Supreme court Quashes says Courts should be cautious in implicating family members’ in dowry case

Supreme court Quashes says Courts should be cautious in implicating family members’ in dowry case 

Supreme Court of India Geeta Mehrotra & Anr. vs State Of U.P. & Anr. on 17 October, 2012

Author: G S MisraBench: T.S. Thakur, Gyan Sudha Misra, , , ,

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTIONCRIMINAL

 APPEAL NO. 1674 OF 2012(Arising out of SLP (Crl.) No. 10547/2010)

Geeta Mehrotra & Anr. ..Appellants
Versus
State of U.P. & Anr. . Respondents

Geeta Mehrotra & Anr. vs State Of U.P. & Anr. on 17 October, 2012

Head Note:-

Criminal Procedure Code, 1973 - Section 482 - Indian Penal Code, 1860 - Sections 323, 498A, 504 and 506 - Dowry Prohibition Act, 1961 - Sections 3 and 4 - Quashing of FIR - Family members of a person should not be implicated in a dowry case just because their names have been mentioned in the complaint without any specific allegation levelled against them.

Criminal Procedure Code, 1973 - Section 482 - Indian Penal Code, 1860 - Sections 323, 498A, 504 and 506 - Dowry Prohibition Act, 1961 - Sections 3 and 4 - Quashing of FIR - Mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them.  

Held:- The courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives or the FIR prima facie discloses a case of over-implication by involving the entire family at instance of the complainant, who is out to settle her scores arising out of teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.

Criminal Procedure Code, 1973 - Section 482 - Indian Penal Code, 1860 - Sections 323, 498A, 504 and 506 - Dowry Prohibition Act, 1961 - Sections 3 and 4 - Quashing of FIR - Family members should not be implicated unless FIR discloses specific allegations against the relatives who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. 

Held:- If the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of legal and judicial process to mechanically send the named accused in the FIR to undergo trial.

Practice and Procedure - Quashing of FIR - If the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law.

J U D G M E N T

GYAN SUDHA MISRA, J .

1. This appeal by special leave in which we granted leave has been filed by the appellants against the order dated 6.9.2010 passed by the High Court of Judicature at Allahabad in Crl. Miscellaneous Application No.22714/2007 whereby the High Court had been pleased to dispose of the application moved by the appellants under Section 482 Cr.P.C. for quashing the order of the Magistrate taking cognizance against the appellants under Sections 498A/323/504/506 IPC read with Section 3/4 of the Dowry Prohibition Act with an observation that the question of territorial jurisdiction cannot be properly decided by the High Court under Section 482 Cr.P.C. for want of adequate facts. It was, therefore, left open to the appellants to move the trial court for dropping the proceedings on the ground of lack of territorial jurisdiction. The High Court however granted interim protection to the appellants by directing the authorities not to issue coercive process against the appellants until disposal of the application filed by the appellants with a further direction to the trial court to dispose of the application if moved by the appellants, within a period of two months from the date of moving the application. The application under Section 482 Cr.P.C. was thus disposed of by the High Court.

2. The appellants in spite of the liberty granted to them to move the trial court, have filed this appeal for quashing the proceedings which had been initiated on the basis of a case lodged by the respondent No.2 Smt. Shipra Mehrotra (earlier known as Shipra Seth) againsther husband, father-in-law, mother-in-law, brother-inlaw and sister-in-law. This appeal has been preferred by the sister-in-law, who is appellant No.1 and brotherin- law of the complainant, who is appellant No.2.

3. The case emerges out of the first information report lodged by respondent No.2 Smt. Shipra Mehrotra under Sections 498A/323/504/506 IPC read with Section 3/4 of the Dowry Prohibition Act bearing F.I.R.No. 52/2004. The F.I.R. was registered at Mahila Thana Daraganj, Allahabad wherein the complainant alleged that she was married to Shyamji Mehrotra s/o Balbir Saran who was living at Eros Garden, Charmswood Village, Faridabad, Suraj Kund Road at Faridabad Haryana as per the Hindu marriage rites and customs. Prior to marriage the complainant and her family members were told by Shyamji Mehrotra and his elder brother Ramji Mehrotra who is appellant No.2 herein and their mother Smt. Kamla Mehrotra and her sister Geeta Mehrotra who is appellant No.1 herein that Shyamji is employed as a Team Leader in a top I.T. Company in Chennai and is getting salary ofRs.45,000/- per month. After negotiation between the parents of the complainant and the accused parties, the marriage of the complainant Shipra Seth (later Shipra Mehrotra) and Shyamji Mehrotra was performed after which the respondent-complainant left for the house of her in-laws.

