URMILA RANI Vs. RAJKISHANGUPTA

JUDGEMENT

(1.) This appeal is preferred by Smt Urmila Rani, who was the respondent in hma Case No. 27 of 1980 on the file of the Additional District Judge, Delhi, the respondent herein, namely, Shri Raj Kishan Gupta filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955. In those proceedings the present appellant presented an application under Section 27 and another application under Section 25 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act'). The learned Additional District Judge set out three questions for his consideration but deleted the second one, and answered the two questions observing that the application under Section 27 of the Act cannot be taken into consideration for the reason stated in his judgment and that application was not maintainable. As regards the application under Section 25 of the Act, the court directed that application to be put up separately for fixing a date for evidence of the parties. Now the appellant questions only the dismissal of the application under Section 27 of the Act. The reasons given by the trial court for holding that application under Section 27 of the Act was notmaintainable, are (1 that the evidence of the parties on the divorce petition in which the application had been filed was already over, (2 that two years had a passed since the filing of the divorce petition and (3 that the application under section 27 of the Act had been presented at a very belated stage when the case was almost ripe for final arguments and pronouncement of judgment.

(2.) The learned counsel appearing for the appellant drew our attention to section 27 of the Act which states that the appellant has got a legal right to file an application in any proceeding under the Hindu Marriage Act and accordingly she has done so and, therefore, it is just and proper that the court gives a verdict on her application in respect of the properties listed in Annexure 'a' to this appeal, which properties she claims to be as Istridhan. Mr Harish N. Salve, the learned Senior Counsel appearing on behalf of the respondent, states that this application had been filed just to prolong the proceedings that too at the end of the trial of the divorce petition; that section gives only a discretion to the court to pass any order and that the appellant could have claimed these properties in the civil suit; she had already filed for alimony. None of the parties is in a position to state whether the appellant had made any claim over the properties in the civil suit filed claiming alimony. The judgment impugned herein shows that the civil suit was only in respect of the alimony and not otherwise. In our opinion, the trial court ought to have entertained the application of the appellant filed under Section 27 of the Act and disposed of the matter along with the divorce petition.

(3.) It is very unfortunate that the matter is pending before this court for almost a period of 11 years and the parties also have grown by 11 years by this time since the filing of this appeal. Under these circumstances, we are inclined to allow this appeal and accordingly allow the appeal and direct the court below, before which the divorce petition is pending, to take up the application filed by the appellant under Section 27 of the Act and dispose of the same at the time of the passing of the decree in the divorce petition. No costs. CMP No. 30607 of 1982 is allowed.