Mr.Rebates

Mr. Rebates

Wednesday, February 3, 2010

Marriage expenses cannot be returned to wife/in-laws

Here is a judgment of Mumbai High court which says that there is no provision in law for return of marriage expenses. The said judgment is in context of a nullified marriage on grounds of epilepsy of wife which was not disclosed before marriage. However, it seems clear from judgment that no provision exists in law for return of marriage expenses in case of divorce either.

Full text of the judgment with relevant sentences in bold follows:
http://indiankanoon.org/doc/462782/
Equivalent citations: AIR 2005 Bom 62, 2005 (1) BomCR 591, 2004 (4) MhLj 1052

Bench: S Mhase, R Mohite

Sudha Suhas Nandanvankar vs Suhas Ramrao Nandanvankar on 15/9/2004

JUDGMENT

S.B. Mhase, J.

1. This appeal is directed against the Judgment and Order passed in Misc.

Application No. 60 of 2000 on 5-8-2000 by the Family Court, Bandra in an

application preferred under Sections 27 and 25 of the Hindu Marriage Act, inter

alia, making prayer that the stridhan of the applicant be returned and also

permanent alimony be granted. The said application was partly allowed by the

Family Court. However, in respect of part rejection of the application, this

appeal has been preferred.



2. The applicant was married with the opponent on 21-5-1995 according to

Hindu Laws. The said marriage has been annulled by a-decree of nullity dated

16-3-1996 on a ground that the applicant-wife was suffering from epilepsy at the

time of marriage. Even though the said decree was ex-parte, the said decree was

not challenged by the applicant-wife. However, after passing of the said decree,

the notice was issued by the applicant for return of the articles which were

presented to her at the time of marriage by her parents as per the list. It is

further claimed that the expenses incurred for the said marriage of Rs. 31,876/-

be returned. During the pendency of this application the applicant-wife further

submitted the application (Exh.16) for return of the articles and jewellery

which was presented to her by her in-laws at the time of marriage. She has

further claimed permanent alimony. The Family Court has rejected the claim of

Rs. 31,876/- which was incurred by the parents of the' applicant-wife for the

purposes of marriage expenses on the ground that there is no provision to return

such amount. At the time of argument of this matter, the learned Counsel for the

appellant-wife fairly conceded that there is no provision for return of such

marriage expenses and therefore, unless there is a provision to that effect, the

trial Court was justified in rejecting the claim for the marriage expenses to

the extent of Rs. 31,876/-. The trial Court has also rejected the claim in

respect of the golden articles and jewellery as listed in (Exh.16). This appeal

is mainly directed against the said finding of the trial Court. We need not go

to list of those articles but what we find that all these articles, as per the

claim made by the applicant-wife, have been presented to her by the in-laws viz.

mother-in-law, sister-in-law i.e. (sister of the husband), another sister-in-law

i.e. the wife of the brother of the husband and so on. Naturally, as these

Articles have been presented by the in-laws, the applicant has not produced any

evidence to demonstrate that these articles were purchased by her in-laws at any

point of time. However, she had entered into witness box and stated that these

articles were presented to her. In order to support her testimony, she has

produced the photographs which were taken at the time of marriage wherein these

articles were reflected as having been put on her and thereby claiming that

these articles were with her and they have not been returned by the husband.

Since they found to be stridhan, she is entitled to return of the same. The

husband has denied that such articles were ever presented to the applicant-wife.

