@ Author,
1. S. 27 of the Hindu Marriage Act uses the phrase 'property presented at the time of marriage, which may belong jointly to both the husband and the wife. This section has one prerequisite as laid down in the Balkrishna case (see below); the property must be connected with the marriage. So far as the question of property being jointly owned by the parties is concerned, suffice to say that the section nowhere uses mandatory word'must', it uses the word 'may'. The phrase 'which may belong jointly'-because of the use of the word may- includes within it penumbra the property which may not belong jointly to the parties. In my opinion S. 27of the Act does not confine or restrict the jurisdiction of matrimonial courts to deal only with the joint property of the parties, which is presented at or about the time of marriage but also permits disposal of exclusive property of the parties provided they were presented at or about the time of marriage.
2. Under S. 27 of the Hindu Marriage Act, Matrimonial courts have jurisdiction to dispose exclusive property of the spouses provided it was presented at or about the time of marriage.
3. 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 wife.
4. The Allahabad, High Court, Bombay High Court, and MP High Court (see below for citation of these cases) have taken a contrary view and have held that exclusive property of the parties can also be dealt by the matrimonial courts.
i. Kamta Prasad Vs. Smt. Om Wati [AIR 1972 All 153]
ii. Sangeeta B. Kadam Vs Balkrishna R. Kadam [AIR 1994 Bombay 1]
iii. Ashok Kumar Chopra Vs. Smt. Visandi [AIR 1996 MP 226]
5. The Delhi High Court, Orissa High Court, Jammu and Kashmir High Court, and Punjab and Haryana High Court (see below for citation of these cases) have held that exclusive property of the parties cannot be dealt by the matrimonial courts under S. 27 of the Act and they should seek remedy before regular civil courts.
i. Smt. Shukla Vs. Brij Bhushan Kakkar [AIR 1982 Delhi 223]
ii. P. Maharajan alias Nadarajan Vs. Chakalayil Kanju Sarojini [AIR 1988 Orissa 175]
iii. Sardar Surinder Singh Vs. Manjeet Kaur [AIR 1983 J&K 86]
iv. Smt. Surinder Kaur Vs. Madan Gopal Singh [AIR 1980 Punjab 334]
6. Whereas a decision from the Hon'ble Bombay High Court was taken in appeal to the Supreme Court. It was partly overruled in Balkrishna R Kadam Vs. Sangeeta B Kadam [AIR 1997 SC 3652=1997 (7) SCC 500](which I referred to as the Balkrishna case aforesaid). The Hon'ble Supreme Court held:
'It [Section 27 of the Act] includes the property given to the parties before or after marriage also, so long as it is relatable to the marriage. The expression "at or about the time of marriage" has to be properly construed to include such property which is given at the time of marriage as also the property given before or after marriage to the parties to become their "joint property", implying thereby that the property can be traced to have connection with the marriage. All such property is covered by Section 27 of the Act.'
7. Here I suggest to @ queriest to get allowed an Amendment in his written statement as well as file a Petition at an appropriate proceeding moment under S. 27 HMA while rephrasing his prayer to make provisions in the Decree to dispose co-ownership of equal share – value – price of joint cheque of parties presented by FIL at the time of marriage to both parties in accordance with S. 66 of India Evidence Act as then lead by respondent husband to meet end to justice instead of creating duplicity - multiplicity of proceeding citing above half a dozen citations.
Note here if you pray as per the suggestion then get re-framed the ISSUE and the ISSUE could sound nearest to like this as eg. "Whether the defendant is entitled to retain co-ownership of joint cheque given by FIL by way of counter claim or in the alternative to its co-share value? If so, its effect" Check with your advocate about wordings of the Issue being framed as what he feels comfortable as framed Issue and then act you will succeed [dismissing her counter claim of some invisible gifts she is putting you under stress currently ;-)]
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