CASE NO.: Appeal (crl.) 23 of 2005 PETITIONER: Mohd. Shamim & Ors. RESPONDENT: Smt. Nahid Begum & Anr. DATE OF JUDGMENT: 07/01/2005 BENCH: N.S. Hegde & S.B. Sinha JUDGMENT: J U D G M E N T [Arising out of S.L.P. (Crl.) No. 2051 of 2004] S. B. SINHA, J : Leave granted. The First Appellant and the First Respondent were married as per the rites governing the marriage under the Muslim Personal Law on 02.04.1989. The Appellant No.2 is the mother of the First Appellant and the Appellant Nos. 3 to 5 are the sisters. The First Appellant allegedly divorced the First Respondent and intimation thereabout was communicated to her through a legal notice dated 03.05.2002. On or about 30.10.2002, the Respondent No.1 lodged a First Information Report in Women Cell, Rajinder Nagar, New Delhi, against the Appellants herein which was registered as FIR No. 224 of 2002, Police Station Hauz Qasi, Delhi, under Sections 406/498-A/34 IPC. The Appellants having come to learn about the lodging of the First Information Report filed an application for grant of anticipatory bail. During the course of hearing of the said application, a settlement was arrived at inter alia at the instance of the learned judge hearing the said matter between the parties on or about 11.11.2002 pursuant whereto or in furtherance whereof the parties entered into a written agreement on 14.11.2002. By reason of an order dated 11.11.2002, the learned Additional Sessions Judge, directed :

"During the course of arguments it is settled by the parties that a sum of Rs.2,75,000/- would be paid by the petitioner to the complainant Nahid Begum in full and final settlement of istridhan, dowry mehar present past and future maintenance etc. out of that Rs.2,25,000/- would be paid on the next date of hearing by way of pay order in the name of complainant and Rs.50,000/- would be paid at the time of complainant on making statement and no objection for quashing the FIR and the said pay order would be retained in court. The parties make the draft agreement to this effect to facilitate to both the parties for quashing of FIR. Pay order would be brought on the next date. Adjourned for bringing pay order on 14.11.2002. Till then applicants be not arrested." The said agreement was filed before the court of the Additional Sessions Judge, Delhi. An affidavit in support of the said settlement was also affirmed by the First Respondent herein, wherein inter alia it was stated : "8. I undertake that I will cooperate in all respect and will participate in the proceedings for quashing the F.I.R. against Mohd. Shamim Ishrat Bi, Shahnaz Begum, Farhat Begum and Shahzad Begum, vide F.I.R. No. 224/2002, P.S. Hauz Qazi, u/s 498-A/406/34 I.P.C., as I have received the said amount through Bank Drafts and I have no objection in any manner. I have entered into the compromise with the said persons voluntarily with my own free will and consent. 9. That I have executed an Agreement with Mohd. Shamim which is separately written with my consent and I have understood the contents of the same, through my counsel and have been read over to me in vernacular and I admit the contents of the said Agreement in all respect and I accept the same as correct. 13. That the contents of the Agreement may be read as part and parcel of this affidavit and the same are not being repeated here for the sake of brevity." In the said Agreement it was clearly stipulated that the First

Respondent received a sum of Rs.2,25,000/- from the First Appellant out of Rs.2,75,000/-, the details whereof had been specified therein. It was further averred : "2. That the Draft/pay order of Rs.50,000 (Rupees fifty thousand only) Rs.25000/- each (Rupees twenty five thousand only), (1) bearing No.103621 dated 13.11.02, drawn on Canara Bank, Chandni Chowk, Delhi (ii) bearing No.031030 dated 13.11.02 drawn on Bank of India, Hamdard Dwakhana, Delhi-6 have been deposited in the court in terms of the order dated 11.11.2002. 3. That the above mentioned amount Rs.2,75,000/- (Rupees two lacs seventy five thousand only) covers the "MEHAR" amount entire articles of dowry, Istridhan, past, present and future maintenance, entire jewellery including the jewellery presented by the bridegoom/second party and his relatives. After receipt of the said amount the first party shall not claim anything from the secondary party. She will not claim any further amount or articles, Istridhan, Charhawa i.e. the gifts from the sides of both the parties, maintenance u/s 124 Cr.PC or Section 3 of the Mulsim Women Act, or under any other provisions of law. The first party states that she has already filed a petition u/.s 125 Cr. PC against the second party and the same is pending in the court of Shri R.K. Sharma, M.M., Delhi and is fixed for 3.12.2002 of which no notice is served upon the second party. The first party now undertakes to withdraw the said petition under section 125 Cr. PC immediately. 5. That both the parties are at liberty to get married any person of their choice in future. They will not interfere in the affairs of each other in future. They will also not litigate in future in respect of the above said matters. 6. That the first party undertake to give no

objection/statement in order to quash the FIR in the present case and shall withdraw any other complaint lodged with any other authority/court of law. She also undertakes that she will not file any other or further complaints case(s) etc. against the second party." In view of the aforementioned settlement, the learned Additional Sessions Judge in his order dated 14.11.2002, recorded : "Present : Counsel for the parties with parties in person App for the State. A pay order of 2.25 lakhs has been given by the petitioners to the complainant. The petitioners undertake to further pay a sum of Rs.50,000/- to the complainant when she would be called for the statement for quashing of the FIR. In these facts and circumstances, the parties would bound by their undertaking, the applications are allowed. It is ordered that in the event of arrest, applicants are released on anticipatory bail on furnishing personal bond in the sum of Rs.10,000/- each with one surety each in the like amount to the satisfaction of IO/SHO concerned who are required to be arrested in case FIR No.224/02 PS Hauz Qazi. Parties are also placed on record copy of pay order, agreement and affidavit etc." Pursuant to or in furtherance of the said settlement, the Appellants herein filed an application before the Delhi High Court for quashing the said First Information Report purported to be under Section 482 of the Code of Criminal Procedure, 1973. The First Respondent, however, in stead and place of complying with her undertaking contained in the agreement as also in her affidavit filed objections to the said application. In her reply filed before the High Court, it was, inter alia, contended : "6. That the contents of para no.6 of the petition under reply are wrong and denied. It is wrong and denied that any compromise was accepted by the Respondent No.1. The court of Shri S.N. Gupta, ADJ, Delhi accepted the bail application of the petitioners on the condition that the petitioner no.1 will pay a sum of Rs.2,75,000/- to the respondent No.1 in lieu of dowry cost. The respondent No.1 has been paid only

Rs.2,25,000/- and the petitioners have not paid Rs.50,000/- till date hence the petition is liable to be dismissed. It is also submitted that respondent No.1 was forced to sign some papers by the petitioner that Rs.50,000/- will be paid when the paper mentioned above will come on record of the court. But till date amount of Rs.50,000/- has not been paid hence the petition is liable to be dismissed." In view of the stand taken by the Respondent No.1 herein, a learned Single Judge of the High Court by reason of the impugned judgment and order dated 16.02.2004 refused to interfere in the matter stating : "Respondent No.1/Complainant is present in person. She does not wish to compromise the matter and wants to continue with her complaint which gave rise to FIR No.224/2002, under Sections 406/498A/34, registered at Police Station Hauz Qazi. In this view of the matter. I find no grounds to interfere. Dismissed." Before us, there is no denial or dispute as regard the factum of entering into the aforementioned settlement dated 14.11.2002. In the said deed of compromise it has categorically been averred that the same had been entered into on the intervention of S.N. Gupta, Additional Sessions Judge, Delhi. It has also been accepted that out of sum of Rs.2,75,000/-, a sum of Rs.2,25,000/- has been paid to the First Respondent herein and the balance amount of Rs.50,000/- would be paid at the time of complainant's making statement and no objection for quashing the FIR, which was retained in the court as per the direction of the court. It has further been averred that no dispute remained between the parties regarding the payment of dower amount (Mehar), dowry articles, including the alleged jewellary gift etc. In view of the fact that the settlement was arrived at the intervention of a judicial officer of the rank of the Additional Sessions Judge, we are of the opinion, the contention of the First Respondent herein to the effect that she was not aware of the contents thereof and the said agreement as also the affidavit which were got signed by her by misrepresentation of facts must be rejected. In the facts and circumstances of this case, we have no doubt in our mind that the denial of execution of the said deed of settlement is an afterthought on the part of the Respondent No.1 herein.

Ex facie the settlement between the parties appears to be genuine. If the contention of the First Respondent herein is to be accepted, she would not have accepted the sum of Rs.2,25,000/- and in any event, she could have filed an appropriate application in that behalf before the Court of S.N. Gupta, Additional Sessions Judge, Delhi. What was least expected of her was that she would return the said sum of Rs.2,25,000/- to the Appellants herein. Section 406 is a compoundable offence with the permission of the court. It is true that Section 498-A IPC is not compoundable. This Court in Ruchi Agarwal vs. Amit Kumar Agrawal & Ors. [2004 (8) Supreme 525], in almost a similar situation has quashed a criminal proceeding against the husband, stating : "�Therefore, we are of the opinion that the appellant having received the relief she wanted without contest on the basis of the terms of the compromise, we cannot now accept the argument of the learned counsel for the appellant. In our opinion, the conduct of the appellant indicates that the criminal complaint from which this appeal arises was filed by the wife only to harass the respondents. 8. In view of the above said subsequent events and the conduct of the appellant, it would be an abuse of the process of the court if the criminal proceedings from which this appeal arises is allowed to continue�" In view of the conduct of the First Respondent in entering into the aforementioned settlement, the continuance of the criminal proceeding pending against the Appellants, in our opinion, in this case also, would be an abuse of the process of the court. The Appellant No.1, however, would be entitled to withdraw the sum of Rs.50,000/- which has been deposited in the court. We, therefore, in exercise of our jurisdiction under Article 142 of the Constitution of India direct that the impugned judgment be set aside. The First Information Report lodged against the Appellants is quashed. The Appeal is allowed. However, this order should not be treated as a precedent. CASE NO.: Appeal (crl.) 1274 of 2004 PETITIONER: Ruchi Agarwal

RESPONDENT: Amit Kumar Agrawal & Ors. DATE OF JUDGMENT: 05/11/2004 BENCH: N.Santosh Hegde & S.B.Sinha JUDGMENT: J U D G M E N T (Arising out of SLP(Crl.)No. 3769 of 2003) SANTOSH HEGDE,J. Heard learned counsel for the parties. Leave granted. By the impugned order, the High Court of Uttaranchal quashed a criminal complaint filed by the appellant against the respondents. The complaint was made by the appellant alleging offences under sections 498A, 323 and 506 IPC, and Sections 3 and 4 of the Dowry Prohibition Act. The High Court by the impugned judgment came to the conclusion that the alleged offences having taken place within the jurisdiction of Ram Nagar Police Station of Bilaspur district, the court at Rampur district did not have the territorial jurisdiction to entertain a complaint, hence, while quashing the chargesheet and the summoning order of the Chief Judicial Magistrate, Nainital, transferred the investigation of the case to Police Station Bilaspur, district Rampur. It is the above order of the High Court that is under challenge before us in this appeal. During the pendency of the proceedings before the courts below and in this Court, certain developments have taken place which have a material bearing on the merits of this appeal. The complaint which the appellant herein filed is dated 10.4.2002. Thereafter, a divorce petition was filed by the appellant-wife before the Family Court at Nainital. In the said divorce petition a compromise was arrived between the parties in which it was stated that the first respondent-husband was willing for a consent divorce and that the appellant-wife had received all her Stridhan and maintenance in lump sum. She also declared in the said compromise deed that she is not entitled to any maintenance in

future. It is also stated in the said compromise deed that the parties to the proceedings would withdraw all criminal and civil complaints filed against each other which includes the criminal complaint filed by the appellant which is the subject matter of this appeal. The said compromise deed contains annexures with the particulars of the items given to the appellant at the time of marriage and which were returned. The said compromise deed is signed by the appellant. But before any order could be passed on the basis of the said compromise petition, the appellant herein wrote a letter to the Family Court at Nainital which was received by the Family Court on 3.10.2003 wherein it was stated that she was withdrawing the compromise petition because she had not received the agreed amount. But subsequently when her statement was recorded by the Family Court, she withdrew the said letter of 3.10.2003 and stated before the court in her statement that she wanted a divorce and that there is no dispute in relation to any amount pending. The Court, after recording the said statement, granted a divorce under Section 13-B of the Hindu Marriage Act, dissolving the marriage by mutual consent by its order dated 3.3.2004. In the compromise petition, referred to herein above, both the parties had agreed to withdraw all the civil and criminal cases filed by each against the other. It is pursuant to this compromise, the above divorce as sought for by the appellant was granted by the husband and pursuant to the said compromise deed the appellant also withdrew Criminal Case No.63 of 2002 on the file of the Family Court, Nainital which was a complaint filed under Section 125 of the Criminal Procedure Code for maintenance. It is on the basis of the submission made on behalf of the appellant and on the basis of the terms of the compromise, said case came to be dismissed. However, so far as the complaint under Sections 498A, 323 and 506 IPC and under Sections 3 and 4 of the Dowry Prohibition Act is concerned, which is the subject matter of this appeal, the appellant did not take any steps to withdraw the same. It is in those circumstances, a quashing petition was filed before the High Court which came to be partially allowed on the ground of the territorial jurisdiction, against the said order the appellant has preferred this appeal. From the above narrated facts, it is clear that in the compromise petition filed before the Family Court, the appellant admitted that she has received Stridhan and maintenance in lump sum and that she will not be entitled to maintenance of any kind in future. She also undertook to

withdraw all proceedings civil and criminal filed and initiated by her against the respondents within one month of the compromise deed which included the complaint under Sections 498A, 323 and 506 IPC and under Sections 3 and 4 of Dowry Prohibition Act from which complaint this appeal arises. In the said compromise, the respondent- husband agreed to withdraw his petition filed under Section 9 of the Hindu Marriage Act pending before the Senior Judge, Civil Division, Rampur and also agreed to give a consent divorce as sought for by the appellant. It is based on the said compromise the appellant obtained a divorce as desired by her under Section 13(B) of the Hindu Marriage Act and in partial compliance of the terms of the compromise she withdrew the criminal case filed under Section 125 of the Criminal Procedure Code but for reasons better known to her she did not withdraw that complaint from which this appeal arises. That apart after the order of the High Court quashing the said complaint on the ground of territorial jurisdiction, she has chosen to file this appeal. It is in this background, we will have to appreciate the merits of this appeal. Learned counsel appearing for the appellant, however, contended that though the appellant had signed the compromise deed with the above-mentioned terms in it, the same was obtained by the respondent-husband and his family under threat and coercion and in fact she did not receive lump sum maintenance and her Stridhan properties, we find it extremely difficult to accept this argument in the background of the fact that pursuant to the compromise deed the respondent-husband has given her a consent divorce which she wanted thus had performed his part of the obligation under the compromise deed. Even the appellant partially performed her part of the obligations by withdrawing her criminal complaint filed under Section 125. It is true that she had made a complaint in writing to the Family Court where Section 125 Cr.P.C. proceedings were pending that the compromise deed was filed under coercion but she withdrew the same and gave a statement before the said court affirming the terms of the compromise which statement was recorded by the Family Court and the proceedings were dropped and a divorce was obtained. Therefore, we are of the opinion that the appellant having received the relief she wanted without contest on the basis of the terms of the compromise, we cannot now accept the argument of the learned counsel for the appellant. In our opinion, the conduct of the appellant indicates that the criminal complaint from which this appeal arises was filed by the wife

only to harass the respondents. In view of the above said subsequent events and the conduct of the appellant, it would be an abuse of the process of the court if the criminal proceedings from which this appeal arises is allowed to continue. Therefore, we are of the considered opinion to do complete justice, we should while dismissing this appeal also quash proceedings arising from the Criminal Case No.Cr.No.224/2003 registered in Police Station, Bilaspur, (Distt.Rampur) filed under Sections 498A, 323 and 506 IPC and under Sections 3 and 4 of the Dowry Prohibition Act against the respondents herein. It is ordered accordingly. The appeal is disposed of. CASE NO.: Transfer Case (crl.) 311 of 2003 PETITIONER: Arun Aggarwal RESPONDENT: Reetam Aggarwal DATE OF JUDGMENT: 26/04/2004 BENCH: R.C. Lahoti & Ashok Bhan. JUDGMENT: J U D G M E N T O R D E R With Transfer Petition (Civil) Nos. 3-4 of 2004 Reetam Aggrawal Versus Arun Aggarwal This order shall dispose of Transfer Petition(Crl.) No. 311 of 2003 filed at the instance of Shri Arun Aggarwal (husband) seeking transfer of case No. 183/11 of 2002 titled Reetam Aggarwal vs. Arun Aggarwal

under Section 125 Cr.P.C., claiming maintenance, pending in the Court of Magistrate �I, Muzaffar Nagar, to a Court of competent jurisdiction at Chandigarh and Transfer Petition (Civil) Nos. 3-4 of 2004 at the instance of Smt. Reetam Aggarwal (wife) for transfer of the Divorce Petition No. 54 of 2001 titled Arun Aggrawal vs. Reetam Aggrawal under Section 13 of the Hindu Marriage Act, 1955 filed by the husband in the Court of Additional District Judge, Chandigarh and an allied petition No. Nil/2003 titled Arun Aggawal Vs. Reetam Aggrawal under Sections 7 & 8 of the Guardians and Wards Act, 1890 in the Court of Senior Sub-Judge, Chandigarh to the Family Court at District Muzaffar Nagar, U.P.. Marriage between the parties was solemnised on 20.1.1995 at Chandigarh according to Hindu rites and customs. Prior to the marriage Smt. Reetam Aggrawal did her graduation from Government College for Girls, Sector 11, Chandigarh. Thereafter, she did her Post Graduation from Punjab University, Sector 14, Chandigarh. During this period she stayed with her sister Smt. Vibha Aggarwal at Chandigarh. After marriage the parties resided at House No. 76, Sector 16, Chandigarh. From this wed-lock a female child was born on 23.9.1998. According to the husband, the wife deserted him on 24.1.1999 and in spite of his efforts she did not agree to rejoin him at the matrimonial home. Having failed in persuading his wife to come and reside with him at the matrimonial home, he filed a divorce petition No. 54 of 2001 at Chandigarh. He also filed an allied petition No. Nil/2003 for custody of his minor child. As a counter blast, Smt. Reetam Aggrawal filed a petition under Section 125 Cr.P.C. for maintenance. It has also been alleged that earlier Smt. Reetam Aggrawal filed Transfer Petition ) No. 124 of 2002 in this Court seeking transfer of matrimonial proceedings pending in the Court of Additional District Judge, Chandigarh, Union Territory to Muzaffarnagar in the State of Uttar Pradesh, which was dismissed by this Court on 17.1.2003 on the ground that she was residing at Chandigarh and was doing B.Ed. course in a college at Chandigarh. Smt. Reetam Aggrawal in reply affidavit has denied the allegations made in the petition. She has pleaded that she is the permanent resident of Khatauli, District Muzaffarnagar, U.P. Her parents are living at Khatauli. As her prayer for transfer of the case pending at Chandigarh was rejected she kept on living at Chandigarh; she was now teaching in an orphanage (Gurukul) at Panchkula without any remuneration or allowance in any form whatsoever, she wants to return to Khatauli and live with her parents, as she does not want to be burden on her parents any longer and was trying to get some employment in Khatauli or near about. It is asserted by her that her earlier transfer petition was dismissed only on the ground that she was

undergoing the B.Ed. course at Chandigarh. Now since she has completed her studies she wants to return to Khatauli and live with her parents. Allegation that she had deserted her husband has been denied. According to her she was turned out from her matrimonial home. Heard learned counsel for the parties. Dismissal of earlier Transfer Petition (C) No. 124 of 2002 filed by the wife for transfer of matrimonial proceedings pending in the Court of Additional District Judge, Chandigarh, Union Territory to Muzaffarnagar in the State of Uttar Pradesh would have no bearing as the same was dismissed on the ground that she was undergoing her B.Ed. course of study at Chandigarh. She has completed her studies and she is not gainfully employed at Chandigarh. Staying at Chandigarh only to pursue the matrimonial cases pending at Chandigarh may be expensive. She intends to shift to Muzaffarnagar. It would be appropriate and in the interest of justice to transfer both the above-mentioned cases to a Court of competent jurisdiction at Muzaffarnagar, U.P.. Accordingly, without going into the allegations and counter allegations made by the parties and keeping in view the facts and circumstances of the case and in the interest of justice transfer petitions filed by the wife are allowed. It is directed that the Divorce Petition No. 54 of 2001 titled Arun Aggrawal vs. Reetam Aggrawal under Section 13 of the Hindu Marriage Act, 1955 filed by the husband in the Court of Additional District Judge, Chandigarh and the allied petition No. Nil/2003 titled Arun Aggrawal vs. Reetam Aggrawal under Sections 7 & 8 of the Guardians and Wards Act, 1890 in the Court of Senior Sub-Judge, Chandigarh shall stand transferred to the Court of District & Sessions Judge, Muzaffarnagar, U.P. The Courts at Chandigarh are directed to transfer the record of the above-referred two cases to the Court of District & Sessions Judge, Muzaffarnagar, U.P. who may on receipt of the record assign the above- referred two cases to the appropriate Court of competent jurisdiction. Accordingly, the Transfer Petition (C) Nos. 3-4 of 2004 are allowed and disposed of in the above terms. In view of the above order passed by us in Transfer Petition (C) Nos. 3-4 of 2004 filed by Smt. Reetam Aggrawal, we do not find any merit in Transfer Petition (Crl.). No. 311 of 2003 filed by Shri Arun Aggarwal and is dismissed. Nothing stated hereinabove be taken as expression of opinion on the merits of pleas of either party sub-judice before the trial courts. The Court trying the petitions shall dispose of the petitions without being influenced by any of the observation in this order. No order as to costs.