According to him these articles were not presented at any point of time and he

further made a suggestion in the cross-examination that these articles were of

the parents of the appellant-wife which were put on by her parents in order to

have a show of the presentation of such articles and he calls it as a "mandap

show". Such suggestion has been denied by the applicant-wife. However, it is

pertinent to note that if these articles were presented to her, she should have

examined some witnesses who were present at the time of marriage in the presence

of whom these articles were presented by her in-laws. However, she has not

examined her father and mother. She has not examined any friend who may be

accompanied her at the time of said marriage ceremony to demonstrate that such

articles were presented during the marriage ceremony to her. As against this,

what we have noticed that the respondent-husband has entered into witness box to

depose that such articles were not presented. Apart from that respondent-husband

has examined his parents. The parents have also stated that such articles were

not presented to the appellant-wife and therefore, the respondent has brought on

record the primary evidence to demonstrate that such articles were never

presented. Learned Counsel for the applicant tried to submit that since these

articles will have to be returned to the appellant-wife, the respondent and his

parents are making statements that such articles were not presented. However,

what we find that in that eventuality, these witnesses have been cross-examined

and nothing have been brought in the cross-examination to demonstrate that these

witnesses were supressing the truth. We have gone through the evidence of the

parents and noticed that the evidence is convincing one and the trial Court has

rightly appreciated the evidence. Therefore, we find that appellant has failed

to establish that such articles were presented by her in-laws in the marriage

ceremony.



3. Apart from this, we have taken into consideration that when the first

notice was given the articles mentioned in the list Exh.16 were not demanded.

Not only that when the application was filed, in the said application there was

no demand for the articles. It is during the pendency of the application, the

Exh.16 was submitted to the Family Court making claim towards specific articles.

Those articles were golden and jewellery articles and such important stridhan

will not be forgotten by the appellant-wife till the pendency of the

application. In that context it is reflected that it is a after thought decision

to claim the articles and we find that the observation and finding recorded by

the Family Court are proper and justified one and we find that there is no merit

in the submission of the learned Counsel that the Family Court should have

allowed the list (Exh.i6).



4. So far as the articles which are directed to be returned to the appellant-

wife, we find that the findings have been rightly recorded and no interference

is called for. Apart from that there was a counter appeal filed by the first

party challenging the said order. The said appeal is withdrawn by the

respondent-husband as not pressed and therefore, we confirm that part of the

Family Court's order.



