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Rita Vs. Brh Kishore Gandhi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 261 of 1982
Judge
Reported inAIR1984Delhi291; ILR1984Delhi289
ActsHindu Marriage Act, 1955 - Sections 10
AppellantRita
RespondentBrh Kishore Gandhi
Advocates: R.L. Kohli and; C.B. Gandhi, Advs
Cases ReferredJoseph v. Joseph
Excerpt:
arbitration act, 1940 - section 20--considered--section 20(4)--discussed--court has the power to appoint an arbitrator where there is disagreement between the parties of where one party refuses to appoint an arbitrator.; the question before the full-bench was whether the court has the power to appoint an arbitrator under section 20 of the arbitration act where one party (in the instant case, the chief engineer, c.p.w.d. government of india on a request made to him has, for one reason or the other, declined to make the appointment. answering the question in the affirmative, and overruling kishan chand v. u.o.i., i.l.r. (1974) ii delhi 637.; 1. the court clearly has power to appoint the arbitrator if the chief engineer refuses to appoint one on a request made to him. if he does not appoint.....m.l. jain, j.(1) the respondent husband is employed in the reserve bank of india at jaipur, while the appellant wife in the food corporation of india at delhi. the parties were married on 2-3-1978 at delhi. the wife filed a petition no. 5180 for divorce under section 13 of the hindu marriage act, 1955 (the act) on 10-1-1980 on the ground of treatment with cruelty. it appears that the husband also filed a petition no. 61j80 under sec,.9 of the act for restitution of conjugal rights. by his order of 22-7-1980, the trial judge declined to consolidate the two petitions and continued to proceed with the wife's petition and eventually dismissed it on 26-8-1982. hence, this appeal by the wife.(2) the wife alleged in her petition that soon after the marriage, the mother-in-law started complaining.....
Judgment:

M.L. Jain, J.

(1) The respondent husband is employed in the Reserve Bank of India at Jaipur, while the appellant wife in the Food Corporation of India at Delhi. The parties were married on 2-3-1978 at Delhi. The wife filed a petition No. 5180 for divorce under section 13 of the Hindu Marriage Act, 1955 (the Act) on 10-1-1980 on the ground of treatment with cruelty. It appears that the husband also filed a petition No. 61j80 under sec,.9 of the Act for restitution of conjugal rights. By his order of 22-7-1980, the trial Judge declined to consolidate the two petitions and continued to proceed with the wife's petition and eventually dismissed it on 26-8-1982. Hence, this appeal by the wife.

(2) The wife alleged in her petition that soon after the marriage, the mother-in-law started complaining about the dowry. However, on 819-1978 the couple left for Simla and stayed there for about four days, where she discovered that the husband was a drunkard. He also complained that her parents did not give him any Tv, fridge or scooter, etc. and gave her filthy abuses. On the third day when she asked, him to refrain from drinking, he shouted and beat her. He also told her that he could not live without drink and was married without his consent. The next day, they returned to Delhi. The husband went back to Jaipur. On 13114-4-1978 13114-4-1978 he came to Delhi to her house at about 6.00 p.m. in a drunken side. He demanded her salary for the month of March 1978, On. her refusal to part with the money, he took out a bottle of wine of from. his pocket and began to drink in the presence of the neighbours who had come to visit her parents. He and abused her and her parents and gave her severe beatings. Her parents and the visitors rescued her. Thereafter, he left 'the house. Yet, the wife went to Jaipur on 15-5-1978 and lived with him till 11-6-1978, but found no change in him. and came back to Delhi. On 15-7-1978 the husband came to the house of her parents and started drinking. He demanded Rs 2000. She told him that she had no money. Thereupon, the husband slapped her and gave fists and blows. She became unconscious. She was rescued by Dr. P. R. Chibba. Despite this she again visited Jaipur on 12-8-1978, but she was turned out by the husband on 15-8-1978 after giving her a severe beating and retaining all her jewellery, clothes and other articles.

