SC on Marriage Dowry Stridhan Tradition and 498a

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 867 OF 2009
(Arising out of SLP (Crl.) No. 4496 of 2006)
Koppisetti Subbharao @ Subramaniam ...Appellant
Versus
State of A.P. ...Respondent
JUDGMENT
Dr. ARIJIT PASAYAT, J.
1 Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single
Judge of the Andhra Pradesh High Court dismissing the petition filed under
Section 482 of the Code of Criminal Procedure, 1973 (in short the `Code').
The prayer in the petition was to quash the proceedings in C.C.No. 440 of
1999 and CC No.325 of 2001 on the file of 3rd Additional Judicial First Class
Magistrate, Kakinada.
3. Background facts in a nutshell are as follows:
A case was registered against three accused persons including the
present appellant for alleged commission of offence punishable under
Section 498-A read with Section 34 of the Indian Penal Code, 1860 (in short
the `IPC'). Initially, the presence of A-1 could not be secured and therefore
court separated the case against A-1 and proceeded the trial against A-2 and
A-3. In the said case A-2 and A-3 were acquitted. Thereafter, the present
application was filed before the High Court taking the stand that the
complainant was not be the legally wedded wife of the appellant as he was
already married and, therefore, Section 498-A has no application to the facts
of the case.
The High Court dismissed the application on the ground that disputed
questions of fact are involved.
4. Learned counsel for the appellant submitted that in view of the
acquittal of the co-accused persons the proceedings against the appellant
should not proceed.
5. Learned counsel for the respondent-State on the other hand submitted
that whether there was valid legal marriage subsisting qua the appellant is a
question of fact and, therefore, the High Court was justified in dismissing
the application under Section 482 of Code.
6. Parties to a marriage tying nuptial knot are supposed to bring about
the union of souls. It creates a new relationship of love, affection, care and
concern between the husband and wife. According to Hindu Vedic
philosophy it is sanskar - a sacrament; one of the sixteen important
sacraments essential to be taken during one's lifetime. There may be
physical union as a result of marriage for procreation to perpetuate the lineal
progeny for ensuring spiritual salvation and performance of religious rites,
but what is essentially contemplated is union of two souls. Marriage is
considered to be a junction of three important duties i.e. social, religious and
spiritual. A question of intricate complexity arises in this appeal where
factual scenario has to be also considered.
7. Stand of the appellant was that it was required to be shown that the
victim-woman was the legally married wife of the accused. Since victim
claim to have married during the lifetime of the appellant, prosecution has
failed to establish that it stood dissolved legally. Prosecution having failed to
bring any material record in that regard, Section 498-A has no application.
8. The marriages contracted between Hindus are now statutorily made
monogamous. A sanctity has been attributed to the first marriage as being
that which was contracted from a sense of duty and not merely for personal
gratification. When the fact of celebration of marriage is established it will
be presumed in the absence of evidence to the contrary that all the rites and
ceremonies to constitute a valid marriage have been gone through. As was
said as long as 1869 "when once you get to this, namely, that there was a
marriage in fact, there would be a presumption in favour of there being a
marriage in law". (See Inderun Valungypooly v. Ramaswamy (1869 (13)
MIA 141.) So also where a man and woman have been proved to have lived
together as husband and wife, the law will presume, until contrary be clearly
proved, that they were living together in consequence of a valid marriage
and not in a state of concubinage. (See Sastry Velaider v. Sembicutty (1881
(6) AC 364) following De Thoren v. Attorney General (1876 (1) AC 686)
and Piers v. Piers (L.R.(2) H.L.C. 331). Where a marriage is accepted as
valid by relations, friends and others for a long time it cannot be declared as
invalid. In Lokhande's case (supra), it was observed by this Court "The
bare fact that man and woman live as husband and wife it does not at any
rate normally give them the status of husband and wife even though they
may hold themselves before the society as husband and wife and the society
treats them as husband and wife". These observations were cited with
approval in Surjit Kaur v. Garja Singh and Ors. (AIR 1994 SC 135). At first
blush, it would seem that these observations run counter to the long catena
of decisions noted above. But on closer examination of the facts of those
cases it is clear that this Court did not differ from the views expressed in the
earlier cases. In Lokhande's case (supra), this Court was dealing with a case
of prosecution for bigamy. The prosecution had contended that second
marriage was gandharva form of marriage and no ceremonies were
necessary and, therefore, did not allege or prove that any customary
ceremonies were performed. In that background, it was held that even in the
