Madras High Court
Nagadevi vs R.Venkatesh on 7 December, 2021
Author: S.Vaidyanathan
Bench: S.Vaidyanathan, G.Jayachandran
C.M.A.(MD) No.957 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
and
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
C.M.A.(MD) No.957 of 2021
and
C.M.P.(MD) No.9072 of 2021
Nagadevi ... Appellant
-vs-
R.Venkatesh ... Respondent
Civil Miscellaneous Appeal filed under Section 19 of the Family
Courts Act, praying to set aside the fair and decreetal order dated 14.06.2021,
passed in I.A.No.619 of 2019 in H.M.O.P.No.147 of 2017, on the file of the
Family Court, Madurai.
For Appellant : Mr.T.Lajapathi Roy
For Respondent : Mr.K.Soundararajan
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https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.957 of 2021
JUDGMENT
S.VAIDYANATHAN, J.
and DR.G.JAYACHANDRAN, J.
This civil miscellaneous appeal is filed challenging the fair and decreetal orders dated 14.06.2021, passed in I.A.No.619 of 2019 in H.M.O.P.No.147 of 2017, by the Family Court, Madurai.
2. The relief sought for in I.A.No.619 of 2019 filed by the respondent / husband and the operative portion of the impugned order are as below:
“PRAYER:
For the reasons stated in the accompanying affidavit, it is prayed that this Hon'ble Court may pleased to directed to the respondent to return the jewels described in the schedule or property hereunder to the petitioner and thus render justice.
Schedule of property
1. Gold Thali Chain - 1
2. Gold bangles - 6
3. Gold bracelet - 1
4. Gold long chain - 2
5. Gold Peacock necklace - 1
6. Gold necklace - 1
7. Gold ear rings - 1
8. Pearl & Green Stone gold malai - 1 _______________ Page 2 of 16 https://www.mhc.tn.gov.in/judis C.M.A.(MD) No.957 of 2021
9. Navarathina ring - 1
10. Red+White+Green Stone ring - 1
11. Gold ring - 1
12. Baby gold hip chain - 1
13. Baby gold Chain - 1
14. White+green stone gold baby bracelet - 2
15. Silver FA;Fk rpkpH; - 3 bts;sp bfhYR - 1 Pair bts;sp bkl;o - 1 Pair” OPERATIVE PORTION OF THE IMPUGNED ORDER:
“...So it is clear that 100 pouns of jewels given by the petitioner parents and other 50 pouns which was given by the petitioner's parents to the respondent and her son were kept in the locker and the locker key is with the respondent. Further in the main case also this court hold that the petitioner is entitled for divorce. Hence this court is of the opinion that the jewels which were given to respondent and child by the petitioner parents has to be returned back to the petitioner. Hence this court hold that this petition to be allowed and to direct the respondent to hand over the jewels mentioned in the schedule of property to the petitioner.
In the result, this petition is allowed and the respondent is directed to hand over the jewels mentioned in the schedule of properties to the petitioner. No cost.” _______________ Page 3 of 16 https://www.mhc.tn.gov.in/judis C.M.A.(MD) No.957 of 2021
3. The list of jewels more fully described in the petition were initially handed over to Nagadevi / respondent in the interlocutory application at the time of marriage by the mother of Venkatesh / petitioner in the interlocutory application and the same was kept in the bank locker bearing No.525 in Tamil Nadu Mercantile Bank, Simmakkal Branch, Madurai, with a facility of operating by either the petitioner (husband) or the respondent (wife). The key of the above said bank locker was with the respondent (wife). The respondent (wife) took back all the jewels kept in the locker, which includes 40+10 soverigns of jewels handed over by the parents of the petitioner to the respondent. Since the marriage between the petitioner and the respondent has reached the point of no return, a petition for divorce on the ground of cruelty in H.M.O.P.No.147 of 2017 came to be filed by the petitioner and it was allowed on 14.06.2021 granting divorce. In the connected interlocutory application, the petitioner prayed for return of the gold and silver jewels more fully described in the petition.
4. After considering the submissions made by the petitioner (husband) as well as the respondent (wife), the Family Court, Madurai, has passed the impugned order dated 14.06.2021 directing the respondent (wife) to hand over the jewels mentioned in the schedule of property to the petitioner.