CASE NO.: Appeal (crl.) 25 of 2004 PETITIONER: Reema Aggarwal RESPONDENT: Anupam and Ors. DATE OF JUDGMENT: 08/01/2004 BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT. JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 3169 of 2003 ARIJIT PASAYAT, J. Leave granted. 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 very little role to play. Filtering out unnecessary details, the factual position is as follows: On 13.7.1998 information was received from Tagore Hospital, Jalandhar that Reema Aggarwal the appellant had been admitted on having consumed poisonous substance. On reaching hospital, ASI Charanjit Singh obtained opinion of

the doctor regarding her fitness to make a statement. Appellant stated before Investigating Officer that she was married to Anupam the respondent no.1 on 25.1.1998 and after the marriage, she was harassed by her husband-respondent no.1, mother-in-law, father-in-law and brother-in-law (respondents 2, 3 and 4) respectively for not bringing sufficient and more dowry. It was also disclosed that it was the second marriage of both the appellant and respondent no.1. On the date of incident at about 5.00 p.m. all the four accused persons forced her to take something to put an end her life and forcibly put some acidic substance in her mouth. She started vomiting and was taken to the hospital in an unconscious state. The first information report was registered accordingly and on completion of investigation the charge sheet was placed and charges were framed for offences punishable under Sections 307 and 498-A of the Indian Penal Code, 1860 (for short the 'IPC'). Accused persons pleaded innocence. Seven witnesses were examined to further the prosecution version. Before the trial Court the accused persons put the plea that charge under Section 498-A was thoroughly misconceived as both Sections 304-B and 498-A IPC pre-suppose valid marriage of the alleged victim-woman with the offender- husband. It was required to be shown that the victim-woman was the legally married wife of the accused. Since it was admitted that the appellant had married during the lifetime of the wife of respondent no.1, what happened to his first marriage remained a mystery. Prosecution has failed to establish that it stood dissolved legally. Prosecution having failed to bring any material record in that regard, Section 498-A had no application. Reliance was placed on a decision of the Madhya Pradesh High Court in Ramnarayan & Ors. v. State of M.P. (1998 (3) Crimes 147 M.P.) The Trial Court held that the accusations, so far as Section 307 is concerned, were not established and in view of the legal position highlighted by the accused persons vis-`-vis Section 498-A the charge in that regard was also not established. Accordingly the accused persons were acquitted. The State of Punjab filed an application for grant of leave to appeal which was disposed of by the Division Bench of the Punjab and Haryana High Court with the following order: "We have heard the learned counsel for

the appellant and with his assistance, have gone through the finding recorded by the learned trial Court. In our considered opinion, the finding recorded by the learned trial Court cannot be held to be erroneous or that there was no perverse appreciation of evidence. Leave to appeal declined. Appeal is also dismissed." In view of the dismissal of the State's application for grant of leave, criminal revision application which was filed by the appellant before the High Court was dismissed with the following orders:- "Vide our separate order of even date in Crl. Misc. No. 580 MA of 2002, we have not granted permission to the State to file the appeal. In these circumstances, there is no merit in this criminal revision which is hereby dismissed." In support of the appeal, learned counsel for the appellant submitted that the High Court was not justified to dispose of the application for grant of leave as well as the revision filed by the appellant by such cryptic orders. Important questions of law are involved. In fact, various High Courts have taken view different from the one taken by the Madhya Pradesh High Court in Vungarala Yedukondalu v. State of Andhra Pradesh (1988 Crl.L.J. 1538 (DB)) and State of Karnataka v. Shivaraj (2000 Crl.L.J 2741). The Andhra Pradesh High Court and the Karnataka High Court have taken different view. According to him the expressions "husband" and "woman" appearing in Section 498-A IPC are to be read in a manner so as to give full effect to the purpose for which Section 498-A was brought into the statute. The restricted meaning as given by the Madhya Pradesh High Court in Ramnarayan case (supra) does not reflect the correct position of law. On the other hand, contrary view expressed by the Karnataka and Andhra Pradesh High Courts reflect the correct view. In response, learned counsel for the respondents

submitted that to constitute a marriage in the eye of law it has first to be established that the same was a valid marriage. Strong reliance was placed on Bhaurao Shankar Lokhande and Anr. v. The State of Maharashtra and Anr. (AIR 1965 SC 1564) in that context. Reference was also made to Sections 5(i), 11 and 16 of Hindu Marriage Act, 1955 (for short the 'Marriage Act') to contend that the stipulations of conditions of valid marriage, the circumstances in which the marriage becomes void and the protection given to children of void and voidable marriage respectively makes the position clear that wherever the legislature wanted to provide for contingencies flowing from void or voidable marriages, it has specifically done so. It is latently evident from Section 16 of the Marriage Act. There is no such indication in Section 498-A IPC. The language used is "husband or relative of the husband". Marriage is a legal union of one man and woman as husband and wife and cannot extend to a woman whose marriage is void and not a valid marriage in the eye of law. 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. As the prosecution had set up a plea of gandharva marriage and had failed to prove the performance of ceremonies, it was not open to fall back upon the presumption of a valid marriage. It was further held that there was no such presumption if the man was already married. 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. 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. 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. 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. 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). 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." 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. 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. 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. 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. 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. 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. 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". 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). The judgments of High Courts taking a view contrary to the one expressed above, cannot be considered to lay down the correct position of law. 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." 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) These aspects were highlighted by this Court in S. Gopal Reddy v. State of A.P. (1996 (4) SCC 596). Whether the offences are made out is a matter of trial. The High Court was not justified in summarily rejecting the application for grant of leave. It has a duty to indicate reasons when it refuses to grant leave. Any casual or summary disposal would not be proper. (See State of Punjab v. Bhag Singh (2003 (8) Supreme 611). In the circumstances, we set aside the impugned order of the High Court and remit the matter back to the High Court for hearing the matter on merits as according to us points involved require adjudication by the High Court. The appeal is allowed to the extent indicated. CASE NO.: Appeal (civil) 3322 of 2003

PETITIONER: K.A. Abdul Jaleel RESPONDENT: T.A. Shahida DATE OF JUDGMENT: 10/04/2003 BENCH: CJI., S.B. Sinha & AR. Lakshmanan. JUDGMENT: J U D G M E N T [Arising out of SLP (Civil) No.8996 of 2001] S.B. SINHA, J : Leave granted. Whether the Family Court has jurisdiction to adjudicate upon any question relating to the properties of divorced parties arises for consideration in this appeal. The said question arises out of a judgment and order dated 20.03.2001 passed by a Division Bench of the Kerala High Court dismissing an appeal from an order passed by the Family Court, Ernakulam, dated 22.07.1998 in O.P. No.343 of 1996. The parties to this appeal were married on 03.01.1988. A female child was born out their wedlock on 11.10.1988. Allegedly, after the birth of the second child, owing to deterioration in the health of the respondent herein, the relationship of the parties became strained. The respondent contended that at the time of marriage, a large amount in cash as also gold ornaments were given. From the cash amount the appellant herein purchased a property described in Schedule 'A' of the petition on 01.02.1988. The balance amount was kept by the appellant. He allegedly further sold the gold ornaments of the respondent and out of the sale proceeds he purchased the property described in Schedule 'B' of the petition. In respect of properties an agreement marked Exhibit A1 was executed by the parties, in terms whereof it was agreed that the properties

purchased from the aforesaid amount will be transferred in the name of the respondent by the appellant. The appellant herein pronounced Talaq on 01.11.1995 after his relationship with the respondent became strained. In terms of the said agreement dated 17.09.1994, the respondent filed a suit marked O.S. No.85 of 1995 in the Family Court on 08.12.1995. The appellant in his written statement alleged that the said agreement was signed by him under threat and coercion and further contended that several documents purported to have been executed by him in support thereof were also obtained by applying force. Both the parties examined themselves as also proved various documents in the said suit before the Family Court. The Family Court by a judgment and order dated 22.07.1998 decreed the suit in favour of the respondent herein upon arriving at a finding that she was the absolute owner of the Schedule 'A' property as also 23/100 shares in the Schedule 'B' property. Aggrieved thereby and dissatisfied therewith, the appellant preferred an appeal before the High Court which was marked as MFA No.196 of 1999. By reason of the impugned judgment dated 20.03.2001, the said appeal has been dismissed. Mr. Haris Beeran, learned counsel appearing on behalf of the appellant, would submit that having regard to the provisions contained in Section 7 of the Family Courts Act, 1984, the Family Court had no jurisdiction to decide a dispute as regards properties claimed by a divorced wife. The learned counsel would urge that the jurisdiction exercisable by any Family Court being between the parties to a marriage which would mean parties to a subsisting marriage. In support of the said contention strong reliance has been placed on a judgment of a Division Bench of the Allahabad High Court in Amjum Hasan Siddiqui vs. Smt.Salma B. [AIR 1992 (Allahabad) 322] and Ponnavolu Sasidar vs. Sub-Registrar, Hayatnagar and Others [AIR 1992 (A.P.) 198]. Mr. T.L.V. Iyer, learned Senior Counsel appearing on behalf of the respondent, on the other hand, would contend that the matter is covered by an inter-parties judgment passed by a Division Bench of the Kerala High Court which is since reported in [1997 (1) KLT 734]. As the appellant herein did not question the correctness of the said judgment, he cannot be permitted to turn round and now challenge the jurisdiction the Family Court.

The Family Courts Act was enacted to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. From a perusal of the Statement of Objects and Reasons, it appears that the said Act, inter alia, seeks to exclusively provide within the jurisdiction of the Family Courts the matters relating to the property of the spouses or either of them. Section 7 of the Act provides for the jurisdiction of the Family Court in respect of suits and proceedings as referred to in the Explanation appended thereto. Explanation (c) appended to Section 7 refers to a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them. The fact of the matter, as noticed hereinbefore, clearly shows that the dispute between the parties to the marriage arose out of the properties claimed by one spouse against the other. The respondent herein made a categorical statement to the effect that the properties were purchased out the amount paid in cash or by way of ornaments and the source of consideration for purchasing the properties described in Schedules 'A' and 'B' of the suit having been borne out of the same, the appellant herein was merely a trustee in relation thereto and could not have claimed any independent interest thereupon. It is also apparent that whereas the agreement marked as Exhibit A1 was executed on 17.09.1994, the appellant pronounced Talaq on 01.11.1995. The wordings 'disputes relating to marriage and family affairs and for matters connected therewith' in the view of this Court must be given a broad construction. The Statement of Objects and Reasons, as referred to hereinbefore, would clearly go to show that the jurisdiction of the Family Court extends, inter alia, in relation to properties of spouses or of either of them which would clearly mean that the properties claimed by the parties thereto as a spouse of other; irrespective of the claim whether property is claimed during the subsistence of a marriage or otherwise. The submission of the learned counsel to the effect that this Court should read the words "a suit or proceeding between the parties to a marriage" as parties to a subsisting marriage, in our considered view would lead to miscarriage of justice. The Family Court was set up for settlement of family disputes. The reason for enactment of the said Act was to set up a court which would deal with disputes concerning the family by adopting an approach radically different from that adopted in ordinary civil proceedings. The said Act was enacted despite the fact that Order 32A of the Code of Civil Procedure was inserted by reason of the Code of Civil Procedure (Amendment) Act, 1976, which could not bring about any desired result.

It is now a well-settled principle of law that the jurisdiction of a court created specially for resolution of disputes of certain kinds should be construed liberally. The restricted meaning if ascribed to Explanation (c) appended to Section 7 of the Act, in our opinion, would frustrate the object wherefor the Family Courts were set up. In Amjum Hasan Siddiqui's case (supra) an application was filed in terms of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The question before the Allahabad High Court arose as to whether a Family Court could deal with such a dispute. It was held that no application could lie before the Family Court as the claim under Section 3 of the 1986 Act would neither be a suit nor a proceeding within the meaning of Section 7 of the Family Courts Act inasmuch as such an application could only be moved before the First Class Magistrate having requisite jurisdiction as provided for in the Code of Criminal Procedure. The said decision, in our opinion, cannot be said to have any application whatsoever in the instant case. In Smt. P. Jayalakshmi and Another vs. V. Revichandran and Another [AIR 1992 AP 190], the Andhra Pradesh High Court was dealing with a case under Section 125 of the Code of Criminal Procedure. It was held that although the matrimonial proceeding was moved before the Family Court, the same could not have provided for a legal bar for the wife and the minor child for instituting a proceeding under Section 125 of the Code of Criminal Prcoedure at Tirupathi where they were residing; as both the rights are separate. As indicated hereinbefore, Balakrishnan, J. (as His Lordship then was) speaking for a Division Bench in a matter arising out of a preliminary issue on the question of jurisdiction held that the dispute over properties between parties to a marriage cannot be confined to the parties to a subsisting marriage. We agree with the said view. The said decision being inter- parties and having attained finality would operate as res judicata. The further contention of the learned counsel appearing on behalf of the appellant is that as the respondent had already filed an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, wherein an amount of Rs.1,33,200/- was awarded in her favour, the impugned proceeding was not maintainable. The two proceedings are absolutely separate and distinct. The impugned judgment does not show that the said question was even argued

before the High Court. As indicated hereinbefore, the factual issue involved in this appeal revolved round as to whether Exhibit A1 was obtained by applying force or undue influence upon the appellant. The said contention has been negatived by both the Family Court as also the High Court. We, therefore, find no merit in this appeal which is dismissed with costs. Counsel's fee assessed at Rs.5,000/- (Rupees Five thousand only). CASE NO.: Appeal (civil) 9469 of 1996 PETITIONER: JAI SINGH Vs. RESPONDENT: SHAKUNTALA DATE OF JUDGMENT: 14/03/2002 BENCH: Umesh C. Banerjee & Brijesh Kumar JUDGMENT: BANERJEE,J. The matter under consideration pertains to the effect of statutory presumption as envisaged under Section 16 of the Hindu Adoption and Maintenance Act, 1956. For convenience sake it would be worthwhile to note the provision for its true purport. Section 16 reads as below: "16. Presumption as to registered documents relating to adoption. Whenever any document

registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved." The Section thus envisages a statutory presumption that in the event of there being a registered document pertaining to adoption there would be a presumption that adoption has been made in accordance with law. Mandate of the Statute is rather definite since the Legislature has used "shall" in stead of any other word of lesser significance. Incidentally, however the inclusion of the words "unless and until it is disproved" appearing at the end of the statutory provision has made the situation not that rigid but flexible enough to depend upon the evidence available on record in support of adoption. It is a matter of grave significance by reason of the factum of adoption and displacement of the person adopted from the natural succession - thus onus of proof is rather heavy. Statute has allowed some amount of flexibility, lest it turns out to be solely dependent on a registered adoption deed. The reason for inclusion of the words "unless and until it is disproved" shall have to be ascertained in its proper perspective and as such the presumption cannot but be said to be a rebuttable presumption. Statutory intent thus stands out to be rather expressive depicting therein that the presumption cannot be an irrebuttable presumption by reason of the inclusion of the words just noticed above. On the wake of the aforesaid the observations of the learned single Judge in Modan Singh vs. Mst.Sham Kaur & Ors. (AIR 1973 P&H 122) stands confirmed and we record our concurrence therewith. In the contextual facts a Deed of Adoption dated 1.6.1973 came into existence and stands registered in the Sub Registrar's office at Charkhi, Dadri in the State of Punjab. Adverting to the factual backdrop briefly at this juncture it is to be noted that the dispute relates to the estate of one Sunda Ram and the contest stands out to be between one Shakuntala being the daughter of Sunda Ram and Jai Singh, who claims to be the adopted son. Record depicts that the plaintiff (respondent herein) filed a suit for declaration that she was the owner in possession of the suit land and that the decree dated August 1, 1986 passed in Civil Suit instituted on July 23, 1986 and registered will dated February 14,

