(Text of talk delivered by Justice Yatindra Singh, Judge, Allahabad High Court at National Judicial Academy, Bhopal in the National Judicial Seminar of the judges of the higher judicial service on Judicial Method on 21.7.2007.)

Themis is goddess of justice; she is generallythough not alwaysshown blindfolded; she has a pair of scales in one hand and a double edged sword in the other. The blindfold indicates that justice is impartial and is administered without fear or favour. The pair of scales explains that justice is done after weighing the strength of the competing claims. The sword symbolises the power to enforce it.

Our task is to find out the side, where justice lies. In this process, we 'must not spin a coin or consult an astrologer1; we must do it openly, under public scrutiny and provide reasons. Ours is a difficult job: we take decisions that others avoid, procrastinate.

How should our performance be judged? What qualities should we have? Jeremy Bentham said 'that he [Judge] be a good one and that he be thought to be so (Draft for the Organisation of judicial Establishments in the Works of Jeremy Bentham ed. Bowring, 1843 Vol. 4 p 359). We are good if we make just decisions. Our decisions will be just, if we have good reasons for them. But this is not sufficient: we should be thought to be good too. This requires good court management (this is to be distinguished from judicial administration of a judgeship) and ability to communicate reasons for the decisions.


(i) Be fair

Mistakes may be excused but not unfairness can not be excused. After all, as Lord Diplock said, 'the fundamental human right is not to a legal system that is infallible but to one that is fair'2.

(ii) Don't Delay Your Judgement

Delay in resolving a dispute is bad but delay in delivering a judgement is worse. It creates doubts in the minds of the litigants. While reserving a complicated case, it is good idea to dictate in open court:

The draft judgement preferably be completed overnight or over the weekend.

(iii) Stick to the Court Timings

Court timings are important. It is no comfort to say that you also rise late if your sitting is delayed. Court timings are important and are to be adhered to: advocates and litigants adjust their schedule according to it.

(iv) Avoid Social Gathering, Parties

If you accept the job of a judge, then accept secluded lifestyle also―aloofness is our job requirement. As far back as 1981, HM Seervai pointed out:

'The extreme impropriety of judges in accepting lunches and dinners from members of the Bar practising before them and even from private citizens.

... Judges are not detached but the public should feel that they are detached' (The Seevrai Legacy page 10 & 34).'

The only exception may be condolence or a marriage or an activity connected with law.

(v) Be Consistent with your Orders and Courtroom Procedure

This does not mean that even a wrong order/ practice should be followed but it means that your orders and procedure should not change from advocate to advocate, or litigant to litigant, or day to day basis.

(vi) Control the Court Proceedings

It is good to be patient but often arguments have to be curtailed. You have,

'to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he [Judge] follows the points that the advocates are making and assess their worth; and at the end to make up mind where the truth lies.' (Jones Vs. National Coal Board 1957 (2) Law Report 55 at 64)

You can not do it unless you have sound knowledge of law. Seervai points out,

'unless the judge on the bench is equal or superior to the top counsel appearing before him, it is impossible to control court arguments'.(The Seervai Legacy page 20)

The advocates should know that you have understood their submissions. This may be achieved:


Judgement should be concise, lucid and clear. To me, the worst judgement is the one in which neither the result is just nor can it be understood by anyone. A better one, is the one, which atleast can be understood by others. Of course the best judgement is, when the result is just and everyone can easily understand it.

Judgement: Provisions of Law

CPC as well as CrPC provide as to what should a judgement contain. Order 20 and Order 41 Rule 31 of the CPC provide for the judgement in the civil cases. Chapter 27 of the CrPC deals with the judgements in the criminal cases. Apart from the other things, these provisions provide that the judgement should indicate:

All are important but the most important one is—the last one—the reasons for the decision.

Who Reads the Judgement

One should not avoid to decide a case that it might be upset by the higher court, or not liked by anyone, or may be overruled. It is an old saying: 'Let justice be done, though the heavens should fall' (see Endnote-1). Decisions should be taken, as you understand the law; they should satisfy your conscience: you should never decide the case, as others understand it.

