Decided on July 20,1982

MANJEET KAUR Respondents


I.K.Kotwal, J. - (1.) Two cross petitions i. e. one filed by Surrinder Singh, the appellant herein, under Section 9 of the Hindu Marriages Act, 1955, and the other by Manjeet Kaur, the respondent herein, were disposed of by District Judge, Jammu, by the consent of the parties, and a decree for judicial separation passed in favour of the respondent against the appellant. During the pendency of these proceedings, the respondent had also moved an application under Section 27 of the Act, seeking disposal of certain articles of moveable property, some of which, according to her, were her exclusive property, whereas the others were the joint property of the parties. She had annexed two lists to her application, out of which List A, which inter alia included gold ornaments, represented her exclusive property. The appellant in his objections had, however, contended that the entire property was the joint property of the parties, as it had been gifted away to both the spouses at or about the time of their marriage.
(2.) The learned District Judge, on agreement of the parties, had initially appointed one S. Avtar Singh Advocate as the Superdar of the said property, and the appellant had willingly undertaken to hand over to him the aforesaid property, which was admitted by him to be in his possession. Later on, he has fallen back upon his word and had challenged the aforesaid order in appeal before this Court. That appeal was heard and disposed of by me by my order dated 7-5-1979, the operative part whereof reads as under :- "This appeal is totally misconceived. Apart from the fact that the appeal has been preferred against an agreed order, the order itself is totally innocuous as what the trial Court has actually done is that it has kept the articles on the superdnama of a counsel for one of the parties without deciding any right to their ownership. I find no force in this appeal which is dismissed with costs." After this appeal came to be dismissed, a new Superdar, namely, Mr. S. L. Kotwal Advocate was appointed by the Court, again with the consent of the parties, to whom some articles of the property were also handed over by the appellant, which of course did not include ornaments weighing six tolas of gold, which the respondent claimed to be her exclusive property, and which the appellant said were jointly owned by the parties. The learned District Judge by a separate order passed on her application under Section 27, which too came to be passed on the same date on which the main petitions were disposed of by him, directed the Superdar to hand over the property entrusted him to the respondent, besides directing the appellant to hand over to her the ornaments weighing six tolas of gold. The appellant has challenged the aforesaid order in this appeal on two grounds: firstly, that he could not have passed such an order on a separate application, but could have given such a direction in the decree in the main petition in itself; and secondly, that he has erred in law, in that, he without making any enquiry and recording any finding to that effect has treated the ornaments tc be the exclusive property of the respondent and issued the impugned direction accordingly, even though he otherwise too has no jurisdiction under Section 27 to make such a direction in respect of the separate property of any party to the litigation. At this stage it becomes necessary to take notice of Section 27 which reads as under: "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 belong jointly to both the husband and the wife."
(3.) Whereas Section 27 deals with the property belonging to the spouses, Section 26 deals with their children, and Section 25 with permanent alimony and maintenance that may be awarded in favour of a party. Power of the Court to pass an order under these sections is discretionary. The object behind the enactment of these sections appears to be to ensure a severance in possibly all respects between those spouses who, as the Court thinks, cannot live together. The framers of the Act intended that in their own interests, as well as in the interests of their children, every attempt should be made to settle all possible disputes between such spouses, and that too once for all, so that they do not have any opportunity to enter into fresh litigation with each other, on any account whatsoever. Keeping in view the aforesaid legislative intent and the plain language of Section 27, the following propositions clearly emerge : (i) power of the matrimonial Court under Section 27 of the Act is discretionary; (ii) pendency of a main proceeding e. g. for divorce, judicial separation, restitution of conjugal rights etc. etc. is a condition precedent for the exercise of this power. (iii) this power can be exercised by the Court only in respect of that property, whether movable or immovable, which is jointly owned by the parties; (iv) that joint property must be such as was presented to them at a time or stage which is in close proximity to the time of their marriage, whether it in presented at, before or after the marriage; and (v) a provision in regard to such property has to be made in the decree itself that the Court may eventually pass in the main proceeding, but not by a separate order.;

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