C.K. Abdul Rehim, J.
1. This writ petition is filed against that part of the judgment of the Family Court, Palakkad in O.P.No.658/2006 dated 23.2.2008 whereby the Family Court refused to consider the claims raised in I.A. Nos.676/2006 and 1515/2006, while allowing the application for divorce.
2. Facts required for disposal of the writ petition are as follows. The petitioner and respondent are wife and husband respectively. Marriage between the petitioner and the respondent was solemnized on 3.9.2003 as per the rituals and custom prevailing in the Hindu community. Petitioner was provided with an amount of Rs.1,00,000/- and 26 sovereigns of jewellery. The respondent misappropriated the said amount and also a chain weighing 5 sovereigns and a bangle weighing 1 sovereign. Due to the cruelty and torture at the residence of the respondent demanding more money and jewellery, the petitioner had been taken back to her parental home on 4.12.2003. Thereafter the petitioner filed O.P.No.658/2006 seeking dissolution of the marriage by and between the parties, on the ground of cruelty. Petitioner also filed an application for interim maintenance, which was allowed directing the respondent to pay the same at the rate of Rs.750/- per month, which according to the petitioner, was not complied with by the respondent. Though the respondent was given sufficient time by the Family Court, the respondent was adamant that he will not pay. Therefore, the Family Court struck off the defence of the respondent.
3. It is contended that, while so, the petitioner has filed I.A. Nos.676/2006 and 1515/2006 for return of money and gold ornaments misappropriated by the respondent or to pay its value. Since the defence of the respondent was struck off, the petitioner's evidence was recorded on 15.10.2007 by filing proof affidavit. The Family Court entertained a doubt as to whether in a petition for divorce an interim application for return of money and jewellery would be maintainable. Thereafter petitioner was heard and as directed by the Family Court, judgments relied on was also provided. The case was reserved for judgment to 17.10.2007. On 17.10.2007 the petitioner was not present before the court and therefore the original petition as well as the interlocutory applications were dismissed for default on the said date, vide separate orders. Consequent to which, the petitioner filed application to restore the original petition on 24.10.2007, a copy of which is produced as Ext.P1. The Family Court allowed Ext.P1 and restored the original petition and thereafter allowed the application for divorce by judgment dated 23.2.2008, as evident from Ext.P2. But however the Family Court has not restored I.A. Nos.676/2006 and 1515/2006. It is thus aggrieved by the order of the Family Court refusing to restore the interlocutory applications and to grant relieves thereunder, this writ petition is filed.
4. Heard learned counsel for the petitioner.
5. In spite of the receipt of notice, there is no appearance for the respondent. The sole question remains to be considered is whether the petitioner is entitled to get any relief in the interim applications referred above, under Section 27 of the Hindu Marriage Act. Section 27 reads as follows:
27. Disposal of property.-- In any proceeding under this Act, the Court may make such provisions in the decree as it deems just and 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.
6. On a plain reading of Section 27 what is discernible is that, in an already instituted proceeding under the Act, the court is vested with power to make such provisions in the decree as it deems just and 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. Therefore, in our view Section 27 can be invoked by the Family Court only if there is a decree sought for under any of the provisions of the Hindu Marriage Act and where any present received by the parties at or about the time of marriage and which may belong jointly to both the husband and the wife are entitled to be adjudicated on the said application filed by the parties before the court. Thus the predominant ingredient of the said provision is that, the property must belong jointly to both the husband and the wife. Here in this case the properties that were sought to be returned are, even according to the petitioner, an amount of Rs.1,00,000/- and 6 sovereigns of jewellery given to the petitioner at the time of marriage. Petitioner is not having a case that at any point of time the money as well as the jewellery did acquire the characteristics of a joint property belonging to the petitioner and the respondent. Therefore, question is whether in an application for divorce the petitioner can claim properties belonging to her, by invoking the provisions of Section 27 of the Hindu Marriage Act, 1955.
7. The Family Court, after appreciating the evidence of Pws.1 and 2 with respect to the amount of Rs.1,00,000/- and the jewellery provided to the petitioner at the time of marriage, held that the petitioner is not entitled to such a relief in the proceeding for dissolution of marriage, for more than one reason. Both interlocutory applications were dismissed for default on 17.10.2007 i.e. at the date on which the original petition was dismissed. But the petitioner has sought to restore the original petition and accordingly the original petition alone was restored to file and therefore the relief sought for in the said interlocutory applications cannot be granted. That apart it was also held by the Family Court that the relief claimed in the said interlocutory applications are substantive reliefs which the petitioner ought to have claimed in the original petition or by a separate original petition. Therefore, it was held that, Section 27 of the Hindu Marriage Act has no application since the relief claimed in the interlocutory applications was not with respect to any of the properties jointly belonging to the spouses. However, the petitioner was provided with the liberty to file separate original petition claiming the money and jewellery.