However, exactly opposite is applicable as far as judgement writing or communication is concerned. It is always for the others; it is for their benefit; and you should always have them in mind. This brings up the question, who reads the judgement? For whose benefit, the judgements are written? Today, as you will see, it is read by everyone.

(i) Persons Connected with Law

The judgements are always read by the Judges, advocates, law commentators, law professors, and law students.

(ii) The Litigants

It is often said that the litigants never read the judgement. The winner has no interest for he never doubted his case. The loser in any case, is going to condemn it. However, they are entitled to know the reasons so as to confirm the correctness of their case or to find fault with the same.

(iii) The Media

Many cases raise public interest issues; decisions are publicly discussed. This brings up the media, and not so conversant with law, into picture.

Mostly, advocates read our judgement and form opinion about us. And their opinion is important. It is said that the bar is the best Judge of all judges.

Preparation and Writing

(i) Plan, Be Clear Don't go in Circle

We often write long judgements and go in circles. It happens, when the concept or the reason for the decision is not clear. This is true about articles and reports too. You should, first clear your doubts; be sure what you wish to write— then write. Note down the points for determination; your decision on them; the sequence of writing reasons on the different points - then write. Sometimes the heading/ sub-heading or the sequence changes, but this is immaterial.

(ii) Write, revise, and revise

One must plan, write, revise and revise again—preferably over night. If the text is revised at the same time, the mind tends to overlook the mistakes. Remember—the text improves with the number of revisions.

What You Should Not Do

(i) Avoid Quoting, Pleading and Evidence

A judgement—consisting of excessive quotations from the pleadings and evidence and with little reasoning—is bad one. The pleadings and evidence (oral or documentary) should be summarised in your own words. Apart from other benefits, it enables you to understand the case better.

A judgement is also bad if it merely summarises evidence of the parties and then relies upon some evidence without reasons. You should point out the reasons for relying on particular evidence. Don't forget—reason is the key to a good judgement and is its soul.

(ii) Avoid Long Quotation from the Citations

What is true for the pleadings and evidence, is also true for the citations. Long and unnecessary quotations from the citations show lack of understanding.

(iii) Simple points do not require long and complicated discussion

It is often said, 'The legal mind consists of illustrating the obvious, explaining the self evident, and expatiating on the self evident'. Don't do it.


(i) Write the way you Talk

This advice is often misunderstood. It does not mean that you should write as you talk because we often,

It means that:

In order to inculcate it, read good books; listen to the moving speeches. Appendix-1 is the list of the books that you may profitably read.

(ii) Quotations

Quotations can be within single or double quote. However if the quotation begins with single quote, then a quotation within that quotation will be under double quote. Reverse it, if the quotation begins with double quote. The text within quotations are often shown by increasing the indent or by keeping the text in italics.

(iii) Lists – Bullets and Numbers

They are used:

It is common to see a paragraph in the appellate court judgment stating:

'The trial court framed necessary issues and held that “A” was the owner of the property in dispute and after his death the plaintiff became the owner of the same. The Trial court further held that the defendant has nothing to do with the property in dispute and is a trespasser. The Trial court has also recorded finding that the suit is neither barred by limitation nor resjudicata . On the basis of these findings, the suit was decreed.'

It can always be written as follows:

'After framing necessary issues, the trial court decreed the suit on the following findings:

  1. A was the owner of the property in dispute;

  2. After his death, the plaintiff became owner;

  3. The defendant has nothing to do with the property in dispute and is merely a trespasser.

  4. The suit is neither barred by limitation nor by resjudicata.'

(iv) Heading and Sub-heading

Headings and sub-headings are useful. They not only break the monotonous continuous text, but also provide sufficient indications to the readers to reach the part of the desired discussion.

Another advantage of using heading and sub-heading is that it makes the writing logical and avoids repetition. You should write everything related to a point under one heading or sub-heading.

