AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 09.05.2018
Delivered on 14.05.2018
First Appeal (Misc.) No. 53 of 2015
(Arising out of judgment and decree dated 30.01.2015 of the Additional District Judge,
Sarangarh in Civil Suit No. 4A/2015)
Smt. Priyanka W/o Prince Agrawal, D/o Anil grawal Aged About 25 Years R/o
Champa, Tahsil And District Janjgir-Champa, Chhattisgarh.
—- Appellant
Versus
Prince S/o Pawan Kumar Agrawal Aged About 26 Years R/o Village Sarangarh,
Raigarh Road, Sarangarh, Tahsil-Sarangarh, District- Raigarh, Chhattisgarh,
Chhattisgarh
—- Respondent
And
First Appeal (Misc.) No. 54 of 2015
Smt. Priyanka W/o Prince Agrawal, D/o Anil Agrawal Aged About 25 Years At
Present R/o At Champa Tahsil And District Janjgir Champa, Chhattisgarh.
—- Appellant
Versus
Prince S/o Pawan Kumar Agrawal Aged About 26 Years R/o Village Sarangarh,
Raigarh Road, Sarangarh, Tahsil-Sarangarh, District Raigarh Chhattisgarh,
Chhattisgarh
—- Respondent
For Appellant : Smt. Nirupama Bajpai, Advocate
For Respondent : Shri Aditya Bharadwaj, Advocate
Hon’ble Shri Sharad Kumar Gupta, Judge
C.A.V. JUDGMENT
1. As these appeals arise from a single judgment, they are being
disposed off by this common judgment.
2. In these appeals, the challenge is levied to the judgment and decree
dated 30.01.2015 of the Additional District Judge, Sarangarh Distt. Raigarh,
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Chhattisgarh in Civil Suit No. 4A/2015 to the extent that allegedly he has
given the finding that appellant had subjected respondent with cruelty, and
she is not entitled to get the property / Stridhan described in Schedule A of
the plaint.
3. This is admitted by respondent that name, address and other
particulars shown in the title of the petition are correct, both the parties are
hindu and governed by Mitakshara Branch of Hindu Law, marriage of both
the parties was solemnised on 11.05.2011 in accordance hindu religion and
Marwadi rites and rituals at Sarangarh. She is living in her maternal house
since 28.08.2011. She had lodged the report in police station Sarangarh
regarding dowry harassment. A case was registered against him and his
family members under Section 498A IPC.
4. In brief, the appellant’s case is that seven lakh rupees cash, ornaments
of silver and gold, clothes and other properties were given to respondent as
dowry which are shown in Article A. After the marriage respondent and his
family members started to harass her on account of dowry. On 29.09.2011,
he ousted her.
5. In brief, the respondent’s case is that this Court has no jurisdiction to
order of returning back of Stridhan. Appellant was not taking interest in
domestic work and frequently used to go in her maternal house. On
28.08.2011 she voluntarily went in her maternal house.
6. After conclusion of the trial of Civil Suit No. 4A/2015 filed by appellant
and Civil Suit 12A/2014 filed by respondent, the trial Court disposed them off
by aforesaid common judgment. Being aggrieved, appellant preferred these
appeals.
7. Smt. Nirupama Bajpai, counsel for the appellant vehemently argued
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that in Civil Suit No. 4A/2015, divorce granted to appellant but the trial Court
given the finding that appellant treated respondent with cruelty. Stridhan is
her exclusive property, but trial Court committed error by not ordering for its
return to appellant. Thus, the aforesaid judgment and decree may be set
aside on the point of cruelty and Stridhan.
8. Shri Aditya Bharadwaj, counsel for the respondent argued that the trial
Court had not given any finding about cruelty committed by appellant,
Stridhan is out of purview of Section 27 of the Hindu Marriage Act, 1955
(hereinafter called as ‘ the Act of 1955’), thus, appeals may be dismissed.
9. First and foremost question for adjudication before this Court is that,
whether the trial Court has committed gross illegality while allegedly giving
the finding that appellant had committed cruelty with respondent.
