JUDGMENT R.K. Rastogi,J.
1. Both these appeals have arisen out of the judgment and decree dated 19.8.1996 passed by Sri S.K. Bhatt, then learned Judge, Family Court, Meerut in original suit No. 492 of 1989, Arun Kumar v. Smt. Indira. It may be mentioned here that F.A. No. 863 of 2003 was originally registered as defective F.A. 721 of 1996 and after removal of defects regular F.A. No. 863 of 2003 was allotted to it. Since both these appeals have arisen out of the judgment in same suit, we heard both of them together and now we are deciding them vide a common judgment.
2. The facts giving rise to both these appeals are that the plaintiff Arun Kumar had filed original suit No. 492 of 1989 in the court of the Civil Judge, Meerut against the defendant, Smt. Indira under Section 13 of the Hindu Marriage Act with these allegations that their marriage had taken place at Meerut on 29.1.1988 according to Hindu rites. Thereafter Smt. Indira came to the house of the plaintiff Arun Kumar to reside with him. The behaviour of Smt. Indira was very arrogant towards Arun Kumar and she misbehaved with him and his other family members. On 30.4.1998 brother of Smt. Indira came to the house of Arun Kumar and look Indira with him saying that she will come back after two days as she wanted to see her mother. Smt. Indira took all her ornaments with her. On 3.5.1988 Arun Kumar went to the house of parents of Indira to take her back but she refused to come back and her family members misbehaved with Arun Kumar. Thereafter Arun Kumar and his family members repeatedly met Smt. Indira and her parents and other family members for her Vida, but all invain. Then Arun Kumar filed original suit No. 662 of 1988 for restitution of conjugal rights. After coming to know about this suit Smt. Indira's behaviour became worse towards Arun Kumar and he had to withdraw his above petition. On 8.8.1988 Smt. Indira filed an application under Section 156 Cr.P.C. in the court of Chief Judicial Magistrate, Meerut against Arun Kumar, his parents and two unmarried sisters under sections 307, 313, 498A, 506 I.P.C. and 3/4, Dowry Prohibition Act. The Magistrate passed an order directing SHO. Kotwali Meerut to register a case, and then Arun Kumar was arrested by the police and his parents and sisters had to surrender in court. Arun Kumar remained in jail for 25 days and then he was bailed out. Smt. Indira sent false complaints to the police authorities and so the factory of Arun Kumar was raided by the police, and with connivance of Press, false stories were published in the news papers. His shop was also taken into custody and the police gave it in Supurdagi of another person. When Smt. Indira left the house of Arun Kumar she was pregnant. Subsequently she got an abortion done against wishes of Arun Kumar. Then Arun Kumar filed this suit for divorce on the ground of cruelty.
3. Smt. Indira contested the suit and filed her written statement in which she admitted her marriage with Arun Kumar but denied rest of the allegations. She claimed in her written statement that after marriage she went to the house of Arun Kumar and resided with him as his wife. She went to her parents' house on 30.1.1988 alongwith Arun Kumar and returned back to the house of Arun Kumar in that very night with him and thereafter continuously remained with him upto 28.2.1988, Then she came to her parents' house on that date and stayed there upto 12.3.1988 to celebrate Holi, as according to the custom her first Holi could not be celebrated at her inlaws' house. She continuously resided with Arun Kumar from 12.3.1988 to 30.4.1988 when she was forced at about 8 P.M. to leave the house in wearing apparel only and since then she is continuously residing with her father. Arun Kumar and his -family members are greedy. A sum of Rs. l,50,000/-was spent in the marriage. A sum of Rs. 51,000/- was given by her father to Arun Kumar at the time of engagement and items like scooter and colour T.V., watches, LPG gas connection with cylinder, gold and silver ornaments, Sarees, wearing suites, utensils, double bed, almirah and suite-case etc. worth Rs. 75,000/- were also given, Smt. Indira had been employed in Trilok Chand Shakuntala Sharma Adarsh Academy Junior High School, Purani