(3) In his written statement, the husband alleged that the petition was filed after an inordinate delay of 1-112 years. The wife herself withdrew from the society of the husband. He denied that he was a.drunkard. He also denied the allegation of beating and demand of dowry. He denied the occurrence that was alleged to have taken place at Simla. After .return from Simla he wanted his wife to accompany him to Jaipur, but she did not agree. He denied to have visited her parents ' house on 13114-4-1978 13114-4-1978 . As per mutual arrangement, she obtained leave and came to live with him in Jaipur from 15-5-1978 to 11-6-1978. They lived happily, but she, had to return because she could not extend her leave. He denied-that he visited her parents' house On 15/16-7-l978 and Made a demand of Rs. 2000 and gave beating to her. He maintained that the visit of the wife to Jaipur from 12-8-1978 to 15-8-1978 was in the normal course arid her journey was paid for by him. He denied that he retained her jeweller .and other articles. He alleged that her parents had on the contrary removed surreptitiously all his jewellery and ornaments worth. Rs. .60.000. There was no cruelty in the first instance and if there was any, it stood condoned, because even after 15-8-1978 the parties have been cohabiting and living together. As a matter of fact. before the marriage it was agreed that the wife would live with him arid will get herself transferred to Jaipur or leave her job. But on one pretext or the other, she neither left the job nor got herself transferred to Jaipur and pressed him to seek his own transfer. Her father was a drunkard arid had an evil eye on his income and -property. He, -however, submitted an application for his transfer to Delhi even though it meant a loss of promotion. But he could not succeed. It was also alleged that she wanted to marry a boy -for whom she had a liking even before her marriage. To enable her to do so she suggested that the marriage be dissolved by consent. He prayed that the petition be dismissed and his wife and the jewellery and other articles be restored to him.

(4) The husband produced two photographs of the couple taken at Simla and seven letters written to him by the wife on 20-4-1978, 12-7-1978, 25-7-1978, 31.7.1978. 9.8.1978, 17-8-1978 and 30-8-1978. The wife produced two letters written by the husband to her on 18-4-1978 and 4-10-1978.

(5) The learned .trial Judge after trial by his judgment dated 26-8-1982 found that the wife could not make out a case of cruelty and dismissed the petition.

(6) It was urged in this appeal by Mr. Kohli the learned counsel for the wife that it was established that apart.from the instances of physical cruelty, the husband was a drunkard, file wife did write-series of letters in which she talked, of pleasant relations between the parties and she was delighted that her husband was trying for a transfer to Delhi. But: in his letter of 4-10-1978 to the wife he himself has admitted that she hated him on accoHnt:of his drinking habits and that it could be given up only slowly Mr.Kohli urged that this letter established the case of the wife that the husband was a drunkard arid it was not possible for the wife to live with an addict:like him and the marriage deserves to be dissolved. The learned trial: Judge also came to hold that the respondent was guilty of improper behavior towards the wife after taking drinks, but he was in error in holding that it was not as grave and weighty as to be termed as cruelty in the eye of law. The learned lower court was not, thereforee, justified in rejecting her 'petition.

(7) The case of the husband was argued by his father who is a retired officer of the Reserve Bank of India and has now taken to legal practice. He also appeared as a witness (RW 2) on the side of his son. His first contention is that .the finding of the court below should not be lightly reopened. Even otherwise. the findings are correct and call for no inteference. The wife has failed to prove the instances of cruel treatment by any corroborative evidence. It is also pointed out that the content of her letters 'give a complete lie to the case set .up by her in her petition made after one and a half years and in her statement given after' four years, after the alleged instances of cruelty. The real cause of estrangement as stated earlier was that. the wife did not like to leave her job and she and her parents wanted the husband to get himself transferred to Delhi. Yet another reason was that she wanted to marry a boy whom she liked even before the marriage and she and her parents wanted to grab the jewellery .ornaments, etc. worth Rs. 70,000.00 presented to her by the husband and his relations. It was further pointed out that the petitioner in para 7 of the petition has; made no allegation of beating during the period from 15th May to 11th June, 1978, the longest they lived at one place. She stated that the usual feature of this period was drink, abuse and insult. She did nowhere say in her pleadings that she was unable to pull on with him or that there was any danger to her life if she lived with him. The learned trial court has found that the alleged incidents of cruelty are of doubtful nature. But she has tried to improve her case in the memo of grounds. of appeal. The evidence she has led is only a slap given to her in April, 1978 and abusive language used by the. husband. But one slap, mere vulgar obscene abuse, rudeness, momentary passion do not constitute cruelty. The alleged acts of cruelty should be such as to satisfy the conscience of the court, that the relationship between the parties had deteriorated to such an extent, due to the conduct of the other spouse that it has become impossible for them. to live together, without mental agony, torture or distress. The learned counsel relied upon Rukma Kanta v. Faquir Chand, Air 1960 Punj. 493(1). Gurcharan Singh v. Waryam Kaur Air 1960 P&H; 422 (2) Pranab bids was v Mrinmoyee Devi, : AIR1976Cal156 , and Ashwani Kumar Sehgal v. Swatantar Sehgal 80 Plr 573 (4).

