JUDGMENT [ENTITY], J.
1. This is an appeal under Clause 10 of Letters Patent against the judgment and decree dated 21-4-87 passed by a learned single Judge of this Court in [CASE NUMBER] arising out of judgment and decree dated 10-12-75 passed by District Judge, Rewa, in [CASE NUMBER].
2. The undisputed facts of this case are that the appellant filed the aforesaid civil suit in the Court of District Judge, Rewa, who granted a decree for divorce under [SECTION] of the [ACT] (hereinafter referred to as the Act) on the ground of desertion. He granted permanent alimony at the rate of Rs. 150/- per month to the appellant and further granted under [SECTION] of the Act an amount of Rs. 12,350/- or the articles shown in [SECTION] The husband filed an appeal before this Court only in respect of the articles or the refund of money as directed by the learned District Judge. The husband did not challenge the decree of divorce before this Court.
3. The appellant/plaintiff had filed an application under [SECTION] of the Act for grant of divorce on the ground of desertion against the respondent. Since the decree of divorce and permanent alimony were not challenged before the learned single Judge by the respondent, it is not necessary to go into those facts which resulted in passing of decree of divorce. However, the decree passed by the learned District Judge was challenged by the respondent in respect of the articles shown in Schedule A or refund of cash amounting to Rs. 12,350/- as the price of the articles. It was alleged by the wife that the articles shown in Schedule A were given to her at the time of marriage.
4. Before the learned single Judge, it was contended by the respondent that these articles did not belong jointly to both husband and wife within the meaning of [SECTION] of the Act and, therefore, the learned District Judge had erred in granting the decree for delivery of those articles to the appellant or Rs. 12,350/- in lieu thereof. The learned single Judge has found in paragraph 4 that the articles claimed by the respondent, shown in Schedule A, attached to the application for divorce, belonged to her exclusively which was given to her at the time of her marriage by her father and they were her 'Stridhan'-
5. The learned single Judge, after considering the various cases cited before him, came to the conclusion that the property claimed by the appellant was her 'Stridhan' which belonged to her exclusively and it did not belong jointly to both husband and wife. The learned single Judge held that for application of [SECTION] of the Act it is necessary that the property claimed by the applicant should belong both to husband and wife jointly and it should not be an exclusive property of the wife or husband alone. The learned single Judge referred to the decision of the Supreme Court in the case of [PRECEDENT] and held that the Supreme Court has conclusively expressed the opinion that 'Stridhan' of a married woman was her exclusive property and even if it is placed in the custody of her husband, the husband would be deemed to be the trustee of the property and he had no right or title over that property. In the opinion of the learned single Judge, since [SECTION] of the Act applied to the property belonging jointly to both husband and wife, it had no application to 'Stridhan' in the matrimonial proceedings for divorce under the Act. The only remedy open to the wife would be to file a fresh civil suit for recovery of her 'Stridhan'.
6. There was a sharp cleavage of opinion between the various High Courts regarding the interpretation of [SECTION] of the Act
7. The learned counsel for the appellant has placed reliance on the case of [ENTITY] v. Smt. Om Wati, [PRECEDENT] and [ENTITY] v. Bal-krishna Ramchandra Kadam, AIR 1994 Bom 1. On the other hand, the learned counsel for the respondent drew our attention to the case of [PRECEDENT], [PRECEDENT], [PRECEDENT], Smt. [PRECEDENT] and [PRECEDENT].
8. For construing [SECTION] of the Act, it is necessary to reproduce the section which reads as under :
"27. Disposal of property. in any 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 of marriage, which may belongjointly to both the husband and the wife."