Mohanpuri, Meerut for a period of three years prior to her marriage. When she went to her inlaws' house after marriage, Arun Kumar kept all her ornaments with him in the first week of February, 1988, and he and his family members started to make demand that she should bring her entire salary including previous salary which she had earned during the past three years of service. She replied that she did not have this amount with her and that it had been spent. Then Arun Kumar felt aggrieved and asked her to bring Rs. 10,000/- from her father at the time of Holi festival further stating that otherwise he would not keep her at his house and also beat her. Arun Kumar and his family members forcibly snatched monthly salary of Smt. Indira from her. Her father gave a sum of Rs. 10,000/- to Arun Kumar on 12.3.1988 at the time of her Vida and also gave other items of Rs. 1000/-. After receipt of this amount Arun Kumar and his family members became more greedy and they started a demand of Rs. 30,000/- more. Smt. Indira became pregnant and when Arun Kumar came to know this fact he asked her that he should get her aborted because he did not want a child at that time and he administered medicines to her arid also gave injection to her for abortion. He forced her to leave the house on 30.4.1988 at about 8 P.M. and thereafter repeatedly made demand of Rs. 30,000/-. He made a phone call to her on 7.8.1988 at about 8 P.M. and enquired about Rs. 30,000/-, then she replied that the amount could not be arranged and that she was alone at her house. Then Arun Kumar, his father Jai Prakash and sister, Manju came to her house at about 9 P.M. and they closed the main door of the house from inside. Arun Kumar took out a blank stamp paper from his pocket and asked Indira to sign it. She refused to do so, then Arun Kumar's father and sister said that it was a good opportunity and since Indira was alone at the house of her father, she should be burnt then and there and that in this way there shall be no suspicion upon them. Then Arun Kumar's father and sister caught hold of her and Arun Kumar poured kerosene oil upon her. She shouted for help but Manju pushed her mouth and Arun Kumar's father throttled her neck. In the meantime her brothers Raj Kumar and Vinod came inside the house from the side of the drawing room, and on seeing them Arun Kumar, his father and sister rushed away on their scooter. They also left that blank stamp paper at that place in a hurry. Then Raj Kumar and Vinod got her medically examined and filed a complaint before the Chief Judicial Magistrate under Section 313, 307 and 498A I.P.C. which is still pending. Arun Kumar was running a factory of artificial medicines, and on receiving this information the police and the Drug Inspector raided his factory on 20.8.1988, arrested Arun Kumar and two lady employees, namely, Manju Rani and Anita and registered a case under sections 274/276 I.P.C. and Section 18/27, Drugs Act. A News item regarding this raid was published in news papers. After this raid in the factory Arun Kumar and his family members disappeared and the police took action under Section 82 and 83 Cr.P.C. and attached their movable property. Thereafter Indira moved an application before the Chief Judicial Magistrate for releasing those items which belonged to her. Arun Kumar also moved an application for the same relief. The Chief Judicial Magistrate asked the parties to produce evidence in respect of their respective claims. Aggrieved with that order Arun Kumar filed Crl. Revision No. 365 of 1988 before the Sessions Judge, which was decided by 1st. Addl. Sessions Judge,. He allowed it vide order dated 22.12.1989. The defendant was entitled to return of the items which were given at the time of marriage under Section 27 of the Hindu Marriage Act and so she was making a counter claim in that regard. Arun Kumar had forcibly obtained signature of Indira on several blank small slips.
4. Following issues were framed in the said suit:
(i) Whether the defendant treated the plaintiff with cruelty as alleged in the plaint? If so, its effect.
(ii) Relief.
(iii) Whether the defendant is entitled to return of her goods by way of counter claim or in the alternative to its price? If so, its effect.