case of gandharva marriages, ceremonies were required to be performed. To
constitute bigamy under Section 494 IPC, the second marriage had to be a
valid marriage duly solemnized and as it was not so solemnized it was not a
marriage at all in the eye of law and was therefore invalid. The essential
ingredient constituting the offence of Bigamy is the "marrying" again during
the lifetime of husband or wife in contrast to the ingredients of Section 498A
which, among other things, envisage subjecting the woman concerned to
cruelty. The thrust is mainly "marrying" in Section 494 IPC as against
subjecting of the woman to cruelty in Section 498A. Likewise, the thrust of
the offence under Section 304B is also the "Dowry Death". Consequently,
the evil sought to be curbed are distinct and separate from the persons
committing the offending acts and there could be no impediment in law to
liberally construe the words or expressions relating to the persons
committing the offence so as to rope in not only those validly married but
also any one who has undergone some or other form of marriage and thereby
assumed for himself the position of husband to live, cohabitate and exercise
authority as such husband over another woman. In Surjit Singh's case
(supra) the stand was that the marriage was in Karewa form. This Court held
that under the custom of Karewa marriage, the widow could marry the
brother or a relation of the husband. But in that case the man was a stranger.
Further even under that form of marriage certain ceremonies were required
to be performed which were not proved. Dealing with the contention relating
to presumption, reference was made to Lokhande's case (supra). As the
parties had set up a particular form of marriage which turned out to be
invalid due to absence of proof of having undergone the necessary
ceremonies related to such form of marriage, the presumption of long
cohabitation could not be invoked.
9. The presumption may not be available in a case, for example, where
the man was already married or there was any insurmountable obstacle to
the marriage, but presumption arises if there is strong evidence by
documents and conduct. Above position has been highlighted in Mayne's
Hindu Law and Usage.
10. The question as to who would be covered by the expression `husband'
for attracting Section 498A does present problems. Etymologically, in terms
of the definition of "husband" and "marriage" as given in the various Law
Lexicons and dictionaries - the existence of a valid marriage may appear to
be a sine qua non for applying a penal provision. In Smt. Yamunabai
Anantrao Adhav v. Anantrao Shivram Adhav and Anr. (AIR 1988 SC 644) a
woman claimed maintenance under Section 125 of the Code of Criminal
Procedure, 1973 (in short the `Cr.P.C.'). This Court applied the provision of
the Marriage Act and pointed out that same was a law which held the field
after 1955, when it was enacted and Section 5 lays down that for a lawful
marriage the necessary condition that neither party should have a spouse
living at the time of the marriage is essential and marriage in contravention
of this condition therefore is null and void. The concept of marriage to
constitute the relationship of `husband' and `wife' may require strict
interpretation where claims for civil rights, right to property etc. may follow
or flow and a liberal approach and different perception cannot be an
anatheme when the question of curbing a social evil is concerned.
11. The question of origin of dowry or dos has been the subject of study
by theoreticians. Mayne says that it was a contribution by the wife's family,
or by the wife herself, intended to assist the husband in bearing the expenses
of the conjugal household (Mayne on "Early History of Institution" page
319). While dos or dowry previously belonged to husband, his right over it
being unrestricted, all the property of the wife not included in the dowry was
called her "paraphra" and was her absolute property over which her husband
had no control. (See Banerjee on `Marriage and Stridhan' 345) In Pratibha
Rani v. Suraj Kumar and Anr. (AIR 1985 SC 628) after tracing out the
history of stridhan it was held that wife is the absolute owner of such
property under Section 27 of the Marriage Act. Property presented to the
husband and wife at or about the time of marriage belongs to them jointly.
12. The Dowry Prohibition Act, 1961 (in short the `Dowry Act') was
introduced to combat the ever-increasing menace of dowry. The avowed
object is prohibition on giving and taking of dowry. Section 2 defines
"dowry". Section 4 provides the penalty for demanding "dowry", while
Section 5 is a significant provision making agreement for giving or taking
dowry to be void. Section 6 is another provision which reflects statutory
concern for prevention of dowry, be it taking or giving. It is provided therein
that pending transfer of the dowry, the person who received the dowry holds
it in trust for benefit of the woman. Amendment to Section 2 by Amendment
Act 43 of 1986 has made the provision clear and demand made after the
marriage is a part of dowry, in view of addition of words "at or before or
after the marriage". (See State of H.P. v. Nikku Ram (AIR 1996 SC 67).
