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Kamta Prasad Vs. Smt. Om Wati - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 3667 of 1964
Judge
Reported inAIR1972All153
ActsHindu Marriage Act, 1955 - Sections 21 and 27; Code of Civil Procedure (CPC) , 1908 - Sections 151 - Order 7, Rule 7
AppellantKamta Prasad
RespondentSmt. Om Wati
Appellant AdvocateS.C. Asthana and ;Ambika Prasad, Advs.
Respondent AdvocateK.C. Saxena, Adv.
DispositionAppeal dismissed
Excerpt:
family - section 27 of hindu marriage act, 1955 order 7 rule 7 and section 151 of code of civil procedure, 1908 - application for dissolution of marriage and decree for return of ornaments filed - cruelty on wife - judicial separation allowed - question of returning ornaments came up - court has power to pass decree directing husband to return ornaments. - .....appellant seeking dissolution of the marriageand also a decree for return of ornaments and other articles belonging toher worth rs. 2,700/-. the suit wascontested but the trial court decreedthe suit for judicial separation and alsofor return of the ornaments etc. thehusband filed an appeal, which hasbeen dismissed by the lower appellatecourt.2. the courts below have recorded concurrent findings to the effect that the husband was a drunkard and addicted to other vicious habits. there is also a concurrent finding that the appellant used to treat the respondent with cruelty and had given her a knife blow in the abdomen and had also-turned her out of his house. on these findings the suit was rightly decreed for judicial separation. that part of the decree, therefore, must be affirmed. 3......
Judgment:

A.K. Kirty, J.

1. The respondent filed a petition under Section 13 of theHindu Marriage Act against the appellant seeking dissolution of the marriageand also a decree for return of ornaments and other articles belonging toher worth Rs. 2,700/-. The suit wascontested but the trial court decreedthe suit for judicial separation and alsofor return of the ornaments etc. Thehusband filed an appeal, which hasbeen dismissed by the lower appellatecourt.

2. The courts below have recorded concurrent findings to the effect that the husband was a drunkard and addicted to other vicious habits. There is also a concurrent finding that the appellant used to treat the respondent with cruelty and had given her a knife blow in the abdomen and had also-turned her out of his house. On these findings the suit was rightly decreed for judicial separation. That part of the decree, therefore, must be affirmed.

3. Coming now to the question of the legality of the decree for return of the ornaments etc., it may be mentioned that the courts below have recorded a clear finding that the husband did deprive the wife of the ornaments and other valuable articles. No dispute has been raised in regard to the value of the ornaments and the articles. An argument, however, has been raised to the effect that under Section 27 of the Hindu Marriage Act the court had no power to pass the decree, as the ornaments and other valuable articles did not jointly belong to both the husband and the wife. The contention of the appellant is that unless the ornaments or other articles jointly belonged to the husband and the wife the court is not competent to exercise the powers conferred on it under Section 27 of the said Act. This argument appears to be plausible. But, .in my opinion the argument really has no force. Section 27 aforesaid reads as follows :--

'In any proceeding under this Act, the court may make such provisions in the decree as it deems iust 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.'

Section 27, to my mind, does not exclude the jurisdiction or the power of the court to pass an appropriate decree in regard to the property which may belong either solely to the husband or solely to the wife. This power in the nature of things, in my opinion, is inherent in the legal proceedings which appropriately arise under the Hindu Marriage Act. In such cases generally there should be no difficulty in dealing with the property belonging exclusively to the husband or the wife. Difficulties are likely to arise in cases where there are properties which belong jointly to both of them. In such cases the court has to adjust the equities between the parties having regard to all the material circumstances, and it was to ensure the making of such equitable adjustments that specific powers had to be conferred on the court under Section 27 of the said Act. Therefore, I am of opinion that 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 the wife.

4. Section 21 of the Act provides :

''Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908'.

5. It will thus be seen that Inproceedings under the Hindu MarriageAct the court concerned has all thepowers of the Civil Court, subject,however, to the special provisions contained in the Act. By virtue of Section 151 of the Code of Civil Procedurethe court retains its inherer power tomake such orders as may be necessary forthe ends of justice or to prevent abuseof the process of the court. Order VII,Rule 7 of the Code makes it furtherclear that the court has the power togrant general or other relief which itmay think just under the circumstancesestablished in a given case. I am,therefore, of the opinion that the decree of the court below, in so far as itrelates to the return of the ornamentsand other articles also, does not sufferfrom any illegality.

6. Even Section 27 of the Hindu Marriage Act does not contain anv express provision in regard to the power of the court to pass an appropriate de-cree in regard to the property belonging to either the wife or the husband exclusively. The expression 'which may belong jointly to both the husband and wife' indicates that Section 27 confers a wider and enabling power on the court to deal also with properties which jointly belong to the husband and the wife. But it does not restrict the powers of the court only to such properties.

7. Mr. Saxena, learned counsel for the respondent, further submitted that in the trial court no objection was also raised as to misjoinder of causes of action. It was urged by him that had such plea been taken, his client would have been in a position to elect as to whether she will file a separate suit in regard to the return of the ornaments and other valuables. It is not necessary to go into this question as, in my opinion, as indicated above, there is nothing under the Hindu Marriage Act which prohibits the passing of the decree which the court has passed for return of ornaments and other valuables.

8. The appeal is dismissed with costs.


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