5. This case was heard and decided by Sri S.K. Bhatt, then learned Judge, Family Court, Meerut if vide his judgment dated 19.8.1996. He held on issue No. 1 that the defendant had treated the plaintiff with cruelty. He held on issue No. 3 that the defendant was entitled to recover Rs. 11,600/- as price of scooter, Rs. 7,500/- as price of Televista Televison and Rs. 2,100/- cash given at the time of engagement ceremony; in all Rs. 21,200/-. He therefore, held on issue No. 2 that the plaintiff was entitled to a decree of divorce and the defendant was entitled to recover a sum of Rs. 21,200/- in respect of the counter claim. He, therefore, decreed the suit for divorce and also the counter claim of the defendant for recovery of Rs. 21,200/-only.
6. Aggrieved with that portion of the judgment and decree whereby Smt. Indira's counter claim was partly allowed for recovery of Rs. 21,200/-, Arun Kumar filed F.A. No. 403 of 1996, and aggrieved with that portion of the decree whereby the suit had been decreed for divorce and the counter claim for rest of the amount had been disallowed, Smt. Indira filed an appeal which was originally registered as defective F.A. No. 721 of 1996 as it was time barred and after condonation of delay in filing the appeal ,it was registered as F.A. No. 863 of 2003.
7. We have heard learned counsel for both the parties and have perused the record.
8. It may be mentioned that learned counsel for Smt. Indira did not challenge, at the time of argument, the divorce decree passed by the court below. His only contention was that the court below had not properly dealt with the counter claim of Smt. Indira and the counter claim should have been allowed in toto. On the other hand, learned counsel for Arun Kumar challenged the decree of Rs. 21,200/- passed by the trial court in respect of the counter claim. As such since the decree of divorce passed by the court below is not being challenged by either party, that part of the decree deserves to be confirmed.
9. We now proceed to decide the question of counter claim of Smt. Indira.
10. Smt. Indira had made counter claim in respect of items mentioned at serial nos. 1 to 15 in Schedule A of her written statement. Below mat list of 15 items there is description of eight items of golden ornaments and four items of silver ornaments. All those items have been alleged to have been given at the time of engagement ceremony and marriage. Out of these items the learned Presiding Officer of the court below has allowed the claim in respect of a Bajaj Scooter worth Rs. l1,200/- and a Televista Television worth Rs. 7,500/- and for return of cash of Rs. 2,100/-. The claim in respect of the remaining items has been disallowed by him. He has taken the view that ornaments and wearing apparels of Smt. Indira did not come under the definition of the term 'joint property' as referred in Section 27 of the Hindu Marriage Act. He was further of the view that Smt. Indira had filed some documents which have been termed as rough estimate and no cash memo has been filed. Besides there were some receipts issued by Dharam Kata which were in respect of weight of some ornaments and no purchase was proved. He has, therefore, disallowed the claim in respect of these items and their prices.
11. In this connection, it will be useful to go through Section 27 of the Hindu Marriage Act, which runs as under:
"Disposal of property:- 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 the wife."
12. The above Section was considered by Hon'ble Apex Court in Balkrishna R. Kadam v. Sangeeta B. Kadam -AIR 1997 SC page 3652. The Hon'ble Apex Court observed in this case as under:
"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."
13. The above ruling of the Hon'ble Apex Court was followed by a Division bench of this Court in Hemant Kumar Agrahari v. Laxmi Devi - 2003 (32) ALR 166 and their Lordships relying on the above ruling of Hon'ble Apex Court observed as under:
"Section 27 uses the phrase 'property presented at the time of marriage, which may belong jointly to both the husband and the wife'. In view of the Balkrishna case this Section has one prerequisite: the property must be connected with the marriage. The Supreme Court in this case has not held that exclusive property given at the time of marriage cannot be dealt by the matrimonial courts. Section 27 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 jointly belong to the parties. It would be incorrect to say that Section 27 confines or restricts the jurisdiction of matrimonial courts to deal with the joint property of the parties only, it also permits disposal of exclusive property of the parties provided it was presented at or about the time of marriage."