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5. Aggrieved by the said order, the wife has filed this civil miscellaneous appeal on the ground that the Trial Court failed to consider that the entire jewels were kept in the bank locker bearing No.525 at Tamil Nadu Mercantile Bank, Simmakkal Branch, Madurai, in the joint name of the appellant (wife) and the mother of the respondent, namely, Jamuna Rani. When the appellant not even possessed and enjoyed her own jewels and only her mother-in-law was the incharge of the jewels, the claim of the respondent (husband) that the appellant (wife) possesses 40 sovereigns of jewels presented to her by his mother and 10 sovereigns of jewels presented to the child by his parents is completely futile. Further, the petition for return of jewels lacks details with respect to the weight and specific particulars of the jewels enlisted and also the purchase particulars of the same. Therefore, the prayer to return the jewels cannot be simply adjudicated and decided over the claim of the respondent (husband).
6. It was also contended that the appellant (wife) was subjected to brutal assault by the respondent (husband) leading to Police interference and registration of complaint. While so, it cannot be stated that the appellant has taken the entire jewels from the bank locker more particularly when the locker was to be operated by the appellant (wife) and her mother-in-law on either or survivor basis. Mere access to the locker by the appellant cannot be treated _______________ Page 5 of 16 https://www.mhc.tn.gov.in/judis C.M.A.(MD) No.957 of 2021 as evidence or proof for removal of the jewels kept in the bank locker by the appellant. The attitude of the respondent (husband) seeking return of Mangalsutra when the divorce proceedings were pending would clearly show his intention, which was not taken note of by the Trial Court.
7. Regarding mediation held in the presence of P.W.2 – S.K.Mohan, the appellant (wife) would submit that P.W.2 is not a competent person to say about the weight and description of the jewels, since he is not a jewel appraiser. The ledger of the bank locker bearing No.525, which was marked as Ex.X2, though signed by the appellant on 09.02.2015, but there is no entry or proof to show that the jewels were removed by the appellant. Therefore, the impugned order passed by the Family Court is liable to be set aside.
8. The learned counsel appearing for the respondent (husband) would submit that the Trial Court has gone into the facts of the case and evidence meticulously and held that the admission of the appellant (wife) regarding receipt of the jewels during Kaappu Kattum function and the fact that the bank locker is maintained by the appellant along with Jamuna Rani on either or survivor basis, coupled with the fact that the mediation held on 07.02.2015 in the presence of the witnesses to alter the operator's name by deleting the name of the mother-in-law and including the name of the _______________ Page 6 of 16 https://www.mhc.tn.gov.in/judis C.M.A.(MD) No.957 of 2021 respondent (husband) and also the admission of the appellant that the key of the bank locker is with her till date, would clearly prove that the jewels kept in the bank locker are with her possession. Furthermore, since the marriage itself has been dissolved by a decree dated 14.06.2021, the appellant (wife) has no legal or moral authority to hold back the jewels given to her and her minor son by her in-laws.
9. The learned counsel appearing for the appellant would submit that even according to the respondent, who is the petitioner in I.A.No.619 of 2019, 50 sovereigns of gold jewels alleged to have been retained by the appellant were given to her by the parents of the respondent (husband) as gift and out of 50 sovereigns, 10 sovereigns were given to the minor boy and 40 sovereigns were given to the appellant. The character of the jewels given to the appellant carries the meaning “Stridhana” and as per the pronouncement of the Honourable Supreme Court in Pratibha Rani vs. Suraj Kumar and another [(1985) 2 SCC 370] reversing the Judgment of the Punjab and Haryana High Court, the stridhana property is exclusively given to the bride. The husband or his family members have no right over it. It being a question of law, though it was not canvassed before the Trial Court, the appellant is entitled to raise this point. That apart, a preliminary objection was raised regarding maintainability of the petition for return of jewels on the ground that _______________ Page 7 of 16 https://www.mhc.tn.gov.in/judis C.M.A.(MD) No.957 of 2021 admittedly, the jewels were given by her parents-in law, so the husband has no locus to seek for return of the jewels.
10. Regarding the question of locus, the respondent herein (husband) has filed an affidavit, dated 02.12.2021, sworn in by his parents. In which, paragraph Nos.2 and 3 read as follows:
“ ...
...
2. We state that our son, the respondent above named and the appellant's marriage took place on 21.06.2012 at Maharaja Mahal, Madurai and at the time of marriage, we gave 40 sovereigns of gold jewels to the appellant. Subsequently, we gave 10 sovereigns of gold jewels to our grandson.