A heading or sub heading starts a new topic. In order to show it, put more space above the 'heading and sub heading' than below it. A sub-heading should be subordinate to the heading and should also so appear. The principles regarding this priority are as follows:

(v) Number the paragraphs in the judgement

Numbering paragraphs of the judgement makes it easier to refer. Many courts have adopted practice of issuing judgements only after they are numbered. {Practice Direction (Judgement: Form and neutral citation) handed by Lord Woolf CJ on 11.1.2001. House of Lords also opted the practice of issuing judgements with numbered paragraphs in 2001}.

Language and Punctuation

(i)Think About Others

Whenever you write, think about the person for whom you are writing. Today our judgements are read not only by experts but also by persons, not so conversant with law (see discussion under the sub-title 'who reads the judgement). We have to make their task, easy—write in a language that they can understand.

(ii) Don't use Latin, Foreign or Difficult Words - Write to express and not to Impress

It is often that advocates and judges use, 'A peculiar cant and jargon of their own that no mortal can understand' 3. We don't have to use this language.

Use English or language of your court: it is easy to understand. There is no point using Latin or foreign words. Consider which one is better:


No man can be a judge in his own cause.

The first one is in Latin; the second one is its English version.

Simple writing is the hallmark of a superior mind; it is not easy. Always try to use plain and familiar words to catch the readers attention. You may understand the difficult words, but they may be difficult for the readers. Your reader may neither have patience nor time to consult the dictionary: your readers might consider you to be an able person but in case they have not understood the text then the entire exercise is pointless.

Two years ago I had come to NJA to give a talk on, how information technology can improve the judicial administration. I had titled my talk as 'Information Technology: Panacea for Soured Justice'. On my wife's suggestion, it was changed to 'Information Technology: the Road to Speedier Justice'. I am glad that I have accepted her advice. Sometime ago, Dataquest, an IT magazine, published this article. They titled it 'Justice without Speed Breakers'―it is even better.

The first three books of Appendix-1 provide plainer and better words for difficult words and expressions.

(iii) Avoid unparliamentary language

The language should always be plain and courteous: use parliamentary language. Erskine May (Parliamentary Practice 20th ed. Page 432) says:

'Good temper and moderation are the characteristics of parliamentary language. Parliamentary language is never more desirable than when a member is canvassing the opinion and conduct of his opponent in debate.'

So is true, when you are disagreeing with any judgement or submission of an advocate.

(iv) Avoid negatives

Positive statement is better than the negative one. Consider the following two sentences that are saying the same thing.

'Not more than one peon may be posted in the court'.

'Only one peon can be posted in the court.'

The second one, the positive one is better.

Consider the following confusing sentence,

'A member who has no fewer than 25 years of credited service but has not yet attained the age of 60 years and is not eligible for retirement may not voluntarily retire early without first getting approval from with the board after filing a written application.'

In case the negatives are removed and it is split, the same can be written as follows:

'The members, ineligible for retirement, may voluntarily retire if they are,

This can only be done after getting approval from the board by filing a written application.'

I need not say, which one is better.

(v) Use Active Voice

Passive voice is often not clear. It is because it leaves out the information. Active voice makes the text clearer. Consider, the following sentence,

'The policy has been approved.'

It does not explain as to who has approved the policy. Readers may or may not be able to guess the person approving the policy.

Passive voice is, often used,

The aforementioned reasons are not sufficient to use passive voice; it may be used if there are reasons to use it. For example:

(vi) Brackets

Supplementary, or additional, or an explanation may be kept inside round brackets.

Brace brackets are used in a text if some matter within them is to be kept inside round brackets otherwise brace bracket { } as well as angled brackets < > are generally used in mathematics, specialised texts, tabulation and technical works.

Square brackets, are used in a quotation. Words kept inside the square brackets, are not part of the original quotation but are used as an editorial content to clarify the meaning.

(vii) Break the Page with Paragraphs

Split the text in a page with paragraphs and a paragraph with small sentences, but how long should a paragraph be?