4. It was stated that the atmosphere in the house was peaceful for sometime but soon after the wedding, when all the relatives left, the maid who cooked meals was first of all paid-off by the aforesaid four persons who then told the complainant that from now onwards, the complainant will have to prepare food for the family. In addition, the above mentioned people started taunting and scolding her on trivial issues. The complainant also came to know that Shyamji was not employed anywhere and always stayed in the house. Shyamji gradually took away all the money which the complainant had with her and then told her that her father had not given dowry properly, therefore, she should get Rupees five lakhs from her father in order to enable him to start business, because he was notgetting any job. When the complainant clearly declined and stated that she will not ask her parents for money, Shyamji, on instigation of other accused-family members, started beating her occasionally. To escape every day torture and financial status of the family, the complainant took up a job in a Call Centre at Convergys on 17.2.2003 where the complainant had to do night shifts due to which she used to come back home at around 3 a.m. in the morning. Just on her return from work, the household people started playing bhajan cassettes after which she had to getup at 7’o clock in the morning to prepare and serve food to all the members in the family. Often on falling asleep in the morning, Shyamji, Kamla Devi and Geeta Mehrotra tortured the complainant every day mentally and physically. Ramji Mehrotra often provoked the other three family members to torture and often used to make the complainant feel sad by making inappropriate statements about the complainant and her parents. Her husband Shyamji also took away the salary from the complainant.

5. After persistent efforts, Shyamji finally got a job in Chennai and he went to Chennai for the job in May, 2003. But, it is alleged that there was no change in his behaviour even after going to Chennai. The complainant often called him on phone to talk to him but he always did irrelevant conversation. He never spoke properly with the complainant whenever he visited home and often used to hurl filthy abuses. The complainant states that she often wept and tolerated the tortures of the accused persons for a long time but did not complain to her family members, as that would have made them feel sad. At last, when the complainant realized that even her life was in danger, she was compelled to tell everything to her father on phone who was very upset on hearing her woes. On 15.7.2003 complainant heard some conversation of her mother-inlaw and sister-in-law from which it appeared to her that they want to kill the complainant in the night only. Thereupon the complainant apprised her father of the situation on phone to which her father replied that he will call back her father-in-law and she should go withhim immediately and he will come in the morning. The father-in-law Satish Dhawan and his wife who were living in NOIDA thereafter came in the night and somehow took the complainant to their home who also came to know of everything. The complainant’s father and brother later went to her matrimonial home on 16.7.2003. On seeing her father and brother, Kamla Mehrotra and Geeta Mehrotra started speaking loudly and started saying that Shyamji would be coming by the evening and so he should come in the evening for talking to them. Her father and brother then went away from there. That very day, her husband Shyamji and brother-in-law Ramji also reached home. On reaching there, Shyamji abused her on phone and told her to send her father.

6. When father and brother of the complainant went home in the evening, they were also insulted by all the four and video camera and tape were played and in the end they were told that they should leave from here. Insulted, they came back from there and then came back to Allahabad with the complainant. For manydays the complainant and her family members hoped that the situation would improve if the matter was resolved. Many times other people tried to persuade the in – laws but to no avail. Her brother went to their house to talk to her in – laws but it came to his knowledge that the in – laws had changed their house. After much effort, they came to know that the father-inlaw and mother-in-law started living at B-39, Brahma cooperative group housing society, block 7, sector-7, Dwarka, Delhi. On 19.09.04 evening, her father talked to Kamla Mehrotra and Geeta Mehrotra regarding the complainant using bad words and it was said that if her daughter came there she will be kicked out. After some time Shyamji rang up at complainant’s home but on hearing the complainant’s voice, he told her abusively that now she should not come his way and she should tell her father not to phone him in future. At approximately 10:30 pm in the night Ramji’s phone came to the complainant’s home. He used bad words while talking to her father and in the end said that he had got papers prepared in his defence and he may dowhatever he could but if he could afford to give Rs.10 lakhs then it should be conveyed after which he will reconsider the matter. If the girl was sent to his place without money, then even her dead body will not be found.

