Family court case THE HON’BLE MR JUSTICE V. LAKSHMINARAYANANC.R.P. No.1406 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 10.09.2024
Pronounced on : 04.10.2024 Coram
THE HON’BLE MR JUSTICE V. LAKSHMINARAYANAN
C.R.P. No.1406 of 2024
… Petitioner
-Versus-
… Respondent
Civil Revision Petition filed under Article 227 of the Constitution of
India to set aside the order passed by the Additional District Judge, (FTC),
Vellore, Vellore District dated 20.02.2024 passed in I.A.No.1 of 2022 in HMCMA.No.19 of 2022.
For Petitioner :
party-in-person
For Respondent : Mr.S.Kumar
ORDER
I have heard Ms., party-in-person and Mr.S.Kumar for the respondent.
- This civil revision petition arises against the order of the learned
Additional District Judge, Fast Track Court, Vellore District in I.A.No.1 of 2022 in HMCMA.No.19 of 2022. - The civil revision petitioner is the wife and the respondent is the husband. The petitioner married the respondent on 12.12.2010 at Bargur, Vellore District as per the Hindu Rites and Customs. There are no issues from the wedlock. Due to disputes and differences, the parties separated.
- The respondent/husband presented HMOP.No.54 of 2013 under Section 13(1)(i-a) of the Hindu Marriage Act and sought a decree for dissolution of marriage on the grounds of cruelty.
- The wife entered appearance and stated that respondent/husband was the one who used to treat her cruelly and used to assault her physically and emotionally. She pleaded that several attempts had been made towards resolution, but it was of no avail. Just prior to the proceedings, a complaint was lodged with All Women Police Station at Ranipet. On 11.01.2012, the husband appeared gave a voluntary statement that he has in his custody. The following articles belonging to the wife:(i) 75 sovereigns of gold,
(ii) 11 Silver Articles,
(iii) Rs.5,00,000/- that had been paid as dowry and
(iv) another amount of Rs.5,00,000/- that had been paid for purchase of a car. - During the course of enquiry in HMOP.No.54 of 2013, the wife filed an application in I.A.No.8 of 2018 seeking for a direction to the respondent to return the aforesaid articles. The said application came to be dismissed by the Trial Court on 29.01.2019. Aggrieved by the same, a civil revision petition was preferred by the wife before this Court in CRP (PD).No.427 of 2019.
- This Court recorded the undertaking given by the husband to pay a sum of Rs.5,00,000/- as maintenance within a period of two weeks. The receipt of this sum is not in dispute. This Court further directed the Trial Court to take into consideration the aforesaid statement at the time of disposal of the main HMOP. Even at the time of disposal of this revision, the Court refused to accept the plea that the letter dated 11.01.2012 was obtained by coercion.
- To complete the narration, the wife filed an application in I.A.No.57 of
2014 seeking interim maintenance. By an order dated 06.07.2016, the learned Principal Subordinate Judge directed the husband to pay a sum of Rs.10,000/- per month as interim maintenance and further sum of Rs.10,000/- towards litigation expenses. The said order was challenged in CRP(NPD).No.104 of 2021. This Court directed the Trial Court to dispose of the HMOP within the stipulated period and kept the revision pending till the disposal of the HMOP. Consequently, the HMOP was taken up for trial on a day-to-day basis. - On the side of the respondent/husband, who was the petitioner before the Trial Court, two witnesses were examined, including himself. He marked Ex.P1 to Ex.P11. On the side of the petitioner/wife, five witnesses were examined ie., RW1 to RW5 and Ex.R1 to Ex.R23 were marked. The letter given by the husband, undertaking to return the aforesaid amounts and articles was marked as Ex.R15.
- On the basis of the oral and documentary evidence, the learned Trial Judge came to a conclusion that the civil revision petitioner is entitled to receive the aforesaid articles. By a judgment and decree dated 10.08.2022, the HMOP was dismissed. The husband has not preferred any appeal.
- The wife preferred an appeal in HMCMA.No.19 of 2022 against thejudgment and decree seeking a direction to the respondent/husband to return 75 sovereigns of gold, Rs.5,00,000/- received as dowry, Rs.5,00,000/- paid for purchase of a car and 11 silver articles and also for a Huge fine (compensation) that has to be determined by the Court for having presented a false divorce case against her.
- In the said appeal, she took out an interlocutory application in I.A.No.1 of 2022, seeking a direction to pay compensation to her for filing a false divorce case. Notice was ordered on this application to the respondent. The respondent did not file a counter to the said application. He was set exparte.