The broad rule is that a paragraph should not have two thoughtsone is sufficient. 'COLLINS WORD POWER: Punctuation (page 16) offers some practical tips:

'Think of the end of a paragraph as a sort of breathing space for both writer and listener. The writer needs to gather his thoughts afresh, and the reader needs a momentary rest from concentration'.

(viii) Use Short Sentences

Readers do not concentrate as much as the writer. If you use a long sentence - you might lose your readers before it ends. They will be confused and get irritated. It is useless to write a sentence, if the readers have to read it againuse only as many words as are necessary. For example, consider the following sentence,

'The letter that was received from the High Court was received on 21st July.'

This could be written as,

'The letter from the High Court was received on 21st July.'

Or it could be simply written as,

'The letter from the High Court arrived on 21st July.'

Here is another example from COLLINS WORD POWER: Punctuation (page 15). Consider the following sentence.

'A person shall be treated as suffering from physical disablement such that he is either unable to walk or virtually unable to do so if he is not unable or virtually unable to walk with a prosthesis or an artificial aid which he habitually wears or uses or if he would not be unable or virtually unable to walk if he habitually wore or used a prosthesis or an artificial aid which is suitable in his case.'

Can you understand it? However it is saying something very simple,

Persons are regarded as physically disabled if they always

`need an artificial aid to walk'.

(ix) Comma, Semi-colon, Dash, and Colon

In case a long sentence can not be avoided then it should be broken with suitable punctuation, such as a comma, or a semi-colon, or a dash, or a colon. They make the text clearer:

Format of the Judgement

(i) Introduction/ Opening words

It has been traditional to start the judgement stating that:' it is plaintiff's appeal...; or It is a suit for'....However this has changed.

Now the introduction or the opening words generally contain the key issues that are being decided. It is a kind of headline to the judgement. Its purpose is to invoke interest in the readers by capturing their attention at the outset. This is also recommended practice in the US. (Judicial Opinion writing Handbook by JS George 2nd ed. Hein & Co. Buff lo 1986).

(ii) The Facts

It should contain the case of the parties, admitted or undisputed facts; and the evidence filed by them.

(iii) Points for Determination/ Issues

Formulate the points for determination and state them under this heading.

(iv) Reasons for the Decision on a Point for Determination

Reasons for the decision on different points for determinations may be indicated under the heading meant for it. In dealing with any point for determination, conclusion on that point may be included in the heading itself instead of only writing point/ issue number.

(v) Conclusions

Indicate your decisions on different points in the case.

(vi) Order

Indicate operative portion of the order on the basis of the conclusions. The matter under this heading and the previous heading 'conclusion' may be combined together.

(vii) Footnotes, endnotes, and Appendices

This may include,

The main text should be capable of being read and understood without reference to the footnotes, endnotes or appendices. However, they should not be excessive as it distracts the readers.

Use of footnotes is common in US Judgements, and often had important bearing in the later cases.


Nature does not endow everyone with ability to write clearly: only some are lucky. Nevertheless, if the anxiety for clarity is there; if the anxietyto do right remains (see Endnote-2) then there is no reason why it can not be acquired.

We may be wrong in deciding a case; our decisions can always be corrected in appeal. And no one can bind the posterity. But let no one fault our judgement merely for not understanding it.

Yatindra Singh

Judge, Allahabad High Court, Allahabad.


Endnote-1: The original Latin maxim for the saying 'Let justice be done though the heavens should fall' is, 'Fiat Justitia, ruat Coelum'. It does not have respectable origin (For details 'The Family Story by Lord Denning page 172). In the same book on the next page, Lord Denning says,

'For myself I prefer to take the first part – 'Fiat justitia' – and discard the 'ruat coelum'. If justice is done, the heavens should not fall. They should rejoice.