7. On hearing these talks of the accused, the complainant believed that her in-laws will not let the complainant enter their home without taking ten lakhs and if the complainant went there on her own, she will not be safe. Hence, she lodged the report wherein she prayed that the SHO Daraganj should be ordered to do the needful after registering the case against the accused Shyam Mehrotra, Ramji Mehrotra, Kamla Mehrotra and Geeta Mehrotra. Thus, in substance, the complainant related the bickering at her matrimonial home which made her life miserable in several ways and compelled her to leave her in-law’s place in order to live with her father where she lodged a police case as stated hereinbefore.

8. On the basis of the complaint, the investigating authorities at P.S. Daraganj, Allahabadstarted investigation of the case and thereafter the police submitted chargesheet against the appellants and other family members of the complainant’s husband.

9. Hence, the appellants who are sister and brother of the complainant’s husband filed petition under Section 482 Cr.P.C. for quashing of the chargesheet and the entire proceedings pending in the court of learned Judicial Magistrate, Court No.IV, Allahabad, inter-alia, on the ground that FIR has been lodged with mala fide intentions to harass the appellants and that no case was made out against the appellants as well as other family members. But the principal ground of challenge to the FIR was that the incident although was alleged to have taken place at Faridabad and the investigation should have been done there only, the complainant with mala fide intention in connivance with the father of the complainant, got the investigating officer to record the statements by visiting Ghaziabad which was beyond his territorial jurisdiction and cannot be construed as legal and proper investigation. It was also alleged that the father of thecomplainant got the arrest warrant issued through George Town Police Station, Allahabad, in spite of the cause of action having arisen at Allahabad.

10. This appeal has been preferred by Kumari Geeta Mehrotra i.e. the sister of the complainant’s husband and Ramji Mehrotra i.e. the elder brother of the complainant’s husband assailing the order of the High Court and it was submitted that the Hon’ble High Court ought to have appreciated that the complainant who had already obtained an ex-parte decree of divorce, is pursuing the present case through her father with the sole purpose to unnecessarily harass the appellants to extract money from them as all efforts of mediation had failed.

11. However, the grounds of challenge before this Court to the order of the High Court, inter alia is that the High Court had failed to appreciate that the investigation had been done by the authority without following due process of law which also lacked territorial jurisdiction. The relevant documents/parcha diary for deciding the territorial jurisdiction had been overlookedas the FIR has been lodged at Allahabad although the cause of action of the entire incident is alleged to have taken place at Faridabad (Haryana). It was, therefore, submitted that the investigating authorities of the Allahabad have traversed beyond the territorial limits which is clearly an abuse of the process of law and the High Court has failed to exercise its inherent powers under Section 482 Cr.P.C. in the facts and circumstances of this case and allowed the proceedings to go on before the trial court although it had no jurisdiction to adjudicate the same.

12. It was further averred that the High Court had failed to examine the facts of the FIR to see whether the facts stated in the FIR constitute any prima facie case making out an offence against the sister-inlaw and brother-in-law of the complainant and whether there was at all any material to constitute an offence against the appellants and their family members. Attention of this Court was further invited to the contradictions in the statement of the complainant and her father which indicate material contradictionsindicating that the complainant and her father have concocted the story to implicate the appellants as well as all their family members in a criminal case merely with a mala fide intention to settle her scores and extract money from the family of her ex-husband Shyamji Mehrotra and his family members.

13. On a perusal of the complaint and other materials on record as also analysis of the arguments advanced by the contesting parties in the light of the settled principles of law reflected in a catena of decisions, it is apparent that the High Court has not applied its mind on the question as to whether the case was fit to be quashed against the appellants and has merely disposed of the petition granting liberty to the appellants to move the trial court and raise contentions on the ground as to whether it has territorial jurisdiction to continue with the trial in the light of the averment that no part of the cause of action had arisen at Allahabad and the entire incident even as per the FIR had taken place at Faridabad.

14. The High Court further overlooked the fact that during the pendency of this case, the complainantrespondent No.2 has obtained an ex-parte decree of divorce against her husband Shyamji Mehrotra and the High Court failed to apply its mind whether any case could be held to have been made out against Kumari Geeta Mehrotra and Ramji Mehrotra, who are the unmarried sister and elder brother of the complainant’s ex-husband. Facts of the FIR even as it stands indicate that although a prima facie case against the husband Shyamji Mehrotra and some other accused persons may or may not be constituted, it surely appears to be a case where no ingredients making out a case against the unmarried sister of the accused Shyamji Mehrotra and his brother Ramji Mehrotra appear to be existing for even when the complainant came to her in-law’s house after her wedding, she has alleged physical and mental torture by stating in general that she had been ordered to do household activities of cooking meals for the whole family. But there appears to be no specific allegation against the sister and brother of thecomplainant’s husband as to how they could be implicated into the mutual bickering between the complainant and her husband Shyamji Mehrotra including his parents.