1974 alleged to have been executed by her father together with the Adoption Deed dated June 1, 1973 recording that Jai Singh had been adopted by Sunda Ram were illegal and result of misrepresentation of facts and thus not binding on her. The trial Court decreed the suit. Appeal therefrom filed by the defendant/appellant was dismissed and even the second appeal also stands dismissed. Mr.Jain, the learned senior Advocate appearing in support of the appeal contended that in the event of due compliance with the four requirements as envisaged under Section 16 of the Act of 1956 question of there being any further requirement depicting acceptance thereof does not and cannot arise. The submissions undoubtedly at the first blush seem to be rather attractive and it is on this particular issue which prompted this Court to have the matter argued in detail irrespective of the technicality as raised before this Court pertaining to the maintainability issue vis-a-vis the appeal. While scrutiny of evidence does not stand out to be totally prohibited in the matter of exercise of jurisdiction in the second appeal and that would in our view be too broad a proposition and too rigid an interpretation of law not worthy of acceptance but that does not also clothe the superior courts within jurisdiction to intervene and interfere in any and every matter It is only in very exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible it is a rarity rather than a regularity and thus in fine it can thus be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection. This is, however, without expression of any opinion pertaining to Section 100 of the Code of Civil Procedure. Needless to record that the trial Court decreed the suit and the first Appellate Court as also the High Court were pleased to dismiss the appeals. It is in this context the recording of the High Court may be looked into for proper appreciation of the matter. The High Court observed: "It also deserves notice that on July 22, 1986 the appellant had filed a suit claiming the property of Sunda Ram. Surprisingly, the suit was decreed within less than 10 days on August 1, 1986. It is also the day when Sunda Ram had expired. It is correct that Mr.Mittal has not raised any plea on the basis of this decree. The fact, however, remains that the appellant

tried to usurp the property by even getting a decree in his favour. The proceedings do reflect upon his conduct. In fact, he did not rest contended with the adoption deed and the decree. He had even propounded a Will. The courts below have found that the will is shrounded by suspicious circumstances and have not accepted its authenticity. No argument has been addressed by the learned counsel in this behalf. In view of the above, the conclusions recorded by both the courts below do not call any interference." The issue thus arises as to whether High Court was justified in laying emphasis on the conduct of the adopted son. As noticed herein before the presumption is a rebuttable presumption. While it is true that the registered instrument of adoption presumably stands out to be taken to be correct but the Court is not precluded from looking in to it upon production of some evidence contra the adoption. Evidence, which is made available to the Court for rebutting the presumption, can always be looked into and it is on production of that evidence that the High court has recorded a finding non-availability of the presumption to the Appellant A brief reference to the available evidence may be convenient at this juncture. The following documents were placed on record: (i) Voters list prepared in the year 1991; (ii) Receipts of chulha tax said to have been paid by the appellant; (iii) Mutation proceedings dated August 23, 1986; (iv) Jamabandi for the year 1988-89. As regards (i) no fault can be ascribed on rejection of this piece of evidence by reason of the fact that the suit was instituted on September 24, 1986 and being aware of the pendency of the dispute the appellant described himself as son of Sunda Ram. Incidentally in the voters list prepared in 1984, the appellant has been described as the son of his natural father i.e. Jage Ram and accordingly the High Court came to a definite conclusion that D-8 being the document, which came into existence after the institution of the suit can be of no consequence whatsoever. Similar is the situation as regards the next set of evidence, namely, payment of chulha tax receipts admittedly relate to a period after the institution of the suit (period between October 7, 1986 and July 21, 1991). The mutation proceedings being the third set of evidence noticed herein before stood initiated by the

appellant immediately after the death of Sunda Ram, who admittedly expired on 1st August, 1986 and the appellant had got the mutation entries without any notice as such the same cannot possibly be taken recourse to and similar is the situation with regard to the Jamabandi for the years 1988-89. It is also on record that in the reply filed by the appellant in proceedings under Section 125 of the Criminal Procedure Code initiated by his wife, the appellant described himself as a son of his natural father as also the voters list prepared in the year 1984 it has thus been stated that these two documents on the face of it militates against the proof of adoption It is at this juncture, a brief look at the Deed of Adoption would be of some interest. Relevant extracts of the Deed of Adoption are as below: " I have no son. According to Hindu Dharam Shastra, every Hindu should have one son so that he may give pind water. There is one boy of age of 10 years son of Jage Ram, Resident of village Rassiwas, who is Jat by caste and who has been brought up by me. I have fatherly love for him. In the month of March, parents of Jai Singh gave him to me in adoption, in the presence of the relatives of Rassiwas, at the occasion of Holly, and I had taken Jai Singh in my lap, I adopted him. Now, I as well as parents of Jai Singh want that a deed of adoption should be prepared. Jai Singh is living with me for the last five years. Now with sound disposition of mind, I adopt Jai Singh willingly as my adopted son and he shall be my son in the eyes of others. Jai Singh, my adopted son shall have same rights as a natural son has. This deed of adoption has been written on 31.5.1973, ( 10 Jaith, 1895 Shudi )." The Deed records that the parents of Jai Singh have given him in adoption to Sunda Ram in the month of March and he had taken him on his lap. No specific ceremonies have been noted neither any evidence has been tendered pertaining to the adoption in March, 1973. It is on this Deed that Mr.Ramchandran, the learned senior Advocate appearing for the respondent contended that the document even on the face of it does not justify any consideration by reason of the recording that 'the adopted son shall have the same rights as a natural son has' this insertion of

preservation of his right as a natural son is rather significant and ought to be read along with the Will dated 14th February, 1974 wherein it has been recorded that 'entire property will be inherited by the adopted son, Jai Singh and no one else shall have any share in it' : whereas the recording of the Will that the testator being not desirous of giving any share to the daughter cannot but be termed to be otherwise in accordance with the normal human conduct under certain circumstances but recording to the effect "in case after my death my daughter Shakuntla claims any property that should be rejected" together with the recording that "this Will has been written in favour of my adopted son Jai Singh so that it may be used at the time of need" depict the true nature of the claim of the appellant which it has been argued for the Respondent tantamounts to be utterly false. Mr.Ramchandran also placed reliance on Section 11(vi) of the Act, which records that the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned with intent to transfer the child from the family of its birth to the family of its adoption. The give and take in adoption is a requirement, which stands as a sine-qua-non for a valid adoption and it is in this context that Mr.Ramchandran contended that the rebuttable presumption has thus been duly rebutted by the evidence put forth by the respondent and stands reinforced by the appellant's own evidence. It is on this factual backdrop, the High Court upon, recording the fact of the presumption being rebuttable, came to a conclusion negating the adoption. On the wake of the aforesaid, we do not see any reason to lend concurrence to the submissions of Mr.Jain that the statutory presumption should give way to all other instances available on record. The presumption under Section 16 being a rebuttable presumption as the statute prescribes and on the state of evidence available on record question of decrying the order of the trial court as also of the two appellate courts on the fact situation of the matter in issue cannot be termed to be so perverse so as to authorise this Court to scan the evidence and reappreciate the same. This is where Mr. Ramachandran contended that scope of Article 136 being limited and by reason of definite allegation of fraud in the matter of bringing forth the document of adoption interference with the orders of three different forums would not arise. We do find a great deal of substance thereon since the appreciation of evidence as noticed above cannot be had at this stage of the proceedings unless the order can be ascribed to be totally perverse. In the present fact situation of the matter we do feel it expedient to record our concurrence to the statement of Mr.

Ramachandran that perversity is a far cry in the matter and the order of the High Court does not call for any interference in the contextual facts. In that view of the matter, we do not find any merit in the appeal. The appeal thus stands dismissed without, however, any order as to costs. ..J. (Umesh C. Banerjee) J. (Brijesh Kumar) March 14, 2002 CASE NO.: Appeal (civil) 1774-1775 of 1775 PETITIONER: Rameshchandra Rampratapji Daga RESPONDENT: Rameshwari Rameshchandra Daga DATE OF JUDGMENT: 13/12/2004 BENCH: D. M. Dharmadhikari & H. K. Sema JUDGMENT: J U D G M E N T Dharmadhikari J. These two cross appeals arise from matrimonial proceedings. The wife is aggrieved by the impugned reversing judgment of the High Court declaring her marriage as null and void under Section 11 read with Section 5(i) of the Hindu Marriage Act 1955 (hereinafter referred to as 'the Act' for short). The husband is aggrieved by the part of the impugned judgment of the High Court whereby it maintained the amount of maintenance fixed per month for the wife under Section 25 of the Act. The facts of this case tell the tragic tale of an Indian woman,

who having gone through two marriages with a child born to her apprehends destitution as both marriages have broken down. The husband is an Income Tax Practitioner in the town of Ratlam in the State of Madhya Pradesh. His first marriage was solemnized with late Smt. Usha in the year 1963 and from her he has two sons and one daughter. The marriage of the present wife, it is alleged, was arranged with one Girdhari Lal Lakhotia on 15.5.1979. According to the wife, the customary rituals of marriage were not completed as in the marriage ceremony family members quarrelled over dowry. She had filed a Divorce Petition No.76/78 in Matrimonial Court at Amravati but it was not prosecuted and no decree of divorce was passed. It is the case of the wife that in accordance with the prevalent custom in Maheshwari community a Chhor Chithhi or a document of dissolution of marriage was executed between the wife and her previous husband on 15.5.1979 and it was later got registered. After the death of his previous wife, the present husband remarried the present wife on 11.7.1981. According to the version of the wife the document of registered Chhor Chithhi was shown and given to the present husband before his accepting the second matrimony with the present wife. A daughter, who is named Puja, was born from the second marriage on 14.7.1983. The wife alleges that the husband started ill-treating her due to non-fulfulment of his demands by her father. She was driven out of the house in the year 1989. She thereafter filed proceedings in the Family Court, Bombay for grant of a decree of judicial separation and maintenance of Rupees three thousand per month for herself and for her daughter. The husband filed a counter-petition seeking declaration of his second marriage with the present wife, as nullity on the ground that on the date of second marriage, her marriage with the previous husband Girdhari Lal Lakhotia, had not been dissolved by any court in accordance with the provisions of the Act. The husband not only disputed validity of the second marriage but also parentage of daughter Puja. The Family Court, Bombay allowed the petition of the wife and granted in her favour, a decree of judicial separation. It also granted maintenance in the sum Rupees one thousand per month to the wife and Rupees two thousand per month to the child. The Family Court dismissed the counter petition filed by the husband seeking declaration of his marriage with the present wife as null and void.

The husband went in appeal to the High Court and the wife preferred a cross objection. By the impugned judgment the High Court held that the first marriage of the present wife with her previous husband having not been dissolved by any decree of the Court, her second marriage is in contravention of Section 5(i) of the Act and has to be declared as nullity under Section 11 of the Act. The High Court, on the above finding, granted a decree of declaration of marriage as nullity in favour of the husband. Consequently, the High Court set aside the decree of judicial separation granted to the wife. Even though the High Court dismissed the wife's petition for decree of judicial separation and granted declaration of the second marriage as null and void in favour of the husband, it maintained the decree granting maintenance to the wife and her daughter. Aggrieved by the order of the High Court, both the parties are before this Court in these two cross appeals. Learned counsel appearing for the husband took us in great detail in the evidence of the parties led before the Family Court. He advanced lengthy arguments in support of his contention that where a marriage is declared to be null and void by grant of a decree, no order awarding permanent alimony or maintenance could be made in favour of the unsuccessful party under Section 25 of the Act. Reliance is placed on Nazir Ahmad vs. Emperor [AIR 1936 PC 253]; Mohd. Ikram Hussain vs. State of UP [AIR 1964 SC 1625]; Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav [1988 (1) SCC 530]; Raj Kumar Karwal vs. UOI [AIR 1991 SC 47]; K. Vimla vs. K.Veeraswamy[ JT 1991 (2) SC 182] and Abbayolla M.Subba Reddy vs. Padmamma[AIR 1999 AP 19]. Learned counsel Shri SC Birla appearing on the other side for the wife also took us through the relevant evidence of the husband and wife recorded before the Family Court and tried to persuade us to set aside the decree of nullity of marriage granted by the High Court and refusing grant of decree of judicial separation to the wife. So far as the appeal preferred by the wife is concerned, on reconsideration of the evidence on record, we find no ground to take a view different from the one taken by the High Court and upset the conclusion that the second marriage was null and void. The wife did not deny the fact that her marriage was arranged with Girdhari Lal Lakhotia in the year 1973 and after marriage she lived with the members of the family of her previous husband. It is also an admitted fact that she instituted proceedings for obtaining decree of divorce being Divorce Petition No.76/78 in the Family Court at Amravati. It is also not denied that no decree of divorce was obtained from the Court and she only obtained a registered document of Chhor Chithhi from

her previous husband on 15.5.1979. Existence of such customary divorce in Vaish community of Maheshwaris has not been established. A Hindu marriage can be dissolved only in accordance with the provisions of the Act by obtaining a decree of divorce from the Court. In the absence of any decree of dissolution of marriage from the court, it has to be held that in law the first marriage of the wife subsisted when she went through the second marriage on 11.7.1981 with the present husband. The appeal preferred by the wife, therefore, against grant of decree of declaration of her second marriage as void, has to be rejected whatever may be the circumstances which existed and the hardships that the wife had to undergo, as alleged, at the hands of her second husband. So far as the husband's appeal against grant of maintenance under Section 25 of the Act to the wife is concerned, this Court has granted him leave to appeal confined to the question as to 'whether the wife is entitled to maintenance after the Court held that the marriage was nullity.' Section 25 of the Hindu Marriage Act confers jurisdiction on the Matrimonial Court to grant permanent alimony and maintenance to either of the spouses ' at the time of passing of any decree' or 'at any time subsequent thereto.' Section 25 which arises for interpretation in the husband's appeal reads as under: "25.Permanent alimony and maintenance (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent. (2) If the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under Sub-section(1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just. (3) If the Court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside

wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the Court may deem just." [Emphasis supplied] Learned counsel appearing for the respondents took us through the Full Bench decision of the Andhra Pradesh High Court (supra) and earlier decisions of this Court to persuade us to take a view that where the marriage is found to be null and void under Section 11, question of grant of permanent alimony or maintenance can never arise in favour of either of the spouses. The decisions of this Court and High Courts which have been relied, in our opinion, are distinguishable and are not directly on the point of law before us. We find that taking into consideration the divergent views of various High Courts, this Court in the case of Chand Dhawan vs. Jawaharlal Dhawan [1993 (3) SCC 406] has dealt with the point on the interpretation of Section 25 read with Sections 9 to 13 read with Section 5 of the Act. The decision in Chand Dhawan (supra) squarely covers the point against the husband. It is true that Chand Dhawan's case (supra) arose from different facts but the statement of law on the interpretation placed on Section 25 answers the question raised by the husband against him on the competence of the court to grant maintenance under Section 25. In the case of Chand Dhawan (supra) a joint petition filed by the spouses for grant of a decree of divorce by mutual consent failed as they withdrew their consent during the statutory waiting period. Thereafter the wife moved a petition for grant of maintenance under Section 25 of the Act. This Court held that Section 25 can be invoked by either of the spouses where a decree of any kind governed by Sections 9 to 13 has been passed and the marriage-tie is broken, disrupted or adversely affected by such a decree of the Court. The view expressed is that where the marriage is not dissolved by any decree of the Court, resort to Section 25 of the Act is not allowed as any of the spouses whose marriage continues can resort to other provisions for seeking maintenance, like Section 125 of the Criminal Procedure Code or provisions of Hindu Adoption and Maintenance Act. In interpreting the provision of Section 25 in the case of Chand Dhawan (supra) the Supreme Court categorically held that the expression 'at the passing of passing any decree,' as has been used in Section 25, includes a decree of nullity of marriage. The relevant observations read thus:- "On the other hand, under the Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is durated (sic) on the pendency of a litigation of the kind envisaged under sections 9

to 14 of the Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce, with or without her consent. Thus when her marital status is to be affected or disrupted the court does so by passing a decree for or against her. On or at the time of the happening of that event, the court being seisin of the matter, invokes its ancillary or incidental power to grant permanent alimony. Not only that, the court retains the jurisdiction at subsequent stages to fulfill this incidental or ancillary obligation when moved by an application on that behalf by a party entitled to relief. The court further retains the power to change or alter the order in view of the changed circumstances. Thus the whole exercise is within the gammit (sic gamut) of a diseased or a broken marriage. And in order to avoid conflict of perceptions the legislature while codifying the Hindu Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the court passing a decree of the kind as envisaged under sections 9 to 14 of the Act. In other words without the marital status being affected or disrupted by the matrimonial court under the Hindu Marriage Act the claim of permanent alimony was not to be valid as ancillary or incidental to such affectation or disruption. The wife's claim to maintenance necessarily has then to be agitated under the Hindu Adoptions and Maintenance Act, 1956 which is a legislative measure later in point of time than the Hindu Marriage Act, 1955, though part of the same socio-legal scheme revolutionizing the law applicable to Hindus. ...................... ...................... We have thus, in this light, no hesitation in coming to the view that when by court intervention under the Hindu Marriage Act, affectation or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant. [ Emphasis supplied ]

In the present case, on the husband's petition, a decree declaring the second marriage as null and void has been granted. The learned counsel has argued that where the marriage is found to be null and void � meaning non-existent in eye of law or non est, the present respondent cannot lay a claim as wife for grant of permanent alimony or maintenance. We have critically examined the provisions of Section 25 in the light of conflicting decisions of the High Court cited before us. In our considered opinion, as has been held by this Court in Chand Dhawan's case (supra), the expression used in the opening part of Section 25 enabling the 'Court exercising jurisdiction under the Act' 'at the time of passing any decree or at any time subsequent thereto' to grant alimony or maintenance cannot be restricted only to, as contended, decree of judicial separation under Section 10 or divorce under Section 13. When the legislature has used such wide expression as 'at the time of passing of any decree,' it encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and Divorce under Section 13. Learned counsel for the husband has argued that extending the benefit of Section 25 to even marriages which have been found null and void under Section 11 would be against the very object and purpose of the Act to ban and discourage bigamous marriages. It is well known and recognized legal position that customary Hindu Law like Mohammedan Law permitted bigamous marriages which were prevalent in all Hindu families and more so in royal Hindu families. It is only after the Hindu Law was codified by enactments including the present Act that bar against bigamous marriages was created by Section 5(i) of the Act. Keeping into consideration the present state of the statutory Hindu Law, a bigamous marriage may be declared illegal being in contravention of the provisions of the Act but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependant. It is with the purpose of not rendering a financially dependant spouse destitute that Section 25 enables the court to award maintenance at the time of passing any type of decree resulting in breach in marriage relationship. Section 25 is an enabling provision. It empowers the Court in a matrimonial case to consider facts and circumstances of the spouse applying and decide whether or not to grant permanent alimony or maintenance. The facts of the present case fully justify grant of maintenance

both to the wife and the daughter. The evidence of the wife has been believed by the courts below and according to us rightly so. From circumstances preceding and attending the marriage, it can safely be inferred that the present husband must have made reasonable enquiries about the previous marriage of the present wife. The wife's version is natural and inspires belief that the document of Chor Chhithi was shown and given to the husband. It is proved from the photocopy of the foil of Registration, placed on record. According to the wife, the husband did receive the document of Chor Chhithi but has not produced it before the Family Court. It is argued that it is open to the wife, if the document was registered, to get a copy from the Registration office. Even if that was possible, we find no ground to disbelieve her version that the fact of her previous marriage was not concealed from the present husband. The husband is an advocate. His falsehood went to the extent of denying his second marriage and calling his wife only to be a governess of his children from the first wife. He unsuccessfully denied even the parentage of daughter Puja, born through him. He failed to lead any evidence on the illegitimacy of the child. After the second marriage the parties lived as husband and wife and they had a considerably long married life of about nine years from 1981 to 1990. In such a situation, the Family Court and High Court were fully justified in holding that the wife deserves to be granted maintenance under Section 25 of the Act. Lastly, it is urged by counsel for the wife that daughter Puja is now of marriageable age and the maintenance of total Rupees three thousand granted to them, therefore, deserves to be suitably enhanced to fulfill their present needs. We say nothing on this prayer at this stage because it is always open to the wife and the daughter in accordance with sub-section (2) of Section 25, to approach the Matrimonial Court to suitably enhance the quantum of maintenance granted to them. If such an application is made to the Matrimonial Court, it shall be decided after hearing the husband in accordance with law. We are told that the order of the High Court in so far as it directs the husband to return ornaments of the wife or its equivalent value in the sum of Rs.3,25,650/- with 9% per annum, is a subject-matter of a separate appeal. We, therefore, express no opinion with regard to the same. In the result, both the appeals preferred by the parties are dismissed and the impugned judgments of the High Court, to the extent of granting decree of declaration of marriage as nullity and granting maintenance to the wife and daughter are maintained. The

husband shall pay all the arrears of maintenance to the wife and daughter. The earlier order made on 2.3.2001 passed in Civil Appeal No. 1775 of 2000 granting stay of maintenance to the wife is hereby vacated. In the circumstances, the husband shall bear his own costs and pay costs to the wife incurred in these proceedings. PETITIONER: NOOR SABA KHATOON Vs. RESPONDENT: MOHD. QUASIM DATE OF JUDGMENT: 29/07/1997 BENCH: A. S. ANAND, K. VENKATASWAMI ACT: HEADNOTE: JUDGMENT: J U D G M E N T DR. ANAND. J, A short but interesting question involved in this appeal, by Special Leave, is whether the children of muslim parents are entitled to grant of maintenance under Section 125, Cr. P. C. for the period till they attain majority or are able to maintain themselves whichever date is earlier or in the case of female children till they get married or is their right restrict to the grant of maintenance only for a period of two years prescribed under Section 3(1)(b) of the Muslim Women (protection of Rights on Divorce) Act, 1986 notwithstanding Section 125 Cr. P. C. The appellant married the respondent according to muslim rites on 27.10.1980. During the wedlock, three children were born - two daughters and a son. On certain

disputes arising between the parties, the respondent allegedly turned the appellant out of the matrimonial home alongwith the three children then aged 6 years, 3 years and 1 1/2 years and also refused and neglected to maintain her and the children thereafter. After turning the appellant out of the matrimonial home, the respondent took a second wife, Shahnawaz Begum, Claiming that the appellant has no means to maintain herself and the children and that the respondent had both agricultural land and was carrying on business in electrical appliances as well and had sufficient income and means to maintain them, she filed an application under Section 125 Cr. P. C. in the Court of Shri A. K. Jha, Judicial Magistrate, First Class, Gopalganj, on 13.2.1992. She claimed a sum of Rs. 400/- per month for herself and Rs. 300/- per month as maintenance for each of the three children. The application was contested, though it was only the appellant, who adduced evidence at the trial and the respondent/husband did not lead any evidence. The Trial Court found that the respondent had failed and neglected to maintain his wife and children and that they had no source of income or means to maintain themselves and accordingly held that they were entitled to the grant of maintenance from the respondent. By its order dated 19.1.1993, the Trial Court directed the respondent to pay maintenance to the appellant at the rate of Rs. 200/- per month for herself and at the rate of Rs. 150/- per month for each of the three minor children, till they attain the age of majority. While the matter rested thus, the respondent divorced the appellant and thereafter filed an application in the Trial Court seeking modification of the order dated 19.1.1993, in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the 1986 Act). By an order dated 27.7.1993, the Trial Court modified the order dated 19.1.1993, insofar as the grant of maintenance to the appellant is concerned while maintaining the order granting maintenance to each of the three minor children. Insofar as the appellant is concerned, the Trial Court held that in view of the provisions of the 1986 Act the appellant-wife after her divorce was entitled to maintenance only for a period of three months i.e. for the period of Iddat. The Trial Court further found that the right to maintenance under Section 125 Cr. P. C. insofar as the children are concerned was not affected by the 1986 Act in any manner. The order dated 27.7.1993 was challenged by the respondent through a Revision Petition in the Court of 2nd Additional Judge,

