SHUKLA Vs. BRIJ BHUSHAN MAKKAR

JUDGEMENT

(1.) This is an appeal under S. 28 of the Hindu Marriage Act, 1955 (hereinafter called 'the Act'). The appellant was married to the respondent according to Hindu rites on 10th Oct., 1973. Two male children were born from this wedlock. Parties lived together up to 22nd Sept., 1976. On 23rd March, 1979, the appellant filed a petition for a decree of divorce under S. 13 (1) (ia) (ib) and for return of articles under S. 27 of the Act. The trial court by judgment dated 24th Oct., 1980 dissolved the marriage by a decree of divorce on the ground of desertion by the husband under S. 13 (1) (ib) of the Act. The appellant's claim under S. 27 of the Act for the return of the articles was dismissed. The present appeal is only directed against the order dismissing her claim under S. 27 of the Act. Schedule 'A' attached to the petition mentions the various properties presented to the appellant at the time of marriage. The respondent-husband denied the correctness of Schedule 'A'. He denied that the properties were presented to the appellant. It was also denied that those properties were in joint possession of the parties. The respondent alleged that jewellery worth Rs. 12,000 was presented from his side to the appellant in Wari besides few necessary apparels which were alleged to be in possession of the appellant. The trial court held that the value of the articles presented has not been proved satisfactorily and therefore it was not possible to decide as to what property was jointly owned by the parties which were given at the time of marriage and what was the value thereof. It was also observed that items such as entertainment expenses Rs. 8000, expenses on engagement ceremony Rs. 3500, expenses on Thaka Rs. 5000 and expenses on Shagun Rs. 3000 cannot be said to be the articles presented to the appellant-wife, at the time of marriage. Learned counsel for the appellant submits that the trial court has not given any finding that the articles mentioned in Schedule 'A' were not given; he claims that the respondent should be directed to return the articles and in the alternative to pay the value thereof. Learned counsel for the respondent on the other hand submits that there are no pleadings under S. 27 of the Act, that no dowry was given, that the respondent has not been in possession of any article, that the jewellery worth Rs. 12,000 presented by his side to the appellant in Wari has been in her possession, that only Rs. 1.25 paise and some sweets were presented. He further submits that before marriage it was settled that no jewellery would be presented by the appellant's parents and on account of this settlement none was presented. S. 27 of the Act is as under

(2.) Under S. 27 of the Act power is conferred upon the court to make orders for the disposal of the properties which were jointly owned by both the husband and the wife. The section does not make any reference to the properties belonging exclusively to either the husband or the wife. It must therefore be held that there Is no provision conferring any power on the court under the Act to pass any order with respect to the property owned by one of the parties. In the present case the pleading is that the property belongs to the appellant wife as the same was presented to her at the time of marriage. She has claimed the return of the said properties from the respondent. No direction can, therefore, be given under S. 27 of the Act or under 0. 7, R. 7 read with S. 151 of the Code. With due respect the view taken by Allahabad does not seem to be correct I do not agree with the new that a decree can be passed under S. 27 of the Act with regard to the property exclusively belonging either to the husband or the wife. The parties may seek remedy in ordinary civil courts but not in court under the Act for the return of individual property or its value thereof. The parties have referred to the entire evidence on record and on merits also I am of the view that the appellant is not entitled to any relief under S. 27 of the Act. The appellant wife has pleaded that the properties mentioned in Schedule 'A' were presented to her at the time of her marriage by her parents, friends and in-laws. This Schedule is in two sheets. First sheet has been marked as Ex. P. 1 while the second sheet has been marked as Ex. P-2. Ex. P-2 contains the list of articles presented to the appellant by her-in-laws. Ex. P-l gives the list of properties presented to the appellant by her parents. Some of the items are vague. Particulars of the jewellery, utensils, crockery, electric appliance have not been given. While in the witness box, the appellant stated that these articles were given to her at the time of marriage by her parents and her in-laws. Although there is no pleading but she deposed that those articles were given to her and to the respondent jointly. She has given the details of jewellery. According to her it consisted of two necklaces, two pairs of ear-rings, two finger rings, locket with pendant, eight bangles, two karas and two gents rings. She further deposed that the articles mentioned in Exs. P-l and P-2 were in possession of the respondent, that Televista T. V. set was purchased two or three days before marriage in the name of the respondent's father. As regards electric appliances she deposed that it consisted of one electric iron, one hot plate, one electric motor with shaker and grinder, one table lamp, electric heater and one Rallis table fan. In cross-examination she denied that she was in possession of those articles. She could not tell the particulars of the shop from which the jewellery was purchased. She could not give the amount spent by her parents for the purchase of jewellery. She is not aware if her father was assessed to income-tax. She is alleged to have deposited Rs. 10,000 in a bank but she does not remember the name of the bank. She was not even possessed of the pass book. She was also not aware if her father had a bank account at or before the time of marriage. She further deposited that the receipts, vouchers and cash memos regarding the articles purchased at the time of her marriage were handed over to the respondent's brother and his brother-in-law Dr. Suraj Parkash. She was not in a position to tell the value of any article. She denied that the articles mentioned in Schedule were not given at the time of her marriage. P. W. 2 Smt. Janak Juneja deposes that the jewellery weighing 300 grams and other articles were presented at the time of marriage, that the respondent's parents presented one gold set at the time of ring ceremony and six gold sets at the time of marriage. The witness is related. The appellant is her maternal uncle's daughter. In cross- examination she deposed that the weight of I he gold jewellery presented by the respondent's parents was about 500 grams. Dr. Ramesh Kumar Batra, Public witness 3 is the appellant's brother. He also deposed that the articles were presented at the time of marriage, and the jewellery was about 300 grams, that the respondent's parents presented seven gold sets, 16 gold bangles, that the appellant did not bring any article along with her when she came back from Madras. In cross-examination he deposed that they did not prepare any list of jewellery and other articles presented by them at the time of marriage. He denied the suggestion that jewellery was not presented and that the jewellery presented by respondent's parent was brought by the appellant when she came from Madras. Baldev Raj Public witness 4 father of the appellant deposed that he presented 30 tolas of gold jewellery besides other articles at the time of marriage that he handed over the vouchers and receipts for the purchase of the various articles to respondent's brother Om Parkash and his sister's husband Dr. Suraj Parkash, a television set was presented and the licence was got issued in the name of respondent's father, that five gold sets were presented to the appellant by the respondent's parents in Wari. In cross-examination he denied the suggestion that the respondent's parents presented only one gold set and not five gold sets and two diamond sets. He admitted that he did not take any dowry on the marriage of his son Harish Kumar. He denied that he did not present any jewellery etc. at the time of marriage of the parties. As regards his income he deposed that it was Rs. 15,000 to Rs. 20,000 a year at the time of the marriage of the appellant. He admitted that he had not kept any account spent on the purchase of articles. He did not remember from which particular shop, the jewellery or gold was purchased. He could not give the names of any shop from where the furniture and other articles were purchased. Public witness 5 and Public witness 6 did not depose about the jewellery. R.W. 1 respondent-husband has deposed that the appellant left his house at Madras on 22nd September, 1976 when he was not present at house, that before marriage it was settled that no dowry would be presented by the appellant's parents and they did not present any dowry whatsoever in the marriage. He denied that any article mentioned in Sch. 'A' i.e. Ex. P-l was presented at the time of marriage. On the other hand he deposed that his parents presented only one gold set and that its value was Rs. i2,000 and that the same has been in possession of the appellant. In cross-examination he admits that his servant Rama was present when the appellant left Madras, that his servant had only told him that the appellant had left with her parents and that the servant did not tell anything else. R.W. 2 Om Parkash brother of the respondent deposed that no article of dowry as mentioned in Ex- P-l was presented to the respondent by the appellant's parents, that his parents did not present the articles mentioned in Ex. P-2 to the appellant but they presented only one gold set and some clothes at the time of marriage, He futher deposed that no voucher, receipt and cash memo, was given to him or to his sister's husband Dr. Suraj Parkash at any time. In cross-examination he deposed that their relations with their brother-in-law Dr. Suraj Parkash were not cordial. He denied that the articles mentioned in Ex. P-l were handed over to him and to his sister's husband Dr. Suraj Parkash or to the appellant and the respondent.