15. Under the facts and circumstance of similar nature in the case of Ramesh vs. State of Tamil Nadu reported in (2005) SCC (Crl.) 735 at 738 allegations were made in a complaint against the husband, the in-laws, husband’s brother and sister who were all the petitioners before the High Court wherein after registration of the F.I.R. and investigation, the charge sheet was filed by the Inspector of Police in the court of Judicial Magistrate III, Trichy. Thereupon, the learned magistrate took cognizance of the offence and issued warrants against the appellants on 13.2.2002. Four of the accused-appellants were arrested and released on bail by the magistrate at Mumbai. The appellants had filed petition under Section 482, Cr.P.C. before the Madras High Court for quashing the proceedings in complaint case on the file of the Judicial Magistrate III, Trichy. The High Court by the impugnedorder dismissed the petition observing that the grounds raised by the petitioners were all subject matters to be heard by the trial court for better appreciation after conducting full trial as the High Court was of the view that it was only desirable to dismiss the criminal original petition and the same was also dismissed. However, the High Court had directed the Magistrate to dispense with the personal attendance of the appellants.

16. Aggrieved by the order of the Madras High Court dismissing the petition under Section 482 Cr.P.C., the special leave petition was filed in this Court giving rise to the appeals therein where threefold contentions were raised viz., (i) that the allegations are frivolous and without any basis; (ii) even according to the FIR, no incriminating acts were done within the jurisdiction of Trichy Police Station and the court at Trichy and, therefore, the learned magistrate lacked territorial jurisdiction to take cognizance of the offence and (iii) taking cognizance of the alleged offence at that stage was barred under Section 468(1) Cr.P.C. as it wasbeyond the period of limitation prescribed under Section 468(2) Cr.P.C. Apart from the subsequent two contentions, it was urged that the allegations under the FIR do not make out any offence of which cognizance could be taken.

17. Their Lordships of the Supreme Court in this matter had been pleased to hold that the bald allegations made against the sister in law by the complainant appeared to suggest the anxiety of the informant to rope in as many of the husband’s relatives as possible. It was held that neither the FIR nor the charge sheet furnished the legal basis for the magistrate to take cognizance of the offences alleged against the appellants. The learned Judges were pleased to hold that looking to the allegations in the FIR and the contents of the charge sheet, none of the alleged offences under Section 498 A, 406 and Section 4 of the Dowry Prohibition Act were made against the married sister of the complainant’s husband who was undisputedly not living with the family of the complainant’s husband. Their Lordships of theSupreme Court were pleased to hold that the High Court ought not to have relegated the sister in law to the ordeal of trial. Accordingly, the proceedings against the appellants were quashed and the appeal was allowed.

18. In so far as the plea of territorial jurisdiction is concerned, it is no doubt true that the High Court was correct to the extent that the question of territorial jurisdiction could be decided by the trial court itself. But this ground was just one of the grounds to quash the proceedings initiated against the appellants under Section 482 Cr.P.C. wherein it was also alleged that no prima facie case was made out against the appellants for initiating the proceedings under the Dowry Prohibition Act and other provisions of the IPC. The High Court has failed to exercise its jurisdiction in so far as the consideration of the case of the appellants are concerned, who are only brother and sister of the complainant’s husband and are not alleged even by the complainant to have demanded dowry from her. The High Court, therefore, ought to have considered thateven if the trial court at Allahabad had the jurisdiction to hold the trial, the question still remained as to whether the trial against the brother and sister of the husband was fit to be continued and whether that would amount to abuse of the process of the court.

19. Coming to the facts of this case, when the contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.

20. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reportedin (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:

“there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it outin a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their cases in different courts.”

The view taken by the judges in this matter was that the courts would not encourage such disputes.

