Chand Daga Vs. Rameshwari Bai  Insc 177 (16 March 2005)
Singh & S.B. Sinha
out of S.L.P. (Civil) No.8339 of 2004] S.B. SINHA, J:
of the judgment and order dated 20.1.2000 passed by the High Court of Madhya
Pradesh falls for consideration in this appeal which arises out of a judgment
and order dated 12.3.2004 passed in C.R. No.110 of 2004, whereby and whereunder
the revision application filed by the Appellant herein from an order dated
11.9.2003 passed by the First Additional District Judge, Ratlam in execution of
a transferred decree from Family Court, Bombay, was dismissed.
PROCEEDINGS BETWEEN THE PARTIES:
application for judicial separation, maintenance and return of
ornaments/property etc. was filed by the Respondent against the Appellant
herein before the Family Court at Bombay purported to be in terms of Section 10 of the Hindu Marriage Act, 1955.
An alternative prayer was made therein to the effect that if the ornaments were
not returned, a decree for a sum of Rs.3,25,655/- together with interest
thereon from the date of filing of the application may be passed. In the said
proceeding, the Appellant herein raised, inter alia, a contention that the
marriage between the parties was a nullity. By a judgment and order dated
9.10.1995, the Family Court allowed the said application in part by granting a
decree of judicial separation, maintenance and return of the ornaments. It was,
however, directed that in the event the ornaments were not returned the
Respondent would be entitled to the value thereof, namely, a sum of
Rs.3,25,655/-. However, no decree of interest on the said sum was passed.
Family Court directed:
respondent is also directed to return all the articles mentioned in Exh.A-1
attached to the petition comprising of articles described in Clause A to G
totaling to Rs.3,25,655/-. If he fails to return the articles mentioned therein
as far as possible within one month of the date of this decree, he shall pay
the value thereof mentioned against the said articles not returned as mentioned
in the list." The Appellant herein preferred an appeal thereagainst before
the High Court. The Respondent filed a cross-objection in the said appeal as
regard non-grant of interest on the said sum. By a judgment and order dated
20.1.2000, the High Court set aside the decree of judicial separation upon a
declaration that the marriage between the parties herein was null and void.
decree as regard grant of maintenance to the Respondent herein as also her
daughter was, however, upheld. The High Court observed :
regards the claim of the Respondent for return of her ornaments and other
valuable articles, we find that the Trial Court has taken into consideration
both oral and documentary evidence in that respect and arrived at the
conclusion that the Respondent wife is entitled to get back all the Ornaments
and Articles mentioned in list Exhibit 'A' to the petition or in the
alternative price thereof. We do not see any reason to interfere with that,
except the fact that in case the said ornaments or articles are not returned by
the Appellant to the Respondent, he will have to pay interest on the price
thereof which has been quantified at Rs.3,25,655/-. In our opinion interest at
the rate of 9% p.a. on the said amount from the date of the decree of the Trial
Court i.e. 9.10.1995 will be proper and reasonable interest." (Emphasis
supplied) However, it was directed :
however, maintain the decree of the Trial Court in all other respects. We further
partly allow the cross- objections of the Respondent wife to the extent of
granting interest at the rate of 9% p.a. on the price of Rs.3,25,655/- from the
date of the decree of the Trial Court i.e. 9.10.1995" The Appellant
herein, thus, was not directed to return the ornaments or articles to the
Respondents within a time frame. The only direction was to pay interest on the
price thereof from the date of the decree of the Trial Court i.e. 9.10.1995
only in the event of the Appellant's failure to return the same to the
applications for grant of special leave to appeal against the said judgment of
the High Court were filed by the parties herein. Leave having been granted by
this Court, the appeals were marked as Civil Appeal Nos.1774 and 1775 of 2001.
may, however, notice that in Special Leave Petition (Civil) No.8195 of 2000
giving rise to Civil Appeal No.1774 of 2001, a limited notice was issued by
this Court confining it to the question as to whether 'the wife is entitled to
maintenance after the court held that the marriage was nullity'.
meanwhile, the Respondents herein initiated an execution proceeding. The
Appellant by a letter dated 15.3.2000 called upon the Respondent herein to come
personally to Ratlam to get all the ornaments and other articles mentioned in
the list 'A' of the order of the Family Court dated 16.12.1995. In the said
letter, it was stated :
you will not come within 15 days after receipt of this letter otherwise you
should be responsible for not receiving the ornaments and articles mentioned in
the order/judgment. You will not be entitled to claim the amount with interest
mentioned as a price of the ornaments and articles described in the list."