Endnote -2 : Lord Denning's writings are simple and example to emulate; it can be profitably used in all languages. The title of this article has been taken from the following last paragraph of the first chapter 'Command of language' of the book 'The Discipline of Law:

'One thing you will not be able to avoid ─ the nervousness before the case starts. Every advocate knows it. In a way it helps, so long as it is not too much. That is where I used sometimes to fail. My clerk ─ as good clerk should ─ told me of it. I was anxious to win ─ and so tense ─ that my voice became too high pitched. I never quite got over it, even as King's Counsel. No longer now that I am a Judge. The tension is gone. The anxiety to do right remains. (Italics mine)


Books to Read

  1. COLLINS WORDPOWER : Punctuation by Graham King.

  2. Plain English Guide by Martin Cutts , Oxford University Press.

  3. The plain English Approach to Business Writing by Edward P. Bailey, Jr.

  4. Eats, Shoot & leaves by Lynne Truess

  5. A Dictionary of Modern Legal Usage by Bryan A Garner, Oxford University Press.

  6. The Judgements and How to Write Them by SD Singh

  7. Judgement and books by Justice Oliver Wendell Homes:

  1. Collected Legal Papers

  2. The Essential Homes

  1. Judgements and books by Lord Denning.

  1. The Discipline of Law by Lord Denning.

  2. The Due Process of Law by Lord Denning.

  3. What Next in Law by Lord Denning.

  4. The closing Chapter by Lord Denning.

  5. Landmarks in the Law by Lord Denning.

The first three books also list official, legal, wordy, Latin, French words and phrases with plainer alternatives.


(Partly modified for the purposes of this talk)

First Appeal No. 582 of 1998

Hemant Kumar Agrahari ... Appellant


Laxmi Devi ... Respondent

Hon’ble Yatindra Singh, J

Hon’ble Mukteshwar Prasad, J.

(Delivered by Hon’ble Yatindra Singh J.)


1. This case involves diverse emotions—from happiness to disappointment and then determination to start new life. It also involves the interpretation and scope of section 27 of Hindu Marriage Act (the Act) as well as jurisdiction of the matrimonial courts to dispose of exclusive property of the spouses.


2. Smt. Laxmi Devi (the wife) was married with Sri Hemant Kumar (the husband) on 30th April 1996. The marriage was not successful. It did not last long; it was not even consummated. According to the wife, her husband was already having physical relationship with one Sushri Sunita Pathak and continued to have it even after the marriage. Few meetings were held for settlement of dispute between the parties but were unsuccessful.

3. The wife filed a petition for divorce under section 13 of the Act on the ground of adultery and cruelty. She also prayed for return of the goods/amount given at the time of marriage and apart from her husband, impleaded her father-in-law and Sunita Pathak in the suit. The defendants denied the case of the wife.

4. The wife examined herself (PW-1) and produced two witnesses namely her brother Sri Ram (PW-2) and one Shri Mool Chand Gupta (PW-3). The defendants examined Hemant Kumar (DW-1), one Juggi Lal (DW-2) real Mausa of the husband and one Shri Shiv Prakash Kushwaha (DW-3) cousin of the husband.

5. The court below decreed the suit, for divorce and for return of Rs. 75,000/- in cash and goods (mentioned at item numbers 4 and 5 of the plaint), on the following findings;


6. The husband and his father have filed this appeal against that part of the decree by which the court below has ordered for return of cash and goods mentioned at item nos. 4 and 5 of the plaint. The wife has filed cross-objection against that part of decree by which the court has refused to grant decree for the return of the cash and goods mentioned at item nos. 1 to 3 and 6 of the plaint.

7. The parties have, neither challenged the finding of the court below that the husband has continued husband-wife relationship with Sunita Pathak, nor the decree of divorce granted by the court below.


8. We have heard Sri Salil Kumar Rai counsel for the appellants and Sri RN Bhalla, counsel for Laxmi Devi (Plaintiff-respondent). The following points arises for determination in this case:

  1. Whether the wife is entitled to return of cash and goods? Whether the return of cash and the goods (mentioned at item nos. 4 and 5 of the plaint) has been decreed on the basis of inadmissible evidence?