13. The definition of the term `dowry' under Section 2 of the Dowry Act
shows that any property or valuable security given or "agreed to be given"
either directly or indirectly by one party to the marriage to the other party to
the marriage "at or before or after the marriage" as a "consideration for the
marriage of the said parties" would become `dowry' punishable under the
Dowry Act. Property or valuable security so as to constitute `dowry' within
the meaning of the Dowry Act must, therefore, be given or demanded "as
consideration for the marriage."
14. Section 4 of the Dowry Act aims at discouraging the very "demand"
of "dowry" as a `consideration for the marriage' between the parties thereto
and lays down that if any person after the commencement of the Act,
"demands", directly or indirectly, from the parents or guardians of a `bride'
or `bridegroom', as the case may be, any `dowry' he shall be punishable
with imprisonment or with fine or within both. Thus, it would be seen that
Section 4 makes punishable the very demand of property or valuable
security as a consideration for marriage, which demand, if satisfied, would
constitute the graver offence under Section 3 of the Act punishable with
higher imprisonment and with fine which shall not be less than fifteen
thousand rupees or the amount of the value of such dowry whichever is
more.
15. The definition of the expression `dowry' contained in Section 2 of the
Dowry Act cannot be confined merely to be `demand' of money, property or
valuable security' made at or after the performance of marriage. The
legislature has in its wisdom while providing for the definition of `dowry'
emphasized that any money, property or valuable security given, as a
consideration for marriage, `before, at or after' the marriage would be
covered by the expression `dowry' and this definition as contained in
Section 2 has to be read wherever the expression `dowry' occurs in the Act.
Meaning of the expression `dowry' as commonly used and understood is
different than the peculiar definition thereof under the Act. Under Section 4,
mere demand of `dowry' is sufficient to bring home the offence to an
accused. Thus, any `demand' of money, property or valuable security made
from the bride or her parents or other relatives by the bridegroom or his
parents or other relatives or vice-versa would fall within the mischief of
`dowry' under the Act where such demand is not properly referable to any
legally recognized claim and is relatable only to the consideration of
marriage. Marriage in this context would include a proposed marriage also
more particularly where the non-fulfilment of the "demand of dowry" leads
to the ugly consequence of the marriage not taking place at all. The
expression "dowry" under the Dowry Act has to be interpreted in the sense
which the statute wishes to attribute to it. The definition given in the statute
is the determinative factor. The Dowry Act is a piece of social legislation
which aims to check the growing menace of the social evil of dowry and it
makes punishable not only the actual receiving of dowry but also the very
demand of dowry made before or at the time or after the marriage where
such demand is referable to the consideration of marriage. Dowry as a quid
pro quo for marriage is prohibited and not the giving of traditional presents
to the bride or the bridegroom by friends and relatives. Thus, voluntary
presents given at or before or after the marriage to the bride or the
bridegroom, as the case may be, of a traditional nature, which are given not
as a consideration for marriage but out of love, affection or regard, would
not fall within the mischief of the expression `dowry' made punishable
under the Dowry Act.
16. Aryan Hindus recognised 8 forms of marriage, out of which four were
approved, namely, Brahma, Daiva, Arsha and Prajapatya. The dis-approved
forms of marriages were Gandharva, Asura, Rakshasa and Paisacha. In the
Brahma form of marriage, some amounts had to be spent by father/guardian,
as the case may be, to go ultimately to the spouses. The origin of dowry may
be traced to this amount either in cash or kind.
17. The concept of "dowry" is intermittently linked with a marriage and
the provisions of the Dowry Act apply in relation to marriages. If the legality
of the marriage itself is an issue further legalistic problems do arise. If the
validity of the marriage itself is under legal scrutiny, the demand of dowry in
respect of an invalid marriage would be legally not recognizable. Even then
the purpose for which Sections 498A and 304B-IPC and Section 113B of the
Indian Evidence Act, 1872 (for short the `Evidence Act') were introduced
cannot be lost sight of. Legislations enacted with some policy to curb and
alleviate some public evil rampant in society and effectuate a definite public
purpose or benefit positively requires to be interpreted with certain element
of realism too and not merely pedantically or hyper technically. The obvious
objective was to prevent harassment to a woman who enters into a marital
relationship with a person and later on, becomes a victim of the greed for
money. Can a person who enters into a marital arrangement be allowed to
take a shelter behind a smokescreen to contend that since there was no valid
marriage the question of dowry does not arise? Such legalistic niceties
would destroy the purpose of the provisions. Such hairsplitting legalistic
approach would encourage harassment to a woman over demand of money.