Together with the said letter a Demand Draft of Rs.2,000/- drawn in the name of
Smt. Rameshwari G. Lakohitia was annexed. In response to the said letter, the
Respondent herein only returned the demand draft contending that the same
should be drawn up in the name of Smt. Rameshwari R. Daga.
Appellant thereafter filed an application before the Executing Court expressing his intention to return
the ornaments on 31.3.2003 whereupon the matter was directed to be placed on
1.4.2003, on which date an objection was raised by the Respondent as regard,
weight as also quality of the ornaments produced in court. The matter was
directed to be placed on 29.4.2003, on which date the Respondent having not
been accompanied by her advocate or male companion and allegedly having regard
to the safety of the ornaments stated that she would like to come to court on
the next date for the said purpose. Ultimately the ornaments were delivered to
the Respondent on 2.7.2003. The quality and quantity of the ornaments, thus,
were not disputed.
the same, the learned Family Court, keeping in view the judgment and order
dated 20.1.2000 passed by the High Court, directed payment of interest on the
aforementioned sum of Rs.3,25,655/- by the Appellant from the date of the
original decree i.e. 9.10.1995.
Appellant herein being aggrieved by and dissatisfied with the said order filed
a revision application before the High Court which by reason of the impugned
judgment dated 12.3.2004 was dismissed by a learned Single Judge holding:
my considered opinion, the learned A.D.J. had not committed any error. It is
noteworthy that Bombay High Court had not fixed any date by which ornaments and
other articles had to be returned. As per decree interest was payable since the
date on which the Family Court had decreed the case i.e. from 9.10.1995. Thus,
the liability to pay interest had already commenced since 9.10.1995. Simply
because the applicant had given a notice of 15 days on 15.3.2000 to the
non-applicant to come and take her ornaments and other articles, the liability
to pay interest under the decree of the Bombay Court could not be put into abeyance. Executing Court had to
execute the decree as the same was, it could neither add anything to it or substract
anything from it" The Appellant is, thus, before us.
adverting to the rival contentions raised at the Bar, we may notice that the
aforementioned two civil appeals filed by the parties herein came up for
hearing and by a judgment and order dated 13.12.2004, both the appeals were
dismissed. The said judgment has since been reported in 2004 (10) SCALE 391.
Court in its aforementioned judgment and order dated 13.12.2004 upon
interpreting Section 25 of the Hindu Marriage Act, 1955 upheld the judgment and
decree passed by the learned Family Court holding :
is well known and recognized legal position that customary Hindu Law like
Mohammedan Law permitted bigamous marriages which were prevent in all Hindu
families and more so in royal Hindu families. It is only after the Hindu Law
was codified by enactments including the present Act that bar against bigamous
marriages was created by Section 5(i) of the Act.
into consideration the present state of the statutory Hindu Law, a bigamous
marriage may be declared illegal being in contravention of the provisions of
the Act but it cannot be said to be immoral so as to deny even the right of
alimony or maintenance to a spouse financially weak and economically dependant.
It is with the purpose of not rendering a financially dependant spouse
destitute that Section 25 enables the court to ward maintenance at the time of
passing any type of decree resulting in breach in marriage relationship."
However, as regard the matter relating to grant of interest it was observed :
are told that the order of the High Court in so far as it directs the husband
to return ornaments of the wife or its equivalent value in the sum of Rs.3,25,655/-
with 9% per annum, is a subject-matter of a separate appeal. We, therefore,
express no opinion with regard to the same."
Kumar Jain, the learned counsel appearing on behalf of the Appellant would
contend that having regard to the judgment and order passed by the High Court
dated 20.1.2000, the Executing Court, and subsequently the High Court,
committed a serious error of law in directing payment of interest. The learned
counsel submitted that in view of the fact that no time was fixed for return of
the ornaments, and the Appellant having offered the same to the Respondent
within a reasonable time, no interest on the said sum of Rs.3,25,655/- was
S.C. Birla, the learned counsel appearing on behalf of the Respondent, on the
other hand, would contend that the reliance placed by the Appellant herein on
the letter dated 15.3.2000 is misconceived as no such letter was issued.
