Gift cheque

1. S. 27 of the Hindu Marriage Act is similar to S. 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. 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 have held that exclusive property of the parties can not be dealt by the matrimonial courts under S. 27 of the Act and they should seek remedy before regular civil courts.

2. The Allahabad, High Court, Bombay High Court, and MP High Court 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 (stridhan) 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 S. 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.

3. The decision from the Bombay High Court was taken in appeal to the Supreme Court. It was partly overruled in ref.: 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."

4. In substance the Supreme Court in the Balkrishna case held that property covered under S. 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 S. 27 of the Act as explained in the Balkirshna case.

5. S. 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’; 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 belong jointly to the parties. In my opinion S. 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.

6. Thus under S. 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.

7. Hence file suit matter and seek "decree" as just relief for claim of 5 K in gift cheque given by uncle of wife at the time of marriage jointly to the parties.   

PS:
If TV / Fridge / Mixie / Washing Machine / Car / scooter / cycle / flat / bungalow / Ipad / PC / Laptop / Designer Table Lamp / designer double bed / Almarah / limited edition crockery set / water purifier / sofa set / dining table etc. etc. as the case may be were ALSO given jointly to both couple at the time of marriage as gift(s) then pray for money in lieu of same property as in my opinion these cannot be divided 50:50 and case laws exists don’t worry for that do the filing and admission then come back here in case of further doubt.