http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: BALKRISHNA RAMCHANDRA KADAM

       Vs.

RESPONDENT: SANGEETA BALKRISHNA KADAM

DATE OF JUDGMENT:       04/09/1997

BENCH: A.S. ANAND, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                THE 4TH DAY OF SEPTEMBER, 1997 Present:                Hon’ble Dr. Justice A.S. Anand                Hon’ble Mr. Justice K. Venkataswami A. S. Bhasme, and Manoj K. Mishra, Advs. for the appellant Ms. J.S.Wad, Adv. for the Respondent                          O R D E R      The following Order of the Court was delivered:                          O R D E R      This appeal  by special  leave calls  in  question  the judgement of  the Division  Bench of  the Bombay High Court, dated 30.4.1992  in letters  patent Appeal  No. 74  of 1991. The controversy  in this  appeal  is  limited  and  revolved around  the prayer of the respondent-wife for an order under section 27  of the Hindu marriage Act (hereafter the Act) in respect of the property held by the wife.      So far  as the  other matrimonial  disputes between the parties are  concerned, they  stand settled  and are not the subject matter of an issue before us in this appeal      The background  in which  the dispute  relating to  the grant of  relief under  section 27 of the Hindu Marriage Act arose, need a notice at this stage.      There were  matrimonial proceedings between the parties The respondent - wife had instituted proceedings in the City Civil Court at Bombay for a decree of judicial separation as also for  grant of  maintenance.   She also  claimed  relief under section  27 of  the Act  in respect  her jewellery and other property.     The appellant  -  husband  had  filed  a petition seeking  a decree  of  divorce  on  the  ground  of cruelty.   Both those  proceedings were  disposed  of  by  a common judgement,  dated 21st  April, 1987.   the appellants petition for  decree of  divorce  was  dismissed  while  the respondent’s petition  for judicial  separation was granted. Maintenance was  also held  payable to the respondent - wife from the data of the decree till the children of the parties ’attain the  age of  majority’.  The respondent filled first appeal and the learned single judge of the High Court partly allowed the  appeal and  directed the appellant - husband to pay  maintenance  from  the  date  of  presentation  of  the petition and  not  from  the  date  of  decree  only.    The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

appellant, on the basis of the decree of judicial separation obtained by the respondened, subsequently sought dissolution of marriage  by a decree of divorce on the ground that there had been  no resumption  of cohabitation between the parties after the decree of judicial separation. A decree of divorce was, accordingly,  granted by  the matrimonial  Court to the appellant on  27.2.1991.   The matrimonial  court,  however, rejected the  prayer of  the respondent  - wife  for  relief under Section  27 of  the Act.  The respondent preferred two appeals which  came to  be disposed of by the Division bench by the common judgement, dated 30.4.1992. while disposing of the appeals,  the Division  Bench, inter  -alia opined  that under Section  27 of  the Act, the Court had jurisdiction to pass an  order regarding  the property,  as mentioned in the section itself  and the  trial court,  it was  held  by  the Division Bench  that the  respondent-wife was entitled to an order under  section 27 of the Hindu marriage Act in respect of the  property claimed  by her in Exhibit ’A’ and made the order accordingly.      We have  heard learned  counsel  for  the  parties  and exclaimed the record.      The trial  court, while  dealing with  the question  of relief under Section 27 of the Hindu Marriage Act opined.      "In my  opinion, the  Court  trying      metrimonial    causes,    has    no      jurisdiction  to   deal  with   the      property  rights  of  the  parties.      Hence   I    have    declined    to      determining  the   rights  of   the      parties to a suit".      The learned  Single  judge,  while  dealing  with  this aspect of the case, observed.      "Therefore in  my view  it  is  not      possible to  hold that the wife had      established  that  those  ornaments      and the  property,  which  she  has      claimed  by  schedule  Exhibit  ’A’      were presented  to her at or at any      time of  marriage or  to show  that      this had  become the joint property      of   both    husband   and    wife.      Similarly, accordingly  to me there      is   nothing   to   establish   the      identify or  the co-relation of the      golden ornaments  contained in  the      admission of husband and which were      claimed by  the wife  and so called      admission of  the husband it is not      possible  to   hold  that   she  is      entitled to claim the return of any      property".      The learned Single Judgement then went on to hold:      "I corner  with  this  and  my  vie      there is  no evidence to prove that      the property  claimed by  the  wife      has presented  at or about the time      of marriage  and/or  was  belonging      jointly to husband and wife".      The Division  Bench while  dealing with  this aspect pf the matter held:      "As  regards  the  second  head  of      conclusion recorded  by the learned      single Judge,  the  present  appeal      will  have   to  be   allowed   and      accordingly succeeds.  We set aside