3. We state that now the marriage between our son, the respondent herein and the appellant was dissolved by the Learned Family Court, Madurai in H.M.O.P.No.147 of 2017 by an Order dated 14.06.2021. Further, the Learned Family Court, Madurai vide Order dated 14.06.2021 in I.A.No.619 of 2019 in H.M.O.P.No.147 of 2017, had directed the Appellant herein to return the above said 50 sovereigns of Gold Jewels to the Respondent herein which was found to be in the Appellant's possession. We state that, thereafter, the Appellant had not returned the Gold Jewels as directed by the Learned Family Court, Madurai to us and we _______________ Page 8 of 16 https://www.mhc.tn.gov.in/judis C.M.A.(MD) No.957 of 2021 have also not received the jewels till date and the same are still under the possession of the Appellant herein.”
11. According to the respondent herein (husband), the appellant herein (wife), with the ulterior motive, opened the bank locker by making false averment that the key is missing and taken away the jewels. The respondent produced the key to the bank locker. However, the appellant alleged that there is breach of trust on the part of the respondent. Strictly speaking it is the breach of trust by the appellant. This Court is unhappy with the conduct of the appellant as she is a materialistic. One of us (SVNJ), vide order dated 31.03.2021 in W.P.No.1613 of 2021, has held that husband and wife must realize that, 'ego' and 'intolerance' are like footwear and should be left out of their house, when they enter the home, else, the child/children will have to face a miserable life. In the present case on hand, the parties are divorced and the wife is more concern about the yellow metal. Further, vide order dated 19.03.2021 in W.P.No.7280 of 2021, one of us (SVNJ) has held that it is quite often said that behind every successful man, there is a woman and according to me (SVNJ), it is not a single woman, but women, namely, mother and wife, who are two eyes of a man. In a family, wife is a root and husband is a trunk and other members of a family are branches. If the root is damaged, the entire family will get ruined.
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12. The parents of the respondent have given the jewels to the appellant with a hope that the relationship between their son and the appellant would survive forever. When the relationship between them fails, nothing wrong in demanding the jewels back by the parents of the respondent and the jewels given by the parents of the respondent cannot be construed as either stridhana or irrevocable gift.
13. Now, adverting to the question of law raised by the learned counsel appearing for the appellant regarding nature of the jewels, according to the learned counsel for the appellant, 40 sovereigns of jewels were gifted in token of love to the appellant by her parents-in-law during the subsistence of the marriage and hence, it falls within the definition and meaning of “Stridhana”, even as per the explanation of the Punjab and Haryana High Court in Vinod Kumar Sethi and others vs. State of Punjab and another [1982 SCC OnLine P&H 96], which is relied on by the appellant's counsel and reads as below:
“36. Now apart from the principle, the most ancient texts of Hindu Law have always been categoric that dowry, as commonly understood, was Stridhana and thus in the exclusive ownership of the bride. It is unnecessary to go individually to the original sources and the following summarization in the authoritative work of Mulla on Hindu Law suffices notice:--
_______________ Page 10 of 16 https://www.mhc.tn.gov.in/judis C.M.A.(MD) No.957 of 2021 "Stridhana according to the Smritis, that is, the sacred writings of Rishis or Sages of Antiquity:--Manu enumerates six kinds of Stridhana:--
1. Gifts made before the nuptial fire, explained by Katyayana to mean gifts made at the time of marriage before the fire which is the witness of the nuptial (adhyagni).
2. Gifts made at the bridal procession, that is, says Katyayana, while the bride is being led from the residence of her parents to that of her husband (padavandanika).
3. Gifts made in token of love, that is says Katyayana, those made through affection by her father-in-
law and mother-in-law (pritidatta), and those made at the time of her making obeisance at the feet of elders (Padavandanika).
4. Gifts made by father.
5. Gifts made by the mother.
6. Gifts made by a brother.
All the commentators are agreed that the above is not an exhaustive enumeration of stridhana.
To the above list Vishnu adds-
1. Gifts made by a husband to his wife on supersession, that is, on the occasion of his taking another wife (adhipedanika).
2. Gifts, subsequent, that is, says Katyayana those made after marriage by her husband's relations or her parent's relations (anwadhayaka).
