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IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
H.D. Patel, J.
Nandini w/o Sanjiv Ahuja.... Appellant.
Versus
Sanjiv s/o Birsen Ahuja .... Non-applicant.
Civil Revision Application No. 113 of 1988, decided on 30-3-1988.
Advocates appeared :
Smt. K.V. Sirpurkar, for applicant.
A.B. Oka, for non-applicant.
The word belong as used in the section was interpreted exhaustively in Surinder Kaur v. Madan Gopal Singh, AIR 1980 P & H 334, Para 8 of the Judgment reads as follows :
"Now it is well understood that the word "belong" necessary does not reflect title to the property in the sense of ownership. It only denotes connection with property and is a term connecting a person with his possessions. It appears to me that the property thus presented to the spouses within the afore - explained time limit, may fall jointly to belong to both the bus band and the wife, irrespective of the title in these properties to be vesting in one or the other, or both. To give an earth example, a saree presented by the bus band, or anyone else to the wife, mayor may not involve transfer of title to the saree to wife, but will belong to her exclusively, and not jointly to both the husband and wife, as the very nature of the husband in the same fashion would be exclusively belonging to the husband. Properties and Articles presented from any source and to any. one of them which by the very nature of the present, or by intention of the donor, or by tacit agreements of spouses, bas come to be jointly in use by both the husband and the wife, can well be said to belong jointly to both of them. An earthly example of such incident can be that of a set of dining table and chairs for joint user in the matrimonial home irrespective of the fact as to which spouse received it as a present within that allocated time the said dining table and chairs would obviously be joint belonging of both the husband and the wife and capable of being subjected to orders under Section 27 of the Act."
I fully subscribe to this view, Section 27 provides for sharing of that property which the spouses received individually or collectively as presents at or about the time of marriage and which bas come to be as a way of life in their joint use in their day - to - day living and thus may belong jointly to them. Such joint belongings require the attention of the Court proper apportionment.
HINDU MARRIAGE AND DIVORCE RULES, 1955
Rule 4 (i) (b) - Rule not mandatory - Non - disclosure of property as envisage thereby not fatal to petition.
Where there is no such property as envisaged by Section 27 of the Hindu Marriage Act, there is no necessity to make such a disclosure because the rule states that the property should be mentioned, if they by any the words "if any" assume importance. Had there been an indication to make the rule mandatory, then the words "if any" would not have been added. The said rule appears to have been framed to assist the spouse against whom the petition is filed so that proper order regarding disposal of property could be made by taking such plea in defence. Non - disclosure of the property in the petition cannot prevent the other spouse for demanding share in property covered by Section 27 of the Hindu Marriage Act. Rule 4 (i) (h), is therefore, not mandatory as claimed by the applicant. It would, however, be appropriate for the petitioner to make a statement in the petition which is duly verified that he or she does not possess the property covered by Section 27 to obviate the delay in deciding the petition. In no circumstance, nondisclosure of the property as envisaged by Rule 4 (i) (h) can be fatal to the petition, more so because of the absence of any provision providing for dismissal of the petition in the Act.
2. The non-applicant filed a petition under section 13 of the Hindu Marriage Act seeking a decree of divorce against the applicant-his wife, on the allegations that she had adulterous relations with one Anil Jaydayal Taneja; who is the husband of the sister of the applicant. That petition is being resisted by the applicant by filling a detailed written statement. The applicant in para 13 of the written statement contended that in the marriage the non-applicant has been able to gain handsome amounts and also received attractive and costly presents, the list of which would be filed in due course. During the pendency of the petition an application (Exh. 64) was moved by the applicant stating therein that the non-applicant has contravened Rule 4(1)(h) [sic (g)]of the Hindu Marriage Divorce, Rules, 1955 (hereinafter referred to as “the Rules”) framed by the Bombay High Court under sections 14 and 21 of the Hindu Marriage Act by not disclosing in the petition the particulars relating to property mentioned in section 27 of the Hindu Marriage Act and, therefore, the petition filed by the non-applicant should be dismissed.
3. The non-applicant filed his reply inter alia contending that the provisions of Rule 4(i)(h) of the Rules framed by the High Court is only directory and not mandatory. His further contention was that section 27 of the Hindu Marriage Act provides for disposal of the property jointly owned by the applicant, and the non-applicant. Since there is no property as contemplated by section 27 of the Hindu Marriage Act, the same was not mentioned in the petition. According to the non-applicant, the application was frivolous and the petition was maintainable.
4. After hearing the parties the learned Court below passed the order impugned rejecting the application outright. According to the learned Court below section 27 of the Hindu Marriage Act had no application in the present case because that section did not apply to exclusive properties of any spouse received by them at the time of marriage. It also held that Rule 4(1)(h) of the rules is not mandatory as claimed on behalf of the applicant, but it is directory as contended on behalf of the non-applicant. These findings are now being assailed in this revision.
5. Mrs. Sirpurkar, advocate, appearing on behalf of the applicant very streneously criticised the order impugned by contending that the property envisaged by section 27 of the Hindu Marriage Act must not only be the property which jointly belonged to the parties, but also includes individual properties. In this context reliance was placed on the decision of the Allahabad High Court in (Kanta Prasad v. Smt. Om Wati)1, A.I.R. 1972 Allahabad 150 and the latter judgment of the Delhi High Court in (Anju Bhargava v. Rajesh Bhargava)2, (1986)II D.M.C. 467. A further submission was also made that Rule 4(i)(h) of the rules must be held to be mandatory and non-compliance thereof must be held to be fatal to the maintainability of the Hindu Marriage Petition.
6. Repelling the above contention on behalf of the non-applicant, it was submitted by Shri Oka, advocate that in no circumstance the petition is liable to be thrown out for alleged non-compliance of Rule 4(1)(h) of the rules since no such consequence is provided. Therefore, he further supported the order impugned by relying upon the cases discussed therein.
7. The Supreme Court in (Pratibha Rani v. Surajkumar and another)3, A.I.R. 1985 Supreme Court 628 has pointed out that pure and traditional presents given to the bride in a Hindu wedding may be divided into three categories, viz.---
(a) property intended for exclusive use of the bride, e.g. her p
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