(8) It was next contended that the allegation of drunkenness or addiction to liquor does not amount to cruelty. Morever, that charge too has not been proved. If he were a drunkard, he would not write a letter like that of.4-10-1978 and would not have risen to get a salary of Rs. 16001- p.m. in the reserve Bank of India. His letters to the wife reflect that he was prepared to make any sacrifice in order to make a happy home, while the conduct of the wife showed that she was trying to 'take advantage of her own wrong and has withdrawn from the society of the husband and willfully deserted the matrimonial home. His grandmother had an FDR. The wife got her name also inserted in that FDR. Her father even deposed that the has married again. Thus, it is the husband who in fact was undergoing mental torture. The husband even applied for restitution of conjugal rights under section 9 of the Act. He has also asked for this relief in his written statement. It was submitted that the appeal be dismissed and restitution of the wife and the dowry be directed.

(9) Acting under see. 23(3) of the Act and Order 32A Rule 4 Civil Procedure Code , I sent the parties to the Indian Council of Family Welfare, but they reported failure because both the parties failed to yield any ground. I also called the parties, but reconciliation did not seem feasible because the. wife seems to have developed a complete dislike of the husband. The husband's manner of walk did appear to me somewhat unstable but I cannot say categorically whether it was on account of excessive drinking,

(10) There is no force in the contention that the appellate court cannot interfere with the findings of fact. I reject this contention, but before I proceed to. consider the merits, I want to clear a few things. One is the objection that the petition was presented with inordinate delay. This objection cannot be sustained because the petition could be filed only after a lapse of one year from the date of marriage and this, petition was filed after one year and .nice months or so out of which for five months she gave a trial to the marriage. This cannot be considered an unnecessary or improper delay in instituting the proceedings. The others relate to the wrongful conduct of the pititioner. One of them is that the petitioner has already married again as stated by her. father A. S. Kapur (Public Witness 4). But it is simply not. true. There appears some omission made by the court in the record of the statement. The learned counsel for the husband did also not insist upon this fact. The second is about the FDR. Kapur (Public Witness 4) has explained that the Fdr was in the joint name of the grand-mother .of the husband and the wife, but the 'grand-mother withdrew the amount without the consent and.knowledge of the wife and the wife has given her a notice in this regard. Nothing, thereforee, turns upon these facts. These do riot suggest any objectionable conduct on the part of the wife.

