IN THE HIGH COURT OF JUDICATURE AT BILSAPUR (C.G. FIRST APPEAL (M)NO. OS /2008 UNDER SECTION 28 OF THE HINDU MARRIAGE ACT, 1955 PETITIONER: DEFENDANT Sanjay Kumar Manu, s/o BudLuram Manu, aged about 32 years, r/o Village Bodsara, P.S. Janjgir, District Janjgir-Champa ( C.G.) presently residing at quarter no. F/240, C.8.E.B. Colony, Darri, Tahsil Katghora, District Korba (C.G.). VERSUS RESPONDENT: .Shrimati Urmila Manu, w/o Sanjay Kumar PLAINTIFF ^ Manu, aged about 24 years, Village Bodsara, >rftv.. P.S. Janjgir, District Janjgir-Champa (C.G.), presently residing at Kailash Vihar, C.SJE^B. \^'"^ .^? ...••••:^w<7 ^••"^\ ^(^ ^ Colony, Quarter No. F/1208, Darri, Tahsil ^y.--"^' ^.^':'z^i <^.^-''' ' ^ Katghora, District Korba (C.G.) ^ i-^^-^^ ^: OF CHHATTISGARH AT BSLASPUR Mon'bte Shri Jystlee Prashant Kvmar ^lshra First ARpeal m\ No. S of 2008 Sasijay Kvmar Manu -<s;' Versus Shrlmatl Unnlla Manu J UOGMENT PostforJ'?-07-2010. Sd//- Prashant Kumar Mishra Judge HIGH COURT OF CHHATTISGARH AT BILASPUR Smate B®Rch:Hon'bte Shri Justice Prashant Kumar Msshra APPELLANT RESPONDENT First Appeal iM\ No. 5 1 2008 Sanjay Kumar Manu Versus Shrimati Urmila IVIanu Shri t.S. Sahu, counsel forthe appetlant. Smt. Renu Kochar, counsel for the respondent. FIRST APPEAL UNDER SECTtON 28 OF THE HINDU MARRIAGE ACT. 19S5 JUDGMENT ( 17> ..07.2010) Heard. k (2) This Is an appeat under Section 28 of the Hindu Marriage Act, 1955 by the husband challenging the judgment and decree pass^i by %he trial Court in an application moved by the respondent/wife of retum of property presented at the tlme of marriage. (3) The marriage between the partles was soSemniz^l on ^-06-2002, however on account of matrimonial dsspute they are resldlng separately and criminat proceedings for offence under Sectlon 49Q A of t.P.C. Is pendlng in the Court of Judiciat Magistrate First Class. Et Is ateo admttted between the parties that proce^iing uneler Sectlon 125 of Gr.P.C. initiated by wlfe is ateo pending in the Court of Judlcial Magistrate First Class. (4) The responcSenVwife preferred an application titted as appSscation under Sectlon 27(5) of the Hlndu Mamage Act, 1955 (for short <(the Act, '^ 1955) for retum of 'Stridhan' property. tt appears Section 27 of the Act, /£^\ . ^^^ 1^5 does not contain sub Section 5 as mentioned in the applicatlon, however it would appear that the leamed trsal Judge has treated the application under Sectlon 27 of the Act, 1^5 and has proceecSed to dtspose ofthe apptication. (5) On the basis of evidence on record the trlal Court has directed the appelSant to return the properties menttoned in the decree to the respondent/wtfe. (6) Leamed counsei for the appellant would submit that no proceedlng under any of the provlsion of Hindu Marrlage Act was pending before the triai Judge whtch can be treated as main petitlon and that the respondent has independently preferred an appiication under Sectlon 27 of the Act, 1955, whloh is not maintalnabSe in vlew of the language of Sectton 27 of theAct.1955. .(7) Leamed counsel for the appellant submitted at the bar which was not controverted by the respondent that the petitlon for grant of divorce fllecE by the appettant/husband Is pending for constderation before the Coyrt of competent jurisdlction at Janjglr. (8) In vlew of the objection re^arding maintainabliity of the proceeding under Sectlon 27 of the Act, 1955 as an independent proceeding wlthout thelr being any maln proceeding under any provlsion of the Act, 1955, this Court wilt flrst deat with the issue regarding jurisdictlon and maintainablt'rty of the proceedings. 1 (9) Section 27 of the Act, 1%5 Is reproduced hereln below for ready 1 reference:- '^ s- "27. Disposa! ofpmperty - fn any proceedmg under this Act the couft may make such provisions m the decFee as It deems just and prQper wsth respect to Qny property presented, st or about the trme of marriage, which may befQngjomtiy to both the husbsn^ and wfe. In A.hR. 1997 SC 3562 Balfaishna Rameftatiefra Ksf!am Vs. S&ngeeta Baflaishna Kadam the Hon'bSe Supreme Court has heid thus inparalO:- "0?? a plam rea^mg oftfte Secfen, tf feecomes obvfoys that the Matnmonial Court trymg any proceedings under the Hsndu Marnsge Act, 1955, has the jurisdictiQn to make such prov?s?on m the decree as st deems JL'S^ and proper wfth respecf to any propQrty presented "ai or about the ffme of marnage" whtoh may betong jointfy to bQth the