8. Learned counsel for the petitioner has invited our attention to the judgment of Bombay High Court in Nandini Sanjiv Ahuja v. Sanjiv Birsen Ahuja [AIR 1988 Bombay 239] to canvass the proposition that the property covered by Section 27 includes property received individually by a spouse as present at or about the time of marriage and which has come to be as a way of life in their joint use. So also the judgment of Madhya Pradesh High Court in Smt.Nirmala Gupta v. Ravendra Kumar @ Munna Gupta [AIR 1996 Madhya Pradesh 227] is brought to our notice for canvassing the very same proposition. A judgment of the Allahabad High Court in Kamta Prasad v. Smt.Om Wati [AIR 1972 Allahabad 153] was pressed into service to contend that the jewellery received by the petitioner at the time of marriage can be adjudicated upon by invoking Section 27 of the Hindu Marriage Act. Learned counsel has also invited our attention to the judgment of the Punjab and Haryana High Court in Smt. Surinder Kaur v. Madan Gopal Singh [AIR 1980 Punjab and Haryana 334]. There also the question considered by the court was with respect to the nature of property that can be adjudicated by the court invoking Section 27 of the Act. Apart from the above decision, the learned counsel also invited our attention to the judgment of the Punjab and Haryana High Court reported in Suraj Prakash v. Mohinder Pal Sharma reported in [2005(2) KLT S.N.93 C.No.113]. There also the nature of the power that can be exercised by the court was the consideration. In all the above judgments, except the judgment of the Allahabad High Court in Kamta Prasad (supra), the question considered is with respect to adjudication of joint property belonging to the parties to the marriage. The courts have held that by a common user of certain properties and house hold articles even if they were received as presents, within a reasonable time before and after the marriage and used commonly for the benefit of both, can be taken as joint property belonging to the husband and wife and can be adjudicated under Section 27 of the Act. However, in Kamta Prasad the Allahabad High Court held that Section 27 can be invoked with respect to a property which may belong either solely to the husband or solely to the wife and further that the power in the nature of things is inherent in the legal proceedings which properly arise under the Hindu Marriage Act and therefore, Section 27 does not exclude the general power of the court to pass an appropriate decree in regard to the property belonging exclusively to either the husband or wife. 9. But we respectfully disagree with the judgment of the Single Judge of the Allahabad High Court in Kamta Prasad since what is contemplated under Section 27 of the Hindu Marriage Act, is a power conferred on the court to make any provision with respect to any property jointly belonging to the husband and wife by way of a summary proceedings. True, it may be a property received individually and used by the husband and wife for a long period commonly which may acquire the characteristics of a joint nature by acquiescence of the same by both parties. Household articles enjoyed by the parties is the classic example. Thus the court while deciding a main issue related to the marital relationship by and between the parties can make provisions for partitioning such properties among the husband and wife, in order to enable them to carry on their life separately without any immediate difficulty. But the said power, in our view, cannot be extended to decide the title of a property or the claim raised by the wife against the property held by the husband in trust. The jewellery and money provided to a wife by her parents or her relatives at or about the time of marriage or later for her personal use and entrusted to the husband cannot be termed as a property jointly belonging to husband and wife, with respect to which an adjudication can be made under Section 27 of the Hindu Marriage Act. Moreover when a property is entrusted to the husband, the husband is retaining the same in his status as a trustee of the property and whenever the wife seeks to return the same, the husband is duty bound to return the same irrespective of the subsistence of the marriage. Which thus means even without any matrimonial discord or disputes such entrustments can be recovered by the wife from the husband by resorting to appropriate legal proceedings.
10. Therefore, in our view the jewellery and money belonging to a wife and entrusted to the husband is absolutely belonging to the wife and the same is not having any characteristics of a joint property. In such circumstances Section 27 cannot be invoked in order to seek a decree for returning the same. So also there is no question of multiplicity of proceedings, since the relief for return of money and gold ornaments can be asked for in one and the same original petition since such a joinder of cause of action is possible under Section 7 of the Family Courts Act. Moreover there is no court fee provided in order to seek such recovery on the basis of any valuation made to the said properties.
11. Learned counsel has also invited our attention to the judgment of the Apex Court in Balakrishna Ramchandra Kadam v. Sangeeta Balakrishna Kadam [(1997) SCC 500] wherein also the question emerged for consideration was one under Section 27 of the Hindu Marriage Act. But there the factual circumstances was appreciated by the Apex Court and held that Section 27 of the Act is attracted to the fact situation in the said case and the matter was remanded for fresh consideration to the Family Court. Therefore, we do not think that any legal principles were laid down by the Apex Court.
12. Yet another contention advanced by learned counsel is that, the refusal of the Family Court to restore the interlocutory applications along with restoration of the original petition was illegal. When the original petition was restored to file, the resurrection of the interlocutory applications were axiomatic and the same is deemed to be restored to file, contends the counsel. But we are unable to agree with the same, for the reason that the relieves sought for in the interlocutory applications were not germane for deciding the issues involved in the original petition, nor are they ancillary relieves to the original petition. The relieves sought for were independent in nature and required separate evidence to establish the claims raised therein. That apart, we find that since the relief sought for in the interlocutory applications were quite detached from the main relief sought for in the original petition, separate restoration of the said interlocutory applications was a necessary corollary for consideration of the same along with the original petition. At no point of time the petitioner has sought to restore the interlocutory applications, which was a handicap for the court to consider the relieves raised therein for recovery of money and jewellery. In that view of the matter also, the petitioner is not entitled to succeed in the writ petition. However, we make it clear that the dismissal of this writ petition will not stand in the way of the petitioner making any separate claim with respect to such properties.
12. Sequel to the foregoing discussion is that, the writ petition fails and the same is accordingly dismissed. All pending interlocutory applications in this case stand closed.