  2. Whether the goods ordered to be returned are not specific and no decree ought to have been passed?

  3. Whether the cash/goods were exclusive property of the wife?

  4. In case answer to the third point is in affirmative then whether the court below had jurisdiction to decree the suit for return of the cash/goods?


  1. The counsel for the appellants submitted that:

10. The wife had produced photosat copy of minutes of panchayat. It is alleged to be signed by father of the husband, brother of the wife and is attested by the witnesses. Moolchand Gupta PW-3 is one of the witnesses of this document. He has stated that the original4 was given to the father of the husband. He has also deposed as to what was agreed in the panchayat. Neither the husband, nor any of his witnesses have stated anything about this panchayat. They have also not stated whether father of the husband signed this document or not. Nevertheless the document produced was a photostat copy of the original and secondary evidence. It was not admissible under section 65 of the Evidence Act unless notice to produce as contemplated under the Evidence Act was given to the other side. There is no evidence that any such notice was given. It seems an inadvertent mistake on part of the counsel of the wife. However the photostat copy is inadmissible. But the decree may not be set aside if this finding is supported by other evidence on record.

11. The court can take judicial notice of the fact that in our society parents present gifts to their daughters and son-in-laws. Unfortunately some time it is forced, but often it is voluntary and is for the bright future of the newly weds. There is presumption that gifts must have been given from girl's side during marriage. In this case the wife produced herself and made a statement about the goods gifted to her during marriage. She has also stated that cash of Rs. 75,000 was given at ‘tilak’. The witnesses produced on behalf the defendant-appellants accepted having received many items, though the gift of Rs. 75000/- was disputed. According to them only Rs. 5000/- in cash was given. The trial court had the opportunity to watch the demeanor of the witness and found the statement of the wife trustworthy on this aspect. We see no reasons to doubt it. The court below has rightly held that the goods mentioned in item nos. 4 and 5 of the plaint and cash Rs. 75000/- were given and this finding is upheld.

12. The court below has mentioned that no specific thing is mentioned in item nos. 1 to 3 and item no. 6 and has not ordered for the return of the same. We agree with the findings recorded by the trial court in this respect also. There is no justification to decree the suit for the items other than those decreed by the court below.


13. The counsel for the appellants submitted that in item nos. 4 and 5 of the plaint, no details of the specific goods have been mentioned and decree can not be executed.

14. It is correct that specific details of the goods i.e. model, year of manufacturing, size, brand and other specification have not been given in the petition. The wife also did not disclose them in her evidence. The husband disclosed that the TV, which was given to him in the marriage, was black & white. On the other hand, the wife stated that colour TV was given. Dispute may arise at the time of execution of decree and a number of objections may be raised in the execution proceedings regarding condition of the goods and brand etc. This may further delay the recovery of cash given at the time of the marriage: we assess the value of the goods mentioned in the item nos. 4 and 5 at Rs. 1 lac. The appellants are liable to return Rs. 1 lac (value of goods in item nos. 4 and 5) and Rs. 75,000/- given in cash (total one lac and seventy five thousand) to the wife. As the appellants are using the goods/cash since marriage between the parties; they are liable to pay simple interest at the rate of 6 per cent on this amount from the date of judgment of the court below till the date of actual payment.

15. We would like to clarify that no arguments were advanced before us regarding maintenance to the wife and we have not considered it. It would be open to her to claim the same if permissible under the Act.


16. The counsel for the appellants brought to our notice section 27 of the Act (see below)5 and submitted that two conditions are necessary under this section:

(i) The property must have been gifted at or about the time of marriage.

(ii) It must jointly belong to the husband and wife.

According to him, most of the property is exclusive property of the wife and no decree can be passed for their return.

High Court Decisions

17. Section 27 of the Hindu Marriage Act is similar to section 42 of the Parsi Marriage and Divorce Act. Both of them provide that the matrimonial courts have power to deal with the property presented at or about the time of marriage. There is some conflict among the High Courts about the true interpretation and area of operation of these sections.