The nomenclature `dowry' does not have any magic charm written over it. It
is just a label given to demand of money in relation to marital relationship.
The legislative intent is clear from the fact that it is not only the husband but
also his relations who are covered by Section 498A. Legislature has taken
care of children born from invalid marriages. Section 16 of the Marriage Act
deals with legitimacy of children of void and voidable marriages. Can it be
said that legislature which was conscious of the social stigma attached to
children of void and voidable marriages closed eyes to plight of a woman
who unknowingly or unconscious of the legal consequences entered into the
marital relationship. If such restricted meaning is given, it would not further
the legislative intent. On the contrary, it would be against the concern shown
by the legislature for avoiding harassment to a woman over demand of
money in relation to marriages. The first exception to Section 494 has also
some relevance. According to it, the offence of bigamy will not apply to
"any person whose marriage with such husband or wife has been declared
void by a Court of competent jurisdiction". It would be appropriate to
construe the expression `husband' to cover a person who enters into marital
relationship and under the colour of such proclaimed or feigned status of
husband subjects the woman concerned to cruelty or coerce her in any
manner or for any of the purposes enumerated in the relevant provisions -
Sections 304B/498A, whatever be the legitimacy of the marriage itself for
the limited purpose of Sections 498A and 304B IPC. Such an interpretation,
known and recognized as purposive construction has to come into play in a
case of this nature. The absence of a definition of `husband' to specifically
include such persons who contract marriages ostensibly and cohabitate with
such woman, in the purported exercise of his role and status as `husband' is
no ground to exclude them from the purview of Section 304B or 498A IPC,
viewed in the context of the very object and aim of the legislations
introducing those provisions.
18. In Chief Justice of A.P. v. L.V.A. Dixitulu (1979 (2) SCC 34), this
Court observed:
"The primary principle of interpretation is that a
constitutional or statutory provision should be construed
"according to the intent of they that made it" (Coke).
Normally, such intent is gathered from the language of
the provision. If the language or the phraseology
employed by the legislation is precise and plain and thus
by itself proclaims the legislative intent in unequivocal
terms, the same must be given effect to, regardless of
the consequences that may follow. But if the words used
in the provision are imprecise, protean or evocative or
can reasonably bear meanings more than one, the rule of
strict grammatical construction ceases to be a sure guide
to reach at the real legislative intent. In such a case, in
order to ascertain the true meaning of the terms and
phrases employed, it is legitimate for the Court to go
beyond the arid literal confines of the provision and to
call in aid other well-recognised rules of construction,
such as its legislative history, the basic scheme and
framework of the statute as a whole, each portion
throwing light, on the rest, the purpose of the
legislation, the object sought to be achieved, and the
consequences that may flow from the adoption of one in
preference to the other possible interpretation.
19. In Kehar Singh v. State (Delhi Admn.) (AIR 1988 SC 1883), this
Court held:
"....But, if the words are ambiguous, uncertain or any
doubt arises as to the terms employed, we deem it as out
paramount duty to put upon the language of the
legislature rational meaning. We then examine every
word, every section and every provision. We examine
the Act as a whole. We examine the necessity which
gave rise to the Act. We look at the mischiefs which the
legislature intended to redress. We look at the whole
situation and not just one-to-one relation. We will not
consider any provision out of the framework of the
statute. We will not view the provisions as abstract
principles separated from the motive force behind. We
will consider the provisions in the circumstances to
which they owe their origin. We will consider the
provisions to ensure coherence and consistency within
the law as a whole and to avoid undesirable
consequences.