Gopalganj. On 16.7.1994, the revisional court dismissed the revision petition holding that the 1986 Act does not over- ride the provisions of Section 125 Cr. P. C. for grant of maintenance to the minor children and that Section 3(1)(b) of the 1986 Act also entitles a divorced woman to claim reasonable and fair maintenance from her husband for maintaining the children born to her before or after her divorce from her former husband for a period of two years from the respective dates of birth of the children and that the said provision did not affect the right to maintenance of the minor children granted by Section 125 Cr. P. C. The respondent, thereupon, filed a Criminal Misc. Petition under Section 482 Cr. P. C. in the High Court challenging the correctness of that part of the order of the revisional court which upheld the right to maintenance of the three minor children under Section 125 Cr. P. C. at the rate of Rs. 150/- per month per child. A learned single Judge of the High Court accepted the plea of the respondent that vide Section 3(1)(b) of the 1986 Act, a divorced muslim woman is entitled to claim maintenance from her previous husband for her minor children only for a period of two years from the date of birth of the concerned child and that the minor children were not entitled to claim maintenance under Section 125 Cr. P. C. after the coming into force of the 1986 Act. The High Court noticed that the tow older children were aged 6 years and 3 years when the application for maintenance was filed on their behalf by their mother, and thus "had completed two years prior to filling of the petition for grant of maintenance", and as such those two children were held not entitled to the grant of any maintenance under Section 125 Cr. P. C. and that the third child, who was only 1 1/2 years of age on 19.1.1993, was entitled to receive maintenance till she attained the age of two years i.e. till 19.7.1993 from the date of filing of the application i.e. 13.2.1992. With the said modification, the miscellaneous application of the respondent-husband was partly allowed. By special leave to appeal the appellant has come up to this court. The facts are not in dispute. The appellant had filed a petition for grant of maintenance under Section 125 Cr. P. C. for herself as well as on behalf of the three children born during the wedlock, who were living with her, since the respondent had refused and neglected to maintain them. On the date of the application filed under Section 125 Cr. P. C. i.e. 13.2.1992, the children were aged 6 years, 3 years and 1 1/2 years. After the Trial Court granted the petition

under Section 125 Cr. P. C. in favour of the appellant and the three minor children, the respondent divorced the appellant and filed an application seeking modification of the order of maintenance in view of the provisions of the 1986 Act. Thetrial court modified its order qua the appellant, restricting the grant of maintenance to the period of Iddat but maintained its earlier order insofar as the children are concerned. While the revisional court declined to interfere with the order of the Trial Court, the High Court based itself on Section 3(1)(b) of the 1986 Act to hold that the grant of maintenance to the children of divorced muslim parents, living with their mother, was restricted to the period prescribed under the said section notwithstanding the provisions of Section 125 Cr. P. C.. Does Section 3(1)(b) of the 1986 Act is any way affect the rights of the minor children of divorced muslim parents to the grant of maintenance under Section 125 Cr. P. C. is thus the moot question? The preamble to the 1986 Act reads: "An Act to protect the rights of Muslim women who have been divorced by, or have obtained divorce from their husbands and to provide for matters connected therewith or incidental thereto." The Act, thus, aims to protect the rights of Muslim Women who have been divorced. The 1986 Act was enacted as a sequel to the judgment in Mohd. Ahmed Khan vs. shah Bano Begum, AIR 1985 SC 945. The question of maintenance of children was not involved in the controversy arising out of the judgment in the case of Shah Bano Begum (supra). The Act was not enacted to regulate the obligations of a muslim father to maintain his minor children unable to maintain themselves which continued to be governed with Section 125 Cr. P. C.. This position clearly emerges from a perusal of the relevant provisions of the 1986 Act. Section 3 of the 1986 Act to the extent relevant for this case reads: Sec. 3 Mahr or other properties of Muslim woman to be given to her at the time of divorce.- (1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to-

(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period her former husband; (b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two ears from the respective dated of birth of such children; (c) an amount equal to the sum of mahr or dower agreed to be paid to her at her time of her marriage or at any time thereafter according to Muslim law; and (d) all the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends. ................................... .............." From a plain reading of the above Section it is manifest that it deals with "Mahr" or other properties of a muslim woman to be given to her at the time of divorce. It lays down that a reasonable and fair provision has to be made for payment of maintenance to her during the period of Iddat by her former husband. Clause (b) of Section 3(1) (supra) provides for grant of additional maintenance to her for the fosterage period of two years from the date of birth of the child of marriage for maintaining that child during the fosterage. Maintenance for the prescribed period referred to in Clause (b) of Section 3(1) is granted on the claim or the divorced mother on her own behalf for maintaining the infant/infants for a period of tow years from the date of the birth of the child concerned who is/are living with her and presumably is aimed at providing some extra amount to the mother for her nourishment for nursing or taking care of the infant/infants upto a period of two years. It has nothing to do with the right of the child/children to claim maintenance under Section 125 Cr. P. C. So long as the conditions for the grant of maintenance under Section 125 Cr. P. C. are satisfied, the rights of the

minor children, unable to maintain themselves, are not affected by Section 3(1)(b) of the 1986 Act. Under Section 125 Cr. P. C. the maintenance of the children is obligatory on the father (irrespective of his religion) and as long as he is in a position to do so and the children have no independent means of their own, it remains his absolute obligation to provide for them. Insofar as children born of muslim parents are concerned there is nothing in Section 125 Cr. P. C. which exempts a muslim father from his obligation to maintain the children. These provisions are not affected by clause (b) of Section 3(1) of the 1986 Act and indeed it would be unreasonable, unfair, inequitable and even preposterous to deny the benefit of Section 125 Cr. P. C. to the children only on the ground that they are born of Muslim parents. The effect of a beneficial legislation like Section 125 Cr. P. C., cannot be allowed to be defeated except through clear provisions of a statute. We do not find manifestation of any such intention in the 1986 Act to take away the independent rights of the children to claim maintenance under Section 125 Cr. P. C. where they are minor and are unable to maintain themselves. Muslim father's obligation, like that of a Hindu father, to maintain his minor children as contained in Section 125 Cr. P. C. is absolute and is not at all affected by Section Section 3(1)(b) of the 1986 Act. Indeed a muslim father can claim custody of the children born through the divorced wife to fulfil his obligation to maintain them and if he succeeds, he need not suffer an order or direction under Section 125 Cr. P. C. but where such custody has not been claimed by him, he cannot refuse and neglect to maintain his minor children on the ground that the has divorced their mother. The right of the children to claim maintenance under Section 125 Cr. P. C. is separate, distinct and independent of the right of their divorcee mother to claim maintenance for herself for maintaining the infant children upto the age of 2 years from the date of birth of the concerned child under Section 3(1) of the Act. There is nothing in the 1986 Act which in any manner affects the application of the provisions of Sections 125-128 of the Cr. P. C. relating to grant of maintenance insofar as minor children of muslim parents, unable to maintain themselves, are concerned. Indeed Section 3(1) of 1986 Act begins with a non obstante clause "notwithstanding any thing contained in any other law for the time being in force" and clause (b) thereof provides that a divorced woman shall be entitled to a reasonable and fair provision for maintenance by her

former husband to maintain the children born out of the wedlock for a period of two years from the date of birth of such children, but the non obstante clause in our opinion only restricts and confines the right of a divorcee muslim woman to claim or receive maintenance for herself and for maintenance of the child/children till they attain the age of tow years, notwithstanding anything contained in any other law for the time being in force in that behalf. It has nothing to do with the independent right or entitlement of the minor children to be maintained by their muslim father. A careful reading of the provisions of Section 125 Cr. P. C. and Section 3(1)(b) of the 1986 Act makes it clear that the two provisions apply and cover different situations and there is no conflict, much less a real one, between the two. Whereas the 1986 Act deals with the obligation of a muslim husband vis-a-vis his divorced wife including the payment of maintenance to her for a period of two years of fosterage for maintaining the infant/infants, where they are in the custody of the mother, the obligation of a muslim father to maintain the minor children is governed by section 125 Cr. P. C. and his obligation to maintain them is absolute till they attain majority or are able to maintain themselves, whichever date is earlier. In the case of female children this obligation extends till their marriage. Apart from the statutory provisions referred to above, even under the Muslim personal Law, the right of minor children to receive maintenance from their father, till they are able to maintain themselves, is absolute. Prof. Tahir Mahmood, in his book "Statute-Law relating to Muslims in India" (1995 Edn.) while dealing with the effect of the provisions of Section 125 Cr. P. C. on the 1986 Act and the Muslim personal law observes at page 198: "These provisions of the Code remain fully applicable to the Muslims, notwithstanding the controversy resulting from the Has Bano case and the enactment of the Muslim Women (Protection of Rights on divorce) Act, 1986. There is nothing in that Act in any way affecting the application of these provisions to the children and parents governed by Muslim law.............................. As regards children, the Code adopts the age of minority from the

Majority Act, 1875 by saying: "Minor means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority" - [Explanation to section 125 (1), clause (a)]. Ordinarily, thus, every Muslim child below 18 can invoke the CrPC law to obtain maintenance from its parents if they "neglect or refuse" to maintain it despite "giving sufficient means"............................. ....... ................................... ...... ................................... ...... By Muslim law maintenance (nafaqa) is a birth right of children and an absolute liability of the father. Daughters are entitled to maintenance till they get married if they are bakira (maiden), or till they get remarried if they are thaviba (divorce/widow). Sons are entitled to till they attain bulugh if they are normal; and as long as necessary if they are handicapped or indigent. providing maintenance to daughters is a great religious virtue. The Prophet had said: "Whoever has daughters and spends all that the has on their upbringing well, on the Day of Judgment, be as close to me as two fingers of a hand. If a father is a poverty- stricken and cannot therefore provide maintenance to his children, while their mother is affluent, the mother must provide them maintenance subject to reimbursement by the father when

his financial condition improves. (Emphasis supplied) Thus, both under the personal law and the statutory law (Sec. 125 Cr. P. C.) the obligation of a muslim father, having sufficient means, to maintain his minor children, unable to maintain themselves, till they attain majority and in case of females till they get married, is absolute, notwithstanding the fact that the minor children are living with the divorced wife. Thus, our answer to the question posed in the earlier part of the opinion is that the children of muslim parents are entitled to claim maintenance under Section 125 Cr. P. C. for the period till they attain majority or are able to maintain themselves, whichever is earlier and in case of females, till they get married, and this right is not restricted, affected or controlled by divorcee wife's right to claim maintenance for maintaining the infant child/children in her custody for a period of tow years from the date of birth of the child concerned under Section 3(1)(b) of the 1986 Act. In other words Section 3(1)(b) of the 1986 Act does not in any way affect the rights of the minor children of divorced muslim parents to claim maintenance from their father under Section 125 Cr. P. C. till they attain majority or are able to maintain themselves, or in the case of females, till they are married. It, therefore, follows that the learned Trial Court was perfectly right in directing the payment of amount of maintenance to each of the three children as per the order dated 19.1.1993 and the learned 2nd Additional Sessions Judge also committed no error in dismissing the revision petition filed by the respondent. The High court, on the other hand, fell in complete error in holding that the right to claim maintenance of the children under Section 125 Cr. P. C. was taken away and superseded by Section 3(1)(b) of the 1986 Act and that maintenance was payable to the minor children of Muslim parents only for a period of two years from the date of the birth of the child concerned notwithstanding the provisions of Section 125 Cr. P. C.. The order of the High Court cannot, therefore, be sustained. It is accordingly set aside. The order of the Trial Court and the Revisional Court is restored. This appeal succeeds and is allowed but without any orders as to cost. The arrears of maintenance in respect of the children shall be paid by the respondent to the appellant-mother, who filed the petition on their behalf, within one year form the

date of this order in four equal instalments, payable quarterly. The first instalment shall be paid on or before August 15, 1997 and thereafter every three months. Any single default in the payment of the arrears will entitle the appellant to recover the entire balance amount at once with 12% interest through the Trial Court in the manner prescribed by the Code. The respondent shall continue to pay maintenance as directed by the trial court, till the children attain minority or are able to maintain themselves and in the case of the daughters, till they get married. PETITIONER: SMT. RASHMI KUMAR Vs. RESPONDENT: MAHESH KUMAR BHADA DATE OF JUDGMENT: 18/12/1996 BENCH: K. RAMASWAMY, S.B. MAJUMUDAR, G.T. NANAVATI ACT: HEADNOTE: JUDGMENT: J U D G M E N T K. Ramaswamy, J. This appeal has been placed before this Bench pursuant to an order date 19.4.1995 passed by a two Judge Bench in the following terms: "A decade has gone by since Pratibha Rai vs. Suraj Kumar & Anr, [(1985) 2 SCC 370] - a decision by a majority of 2:1 has governed the scene. Having regard to its wider

ramifications and its actual working in the last decade, we are of the view that a fresh look to the ratio in that case is necessary. We, therefore, order that this case be placed before a three-judge Bench." This appeal by special leave arises from the Judgment of the Allahabad High Court dated June 19, 1992 in Criminal Miscl. Case No.44 of 1992. The admitted facts are that the appellant was married to the respondent on July 7, 1973 at Lucknow according to the Hindu rites and rituals. The parties have three children from the wedlock. It is not in dispute that there was estrangement in the marital relationship between the husband and the wife. It is the case of the appellant that she was treated with cruelty and was driven out of the marital home along with the three children. She was constrained to lay proceedings under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. The appellant was given jewellery, i.e., gold and silver ornaments and other household goods enumerated in Annexures I and II and also cash by her parents, brothers and other relatives at different ceremonies prior to her marriage and after the marriage at the time of bidai (farewell). She claims that all these articles constituted her stridhana properties and were kept in the custody of the respondent-husband. The respondent has asked the appellant to entrust for safe custody all the jewellery and cash mentioned in Annexure I, to his father with the promise that on her demand whenever made, they would be returned. Accordingly, she had entrusted them to the appellant at Lucknow in the presence of three named witnesses. Similarly, the household goods mentioned in Annexure-II were entrusted by the parents of the appellant to the respondent at the time of farewell in the presence of three named witnesses. They lived together in Delhi in her in-laws house. The appellant alleged in the complaint that she was treated with cruelty in the matrimonial home and ultimately on July 24/25, 1978 she and the children were thrown out from the matrimonial home at duress and at the peril of their lives. Accordingly, she was driven out from the matrimonial home without getting an opportunity to take with her Stridhana properties enumerated in Annexures I and II. She filed an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. Even

thereafter she went to Cochin where at the respondent- husband was working, on October 9, 1986 and requested him to restitute her into the conjugal society along with the children. he promised that he would do it provided she withdrew her application for restitution of conjugal rights. He also promised to return the jewellery and other valuables mentioned in Annexures I and II entrusted to him. Even after her withdrawing the application, on October 21, 1986, he did not take her into the conjugal society. Therefore, she was again constrained to file second application on November 18, 1986 for restitution of conjugal rights. She also filed application under Section 125 of the Code of Criminal Procedure, 1973 (for short, the "Code") for maintenance. Since these attempts proved unsuccessful, she made a demand on December 5, 1987 to return the jewellery as detailed in Annexure I and household goods mentioned in Annexure II but the respondent flatly refused to return her stridhana properties. Consequently, she filed a private complaint on September 10, 1990. After recording her statement under Section 200 of the Code, the learned Magistrate took cognizance of the offence and issued process to the respondent. While the respondent appeared in the Court, he filed an application under Section 482 of the Code in the High Court to quash the proceedings. As stated earlier, the High Court in the impugned Order has quashed the proceedings on two grounds, viz., (i) the appellant did not make out any case in the complaint and (ii) it is barred by limitation. On the ground of limitation, the learned Judge came to the conclusion that in October 1986 the appellant had made a demand for return of the jewellery and gold but the respondent did not return the same. Therefore, it furnished a cause of action. Since complaint was laid in September 1990, it was clearly barred by limitation the period prescribed being three years. Smt. Indira Jaising, Learned senior counsel for the appellant, contended that the ratio in Pratibha Rani V/s. Suraj Kumar & Anr. [(1985) 2 SCC 370] has stood the test of time for more than a decade though therein there was difference of opinion between the majority and the minority on certain aspects of the matter. The decision has never been doubted by any other Bench. The said ration is based on the personal law as elaborately discussed in the judgment. Therefore, it requires reiteration. Shri Rajinder Singh, learned senior counsel for the respondent, on the other hand, sought to support the present reference to the three Judge Bench on the basis of the conduct of the appellant. He

also contends that a clear demand for return of the stridhana properties was made in October 1986 when the respondent had refused to return the same. Since the complaint came to be filed only in September 1990, i.e., after a delay of 11 months from the expiry of prescribed limitation, it is time barred. Since no application for condonation of delay was filed, the High Court was enjoined to dismiss the complaint as being barred by limitation. Smt. Indira Jaisingh contended that the offence punishable under Section 406, Indian Penal Code [for short, the "IPC"] is a continuing offence and hence cause of action arose every day subsequent to the refusal and, therefore, the complaint was not barred by limitation. Shri Rajinder Singh further contended that the respondent has always been willing to transfer his flat in Bombay in the name of his daughters. He also states that he has been paying every month maintenance allowance in respect of the children. Even if the articles which the appellant is claiming is mentioned, the respondent is prepared to deposit the same in a fixed account in the name of his daughters. This conduct on the part of the respondent would militate against the conduct of the appellant who intends to harass the respondent by filing endless complaints. These circumstances would go to indicate that there are no justifiable reasons for interference with the order of the High Court. At this juncture, it is relevant to not that several attempts made by this Court to have the dispute settled amicably between the parties, could not bear any fruit of success. Therefore, we are not inclined to undertake the exercise once over. The question that has arisen for consideration is: whether the ratio in Pratibha Rani's case does not hold good any more? That case also related to a complaint filed under Section 406, IPC for breach of trust by the respondent- husband on his refusing to return stridhana property, viz., jewellery, wearing apparels etc. The question that had arisen for consideration was whether the stridhana property was exclusive property of the appellant-wife or was a joint property owned and held by both the spouses? Though all the three learned Judges concurred on the point of entrustment of the jewellery and wearing apparels to be stridhana, the majority view was that the stridhana property was the exclusive property of the appellant-wife and that, therefore, the failure to return the property in the custody of the husband to the wife constitutes breach of trust defined under Section 405, IPC. Therefore, the offence of breach of trust punishable under Section 406 was made out,