- The learned Appellate Judge dismissed the petition stating that the appeal is not maintainable, since the civil revision petitioner had not preferred any appeal against the order passed by this Court in CRP.(PD).No.427 of 2019 dated 10.04.2019. Hence, this revision.
- Notice regarding admission was ordered by this Court on 29.04.2024. The parties were directed to appear before a Mediator. Despite the efforts of the Mediator, the mediation failed and hence, the matter was listed before me for arguments.
- By an order dated 21.08.2024, I recorded the fact that the husband has not preferred any appeal against HMOP.No.54 of 2013 and the said order has become final, insofar as he is concerned. It is the wife, who has preferred an appeal in HMCMA.No.19 of 2022. Taking into consideration, the memo filed by the counsel for respondent, I passed an order directing the
respondent/husband to return the articles, which he had undertaken to do so. - Pursuant to this direction, the husband has returned the following articles: “List of Articles
I) Details of ornaments (Gold)
Sl. Particulars Qtty Grams - Stone Haram 1 52
- Stone Necklace 1 42
- Kambal Mattal Jimikki 22
- Stone Ring 2 16
- Ordinary Haram 1 51
- Ordinary Neclace 1 51
- No e Kammal Mottal
Jimikki 1 pair 15 - Bangle 2 25
- Bangle designed 2 23
- Bracelet 1 24
- Chain – Man 1 16
- Ordinary Rings 2 7
- Rings 1 8
- Chudidhar Chain 1 12
- Stone Fancy Kambal 1 pair
and Plain Kambal 1 pair 13
Total 352 Grams (44 to 45 sovereigns)
II) Details of Silver Articles (Velli)
Sl. Particulars Qtty - Small Kuthu Vilakku 2
- Kaamatchi Amman Vilakku 1
- Vathi stand 1
- Kumgumam Chimizh 2
- Bell 1
- Camphor Aarathi 1
- Theertha Glass 1
- Spoon 1
Total 10
II) Details of Steel Vessels
Sl. Particulars Qtty - Big Steel Andaa 1
- Small Steel Andaa 1
- Half Steel Andaa 1
- Drum with Lid 1
- Steel Kudam 7
- Steel Big Bucket 1
- Small Bucket 1
- Tiffin Carrier – Big 1
- Tiffin Carrier – Small 1
- Thirugan Sombu 2
- Pooja Putti 1
- Small Anna Koodai 1
- Small Kudam 1
- Bucket wit Lid 1
- Box with Lid 6
- Vessels 7
- Mundhiri Tiffin 2
- Basins 3
- Gunda for Milk-Big, Small 2
- Vessel with Lid – Big 1
- Thookku with lid 7
- Aruvamanai 1
- Steel Plates for Food 4
- Thaambalam – Small 1
- Thambalam – Big 1
- Steel Plates 7
- Jug 3
- Glasses 25
- Filter for Coffee 1
- Sombu 6
- Puri Box 2
- Vegetable Koththu 1
- Vegetable Seeval 1
- Jalli karandi 3
- Sambar Karandi 4
- Dosa Tawa 1
- Vaanali with lid 1
- Vaanali 1
- Rasam Bowl 1
- Spoons 4
- Port spoon 6
- Vessels 3
- Vessels 8
- Kuzhambu Bowls 4
- Kuthir 2
- Siladai 12
- Idly kukkar 1
- Rice kukkar 1
II) Details of Brass Vessels (Piththalai)
Sl. Particulars Qtty - Andaa – Big 1
- Andaa – Small 1
- Thaambaalam 2
- Raagi Kudam 1
- Kudam 3
- Kundu Sombu 1
- Bucket – Big 1
- Kaamaatchi Amman Vilakku 1
II) Details of Other Household Articles
Sl. Particulars Qtty - Beero 1
- Fridge 1
- Washing Machine 1
- Cot 1
- Bed 1
- Pillow 1
- Bed Sheets 1
- Bags 1
- Grinder 1
- Mixi 1
- Gas stove 1
- Hot Box 1
- Jug 1
- I recorded the said fact on 28.08.2024 and held that I would decide on the finding of the learned Trial Judge that the appeal is not maintainable at the instance of the wife and adjourned the matter to 10.09.2024.