20. In District Mining Officer v. Tata Iron & Steel Co. (JT 2001 (6) SC
183), this Court stated:
"The legislation is primarily directed to the problems
before the legislature based on information derived from
past and present experience. It may also be designed by
use of general words to cover similar problems arising
in future. But, from the very nature of thing, it is
impossible to anticipate fully in the varied situations
arising in future in which the application of the
legislation in hand may be called for the words chosen
to communicate such indefinite referents are bound to
be in many cases, lacking in charity and precision and
thus giving rise to controversial questions of
construction. The process of construction combines both
literal and purposive approaches. In other words, the
legislative intention i.e. the true or legal meaning of an
enactment is derived by considering the meaning of the
words used in the enactment in the light of any
discernible purpose or object which comprehends the
mischief and its remedy to which the enactment is
directed".
21. The suppression of mischief rule made immortal in Heydon's case (3
Co Rep 7a 76 ER 637) can be pressed into service. With a view to suppress
the mischief which would have surfaced had the literal rule been allowed to
cover the field, the Heydon's Rule has been applied by this Court in a
number of cases, e.g. Bengal Immunity Co. Ltd., v. State of Bihar and Ors.
(AIR 1955 SC 661), Goodyear India Ltd. v. State of Haryana and Anr. (AIR
1990 SC 781), P.E.K. Kalliani Amma and Ors. v. K. Devi and Ors. (AIR
1996 SC 1963) and Ameer Trading Corporation Ltd., v. Shapporji Data
Processing Ltd. (2003 (8) Supreme 634).
22. In Reserve Bank of India etc. etc. v. Peerless General Finance and
Investment Co. Ltd. and others etc. etc. (1987 (1) SCC 424) while dealing
with the question of interpretation of a statute, this Court observed:
"Interpretation must depend on the text and the
context. They are the bases of interpretation. One may
well say if the text is the texture, context is what gives
the colour. Neither can be ignored. Both are important.
That interpretation is best which makes the textual
interpretation match the contextual. A statue is best
interpreted when we know why it was enacted. With
this knowledge, the statute must be read, first as a whole
and then section by section, clause by clause, phrase by
phrase and word by word. If a statute is looked at in the
context of its enactment, with the glasses of the statute-
maker, provided by such context, its scheme, the
sections, clauses, phrases and words may take colour
and appear different than when the statute is looked at
without the glasses provided by the context. With these
glasses we must look at the Act as a whole and discover
what each section, each clause, each phrase and each
word is meant and designed to say as to fit into the
scheme of the entire Act. No part of a statute and no
word of a statute can be construed in isolation. Statutes
have to be construed so that every word has a place and
everything is in its place."
23. In Seaford Court Estates Ltd. v. Asher (1949) 2 All ER 155 (CA),
Lord Denning, advised a purposive approach to the interpretation of a word
used in a statute and observed:
"The English language is not an instrument of
mathematical precision. Our literature would be much
the poorer if it were. This is where the draftsmen of
Acts of Parliament have often been unfairly criticised. A
Judge, believing himself to be fettered by the supposed
rule that he must look to the language and nothing else,
laments that the draftsmen have not provided for this or
that, or have been guilty of some or other ambiguity. It
would certainly save the Judges trouble if Acts of
Parliament were drafted with divine prescience and
perfect clarity. In the absence of it, when a defect
appears, a Judge cannot simply fold his hands and
blame the draftsman. He must set to work on the
constructive task of finding the intention of Parliament,
and he must do this not only from the language of the
statute, but also from a consideration of the social
conditions which gave rise to it and of the mischief
which it was passed to remedy, and then he must
supplement the written word so as to give `force and
life' to the intention of the legislature......A Judge should
ask himself the question how, if the makers of the Act
had themselves come across this ruck in this texture of
it, they would have straightened it out? He must then do
so as they would have doe. A Judge must not alter the
material of which the Act is woven, but he can and
should iron out the creases."
(underlined for emphasis)
24. These aspects were highlighted by this Court in S. Gopal Reddy v.
State of A.P. (1996 (4) SCC 596) and Reema Aggarwal v. Anupam (2004
(3) SCC 199.
25. The High Court was justified in holding that disputed questions of fact
are involved and the application under Section 482 of Code has been rightly
rejected. We do not find any scope for interference with the order of the
High Court. However, we make it clear that we have not expressed any
opinion on the merits of the case.
26. The appeal is dismissed.
........................................J.
(Dr. ARIJIT PASAYAT)
........................................J.
(ASOK KUMAR GANGULY)
New Delhi,
April 29, 2009

http://www.indiankanoon.org/doc/389094/