(11) Physical violence with or without drunkenness treatment with cruelty Bu what about drunkenness When does amount to cruelty ln.Marsh v. Marsh (1858) 1 Sw&Tr; 313 (5), a husband who had for six years been addicted to intemperance and had suffered from delirium tremens had on occasions inflicted bodily injury on his wite, and had by his general course of conduct towards her materially injured her health. There was nothing in the demeanour of the man calculated- to create confidence.in the temperance or calmness of his future conduct. The court, thereforee, felt bound to .protect the wife from renewed cohabitation with such a man and decreed judicial separation on the ground of cruelty. But in Hudson v. Hudson (1863) 3 SW & Tr 314 (6), the court refused to protect the wife from destruction of domestic comfort caused by drunkenness.In Power v Power (1865) 34 Lj PM&T; 137 (7), husband's constant intoxication coupled with open profligacy, some slight acts of violence towards his wife, use of bad language and an attempt to cut her throat was held to constitute a case of cruelty, even though there was no permanent ill-will or no want of affection but there.was no hope or guarantee of information. Walker v. .Walker (1898) 77 Lt. 715(8), was a case of cruelty on the ground of false, accusation of infidelity and excessive indulgence-in alcohol. The woman married with full knowledge that the husband was a drunkard but she was not on that account asked to take, without redress, a risk of anything that might follow 'drunkenness. However, in cas.e of habitual intemperance of wife Whereby it was unsafe and impossible for her husband and children to remain with her, the .husband was refused judicial separation on the ground of cruelty in Scott v. Scot (1860) 29 LJ.P. 64 (9), and in Beer-v. Beer (1906) 94 L.T. 704 (10), But in Kaslefsky v. Kaslefsky (1950) 2 All E.R. 398 (11), Denning observed : .....WHEN the conduct does not consist of direct action against the other, but only of misconduct indirectly affecting him or her, such as drunkenness, gambling, or crime, then it can only properly be said to be aimed at the other when it is done, not only for the gratification of the selfish desire of the one who does. it, but also in some part with an intention to injure the other or to inflict misery on him or her........ In oases of this kind. if there is no desire to injure or inflate misery on the other, the conduct only becomes cruelty when the justifiable remonstrance's of the innocent party provoke resentment on the part of the other, which evinces itself in .actions or words actually or physically directed at the innocent party.'

According to Davies J. in Baker v. Baker (1955) 3 All E.R. 193 (12), persistent drunkenness after warnings that such a course of conduct is inflicting pain on the other spouse, certainly if it is known to be injuring the other spouse's health, may of itself amount to cruelty. Matrimonial Proceedings (Magistrates' Courts) Act, 1960, section 1(1)(t) and section 2(1)(a) empowered the Magistrates in England to make an order of judicial separation on the ground that the husband is a habitual drunkard. In section 16(1)(a) habitual drunkard, was defined to mean a person who. by reason of intemperate drinking of intoxicating liquor (a) is at times dangerous to himself or to others or incapable of managing himself or his affairs, or(b) so conducts himself that it would not be. reasonable to expect a spouse of ordinary sensibilities to continue to cohabit with him. In Hall v. Hall (1962) 2 All E.R. 129(3), the marriage had been unhappy through the drinking habits of. the husband. But there was no evidence that the husband had been violent lo the wife or that there was any conduct by him which would be described other than. as drunken behavior; nor was there any evidence that husband's conduct bad injured the wife's health. The wife had never before left the husband and had never specifically warned him that his conduct was likely to cause her to leave. The Magistrates held that there was no cruelty but there was constructive desertion. The Divisional Court held that there was no constructive desertion either. Sir Jocelyn Simon, P. after reviewing the reported cases of drunkenness found that where drunkenness has entitled a spouse to matrimonial relief, it has been either a case where it amounted to cruelly owing to its persistence in the knowledge that it was injuring the health of the other spouse or where it was of so extreme a nature, being accompanied by physical violence or involving possible danger to members of the household, that the continuance of matrimonial cohabitation was virtually impossible Rude behavior, returning late at night, depriving the wife much of his company, taking money from her handbag and bringing the family into ill repute with their neighbours conduct such as this was, according to him- a very usual concomitance of drunkenness which many wives have unhappily been called upon to endure. Yet, he considered the husband's conduct discreditable and unkind and advised probationary assistance for necessary readjustment between the parties. On appeal, in the House of Lords in Hall v. Hall (1962) 3 All E.R. 518 (14), Lord Diplock observed that it is notorious that excessive consumption of alcohol causes different persons to react in different way. It does not seem that the reported cases are in any way decisive of whether this husband's conduct to this wife either could in law or in fact justify her in refusing to live with him any more. The Lords reversed the decision of the Divisional Court and restored the findings of the Magistrates. In Chand Narain Gautam v. Smt. Saroj Gautam, , it was said that mere consumption of alcohol by the husband may not ordinarily be a reasonable excuse for a wife to withdraw from his society but when it is coupled with violence it may be a sufficient justification for her refusal to live with him. Satinderial Gupta v.Swamalata Gupta 1981 (1) D.M.G. 92 (16), adopted Raydon's summary, that drunkenness per se is not cruelty but may be, for example where it is persisted in, particularly after warnings that such conduct is injuring the other spouse's: health and held the conduct of a drunkard in order to be. called cruel should be so grave and weighty that no reasonable wife would tolerate it or that it was more than she was called upon bylaw to bear. But before any final word can be said in this regard we have to take note of :