3. Sulka, or marriage-fee, a term which is used in different senses in different schools.
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4. Gifts from sons and relations.
Vishnu does not make any specific mention of gifts made at the bridal procession."
14. At the outset, this Court wishes to record the fact that the stridhana as it stands is a gift to the bride. As far as the convention and customs prevailing in the Hindu community, the word “stridhana” is always being understood as “dowry” given to the bride by her parents at the time of marriage. Even if we go by the Commentary of Mulla on Hindu Law, as extracted by the Punjab and Haryana High Court in the above cited decision, it must be a gift made in token of love by Pritidatta (parents-in-law) at the time of the daughter-in-law making obeisance at the feet of elders (Padavandanika). It is never the case of the appellant that 40 sovereigns of jewels, which is presumed to be in her possession, since she is the holder of the key to the bank locker, in which the jewels were kept, were given to her at the time of making obeisance at the feet of her parents-in-law.
15. Further, to add, in Pratibha Rani's case (supra), relied on by the learned counsel for the appellant, the background of the case came up for consideration before the Honourable Supreme Court was in respect of a complaint for the offence under Sections 405 and 406 I.P.C., in respect of the stridhana property of the wife, who alleged that her husband and his family _______________ Page 12 of 16 https://www.mhc.tn.gov.in/judis C.M.A.(MD) No.957 of 2021 members have misappropriated the jewel articles entrusted to them, which were meant for her exclusive use and given by her parents (emphasis added). The factual difference, in the present case, is admittedly, the jewels were given to the appellant by her parents-in-law and not by her parents. Also, in the present case, there is no pleading that the jewels were given as stridhana to the appellant at the time of she making obeisance at the feet of elders and therefore, it can be stated that the Judgment of the Honourable Supreme Court arising under interpretation of Sections 405 and 406 I.P.C., will apply to the present case on hand.
16. Since the marriage itself has now been shattered, this Court is of the view that neither legally nor morally the appellant is entitled to retain the 40 sovereigns of jewels, which are stated to have been given to the appellant by her parents-in-law at the time of marriage with a hope that she is going to be their daughter-in-law forever. Insofar as 10 sovereigns of jewels, which are found in Serial Nos.12 to 14 in the Schedule of Property of the petition, the learned counsel for the respondent submits that since the same were given to the son of the respondent, the respondent is not insisting upon the return of the said jewels.
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17. This Court is of the view that the evidence of P.W.2, who stood as Mediator to sort out the dispute between the parties to arrive at a settlement regarding custody of the property, cannot be discarded coupled with the fact that the appellant herein has candidly admitted the possession of the key to the bank locker. Since the nature of the property was not a stridhana as claimed by the appellant, this Court is of the view that the appellant cannot claim any right over the property, hence liable to return the same.
18. We hasten to add, among 40 sovereigns of jewels, Mangalsutra is also one of the items. When there is a decree of divorce granted to the parties, then it is the duty of either of the parties to return the jewels, including the Thaali Chain. Since Thaali Chain has a specific emotional and sentimental significance, it is left to the discretion of the respondent herein to insist for the return of the same or forego his right over it. We make this observation only taking note of the sentiment expressed by the learned counsel for the appellant and this should not be misunderstood that the appellant herein has a right to retain it.
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19. With the above modification in the fair and decreetal orders dated 14.06.2021, passed in I.A.No.619 of 2019 in H.M.O.P.No.147 of 2017, by the Family Court, Madurai, the civil miscellaneous appeal is partly allowed. No costs. Consequently, connected miscellaneous petition is closed.
[S.V.N., J.] [G.J., J.] 07.12.2021 Index : Yes / No Internet : Yes / No Note :
In view of the present lock down owing to COVID-19 pandemic, a web copy of the Judgment may be utilized for official purposes, but, ensuring that the copy of the Judgment that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.
krk To:
1.The Judge, Family Court, Madurai.
2.The Section Officer, V.R. Section, Madurai Bench of Madras High Court, Madurai.
_______________ Page 15 of 16 https://www.mhc.tn.gov.in/judis C.M.A.(MD) No.957 of 2021 S.VAIDYANATHAN, J.
and DR.G.JAYACHANDRAN, J.
krk C.M.A.(MD) No.957 of 2021 and C.M.P.(MD) No.9072 of 2021 07.12.2021 _______________ Page 16 of 16 https://www.mhc.tn.gov.in/judis