9. If we construe [SECTION] of the Act literally then there is no escape from the conclusion that [SECTION] of the Act is applicable only in respect of the properties received at or about the time of marriage which may belong jointly to both husband and wife. In such a situation, any property which is given specifically to husband or the wife cannot be held to be jointly belonging to both and, therefore, [SECTION], in terms, will not be applicable and the parties will be driven to file a suit for restitution of such property. However, it has been contended that such interpretation is not in consonance with the intention of legislature. The com-monsense view in accordance with the intention of the statute should be adopted. Here the words 'belong jointly' do not mean in the sense of ownership, but in the sense of common enjoyment. The institution of marriage by itself requires common enjoyment of property belonging to individual wife or husband. Despite the gloss put by the Act, the marriage amongst Hindus remains a sacrament and not a contract. The union between a man and a woman is of religious or holy character and not a contractual union. That is the reason why wife is always regarded as 'Dharmapatni' or 'Sahdharmini'. This character of marriage amongst Hindus has not been abolished by the Act, despite the facilities for divorce, judicial separation etc. being provided under it. It is, therefore, contended that when a marriage takes place, husband and wife pool their properties together for happy enjoyment of married life and so long as the marriage lasts, there is hardly any dispute about the ownership of an individual item. Therefore, it is further contended that so long the words 'jointly belonging to both husband and wife' do not mean in the sense of ownership but in the sense of common enjoyment of individual property of wife or husband. After pondering over the matter deeply, we think that there is definitely merit in this view of the matter. However, it is not possible to interpret [SECTION] as suggested by the counsel for the appellant for the reason that the Supreme Court has already held that [SECTION] of the Act is limited to the property presented at or about the time of marriage belonging to both. The observations of the Supreme Court, even if, they be obiter, are binding on us.
10. In the case of [PRECEDENT] (supra), the case went to the Supreme Court on a complaint of wife under [SECTION] of the [ACT] to the effect that her husband was not returning her certain items belonging to her and given to her by her father by way of dowry during marriage after desertion and, therefore, he was liable to be punished under [SECTION] of the [ACT]. The Supreme Court after listing the articles which were given to her by her father which included her personal effects like jewellery and clothes omitted furniture and utensils from the list and held that rest of the articles were her 'Stridhan'. It further held that the view taken by the learned single Judge of Punjab and Haryana High Court in a case reported in [PRECEDENT] was wrong. In that case the High Court had held that individual articles were not entrusted to husband by the wife within the meaning of [SECTION] of the [ACT]. The majority view of the Supreme Court appears to be that the 'Stridhan' was the exclusive property of the wife and husband was the trustee of that property and if he did not return it he was clearly liable under [SECTION] of the [ACT] and, therefore, complaint filed by the wife was not liable to be quashed in exercise of powers under [SECTION] of the [ACT]. The Supreme Court made the following observations in regard to the 'Stridhan' property:
"15. We are of the opinion that this view of the High Court is not legally sustainable because neither of the two Acts, referred to above, go to the extent of providing that the claim of a woman on the basis of stridhan is completely abolished. All that the two sections, mentioned above, provide is that if the husband refuses to return the stridhan property of his wife, it will be open to the wife to recover the same by a properly constituted suit. The sections nowhere provide that the concept or stridhan is abolished or that a remedy under the criminal law for breach of trust is taken away."
"16. In a later decision in [PRECEDENT], it was very rightly pointed out by the same High Court that [SECTION] of the [ACT] merely provides an alternative remedy to the wife to bring a properly constituted suit in respect of the stridhan property which the husband refused to return. Thus, it is clear that [SECTION] merely provides for an alternative remedy and does not touch or affect in any way the criminal liability of the husband in case it is proved that he has dishonestly misappropriated the stridhan of his wife. It cannot also be spelt out from any textbook or the sastric law of the Hindus that the two Acts mentioned above take away the stridhan right of a woman at the most these Acts merely modify the concept of stridhan. It may be useful to refer to certain pertinent observations in the aforesaid case.
"The aforementioned passage shows that a female has an absolute right to use her stridhan in any way she likes and even if her husband can take this property at the time of distress, this right is personal to him. The allegations made in the instant complaint are not that the husband of the respondent has placed her ornaments and jewellery etc. out of her way. What has been alleged therein is that the petitioners who are the parents-in-law of the respondent have converted the ornaments and clothes etc. presented to the respondent at the time of her marriage to their own use.
