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Ashok Kumar Kad Vs. Usha Rani Kad - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 111 of 1983
Judge
Reported in26(1984)DLT398; 1985(8)DRJ90
ActsHindu Marriage Act, 1955 - Sections 27
AppellantAshok Kumar Kad
RespondentUsha Rani Kad
Advocates: C.P. Wig,; R.K. Kataria and; Vijay Tandon, Advs
Cases ReferredSmt. Shukla v. Brij Bhushan Makkar Air
Excerpt:
.....27--in her application, the respondent averred that all the presents presented to her at the time of marriage as pet list in annexure 'a' were with the appellants the appellant contended that in the absence of the pleading that the properties belonged jointly to both, section 27 was not attracted. the high court found that there were certain items like bed sheets, table lamp, pillows, blankets, double bed. utencils etc. which were apparently meant for use by both. ; that it is well settled that pleadings have not to be construed with hyper-technicality and a pleading has to read as a whole to ascertain its true import and the court should look not merely to its form but to its substance and gather the real intentions of the parties by reading the pleadings as a whole. - - it was..........of the marriage. she alleged that all the presents given to her, both in cash and in kind at the time of marriage, were in the pos- session of the appellant and she attached a list of all those presents to the said application as annexure 'a'. the total value of the presents detailed in the said list was to the tune of rs. 69,000.00 and odd. this application was opposed tooth and nail by the appellant who contended that no presents were ever given to him at or about the time of marriage and the said application had been made only by way of counter-blast because he too had earlier moved a similar application for return of the presents which had been given by him and his parents to the respondent at or about the time of their marriage and the same was pending adjudication. he averred.....
Judgment:

J.D. Jain, J.

(1) The facts giving rise to this appeal succinctly are that the appellant and the respondent were married on 18th February 1979 in accordance with Hindu rites and customs and they lived together as husband and wife at the house of the appellant in Janakpuri for some time. However, they have not been living together since 16th June 1980. On 3rd October 1980 the appellant made a petition under Section 13(I)(ia) of the Hindu Marriage Act (for short the Act) for dissolution of their marriage by a decree of divorce on the ground of cruelty. It was alleged that the respondent had been all along persuading the appellant to live separately from his parents and her attitude towards her in-laws as well as towards the friends of the appellant was most insolent and rude with the result that he was humiliated at every step.

(2) The petition for divorce was vehemently contested by the respondent. While denying the averments made by the appellant in the petition, the respondent made a counter claim in her written statement praying for dissolution of marriage by a decree of divorce on the ground of cruelty on the part of the appellant. The allegation leveled by the respondent against the appellant was that he and his parents were not satisfied with the quantum of dowry and traditional presents given to the bridegroom the bride and her in-laws at or about the time of their marriage and even though her father made every endeavor to meet the demand of t appellant's parents for a cash amount of Rs. 10,000.00 and paid a sum of 5,000.00 to placate them but the insatiable demand of the appellant and his parents for more and more money could not be met. She had been always treated cruelty by the appellant to such an extent that she started apprehending danger to her life and it became impossible to stay in the house of the appellant in such an atmosphere. However, all the entreaties by her parents to the appellant and his parents to be considerate and kind to her failed to yield the desired result and she was eventually deserted by the appellant in the second week of June 1980.

(3) During the course of the proceedings the respondent/wife moved an application under Section 27 of the Act for return of the presents presented to her at the time of the marriage. She alleged that all the presents given to her, both in cash and in kind at the time of marriage, were in the pos- session of the appellant and she attached a list of all those presents to the said application as annexure 'A'. The total Value of the presents detailed in the said list was to the tune of Rs. 69,000.00 and odd. This application was opposed tooth and nail by the appellant who contended that no presents were ever given to him at or about the time of marriage and the said application had been made only by way of counter-blast because he too had earlier moved a similar application for return of the presents which had been given by him and his parents to the respondent at or about the time of their marriage and the same was pending adjudication. He averred that their marriage was a Very simple affair and no presents much less the presents detailed in annexure 'A' were given to the parties at the time of their marriage and the said list was totally false.