18. The High Courts disagree whether the courts are entitled to deal with exclusive property of the parties or not. The Delhi High Court, Orissa High Court, Jammu and Kashmir High Court, and Punjab and Haryana High Court (see below for citation of these cases)6 have held that exclusive property of the parties can not be dealt by the matrimonial courts under section 27 of the Act and they should seek remedy before regular civil courts.

19. The Allahabad, High Court, Bombay High Court, and MP High Court (see below for citation of these cases)7 have taken a contrary view and have held that exclusive property of the parties can also be dealt by the matrimonial courts. The Allahabad and MP High Court were concerned with the ornaments (stridhana) given to the wife at the time of marriage. The Bombay High Court was concerned with the ornaments given at the time of marriage and some other property that the wife had purchased from her own earnings during marriage i.e. property not presented at or about the time of marriage and exclusively belonging to the wife. This view has been taken on the basis that section 27 of the Act does not prohibit the disposal of the exclusive property belonging to one of the parties and matrimonial courts can deal with it under inherent powers of the courts.

Supreme Court Decision interpretation of section 27.

20. The decision from the Bombay High Court was taken in appeal to the Supreme Court. It was partly overruled in Balkrishna R Kadam vs. Sangeeta B Kadam (AIR 1997 SC 3652=1997 (7) SCC 500) (the Balkrishna case). The Supreme Court held:

'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.'

21. In substance the Supreme Court in the Balkrishna case held that property covered under section 27 must be traced to marriage and should be connected with it. In this case cash and goods were presented at the time of 'tilak' or marriage. The ceremony of 'tilak' is normally held at boy's place: sometimes immediately before marriage and sometimes many days before it; however it is part of marriage. The gifts given at 'tilak' are also property given at or about the time of marriage, they are connected with it. Cash or goods in dispute are property within meaning of section 27 of the Act as explained in the Balkirshna case.

22. The counsel for the husband submitted that it was not enough that property should have connection with marriage but should jointly belong to the parties. According to him though some of them (sofa, almirah or TV etc.) could be joint property of the parties, but others (jewelery etc.) though presented at the time of marriage were exclusive property of the wife and no decree could be passed in respect of them. With due respect, the Supreme Court did not lay down any such proposition in the Balkrishna case.

23. Matrimonial cases are tried by the District Court and if Family Court has been established then by the Family Court. They are decided by the senior Judges at the district level and civil procedure code is applicable. The entire proceeding is like a regular suit; though court is required to conciliate between the parties. The Judges manning matrimonial courts are senior enough to decide about exclusive property on the regular side. Same procedure is applicable in the matrimonial cases. It is correct that section 13 of the Family Courts Act declares that a party shall not have right to legal representation, but court can always permit legal representation . In case complicated questions are involved, permission for legal representation in the family court is normally granted; more so in a case where complicated questions regarding disposal of property are involved.

24. In case the matter is before matrimonial court, then it is proper that all disputes relating to the parties should be settled by one court at the same time: leaving a part of the dispute to be decided in future in another suit would prolong acrimony and agony. Life should be spent in a fruitful way, rather than wasting it in constant bickering. There seems to be no reason as to why joint property presented at the time of marriage can be disposed of, but exclusive property presented at the time of marriage should be disposed of separately. This will not only result in multiplicity of the proceedings, but will also cause delay in final settlement and start of new life by the parties.

25. Lord Denning in Allen vs. Alfred Mc Alpine; 1968(1) AllER 543 said:

Law’s delays have been intolerable. They have lasted so long as to turn the justice sour.’

It is truer in our country. We must adopt such interpretation as to avoid delay and multiplicity of proceedings.

