- Bookmark
- Share
- CaseIQ
Dr. Suraj Parkash v. Mohinder Pal Sharma .
Structured Summary of the Opinion (J.V. Gupta, J.)
Factual and Procedural Background
The opinion concerns two connected appeals (F.A.O. No. 239-M of 1986 by the wife and F.A.O. No. 12-M of 1987 by the husband) arising from an order dated 12.11.1986 of the Additional District Judge under Section 27 of the Hindu Marriage Act ("the Act"). The marriage between Suraj Parkash (wife) and Mohinder Pal (husband) took place on 25.11.1984. Within a month, differences arose. The wife filed a petition under Section 10 of the Act for judicial separation, which was allowed on 17.12.1985, and later a decree of divorce by consent was passed on 6.2.1987.
While the Section 10 petition was pending, on 25.7.1985 the wife filed an application under Section 27 of the Act seeking return of certain dowry articles listed with that application. That Section 27 application was not decided with the main petition but was later decided on 12.11.1986. The trial Court directed the husband to return certain articles (fridge, steel almirah, double bed, washing machine, an iron petti containing clothes, and 3–4 attache cases containing clothes). Both parties appealed the trial Court's order.
The husband had raised preliminary objections to maintainability of the Section 27 application (arguing Section 27 could only arise in petitions under Section 13 and not Section 10), denied receipt of the listed dowry articles, and limited any claim under the Dowry Prohibition Act to Rs. 5,000. The trial Court framed three issues: (1) entitlement under Section 27 to the listed articles; (2) maintainability of the petition; and (3) relief.
Legal Issues Presented
- Whether the petitioner (wife) is entitled under Section 27 of the Hindu Marriage Act to the articles mentioned in her petition (i.e., whether Section 27 permits an order for return of those items)?
- Whether the petition under Section 27 (filed during pendency of a Section 10 judicial separation petition) was maintainable?
- Whether Section 27 permits a separate order after the decree, or whether provisions under Section 27 must be included in the decree passed in a proceeding under the Act?
- Whether Section 27 applies to property that is exclusively the wife's (Istridhan) or only to property that may belong jointly to husband and wife?
Arguments of the Parties
Wife's (Appellant's) Arguments
- The trial Court was wrongly held that the wife was not entitled to return of the jewellery she had left at the husband's house; that finding was erroneous.
- Section 27 of the Act allows orders for returning jewellery belonging to the wife; thus the trial Court should have directed return of all articles listed in the application.
Husband's (Respondent's) Arguments
- No orders under Section 27 could be passed in a petition under Section 10 (judicial separation); such orders, it was argued, could only be made in a petition under Section 13 (divorce).
- The Section 27 application should have been disposed of at the time of passing the decree and not by a separate subsequent order; the provision, it was argued, should be made in the decree itself.
- As a factual matter, no jewellery was given as dowry because it was a love marriage; any jewellery the wife brought was allegedly taken away by her.
- Contention that Section 27 authorises return only of property belonging jointly to the parties (not exclusive Istridhan of the wife); in support counsel cited several authorities (Vinod Kumar Sethi v. State of Punjab (Full Bench), Bhai Sher Jang Singh (Retd.) v. Virinder Kaur, and an unreported Suresh Kumar v. Saroj Bala decision).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Pratibha Rani v. Suraj Kumar, 1985 2 SCC 370 | Held that a woman's Istridhan does not become joint property of husband or his relations upon her entering the matrimonial home. | The Court relied on this Supreme Court ruling to conclude that Istridhan remains the exclusive property of the wife and is not within the ambit of Section 27, which deals only with property that may belong jointly to both spouses. |
| Vinod Kumar Sethi v. State of Punjab, 1982 9 Cr. L.T. 149 (Full Bench) | Interpreted Section 27 to refer to property which may belong jointly to both husband and wife, and stated that Section 27 does not abolish the concept of Istridhan or render all wife's property joint. | The Court regarded the Full Bench view as supporting the proposition that Section 27 applies to jointly owned property and not to exclusive Istridhan; the Court found this reasoning persuasive. |
| Anju Bhargava v. Rajesh Bhargava, 1986 2 H.L.R. 393 (Delhi High Court) | Adopted a contrary view suggesting Section 27 could include Istridhan (i.e., that property may or may not belong jointly and Section 27 could cover both categories). | The Court rejected the reasoning of this decision with respectful disagreement, noting the Delhi Judge himself contemplated referring the issue to a larger bench and observing that it could not be used as binding precedent for expanding Section 27 to Istridhan. |