(4) The learned Additional District Judge vide impugned judgment dated 19th March 1983 dismissed the petition of the appellant for dissolution of the marriage between the parties by a decree of divorce on the ground of cruelty,, as' .alleged by him. However, the counter claim made the respondent/wife found favor with her and the marriage between ..the parties was. dissolved by adecree of divorce on the ground of cruelty as alleged in the counter claim. The learned Additional District Judge also allowed application. under Section 27 of the Act made by the respondent in part and directed, the appellant to pay a consolidated amount of Rs.10,535.00 as representing the value of various items which according to her (viz. the learned Additional Distt. Judge), were given jointly to both the husband and wife at or about the time of their marriage. This appeal is directed against . that part of the judgment and decree only which requires the appellant to pay the aforesaid amount of Rs. 10.535.00 and there is no challenge to the decree of divorce granted to the respondent/wife on the basis of her counter-claim.

(5) The learned counsel for the appellant has made a three pronged attack 'against the impugned order. He has, in the first instance, stremuously urged that Section 27 of the Act empowers the Court to make an order which it deems just and proper with respect to any property (either moveable or immoveable) which was presented at or about the time of marriage and which may belong to both of them jointly. In other words. the Court has no jurisdiction under Section 27 to pass an order with regard to the property belonging exclusively either to the husband or the wife. So, according to him the impugned order is bad in law because in her application under Section 27 of the Act the respondent had specifically averred that all the presents presented to her at the time of marriage were in the possession of the appellant and that annexure 'A' to the application constituted list of all the cash and other presents which were given to her at the time of her marriage. Thus, the argument advanced precisely is that in the absence of any pleading to the effect that the properties mentioned in annexure 'A' belonged jointly to the respondent and the appellant, the trial Court fell into grave error in ordering payment of Rs.10,535.00 as representing the value of the presents and gifts which had been given to the respondent alone on her own showing.

(6) It is no doubt true that the operation of the provision embodied in Section 27 of the 'Act is confined only to property presented to the parties at or about the time of the marriage which belongs jointly to both of them. It was so held by this Court in Smt. Shukla v. Brij Bhushan Makkar Air 1982 Del 223. In that case too it was noticed by the learned Judge that there was no allegation that the properties mentioned in schedule 'A' belonged jointly to both the husband and the wife and the allegation on the other hand was that the properties were presented to the wife and that her husband which was in possession thereof was liable to return the same to her as he had no right to retain the same. lam in respectful agreement with the enunciation of the law on the subject in the said decision. However, I find that there .is something more in the instant case which was perhaps missing therein. A perusal of annexure 'A' to the application under Section 27 of the Act in the instance cases would show that it furnishes details of presents/gifts given to the boy and girl at or about the time of marriage and which were in possession of the husband/appellant. The, words 'boy and girl' have been underlined by me to highlight that the intention of the respondent was not merely to get back the gifts and presents which had been given to- her alone but also the gifts and presents which had been given to the bridegroom at or about the time of her marriage, as also those which were given to both of them. On a careful scrutiny of this annexure it .clearly emerges that it lists three categories of presents and gifts, viz., (i) those given to the bridegroom alone, (ii) those given to the bride alone, and (iii) those which were meant for the common use of both husband and wife. It is no doubt true that there is no such clearcut demarcation in the list in the sense that there is no express mention of the fact that any presents or gifts were given jointly to both the husband and the wife. However, it is common knowledge that amongst Hindus certain traditional presents and gifts are made to (i) bridegroom alone, (ii) bride alone and (iii) both the bride and the bridegroom. Most of these nuptial presents are so traditional and conventional that it is not at all difficult to decipher which of the gifts and presents were meant for whom. While browsing through annexure 'A' I find that certain gifts are stated to have been given at the time of thaka, ring ceremony, shagan and saptpadi ceremony etc. However, some cash presents have been 'specifically mentioned to have been given to the boy and girl at the time of saptpadi and doli (i.e. departure of the barat). The total of these cash amounts works out to Rs. l,001.00 . Further there are certain Stems like bed sheets, quilts, mattressess pillows; blankets, table lamp, thermos flask, electric press, pressure cooker, grinder, radio-set, double-bed, lemon-set and utensils etc. which were apparently meant for use by both husband and wife. The respondent deposed in unequivocal terms that Ex. R9 was the correct list of the articles presented at the time of her marriage by her relations and parents to them. In the very nature of things it is difficult to expect earmarking of each and every item of dowry and traditional and customary presents given at the lime of the marriage. Hence, by necessary implication it may be inferred that the aforesaid articles were presented to and belonged jointly to both the husband and the wife and there is no reason why the appellant should not return the same or refund an amount equivalent in value of these articles. A perusal of the impugned order would show that this is precisely what the learned Additional District Judge has done in-the instant case. In para 12 of the judgment he has clearly specified the items which, according to her, belonged jointly to both husband and wife and they are by and large the same to which I have advertised above. Of course, she seems to have allowed Rs. 1,100.00 on account of shagan given at the time of tikka ceremony etc. to the appellant. As stated above, the Court has no power under Section 27 of the Act to pass an order with regard to an item of gift which was made to any of the spouses alone, but as pointed out by me above, the amount of Rs. 1,001.00 which was given to both the boy and the girl at the time of saptpadi etc. would have to be refunded, by the appellant provided, of course, it is in his possession.