14. It is thus clear from perusal of the above ruling that all the properties which are given in connection with the marriage either at the time of marriage or before the marriage or after the marriage can be dealt with under Section 27 of the Hindu Marriage Act and so this view of the learned Presiding Officer of the Court that ornaments and wearing apparels etc. of Smt. Indira could no be dealt with under Section 27 of the Hindu Marriage Act is erroneous and suitable orders should be passed in respect of these items also.
15. With this back ground, now we deal with counter claim of Smt. Indira. This counter claim has been decreed by the court below for following items:
(1) Televlsta Television worth Rs. 7,500/-.
(2) Scooter worth Rs. 11,600/-.
(3) Rs. 2,100/- cash given at the time of engagement ceremony.
16. F.A. No. 403 of 1996 was filed by Arun Kumar against the decree passed by the court below in respect of the aforesaid three items. Hence, first of all we deal with these three items.
17. So far as Televista T.V. Worth Rs. 7,500/- is concerned, Smt. Indira has filed the cash memo of purchasing it which is paper No. C- 106. It is dated 11.1.1988 and is in the name of Km. Indira. There is no reason to disbelieve this cash memo. This Television was purchased just before marriage, which took place on 28.1.1988. The learned Presiding Officer of the court has rightly decreed the claim of Smt. Indira in this regard.
18. As regards the scooter, allegation of Arun Kumar is that he had purchased this scooter from his own money. Smt. Indira has filed a receipt dated 15.1.1988 ( paper C-107) in the name of Dr. Arun Kumar. The claim of Smt. Indira is that the scooter was to be given to Arun Kumar in the marriage, so it was purchased in the name of Arun Kumar. This contention has been accepted by the Presiding Officer of the court below. He has further observed that this very fact that it was purchased just before marriage on 15.1.1988 goes to show that it was purchased by parents of Smt. Indira to give it in the marriage, otherwise if Arun Kumar had purchased the scooter from his own money, he would have purchased it much earlier to his marriage or after marriage, but he would not have purchased it just before the marriage from his own money. We agree With his finding on this point also.
19. As regards award of cash of Rs. 2,100/- allegedly given at the time of engagement, the case of Smt. Indira is that actually a sum of Rs. 51,000/- was given at that time. The case of Arun Kumar is that only a sum of Rs. 2,100/- was given. It was pointed out before the Presiding Officer of the trial court that a photograph has been filed from the side of Smt. Indira, paper No. C-140, showing delivery of cash and in that photograph only two packets of currency notes have been shown. It was contended that if actually a sum of Rs. 51,000/- had been given, there would have been five packets of 100 notes of Rs. 100/-, but in the photograph only two packets have been shown. When it was pointed out that these packets are of the notes of Rs. 100/- each, it was alleged by Arun Kumar P.W.I in his statement that these packets were of the notes of Rs. 10/- only and at the top of both these packets two currency notes of Rs. 100/- were appended so as to give appearance that all the notes were of Rs. 100/- each. We do not find any force in this contention. If two notes of Rs. 100/- each had been affixed at the top of the two packets of the notes of Rs. 10/- each then the amount would not be Rs. 2,100/- but Rs. 2,200/-. Moreover, this allegation also does not appear probable that actually the notes were of Rs. 10/- only, and at the top, two notes of Rs. 100/- on each packet had been affixed. After close scrutiny of the above photograph it appears that actually there were two packets of notes of Rs. 100/- and at the top of one such packet a few notes of Rs. 100/- each, which were tied by rubber band, had been kept. It may be mentioned that no rubber band appears to have been used in respect of the two remaining packets, which apparently contained 100 currency notes of Rs. 100/- each respectively. So, on perusal of this photograph it appears that actually two packets of 100 notes each of the denomination of Rs. 100/- were given, and ten notes of the same denomination of Rs. 100/- tied in a rubber band and kept above one packet were also given. These notes were tied in a rubber band giving an appearance separate from the remaining two packets, so it appears that actually a sum of Rs. 21,000/- was given in cash. The finding of the court below is modified in regard to these currency notes and we are of the view that actually a sum of Rs;21,000/- in cash was given at the time of engagement and so Indira is entitled to return of this amount, i.e. Rs. 21,000/-as cash.