| Bhai Sher Jang Singh (I.A.S. Retd.) v. Shrimati Virinder Kaur, 1978 80 PLR 737 | Cited by respondent's counsel in support of the contention that Section 27 applies to jointly held property. | The decision was cited by the husband's counsel; the Court considered the general line of authority favouring the view that Section 27 is confined to jointly held property, alongside other authorities it relied upon (noted but the Court's primary reliance was on Pratibha Rani and Vinod Kumar Sethi). |
| Suresh Kumar v. Smt. Saroj Bala, 1987-2 92 PLR 496 (F.A.O. No. 49-M of 1986) | Cited by respondent's counsel as supporting the proposition that Section 27 applies to jointly held property only. | The case was cited by counsel; the Court's analysis recognised it among the authorities referred to by the respondent but the Court's express reliance rested on the Supreme Court and Full Bench authorities mentioned above. |
Court's Reasoning and Analysis
The Court's reasoning proceeds in a few related strands that mirror statutory interpretation and precedential guidance:
- Textual interpretation of Section 27: The Court quoted Section 27 ("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.") and concluded that Section 27 contemplates making provisions in the decree itself when passing it in proceedings under the Act. Consequently, a separate subsequent order under Section 27 is not contemplated by the Act.
- Support from appealability structure: The Court observed that Section 28(1) makes decrees appealable and that appeals under Sections 25 or 26 are provided for under Section 28(2) (if not interim). The absence of express appealability or separate provision for orders under Section 27 reinforced the view that Section 27 provisions should be made in the decree, not by separate orders.
- Scope of Section 27 — joint property only: The Court considered the contention that Section 27 applies only to property presented at or about the time of marriage which may belong jointly to both parties. It accepted the force of this contention and relied on precedent, particularly Pratibha Rani (Supreme Court) and the Full Bench decision in Vinod Kumar Sethi, to conclude that the statutory scheme preserves the conception of Istridhan (exclusive property of the wife). The statute does not abolish Istridhan nor convert it into joint property merely because the wife enters the matrimonial home.
- Rejection of contrary authority: The Court respectfully disagreed with the Delhi High Court decision in Anju Bhargava v. Rajesh Bhargava which took a broader view of Section 27 to include Istridhan, noting that that judge himself indicated willingness to refer the question to a larger bench; thus that decision could not be used as precedent to expand Section 27.
- Consequences for the trial Court's findings: Because exclusive Istridhan is not within Section 27, the trial Court's conclusion that the wife did not leave jewellery with the husband is not binding for any subsequent proceedings the wife may initiate. The Court therefore left open future claims on that factual point.
- Practical disposition despite procedural infirmity: Although the appellate Court acknowledged that an order under Section 27 ought to have been made in the decree and not separately (which could have supported allowing the husband's appeal), it declined to set aside the trial Court's order directing return of particular jointly held articles because there was little dispute about those items and the trial Court had, after evidence, correctly identified the items that were joint and ordered their return. The appellate Court found no infirmity in that factual conclusion to warrant interference.
Holding and Implications
Holding: The appeals were dismissed and the trial Court's order directing return of the specific jointly held articles (fridge, steel almirah, double bed, washing machine, an iron petti containing clothes, and 3–4 attache cases containing clothes) was effectively sustained. The Court emphasised that provisions under Section 27 are to be made in the decree in proceedings under the Act and that Section 27 applies to property that may belong jointly to husband and wife — it does not cover the wife's exclusive Istridhan.
Direct consequences for the parties:
- The trial Court's directions to return the listed jointly owned articles were left intact and the appeals failed.
- Both appeals were dismissed with no orders as to costs.
- The trial Court's factual finding that the wife did not leave certain jewellery with the husband was held not to be binding in any subsequent proceedings the wife may bring regarding those items.
Broader implications and precedent: The Court relied on existing higher authority (Pratibha Rani and a Full Bench in Vinod Kumar Sethi) to reiterate that Istridhan remains exclusive to the wife and is not covered by Section 27. The opinion did not purport to set a new precedent but applied established principles of statutory interpretation and prior decisions to clarify that Section 27 is confined to jointly owned property and that its provisions should ordinarily be incorporated in the decree in which rights and property are adjudicated.
Final Order Recorded in Opinion: "Appeals dismissed." (R.M.S.)