(7) It is well settled principle that the pleadings in this country have not to be construed with hyper-technicality and they have to be construce rather liberally. A pleading has to be read as a whole to ascertain its true import and the Court should look not merely to its form but to its substance and gather the real intention of the parties by reading the pleadings as a whole. It is not permissible to pull out a sentence or a passage and to read it out of the context in isolation. As observed by the Supreme Court in KedarLal Seal and another v. Hari Lal Seal, : [1952]1SCR179 :

'The Court would be slow to throw out a claim on a mere technicality. of pleading when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or inartistically the plaint may be worded. In any event, it is always open to a Court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs.'

(8) Applying this principle in construing the application of the respondent under Section 27 of the Act, the averments made by the respondent both in the said application as well as in the annexure must be read in conjunction with each other and it would not be permissible to tear a stray sentence appearing in the application out of context. Indeed, the application itself contains a recital that 'contents of annexure 'A' may be read as part of this application'. Thus, the intention of the respondent manifestly was to get back all the presents and gifts whether given to her alone or to her husband or to both of them jointly although the averment made in the application was somewhat clumsily worded. It is, of course, a different thing that under the provisions of Section 27 of the Act relief could be afforded to her only with regard to the presents and gifts which had been given to both of them jointly. Hence, this contention of the appellant's counsel is devoid of any merit. 9. The next submission of the learned counsel for the appellant is that the trial Court has gravely erred in appreciating the evidence on the record and arriving at the conclusion that the presents detailed in annexure 'A' or for that matter the ones adverted to specifically in para 12 of the impugned judgment were made at or about the time of their marriage. The stand of the appellant, as stated above, is that no presents were given at the time of the marriage and the same was performed in the most simple manner. On the contrary, some ornaments and gifts were presented by the parents of the appellant to the respondent as Wari and he had moved a n application under Section 27 of the Act for return of the same. So, it was as a counter-blast that the respondent/wife had made a similar application Under Section 27 of the Act. The appellant firmly adhered to this stand when he stepped in the witness-box as AW1. He deposed that his was a simple marriage and no dowry or articles mentioned in the schedule Ex. R9 (annexure 'A') were ever given. During cross-examination he further asserted that no thaka ceremony was performed before marriage. No ceremony took place even en he had gone to the house of the respondent to select her. Further, according to him, the marriage party consisted of only 10 or 15 persons and dinner was served to them by the parents of the respondent. However no list of dowry was ever shown or given to him.

