Legal Divorce Proceeding in India

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The hot issue between husband and wife when they decide to move forward with a contested divorce is the disposal of properties owned by each party. One of the most pressing issues is whether either party can claim properties belonging to them which is in the custody of the opposite party.

Section 27 of the Hindu Marriage Act, 1955, talks about the disposal of spousal property in the following words:

“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.”

The Hon’ble Supreme Court in Pratibha Rani versus Suraj Kumar and Anr, 1985 SC 628, at page 638 stated that traditional presents given to a bride in a Hindu wedding may be divided into three categories, viz.—

  1. Property intended for the exclusive use of the bride, e.g., her personal jewellery, wearing apparel, etc.
  2. Articles of dowry which may be for common use and enjoyment in the matrimonial home, and
  3. Articles gave as presents to the husband or the parent-in-law and other members of his family.

In another case, while dealing with Section 27 of the Hindu Marriage Act, 1955, the Supreme Court said that Section 27 provided an ‘alternate remedy’ to the wife to bring a suit for stridhan property which the husband refused to return.

In Balkrishna Ramchandra Kadam versus Sangeeta Balkrishna Kadam, AIR 1997 SC 3562, while discussing Section 27 of the Hindu Marriage Act, 1955, the Court observed that:
  • Jewellery and other property of divorced wife;
  • The property as contemplated by Section 27 is not the only property which is given to the wife at the time of marriage. It 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 all such properties.
  • The Court has to adjudicate upon to ascertain the property of the wife before passing a decree against the husband and cannot decline claim of wife for want of jurisdiction to adjudicate upon the issue of property.
Property which the husband and wife may acquire during the subsistence of the marriage out of their own efforts and not presented to them at the time of marriage would not fall under Section 27 of the Act.

Section 27 of the Hindu Marriage Act, 1955, and Section 406 of the Indian Penal Code, 1860:

In the case of stridhan property,  the title of  such property always remains with the  wife though possession of the same may sometimes  be with the husband or other members of his family, and if  the husband or any other member of his family commits such an offence of misappropriating such property then they will be punished for the offence of  criminal breach of trust under sections 405 and 406 IPC.

Section  27 of the Hindu  Marriage Act, 1955,  merely provides for an alternate remedy and does not touch or affect in any way the criminal liability of the husband in case it is proved that he has dishonestly misappropriated the stridhan of his wife. It cannot also be spelt out from any textbook or the sastric law of the Hindus that these two Acts take away the stridhan right of a woman and at the most, these Acts merely modify the concept of stridhan.

It is not feasible to suppose that when a civil remedy is available, criminal prosecution is completely barred. The remedy available under Section 27 of the Hindu Marriage Act, 1955, is under civil law and the remedy available under Section 406 is under criminal law; therefore, they are not mutually exclusive but coextensive and essentially differ in their content and consequences. 

Identifying Property Ownership:

Various courts in India have observed that there may be several instances where a property immovable property is given to the husband by the wife’s family and a deed registered in his exclusive name. Merely because registration of the immovable property is done in the name of the husband, it does not necessarily mean that it belongs to the husband alone and, therefore, is outside the scope of Section 27 of the Act. 

For example, if a car is presented at or about the time of marriage to the husband and registration is made in the name of the husband, it cannot be said that the property is outside the scope of Section 27 of the Act. Similarly, there may be a property which is presented either to the husband or the wife or jointly to them, and which cannot be so identified but the party presenting may have contemplated that what was being presented would be used jointly belong jointly. Such property will also, be subject to Section 27.

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