10. In the aforesaid judgment, trial Court had not given any finding
regarding alleged cruelty committed by appellant. The trial Court had given
the finding that appellant had deserted respondent which is not challenged
by appellant.
11. Looking to the above mentioned facts and circumstances, this Court
finds that the trial Court has not given finding that appellant allegedly had
committed cruelty with respondent, thus, no question arises about
committing gross illegality by the trial Court regarding this matter.
12. Second question for consideration before this Court is that whether the
appellant is entitled to get property/ Stridhan described in Schedule A from
respondent in aforesaid divorce petition filed by her.
13. It would be pertinent to mention the provisions of Section 27 of the Act
of 1955, which reads as under:-
“27. Disposal of property – In any proceeding under this Act, the Court
4may 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.”
14. In Neel Kanth Jaiswal v. Manju Lata Jaiswal (Smt.)
{AIR2011Chh6} this Court has held in para 15 16 as under:-
“15. The scope of Section 27 of the Hindu Marriage Act, 1955 is limited
and only order relating to properly presented at or about the time of
marriage may he made by the Court dealing with the issue triable
under the Hindu Marriage Act, 1955 belonging jointly to both the
husband and the wife. The claim of the respondent in the pesent suit
shows that she has filed the suit for recovery of Stridhan belonging to
her and owned by her. Provisions of Section 27 of the Hindu Marriage
Act, 1955 does not provide the remedy for recovery of property other
than the property presented at or about time of marriage belonging to
husband and wife therefore, even otherwise independent suit or claim
for recovery of Stridhan was not competent in the divorce proceedings.
By filing present suit respondent has claimed the return of Stridhan
which is maintainable in accordance with Clause (c) of Explanation 2 of
Clause 1 of Section 7 of the Family Court Act, 1984, which reads as
follows:
Section 7. (1)**** (a)****(b)*******
[Explanation : The suits and proceedings referred to in this sub-section
are suits and proceedings of the following nature, namely:
(a)*****************(b)*******************
(c) a suit or proceeding between the parties to a marriage with respect
to the property of the parties or of either of them;
(d)**********(e)**********(f)**********(g)******************
16. In the light of aforesaid provisions the Court dealing with the case
under Hindu Marriage Act, 1955 was not competent to decide the issue
relating to return of Stridhan in terms of Section 27 of the Hindu
Marriage Act, 1955.”
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15. In the case in hand AW1 Priyanka Mittal does not say clearly and
strongly in her statement given on oath that alleged property/ Stridhan
mentioned in Article A shall be returned to her from respondent though the
trial Court has wrongly mentioned in para 51 of the impugned judgment
regarding this matter. She also does not say clearly and strongly that alleged
property / Stridhan belongs jointly to both her and him.
16. Looking to the aforesaid judicial precedent laid down in Neel Kanth
Jaiswal (supra) it is unequivocal that provisions of Section 27 of the Act of
1955, does not provide remedy for recovery of the property other than
property presented at or about time of marriage belonging to husband and
wife. In other words, a family Court while dealing with the matter under the
Act of 1955, is not competent to order for returning back of Stridhan in terms
of Section 27 of the Act of 1955. For returning back the Stridhan an
independent suit would lie in accordance with the provisions of Clause (c) of
Explanation 2 of Clause 1 of Section 7 of the Family Courts Act, 1984.
17. Looking to the above mentioned facts and circumstances, this Court
finds that, appellant is not entitled to get property/ Stridhan described in
Schedule A from respondent in aforesaid divorce petition filed by her.
18. After the complete appreciation of evidence discussed herebefore, this
Court finds that both the appeals are devoid of merits, thus, the order of the
trial Court relating to the return of alleged property / Stridhan is affirmed as to
above extent. The appeals are dismissed.
19. Appellant shall bear her own costs as well as costs of respondent.
Sd/-
(Sharad Kumar Gupta)
JUDGE
kishore