20. Now we take up the remaining items. Smt. Indira has filed paper No. C-95 to C-131 to substantiate her claim in respect of these items. Out of them we have already dealt with paper nos. C-106 and C-107 regarding purchase of T.V. and Scooter. Out of the remaining documents papers No. C-96 to C-102 are slips of Panchayati Dharmkata, Bazar Sarrafa, Meerut Shahar. These slips are in respect of weighing some metal but neither this fact has been mentioned as to what metal was weighed nor its price has been mentioned nor the name of purchaser has been mentioned. So, these documents fail to lead us to any conclusion. Hence, we reject them as irrelevant documents.
21. Similarly, paper no C-103 is also an unintelligible document. It is not clear on its perusal as to by whom it was issued and what was purchased and this document is also illegible. This document is in respect of Rs. 958/- but since it is not clear as to what was purchased vide this document, we reject it also.
22. The remaining documents, i .e. paper No. C-95, C-104, C105 and C-108 to C.116 and C-119 to C131 are in respect of purchase of silver ornaments, utensils, clothes, watches, double bed, table, electric press , almirah, sarees ,blouse pieces, shawl, clothes, woollen suites, mattresses, pillows, bed covers, sandles, nighty set and pressure cooker etc. The purchases referred to in these documents were made in the months of November and December, 1987 and January, 1988. Grand total of the amounts mentioned in these documents comes Rs. 27055/-.
23. Smt. Indira has also filed a certificate issued by Geetanjali Enterprises on 16.10.1988, Paper No. C-141, in which it has been stated that they had issued a gas connection in the name of Rashmi Bala r/o 74 Thalairware Meerut City vide S.V. No. 558300 dated 12.9.87. This document was filed to show that a gas connection was also given in dowry. However, it is to be seen that this connection was issued on 12.9.1987 in the name of Rashmi Bala, who has been shown to be resident of 74 Thalairware, Meerut city. It is not in the name of Smt. Indira nor in the name of her father nor in the name of her husband, and address of the parents of Smt. Indira is 126 Devi Nagar, Suraj Kund Road, Meerut city. There is no evidence to show that this gas connection was issued in the name of Smt. Indira. So, this document also does not render any support to the case of Smt, Indira.
24. Arun Kumar has challenged the aforesaid document filed by Smt. Indira. He has produced a certificate, paper no, C-154 issued by Amar Safe Industries on 18.9.1994 in which it has been stated that this firm had not sold any Almirah to Smt. Indira and only a quotation was issued by it. It may be mentioned that Smt. Indira had filed paper No. C-lll to show that she had purchased an almirah from Amar Safe Industries on 28.6.1988 for Rs. 1500/-.
25. Arun Kumar has also filed another certificate issued by Rang Roop Saree Wale, paper No. C-155 in which they have mentioned that Arun Kumar had produced before them bill No. 814 dated 23.1.1988 for Rs. 465/-. The date in the bill was not clear and on receiving this bill they checked their account of 23.1.1988 and 23.10.1988 and found that no such bill was issued from their shop on the above dates. They further stated that in 1988 bills exceeding the figure 6000 were issued and no bill bearing No. 814 was issued in this year.
26. The aforesaid certificate is, however, irrelevant because in the present case Smt. Indira has filed only one bill ( paper No. C-l30) issued by M/S "Rang Roop." She has not filed any cash memo or bill of "Rang Roop Saree Wale." She has filed only one cash credit memo issued by "Rang Roop" for Rs. 385/- and its number is 9211. There is no denial of the genuineness of this bill issued by "Rang Roop."
27. Arun Kumar has also filed another certificate issued by M/S Upasna, paper No. C-156, in which they have stated that they had simply issued an estimate, paper No. C-l14, and no item was sold by them to Smt. Indira. Arun Kumar has also filed a certificate issued by Poonam Bartan Bhandar, paper No. C-l57, and Jain Bartan Store, paper No. C-l58 contending that no purchases were made by Smt. Indira from their shops and they had only issued estimates of the items mentioned in paper nos. C-l04 and C-l05.