(3.) After going through the entire evidence. I find that the income of the appellant's father at the time of marriage was about Rs. 15,000 to Rs. 20,000. He has not disclosed the source of investment tor the purchase of the articles of the dowry. He has not filed any account regarding the various purchases. Receipts and vouchers of the various purchasers are alleged to have been delivered to the respondent's relations but it seems unnatural that they were given to the respondent or to his relation. The appellant's fathel is a businessman. He has not disclosed the amounts spent on marriage or on the purchase of the various articles alleged to have been given in jewellery. The evidence on record on behalf of the appellant is of interested persons and no reliance can be placed in the absence of Other available evidence. Moreover the appellant's father did not take any dowry in the marriage of his son and the case of the respondent is that before marriage it was settled that no jewellery would be presented by the appellant's father. It is, therefore, probable that no dowry was agreed to be given at the time of marriage. It is strange that the appellant or her witnesses do not remember the names of the shop keepers from where the various items of jewellery, furniture and other articles were purchased. It seems unreasonable that all the persons have forgotten the names of jeweller from whom they purchased the jewellery or got the name fabricated. On the evidence on record it must be held that no article as alleged was given by the appellant's parents in dowry. As regards one gold set of the value of Rs. 12,000 admittedly presented by the respondent's parents to the appellant, it is submitted by the learned counsel for the appellant that the same is with the respondent and therefore he should be directed to return to the appellant or in the alternative its value. According to the respondent only one set was given. Ordinarily the jewellery, presented to the appellant ought to be in her possession. Nothing has been deposed by the appellant as to where the jewellery was kept after the marriage. The respondent has deposed that when the appellant left Madras in his absence from the house only the servant and his brother were there. Learned counsel for the appellant states that the servant and the brothers of the respondent have not been produced and therefore adverse presumption must be drawn against the respondent to the effect that the appellant did not bring with her jewellery set. No presumption can be drawn against the respondent. When the appellant was leaving the house at Madras it is unbelievable that the servant or the brother of the respondent would check the attache case of the appellant. The respondent has deposed that he was not in possession of the gold set presented to the appellant. At best this would be a case of oath against oath, and as the onus lay upon the appellant, she should fail. I, therefore, hold that the appellant wife is not entitled to any direction under S. 27 of the Hindu Marriage Act The appeal has no merit and the same is dismissed with no order as to costs.