21. In yet another case reported in AIR 2003 SC 1386 in the matter of B.S. Joshi & Ors. vs. State of Haryana & Anr. it was observed that there is no doubt that the object of introducing Chapter XXA containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punish the husband and his relatives who harass or torture the wife to coerce her relatives to satisfy unlawful demands of dowry. But if the proceedings are initiated by the wife under Section 498A against the husband and his relatives and subsequently she has settled her disputes with her husband and his relatives and the wife and husband agreed for mutual divorce, refusal to exercise inherent powers by the High Court would not be proper as it would prevent woman fromsettling earlier. Thus for the purpose of securing the ends of justice quashing of FIR becomes necessary, Section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. It would however be a different matter depending upon the facts and circumstances of each case whether to exercise or not to exercise such a power.

22. In the instant matter, when the complainant and her husband are divorced as the complainant-wife secured an ex-parte decree of divorce, the same could have weighed with the High Court to consider whether proceeding initiated prior to the divorce decree was fit to be pursued in spite of absence of specific allegations at least against the brother and sister of the complainant’s husband and whether continuing with this proceeding could not have amounted to abuse of the process of the court. The High Court, however, seems not to have examined these aspects carefully and have thus side-tracked all these considerations merely on the ground that the territorial jurisdiction could be raised only before the magistrate conducting the trial.

23. In the instant case, the question of territorial jurisdiction was just one of the grounds for quashing the proceedings along with the other grounds and, therefore, the High Court should have examined whether the prosecution case was fit to be quashed on other grounds or not. At this stage, the question also crops up whether the matter is fit to be remanded to the High Court to consider all these aspects. But in matters arising out of a criminal case, fresh consideration by remanding the same would further result into a protracted and vexatious proceeding which is unwarranted as was held by this Court in the case of Ramesh vs. State of Tamil Nadu (supra) that such a course of remand would be unnecessary and inexpedient as there was no need to prolong the controversy. The facts in this matter on this aspect was although somewhat different since the complainant had lodged the complaint after seven years of delay, yet in the instant matter the factual position remainsthat the complaint as it stands lacks ingredients constituting the offence under Section 498A and Section 3/4 Dowry Prohibition Act against the appellants who are sister and brother of the complainant’s husband and their involvement in the whole incident appears only by way of a casual inclusion of their names. Hence, it cannot be overlooked that it would be total abuse of the process of law if we were to remand the matter to the High Court to consider whether there were still any material to hold that the trial should proceed against them in spite of absence of prima facie material constituting the offence alleged against them.

24. However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegation of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasize by highlighting is that, if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising outof matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognisance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over-implication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish ofdomestic bickering while settling down in her new matrimonial surrounding.

25. In the case at hand, when the brother and unmarried sister of the principal accused Shyamji Mehrotra approached the High Court for quashing the proceedings against them, inter-alia, on the ground of lack of territorial jurisdiction as also on the ground that no case was made out against them under Sections 498A,/323/504/506 including Sections 3/4 of the Dowry Prohibition Act, it was the legal duty of the High Court to examine whether there were prima facie material against the appellants so that they could be directed to undergo the trial, besides the question of territorial jurisdiction. The High Court seems to have overlooked all the pleas that were raised and rejected the petition on the solitary ground of territorial jurisdiction giving liberty to the appellants to approach the trial court.

26. The High Court in our considered opinion appear to have missed that assuming the trial court had territorial jurisdiction, it was still left to be decided whether it was a fit case to send the appellants for trial when the FIR failed to make out a prima facie case against them regarding the allegation of inflicting physical and mental torture to the complainant demanding dowry from the complainant. Since the High Court has failed to consider all these aspects, this Court as already stated hereinbefore, could have remitted the matter to the High Court to consider whether a case was made out against the appellants to proceed against them. But as the contents of the FIR does not disclose specific allegation against the brother and sister of the complainant’s husband except casual reference of their names, it would not be just to direct them to go through protracted procedure by remanding for consideration of the matter all over again by the High Court and make the unmarried sister of the main accused and his elder brother to suffer the ordeal of a criminal case pending against them specially when the FIR does not disclose ingredients of offence under Sections 498A/323/504/506, IPC and Sections 3/4 of the Dowry Prohibition Act.