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

    the order  of  the  learned  Single      Judge whereby  he has held that the      matrimonial  Court  would  have  no      jurisdiction to  pass an  order  in      relation to  the remaining items of      the  property.    For  the  reasons      recorded by  us in  this judgement,      there shall be a decree in terms of      Exhibit ’A’  at  page  376  of  the      paper-book.     The  office   shall      accordingly draw  up  a  decree  in      these terms.      Section 27 of the Hindu Marriage Act reads thus:      "Disposal   of    property-In   any      proceedings this Act, the court may      make such  provision in 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."      On a  plain reading of the section.  it becomes obvious the Matrimonial Court trying any proceedings under the Hindu Marriage Act,  1955,  has  the  jurisdiction  to  make  such provision in  the decree  as it  deems just  and proper with respect to  nay property  presented "at  or bout the time of marriage" which  may belong  jointly to both the husband and wife.  This section provides an alternate remedy to the wife so that she can recover the property which is covered by the Section, by including it in the decree in the matrimonial proceedings, without having to take resources to the filling  of a  separate Civil  Suit  and  avoid  further litigation. In  the instant  case, we find that the wife had laid  claim  to  certain  items  of  jewellery  and  in  her deposition.   She had mentioned the items of jewellery which she had received "at or about the time of her marriage" and, particular, had  mentioned the items of jewellery which were given to her by her father at the time of the marriage.      During the  course of  her depositing,  the respondent- wife had stated:      "At the  time of  may  marriage, my      father had  presented  to  men  one      gold  necklace   weighing   4   1/2      totals,  one  gold  chain  weighing      about 1 1/2 totals, two gold finger      rings, one  gold nosering, one pair      of earring,  one budge,  two patlya      weighing 5 totals."      In her  deposition, she  had also mentioned about other items of  jewellery and the property given to the parties at or about  the time  of marriage.   The  appellant submitted, that the  Division bench  could not have held the respondent entitled by the wife in Exhibit ’A’ as there was no evidence to support  her claim  of the  wife had  not been  seriously disputed during  the  cross-examination  of  the  wife  and, therefore, the Division Bench rightly granted her claim.      In   our opinion,  the courts  have not  gone into  the question in  its  correct  perspective.    The  trial  court proceeded to  negative the  claim of  the respondent-wife by holding that  the court had no jurisdiction to deal with the property rights  of the  parties and  gave no opportunity to the parties  to lead evidence in support of their respective claims.   The finding  of the trial court clearly overlooked the provisions  of Sections  27 of  the Hindu  Marriage  Act which unmistakably  vests the  jurisdiction in  the court to pass an  order, at  the  time  of  passing  a  decree  in  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

matrimonial cause.  In respect of the property presented, at or about  the time  of marriage, which may belong jointly to the husband  and the  wife.   The learned  single Judge also fell in complete error while concurring with the view of the trial court  to say that there was no evidence on the record to show  that the property claimed by the wife was presented to her  at the  time of  her marriage.   The  learned single judge failed  to  take  notice  of  the  deposition  of  the respondent in  that behalf.  Moreover, the property which is given to the wife at the time of marriage only.  It includes the property  given to  the parties before of after given to the parties before or after marriage also.  So long as it is relatable to  the marriage.  the expression "at or about the time of  marriage" has  to be properly construed to includes such property which is given at the time of marriage as also the property  given before  or after marriage to the parties to become their "their property".  Implying thereby that the property  can   be  tracked  to  have  connection  with  the marriage.  All such property is covered by section 27 of the Act.      The High  Court fell  in complete  error in directing a decree to  be drawn up in favour of the respondent - wife in terms of  exhibit ’A’,  treating as if the respondent - wife had  established   through  evidence   that  the   jewellery mentioned therein had been given to her at or about the time of her  marriage which  may, whereas  the Division Bench was right in  holding that  order under  Section 27  of the  Act could  be  made  by  the  trial  court  while  dealing  with matrimonial proceedings, to form a part of the decree in the matrimonial proceedings,  but no  decree with  regard to the property could be made unless it was established be evidence that the  property was  covered by  Section 27  of the Hindu Marriage Act.   There  has been,  in our  opinion, no proper trial of  the issue  relating to  the grant  of relief under Section 27  of the  Hindu marriage  Act, as  claimed by  the respondent-wife.   We are,  therefore,  constrained  to  set aside the  judgement of all the courts below relating to the relief claimed  by the  respondent-wife under  Section 27 of the Hindu  Marriage Act  only and  remit the  matter to  the Family Court  to decide  that issue  in accordance with law. the parties  be  granted  opportunity  to  adduce  evidence, necessary to  establish their  respective cases  before  the Family court.   The Family Court shall, thereupon, draw up a decree, accordingly.   We  are conscious  that the decree of divorce has  already been  passed and  any decree  now to be made in  respect of  the property  under Section  27 of  the Hindu Marriage  Act would  be separate  decree, but  in  the facts and  circumstances of  the case, when such a decree is made, it  shall be  treated to  be a  part of  the decree of divorce already  granted  by  the  Family  Court  which  has becomes final.  Except holding that Section 27 of the Act is attracted to  the fact  situation in  the instant  case,  we express no  opinion on  the merits  of the claim laid by the wife and  disputed  by  the  husband.    the  claim  of  the respondent shall  be decided  independently  by  the  family Court, uninfluenced  by any  observations made by us herein. the appeal  succeeds to  the  extent  records  above.    The learned Presiding  Judge of the Family Court, Bandra, Bombay may either  decide the  issue himself  or assign  it to  any other court  of competent  jurisdiction under  him  for  its disposal  in  accordance  with  law  in  the  light  of  the observation made  by us.   We  request the learned Presiding Judge  of   the  Family   Court   to   decide   the   matter expeditiously.   There shall  however, tsbe,  no order as to costs so far as this appeal is concerned.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5