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Dharambir Vs. Bimlesh Kumari - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 30 of 1982
Judge
Reported in1985(8)DRJ26
ActsHindu Marriage Act, 1955 - Sections 27
AppellantDharambir
RespondentBimlesh Kumari
Advocates: G.D. Gandhi, Adv
Excerpt:
.....could not be considered as a joint property of the parties. - - she denied that she knew any wazir kumar and regarding hem raj she pleaded that he was a neighbour and was like her elder brother. (6) on a consideration of the entire evidence on the record the learned trial judge came to the conclusion that the appellant had failed to prove that she had any independent source of income and the income of the appellant was taken to be more than rs. it is true that the respondent admitted in the written statement that she was treating hem raj like her elder brother while in her statement she denied having known hem raj but this contradiction by itself cannot lead me to believe that she had any illicit relations. a perusal of the list also shows that except few items like furniture,..........the consolidated order dated 6-1-1982 passed on applications under sections 25 and 27 of the hindu marriage act. (2) the marriage between the parties was dissolved by a decree of divorce passed on 2-11-1978 in case no. 203 of 1978. thereafter the respondent filed an application under section 25 of the hindu marriage act (hereinafter called the act) for permanent alimony and maintenance. it was alleged in the application that the respondent did not have any independent source of income while the appellant was working in punjab national bank and was earning about rs. 400.00 per month. besides his income he was living with his parents in their house. it was stated that the respondent had not remarried and had not been guilty of any misconduct which dis-entitled her to receive.....
Judgment:

N.N. Goswamy, J.

(1) This appeal by the husband is directed against the consolidated order dated 6-1-1982 passed on applications under Sections 25 and 27 of the Hindu Marriage Act.

(2) The marriage between the parties was dissolved by a decree of divorce passed on 2-11-1978 in case No. 203 of 1978. Thereafter the respondent filed an application under Section 25 of the Hindu Marriage Act (hereinafter called the Act) for permanent alimony and maintenance. It was alleged in the application that the respondent did not have any independent source of income while the appellant was working in Punjab National Bank and was earning about Rs. 400.00 per month. Besides his income he was living with his parents in their house. It was stated that the respondent had not remarried and had not been guilty of any misconduct which dis-entitled her to receive maintenance from the appellant. It was also alleged that the items of dowry given in the marriage were not returned - to the respondent. The petition was contested by the appellant. In the c statement it was pleaded that the respondent had dis-entitled herself from claiming any maintenance on the ground that she had illicit connections with one Wazir Kumar who was her neighbour prior to the marriage and after the marriage she was living openly in the house of Shri Hem Raj. It was further pleaded that she had been working with various firms and had independent income of her. In the replication it was pleaded by the respondent that the allegations regarding her having illicit connection with Wazir Kumar or her living with Hem Raj were concocted and false. She denied that she knew any Wazir Kumar and regarding Hem Raj she pleaded that he was a neighbour and was like her elder brother. She also stated that Hem Raj was an elderly person with two grown up children and was living Along with his mother and Bhabi and as such the question of her having illicit relations did not arise. She also denied that she ever worked in any firm and reiterated her allegations that she had no independent source of income.

(3) During the pendency of the petition under Section 25 the respondent filed another application under Section 27 of the Hindu Marriage Act for return of dowry articles. She annexed a detailed list with that application which gave the details of articles presented to her in dowry with their value. The total value according to the list came to more than Rs. 30,000.00 . In reply to that application the appellant raised various preliminary objections including the one that such a petition was not maintainable after the decree had been passed. On merits the list submitted by the respondent was disputed and it was stated that only few items which are mentioned in the reply were presented at the time of marriage. The value of those items according to the appellant, was Rs. 4,000.00 and odd.

(4) On the pleadings of the parties the learned trial Judge framed the following issues:-

1. Whether this petition is barred in view of the fact that she has filed an earlier petition under Section 125 Criminal Procedure Code . as alleged in the preliminary objection Opr 2. Whether the petitioner has forfeited her right of alimony in view of her own conduct as alleged in para 3 of the W.S. Opr 3. Whether the petitioner has got no source of income and is entitled for alimony under Section 25 Hindu Marriage Act and if so at what rate and to what extent Opa 4. Relief. xx xx xx 3A. Is the application under Section 27 of the Hindu Marriage Act not maintainable in present proceedings Opr 3B. Is the application under Section 27 of the Hindu Marriage Act barred by Order 2 Rule 2 Civil Procedure Code Opr 3C. What are the articles of common properties of the parties and to whom they are to be returned O. P. Parties. In support of her case in petition under Section 25 the respondent only examined herself as Public Witness -1. In her statement she deposed that she did not know Hem Raj and she was not on visiting terms with Hem Raj and Hem Raj was not on visiting terms with her. As regards Wazir Kumar, she deposed that the said Wazir Kumar was her classmate in the school and she admitted having written letters Ext. R-3 to R-6 to the said Wazir Kumar. She has also stated that the income of the appellant was Rs. 400.00 per month as his salary.