[SECTION] of the [ACT] empowers a Court while deciding a matrimonial dispute to also pass a decree in respect of property which may jointly belong to both the husband and the wife. This section at best provides a civil remedy to an aggrieved wife and does not in any way take away her right to file a criminal complaint if the property belonging to her is criminally misappropriated by her husband."
"17. In these circumstances, the decision reported in [PRECEDENT] can no longer be considered good law. Even in [ENTITY]'s case, [PRECEDENT], the Full Bench reiterated the view that [SECTION] in no way abolishes stridhan but expressly recognises the property exclusively owned by the wife, in this connection, the Court obsprved thus:
"The express words of the provision refer to propery 'which may belong jointly to both the husband and wife'. It nowhere says that all the wife's property belongs jointly to the couple or that Stridhan is abolished and she cannot be the exclusive owner thereof. Indeed, in using the above terminology the statute expressly recognize that property which is exclusively owned by the wife is not within the ambit of [SECTION] of the [ACT]. Equally no other provision in the [ACT] could be pointed out which erodes the concept of Stridhan or in any way incapacitates the Hindu wife to hold property as an exclusive owner."
Thus, according to the Supreme Court, the concept of 'Stridhan' was not abolished by any of the provisions of he Act. It is also clear from the aforesaid quotation that the Supreme Court approved the view of Full Bench of Punjab and Haryana High Court in the case of [ENTITY] Sethi v. State of Punjab, [PRECEDENT], and regarding its interpretation of [SECTION] of the Act. However, it overruled the decision of the aforesaid Full Bench on altogether different point holding that no partnership was created between husband and wife. The aforesaid observations revealed that the Supreme Court had approved the decision of the Full Bench of Punjab and Haryana High Court in [ENTITY]'s case (supra), as far as [SECTION] of the Act is concerned and, therefore, there is no scope for further interpretation of [SECTION]. We, therefore, accept the interpretation put upon [SECTION] by various other cases that restricted to a property jointly belonging to both the spouses and not to individual property of any one of them. This view was taken in the cases of [PRECEDENT] (supra), [PRECEDENT] (supra), [PRECEDENT] (supra), [PRECEDENT] (supra); and also in the case of [ENTITY] v. Balkrishna Ramchandra Kadam, ([PRECEDENT] (supra). Thus, there appears to be unanimity amongst majority of High Court that [SECTION] is limited to the property of both husband and wife jointly belonging to them,
11. However, there is another aspect of the matter which has been highlighted by a learned single Judge of Allahabad High Court in the case of [ENTITY] v. Smt. Om Wati, ([PRECEDENT]) (supra). In this case a learned single Judge of High Court of Allahabad has taken the view that even if [SECTION] in terms may not apply, power under [SECTION] read with [SECTION] of the [ACT] can be exercised by the matrimonial Court to grant relief to the aggrieved party. The provisions of [SECTION] read with [SECTION] of the [ACT] permit the Court in passing a decree in favour of wife or husband as the case may be, for return of the property which may be exclusively belonging to either of them. This also appears to be the view in [ENTITY]'s case, ([PRECEDENT] (supra). We must, therefore, examine if there is any merit in the view and if in the present appeal any relief can be granted on the basis of [SECTION] read with [SECTION] of the [ACT]. [SECTION] of the Act reads as under:
"21. Application of Act 5 of 1908. 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 [ACT]."
It is, therefore, clear that the provisions of [SECTION], [ACT] and [SECTION] of the [ACT] would be applicable to the proceeding under the Act. The question that will arise whether this Court, in exercise of its power under [SECTION], [ACT] read with . [SECTION] of the [ACT], can exercise its power to grant relief to the appellant.
12. It may be noted that the Act is a special enactment governing the matrimonial proceedings between the parties. [SECTION] of the [ACT] reads as under:
"4. Savings. (1) in the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force."