27. We, therefore, deem it just and legally appropriate to quash the proceedings initiated against the appellants Geeta Mehrotra and Ramji Mehrotra as the FIR does not disclose any material which could be held to be constituting any offence against these two appellants. Merely by making a general allegation that they were also involved in physical and mental torture of the complainant-respondent No.2 without mentioning even a single incident against them as also the fact as to how they could be motivated to demand dowry when they are only related as brother and sister of the complainant’s husband, we are pleased to quash and set aside the criminal proceedings in so far as these appellants are concerned and consequently the order passed by the High Court shall stand overruled. The appeal accordingly is allowed.

……………………………J(T.S. Thakur)

……………………………J(Gyan Sudha Misra)

 

New Delhi,October 17, 2012

SOURCE :- http://judis.nic.in/supremecourt/imgs1.aspx?filename=39680

Delhi HC- ipc506/34 Frivolous petition by wife to harass husband and his relatives dismissed with costs

Crl. Revision  Pet. No.456 of 2006   Anjali Aggarwal v State & Ors.   

 

              IN THE HIGH COURT OF DELHI AT NEW DELHI  
             Date of Reserve: September 7th,  2010    Date of Order:  September 22nd  , 2010

  Anjali Aggarwal            ...Petitioner         

  Versus  

  State & Ors.              ...Respondents   

Counsels:
Mr. J.C. Mahendroo for petitioner.
Mr. Sunil Sharma, APP for State/respondent.

JUSTICE SHIV NARAYAN DHINGRA
1.  Whether reporters of local papers may be allowed to see the judgment?
2.  To be referred to the reporter or not?
3.  Whether judgment should be reported in Digest?

JUDGMENT

1.  By way of present petition under Section 397 of Cr.P.C. petitioner sought setting aside of the judgment dated 10th
February 2006 passed by leaned Metropolitan Magistrate acquitting respondents no.2 and 3 for the offences under Section 506 read with Section 34 IPC. 

2.    The revision petitioner in her complaint to police had alleged that on 26th September 1992, she had come to Tis Hazari Courts in a child custody  case.  Respondent Sudershan Kumar  Bagrodia, her ex-husband, who was a party in the custody case had come to Tis Hazari Courts along with  his sister Smt. Jai Shree Bindal and when she was near gate no.2 of Tis Hazari Courts, both the respondents stopped her and threatened that she should  stop coming to the Court otherwise she would be killed. She alleged that they tried to snatch the child from her and slapped her. She then went  to the police station to lodge a report and her report was recorded and after investigation, challan was filed. 

3.  The learned trial court after calling the records of the custody case pending between the parties observed that on 26th  September 1992, there was no date of the custody case between the parties.  The learned trial  court  also, after appreciating the testimony of complainant and her cross examination, concluded  that the child was not with her on that day. The learned trial court found that  the complaint made by the petitioner/ complainant was a false complaint and, therefore, acquitted the respondents. 

4.  In her revision petition, the petitioner/complainant had taken the stand that on 26th September 1992, there was no hearing in the court and she had taken the child for meeting with the husband. Thus, the stand taken by the petitioner in revision is contrary
to her statement made in the trial court wherein she had stated that she had appeared on that day in custody case of her child before the Court of Ms. Mamta Sehgal as her case was going on in the Court of Ms. Mamta Sehgal. I consider that in  a  revision petition, this Court cannot consider a new plea of fact which was not raised before trial court. Moreover, her version in the revision petition is belied by her version in FIR also wherein she had stated that on 26th  September 1992, there was a date of the case. 

5.  I find that the present revision petition was another step taken by the petitioner to harass her husband and his family members. This petition being a frivolous  petition is hereby dismissed with costs of Rs.20,000/-.    

September 22nd, 2010                SHIV NARAYAN DHINGRA, J
rd

http://lobis.nic.in/dhc/SND/judgement/23-09-2010/SND22092010CRLR4562006.pdf

SC- Girl friend concubine (though staying with husband) are NOT relative of husband -can’t be prosecuted under 498a cruelty. Definition of Relative of husband u/s IPC 498a

                               REPORTABLE

             IN THE SUPREME COURT OF INDIA

           CRIMINAL APPELLATE JURISDICTION

        CRIMINAL APPEAL NO. 1745 OF 2010
(@ SPECIAL LEAVE PETITION(CRL.) No.4758 of 2009)

SUNITA JHA                           ... APPELLANT

     Vs.

STATE OF JHARKHAND & ANR.            ... RESPONDENTS

                  J U D G M E N T

ALTAMAS KABIR, J.