(5) As against the aforesaid evidence of the respondent the appellant examined himself as RW-1 and examined an officer from a firm of garments as RW-2. The appellant produced certain letters which were allegedly written by the respondent to Wazir Kumar. As I have already stated the letters were admitted by the respondent in her statement. Regarding Hem Raj the case of the appellant was that he came to know after the marriage that the respondent was residing with Hem Raj and was having illicit relations. There is no corroboration to this statement. RW-2 has only proved that the respondent had worked with the firm as a tailor for about 4 months and in all was paid about Rs. 500.00 and odd during those four months. He, however, could not show the signatures of the respondent on any of the papers.

(6) On a consideration of the entire evidence on the record the learned trial Judge came to the conclusion that the appellant had failed to prove that she had any independent source of income and the income of the appellant was taken to be more than Rs. 500.00 per month. It has not been disputed that the income of the appellant as slated by the learned trial Judge was correct, particularly in view of the fact that by now he must be getting much more than what he was getting at the relevant point of time. The question of the respondent having dis-entitled herself was also negatived on the ground that whatever relations the respondent had with Wazir Kumar were prior to the marriage and there was no evidence to show that the respondent had any such relations with Hem Raj. I have been taken through the letters written by the respondent to Wazir Kumar. It is true that the letters do indicate that the respondent had close affiliations with Wazir Kumar but it cannot be disputed that the letters were written prior to her marriage and there is absolutely no material on the record to show that those relations continued even after the marriage. In this situation the relations of the respondent with Wazir Kumar have to be ignored. As regards the relations with Hem Raj there is hardly any evidence on the record to show that they have any objectionable relations. It is true that the respondent admitted in the written statement that she was treating Hem Raj like her elder brother while in her statement she denied having known Hem Raj but this contradiction by itself cannot lead me to believe that she had any illicit relations.

(7) For the reasons recorded above I am not inclined to interfere with the amount of alimony granted to the respondent and accordingly the appeal to that effect is dismissed.

(8) As regards the order passed under Section 27 of the Hindu Marriage Act, the appeal has to be allowed on the short ground that an application under Section 27 could only be made during the proceedings which ultimately had to culminate into a decree.

(9) Section 27 is as under :

'c 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 or marriage, which may belong jointly to both the husband and the wife.'

There are two essential ingredients of Section 27, the first being that a provision has to be made in the decree itself and the second being that the provisions can be with respect to the joint property of both the husband and the wife. The application under Section 27 was filed after the decree had been passed and when an application under Section 25 of the Act was pending.

(10) The proceedings on an application under Section 25 do not result into a decree as is clear from a reading of Section 28(2) of the Act. The proceedings under Sections 9 to 13 may result in the passing of the decrees but the proceedings under Section 25 cannot result in the passing of a decree and it remains only as an order. Thus the question of making a provision in the decree did not arise. In any case the application even lacks the second ingredient. According to the allegations the item's mentioned in the list attached to the application were given to the respondent. It is nowhere pleaded that they were joint property of the parties. A perusal of the list also shows that except few items like furniture, radio etc. all other items either belonged to the respondent or to the appellant or to the relations. The cash given at the time of the tikka or at the time of marriage was also meant either for the relations or for the in-laws and could not be considered to be a joint property of the parties.

(11) The arguments in this appeal commenced yesterday and there was no appearance for the respondent. The case was kept as part-heard for today and inspire of my waiting for quite some time neither the respondent nor her counsel had appeared. I, thereforee, did not have the advantage of hearing the learned counsel for the respondent.

(12) For the reasons recorded above, the appeal is allowed to the extent that the order passed on the application under Section 27 is set aside while the order passed under Section 25 is maintained. Since there is no appearance for the respondent I leave the parties to bear their own costs.


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