From this provisions, it is clear that the procedure prescribed by the special law will not be limited by the [ACT]. However, the Act itself adopts the [ACT], so far as it is applicable in the matrimonial proceedings under the Act and, therefore, all the provisions of the [ACT] will be applicable to the matrimonial proceedings under the Act, [SECTION] read with [SECTION] of the [ACT] will also be made applicable because there is no provision under the Act which bars the application of these provisions of the [ACT] [SECTION] of the Code permits the Court to grant such relief mot prayed for as would be just under the circumstances of the case.
13. The view of the Supreme Court is that 'Stridhan' is the property of the wife in her individual capacity and the husband is merely the trustee of that property. If the husband be the trustee of the property, he is liable to return that property or value thereof under the substantive law or in equity. [SECTION] of the [ACT] provides that a person may claim a specific movable property. It is, therefore, well established that it is the substantive right of an individual to get back the property from the trustee. We do not see any reason why we cannot apply procedure provided under [SECTION] of the [ACT] to restore the property to the wife because after all, it is her right in law or in equity to get back the property which the husband is refusing to give her back in the capacity of a trustee. [SECTION] of the [ACT] merely provides a procedure in the ends of justice or for the purpose of preventing the abuse of the power of the Court.
There is nothing in [SECTION] of the Act which prevents the Court from adopting such a course. On the other hand, the language of that section as 'presented, at or about the time of marriage, which may belong jointly to both the husband and the wife' enables the matrimonial Court to pass order in respect of joint property too. However, whatever has not been provided under the Act, shall be governed by the provision of [SECTION] of the [ACT] It is well established that [SECTION] of the [ACT] saves the inherent powers of the Court which are already vested in it. So the Supreme Court, in the case of [PRECEDENT], held in paragraph 23 that :
" .The section itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice.
In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it."
It is, therefore, clear that this Court is not giving the appellant any substantive right in the garb of interpretation. It is only providing the additional procedure to a wife who could not claim her 'Stridhan' under the provisions of [SECTION] of the Act. We, therefore, agree with the view taken by the Bombay High Court in [ENTITY]'s case, ([PRECEDENT] (supra). It has held as follows (At p. 9, Para. 13):
" We are faced with a situation, however, where the Legislature made specific provisions for the disposal of only one small restrictive class of property. Undoubtedly, there is no provision in the [ACT] which imposes a bar on the Courts in relation to the disposal of other forms of property. Consequently, by virtue of the vacuum that is created, the Courts have been hitherto directing the parties to institute normal civil suits in relation to the remaining property. We have already observed that this is hardly fair to the parties and, having regard to the volume of litigation that is pending, neither is it fair to the Courts when such a litigation would be unnecessary and, to our mind superfluous. As already observed, it is precisely in these circumstances that the Court must exercise the powers vested in it under [SECTION] of the [ACT] and pass orders in relation to the remaining items that are the subject-matter of the dispute."
We further approve the view of the Allahabad High Court in [ENTITY]'s case, ([PRECEDENT]) (supra). The High Court has discussed the matter in paragraph 5 as follows :
"It will thus be seen that in proceedings under the [ACT] the Court concerned has all the powers of the Civil Court, subject, however, to the special provisions contained in the Act. By virtue of [SECTION] of the [ACT] the Court retains its inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. [SECTION] of the Code makes it further clear that the court has the power to grant general or other relief which it may think just under the circumstances established in a given case. I am, therefore, of the opinion that the decree of the court below, in so far as it relates to the return of the ornaments and other articles also, does not suffer from any illegality."
14. In view of the aforesaid discussion, we set aside the judgment and decree of learned single Judge and restore that of District Judge in respect of property of appellant mentioned in [SECTION] of the plaint. She will be entitled to these articles or in lieu thereof she will be entitled to Rs. 12,350/ -(Rupees twelve thousand three hundred fifty) as their value. The appeal thus, succeeds to the extent indicated by us above. There shall be no order as to costs of this appeal.