as per the averments contained in the complaint. The minority view was that the property entrusted to the husband after the marriage is joining property of the wife and the husband. The essential requirement for constituting an offence defined under Section 405, IPC in relation to stridhana property, is that there should be a specific separate agreement between the parties, whereby the property of the wife or the husband, as the case may be, is entrusted. In the absence of such a separate agreement for specific entrustment, it would not be possible to draw an inference of entrustment of custody or dominion over the property of one spouse to the other and/or his or her close relations so as to attract the stringent provisions of Section 406, IPC; otherwise there would be disastrous effects and consequences on the peace and harmony which ought to prevail in matrimonial homes. The appropriate remedy would appear to be by way of a civil suit for recovery of the stridhana property. Fazal Ali, J., speaking for himself and Sabyasachi Mukherjee, J., as he then was, held that the possession of Saudayika or stridhana of a Hindu married female during coverture is absolutely clear and unambiguous. She is the absolute owner of her stridhana property and can deal with it in any manner she likes. She may spend the whole of it or give it away at her own pleasure by gift or will without any reference to her husband. Ordinarily, the husband has no right or interest in it with the sole exception that in times of extreme distress, as in famine, illness or the like, the husband can utilise it but he is morally bound to restore it or its value when he is able to do so. This right is purely personal to the husband and the property so received by him in marriage cannot be proceeded against even in execution of a decree for debt passed against the husband. If in spite of demands for return of the articles, the husband refuses to return them to the wife, it amounts to an offence of criminal breach of trust. The stridhana property is not a joint property of the wife and the husband. Section 27 of the Hindu Marriage Act merely provides another remedy of suit to recover from the husband or the persons to whom the stridhana property was entrusted. The mere factum of the husband and the wife living together does not entitle either of them to commit a breach of criminal law and if one does, then he or she will be liable for all the consequences of such breach. By mere living in matrimonial home the stridhana does not become joint property of the spouses. It is also not a partnership

property between the wife and the husband. The concept of partnership is alien to the stridhana property under the personal law. Therefore, entrustment of stridhana, without creating any right in the husband except, putting the articles in the possession, does not entitle him to use the same to the detriment of his wife without her consent. The husband has no justification for not returning the said articles as and when demanded by the wife; nor can he burden her with loss of business by using the said properties which were never intended by her while entrusting possession of the stridhana. The husband being only a custodian of the stridhana of his wife, cannot be said to be in joint possession thereof and does not acquire a joint interest in the property. It was, therefore, concluded that the custody or entrustment of the stridhana with the husband does not amount to partnership in any sense of the term nor does the stridhana becomes a joint property. It was held in para 60 of the judgment that taking all the allegations made in the complaint, by no stretch of imagination it could be said that they do not prima facie amount to an offence of criminal breach of trust against the respondent. Thus there could be no room for doubt that all the facts stated in the complaint constitute an offence under Section 406, IPC and the appellant could not be denied the right to prove her case at the trial by pre-empting it at the very inception by the order passed by the High Court. Accordingly, it was quashed. Direction was given to proceed with the trial from the stage at which stay was granted by this Court. The only difference of point was whether there should be special agreement of entrustment. Varadarajan, J. elaborately dealt with the special agreement and had held that in view of the fact that wife and husband have dominion over the wife's property jointly, proof of special agreement of entrustment is an essential ingredient. In Mayne's Hindu Law & Usage [13th Edn.] edited by Justice Alladi Kuppuswami, former Chief Justice of Andhra Pradesh High Court, in paragraph 644 at page 877 it is stated that "Katyayana indicates a cross-classification of stridhana [Vivadachintamani vide p.259; Jha HLS II, 529-31; Apararka, 21 MLJ (Jour.) 428. He further states: "that which is obtained by a married woman or by a maiden, in the house of her husband or of her father, from her brother (from her husband) or from her parents, is stridhana [Vide: Katyayna cited in Mit., II, xi, 5; Smritichandrika, IX, ii,4-5; V. May., IV, x, 8 etc.]. Under the caption "Yautaka and ayautake", it is stated that "Yautaka is that which is given

at the nuptial fire... It includes all gifts made during the marriage ceremonies. Ayautaka is gift made before or after marriage. Saudayika includes both Yautaka and Ayautaka and received from strangers. It is defined to be gifts from affectionate kindered". In support thereof, he relied on Venkatareddy v. Hanumant [(1993) 57 Bom 85] and Muthukaruppa v. Sellathammal [(1916) 39 Mad. 298 at 300 and see para No.10] At page 881, in paragraph 650, sub-para (4), it is stated that "So also gifts or grants to her by strangers, whether made during coverture or when she is a widow, will be her stridhana" [Vide Salemma v. Lutchmana [(1998) 21 Mad 100]. In paragraph 652 on page 882, it is stated that "the absolute dominion of a woman over her saudayika property was admitted from the earliest times". Katyayana declares: "The independence of women who have received the saudayika wealth is desirable (in regard to it), for it was given (by their kindered) for their maintenance out of affection. The power of women over saudayika at all times is absolute both in respect of gift and sale, according to their pleasure, even in (the case of) immovables". The Smiritichandrika would confine saudayika to yautaka or the like, received by a woman from her own parents or persons connected with them, in the house of either her father or her husband, from the time of her betrothment to the completion of the ceremony to be performed on the occasion of her entering her lord's house. But his view has not been followed. The texts of Katyayana and Vyasa have been explained by other commentators as including gifts received by her from her husband, and from others after her marriage. The decisions of the courts have taken the same view. Provided the gift is made by her husband or her parents or by relatives either of her husband or of parents, it is immaterial whether it is made before marriage, at marriage or after marriage. It is equally her saudayika. In other words, saudayika means all gifts and bequests from relations but not gifts and bequests from strangers. Saudayika of all sorts are absolutely at a woman's own disposal. She may spend, sell, devise or give it away at her own pleasure. In support of that conclusion, footnote No.6 cites several decisions including Venkata Rama v. Venkata Suriya [(1880) 2 Mad 333] and Muthukaruppa v. Sellathammal [(1916) 39 Mad 298] etc. It is stated thereafter that her husband can neither control her in her dealings with it, nor use it himself. But he may take it in case of extreme distress, as in a famine, or for some indispensable duty, or during illness, or while a creditor keeps him in prison. Even then he would appear to be under

at least a moral obligation to restore the value of the property when able to do so. What he has taken without necessity, he is bound to repay with interest. This right to take the wife's property is purely a personal one in the husband. If he does not choose to avail himself of it, his creditors cannot proceed against her properties. The word `take' in the text of Yajanavalkya means `taking' and `using'. Hence if the husband taking his wife's property in the exceptional circumstances mentioned in the text does not actually use it, the wife still remains its owner and the husband's creditors have no claim against the property. A woman's power of disposal, independent of her husband's control, is not confined to saudavika but extends to other properties as well. Devala says: "A women's maintenance (vritti), ornaments, perquisites (sulka), gains (labha), are her stridhana. She herself has the exclusive right to enjoy it. Her husband has no right to use it except in distress...". In "N.R. Raghavachariar's "Hindu law - Principles and Precedents" [8th Edn.] edited by Prof. S. Venkataraman, one of the renowned Professors of Hindu law para 468 deals with "Definition of Stridhana". In para 469 dealing with "Sources of acquisition" it is stated that the sources of acquisition of property in a women's possession are: gifts before marriage, wedding gifts, gifts subsequent to marriage etc. Para 470 deals with "Gifts to a maiden". Para 471 deals with "Wedding gifts" and it is stated therein that properties gifted at the time of marriage to the bride, whether by relations or strangers, either Adhiyagni or Adhyavahanika, are the bride's stridhana. In para 481 at page 426, it is stated that ornaments presented to the bride by her husband or father constitute her Stridhana property. In para 487 dealing with "powers during coverture" it is stated that saudayika meaning the gift of affectionate kindered, includes both Yautaka or gifts received at the time of marriage as well as its negative Ayautaka. In respect of such property, whether given by gift or will she is the absolute owner and can deal with it in any way she likes. She may spend, sell or give it away at her own pleasure. It is thus clear that the properties gifted to her before the marriage, at the time of marriage or at the time of giving farewell or thereafter are her stridhana properties. It is her absolute property with all rights to dispose at her own pleasure. He has no control over her stridhana property. Husband may use it during the time of his distress but nonetheless he has a moral obligation to

restore the same or its value to his wife. Therefore, stridhana property does not become a joint property of the wife and the husband and the husband has no title or independent dominion over the property as owner thereof. In this backdrop, the question that arises for consideration is: whether the fact of a wife's having been driven out from the matrimonial home without taking along with her stridhana properties, amount to entrustment with the husband within the meaning of Section 405, IPC? Section 405 defines "Criminal breach of trust thus: "405. Criminal breach of trust. - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharge, or of any legal contract, express or implied, which he has made touching the <??> of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust". It is not necessary to refer to the Explanations to the said section for the purpose of this case. Hence they are omitted. Thus when the wife entrusts her stridhana property with the dominion over that property to her husband or any other member of the family and the husband or such other member of the family dishonestly misappropriates or converts to his own use that property or wilfully suffers any other person to do so, he commits criminal breach of trust. The essential ingredients for establishing an offence of criminal breach of trust as defined in Section 405 and punishable under Section 406, IPC with sentence for a period upto three years or with fine or with both, are: [i] entrusting any person with property or with any dominion over property; [ii] the person entrusted dishonestly misappropriating or converting to his own use that property; or dishonestly using or disposing of that property or wilfully suffering any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust. The expression "entrustment"

carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Entrustment is not necessarily a term of law. It may have different implications in different contexts. In its most general significance, all its imports is handing over the possession for some purpose which may not imply the conferment of any proprietary right therein. The ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit. In Pratibha Rani's case, the majority has extensively considered the words "entrustment" of and "dominion" over the property. All the case law in that behalf was exhaustively considered obviating the necessity to tread once over the same. In order to establish entrustment of dominion over the property, both the majority and minority relied on in particular the judgment of this Court in Velji Raghavji Patel v. State of Maharashtra [(1965) 2 SCR 492] wherein it was held that in order to establish entrustment of dominion over the property to an accused person, mere existence of that person's dominion over the property is not enough. It must be further shown that his dominion was the result of entrustment. The question therein pertained to the entrustment with the dominion over the partnership property by one partner to the other. It was held that the prosecution must establish that the dominion over the assets or particular assets of the partnership was by a special agreement between the parties. The property of the partnership being a partnership asset, every partner has a right o or a dominion over it. It was held that special agreement was necessary to constitute an offence of criminal breach of trust defined under Section 405, IPS. In view of the finding that stridhana property is the exclusive property of the wife on proof that she entrusted the property or dominion over the stridhana property to her husband or any other member of the family, there is no need to establish any further special agreement to establish that the property was given to the husband or other member of the family. It is always a question of fact in each case as to how property came to be entrusted to the husband or any other member of the family by the wife when she left the matrimonial home or was driven out therefrom. No absolute or fixed rule of universal application can be laid down in that behalf. It requires to be established by the complainant or

the prosecution, depending upon the facts and circumstances of the case, as to how and in what manner the entrustment of the stridhana property or dominion over her stridhana came to be made to the husband or any other member of the family or the accused person, as the case may be. We are in respectful agreement with the majority view in Pratibha Rani's case and consequently requires no reconsideration. The next question is; whether the appellant has made out any prima facie case of entrustment in that behalf? A reading of the complaint clearly indicates that her parents entrusted the property to the respondent at the time of her farewell from her parents house in Lucknow. They lived together in matrimonial home in Deli. Three children were born from the wedlock and during that period she had retained the custody of the property. When she left the matrimonial home she had not taken the property with her. She has specifically averred that when she went in October 1978 to Cochin requesting the respondent-husband to take her into matrimonial home along with the children, he promised to take her in the conjugal society and also that he would return the jewellery to her subject to the condition that she should withdraw her application filed under Section 9 of the Hindu Marriage Act for restitution of conjugal rights and accordingly she had withdrawn the application. The learned Single Judge failed to correctly appreciate her evidence recorded under Section 200 of the Code that she made a demand for return of the jewellery and household goods. On the other hand, a fair reading of it would indicate that when she met the respondent in Cochin and requested to take her and children to home he promised to do so on her withdrawing the case for restitution of conjugal rights. Threat the husband promised to return them but he did not keep up his promise. The sequences that followed were that she filed another case for restitution of conjugal rights and an application for maintenance and thereafter she filed the complaint under Section 406, IPC. A fair reading of the averments would clearly indicate that a prima facie case of entrustment of the jewellery and the household goods had been made out. The learned Judge was not right in jumping to the conclusion that the averments made by the respondent in the counter-affidavit disclosed that no entrustment was made of the jewellery, cash and household goods and other movables enumerated in Annexures I and II details of which are not material for our purpose. In the light of the above, we are of the view that a prima facie case of entrustment had been made out by the appellant as

the stridhana properties were not returned to her by the husband. Obviously, therefore, the learned Magistrate, having taken cognizance of the offence, had issued process for appearance of the respondent. It is fairly settled legal position that at the time of taking cognisance of the offence, the Court has to consider only the averments made in the complaint or in the charge-sheet filed under Section 173, as the case may be. It was held in State of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164] that it is not open for the Court to sift or appreciate the evidence at that stage with reference to the material and come to the conclusion that no prima facie case is made out for proceeding further in the matter. It is equally settled law that it is open to the Court, before issuing the process, to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, it is required to find out whether an offence has been made out. On finding that such an offence has been made out and after taking cognizance thereof, process would be issued to the respondent to take further steps in the matters. If it is a charge-sheet filed under Section 173 of the Code, the facts stated by the prosecution in the charge-sheet, on the basis of the evidence collected during investigation, would disclose the offence for which cognisance would be taken by the court to proceed further in the matter. Thus it is not the province of the court at that stage to embark upon and sift the evidence to come to the conclusion whether offence has been made out or not. The learned Judge, therefore, was clearly in error in attempting to sift the evidence with reference to the averments made by the respondent in the counter-affidavit to find out whether or not offence punishable under Section 406, IPC had been made out. The next question that needs to be answered is: whether the complaint filed by the appellant in September 1990 is time barred? Section 468 of the Code prescribes period of limitation. Under sub-section (3) thereof, the period of limitation shall be three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years, Since the offence alleged to have been committed by the respondent is punishable under Section 406, viz., criminal breach of trust, and the punishment of imprisonment which may extend to three years or with fine or with both, the complaint is required to be filed within three years from date of the commission of the offence. It is seen that the appellant has averred in paragraphs 21 and 22 of the complaint that she demanded from the respondent

return of jewellery detailed in Annexure I and household goods mentioned in Annexure II on December 5, 1987 and the respondent flatly refused to return the stridhana of the complainant-wife. In paragraph 22 of the complaint, it is stated that the complainant was forced to leave the matrimonial home in the manner described and the stridhana mentioned in Annexures I and II belonging to the complainant was entrusted to the respondent-accused which he refused to return to the complainant. Thus she has averred that the respondent "has illegally, dishonestly and mala fidely retained and converted it to his own use which is clearly a criminal breach of trust in respect of the aforesaid property". The complaint was admittedly filed on September 10, 1990 meaning within three years from the date of the demand and refusal by the respondent. The learned Judge relied upon her evidence recorded under Section 200 of the Code. The learned counsel for the respondent read out the text of the evidence to establish that the appellant had demanded in October 1986 for return of the jewellery and that the respondent refused to do the same. Thus it constitutes refusal from which date the limitation period began to run and the complaint have been filed in September 1990, is time barred, i.e., beyond three years. That view of the learned Judge is clearly based on the evidence torn of the context without reference to the specific averments made in the complaint and the evidence recorded under section 200 of the Code. As stated earlier, the sequence in which the averments came to be made was the voluntary promise of the respondent and his failure to abide by the promise. It is incongruous to comprehend the demand for return of jewellery etc, at the stage when she was persuading him to take her into matrimonial home. Accordingly, we hold that the complaint was filed within the limitation. The question, therefore, whether it is a continuing offence and limitation began to run everyday loses its relevance, in view of the above finding. The decisions cited in support thereof, viz., Vanka Radhamanohari (Smt.) v. Vanka Venkata Reddy & Ors. [(1993) 3 SCC 4] and Balram Singh vs. Sukhwant Kaur [(1992) Crl. L.J. 792 F.B. (P&H)] hence need not be considered. It is well settled legal position that the High Court should sparingly and cautiously exercise the power under Section 482 of the Code to prevent miscarriage of justice. In State of Himachal Pradesh v. Shri Pirthi Chand & Anr. [JT 1995 (9) 411] two of us [K. Ramaswamy and S.B. Majmudar, JJ.] composing the Bench and in State of U.P. Vs. O.P. Sharma [(1996) 7 SCC 70], a three-

Judge Bench of this Court, reviewed the entire care law on the exercise of power by the High Court under Section 482 of the Code to quash the complaint or the charge-sheet or the First Information Report and held that the High Court would be loath and circumspect to exercise its extraordinary power under Section 482 of the Code or under Article 226 of the Constitution. The Court would consider whether the exercise of the power would advance the cause of justice or it would tantamount to abuse of the process of the Court. Social stability and order require to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon the exercise of the inherent power vested in the Court. Same view was taken in State of Haryana & Ors. v. Bhajan lal & Ors. [(1992) Supp. 1 SCC 355] and G.L. Didwania & Anr. v. Income Tax Officer & Anr. [(1995) Supp. SCC 25] etc. Considered from this perspective, we hold that the High Court was wholly wrong in quashing the complaint/proceedings, under Section 432 of the Code. The appeal is accordingly allowed. The judgment of the High Court is set aside. We make it clear that all the observations in the judgment on merits are only to find out prima facie case whether the High Court would be justified in the exercise of its power under Section 482. The trial Court will have to decide the case on its own merits in the light of the evidence that may be led at the trial without being influenced in any manner by our observations made hereinabove. The trial Court is directed to proceed from the stage the complaint was pending at the time of quashing, to take further steps in accordance with law. PETITIONER: AHMEDABAD WOMEN ACTION GROUP (AWAG) & ORS. Vs. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT: 24/02/1997 BENCH: CJI, SUJATA V. MANOHAR, K. VENKATASWAMIW I T HWRIT PETITION (CIVIL) NO. 196 OF 1996LOK SEVAK SANGH & ORS.V.UNION OF INDIAW I T

HWRIT PETITION (CIVIL) NO. 721 OF 1996YOUNG WOMAN CHRISTIAN ASSOCIATION (YWCA) & ORS.V.UNION OF INDIA ACT: HEADNOTE: JUDGMENT: J U D G M E N T VENKATASWAMI. J. All these Writ Petitions are filed as Public Interest Litigation. In W.P. (C) No. 494/96. the reliefs prayed foe are as follows : (a) to declare muslim Personal Law which allows ploygamy as void as offending Articles 14 and 15 of the Constitution; (b) to declare Muslim Personal Law which enables a Muslim male to give unilateral Talaq to his wife without her consent and without resort to judicial process of courts. as void, offending Articles 13. 14 and 15 of the Constitution; (c) to declare that the mere fact that a Muslim husband takes mote than one wife is an act of cruelty within the meaning of Clause VIII (f) of Section 2 of Dissolution of Muslim Marriages Act. 1939. (d) to declare that muslim Women (Protection of Rights on Divorce Act. 1986 is void as infringing Articles 14 and 15. (e) to further declare that the provisions of Sunni and Shia laws of inheritence which discriminate against females in their share as compared to the share of males of

the same status. void as discriminating against females only on the ground of sex. In writ Petition (CO No. 196/96. the reliefs prayed for are the following:- (a) to declare Sections 2(2). 5 (ii) & (iii), 6 and Explanation to Section 30 of Hindu Succession Act. 1956. as void offending Articles 14 and 15 read with Article 13 of the Constitution of India: (b) to declare Section (2) of Hindu Marriage Act, 1955, as void offending Articles 14 and 15 of the Constitution of India; (c) to declare Sections 3 (2), 6 and 9 of Hindu minority and Guardianship Act read with Sections 6 of Guardians and wards Act void; (d) to declare the unfettered and absolute discretion allowed to a Hindu spouse to make testamentary disposition without providing for an ascertained share of his or her spouse and dependant. void. In writ Petition (C) No. 721/96. the reliefs prayed for are following :- (a) to declare Sections 10 and 34 of India Divorce Act void and also to declare Sections 43 to 48 of Indian Succession Act void. At the outset. we would like to state that these Writ Petitions do not deserve disposal on merits inasmuch as the arguments advanced by the learned Sr. Advocate before us wholly involve issues of State policies with the Court will not ordinarily have any concern. Further. We find that when similar attempts were made, of course by others, on earlier occasions this Court held that the remedy lies somewhere else and not by knocking at the doors of the courts. In Maharishi Avadhesh vs. Union of India (1994 (supp) I SCC /18). This Court white dismissing a Petition under Article 32 of the Constitution held as follows:- "This is a petition by party in person under Article 32 of the Constitution. The praters are two-

fold. The first prayer is to issue a writ of mandamus to the respondents to consider the question of enacting a common Civil Code for all citizens of India. The second prayer is to declare Muslim Women Protection of Right on Divorce) Act, 1986 as void being arbitrary and discriminatory and in violation of Articles 14 and 15 Fundamental Rights and Articles 44. 38, 39 and 39-A of the Constitution of India. The third prayer is to direct the respondents not to enact Shariat Act in respect of those adversely affecting the dignity and right of Muslim Women and against their protection. These are all matters for legislature. The writ petition is dismissed. In Reynold Raiamani and Another vs. Union of India and Another (1982) 2 SCC 474 this Court while dealing with the scope of sections 7 and 10 of the Indian Divorce Act. 1869 held as follows :- 4. It cannot be denied that society is generally interested in maintaining the marriage bond and preserving the matrimonial state with a view to protecting societal stability, the family home and the proper growth and happiness of children of the marriage. legislation for the purpose of dissolving the marriage constitutes a departure from that primary principle, and the legislature is extremely circumspect in setting forth the grounds on which a marriage may be dissolved. The history of all matrimonial legislation will show that at the outset conservative attitudes influenced the grounds on which separation or divorce could be granted. Over the decades, a more liberal attitude has been adopted.