26. Section 27 uses the phrase 'property presented at the time of marriage, which may belong jointly to both the husband and the wife' This section has one prerequisite as laid down in the Balkrishna case: the property must be connected with the marriage. So far as the question of property being jointly owned by the parties is concerned, suffice to say that the section nowhere uses mandatory word 'must' as being suggested by the counsel of the husband; it uses the word 'may'. The phrase 'which may belong jointly'—because of the use of the word may—also includes within its penumbra [scope] the property which may not belong jointly to the parties. In our opinion, section 27 of the Act does not confine or restrict the jurisdiction of matrimonial courts to deal only with the joint property of the parties, which is presented at or about the time of marriage but also permits disposal of exclusive property of the parties provided they were presented at or about the time of marriage.


27. Generally wife is a house maker and stays at home and the husband is the earning member. He earns and acquires property in his own name: it is treated as his separate property. There is no decision in our country that separate properties of the spouses may be pooled and divided among them: at least we are not aware. However, in some parts of the world exclusive property of the parties is treated as community property or family asset and is divided between the two at the time of divorce.8 The reason is that house makers also work but they cannot acquire property as they are not paid in terms of money. It is for this reason that such laws were enacted and upheld in other parts of the world.

28. Should we enact such a provision? Should section 27 be amended to include joint and exclusive property of the parties that are not presented at or about the time of marriage? Should the matrimonial courts have power to deal with entire dispute? Will the courts adopt procedure and interpret the law as done in some other parts of the world under their inherent powers even in absence of such provision? We have to wait for the future to disclose.


29. Our conclusions are as follows:

(a) Under section 27 of the Hindu marriage Act, Matrimonial courts have jurisdiction to dispose exclusive property of the spouses provided it was presented at or about the time of marriage.

(b) Photostat copy of the minutes of the panchayat was secondary evidence and was not admissible in absence of notice under section 66 of the Evidence Act. However, the finding regarding cash and goods mentioned in item no. 4 and 5 of the plaint is not vitiated as it can be sustained on other evidence.

(c) The court below, instead of return of the goods, ought to have decreed the suit for return of their value in terms of money.


30. In view of our conclusions, the appeal filed by the husband and the cross objection filed by the wife are dismissed. However, the decree passed by the Court below is modified that the wife (plaintiff -respondent) shall be entitled to recover a sum of Rs. 1.75 lacs from the appellants (value of the goods mentioned at item nos. 4 & 5 of the plaint and Rs. 75,000/- given in cash) alongwith simple interest at the rate of 6 per cent per annum from 6.10.1998 (date of judgement passed by the court below) till the actual date of payment. Costs on the parties.


1{Lord Diplock in R.V. Deputy Industrial Injuries Commissioner ex parte Moore (1965) 1QB 450, 488}

2(Mahara vs. Attorney General of Trinidad and Tobago 1978(2), All England Law Reports 670)

3Jonathan Swift Gulliver's Travels: A Voyage to Honyhnhnhous.

4 The father of Hemant Kumar, in whose possession the original is alleged to be, is party to the proceeding. Sub section (2) of section 66 the evidence Act may apply in this case. But we have not considered its effects while recording the aforesaid finding as no arguments on its basis were advanced before us.

527. 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 wife.

6 These cases are reported in

  1. Smt. Shukla vs. Brij Bhushan Kakkar: AIR 1982 Delhi 223,

  2. P. Maharajan alias Nadarajan vs. Chakalayil Kanju Sarojini: AIR 1988 Orissa 175,

  3. Sardar Surinder Singh vs. Manjeet Kaur: AIR 1983 J&K 86,

  4. Smt. Surinder Kaur vs. Madan Gopal Singh: AIR 1980 Punjab 334.

7 These cases are reported in

  1. Kamta Prasad vs Smt. Om Wati: AIR 1972 All 153,

  2. Sangeeta B. Kadam vs Balkrishna R. Kadam: AIR 1994 Bombay 1,

  3. Ashok Kumar Chopra vs. Smt. Visandi: AIR 1996 MP 226.

8Kindly see part seven ‘The Deserted Wife's Equity’ and part eight ‘The Wife’s Share In the Home’ of the book 'The Due Process Of Law' by Lord Denning about history of this struggle in England.