1.(a) In England the Matrimonial Proceedings (Magistrates Court) Act, 1960, as noticed earlier, specifically provided that where it is alleged that the defendant is an habitual drunkard, that is sufficient ground of itself on which to seek a matrimonial order: Raydon on Divorce, Ed. 13, (1979) Vol I, page 1301, para 85; one such order is in the nature of a decree of judicial separation;

(B) Cruelty as a ground for divorce was added by the Matrimonial Causes Act, 1937. But with effect from the commencement of the Divorce Reforms Act, 1969, which was later on replaced by the Matrimonial Causes Act, 1937, the ground for divorce is that the marriage has broken down irretrievably. One of the several facts which prove that the marriage has so broken down is that the respondent has behaved in such.a way that the petitioner cannot reasonably be expected to live with the respondent. Thus, 'the law of divorce stands much liberalised ..in U.K., while in India it still limps behind. Financial irresponsibility, drunkenness, gambling, bullying of the petitioner or children of the family, threats, abuses, nagging quite apart from the physical violence may all constitute behavior in such a way that the , petitioner cannot reasonably, be .expected to live with the respondent vide Raydon (supra) para 31 page 229;

2. The reported cases specially those in England are mere illustrative and not decisive of the matter. Awareness of foreign decisions could be a useful asset in interpreting our own law, but we have to apply our law in our setting with reference to a particular couple in question: see Dastane v. Dastane, : [1975]3SCR967 ; and

3. The change made by the Amendment Act No. 68 of 1976 : The Act had earlier provided that where the respondent has treated the petitioner with cruelty such as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the other party, the petitioner could ask for judicial separation. In the amended Act, the grounds of judicial separation and divorce are common. Cruelty is now a ground for divorce as well but without the aforesaid qualification earlier attached to it. It now simply says that the marriage may be dissolved on the ground that the other party has treated the petitioner with cruelty. Cruelty has been designedly left undefined in order to leave the courts the liberty to relive the couple of living in misery and of the mess they have made of their lives and where they refuse to reconcile.

(12) No doubt drinking is a constituent of culture all over the world, and is almost a cult in certain societies. Yet, even here as elsewhere a habit of excessive drinking is a vice and cannot be considered a reasonable wear and tear of married life. No reasonable person marries to bargain to endure habitual drunkenness, a disgusting conduct. And yet it is not an independent ground of any matrimonial relief in India. But it may constitute treatment with cruelty, if induced in by a spouse and continued in spite of remonstrance's by the other. It may cause great anguish and distress to the wife who never suspected what she was bargaining for and may sooner or later find living together not only miserable but unbearable. If it was so, she may leave him and may, apart from cruelty, even complain of constructive desertion or willfully neglect by the husband. What then has the wife here to say?

(13) She deposed that soon after the marriage she discovered while honeymooning at Simla that the husband was drunkard and .used to drink too much every day. After taking drinks, he gave abuses and beatings to her. On two occasions in Delhi, he partook of alcohol, demanded money and on refusal abused and beat her. His parents told her that they had a fond hope that he would change and suggested that she should go to Jaipur to live with him. She tried this for amonth. But she found no change. Even. then she went to Jaipur on 12-8-1978 in the hope that he may mend his ways, but she was beaten and turned out on 15-8-1978. She now adds that if she lived with him, he will kill her. In short, her case is that in spite of her sufferings during the five, months they lived together in Jaipur and Delhi. he was unable to discard the habit. Her best proof is his letter of 4-10-1978. He said in that letter : 'You know that I have told you not to make me off my mood when you leave, and yet you accused me of drinking. What should I do if I should not drink. I have nothing else to rely upon. ...As far as I understand, you hate me because I drink but have you ever considered it necessary to understand why I drink I am not so bad looking as you may net love me......The habit of drinking could be cured by love or by these acts? You should better know how to help your husband to give up the habit of drinking. .... If, you give me the love of a mother, then I will not only give up drinking but will give up smoking aswell'. But he has deposed that he does not drink and .has never taken wine, and denied that he used to drink liquor in a large quantity. When confronted with his letter (Ex. PX) of 4-10-1978, .he had the cheek to say that by (drink) what lie meant was smoking. His father C. B. Gandhi (RW 2) took up the stand that the respondent was not given to habitual drinking at all. The learned trial Judge found that the husband was telling a lie. I think he was. But he rejected her case because she did not state in her petition that she was unable to pull on with him or her life was in danger if she lived with him and what she could prove was only abuses and one slap which was nothing more than an improper behavior but not so grave and weighty as to amount to cruelty. Let us also examine her specific allegations.