Scope of Section 25 and 27 of Hindu Marriage Act vis-a-vis dismissal of a divorce proceeding - This court in Ranganatham v. Shyamala, AIR 1990 Mad 1 held that under Section 25 of the Hindu Marriage Act, a Court can grant relief only if a decree of divorce is granted. In case the divorce petition is dismissed, then no relief in terms of Section 25 can be granted to a party. This issue is no longer res integra. It was considered by the Supreme Court in Chand Dhawan v. Jawaharlal Dhawan, (1993) 3 SCC 406. Justice M.M.Punchhi held that the words “any decree” occurring in Section 25 of the Hindu Marriage Act takes into consideration only decrees that disturb the marriage or confer or take away any legal character or status relating to the marriage. He held that a decree of dismissal of the divorce proceeding is not covered under the term “any decree” under Section 25. The relevant portion of the judgment is extracted hereunder:
“By rejecting a claim, the matrimonial court does make an appealable decree in terms of Section 28, but that neither affects nor disrupts the marriage. It certainly does not pass a decree in terms of Section 25, for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or take away any legal character or status.”
In other words, when an application, filed for any one of the reliefs under Hindu Marriage Act, is dismissed, then an application under Section 25 will not lie. - As to how a Court should proceed with respect to the properties involved in such disputes is found under Section 27 of the Hindu Marriage Act. Section 27 of the Hindu Marriage Act was introduced for the purpose of putting an end to the multiplicity of proceedings with respect to the properties between the parties to a proceeding for divorce.
- As per Section 27, a Court should make a provision in the decree, as it deems just and proper, with respect to any property presented at or about any time of the marriage, which may belong jointly to the husband and wife. This provision was interpreted by a Division Bench of Bombay High Court in Sangeetha Balkrishna Kadam v. Balakrishna Ramchandra Kadam, AIR 1994 Bom 1. Justice Saldanha, speaking for the bench, held that the Court is entitled to exercise its discretion and pass appropriate orders in relation to the properties not covered under Section 27 at the time of disposal of any petition filed under the Act.
- This Court in V.B.Jaganathan v. A.R.Srividhya, (1997) 2 MLJ 366, dealt with the question whether a direction can be given to the husband to return certain articles, which belonged to the wife, pending disposal of the divorce petition. It was argued on behalf of the husband that as Section 27 does not deal with properties which are individually owned by the parties, such a direction cannot be given. After referring to the several authorities on this point, the
Hon’ble Mr.Justice S.S.Subramani came to the following conclusion:
“If the matrimonial relationship comes to end, the Court gives direction regarding the custody of the children, what are the rights and control over the joint properties owned or possessed by them, etc. From the above scheme, it is clear that all accounts are being settled by that decree. The party should not be again asked to file an action for recovery of any property though a suit may not be barred. But, as far as possible, all matters in dispute are to be settled by that Court itself.” - Having taken this view, the learned Judge held that the Court has the power under Section 151 read with Order VII Rule 7 of the Code of Civil Procedure to give such directions, as may be necessary, for putting an end to the litigations between the parties.
- From the above, it is clear that not only the Court has the power to grant divorce and issue directions with respect to the properties jointly owned by the parties to the dispute, but may also proceed further and give directions with respect to the properties of the wife, which are in the hands of the husband and vice versa.
Enlargement of the power of the Court – Section 26 of the Protection of Women from Domestic Violence Act, 2005. - The position of law laid down by the Court set forth in paragraph 18,
seems to have been taken note of the Parliament, at the time of enacting the Protection of Women from Domestic Violence Act, of 2005. Under section 26, any of the reliefs under Sections 18 to 22 of the Domestic Violence Act that can be granted by a Court dealing with an application under Section 12 of the Protection of Women from Domestic Violence Act, can also be granted by a civil, criminal or family Court. The said reliefs can be granted in “any legal proceeding” pending before the Courts. Therefore, the Parliament has enlarged the power of the Courts to grant relief to an aggrieved woman. These reliefs are “in addition to and along with any other relief” that a civil or criminal court may grant in the proceedings. This is clear from Section 26(2) of the Domestic Violence Act. The Parliament had cautiously avoided the usage of the word “decree”, as found in Sections 25 and 27 of the Hindu Marriage Act. The words that have been used are “disposal”. Therefore, the limitations of 25 and 27 of the Hindu Marriage Act do not restrict the power of Civil Court, by virtue of enlargement of the powers vested in it on account of Section 26 of the Domestic Violence Act. The Parliament has broken the chains tying down the Courts from granting relief to a aggrieved wife in case of dismissal of a divorce petition filed by the husband. The end result of this discussion is that even if a divorce petition is dismissed, a Civil Court or a Family Court can exercise the powers from Sections 18 to 22 of the Domestic Violence Act and provide succour to the wife. - Under Section 18 of the Domestic Violence Act, a court is entitled to pass protection orders. Under Section 19, a court can pass an order with respect to residence. Insofar as monetary reliefs are concerned, it is covered under Section 20 of the said Act. Section 20(c) would state that at the time of disposal of an application, a court can assess the loss that is caused due to the destruction, damage or removal of any property from the control of the aggrieved person. Similarly, a court can also grant maintenance for the aggrieved person as well as for her children, if any, in addition to the orders of maintenance under Section 125 of the Code of Criminal Procedure, 1973 or any other enactment for the time being in force. Section 20 demands that the monetary relief under that Section should be adequate, fair, reasonable and consistent to the standard of living to which the aggrieved person accustomed.
