
    4. The matter has been heard in full before me and the counsel have cited a number of judgments before me. The first, in point of time, is the one reported as Kamta Prasad v. Smt. Om Wati, AIR 1972 Allahabad 153 (1), followed by the judgment reported as Smt. Surinder Kaur v. Madan Gopal Singh, AIR 1980 Punjab & Haryana 344 (2), followed by the judgment in Smt. Shukla… v. Brij Bhushan Makkar…., AIR 1982 Delhi 223 (3) and then followed by the judgment reported as Mr. Ashok Kumar Kad… v. Smt. Usha Rani Kad…., 1985 MLR 2921 (4) Pratibha Ran v. Suraj Kumar, AIR 1985 SC 628 (5) has also been referred to.
    5. In the first two judgments, i.e of the Allahabad High Court and of Punjab & Haryana High Court, the Court came to the conclusion that the provisions of Section 27 of the Act are not confined to the joint properties of the husband and the wife. Justice Sultan Singh in AIR 1982 Delhi 223 (supra) did not agree with a view of Allahabad High Court. The judgment of Punjab & Haryana High Court reported in 1980 (supra) was, however, not cited before him. He carve to the conclusion that the property, under Section 27 of the Act, is the property which jointly owned by the husband and the wife. The view of Justice Sultan Singh was followed by Justice J.D Jain in 1985 MLR 21 (supra).
    6. In a judgment reported as Dilbagh Rai Jerry v. Union of India & Ors., AIR 1974 SC 130 (6), the Supreme Court has held that “the legislature is not supposed to indulge in tautology”. Tautology is defined as ‘use of words that (esp. needlessly or pointlessly) say the same thing., What the Supreme Court said is an extension of the principle that the legislature does not use the words which are irrelevant, and the words in the statutes have to be given full effect.
    7. The Supreme Court has said in 1985 SC 628 at page 638 that:
    “Traditional presents given to a bride in a hindu wedding may be divided into three categories, viz. —
    (i) property intended for exclusive use of the bride, e.g, her personal jewellery, wearing apparel, etc.
    (ii) articles of dowry which may be for common use and enjoyment in the matrimonial home, and
    (iii) articles given as presents to the husband or the parent-in-law and other members of his family.”
    8. In the afore-mentioned judgment of the Supreme Court, the Supreme Court was mainly concerned with the question whether there can be a matrimonial prosecution of a husband who did not return the articles which were the stridhan of the wife, under Section 405 of the Indian Penal Code.
    9. The Supreme Court answered the question in the affirmative and repelled the contention that the concept of stridhan has been abolished because of Section 27 of the Act and Section 14 of the Hindu Succession Act. While dealing with Section 27 of the Act, the Supreme Court said that Section 27 provided an ‘alternate remedy’ to the wife to bring a suit for stridhan property which the husband refused to return.
    10. A perusal of the judgment shows that no arguments were addressed to the Supreme Court regarding the scope of Section 27 of the Hindu Marriage Act.
    11. After stating the three categories of presents which are made at or about the time of a Hindu Marriage, the Supreme Court did not specifically state that each of these three categories or only some of these three categories only were covered by the provisions of Section 27 of the Act.
    12. To my mind, Section 27, which is stated to be an alternative remedy, provides a remedy in the nature of restitution proceedings, in case a decree of divorce is being passed by them Court. Of course the Court has to be moved under Section 27 before a restitution can be made. In the application under Section 27 of the Act, the property with respect to which restitution is sought, must be described with sufficient particularity to enable it being restituted, or returned or, as stated in Section 27, to enable the court to make a provision in the decree with respect to the property.
    13. To my mind, the words which will determine the amplitude of the power contained in Section 27 of the Act are ‘may belong jointly’. The words ‘may belong jointly’ have to be taken together as a group. Once they are taken together as a group, the words necessarily include properties which may belong jointly or even may not belong jointly. This is construed, because the word “may” in English language, implies, “may not” also. It is only when the words ‘may belong jointly’ are so construed, can the intention of the legislature to effect the restitution be fully implemented, at the time of passing of the decree. The words ‘may belong jointly’ when taken together mean ‘may not belong jointly’, then such a construction would cover the third category mentioned by the Supreme Court, provided the property has been presented at or about the time of marriage. Presentation of the property at or about the time of marriage appears to be of the essence under the provisions of Section 27 of the Act.