(14) With regard to the Simla incident, the only evidence is that of the wife, but the two photographs produced by the husband clearly showed that they had a good time together. The first occurrence at 'her house in April was denied by the husband while in her letter dated 20-4-1978, she has said that when he left Delhi on 17-4-1978, she felt lonely and slept late thinking fo him. It is not, thereforee, possible .to believe that she was subjected to beating and abuses a few days before. In May and June she lived with the husband for a month at Jaipur. If she were subjected to cruel treatment, she could not have stayed there for such a long time. She did not complain of any ill- treatment by the husband to her parents or his parents during this period. She wrote a letter to her sister but she made no reference to what she says she was suffering. It is, thereforee, clear that there was no beating at all in that period. With regard to July occurrence in Delhi, her affectationate letters to the respondent of July 25 and 31 and of August 9 do not permit that it should be believed. There is no corroboration regarding the allegation that she went to Jaipur on 12-8-1978 and had to return on 15-8-1978 because of the cruel behavior of the husband. Her letters of 31-7-1978 and 9-8-1978 established that the visit of the wife to Jaipur on 12-8-1978 was planned in advance in consultation with the husband and financed by him. On return to Delhi she wrote a letter on 17-8-1978 to the husband in which she was nostalgic about Jaipur and that proves that she spent a good time with the husband from 12th .to 15th August, 1978. The letter of 30-8-1978 written by the wife and of 4-10-1978 written by the husband to the wife give no indication that they did part company 6n 15-8-1978. Rather, letters falsify her allegation. The testimony of the husband, his father and four other witnesses is that the couple lived together till 29-10-1978. The exchange of letter between them shows that the respondent never refused to let her join him. She was welcome any time.

(15) There is thus truly no satisfactory evidence that the drunkenness was accompanied by insults, abuses or violence. There is absolutely no case pleaded that drunkenness was causing any damage to the health of the wife. But nothing-turns upon it because it is proved that the husband was a habitual drunkard. His employment and success therein does not prove that he is not so. I see no reason to disbelieve the wife that his drunkenness is distressing and is no more endurable. I must also add something about plea of condensation made by the husband Continued cohabitation is no evidence of condensation that is of forgetting and forgiving. A continued cohabitation in spite of cruel treatment is not unknown and many a woman allow themselves to be subjected to this humiliation much against their will and sometimes in the hope of improvement and prefer silence to exposure in order to avoid likely distress to the parents and acquaintances: But the letter of 4-10-1978 shows a promise and hope of reform. I would, thereforee, like to grant a decree of judicial separation in place of divorce or rejection of the petition. It will give the husband a chance- to correct his habit and remove the irritant which divides them. I am doing so under section 13A of the Act.

(16) With regard to the request of the husband for restitution of conjugal rights, a separate-petition is already pending and no order need be made in this case.