- With respect to compensation, the same is covered under Section 22 of the Act 43 of 2005. Under Section 22, a court can pass an order directing the respondent to pay compensation and damages not only for the injuries but also for the mental torture and emotional distress caused to her on account of acts of domestic violence. In the facts of this case, it is pertinent to point out here the findings of the Trial Court in Paragraph 22 of its judgment. The Court had held the respondent had harassed the petitioner. Whether these acts attract Section 3 of the Protection of Women from Domestic Violence Act is for the Appellate Court to decide at the time of disposal of the appeal.
- A reading of Sections 18 to 22 along with Section 26 of the Act makes it clear that a civil court, at the time of disposal of the proceedings, can invoke the aforesaid Sections and grant remedy to the wife, if it attracts any of the provisions of the said legislation.
Maintainability of the Appeal - The appeal before the Additional District Judge, in this case, is not a regular civil proceeding but one arising out of a matrimonial dispute. The learned District Judge has taken a view that as the civil revision petitioner has not preferred appeal against the order passed by this Court in CRP(PD).No.427 of 2019 dated 10.04.2019, the petitioner is not entitled to agitate the relief that she sought for in I.A.No.8 of 2018 as well as in HMCMA 19 of 2022.
- I have to refer to the order passed by Hon’ble Ms.Justice P.T.Asha.The learned Judge, after hearing the respondent/husband, had confirmed the letter that had been given by him to the authorities undertaking to refund the aforesaid articles was a voluntary act. The learned Judge rejected the argument of the respondent/husband that the letter had been procured in coercion. The learned Judge held as follows”
“Though the learned counsel would feebly submit that this document was obtained under coercion, till date the document from the year 2012 has not been questioned by the respondent/husband, which clearly shows that the said letter has been voluntarily executed by the respondent/husband.”
This finding makes it clear that the court had come to a conclusion that the respondent/husband has accepted that he is in possession of the articles mentioned in the said letter. However, in order to give an opportunity to the husband, the learned Judge directed the learned Principle Subordinate Judge to take into consideration the said letter and give an opportunity to both the husband and wife and proceed to pass orders on the same, at the time of disposal of the proceedings. In fact in a partial discharge of maintenance liability, he had also paid a sum of Rs.5,00,000/- to the wife which the party-inperson acknowledged during the course of this revision. - The learned Principal Subordinate Judge, as pointed out above, had referred to the said letter and had rendered a finding that the wife is entitled to receive the said belongings. Unfortunately, a decree for the return of the said articles was not granted at the time of passing the judgment on 10.08.2022. Perhaps, this was on account of the fact that the learned Sub Judge felt such a direction cannot be given on account of the view taken by this Court and the Supreme Court referred in paragraph 18. He could have always referred to
Section 26 of Act 43 of 2005, which is a Parliamentary direction to the Civil Courts, Family Courts and Criminal Courts, that they can exercise the powers under Sections 18 to 22 of Act 43 of 2005 and grant relief to the aggrieved wife under the said section. - Furthermore, as seen from the memo filed by the respondent, he had returned 352 grams of gold, 10 silver articles, steel vessels, brass vessels and household articles of the wife, which were in his possession. This leaves a silver plate, Rs.10,00,000/- paid in cash and remaining 30 sovereigns of gold which are in the hands of the husband.
- This court in CRP(PD).No.427 of 2019 did not come to a conclusion that the wife is not entitled to these articles. On the contrary, it had come to a conclusion that the letter given by the husband on 11.01.2012 had been voluntarily executed by the respondent/husband. It had directed the learned Principal Subordinate Judge to take into consideration the said letter and pass appropriate orders. The wife, being a successful party in the revision, could not have preferred a special leave petition from the said order. Therefore, the findings of the lower appellate court, as if the civil revision petition had been dismissed and the wife should have preferred an appeal against the said order, is erroneous.