According to the learned counsel only a demand draft dated 21.2.2000 was sent
to the Respondent, which was returned by her in terms of a letter dated
13.4.2000 stating that the same should have been drawn up in the name of Smt. Rameshwari
would submit that in view the judgment and order of the High Court dated
20.1.2000 as also the judgment of this Court dated 13.12.2004, the dispute
between the parties had attained finality and, thus, the same could not have
been reopened in the executing proceeding and in that view of the matter, the
High Curt has rightly dismissed the revision application filed by the Appellant
judgment, as is well known, is not to be read as a statute. A judgment, it is
trite, must be construed upon reading the same as a whole.
the said purpose the attendant circumstances may also be taken into
consideration. [Islamic Academy of Education and Another vs. State of Karnataka and Others (2003) 6 SCC
697, M/s Zee Telefilms Ltd. & Anr. Andhra Bank Ltd. (2004) 11 SCC 672] The
Family Court in its judgment and order dated 9.10.1995 did not grant any
interest on the said sum of Rs.3,25,655/-. An alternative, decree was only
passed to the effect that the Respondent would be entitled to a sum of Rs.3,25,655/-
in the event, the ornaments are not returned to the Respondent by the Appellant
decree in the nature of mandatory injunction directing a party to the suit to
deliver certain movable property in favour of the Appellant cannot be equated
with a decree for payment of a specified sum.
High Court moreover did not allow the cross objection filed by the Respondent
herein in its entirety. It was allowed only in part.
question of the Appellant's paying the price of the ornaments' value at Rs.3,25,655/-
together with interest @ 9% p.a. from the date of the decree of the Family
Court dated 9.10.1995 could have been the subject- matter of the Execution
Petition only if the Appellant did not return the same to the Respondent within
a reasonable time. The High Court did not interfere with the judgment of the
Family Court to the effect that the Respondent was entitled to get back all the
ornaments except the fact that in case the said ornaments or articles are not
returned by him, he will have to pay interest on the price thereof. Thus, the
question of payment of interest would have arisen only in the event of the
Appellant's failure to return the ornaments to the Respondent.
have noticed hereinbefore that whereas the Family Court directed the Appellant
herein to return the ornaments within one month from the date of the decree,
and only on his failure to do so he was made liable to pay the value thereof.
The High Court while upholding that part of the decree, did not fix any time therefor.
In absence of any direction having been issued by the High Court upon the
Appellant to return the ornaments within the time specified therefor, the
ornaments could be returned by him to the Respondent within a reasonable time.
The order of the High Court, therefore, was a conditional one. The Appellant
herein offered delivery of the ornaments to the Respondent by his letter dated
15.3.2000. The receipt of the said letter has been disputed before us but from
a scrutiny of the records it does not appear that the said contention was
raised before the courts below. No such contention had been raised before the
High Court. In fact the High Court wrongly proceeded to hold that the Appellant
could not have avoided his liability merely by giving the said notice of 15 days
on 15.3.2000. Issuance of the said notice by the Appellant as also the contents
thereof, therefore, had not been denied or disputed by the respondent.
High Court moreover misconstrued and misinterpreted its earlier judgment dated
20.1.2000. It failed to notice that the direction upon the Appellant to pay
interest was subject to the condition that if he did not return the ornaments,
the direction to pay interest on the aforementioned amount of Rs.3,25,655/-
would operate, and it was thus not an unconditional decree. If the Appellant
had fulfilled the conditions specified in the judgment, the question of his
incurring the liability to pay the price of the ornaments specified by the High
Court did not arise.
the direction upon the Appellant to return the ornaments is not concomitant
with the order to pay the price thereof. The second direction was, thus, a
conditional one which comes into operation only upon non- fulfillment of the
first direction. Thus, by reason of the first direction no decree to pay
interest on a specified sum was passed. In that view of the matter, if no
occasion had arisen for paying the aforementioned sum of Rs.3,25,655/-, the
question of paying any interest thereupon would not arise.
the Family Court nor the High Court had directed payment of any interest on the
ground of deliberate and wrongful withholding of the ornaments by the
Appellant. Even on the said count, no interest could have been directed to be
paid but what could be directed was payment of compensation.
this Court in its earlier judgment had no occasion to consider the effect of
the judgment dated 9.10.1995 passed by the Family Court, Bombay and the judgment dated 20.1.2000
passed by the High Court of Bombay, the same did not attain finality.
are, therefore, of the opinion that the judgment of the High Court is not
sustainable which is set aside accordingly. The appeal is allowed.
in the peculiar facts and circumstances of the case, we direct the Appellant to
bear the costs of the Respondent in this appeal which is quantified at Rs.10,000/-.
The said sum shall be paid to the Respondent by the Appellant within four weeks