IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.757 of 2009 15 19.2.2010 Dr Gupteshwar Prasad Son of Late Narsingh Narain Resident of Mohalla Shankar Sonar Lane, New Godown, Police Station Sadar Kotywali, Gaya, District Gaya at present residenting village and Post Office- Kurkihar, Police Station Wajirganj, District Gaya ...... Applicant ...... Appellant VERSUS Smt. Sudha Rani Wife of Dr Gupteshwar Prasad Resident of Mohalla- Shankar sonar Lane, New Godown, Police Station – Sadar Kotwali, Gaya, District Gaya ...... Opp. Party .... Respondent -------- For the Appellant : M/s V. Nath and Mrigendra Kumar, Advocates For the Respondent : Mr Mahendra Bharti, Advocate -------- Heard learned counsel for the appellant and learned counsel for the respondent. By the judgment and order under appeal dated 10th August, 2006, the Principal Judge, Family Court, Gaya has allowed matrimonial case bearing MTS No.245 of 2005/ 03 of 1993 and granted a decree of divorce as claimed by the appellant against his wife, the respondent. The appeal is directed only against a direction in paragraph 28 of the judgment under appeal whereby the learned Family Court has directed the appellant (applicant) to transfer the ownership of his home situated at Shankar 2 Sonar Lane, New Godown, Gaya in the name of the respondent so that she shall stay with their children. This relief was besides a direction to the applicant to deposit a sum of Rs.2 lakhs in the name of his youngest unmarried daughter to be used for the purpose of her marriage. No alimony for maintenance was allowed in favour of the respondent because admittedly she is a retired government school teacher and is getting monthly pension and her son is also employed in the central government service. Learned counsel for the appellant has submitted that there was neither any claim for the house through any petition or pleading nor there is any provision in the Hindu Marriage Act whereunder the Family Court could have assumed jurisdiction to deprive appellant of his ownership over his house which has been directed to be transferred in favour of respondent after a decree of divorce. Learned counsel for the respondent failed to point out any petition or pleading in the written statement to show that respondent had ever laid a claim that the house should be transferred in her favour. He also failed to point out any provision in the Hindu Marriage Act, 1955 3 except Sections 25 and 27 of the Act. Section 25 provides for grant of permanent alimony for maintenance and support to either of the parties but the maintenance to be awarded can only be a gross sum or a monthly / periodical sum for a term not exceeding the life of the applicant. There is no stipulation in Section 25 for depriving one of the parties of his title and ownership over his property in the name of alimony and maintenance. So far as Section 27 is concerned, no doubt, it empowers the court while dealing any proceeding under the Act to make provisions in the decree with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife. There is no such pleading that the house in question was a property presented at or about the time of marriage and belonged jointly to the husband and the wife. To the contrary, the very direction of the Family Court clearly mentions that the appellant is to transfer the ownership of his home situated at the given locality. As a result of aforesaid discussion, we have no option but to hold that the direction given by the learned 4 Family Court, Gaya for transfer of ownership of the house of the appellant in favour of the respondent is against law and without jurisdiction. That part of the judgment and decree under appeal is set aside. The appeal is allowed to the aforesaid limited extent but without any order as to costs. (Shiva Kirti Singh, J.) (Birendra Prasad Verma, J.) sk