Smt. Sangeeta Vs. Sh. Sanjay Bansal - Court Judgment

Excerpt:

hindu marriage act, 1955 - section 27--disposal of property after dissolution of marriage--application by wife for return of articles worth rs. 3,06,885 jointly belonged--allowed and awarded compensation of rs. 50,000/---cross appeal--both orders unsustainable--letter patent appeal--remanded to adj to dispose of--applications afresh after affording opportunity to both parties. - - he also contended that once first appellate court had found that her evidence was on record it could not have refused to examine it and set aside the impugned order merely on the ground that trial court had failed to indicate such evidence. 4. we have gone through the application of the appellant and we find that she had clearly stated that articles jointly belonged to both parties, though she had also hinted that the articles were presented to her at the time of marriage by way of istridhan. 6. moreover, it was unjustified that first appellate court should have refused to look into the evidence recorded by trial court, whatever its worth merely because its order had failed to indicate such evidence. by not doing so it had failed to exercise jurisdiction in the matter......property', implying thereby that the property can be traced to have connection with the marriage. all such property is covered by section 27 of the act.'5. the section empowers the court to make such provision in the decree in respect of property presented at or about the time of marriage, which may belong jointly to both, husband and wife. the expression, 'presented at or about the time of marriage' suggests that such property must be connected with marriage and then it naturally comes to belong to both parties because all marks/areas of distinction/division are obliterated by the marriage. viewed thus, we feel that fac had taken too technical a view in the matter to non-suit appellant. we find support for this in supreme court judgment supra. 6. moreover, it was unjustified that first appellate court should have refused to look into the evidence recorded by trial court, whatever its worth merely because its order had failed to indicate such evidence. the approach adopted left much to be desired to say the least. in our view, it was duty bound to examine whatever evidence was on record and to take a view either way on its appreciation. by not doing so it had failed to exercise.....

Judgment:

ORDER

Khan, J.

1. Parties were married on 6.5.1987. But later they fell out and Appellant filed a petition for dissolution of marriage on 12.4.1989 on ground of cruelty. Along with she filed an application under Section 27 of HMA, claiming return of articles worth Rs.3,06,885/- which according to her jointly belonged to both the parties. Trial court passed order dated 29.8.1989 awarding her compensation of Rs.50,000/- in lieu thereof instead of Rs.3,06,885/-.

2. Both sides filed appeals against this order. Appellant filed FAO 247/89 and respondent FAO 243/89. Both these appeals were disposed off by First Appellate Court by common order dated 12.5.1994 allowing respondent's FAO 247/89 and setting aside impugned order dated 29.8.1989 awarding Rs.50,000/- to appellant. While doing so, First Appellate Court found that trial court had presumed that disputed articles were in the custody of Respondent husband as its order did not indicate whether parties had led any evidence in the matter. It also went a step further to hold that even though evidence regarding Istridhan was recorded; it was not possible to refer to it now. It also noticed that articles claimed by Appellant were stated to be Istridhan, thus falling outside the scope of Section 27 and upon this set aside the impugned order of trial court.

3. Appellant has filed this appeal to assail this. Her counsel invited our attention to her application stating that property claimed worth Rs.3,06,885/- jointly belonged to the parties to bring it within the ambit of Section 27 of HMA. He also contended that once First Appellate Court had found that her evidence was on record it could not have refused to examine it and set aside the impugned order merely on the ground that trial court had failed to indicate such evidence. Reliance is also placed on Supreme Court Judgment in Balkrishna Ramchandra Kadam Vs . Sangeeta Balkrishna Kadam : AIR1997SC3562 to show that Appellants application was maintainable under Section 27 HMA.

4. We have gone through the application of the appellant and we find that she had clearly stated that articles jointly belonged to both parties, though she had also hinted that the articles were presented to her at the time of marriage by way of Istridhan. thereforee, her application was not liable to be thrown out for this. Section 27 of HMA provides thus

'The property, as contemplated by Section 27 is not the property which is given to the wife at the time of marriage only. It includes the property 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 include such properly which is given at the time of marriage as also the property given before or after marriage to the parties to become their 'joint property', implying thereby that the property can be traced to have connection with the marriage. All such property is covered by Section 27 of the Act.'

5. The Section empowers the Court to make such provision in the decree in respect of property presented at or about the time of marriage, which may belong jointly to both, husband and wife. The expression, 'presented at or about the time of marriage' suggests that such property must be connected with marriage and then it naturally comes to belong to both parties because all marks/areas of distinction/division are obliterated by the marriage. Viewed thus, we feel that FAC had taken too technical a view in the matter to non-suit Appellant. We find support for this in Supreme Court judgment Supra.

6. Moreover, it was unjustified that First Appellate Court should have refused to look into the evidence recorded by trial court, whatever its worth merely because its order had failed to indicate such evidence. The approach adopted left much to be desired to say the least. In our view, it was duty bound to examine whatever evidence was on record and to take a view either way on its appreciation. By not doing so it had failed to exercise jurisdiction in the matter.

7. We, thereforee, hold that orders passed by both courts below were unsustainable. The result is that order dated 12.5.1994 passed in FAO 247/89 and also order passed by trial court dated 29.8.1989 are set aside and the matter is remanded to Court of Additional District Judge, Delhi, seized of the record of HMA No.271/89 for fresh disposal of Appellants application under law after affording opportunity to both parties to lead evidence if any and in case of their default to decide it on the basis of available evidence/material on record. Trial court to put parties on notice for 18th April, 2001.