(9) As against this, the respondent her father Shri inderjit Sayal and her uncle Shri P N. Sayal have uniformly deposed that cash presents as well as gifts mentioned in annexure Ex. R9 were presented to the bridegroom and the bride on the occasion of various marriage ceremonies including thaka etc. The whole case of the respondent indeed was that the appellant and his kinsmen were not satisfied with the quantum of dowry given at her marriage and they wanted her father to pay Rs. 10,000.00 in cash over and above the articles of dowry etc. They refused to lift the presents and other items of dowry till the amount demanded by them was paid. The presents and the dowry remained lying at her parents house for about a week and it was only when her father arranged to pay Rs. 5,000.00 to the parents of the appellant that they lifted the articles of dowry and took them to their home. Even thereafter they did not feel satisfied and kept on taunting that she ought to have been married to a peon. Filthy abuses were also heaped on her by the appellant and her parents etc. This version of the respondent has been believed by the trial Court and there is no challenge to the finding of the Court on this aspect of the matter. It is, thereforee, difficult to believe that no dowry or presents were ever given by the bride side to appellant at or about the time of his marriage with the respondent. That apart, as pointed out by learned Additional District Judge, the stand taken by the appellant in answer to the claim made under Section 27 of the Act for return of the presents and items of dowry/refund of an amount equivalent to their value runs counter to his pleadings in the replication. Significantly the stand taken by the appellant in the replication filed by him was that the marriage between the parties was solemnised in a most simple manner because the appellant's parents being of religious mind had told the parents of the respondent that they would not accept any gifts or articles of dowry in the marriage. thereforee, neither the appellant nor his parents accepted any dowry except a few clothes and sarees and certain gold ornaments which were presented by the side of the respondent and which were in her power and possession. I think that the present stance taken by the appellant is diametrically opposite and cannot be readily believed Even otherwise the preponderance of probabilities is in favor of the respondent. During his crossexamination Shri Inderjit Sayal, father of the respondent stated that he was drawing a salary of Rs. l,200.00 per month approximately at the time of the parties' marriage. He had spent nearly Rs. 70,000.00 on the marriage of the respondent and he had withdrawn Rs. 20,000.00 from his provident fund, Ex.RW3/1 being the sanction letter issued by the Audit Officer for withdrawal of the said amount. He further explained that he had prepared certain articles for being given at the time of marriage from lime to time. It certainly passes one's comprehension that the father of the respondent would have withdrawn a handsome amount of Rs. 20,000.00 from his provident fund, had he not been obliged to make certain gifts and presents by way of dowry or otherwise. It is equally natural on the part of parents of an adolescent daughter to keep on preparing and collecting some items of dowry and presents over a period of years in anticipation of her marriage. At least, there is nothing unusual about it. Hence, the finding of the trial Court on this point appears to be well founded and calls for no interference.

(10) Lastly, the learned counsel for the appellant has canvassed with considerable vehemence that there is no iota of evidence to prove the value./ price of the gifts and presents allegedly given by the respondent's parents at the time of parties' marriage. My attention has been invited in this context to the depositions of the respondent and her father. The former stated that she mentioned the prices of various articles in annexure 'A' on the basis of the information derived by her from her father and other relatives. When cross-examined on this point, her father too stated that he had no receipt showing the price paid for any of the items mentioned in the list annexure 'A' and he had asked the rates from his own son and stated the same in the list. There, is thus considerable merit in the argument of the learned counsel for the appellant that there is no iota of reliable evidence on the record to establish the prices of various presents and item of dowry as detailed in Ex. R9. Unfortunately, however, for the appellant, there was no traverse in his pleadings about the correctness of the prices mentioned in annexure Ex. R9. His only stand was that no presents or gifts were ever given to him or the parties at or about the time of their marriage. He never called in question the correctness of the prices of various articles as given in Ex. R9 and it appears that his counsel thought of cross-examine the respondent and her witnesses on this aspect of the matter just on the spur of the moment. In other words, it was just an after-thought and he took recourse to it in the vain hope that it may eventually stand him in good stead. It is well settled that when facts averred by a party in his or her pleadings are not traversed by the opponent in his written statement, no dispute arises with regard to the same and the same must be deemed to have been admitted. Order Viii Rule 4 of the Code of Civil Procedure lays down that where a defendant denies an allegation of fact in the plaint he must not do so evasively but answer the point of substance. The principle underlying this rule obviously is that pleading should be specific and any half admission or half denied would be termed as evasive. Rule 5 of the said order goes still further and lays down that. every allegation of fact in the plaint if not denied specifically or c implication or stated to be not admitted in the pleadings of the defendant shall be taken to be admitted. In other words, under Order Viii Rule 5 there is an implied admission of every allegation of fact made in .a pleading which ha? not been traversed specifically. As held by the Supreme Court in Badat and Co., Bombay-v. East India Trading Co., : [1964]4SCR19 :

'The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary.'

(11) In view of this well established legal proposition, it is too late in the day for the appellant to raise an objection about the correctness of the prices of various presents and gifts as detailed in Ex. R9.

(12) To sum up, thereforee, I find no merit in this appeal except to the extent that the appellant cannot be directed to refund the amount of Rs. 1,100.00 which was given to him at the time of engagement ceremony. Although he is liable to refund the other cash presents which were given to both him and the respondent on the occasion of other ceremonies, the same do not appear to have been taken into account by the trial Court. Hence, I allow this appeal in part, modify the decree of the trial Court to the extent that the appellant shall pay a sum of Rs. 9,434.00 instead of Rs. 10.535.00 to the respondent/Decree Holder on account of the price of various goods etc. presented to him and the respondent jointly at or about the time of their marriage. The appellant shall also bear the costs in this appeal.


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