    14. There may be instances where property is presented at the time of the marriage or about the time of the marriage, in contemplation of marriage, on the date of the marriage, individually. It may be that immovable property is given to the husband by the wife's family and a deed registered in his exclusive name. It would not be possible to say that merely because a registration of the immovable property is done in the name of the husband, it necessarily belongs to the husband alone and, therefore, is outside the scope of Section 27 of the Act. Similarly, if a motor car is presented at or about the time of marriage to the husband and a registration is made in the name of the husband under Motor Vehicles Act, it cannot be said that the property is outside the scope of Section 27 of the Act. Similarly there may be property which is presented either to the husband or the wife or jointly to them, and which cannot be so identified but the party presenting may have contemplated that what was being presented would be used jointly belong jointly, such property should, in my view, be subject to section 27 order.
    15. The crucial thing is that the fact of property being presented at or about the time of marriage, or in other words, in contemplation of marriage or on occasion of marriage. The view which has been expressed above, finds some support from the difference in provisions of Section 42 of the Parsi Marriage and Divorce Act, 1936, which reads as under: —
    “42. 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 both the husband and wife.”
    16. The distinction between the provisions of Section 27 of the Act and Section 42 of the Parsi Marriage and Divorce Act, 1936 lies only in the content of the marginal note. It is well known that the marginal note, in a particular section, does not in any way, control the interpretation of the provisions in the Section. In this case, however, there is an indication that whereas for the purposes of the Parsi Marriage and Divorce Act, what could be the subject matter of an order under Section 42 was only “joint property”, in case of the Hindu Marriage Act, there is no such indication by the legislature, i.e to say as far as property which was to be disposed of under Section 27 of the Act, it did not have to be only, and confined to, the joint properties.
    17. The words ‘may belong jointly’ in section 27 of the Act have to be given there ordinary meaning. In ordinary language ‘may’ includes within its ambit ‘may not’. Besides may belong jointly does not meant ‘joint property’. If this had been the intention of the legislature, it would have been so stated in the statute, as “Joint Property” is a well known legal concept.
    18. Already there is a difference of opinion between the Delhi High Court on the one hand and the Punjab & Haryana High Court and Allahabad High Court on the other regarding the scope of Section 27 of the Act. All the judgments referred to above, which deals with Section 27 of the Act, would require reconsideration in view of the observations of the Supreme Court in Pratibha Rani's case reported as AIR 1985 SC 628.
    19. I would have made a reference to a larger bench of this Court for resolving these judgments, had there not been an agreement between the parties before me regarding what is to be done in this matter. In my view the scope of Section 27 of the Act is wide, it does not need to be whittled down, and covering of all the three categories mentioned by the Supreme Court in Pratibha Rani's case, would enable the intention of the legislature in Section 21B that matrimonial matters should be disposed expeditiously, will be implemented.
    20. Mr. Mukul Rohatgi, who appears on behalf of the wife has put to the counsel for the respondent husband whether he was willing to make a lump sum payment regarding the value of the properties which could have been the subject matter of an order under Section 27 of the Hindu Marriage Act and which were mentioned in the schedule to the application under Section 27 of the Act. Mr. Devinder Singh, counsel for the husband has been instructed by his client that he is ready and willing to make such lump sum payment provided that payment is made by instalments and that amount is Rs. 20,000. Mr. Mukul Rohatgi has accepted this lump sum payment.
    21. In the above circumstances, as the parties have agreed, I direct the respondent-husband to make a payment of Rs. 20,000 to the appellant-wife. The payment of Rs. 20,000 shall be made by instalments. Each instalment shall be of Rs. 5,000. Each instalment shall be paid by a bank draft in the name of the appellant-wife. The first instalment of Rs. 5,000 shall be paid on or before 1st March, 1986. The second instalment on or before 1st April, 1986, the third on or before 1st May, 1986 and the last and the fourth instalment shall be paid on or before 1st June, 1986.
    22. The judgment and the decree of the Additional District Judge, in so far as, it relates to the decision of Section 27 application, is set aside. The appeal stands disposed of in the above said manner. A decree for a sum of Rs. 20,000 be passed in favour of the appellant and against the respondent. The decree will be satisfied in the manner in which the respondent has undertaken to satisfy the decree. No order as to costs.
    Appeal accepted.
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    Comments

    Anju Bhargava v. Rajesh Bhargava
    (Feb 13, 1986)