husband ancf the w!f&. This Sec^on oroWcfes an aftemate reme^v to the w/fe SQ that she can r@CQver the Drooertv which is covefed bv the Secft'of?, bv mQWma it m the cfecree m ths matnmomaf ofDceecfmos. w^ouf ftawfro fo teke mcGurse to sf s sejoarate CM^ Sy^ and ayo^ forther HtsQatiQn. Sn the Instant cass, we find that the wsfe ftad laid Qtaim to certasn Items of jeweSery and in fter deposHion, sfte had mentloned the Hems ofjewetlery whfch she hacS rece'syecl "st or about the tfme of her mamage" and, in particufar, had menlSQned tfje Items QfjewQftery wftrcft were glven to tier by her fsther at the time ofttie marnage" femphssfs supptied) (10) (n the matter of Smfc Sur???c?er Kaeir Vs. Afeds?? Gopa/ Smg^ reported in AIR 198Q Punjsb and Naryana 334 the Punjab & Har/an® Hlgh Court. after considerins the scheme of the Act, 1955 and sequence In which Sectlons 23, 25, 26 anci 27 has been arranged in the Act has 'r culied out the following prlnctples tn para 7:- ^ -4- "(i) ft must be a matnmonmf proceedmg pendsng under the fiiCt before the Court 9nd an appficatton for disposa! of property must l?e macfe foefore ffte decjsron of ^e proceedfng; fff) it Is not {ucumbent on the Court to mahe provfs/on m the decree with reganS to dispQsal ofprQperty and It Is feft to its judsQfaf dsscrBtiQn: (iii) the provision so made, if any, must bejiist and proper QS the Court deems having regard to fte Qdjustment of th& equities b&tween the parties ancf a{{ surrQimdmg matenaf cfrcumstanGes: (iv) tfie order wouf^ envefope oniy thQt property whictt was presente^ at or about the ffme of the mamage, whlch means not onfy presented st tfte mamage but also at 3 tlme either pnor to or after the mamage. That must be m ctose proximny of the time of the marnage and HQt to those ma^e outsicte th@ exten^ng Hmit ofthat tlms. ^) ttie prQperty so present&d may either bs to ths orihe husbsnd or both; and fw) at the time the Court is requlred to exerclse Us discretion, ^he property may belongjomtly to both the fiusband and th@ wife." (11) On the basls of what has been observed by the Hon'bSe Supreme Court and the Single Bench of Punjab & Haryana High Gourt it would appear that an Independent proceeding under Sectlon 27 of the Act has not been contemptated from the language contained in Sectlon 27. For appltcatlon of the provlsion of Section 27 first there has to be a proceeding which can be sald to be maln proceeding under the Act 1^5 and while passing a decree In the sasd main petttlon, Court is empowered ,y -5- to make provision in the decree as it deems proper wlth respect to any property presented, at or about the time of mamage, whlch may betong jointly to both the husband and wlfe. in the present case the respondent/vsrife has not instltuted any petition seeking decree of divorce or judiciat separation or restitution of conjugal r'sghts and has stralghtway preferred an appllcatlon under Sectten 27 for return of 'Stridhan' property on the aiiegatlon that the property were presented at the tlme of marriage. Taklng guidance from judgment rendered by Hon'bSe Supreitie Court BafiQ-fshn^ Rsmctiandm Kadsm Vs. Ssngsets BslWshna Ka^am (supra) and In the Punjab & Haryana Hlgh Court Smt SyrrRder Kaiir Vs. Gopaf Smgh (supra), this Court is of the oplnlon that an independent proceedlng under Section 27 wlthout there being any maln petltlon pendtng under any other provision of the Act 1955, Is not maintainabSe. (12) In view of the above, It is heid that the respondent's appilcatton under Section 27 of the Act, 1955 was not malntajnable. The impugned judgment and decree $s therefore set-aside. howevsr the respondent^wife would be at liberty to move an appropriate apptlcation under Section 27 of the Act, 1955 before the Dlstrict Court / Famity Court, Janjgir, where the appiicatlon for dlvorce preferred by the husband is pending. It Is dlrected thst If the respondent moves such application before the District Court / Family Court, Janjglr, where the divorce proceeding iRitlated by the husband is pending, as informed by the counse! for the appellant, the I same shall be disposed of in accordance with law while decsding and j passlng a ctecree on the appiication for divorce flled by tfte [apDeitant/husband. ^ ..^.l^ -^- (13) Wfth this observation, the instant appeal fe atlowed. There shal! be no order as to costs. A decree be drawn-up accordlngly. Sd//- Prashant Kumar Mishra Judge }- "^i M