1.   Leave granted.

2.   This Appeal is directed against the judgment

and order dated     29th April,   2009, passed   by a

learned Single Judge of the Jharkhand High Court
                                                                         2

in Criminal Revision No.410 of 2007 dismissing

the same and affirming the order of the Trial

Court rejecting the prayer of the Appellant for

being discharged from the case.

3.   One     Asha    Rani         Pal,     the     Respondent          No.2

herein,     filed        a    complaint          case     against       her

husband, Mukund Chandra Pandit, and the Appellant

herein,     being     Complaint           Case    No.404     of     2005,

before     the     Sub-Divisional          Judicial        Magistrate,

Dumka, Jharkhand, under Section 498A IPC.                              The

learned      Magistrate           by      his     order     dated       6th

February,        2006,       took      cognizance       against         the

Appellant and other accused and issued process

for the accused to appear before him on 5th April,

2006.      Pursuant to the said order, the Appellant

appeared     before       the     learned        Magistrate       on   10th

July,    2006,     when      the     prosecution        examined        two

witnesses, namely, PW.1 Kanhai Pal, father of the

Respondent No.2 and PW.2 Mukti Pal.                        No further

evidence     was    led      by     the   complainant/Respondent
                                                                       3

No.2    and    on    13th    November,      2006,        the   learned

Magistrate      closed       the    pre-charge       evidence         and

posted    the       case    for    arguments       on    framing      of

charge.

4.     On 9th March, 2007, the Appellant filed an

application       for      discharge,      inter    alia,      on     the

ground that the complainant had not been examined

as a witness in the case.                  During the arguments

on the said application, it was contended that

the Appellant could not be made an accused under

Section 498A IPC since she was not a relative of

Mukund Chandra Pandit and that the allegations

made    against      her    did    not   make      out    a    case   of

cruelty under the aforesaid Section.                     However, by

his    order    dated       9th   March,    2007,        the   learned

Magistrate rejected the Appellant's application

for discharge on the ground that there was prima

facie evidence for framing of charge against the

accused, including the Appellant, under Section

498A IPC.
                                                             4

5.     Aggrieved by the said order, the Appellant

moved the Jharkhand High Court at Ranchi by way

of Criminal Revision No.410 of 2007. As indicated

hereinabove, a learned Single Judge of the High

Court    by     his    order   dated    29th   April,     2009,

dismissed the Revision Application on the ground

that    since    the   Appellant     was   living   with   the

accused husband of the complainant, she must be

deemed to have become a family member of Mukund

Chandra Pandit for the purpose of Section 498A

IPC.

6.     The case of the Appellant before us is that

the High Court erred in law in holding that the

Appellant became a member of the family of Mukund

Chandra Pandit merely because she was living with

him in his house allegedly as his wife.                    Mr.

Gaurav    Agrawal,       Advocate,     appearing    for     the

Appellant, contended that Section 498A IPC was

very clear as to who could be charged under the
                                                               5

said Section.       For the sake of convenience, the

said Section is reproduced hereinbelow :-

    "498A. Husband or relative of husband
    of a woman subjecting her to cruelty. -
    Whoever,       being      the   husband       or     the
    relative      of    the   husband   of    a    woman,
    subjects such woman to cruelty shall be
    punished with imprisonment for a term
    which    may    extend     to   three    years       and
    shall also be liable to fine.

    Explanation. - For the purpose of this
    section, "cruelty" means-

    (a)    Any    willful     conduct   which      is     of
    such a nature as is likely to drive the
    woman    to    commit     suicide   or    to       cause
    grave injury or danger to life, limb or
    health (whether mental or physical) of
    the woman; or

    (b) Harassment of the woman where such
    harassment is with a view to coercing
    her or any person related to her to
    meet    any        unlawful     demand    for        any
    property or valuable security or is on
                                                                    6

      account of failure by her or any person
      related to her to meet such demand."

7.    It will be seen from the aforesaid provisions

that it is either the husband or the relative of

a husband of a woman who subjects her to cruelty,

who   could       be   charged    under     the    said   Section.

Such provision could not apply to a person who

was   not     a    relation      of   the    husband      when     the

alleged offence is said to have been committed.

It was contended that the Appellant was in no way

related to the husband and was not his wife as

held by the High Court so as to bring her within

the   ambit       of   Section   498A      IPC    and   the   charge

framed against her was, accordingly, invalid and

liable to be quashed.            Reliance was placed by Mr.