Tostered by a recognition of the need for the individual happiness of the adult parties directly involved. But although the grounds for divorce have been liberalised, they nevertheless continue to form an exception to the general principle favouring the continuation of the marital tie. In our opinion. When a Legislative provision specifies the grounds on which divorce may be granted they constitute the only condition on which the court has jurisdiction to grant divorce. If grounds need to be added to those already specifically set forth in the legislation, that is the business of the legislature and not of the courts. It is another matter that in construing the language in which the grounds are incorporated the courts should give a liberal construction to It. Indeed. We think tat the courts must give the fullest amplitude of meaning to such a provision. But it must be a meaning which the language of the section is capable of holding. It cannot be extended by adding new grounds not enumerated in the section. 6. Miss Thomas appeals to us to adopt a policy of social engineering and to give to Section / the content which has been enacted in Section 28 of the special Marriage Act. 1958 and Section 18-B of the Hindu Marriage Act, 1955, both of which provide for divorce by mutual consent. It is possible to say tat the law relating to Hindu marriages and to marriages governed by the Special Marriage Act Presents a more advanced stage of development in

this area than the Indian Divorce Act. However. Whether a provision for divorce by mutual consent should be included in the Indian Divorce Act is a matter of legislative policy. The courts cannot extend or enlarge legislative policy by adding a provision to the statute which was never enacted there. In Pannalal Bansilal and others vs. State of A.P. and Another (1990 (2) SCC 498) Validity of Sections 15, 16, 1/. 29(5) and 144 of the A.P. Charitable Hindu Religions and endowments Act. 1987 were challenged. Inter alia this Court held :- The first question is whether it is necessary that the legislature should make law uniformly applicable to all religions or charitable or public institutions and endowments established or maintained by people professing all religions. In a pluralist society like India in which people have faith in their respective religions, people of India professing different religions faiths, born in different castes, sex or sub-sections in the society speaking different languages and dialects in different regions and provided a secular Constitution to integrate all sections of the society as a united Bharat. The directive Principles of the Constitution themselves visualise diversity and attempted to foster uniformity among people of different rates. A uniform law. Though is ..................... enactment thereof. In one go perhaps may be counter-productive to unity and integrity of the nation. In a democracy governed by rule of law. gradual progressive change and order should be brought

about. Making law of amendment to a law is a slow process and the legislature attempts to remedy where the need is felt most acute. It would, therefore, be inexpedient and incorrect to think that all laws have to be made uniformly applicable to all people in one go. The mischief or defect which is most acute can be remedied by process of law at stages. In State of Bombay vs. Narasu Appa Mali (AIR 1952 Bombay 84), Chagla, C.J., while considering the validity of the Bombay Prevention of Hindu Bigamous Marriages Act, 1946, observed as follows :- "A question has been raised as to whether it is for the Legislature to decide what constitutes social reform. It must not be forgotten that in democracy the Legislature is constituted by the chosen representatives of the people. They are responsible for the welfare of the State and it is for them to lay down the policy that the State should pursue Therefore. It is for them to determine what legislation to put up on the statute bock in order to advance the welfare of the State. It was further observed that :- "There can be no doubt that the Muslims have been excluded from the operation of the Act in question. Even Section 494, Penal Code, Which makes bigamy an offence applies to Parsis, Christians and others, but not to Muslims because polygamy is recognised as a valid institution when a Muslim male marries more than one wife. The question that we have to consider is whether there is any reasonable basis for creating the Muslims as a separate class to which the laws prohibiting polygamy should not apply. Now. It

is an historic fact that both the Muslims and the Hindus in this country have their respective religious texts and which embody their own distinctive evolution and which are coloured by their own distinctive backgrounds. Article 44 itself recognises separate and distinctive personal laws because it lays down as a directive to be achieved that within a measurable time India should enjoy the privilege of a common uniform Civil Code applicable to all its citizens irrespective of race or religion. Therefore, what the Legislature has attempted to do by the Hindu Bigamous Marriages Act is to introduce social reform lin respect of a particular community having its own personal law. The institution of marriage is differently looked upon by the Hindus and the Muslims. Whereas to the former, it is a sacrament, to the latter it is a matter of contract. That is also the reason why the question of the dissolution of marriage is differently tackled by the two religions. While the Muslim law admits of easy divorce, Hindu marriage is considered indissoluble and it is only recently that the State passed legislation permitting divorce among Hindus. The State was also entitled to consider the educational permitting divorce among Hindus. The State was also entitled to consider the educational development of the two communities. One community might be prepared to accept and work social reform; another may not yet be prepared for it: and Art. 14 does not lay down that any legislation

that the State may be communitywise. From these considerations it follows that if there is a discirmination against the Hindu in the applicability of the Hindus Bigamous Marriages Act. that discrimination is not based only upon ground of religion. Equally so if the law with regard to bigamous marriages is not uniform, the difference and distinction is not arbitrary or capricious, but is based upon reasonable grounds. Gajendragadkar J., in his concurrent but separate opinion expressed the same view by observing as follows:- "The next question is whether this Act discriminates against the Hindus in reference to the Christian and the Parsi citizens of this State, in so the specially severe provisions as to punishment and procedure. It is true that whereas under the general criminal law the offence of bigamy is cognizable only on the complaint of the wife, the impugned Act makes it cognizable so that the complaint of the wife, is unnecessary to start the proceedings against the offending husband. The offence of bigamy is compoundable under the general criminal law: but not under the impugned Act ; and the word "abettor under the impugned Act is also wider than this question, however, it must be remembered that the evil of bigamy prevailing amongst the Hindus could not be effectively put down unless the offence was made cognizable and unless amongst the abettors were included ever the priests who officiate at Hindu Marriages. As I have already mentioned, Hindu marriage is a love and devotion of

the Hindu wife for her husband id well known. Legislature may well have thought that it would be futile to make the offence of Hindu bigamy punishable at the instance of the wife because Hindu wives may not come forward with any complaint at all. Among the Christians and the Parsis, monogamy has been practised for several years and marriage amongst them is a matter of contract. Amongst them divorce is permissible, whereas amongst the Hindus it was not permissible for so many years. If the Legislature acting on these considerations wanted to provide for a special procedure in dealing with bigamous marriages amongst the Hindus it cannot be said that the Legislature was discriminating against the Hindus only on the ground of religion. It was for the Legislature to take into account the social customs and beliefs of the Hindus and other relevant considerations before deciding whether it was necessary to provide for special provisions in dealing with bigamous marriages amongst them. That clearly is the province of the Legislature and with the propriety of their views or their wisdom Courts are not concerned. I, therefore, hold that there is no substance in the argument that the penal provisions of the impugned Act constitute discrimination against the Hindus only on the ground of religion. There is one more point with which I would like to deal. It has been argued before us that the impugned Act should have been made State of Bombay. It is said that if the impugned Act constitutes a

measure of social reform. There is no reason why the State Legislature should not have given the Mahomedan community the benefit of this social reform. The Union of India is a secular State and the State Legislature was wrong in making a distinction between its citizens on the ground of religious differences and in applying the provisions of the impugned Act only to Hindus. In part this argument is political and as such we are not concerned with it. But part of the argument is based upon the provisions of Article 14 of the Constitution of India and it is necessary to deal with this aspect of the argument. The learned judge further observed as follows :- "But it is argued that even as to this social reform, the State Legislature should have made it all pervasive and should not have left the Mahomedans outside its ambit. That. as I have already said, is partly a political, and partly a legal argument. Whether it was expedient to make this Act applicable to the Mahomedans as well as to the Hindus would be a matter for the Legislature to consider. It is now well settled that the equality before the law which is guaranteed by Article 14 is not offended by the impugned Act if the Classification which the Act makes is based on reasonable and rational considerations. It is not obligatory in taking gradual steps for social welfare and reform does not introduce distinctions or classifications which are unreasonable, irrational or oppressive, it cannot be said that the equality before law is offended. The State Legislature may

have thought that the Hindu community was more ripe for the reform in question. Social reformers amongst the Hindus have years past and the social conscience of the Hindus, according to the Legislature, may have been mire in tune with the spirit of the proposed reform. Besides, amongst the Mahomedans divorce has always been permissible and marriage amongst them is a matter of contract. If the State Legislature acting on such considerations decided to enforce this reform in the first instance amongst the Hindus, it would be impossible in my opinion to hold that in confining the impugned Act to Hindus as defined by the Act, it has violated the equality before law as guaranteed by Article 14. In my opinion, therefore, the argument that Article 14 is violated by the impugned Act mus fail." Gajendragadkar j. also expressed his opinion on the question whether Part III of the Constitution applies to personal laws. The learned Judge observed as follows :- "The Constitution of India itself recognises the existence of these personal laws in terms when it deals with the topic falling under personal law in item 5 in the Concurrent List-List III. This item deals with the topics of marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law. Thus it is competent either to the State or the Union Legislature to legislate on topics

falling within the purview of the personal law is not used in Art. 13, because, in my opinion, the framers of the Constitution wanted to leave the personal laws outside the ambit of Part III of the Constitution. They must have been aware that these personal laws needed to be reformed in many material particulars and in fact they wanted to abolish these different personal laws and to evolve one common code. Yet they did not wish that the provisions of the personal laws should be challenged by reason of the fundamental rights guaranteed in Part III of the constitution and so they did not intend to include these personal laws within the definition of the expression laws in force. Therefore, I agree with the learned Chief Justice in holding that the personal laws do not fail within Article 13(i) at all." In Krishna Singh vs. Mathura Ahir and others (AIR 1980 SC 707) this Court while considering the question whether a Sudra could be ordained to a religious order and become a Sanyasi or Yati and, therefore, installed as a Mahant of the Garwaghat Math according to the tenets of the Sant Mat Sampradaya, inter alia held as follows :- "It would be convenient, at the outset, to deal with the view expressed by the High Court that the strict rule enjoined by the Smriti writers as a result of which Sudras were considered to be incapable of entering the order of yati or sanyasi, has ceased to be valid because of the fundamental rights guaranteed under Part III of the Constitution. In our opinion, the learned Judges failed to appreciate that Part III of the Constitution does not touch upon

the personal laws of the parties. In applying the personal laws of the parties. he could not introduce his own concepts of the law as derived from recognised and authoritative sources of Hindu law, i.e. Smritis and commentaries referred to, as interpreted in the judgment of various High Courts, except where such law is altered by any usage or custom or is modified or abrogated by statute, In Sarla Mudgal and others vs. union of India and Others (1995) 3 SCC 635 this Court observed :- "Article 33 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Article 25, 26 and 27. The personal of the Hindus. such as relating to marriage, succession and the like have all a sacramental origin. In the same manner as in the case of the Muslims or the Christians. The Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a "common civil code" for the whole of India. However, none of the decisions referred to above were placed before the Division Bench as they find no mention in the separate judgments of Kuldip Singh, J. and R.M. Sahai, J. That is because there was no occasion to consider whether Part III of the constitution of India had any application to personal laws or not. Suffice it to say that we are

satisfied that the arguments advanced before us as pointed out at the outset involve issues. in our opinion, to by dealt with by the legislature. We may further point out that the question regarding the desirability of enacting a Uniform Civil Code did not directly arise in that case. The questions which were formulated for decision by Kuldip Singh, J. in his judgment were these : "[W]hether a Hindu husband, married under Hindu law, by embracing Islam, can solemnise second marriage? Whether such a marriage without having the first marriage dissolved under law, would be a valid marriage dissolved under law, would be a valid marriage dissolved under law, would be a valid marriage qua the first wife who continues to be Hindu? Whether the apostate husband would be guilty of the offence under Section 494 of the Indian Penal Code (IPC)?" Sahai. J. in his separate but concurring judgment referred to the necessity for a Uniform Civil Code and said: "The desirability of Uniform Code can hardly be doubted. But it can concretize only when social climate is properly built up by elite of the society; statesmen amongst leaders who instead of gaining personal mileage rise above and awaken the masses to accept the change." Sahai. J. was of the opinion that while it was desirable to have a Uniform Civil Code, the time was yet not ripe and the issue should be entrusted to the Law Commission which may examine the same in consultation with the Minorities Commission. That is why when the Court drew up the final order signed by both the learned Judges it said "the writ petitions are allowed in terms of the answer to the questions posed in the opinion of Kuldip Singh, J." These questions we have extracted earlier and the decision was confined to conclusions reached thereon whereas the observations on the desirability of enacting the Uniform Civil Code were incidentally made. In Madhu Kishwar & Others vs. State of Bihar & Others

(1996 (5) SCC 125). this Court while considering the challenge made to certain provisions of the Chotanagpur Tenancy Act, 1908, observed as follows:- "It is worthwhile to account some legislation on the subject. The Hindu Succession Act governs and prescribes rules of succession applicable to a large majority of Indians being Hindus, Sikhs, Buddhists, Jains etc. whereunder since 1956, if not earlier, the female heir is put on a par with a male heir. Next in the line of numbers is the Shariat law, applicable to Muslims, whereunder the female heir has an unequal share in the inheritance, by and large half of what a male gets. Then comes the Indian Succession Act which applies to Christians and by and large to people not covered under the aforesaid two laws, conferring in a certain manner heirship on females as also males. Certain chapters thereof are not made applicable to certain communities. Sub-section (2) of Section 2 of the Hindu Succession Act significantly provides that nothing contained in the Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution, unless otherwise directed by the Central Government by means of a notification in the Official Gazette. Section 3(2) further provides that in the Act, unless the context otherwise requires, words importing the masculine gender shall not be taken to include females. General rule of legislative practice is that unless there is anything repugnant in the subject or context, words importing the masculine gender shall not be

taken to include females. General rule of legislative practice is that unless there is anything repugnant in the subject or context, words importing the masculine gender used in statutes are to be taken to include females. Attention be drawn to Section 13 of the General Clauses Act. But in matters of succession the general rule of plurality would have to be applied with circumspection. The afore provision thus appears to have been inserted ex abundanti cautela. Even under Section 3 of the Indian Succession Act, the State Government is empowered to exempt any race, sect or tripe from the operation of the Act and the tribes of Mundas, Oraons, Santhals etc. in the State of Bihar, who are included in our concern, have been so exempted. Thus neither the Hindu Succession Act, nor even the Shariat law is applicable to the custom-governed tribals. And custom, as is well recognized, varies from people to people and region to region." "In the fact of these divisions and visible barricades put up by the sensitive tribal people valuing their own customs, traditions and usages, judicially enforcing on them the principles of personal laws applicable to others, on an elitist approach or on equality principle, by judicial activism, is a difficult and mind-boggling effort. Brother K. Ramaswamy, J. seems to have taken the view that Indian legislatures (and Governments too) would not prompt themselves to activate in this direction because of political reasons and in this situation, an

activist court. apolitical as it avowedly is, could get into action and legislate broadly on the lines as suggested by the petitioners in their written submissions. However laudable, desirable and attractive the result may seem, it has happily been viewed by our learned brother that an activist court is not fully equipped to cope with the details and intricacies of the legislative subject and can at best advise and focus attention on the State polity on the problem and shake it from its slumber, goading it to awaken, march and reach the goal. For, in whatever measure be the concern of the court, it compulsively needs to apply, motion, described in judicial parlance as self- restraint. We agree therefore with brother K. Ramaswamy, J. as summed up by him in the paragraph ending on p.36 (para 46) of his judgment that under the circumstances it is not desirable to declare the customs of tribal inhabitants as offending Articles 14, 45 and 21 of the Constitution and each case must be examined when full facts are placed before the court. With regard to the statutory provisions of the Act, he has proposed to the reading down of Sections 7 and 8 in order to preserve their constitutionality. This approach is available from p.36 (paras 47, 48) onwards of his judgment. The words "male descendant wherever occurring , would include "female descendants". It is also proposed that even though the provisions of the Hindu Succession Act, 1925 in terms would not apply to the Schedule Tribes, their general principles composing

of justice, equity and fair play would apply to them. On this basis it has been proposed to take the view that the Scheduled Tribe women would succeed to the estate of paternal parent, brother or husband as heirs by intestate succession and inherit the property in equal shares with the male heir with absolute rights as per the principles of the Hindu Succession Act as also the Indian Succession Act. However, much we may like the law to be so we regret our inability to subscribe to the means in achieving such objective. If this be the route of return on the court's entering the thicket, it would follow a beeline for similar claims in diverse situations, not stopping at tribal definitions, and a deafening uproar to bring other systems of law in line with the line with the systems of law in line with the Hindu Succession Act and the Indian Succession Act as models. Rules of succession are, indeed susceptible of providing differential treatment, not necessarily equal. Non-uniformities would not in all events violate Article 14. Judge-made amendments to provisions, should normally be avoided. We are thus constrained to take this view. even though it may appear to be conservative for adopting a cautious approach, and the one proposed by our learned brother is, regretfully not acceptable to us," As a matter of fact the constitutionality of section 10 of the Indian Divorce Act was challenged by an aggrieved husband and this Court in Anil Kumar Mahsi vs. Union of Indian of India and Another (1994) 5 SCC 704 held follows :- "Taking into consideration the

muscularly weaker physique of the woman, her general vulnerable physical and social condition and her defensive and non-aggressive nature and role particularly in this country, the legislature can hardly be faulted if the said two grounds are made available to the wife and not to the husband for seeking dissolution of the marriage. For the same reasons, it can hardly be said that on that account the provisions of Section 10 of the Act are discriminatory as against the husband. We, therefore, find that there is no substance in the challenge by the petitioner-husband to the vires of the provisions of Section 10 as being discriminatory against the husband and, therefore. violative of Article 14 of the Constitution." So far as the challenge to the Muslim Women (Protection of Rights on Divorce) Act, 1986 is concerned, we understand that the said issue is pending before the Constitution Bench. we, therefore, do not see any reason to multiply proceedings in that behalf. In the result and having regard to the earlier decisions of this Court noticed above, we decline to entertain these writ petitions. Accordingly, these writ petitions are dismissed. PETITIONER: SMT. KANCHAN DEVI Vs. RESPONDENT: PROMOD KUMAR MITTAL & ANR. DATE OF JUDGMENT: 03/04/1996 BENCH: ANAND, A.S. (J) BENCH:

ANAND, A.S. (J) FAIZAN UDDIN (J) CITATION: JT 1996 (5) 655 1996 SCALE (3)293 ACT: HEADNOTE: JUDGMENT: J U D G M E N T DR. ANAND.J. Leave granted. The marriage between the parties was solemnised on 18.4.73. According to the appellant she was thrown out of the matrimonial home, after she gave birth to four female children one after the other which annoyed her in-laws. Thereafter the respondent husband neglected and refused to maintain her which compelled her to file an application for maintenence under Section 125 Cr.P.C. The trial court allowed the application and granted her Rs.500/- p.m. as maintenanced In appeal, the order of maintenance was maintained but the amount was reduced to Rs.440/ per month. The respondent moved the High Court in revision and on 6.10.82 the High Court remanded the matter for rehearing. During the pendency of the application in the trial court, it was dismissed in default and on appellant's moving an application for restoration, tha same was restored by ths trial court. A revision petition filed by the respondent against the order of restoration was dismissed. Subsequently, the High Court also dismissed an application filed under Section 482 Cr.P.C. by the husband on 16.1.1984. While the matters rested thus it transpires from the record that the respondent husband had also filed a petition for divorce and obtained an ex-parte decres of divorce on 22.10.80. on a petition filed by the appellant, the ex-parte decrse of divorce was set aside on 9.9.83 and subsequently the petition for divorce filed by ths respondent was finally dismissed on 13.10.83. There is variance between the parties as to whether the mater is pending in appeal at the instance

of the husband. No payment, in ths case under Section 125 Gr.P.C. was evar made to ths appellant thereby compelling the wife to seek execution of the order. The respondent thereupon brought the appellant back to his house. It appears that a compromise was then arrived at between the parties with regard to the order of maintenance made under Section 125 Cr.P.C. and as Per the terms of the compromise, the appellant agreed to accept Rs.200/- per month as maintenance arrears with effect from 10.2.1984 as against Rs.440/- p.m. awarded in her favour. The appellant, alleges that thereafter she was once again thrown out of the matrimonial home by the respondent husband after he had made her to sign the compromise deed. She filed an application under Section 127 Cr.P.C. on 10.12.84. The application was dismissed in default on 11.8.86 but on a petition filed by the appellant it was restored by the trial court on 29.8.86. A revision filed by the respondent before the Sessions Judge was dismissed on 9.4.87. An interim order came to be made by the trial court on 24.4..87 enhancing the maintenance amount by Rs.150/- per month. The appellant moved the High Court through a petition under Section 482 Cr.P.C. and on 4.11.87 the High Court quashed the order of restoration, the order of the Sessions Judge dismissing the revision filed by the respondent as also the order of enhancement of maintenance granted in favour of the appellant. This appeal calls in question the said order of the High Court dated 4.11.87. During the pendency of the proceedings in this Court, an effort was made for reconciliation between the parties. It was admitted by learned counsel for the parties that the Parties have not been living together for the last more than one decade as husband and wife and their relationship was totally strained and bitter against each other. On 7.12.95 it appeared to us that there was no possibility of any reconciliation between the parties and that the marriage between them had irretrievably broken down. The respondent through his learned counsel categorically submitted that there was no possibility of the parties remaining together as husband and wife and that position was not disputed by learned counsel appearing for the appellants. On 7.12.95, during the course of arguments in the Court, the appellant made the following statement in this Court: "I have no objection to a decree of divorce being made bacause my marriage with the respondent has irretrievably broken down provided,

however, the respondent pays a sum of Rs.60000/- (rupees sixty thousand) within twelve weeks from today. My agreement to divorce by mutual consent is subject to that condition and in the event that amount is not paid, I shall not be bound by this statement, as it is without prejudice to my other rights in the case. On the amount being paid, the dispute arising out of the petition under Section 125 Cr.P.C. shall also stand settled." The respondent husband also made a statement to the following effect: "Petitioner Smt. Kanchan Devi is my wife. The relations between her and myself as husband and wife have irretrivably broken down. I have heard her statement made in the court today. I agree with her statement and shall pay a sum of Rs.60000/- (rupees sixty thousand) within twelve weeks from today to her. That amount shall be in settlement of all the disputes arising out of the maintenance proceedings under Section 125 Cr.P.C. as well as for grant of divorce on mutual consent. On the payment of the amount to her, the parties should withdraw all the pending cases against each other arising out of matrimonial proceedings or the maintenance proceedings." On 18.3.1996 learned counsel for the parties submitted that a settlement had been arrived at and the terms of the memorandum of settlements reading thus was filed in the court on 18.3.96: "1. We agree that our marriage be set aside by a decree of divorce on payment by the respondent of a sum of Rs.60000/- Disputes arising out of petition under Section 125 Cr.P.C. also stand settled.

2. Parties agree that all pending cases against each other arising out of matrimonial proceedings or maintenance proceedings stand terminated." In view of the peculiar facts and circumstances of the case and being satisfied that the marriage between the appellant and the respondent has irretrievably broken dewn and that there ii no Possibility of reconciliation, we in exercise of our powers under Article 142 of the Constitution of India hereby direct that the marriage between the appellant and the respondent shall stand dissolved by a decrse of divorce. All pending cases arising out of the matrimonial proceedings and the maintenance proceedings under Section 125 Cr.P.C. pending between the parties shall stand disposed of and consigned to the records in the respective courts on being moved by either of the parties by providing a copy of this order, which has settled all those disputes in terms of the settlement. This appeal is disposed of in the above terms. No costs. Before parting with the judgment we wish to record, as admitted before us, that all the four daughters of the parties are living with the husband and he has been maintaining them ever since. He shall continue to do so and the welfare of the children shall be property taken care of. A reasonable opportunity to the wife to meet the children, if she express any such desire in writing to the husband, shall be provided but the said meetings shall take place at the residence of the husband and that too only on prior arrangements. PETITIONER: GURMIT KAUR Vs. RESPONDENT: SURJIT SINGH @ JEET SINGH DATE OF JUDGMENT28/11/1995 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. MAJMUDAR S.B. (J)

CITATION: 1996 SCC (1) 39 JT 1995 (9) 138 1995 SCALE (6)739 ACT: HEADNOTE: JUDGMENT: O R D E R Delay condoned. Leave granted. The appellant was married to the respondent in the year 1971. She filed an application under Section 125, Code of Criminal Procedure, 1973 [for short, "the Code"] for maintenance on July 21, 1988. The learned Magistrate by order dated February 28, 1990 granted a sum of Rs.100/- per month, i.e., Rs.200/- to the wife and Rs.100/- to his minor son with effect from the date of the order. On revision, the learned Additional Sessions Judge, Kapurthala held that the wife was not entitled to the maintenance and granted Rs.100/- per month only in favour of the son. By its order dated July 2, 1991, the High Court confirmed the same on the ground that the appellant was residing separately by mutual consent and that, therefore, she is not entitled to the maintenance. The maintenance to the son was enhanced to Rs.150/- per month. Thus this appeal by special leave. We have seen the agreement for divorce by mutual consent under which the parties have settled their terms. The parties have not challenged the validity of the agreement of divorce. Therefore, we proceed on the premise that it is a valid agreement and the appellant has stated thereunder that due to irrecoverable differences between her and her husband, she has no objection to the divorce and she has no claim or any demand from him. She has also stated that the respondent is at liberty to marry anyone of his choice. He accordingly married another lady. Section 125 [4] of the Code provides as under: "No wife shall be entitled to receive an allowance from her husband

under this Section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent." The concept of living separately by mutual consent arises so long as the marriage subsists and the parties agree to live separately by consent. In other words, during the subsistance of the marriage, no party is entitled to lay any claim for maintenance from the other party. In view of the divorce agreement referred to hereinabove, the marital relations have come to a terminus. By virtue thereof, the respondent had already contracted the second marriage. In other words, the first marriage has been put to an end. The appellant thereby became entitled to claim maintenance and will continue to do so, so long as she remains unmarried and she is unable to maintain herself. It is contended that the appellant is having two kanals of land and that, therefore, she is not totally dependent on the respondent. This aspect of the matter was considered by the learned Magistrate and after due consideration, he awarded the sum of Rs.200/- towards maintenance to the appellant and Rs.100/- to the minor son. Therefore, the mere fact that she is having two kanals of land is not a sufficient ground to disentitle her to receive maintenance. The appeal is accordingly allowed. The orders of the Additional Sessions Judge and the High Court to the extent of maintenance to the appellant are set aside and that of the Magistrate is confirmed. In other words, the appellant and her minor son are entitled to Rs.200/- and Rs.150/- per month respectively in terms of the order of the learned Magistrate and the High Court for maintenance of the son. PETITIONER: SMT. VANAMALA Vs. RESPONDENT: SHRI H.M.RANGANATHA BHATTA DATE OF JUDGMENT27/07/1995 BENCH: AHMADI A.M. (CJ) BENCH:

AHMADI A.M. (CJ) SEN, S.C. (J) CITATION: 1995 SCC (5) 299 JT 1995 (5) 670 1995 SCALE (4)660 ACT: HEADNOTE: JUDGMENT: THE 27TH DAY OF JULY, 1995 PRESENT: Hon'ble the Chief Justice Hon'ble the Mr. Justice S.C.Sen Mr. S. N. Bhat, Adv. for the Appellant Mr. K. R. Nagaraja, Adv. for the Respondent. J U D G M E N T The following Judgment of the Court was delivered: Smt. Vanamala V. Shri H.M. Ranganatha Bhatta J U D G M E N T AHMADI, CJI Special leave granted. The facts in brief reveal that the appellant married the respondent some time in 1970 and then gave birth to two issues from the said wedlock. Unfortunately, her married life was not smooth and in 1980 divorce by mutual consent, was obtained under Section 13-B of the Hindu Marriage Act. While granting divorce by mutual consent, no order in regard to maintenance or alimony was made. The decree is silent on that count. Few years later the appellant filed an application under section 125 of the Code (hereinafter called 'the Code') seeking maintenace from the respondent. The learned Magistrate dismissed the application holding that a divorcee woman was not entitled to maintenance once it is found that the divorce was by mutual consent. Against that order the appellant filed a Revision Application to the Sessions Court. The learned Sessions Judge came to the

conclusion that the appellant was entitled to maintenance notwithstanding the divorce by mutual consent and remanded the matter to the Trial Court for determining the quantum of maintenance. Against this order of the learned Sessions Judge, the respondent preferred a Revision Application before the High Court and the High Court by the impugned judgment and order dated 19.8.1991 set aside the order of the learned Sessions judge upholding the view taken by the learned Magistrate and dismissed the application. It is against that order that the present appeal has been preferred. Section 125 of the Code makes provision for the grant of maintenance to wives, chaildren and parents.Sub-section (1) of section 125 inter alia says that if any person having sufficient means neglects or refuses to maintain his wife unable to maintain herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife not exceeding Rs.500/- in the whole, as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct. Clause (b) of the explanation to the sub-section defines the expression 'wife' to include a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. In the instant case it is not contended by the respondent that the appellant has remarried after the decree of divorce was obtained under Section 13-B of the Hindu Marriage Act. It is also not in dispute that the appellant was the legally wedded wife of the respondent prior to the passing of the decree of divorce. By virtue of the definition referred to above she would, therefore, be entitled to maintenance if she could show that the respondent has neglected or refused to maintain her. Counsel for the respondent, however,invited our attention to sub-section (4) of Section 125, which reads as under:- (4) No wife shall be entitled to receive an allowance from her husband under this Section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. On a plain reading of this Section it seems fairly clear that the expression 'wife' in the said sub-section does not have the extended meaning of including a woman who has been

divorced. This is for the obvious reason that unless there is a relationship of husband and wife there can be no question of a divorcee woman living in adultery or without sufficient reason refusing to live with her husband. After divorce where is the occasion for the women to live with her husband? Similarly there would be no question of the husband and wife living separately by mutual consent because after divorce there is no need for consent to live separately. In the context, therefore, sub-section (4) of Section 125 does not apply to the case of a woman who has been divorced or who has obtained a decree for divorce. In our view, therefore, this contention is not well founded. Counsel for the appellant also pointed out that some of the High Courts had taken a similar view. Reference was made to the case of Kongini Balan Vs. M. Visalakshy, 1986 (92) Criminal Law Journal 697 (Kerala), wherein it was held that a wife who obtains a divorce by mutual consent cannot be denied maintenance by virtue of Section 125 (4) of the Code. Similar view was taken in Krishan Kumar Vs. Kiran, 1 (1991) DMC 248 (Madhya Pradesh) wherein it was held that the expression 'living separately by mutual consent' does not cover cases of those living separately due to divorce. The same view was expressed in M. Ramakrishna Reddy Vs. T. Jayamma and Another, 1992 (98) Criminal Law Journal 1368. In that case divorce was obtained by mutual consent on the ground of incompatibility and thereafter the woman was living separately, it was held that this could not be construed to be an agreement for living separately by mutual consent and hence the woman was entitled to maintenance. We think these decisions are in conformity with the plain language of sub-section (4) of section 125 which we have construed hereinbefore. The contention raised by the counsel for the husband is, therefore, unsustainable. The High Court was, therefore, clearly wrong in reversing the order passed by the Sessions Judge. In the result, this appeal succeeds, The impugned order of the High Court dated 19th August, 1991 is set aside. The order of the learned Sessions Judge dated 5th September,1988 is restored. The respondent will pay Rs.5,000/- by way of cost. PETITIONER: SMT. CHAND DHAWAN Vs. RESPONDENT:

JAWAHARLAL DHAWAN DATE OF JUDGMENT11/06/1993 BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. YOGESHWAR DAYAL (J) CITATION: 1993 SCR (3) 954 1993 SCC (3) 406 JT 1993 (4) 22 1993 SCALE (3)1 ACT: % Hindu Marriage Act, 1955-S. 25 and Ss. 9 to 14, 24 & 28-`Any decree' in S. 25-Dismissing of matrimonial petition, held, does not constitute `only decree' for award of permanent maintenance or alimony--Marital status has to be affected or disrupted for maintenance to be awarded--Evidence Act, 1862, s. 41 Hindu Marriage Act, 1955--S.25-Hindu Adoptions and Maintenance Act, 1956--S.18--Held, Court cannot grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other-Code of Criminal Procedure 1973, s. 125. Interpretation of Statutes-Hindu Marriage Act. 1955-S. 25- Hindu Adoptions and Maintenance Act, 1956-S. 18-Held, where both statutes codified and clear on their subjects, liberality of interpretation cannot permit interchangeabil- ity so as to destroy distinction. HEADNOTE: The parties were married in 1972 in Punjab. In 1985, a petition for divorce by mutual consent was filed in court at Amritsar The appellant-wife alleged that she was not a consenting party, and the petition was dismissed in 1987 following an agreement on the basis of which she would be put back in the matrimonial home. However, barely three months later, the respondent husband filed a regular petition for divorce at Ghaziabad inter alia alleging adultery against his wife. The appellant-wife refuted the

charge. The Court granted her maintenance pendente lite at Rs. 1,000 p.m. The husband not paving this amount, the divorce proceedings stand stayed. On 22nd March, 1990 the appellant moved the District judge, Amritsar and was granted Rs. 6,000as litigation expenses and Rs. 2,000as maintenance pendente lite from the date of application under S. 24. She also claimed permanent alimony and maintenance under S. 25 of the Hindu Marriage Act, 1955. On appeal, the High Court held that an application under S. 25 was not 955 maintainable as the matrimonial court at amritsar had not passed any decree for restitution of conjugal rights, judicial separation, nullity or divorce. Sequelly it quashed the order under S. 24 of the Act. Dismissing the appeal, this Court HELD:The right of permanent maintenance in favour of the husband or the wife is dependent (in the Court passing a degree of the kind envisaged under Ss. 9to 14 of the Act. In (other words, without the marital status being affected or disrupted by the matrimonial court under the Hindu Marriage Act the claim (of permanent alimony was not to be valid as ancilliary or incidental to such affectation or disruption. Kadia Martial Purshotham v. Kadia Lilavati Gokaldas AIR 1961 Guj 202; Shantaram Gopalshet Narkar v. Hirabai, AIR 1962 Bom 27 Minarani Majumdar v. Dasarath Majumdar AIR 1963 Cal 428; Shantaram Dinkar Karnik v. Malti Shantaram Karnik AIR 1964 Bom 83; Akasam Chinna Babu v.Akasam Parbati, AIR 1967 Ori 163; Gurcharan Kaur v. Ram Chand, AIR 1979 P & H 206; Darshan Singh v. Mst. Daso., AIR 1980 Raj 102; Smt. Sushama v. Satish Chander, AIR 1984 Del 1; Vinod Chandra Sharma v. Smt. Rajesh Pathak, AIR 1988 All 150 and Ranganatham v. Shyamala AIR 1990 Mad 1, affirmed. Smt. Swaran Lata v.Sukhvinder Kumar (1986) 1 Hindu LR 363; Sadanand Sahadeo Rawool v. Sulochana Sadanand Rawool, AIR 1989 Bom 220; Surendra Singh Chauhan v. Mamta Chauhan, 11 1990 Divorce & Matrimonial Cases 208; Modilal kalaramji Jain v. Lakshmi Modilal Jain AlR 1991 Bom 440; and Shilla Jagannadha Prasad v. Smt. Shilla Lalitha Kumari 1988 Hindu LR 26, overruled. Durga Das v. Smt. Tara Rani, AIR & H 141, referred to. 2.A Court intervening under the Hindu Marriage Act undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at the juncture when the marital status is affected or disrupted. It also

retains the power subsequently to be invoked on application by a party entitled to relief. A nd such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant. 3.While sustaining her marriage and preserving her marital status, a Hindu wife's claim to maintenance is codified is S.18 of the Hindu Adoptions 956 and Maintenance Act, 1956 and must necessarily be agitated thereunder. 4.The court is not at liberty to grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter-changeability cannot be permitted so as to destroy the distinction on the subject of maintenance. Carew, & Co. v. Union of India [1975] 2 SCC 791 and Motor Owners' Insurance Co. Ltd. v. Jadavjit Keshavji Modi [1981] 4 SCC 660, referred to. 5.When distinctive claims are covered distinctly under two different statutes, choosing of one forum or the other, are not mere procedural technicalities or irregularities. These are matters which go to the root of the jurisdiction. The matrimonial court, a court of special jurisdiction. is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree which implies that unless it goes onwards, Moves or leads through, to affect or disrupt the marital status between the parties. By rejecting a claim, the matrimonial court does make an appealable decree. in terms of section 28, but neither affects nor disrupts the marriage. It certainly does not pass a decree in terms of section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or to take away any legal character or status. JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2653-54 of 1991. From the Judgment and Order dated 15.2.91 of the Punjab and Haryana High Court in Civil Revision Nos. 2998 and 2919 of 1990. D.V. Sehgal and N.K. Aggarwal for the Appellant. G.L, Saghi, P.P. Tripathi and Suchinto Chatterji for the

Respondent. The Judgment of the Court was delivered by PUNCHHI, J. The point which requires determination in these two appeals, arising from a common judgment and order dated February 15, 1991 of a Division Bench of the Punjab and Haryana High Court at Chandigarh, in Civil Revision Nos. 2918 and 2919 of 1990 is, whether the payment of alimony is admissible 957 without the relationship between the spouses being terminated. The wife-appellant was married to the husband-respondent on September 19,1972 at Amritsar, in the State of Punjab. Three children were born from the wed lock and are at present living with their father. Out of them two are males, their respective years of birth being 1973 and 1980 and the third is a female born in the year 1976. On 28-8- 1985 a petition under section 13-B of Hindu Marriage Act, 1955 (hereafter referred to as the Act') seeking divorce by mutual consent was received by the court of the Additional District Judge, Amritsar purported to have been failed jointly by the two spouses. It was stated therein that the parties had been living separately for over a year due to incompatibility of temperament and their effort to settle their differences amongst themselves, or with the aid of friends and relatives, had been futile. On receipt the petition was kept pending, as was the requirement of section 13-B of the Act. According to the wife she was not a consenting party to the filing of such petition at all. Her version was that the husband had duped her in obtaining her signatures on blank papers on a false pretext and in turn had employed those papers in the said petition for divorce. On coming toknow of the pendency of the petition, she immediately filed objections before the court, obstructing the grant of petition. The respective pleas of the parties were put to issue and evidence was led. According to the wife some understanding later was reached between the parties on the basis of which she was to be put back in the matrimonial home and thus the petition was got dismissed on 19-8-1987, on the basis of the joint statement of the parties before the Additional District Judge, Amritsar which was to the following effect: "We agree that applications under sections 24 and 25 of Hindu Marriage Act may be dismissed. We also agree that since the parties have not been able to make a joint statement within a

period of six months of the original petition, the main petition under section 13B of the Hindu Marriage Act may be dismissed. Otherwise too, the parties to the marriage do not want to proceed with their main application under section 13 of the Hindu Marriage Act and the same be also dismissed and the parties may be left to bear their own costs. On the basis of the above statement, the court passed the following order, the same day: "The applicant and counsel for the parties have made their statements recorded separately the main petition under section 13 and 958 also applications under sections 24 and 25 of the Hindu- marriage Act are dismissed as withdrawn. The parties are left to bear their own costs. The file be consigned." It appears that the dismissal of the petition under section 13-B led only to a temporary truce, and not peace as hoped. Rehabilitation in the matrimonial home evaded the wife. The husband, who in the meantime had established his business at Ghazibad in Utter Pradesh, barely three months after the dismissal of the petition under section 13-B. approached the District Court at Ghaziabad in a regular petition for divorce under section 13 of the Act levelling, amongst others, allegations of adultery against the wife. To meet the offensive the wife refuted the charge of adultery and prayed to the Ghaziabad Court grant of maintenance pendente lite, which the Court fixed at Rs. 1000 per month. It appears since the husband had obstacled payment of maintenance pendente lite, divorce proceedings stand stayed under orders of the High Court of Allahabad, until the order of grant of maintenance pendente lite was obeyed. The matter thus stands stagnated there. The wife then went in an offensive. She moved the court of Additional District Judge, Amritsar on 22-3-1990, under section 15 of the Hindu Marriage Act for the grant of permanent alimony on the plea that she was facing starvation, when her husband was a multi-millionaire, having cars, telephone facilities and other amenities of life. Simultaneously she moved the court under section 24 of the Hindu Marriage Act for maintenance pendente lite and litigation expenses. After a grim contest between the parties the Additional District Judge, Amritsar on September