(17) That leads me to the examination of the demand for return of the articles alleged to have been given to the wife by the father of the husband at the time of marriage. Property disputes may arise between couples living together in wedlock or otherwise. But they assume importance when they part company or the creditors or taxmen chase 'the assets and the law is called upon to determine the respective rights of the spouses in the disputed assets. There will be no problem if the property is admittedly joint or is a benami purchase or is owned exclusively by one of the two or is charged with maintenance. Since common living does not assume common ownership, problem arises when a person whether a spouse or a stranger in whom the legal estate is not vested has an interest in the property against the person in whom it is vested. Such claim can succeed if it can be implied that the claimant had a beneficial interest in it. It is a question of fact. and several considerations have to be taken into account such as contribution made directly or indirectly by or on behalf of the spouse in making or maintaining of the home and other 'family assets' popularly so called. Such contribution may include cash contribution out of individual income, manual work, living sub-standard life or meeting the expenses of the household, so that money would be available for the acquisition of the assets. Such contribution should be substantial enough to be capable of quantification and evaluation in money. But these are not questions to be determined in a matrimonial court. According to Section 27 of the Act, the matrimonial court can make in the decree a just and proper provision with respect to any property only : (1) if it was presented at or about the time of marriage and, (2) if it belongs jointly to both the husband and the wife. This section applies to all kinds of dowry property. But in this case lam concerned with moveable only. In Vinod Kumar v. State of Punjab 1982 Hlr 327(18). it was held by the Punjab & Haryana High Court that the wedding presents given to the wife 'by either side to the marriage are her property. The articles given to her by her parents for common use will also be her property unless proved other- 306 wise There are two extreme views. One is the traditional view that the bride along with all the dowry is a gift to the husband. Sages like Valmiki and Tulsidas in their celebrated epics have eulogised the dowry given by Janak at the time of the wedding of his daughters with God Ram and his brothers. It filled the wedding hall with gold and jewels. He also gave woollen and silk garments, elephants, chariots, horses, cows, slaves and umpteen other articles. Dasharath accepted them all with great satisfaction. But with the passage of time the custom of dowry gracefully given and equally gracefully accepted has degenerated into an extortion and a pernicious evil. The other is. the view propounded by the Punjab that all dowry articles given to the bride pass to her ownership. I am unable to subscribe to either. To .my mind, to arrive at a just division of the wedding gifts, the Court should ask the question 'To whom does it belong?' and in order to answer that question, it must further ask 'For whom was it meant ?' Whatever was presented by her parents, friends and other relations to her or to the husband, should generally be held to be the property of the wife and whatever is presented to her by the husband or his parents or friends or relations, that of the husband. This should be so. common use and keeping notwithsanding. I say so because the party which gives the presents does so on the assumption that the couple will live in harmony till death doeth them part. If they were to know that discord is likely to come, about, then they will either make no presents or if they do, then presents, shall be deemed to be intended for .the spouse in whose welfare the donor is interested : also see Joseph v. Joseph (1909) 217 (19). In the case before me, the claim is for the return of the property presented to her by the husband's father. The husband valued them at Rs. .60,000 vide para 9 of the written statement. In his, deposition, the husband inflated the valuation to Rs. 70,000. His father in this regard has stated as follow :

'WE gave 30 tolas of ornaments to her. at the time of marriage i.e. namely one Krishan Har of 10 tolas. eight bangles of 8 tolas, two karas of 5 tolas, one bar of 5 tolas, two tops, three rings and we also presented three rings to her sister and one daughter of masi.'

His brother-in-law, L. S. Sehgal (RW 4) stated that it was at the time of chunni ceremony that one Krishan Har, two tops and a ring were presented to the girl. O. P. Bhandari (R W 6) deposed that at the time of chunni one necklace, ear-ring and one ring were presented. S. N. Wadhawan (RW5) knows' nothing about the dowry. None of the witnesses has given the metal of the ornaments or the value thereof. The wife has denied that the ornaments belonging to the respondent have been wrongfully kept by her and her parents. She admitted that ornaments were put on her person at the time of marriage, but they were taken back from her after her coming back from Simla. So, the claim of the husband must be thrown out because it is a tall and vague claim and because it suppresses what the husband received from the father of the wife. The supporting evidence of the claim is also vague and discrepant. Above all, he has not claimed it to be their joint property so as to give jurisdiction to this Court. That is why the learned trial Court seems to have ignored this aspect of the case and rightly so.

(18) Consequently, while rejecting the claims of the' husband I allow the wife's appeal, set aside the impugned order and grant a decree of judicial separation in favor of the wife appellant and against the husband-respondent. Coasts shall be borne by the husband.


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