Agrawal     on     the   decision     of    this    Court     in    U.

Suvetha v. State [(2009) 6 SCC 757], wherein the

aforesaid question was directly in issue.                        This

Court took up for consideration the question as

to the persons who could be charged under Section
                                                                    7

498A IPC having particular regard to the phrase

"relative of the husband" occurring in the said

Section.         This    Court    categorically        held     that

neither     a    girlfriend       nor   a     concubine       is     a

relative of the husband within the meaning of

Section 498A IPC, since they were not connected

by blood or marriage to the husband.

8.   The        other     question       which        fell         for

determination was if a husband was living with

another woman besides his wife, whether the same

would amount to "cruelty" within the meaning of

Section    498A.    It    was    held   that    if    such    other

woman was not connected to the husband by blood

or   marriage,      the    same    would    not      attract       the

provisions of Section 498A I.P.C., although it

could be an act of cruelty for the purpose of

judicial    separation      or    dissolution        of   marriage

under     the    marriage       laws,   but     could     not       be

stretched to amount to "cruelty" under Section

498A IPC.
                                                                 8

9.    While construing the provisions of Section

498A IPC in the given circumstances, this Court

observed       that     Section     498A     being      a     penal

provision deserved strict construction and by no

stretch of imagination would a girlfriend or even

a concubine be a "relative", which status could

be    conferred       either   by   blood    connection         or

marriage or adoption.             If no marriage has taken

place,   the    question       of   one    being    relative    of

another would not arise.

10.      Mr. Agrawal urged that the High Court had

misconstrued the provisions of Section 498A vis-

`-vis    the    Appellant      in   relation       to   the   said

Section and the impugned order of the High Court

was, therefore, liable to be set aside along with

the order of the learned Sub-Divisional Judicial

Magistrate rejecting the Appellant's prayer for

discharge from the complaint case filed by Asha

Rani Pal.
                                                                   9

11. An       attempt    was    made         on     behalf    of   the

complainant, Asha Rani Pal, to justify the order

passed by the learned Magistrate as also the High

Court on the ground that the Appellant must be

deemed to have acquired the status of wife of

Mukund Chandra Pandit by her conduct and the fact

that they had been living together as husband and

wife.

12. We have considered the submissions made on

behalf of the Appellant and the complainant wife.

It    may    be    indicated    that        the    husband    Mukund

Chandra Pandit has not been made a party to these

proceedings.         However, having regard to the view

which       we    are   taking,       his        presence    is   not

necessary for disposing of the present appeal.

13.                Section     498A     IPC,        as      extracted

hereinabove, is clear and unambiguous that only

the husband or his relative could be proceeded

against under the said Section for subjecting the

wife    to       "cruelty",    which    has        been     specially
                                                                         1

defined in the said Section in the explanation

thereto.        The    question        as    to   who     would     be    a

relative       of   the      husband        for   the     purpose        of

Section 498A has been considered in detail in U.

Suvetha's      case        (supra).         We    are     entirely       in

agreement with the views expressed in the said

case and we agree with the submissions made on

behalf of the Appellant that the learned Judge of

the High Court committed an error in bestowing

upon     the    Appellant        the     status      of    wife     and,

therefore, a member of Mukund Chandra Pandit's

family. The doctrine of acknowledgement would not

be available in the facts of this case.                                  No

doubt,    there       is    direct     allegation         against    the

Appellant of cruelty against the Respondent No.2,

Asha Rani Pal, but as indicated in U. Suvetha's

case     (supra),          the    same       would        enable     the

Respondent No.2 to proceed against her husband

under Section 498A I.P.C. and also against the

Appellant under the different provisions of the

Hindu Marriage Act, 1955, but not under Section
                                                                                 1

498A I.P.C.

14. The    Appeal,    therefore,     succeeds                     and            is

allowed.      The   judgment   of   the      learned                  Single

Judge of the Jharkhand High Court impugned in

this Appeal is set aside and the cognizance taken

against the Appellant on 6th February, 2006, by

the learned Sub-Divisional Judicial Magistrate,

Dumka, under Section 498A IPC, is hereby quashed.

                                     ................................................J.
                                        (ALTAMAS KABIR)

                                     ................................................J.
                                        (A.K. PATNAIK)
New Delhi
Dated: 13.09.2010

SOURCE http://judis.nic.in/supremecourt/chejudis.asp

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/