Ramchandra Kadam Vs. Sangeeta Balkrishna Kadam  INSC 710 (4 September
ANAND, K. VENKATASWAMI
4TH DAY OF SEPTEMBER, 1997 Present:
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.
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.
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.
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.
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
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.
have heard learned counsel for the parties and exclaimed the record.
trial court, while dealing with the question of relief under Section 27 of the
Hindu Marriage Act opined.
my opinion, the Court trying metrimonial causes, has no jurisdiction to deal
with the property rights of the parties.
I have declined to determining the rights of the parties to a suit".
Single judge, while dealing with this aspect of the case, observed.
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.
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".
learned Single Judgement then went on to hold:
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".
Division Bench while dealing with this aspect pf the matter held:
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
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.
27 of the Hindu Marriage Act reads thus:
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.
the course of her depositing, the respondent- wife had stated:
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.
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 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
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.
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.
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.