09 May 2009
One of my lady client has filed s. 13 & s. 27 HMAct and 125 CrPC against her husband. Husband appeared , filed w.s. in all the three cases. The case u/s 13 & 27 HMAct were consolidated by the court in an earlier date. In last date husband filed a four line application in divorce case that he is giving his consent for divorce and the divorce case should be decided. The court also became ready to pass the decree in divorce without deciding the other pending cases U/s 27 & 125. The husband comes from Chennai & we know that after getting divorce decree he will not turn up in other cases. We want that all the 3 cases should be decided simultaneously.
Now, (1) Whether the Court can decide divorce on the basis of consent given by husband? (2) Whether the divorce case can be decreed without deciding (before) s. 27 HMAct? (3) If no, pls give any latest caselaw.
09 May 2009
Dear Mr. Satish, so far as your first question is concern it is my view that the court can decide divorce on the basis of consent given by her husband bcoz as you mentioned in your quarry that all the three cases are independent and separate and u/s 13 and 27 of HM Act were consolidated by the court earlier and her husband given consent in divorce case(If nothing is adverse in your client's petition). In Kamta Prasad v. Om Wati's case, wherein a learned Judge held that even though Section 27 of the Hindu Marriage Act deals only with the joint properties of the husband and wife, since the provision of Civil Procedure Code is made applicable to proceedings under the Hindu Marriage Act, invoking the powers under Section 151, C.P.C. read with Order 1, Rule 7, C.P.C., the court also can give directions regarding separate properties to either parties. It is only incidental to the power already exercised. It is not going against the provisions of the Statute. It further held that where even disputed question could be resolved and decided, and necessary relief could be granted, it was only natural that admitted or proved fact also can be taken into consideration to grant the relief. The High Courts are unanimous in regard to the scope of Section 27 of the Hindu Marriage Act. Law says that court is entitled to invoke its powers only if the property belongs jointly to husband and wife. Commenting on Section 27 of the Hindu Marriage Act Mulla's Principles of Hindu Law, 15the Edition, at page 890, the learned Author has said thus: The rule laid down in this section is intended to prevent multiplicity pf litigation in respect of certain property between parties to any proceeding under the Act by laying down in effect that an application with respect to any property presented at or about the time of marriage to both the husband and the wife may be made by either party to such proceeding and that the court may in the exercise of its discretion make provision for disposal of such property as it deems just and proper. If the property is kept in the custody of the husband or her in-laws, they must be treated as trustees and are bound to return the same when demanded. Section 27 does not exclude the general power of the court to pass an appropriate decree in regard to the property belonging exclusively to either the husband or the wife. Now as per your 2nd problem, Whether the divorce case can be decreed without deciding S.27 of HM Act? So, where the case were consolidated by the court so it is duty of the court to decide S.27 simultaneously otherwise there is some specific pleadings made by husband before giving consent in divorce case that he is agree to refund her Stridhan also. as per your case, husband filed a four line application in divorce case and praying therein that the divorce case should be decided; it can not be said that he wants to pay Stridhan to your client. So you have a right to contest the case if your client had given a list of articles which were given at the time of marriage and signature of both parties are there; that will be beneficial to you to prove your case. So far as 125 of Cr. P. C. is concern, your client has got right to claim maintenance from her husband after taking divorce till living as a divorcee. If she married, her right to get maintenance has been seized.
10 May 2009
I have doubt about maintainability of independent case u/s 27. an application u/s 27 can be filed in a case u/s 13 and the same can be decided alongwith disposal of main case. however, in my opinion there is no bar on the powers of court to decide application u/s 27 or s. 13 at two separate stages.s. 27 is enabling provision and confers on court wide discretion. court could not be compeled to decide both issues/cases by one order. further if two cases can be consolidated,it is inherent that they can be deconsolidated also.
10 May 2009
U filed a memo or an interrium application u/s 151 of c.p.c. praying to decide the clubbed cases simulteneoulsy before the court. Court cannot decide the divorce case leaving other cases which are clubbed.
18 May 2009
DEar Satish, It is a settled law that no seperate decree can be granted in s. 27 of HMA and case U/s 27 can't proceed seperately, hence court should decide the both cases U/ s. 13 & 27 HMA simultaneously.