5. The last question which requires consideration is in respect of the

alimony. It is an admitted fact that the decree for nullity has been passed

under Section 5(ii)(c) since the appellant was suffering from epilepsy. Since

the learned Advocate for the appellant submits that under Section 25 the alimony

has to be paid at the time of passing of the final decree. He relied on the

decision in the case of Shantaram Tukaram Patil and anr. vs. Dagubai Tukaram

Patil and ors. reported in 1987 Mh.LJ. 179. He further pointed out that the said

Judgment is relied upon by the single Judge in a subsequent Judgment in the case

of Krishnakant vs. Reena reported in 1999 (1) Mh.LJ. 388 and submitted that even

though the decree of nullity was passed the petitioner is entitled to claim

alimony under Section 25. The learned Counsel for the respondent submitted that

both these Judgments have considered the aspect that the entitlement of the

party for permanent alimony and more specifically right of the wife. However, he

submitted that the said right is available on condition that taking into

consideration the conduct and the circumstances of case the Court is satisfied

that alimony shall be granted. According to him after marriage, immediately

there was a "Satyanarayan Pooja" and for the first time husband and wife came

together. The respondent-husband found that the appellant-wife is a patient of

epilepsy and on the next day, he has called on to the parents of appellant-wife

and the father of the appellant came along with the Doctor to discuss. Learned

Counsel further stated that the father requested respondent to allow the

appellant to stay with respondent and the medical expenses will be borne by the

father of the appellant. He submitted that thus the fact that the appellant was

suffering from epilepsy was not disclosed at the time of settlement of marriage

and till the marriage is performed. He further submitted that even though on 1

or 2 occasions, prior to the marriage there was a meeting of respondent husband

and appellant-wife, still the appellant wife has not disclosed that she is a

patient of epilepsy. Thus he submitted that the conduct of the appellant and her

parents in not disclosing that the appellant wife is suffering from epilepsy is

itself a fraudulent and therefore, the party which takes the benefit of it,

shall not be allowed to take such benefit and this circumstance may be taken

into consideration. Relevant portion of Section 25 of the Hindu Marriage Act,

1955 is as follows :-



Section 25.- Permanent alimony and maintenance - (1) Any Court exercising

jurisdiction under this Act may, at the time of passing any decree or at any

time subsequent thereto, on application made to it for the purpose by either the

wife or the husband as the case may be, order that the respondent shall pay to

the applicant for her or his maintenance and support such gross sum or such

monthly or periodical sum for a term not exceeding the life of the applicant as,

having reward to the respondent's own income and other property, if any, the

income and other property of the applicant, (the conduct of the parties and

other circumstances of the case), it may seem to the Court to be just, and any

such payment may be secured, if necessary, by a charge on the immovable property

of the respondent.

In the facts and circumstances of the present case what we find that since
the decree for nullity of marriage is passed under Section 5(ii)(c) we have to
consider as to whether order for amount of alimony is to be passed. In view of
the above referred 2 Judgments which have been relied by the Counsel for the
appellant, we do not find any difficulty to conclude that in such a decree the
wife is entitled to have a permanent alimony. However, whether the conduct of
the parties and other circumstances involved in this case will allow us to pass
such order is the main question. It is an admitted fact that the marriage was
celebrated on 21-5-1995 and within 4 days from the date of marriage,
'Satyanarayan Pooja' was performed in the matrimonial home and thereafter
husband and wife were allowed to stay with each other. However, when it was
found that the appellant-wife is suffering from epilepsy the marriage was not
consumated and on 27-5-1995 the respondent-husband has contacted the appellant's
father. The applicant's father and mother accompanied by the Doctor attached to
the Poddar hospital came to the house of the respondent-husband and thereafter
they discussed about the fact of suffering of the epilepsy. The appellant's
father showed willingness to incur the medical expenses for the treatment of the
appellant. However, he requested the Respondent to allow the appellant to stay
in the house of the respondent-husband. This was not accepted by the respondent
and therefore, the father of the appellant has taken the appellant and
thereafter, a petition for nullity of marriage was filed in which ex-parte
decree was passed. The said decree is not challenged. Thereafter, the applicant
has filed this application for the permanent alimony. It is pertinent to note
that the parents and/or father of the appellant have not entered into a witness
box either to depose that the fact of the epilepsy was disclosed to the
respondent husband at the time of settlement of carriage nor the appellant has
stated in her evidence that at any point of time prior to the marriage when they
have seen each other said fact was disclosed to the respondent-husband.
Therefore, the only inference is that till the marriage is performed the
respondent was not aware of the fact that the appellant is a patient of
epilepsy. The moment he got knowledge, he has not consummated the marriage and
called the parents of the appellant and thereafter appellant was taken by the
parents. This shows that had the fact been disclosed prior to the performance of
the marriage, the respondent-husband would not have conducted such marriage with
the appellant-wife. The non disclosure by the parents of the appellant and the
appellant accepting the decree as it is without making any grudge that in
respect of the ground that the appellant was suffering from the epilepsy prior
to the marriage reflects upon the conduct of the appellant and if we take into
consideration this aspect what we find is that the appellant is trying to take
advantage of her wrong or fraud and is trying to harass the respondent by
claiming the amount of alimony. But what we find is that after a decree of
annulment the respondent has married and he is having a child. Now this appears
to be an attempt on the part of the appellant and her parents to disturb the
marital life of the respondent which he has tried to settle after annulment of
the marriage. This is an attempt to shift the liability of maintenance by the
appellant-wife on a husband who was not at fault and who has not consummated the
marriage. Even though the law permits the right of the alimony in favour of the
appellant, however, the conduct and the circumstances involved in the present
case does not permit us to pass an order of permanent alimony in favour of the
appellant. We find that the findings recorded by the Family Court are just and
proper and no interference is called for.

6. In the result, we find that there is no substance in the appeal and hence,
appeal is hereby dismissed with no order as to costs.

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