J.V Gupta, J.:— This judgment will also dispose of F.A.O No. 12-M of 1987 as both these appeals arise out of order of Additional District Judge, dated 12.11.1986 passed under section 27 of the Hindu Marriage Act (for short the ‘Act’)
2. This is an unfortunate dispute as a result of repture of the marriage so happily celebrated on 25.11.1984 between Suraj Parkash wife and Mohinder Pal husband. A month after the marriage its happiness gave way to bitterness and differences developed between the couple with the result that Suraj Parkash wife filed an application under Section 10 of the Act for a decree of judicial separation which was allowed on 17.12.1985 and later on a decree of divorce by consent was passed on 6.2.1987 During the pendency of the petition under section 10 of the Act, wife also moved an application under section 27 of the Act on 25.7.1985 Ordinarily this should have been disposed of along with the main petition filed under section 10 of the Act for judicial separation. However, it appears that no orders were passed on this application under section 27 of the Act and was subsequently decided on 12.11.1986 By virtue of the said order, the learned Additional District Judge directed the husband to return certain articles as detailed in the last para of the judgment. Dissatisfied with the said order, both the parties have filed separate appeals F.A.O No. 239-M of 1986 has been filed by the wife whereas the other F.A.O No. 12-M of 1987 has been filed on behalf of the husband. In the application under Section 27 of the Act filed by the wife, it was stated that since there are no circumstances of the compromise between the parties, the dowry aticles mentioned in the accompanying list maybe ordered to be reurned to her. In the reply filed on behalf of Mohinder Pal husband, he raised certain preliminary objections to the effect that the petition was not maintainable as the petition under section 27 of the Act could only be in a petition under section 13 of the Act and not under section 10 of the Act. Moreover, since it was a love marriage, the question of the dowry etc. did not arise. The receipt of the articles mentioned in the list attached with the application allegedly received by Mohinder Pal in the dowry at the time of his marriage was denied. It was also pleaded that the wife could not claim more than Rs. 5000/- under the Dowry Prohibition Act.
3. On the pleadings of parties, the learned trial Court framed the following issues:—
1. Whether the petitioner is entitled under section 27 of the Hindu Marriage Act to any articles as mentioned in the petition? If so, its effect? OPP
2. Whether the petition is not maintainable? OPR
3. Relief.
4. The parties were allowed to lead evidence. Under issue No. 1, the learned trial Judge concluded that “all these circumstances, when considered collectively do go to suggest that the petitioner never trusted the respondent or her parents-in-law and kept all her jewellery with her and when she left the matrimonial home on 8.3.1985 in the absence of her husband and her parents-in-law, she carried back the same to her parents' house. It has also come in evidence that while leaving the matrimonial home on 8.3.1985 she carried an attachee case or two with her. Therefore, the claim of the petitioner regarding the jewellery is dismissed.” However, it was held that the following articles given to the petitioner in dowry are still lying with the respondent and latter was directed to return the same:—
(1) One Fridge.
(2) Steel Almirah.
(3) One double bed.
(4) Washing Machine.
(5) An iron petti containing various types of clothes.
(6) 3 or 4 attache case containing clothes for the bride and bridegroom.
5. Issue No. 2 was decided against the husband and it was held that the petition was maintainable.
6. The learned counsel for the wife-appellant submitted that it has been wrongly held that the wife was not entitled to the return of the jewellery which she had left at the house of her husband. The finding of the learned trial Judge in this behalf, according to the learned counsel, is wrong and erroneous. It was further contended that under section 27 of the Act, orders could be passed for returning the jewellery belonging to the wife. It was also contended that the trial Court has erred in not directing the husband to return all the articles as per list attached with the application. According to the learned counsel, the finding of the learned trial Court in this behalf is also not tenablel. On the other hand, the learned counsel for the husband argued that no orders under section 27 could be passed in a petition under section 10 of the Act for judicial separation and such an order if any could be passed only in a petition under section 13 of the Act for divorce. In any case, argued the learned counsel, this application under section 27 of the Act should have been disposed of at the time of passing the decree and not subsequently and as such the provision for returning the articles, if any, could be made in the decree itself. Thus, argued the learned counsel, no separate order as such could be passed. It was further contended that as a matter of fact no jewellery was given in dowry as it was love marriage. In any case, whatever jewellery was brought by the wife was taken away by her. However, no orders could be passed under section 27 of the Act for return of the jewellery being the exclusive property or Istridhan of the wife. According to the learned counsel under section 27 of the Act, the only property belonging jointly to the parties could be ordered to be returned. In support of this contention, he refened to Vinod Kumar Sethi v. State of Punjab . 1982 9 Cr. L.T 149. (Full Bench), Bhai Sher Jang Singh I.A.S (Retired) v. Shrimati Virinder Kaur . 1978 80 PLR 737. and unreported judgment in Suresh Kumar… v. Smt. Saroj Bala…. . 1987-2 92 PLR 496., F.A.O No. 49-M of 1986, decided on 17.7.1987 by this Court.