28. It was argued on behalf of Arun Kumar that the aforesaid certificates go to show that Smt. Indira had only obtained rough estimates of the items, as stated in the aforesaid certificates, papers No. C-l54 to C-l58 and she had falsely alleged that she had made the purchases of the items mentioned therein.
29. After careful perusal of the record we do not find any force in the above contention. Actually what happens is that business-men with a view to escape liability of paying trade tax do not issue cash-memo in respect of the sales made by them and they also persuade the customers to accept rough estimate or receipts issued on letter heads to avoid payment of trade tax. That has been done in the present case also because otherwise there was no question of issuing such rough estimates. One such rough estimate is paper No. C-lll in respect of almirah regarding which the above certificate has been issued by Amar Safe Industries that it was not sold by them and it is actually a quotation/estimate. But if it had been actually a quotation or estimate, particulars of depth, length, breadth, and height of the almirah and gauge etc. of the tin used in the almirah must have also been quoted. Similarly the letter issued by M/S Upasana, paper No. C- 156 in respect of the receipt paper no.C-114 that it has been issued as an estimate and that no sale was made, again does not inspire any confidence. The word, 'estimate' has no where been stated in paper no.C-114. It is actually a receipt issued on a letter head with a view to avoid payment of trade tax. Moreover, if only prices had been quoted by way of quotation, there would have been description of rate only and the price of three bed covers at the rate of Rs. 200/- per piece would not have been mentioned. Similarly in the case of certificates issued by Poonam Bartan Bhandar, paper No. C-157, and Jain Bartan Store, paper no.C-158, which have been issued in respect of the receipts, paper nos. C-104 and C-105, are also actually receipts and not estimates. If they had been estimates, full particulars of dinner set regarding its make etc. must have been mentioned in paper no.C- 104 and similarly rates of one That and one Parat each would have been disclosed and not the price of four Thalis and two Parats would have been mentioned. Similarly, in the so-called estimate of Poonam Bartan Bhandar, paper No. C-105, rates of the items with their make etc. would have been quoted and the prices of six Katorees and two Dibbas would not have been mentioned. All these facts make it quite clear that actually the items mentioned in all the documents were sold by vendors, but with a view to avoid payment of trade tax, cash memos were not issued and receipts were issued either on the paper titled as "rough estimate or quotation" or on letter head. When an inquiry was made from those shop keepers regarding the sale as disclosed in paper No. C-104, C-105, C-111 and C-114, they had no other alternative but to deny all these transactions of sale because these transactions were not noted in their account books and if they admitted those transactions in writing, they would have become liable for the offence of evasion of tax.
30. The position in this way is that Smt. Indira had been able to substantiate the claim in respect of following amounts:
32 In this way, F.A. No. 403 of 1996, which was filed by Arun Kumar against award of counter claim deserves to be dismissed, but F.A. No. 863 of 2003 filed by Smt. Indira deserves to be partly allowed and the decree passed by the trial court in respect of the counter claim deserves to be modified and the amount of counter claim awarded by the trial court is liable to be enhanced to Rs. 67155/- Smt. Indira is also allowed simple interest on this amount at the rate of 6% per annum from the date of her counter claim till the date of actual recovery.
33. F.A. No. 403 of 1996 filed by Arun Kumar is dismissed with costs and F,.A. No. 863 of 2003 filed by Smt. Indira is partly allowed and the decree passed by the court below regarding counter claim made by Smt. Indira is modified and the amount of counter claim is enhanced to Rs. 67155/-. However, so far as the decree of divorce passed by the trial court is concerned, that decree is confirmed. Smt. Indira is allowed simple interest on the above amount at the rate of 6% per annum from the date of counter claim till the date of actual recovery of the amount. The decree of divorce passed by the trial court is confirmed.
34. Both the parties shall bear their own costs of the appeals.