SUPREME COURT OF INDIA
Krishna Bhatacharjee V/s Sarathi Choudhury
BRIEF FACTS IN SHORT
This is the case of getting the stridhan back that was given in marriage, to the husband by the family of the husband.
The marriage between the parties was solemnized on 27.11.2005 As per the allegations, husband and his relatives had demanded dowry and, demands not fulfilled, appellant was kicked out from the matrimonial home. However, after meeting of the elderly people of the locality, they advised the parties to stay in rented house for two months. Thereafter husband filed a petition seeking judicial separation before the Family Court and the same was granted by the Family Court. After the judicial separation, on 22.5.2010 the appellant filed an application under Section 12 of the PWDV 2005 Act before the Child Development Protection Officer seeking necessary help she sought seizure of Stridhan articles from the possession of the husband. Thereafter the application was forwarded by the said authority to the Chief Judicial Magistrate, The learned Magistrate issued notice to the respondent who filed his written objections on 14.2.2011 thereafter same was dismissed on the ground that the claim preferred under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was not entertainable as she had ceased to be an aggrieved person under Section 2(a) of the 2005 Act and further that the claim as put forth was barred by limitation.
Appeal was filed before the ASJ, consequence dismissed.
Revision filed before the HC. Outcome dismisses.
Now approaches Supreme Court, Allowed as Under.
During handling the aforesaid case supreme court discussed on the question whether the retention of stridhan by the husband or any other family members is a continuing offence or not, the division bench comprising of Dipak Misra and Prafulla C. Pant, JJ held that the concept of “continuing offence” gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians.
In the present case, the wife submitted the application on 22.05.2010 regarding non-payment of monthly allowance by husband from January onwards therefore, she had been compelled to file the application for stridhan. The Court on this Decisive issue said that as long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the Protection of Women from Domestic Violence Act, 2005. Earlier, the matter was barred on ground of limitation by the High Court. The Supreme Court therefore, allowed and set aside the orders passed by High Court and Courts below due to the grave error.
HELD
the Supreme Court held that when the wife who is living separately from the husband even under a decree of judicial separation can claim her stridhan back from the husband under Section 12 of the PWDV.
The Supreme Court further held that the core issue that is required to be addressed is whether the appellant wife has ceased to be an “aggrieved person” because of the decree of judicial separation. Once the decree of divorce is passed, the status of the parties becomes different, but that is not so when there is a decree for judicial separation. There is no doubt judicial separation creates rights and obligations ad further no more doubt that decree or an order for judicial separation permits the parties to live apart, no doubt there would be no obligation for either party to cohabit with the other. And no doubt mutual rights and obligations arising out of a marriage are suspended. The decree of judicial separation, however, does not sever or dissolve the marriage. It affords an opportunity for reconciliation and adjustment. Though judicial separation after a certain period may become a ground for divorce, it is not necessary and the parties are not bound to have recourse to that remedy and the parties can live keeping their status as wife and husband till their lifetime.
The Supreme Court further held that there is a distinction between a decree for divorce and decree of judicial separation; in the former, there is a severance of status and the parties do not remain as husband and wife, whereas in the latter, the relationship between husband and wife continues and the legal relationship continues as it has not been snapped. Thus understood, due to the parties having been judicially separated, the appellant wife cannot be said to have ceased to be an “aggrieved person” under the hereinbefore Act.
In the application aforesaid filed by the wife, she was claiming to get back her stridhan. Stridhan has been described as saudayika by Sir Gooroodas Banerjee in Hindu Law of Marriage and Stridhan. Stridhan property is the exclusive property of the wife on proof that she entrusted the property or dominion over the stridhan property to her husband or any other member of the family. There is no need to establish any further special agreement to establish that the property was given to the husband or other member of the family.
The Supreme Court also held that as long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the above Act. This issue was considered by the Supreme Court to be of the nature of a “continuing offence”.
CONSLUSION
When the husband and wife who is living separately under a decree of judicial separation can claim her stridhan back from the husband under Section 12 of the Protection of Women from Domestic Violence Act as DV is a continuing offence and is not barred by limitation
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