A bench comprising Justices Dipak Misra and Prafulla C Pant distinguished between ‘judicial separation’ and ‘decree of divorce’ and said that the woman, if not divorced, will have the right to seek ‘stridhan’ from the custodians which may include her estranged husband and his family members. DH File Photo.
A woman can always seek her ‘stridhan’ back from her husband and his family members even if the marriage has not been dissolved by a judicial decree of divorce, the Supreme Court has ruled.
A bench comprising Justices Dipak Misra and Prafulla C Pant distinguished between ‘judicial separation’ and ‘decree of divorce’ and said that the woman, if not divorced, will have the right to seek ‘stridhan’ from the custodians which may include her estranged husband and his family members.
‘Stridhan’ is movable or immovable assets, received during the lifetime, by a woman either prior to marriage or at the time of marriage or at child birth.
“We have to see whether retention of ‘stridhan’ by the husband or any other family members is a continuing offence or not. There can be no dispute that wife can file a suit for realisation of the ‘stridhan’ but it does not debar her to lodge a criminal complaint for criminal breach of trust.
“We need not advert to the same as we are of the considered opinion 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 2005 (Protection of Women from Domestic Violence Act,” the court said in a verdict.
“We are disposed to think so as the status between the parties is not severed because of the decree of dissolution of marriage.
“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,” the bench said.
The apex court, while deciding the plea of a woman, quashed the order of a trial court and the Tripura High Court which had held that a woman cannot claim her stridhan after separation from her husband and criminal proceedings cannot be initiated against husband and in-laws for not handing over the properties.
It said that Protection of Women from Domestic Violence Act is meant to provide help to a woman and the courts should adopt sensitive approach towards such complaints.
The bench said, “In our prefatory note, we have stated about the need of sensitive approach to these kinds of cases. There can be erroneous perception of law, but as we find, neither the learned Magistrate nor the appellate court nor the High Court has made any effort to understand and appreciate the stand of the appellant.
“Such type of cases and at such stage should not travel to this Court. We are compelled to say so as we are of the considered opinion that had the appellate court and the High Court been more vigilant, in all possibility, there could have been adjudication on merits,” the bench said.
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”, it said, adding that a woman can take judicial remedy to claim stridhan if she is not divorced.
In the instant case, the woman got married in 2005. Five years after tying the knot, her husband moved a family court seeking separation from her and the court passed the order in his favour in 2010.
Alleging that her husband and in-laws were not handing over jewellery and other assets gifted to her by family and friends, she approached the trial court which dismissed her plea saying it was not maintainable.
The HC also upheld the order without going into the merit of her plea.