7. I have heard the learned counsel for the parties and have also gone through the relevant evidence on record.
8. Section 27 of the Act reads as under:—
“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.”
9. From the language used therein, it is quite evident that any orders under, section 27 of the Act could be made at the time while passing the decree in a petition filed under the Act because such provision for return of the articles, if any, is to be made in the decree itself and, therefore, no separate order as such under section 27 is contemplated by this Act.
10. Apart from that, application under section 27 of the Act is a summary remedy and, therefore, that being so, provision to this effect should be made in the decree itself. Under Sub-section (i) of section 28 of the Act all the decrees made by the Court in any proceeding under the Act have been made appealable whereas the orders passed under section 25 or section 26 only have been made appealable under sub-section (2) if they are not interim orders. It is, therefore, clear that order under section 27 of the Act as such has not been appealable under section 28 of the Act. This also supports the view that the provision should always be made in the decree itself as envisaged under section 27 of the Act, no separate order is contemplated.
11. As regards the second contention that under section 27 of the Act, only the property presented at or about the time of marriage which may belong jointly to both the parties could be directed to be returned has also force. The conception of Istridhan that it is the property exclusively belonging to the wife has not been done away with the Hindu Marriage Act. This matter has been settled by the Supreme Court in Pratibha Rani v. Suraj Kumar . 1985 2 SCC 370, wherein it was held that it cannot be said that upon a woman entering the matrimonial home, the ownership of the Istridhan property becomes joint with her husband or his relations. In the Full Bench judgment of this Court in Vinod Kumar Sethi's case (supra), this Court took the view that the express words of Section 27 refer to the property which may belong jointly to both the husband and the wife. It nowhere says that all the wife's property belongs jointly to the couple or that Istidhana is abolished and she cannot be the exclusive owner thereof. The statute expressly recognises that property which is exclusively owned by the wife and the same is not within the ambit of Section 27 which is concerned only with that property which is presented at or about the time of the marriage, and belongs jointly to the couple.
12. It could not be disputed that the ornaments which are only meant for the use of the wife is her exclusive property and comes within the pureview of her Istridhan. It is, therefore, evident that under section 27 of the Act, no provision could be made in the decree for the return of jewellery which exclusively belongs to the wife as her Istridhan. Contrary view was taken by the Delhi High Court in Anju Bhargava… v. Rajesh Bhargava… . 1986 2 H.L.R 393., wherein the learned Judge tried to explain that under section 27 of the Act, the property forming subject matter of the case may belong jointly or may not belong jointly and, therefore, it includes both types of properties including the Istridhan of the wife. With due deference to the learned Judge, I do not subscribe to this reasoning. In any case, this case could not be used as a precedent because ultimately the learned judge observed in para No. 20 of the judgment that “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 21-B of the Act, that matrimonial matters should be disposed of expeditiously, to be implemented.”
13. Once it is held that no order could be passed with respect to the exclusive property belonging to the wife or the husband as the case may be the finding of the learned trial Court in this behalf that no jewellery was left by the wife with her husband will not be binding on the parties in any subsequent proceedings which may be taken by the wife.
14. After coming to the conclusion that the order under section 27 of the Act could only be passed while passing the decree and not separately as such the appeal of the husband would have been allowed but as regarding the articles directed to be returned, there is not much dispute between the parties. I do not feel that the order be set aside on this ground alone. Of course, the learned counsel for the wife-appellant contended that all the articles as per list attached with the application should have been directed to be returned but I do not find any force in this contention because on the appreciation of the entire evidence the learned Judge has rightly concluded that only articles the details of which have been given in the earlier part of this judgment are joint of the parties which the husband was directed to return to the wife. Moreover I do not find any infirmity in the said finding as to be interfered with in appeal. In this view of the matter, both the appeals fail and are dismissed with no orders as to costs.
R.M.S
Appeals dismissed.
Alert