- A combined reading of Hindu Marriage Act and the Protection of Women from Domestic Violence Act leads me to conclude that while an order cannot be passed under Section 25 or Section 27 of the Hindu Marriage Act, if the divorce petition is dismissed, a court dealing with the matrimonial proceedings is always entitled to grant such direction by virtue of Section 26 of the Domestic Violence Act. In addition, a Court can always mould the relief under Order VII Rule 7 read with Section 151 of the Code of Civil Procedure by directing the husband to return the jewels of the wife which is in his custody. In case he defaults, there could be an assessment of the value of the articles in his custody, which had been removed from the custody of the wife and a decree for money equivalent to the loss caused to the wife can be passed in terms of section 20(1)(c) of the Protection of Women from Domestic Violence Act, 2005. This failure on part of the learned Trial Judge entitles the civil revision petitioner to seek for return of the same by way of HMCMA.No.19 of 2022.
- With respect to compensation, I have to agree with the learned
Appellate Judge that it cannot be granted as an interim relief. As is clear from Section 22 of the said legislature, compensation can be ordered at the time of disposal of the proceedings. The learned Appellate Judge has stated that the civil revision petitioner has not sought for the relief in HMCMA.No.19 of 2022. The prayer that is sought for in the grounds of appeal would show that the civil revision petitioner has sought for “a huge fine order” for having wasted the precious time of the court for 11 years by filing a false divorce case. The learned Appellate Judge is requested to remember the appellant before her is an aggrieved woman and appearing as a party-in-person. If the court has the power to grant the relief, the mere fact that wrong wordings have been used in seeking the relief should not lead the court to deny the said relief to the party. - I have found that under Section 20(2) of the Protection of Women from Domestic Violence Act, a court has the power to award compensation. When this Section is read along with Section 26 of the very same legislation, even a civil court, which the lower appellate court is, is entitled to grant relief of compensation. At the time of disposal of the appeal, the court shall decide with the said issue. In fine, the learned Judge shall decide the issue as to whether the wife is entitled to any compensation, at the time of final disposal of the appeal.
- The learned District Judge is correct in coming to the conclusion that the said compensation cannot be paid in an interlocutory proceedings pending the civil miscellaneous appeal. However, she is not denuded of the powers to award compensation in the appeal itself. In addition, the code of civil procedure contemplates awarding of costs, exemplary costs and penal costs, if the facts and circumstances of the case, so require.
- In the light of the above discussion, the civil revision petition is disposed of with the following directions:
(i) HMCMA.No.19 of 2022 is maintainable as the wife is entitled to seek return of the articles belonging to her and seek for compensation in terms of Sections 18 to 22 of the Domestic Violence Act & Section 151 read with Order
VII Rule 7 of the Code of Civil Procedure.
(ii) CRP(PD).No.427 of 2019 dated 10.04.2019 having been disposed in favour of the civil revision petitioner/wife, there was no necessity for her to file an appeal before the Supreme Court.
(iii) The Court shall determine the compensation, if any, that the wife is entitled to at the time of final disposal of the appeal.
(iv) The learned appellate judge, at the time of final disposal, shall take into consideration that the husband has returned 44 sovereigns of gold, 10 silver items, excepting 30 sovereigns of gold, a silver plate and Rs.10,00,000/- that had been received by him from the civil revision petitioner.
(v) The learned Principal District Judge at Vellore, having granted the relief of interim maintenance pending disposal of HMCMA.No.19 of 2022 in and by way of an order in I.A.No.2 of 2022 dated 08.03.2023 and the attempts of the husband having failed in setting aside the said order in I.A.No.3 of 2022 dated 20.11.2023, the learned Additional District Judge, Vellore shall ensure that maintenance amounts that are due to the wife in terms of the order passed in I.A.No.1 of 2022 are paid in full.
(vi) In case of default, the court shall take coercive steps, including issuing orders of attachment of salary of the respondent, to ensure that the amounts due towards maintenance are paid to the petitioner/wife.
No costs.
04.10.2024 nl
Index : Yes/No
Speaking Order/Non-speaking order
Neutral Citation : Yes/No
To
1.The Additional District Judge, (FTC), Vellore, Vellore District
V.LAKSHMINARAYANAN, J. nl C.R.P.(PD).No.1406 of 2024
04.10.2024