20, 1990 allowed the petition under section 24 of the Act granting her a sum of Rs. 6000 as litigation expenses and Rs. 2000 per month as maintenance pendente lite, from the date of application. The husband challenged the said order of grant in revision before the High Court of Punjab and Haryana at Chandigarh. The wife too approached the High Court in revision seeking enhancement of sums under both counts. Both the revision petitions being referred to a larger bench were disposed of by the common judgment under appeal sustaining the objection of the husband that an application under section 25 of the Act was, in the facts and circumstances, not maintainable; the Matrimonial Court at Amritsar, in the earlier litigation, having not passed any decree of the variables known as Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, or Divorce, so as to quash proceedings under section 25 and sequally quashing the order under section 24 of the Act granting litigation expenses and maintenance pendente lite. Hence these appeals. 959 Section 25 of the Act, as it now stands, after amendment by Act 68 of 1976 is reproduced hereunder: "25 PERMANENT ALIMONY AND MAINTENANCE (1) Any court exercising jurisdiction under this Act may, at the time of passing- any decree or at any time subsequent thereto, on application made to it for purpose by either the wife o r the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such cross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant, [the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent. (2)If the court is satisfied that there is, a change in the circumstances of either party at any time after it has made an order under sub- section (1), it may at the instance of either party, very, modify or rescind any such order

in such manner as the court may deem just. (3)If the court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, [it may at the instance of the other party very, modify or rescind any such order in such manner as the court may deem just]." It is relevant to reproduce Section 28 as well: "28 APPEAL FROM DECREES AND ORDERS- (1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-section (3) be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction. (2) Orders made by the court in any proceeding under this Act, under 960 section 25 or Section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction. (3) There shall be no appeal under this section on the subject of costs only. (4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order." Right from its inception, at the unamended stage, the words "at the time of passing any decree or any time subsequent thereto" posed difficulty. The majority of the High Courts in the country took the view that those words indicated that an order for permanent alimony or maintenance in favour of the wife or the husband could only be made when a decree is passed granting any substantive relief and not where the main petition itself is dismissed or withdrawn. It was also gathered that if no request for alimony was made at the time

of passing the decree the same relief could be sought subsequently on an application. The relief of permanent alimony was deduced to be ancilliary or incidental to the substantive relief, and it was given to the party to whom such relief was due. The expression "any decree" was viewed to have been used having regard to the various kinds of decrees such as decree for Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, and Divorce, which could be passed either on contest or consent. Some of the High Courts also had occasion to distinguish between the expression "passing any decree" referred to in section 25 (1) with "decrees made" referred to in section 28 providing for appeals from decrees and orders made by the Court in any proceeding under the Act, and such decrees being appealable, as decrees of the Court made in exercise of its original civil jurisdiction. It led to the determination of the question whether the denial of relief under the Act, when makinga decree in the sense appealable under section 28, could be it a decree passed within the meaning of Section 25 entitling the respective spouses to claim permanent alimony thereunder. On this question too there has been rife a difference of opinion. A Division Bench of the Gujarat High Court in Kadia Harilal Purshottam v. Kadia Lilavati Gokaldas AIR [1961] Gujarat 202; ruled that the words "at the time of passing any decree or any time subsequent thereto" occurring in section 25 meant passing of any decrees of the kind referred to in the earlier provisions of the Act and not at the time of dismissing the petition for any relief provided in those 961 sections, or any time subsequent thereto. It was viewed that the expression "any decree" did not include an order of dismissal and that the passing of an order of dismissal of the petition could not be regarded as the passing of decree within the meaning of section 25. On that view a petition for permanent alimony preferred by the wife was dismissed when the petition of the husband for restitution of conjugal rights had been dismissed. In Shantaram Gopalshet Narkar v. Hirabai, AIR [1962] Bombay 27 Vol. 49, a learned Single Judge of the Bombay High Court took the view that in order to confer jurisdiction upon the court to proceed under section 25(1) there must be a decree as contemplated under the Hindu Marriage Act and one of the decrees can. be under section 10(1) (B). And when the petition was allowed to be withdrawn, there was no decree passed in favour of the husband, and if there was no decree,

the court had no jurisdiction to pass any order granting permanent alimony to the wife under section 25(1). In Minarani Majumdar v. Dasarath Majumdar AIR [1963] Calcutta 428 Vol. 50, a Division Bench of the Calcutta High Court ruled that an order dismissing a petition by the husband for divorce under section 13 is not a decree within the meaning of section 25 and as such when no substantive relief is granted under sections 9 to 14, there is no passing of a decree as contemplated by section 25 and hence no jurisdiction to make an order for maintenance under the said section. Harilal's case (supra) of the Gujarat High Court was noticed and relied upon. A learned Single Judge of the Bombay High Court in Shantaram Dinkar Karnik v. Malti Shantaram Karnik, AIR [1964] Bombay 83 - vol. 51 relying on the earlier decision of that court in Shantaram Gopalshet's case (supra) and kadia Hiralal's case (supra) reaffirmed the view that the expression "passing of any decree" only referred to passing of any decrees provided for in section 9 to 13 of the Act, even though technically speaking dismissal of a suit or a petition may be called a decree but not for the purpose of section 25 confering jurisdiction on the Matrimonial Court to grant permanent alimony. A Division Bench of the Orissa High Court in Akasam Chinna Babu v. Akasam Parbati & Another AIR [1967] Orissa 163 - Vol. 54 denied the relief of permanent alimony when the petition for divorce of the husband had been dismissed. The views of the Bombay High Court and the, Gujarat High Court above referred to were taken in aid to get to that view. A three-Judge full bench of the Punjab and Haryana High Court in Durga 962 as v. Smt. Tara Rani,AIR (1971) Punjab and Haryana 141 - Vol. 58, in a different context, while determining the question whether a party to a decree or divorce could apply for maintenance under sub-section (1) of section 25 of the Act after which decree has been granted, ruled that the proceedings for grant of permanent alimony were incidental to the main proceeding and as such an application for alimony could be made even after the grant of the decree for divorce. A learned Single Judge of that Court, however, in Gurcharan Kaur v. Ram chand AIR 1979 Punjab and Haryana 206 Vol. 66 even while relying, on the full bench decision afore- referred went on to deny permanent alimony to the wife hose claim for decree of Nullity of Marriage stood dismissed and

on that basis the petition for alimony was held not maintainable. In Darshan Singh vs. Mst. Daso AIR 1980 Rajasthan 102 - Vol. 67 a learned single Judge of the Rajasthan High Court made a distinction between the expression "passing any decree" occurring in section 25 and the expression decree made" under section 28. He viewed that the former expression meant granting any relief of the nature stated in sections 9 to 13 while the later meant granting or refusing the relief. In other words, it meant that passing of any decree as to mean granting any relief, and the making of any decree was to mean granting or refusing any relief. A Division Bench of the Delhi High court too in Smt. Sushma v. Shri Satish Chander AIR 1984 Delhi 1 Vol. 71 taking stock of the above-referred to views of the Rajasthan, Orissa. Bombay, Calcutta and Gujarat High Courts affirmedly took the view that the passing of the decree in section 25 meant the passing of a decree of divorce, Nullity, Restitution of Conjugal Rights or Judicial Separation and not the passing of a decree dismissing the petition. It was further held that if the petition fails then no decree is passed, i.e., the decree is denied to the applicant and therefore alimony cannot be granted in a case where a decree is refused because in such a case the marriage subsists. The word "decree" in matrimonial cases was held to have been used in a special sense different from that in which it is used in the Civil Procedure Code. Following Delhi High Court's decision in Sushma's case (supra), a learned Single Judge of the Allahabad High Court in Vinod Chandra Sharma v. Smt. Rajesh Pathak AIR 1988 Allahahad 150 - Vol. 75 opined that when an application for divorce is dismissed, there is no decree passed and obviously therefore alimony cannot he granted because in such a case the marriage subsists. 963 A learned Single Judge of the Madras High Court in Ranganatham v. Shyamla AIR 1990 Madras 1- Vol. 77 too following the above decisions held that the existence of any of the decrees referred to in sections 9 to 13 is a condition precedent to the exercise of jurisdiction under section 25 (1) of the Act and the granting of ancilliary relief for permanent alimony and maintenance, when the main petition was dismissed, was not permissible. A divergent view, however, was struck by a learned Single Judge of the Punjab and Haryana High Court in Smt. Swaran Lata v. Sukhvinder Kumar(1986) 1 Hindu Law Reporter 363

taking the view that when the rights of the parties stand determined conclusively with regard to matters in controversy, irrespective as to whether relief is granted or not, it culminates in a decree and on the basis of that decree, the wife would be entitled to claim maintenance or permanent alimony under section 25 of the Act. Not only was on such interpretation of sections 25 and 28 the view taken but liberality of interpretation was injected to justify the view. It was expressed that when the right of the wife to maintenance was assured under section 125 of the Code of Criminal Procedure, 1973 and section 18 of the Hindu Adoptions and Maintenance Act, 1956 and when that right of the wife was not being disputed, the court, in order to avoid multiplicity of proceedings could give effect to that right, wherever possible, in a proceeding under section 25 of the Act itself. There the objection of the husband to the jurisdiction was termed as technical and the maintainability of claim under section 25 was upheld. A learned Single Judge of the Bombay High Court in Sadanand Sahadeo Rawool v. Sulochana Sadanand Rawool, AIR 1989 Bombay 220- Vol. 76 also took a similar view and based his decision on "necessity of the times" expressing that technicalities should not be allowed to away any court. In the situation, the dismissal of petition for divorce was held to be no bar to grant maintenance under section 25 to the successful spouse. Then in Surendra Singh Chaudan v. Mamta Chauhan II(1990) Divorce & Matrimonial Cases 208 a learned Single Judge of the Madhya Pradesh High Court taking the view that the dismissal of a petition amounts to passing of a decree for the purposes of Section 25 of the Act held that claim for permanent alimony was maintainable. The learned Judge ruled that there appeared to be no justification for curtailing the ambit of the words to go on to hold that a decree is not a "decree" for the purposes of section 25 of the Act, though a "decree" for the purposes of section 28 of the Act. Here again the intention of the legislature was gathered avoiding multiplicity of proceedings. so that every dispute between the parties, particularly connected with matters like maintenance etc. should be settled in the 964 same proceedings. A learned Single Judge of the Bombay High Court in Modilal Kalaramji Jain v. Lakshmi Modilal Jain AIR 1991 Bombay 440 - Vol. 78 omitting the word "passing" from the expression, interpreted the expression "any decree" to include an order

refusing to grant matrimonial relief and on that basis held adjudication of claim of permanent maintenance to be within the jurisdiction of the matrimonial court. Same is the view of the Andhra Pradesh High Court in Shilla Jagannadha Prasad alias Ram v. Smt. Shilla Lalitha Kumari [1988] 1 Hindu Law Reporter 26 and some other cases which need not be multiplied. The preamble to the Hindu Marriage Act suggests that it is an Act to amend and codify the law relating to marriage among Hindus. Though it speaks only of the law relating to marriage, yet the Act itself lays down rules relating to the solemnization and requirements of a valid Hindu marriage as well as Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, Divorce, legitimacy of children and other allied matters. Where the statute expressly codifies the law, the court as a general rule, is not at liberty to go outside the law so created, just on the basis that before its enactment another law prevailed. Now the other law in the context which prevailed prior to that was the unmodified Hindu law on the subject. Prior to the year 1955 or 1956 maintenance could be claimed by a Hindu wife through court intervention and with the aid of the case law developed. Now with effect from December 21, 1956, the Hindu Adoptions and Maintenance Act is in force and that too in a codified form. Its preamble too suggests that it is an Act to amend and codify the law relating to adoptions and maintenance among Hindus. Section 18 (1) of the Hindu Adoptions and Maintenance Act, 1956 entitles a Hindu wife to claim maintenance from her husband during her life-time. Sub- section (2) of section 18 grants her the right to live separately, without forfeiting her claim to maintenance, if he is guilty of any of the misbehaviours enumerated therein or on account of his being in one of objectionable conditions as mentioned therein. So while sustaining her marriage and preserving her marital status, the wife is entitled to claim maintenance from her husband. On the other hand, under the Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is durated on the pendency of a litigation of the kind envisaged under sections 9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce, 965

with or without her consent. Thus when her marital status is to be affected or disrupted the court does so by passing a decree for or against her. On or at the time of the happening of that event, the court being siezen of the matter, invokes its ancilliary or incidental power to grant permanent alimony. Not only that, the court retains the jurisdiction at subsequent stages to fulfil this incidental or ancilliary obligation when moved by an application on that behalf by a party entitled to relief. The court further retains the power to chance or alter the order in view of the changed circumstances. Thus the whole exercise is within the gammit of a diseased of a broken marriage. And in order to avoid conflict of perceptions the legislature while codifying the Hindu 'Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the court passing a decree of the kind as envisaged under sections 9 to 14 of the Act. In other words without the marital status being affected or disrupted by the matrimonial court under the Hindu Marriage Act the claim of permanent alimony was not to be valid as ancilliary or incidental to such affectation or disruption. The wife's claim to maintenance necessarily has then to be agitated under the Hindu Adoptions and Maintenance Act, 1956 which is a legislative measure later in point of time than the Hindu Marriage Act, 1955, though part of the same socio-legal scheme revolutionizing the law applicable to Hindus. Section 41 of the Evidence Act inter alia provides that a final judgment, order or decree of a competent court in the exercise of matrimonial jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to such character, is relevant. And that such judgment, order or decree is conclusive proof as to the conferral, accrual,or taking away of such. legal character from a point of time as declared by the court. Such judgments are known as judgments in rem, binding the whole world. But the judgment of that kind must have done something positive, onwards. This provision is indicative of the quality of matrimonial jurisdiction. We have thus, in this light, no hesitation in coming to the view that when by court intervention under the Hindu Marriage Act, affection or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application

by a party entitled to relief. And such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant. In contrast, without affectation or disruption of the marital status, a Hindu wife sustaining` that status can live in separation from her husband, and 966 whether she is living in that state or not, her claim to maintenance stands preserved in codification under section 18 (1) of the Hindu Adoptions and Maintenance Act. The court is not at liberty to grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter-changeability cannot be permitted so as to destroy the distinction on the subject of maintenance. Relief to the wife may also be due under section 125 of the Code of Criminal Procedure whereunder an order of maintenance can be granted after contest, and an order of interim maintenance can be made at the outset, without much contest. This provision however has two peculiar features: (i) the provision applies to all and not only to Hindus; and (ii) maintenance allowance cannot exceed a sum of Rs. 500 per mensem. But this is a measure in the alternative to provide destitute wives. This court has ruled that if the language used in a statute can be construed widely so as to salvage the remedial intendment, the court must adopt it. Of course, if the language of a statute does not admit of the construction sought, wishful thinking is no substitute, and then, not the court but the legislature is to blame for enacting a damp squib statute. These are the observations of V.K. Krishna Iyer, J. in Carew and Company v. Union of India [1975] 2 SCC 791 at pages 803-804. Towards interpreting statutes, the court must endeavour to see its legislative intendment. Where the language is ambiguous or capable of more than one meaning, the court must sympathetically and imaginatively discover the true purpose and object of the Provision by filling gaps, clearing doubts, and mitigating hardships, harshness or unfair consequences. See Motor Owners' Insurance Company, Limited vs. Jadavji Keshavji Modi and others [1981] 4 SCC 660 paras 14. 15 and 16. These principles were pressed into service by learned counsel for

the appellant contending that if the claim of the wife for maintenance was otherwise justified on fact and law, the procedures and the for a should not stand in her way and let her cash on her claim over-ruling all objections. It was asserted that the Amritsar court had jurisdiction to grant relief, as asked for, because once upon a time it was seisin of the petition for dissolution of marriage by mutual consent, though such petition was withdrawn. On the afore-analysis and distinction drawn between the fora and perceptives, 967 it is difficult to come to the view that a claim which is ancilliary or incidental in a matrimonial court under the Hindu Marriage Act could be tried as an original claim in that court; a claim which may for the moment be assumed as valid, otherwise agitable in the civil court under the Hindu Adoptions and Maintenance Act, 1956. As said before, these two enactments keeping apart, the remaining two, i.e., Hindu Succession Act, 1956 and Hindu Minority and and Guardianship Act, 1956 are a package of enactments, being part of one socio-legal scheme applicable to Hindus. When distinctive claims are covered distinctly under two different statutes and agitable in the courts conceived of thereunder, it is difficult to sustain the plea that when a claim is otherwise valid, choosing of one forum or the other should be of no consequence. These are not mere procedural technicalities or irregularities, as termed by one line of reasoning by some of the High Courts. These are matters which go to the root of the jurisdiction. The matrimonial court, a court of special jurisdiction, is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree, which implies that unless it goes onwards, moves or leads through, to affect or disrupt the marital status between the parties. By rejecting a claim, the matrimonial court does make an appealable degree in terms of section 28, but neither affects nor disrupts the marriage. It certainly does not pass a decree in terms of section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or take away any legal character or status. Like a surgeon, the matrimonial court, if operating, assumes the obligation of the post operatives, and when not, leaves the patient to the physician. On the afore analysis we have been led to the conclusion that the step of the wife to move the court of Additional District Judge, Amritsar for (,rant of maintenance under

section 25 of the Hindu Marriage Act was ill-advised. The judgment of the High Court under appeal could be no other than the one that it was in the present state of law and the facts and circumstances. It is still open to the wife to stake her claim to maintenance in other fora. The judgments of the High Courts earlier quoted, and others which have been left out, which are not in line with our view are over- ruled. The earlier and predominant view was the correct one and the later an aberration; something unfortunate from the precedential point of view. The appeals thus inevitably have to and are hereby dismissed, but without any order as to costs. Before we part with this judgment, we need to mention that while this judgment was reserved, an Interlocutory Application was received by the Registry, which unnumbered Interlocutory Application was duly transmitted to us. It is for directing the appellant to pay arrears of maintenance.While granting leave 968 this Court on 8th July, 1991 had ordered that during the pendency of the appeal, but without prejudice to the respective stands of the spouses, the husband shall pay a sum of Rs. 1000 per mensem by way of maintenance to the wife month to month by bank draft. In the Interlocutory Application there is an allegation that this Court's orders have not been complied with. Let notice on the application separately be issued to the respondent returnable within six weeks to show cause why payment of arrears of maintenance be not secured to the wife forthwith. U.R. Appeal dismissed. 969 PETITIONER: K.VIMAL Vs. RESPONDENT: K.VEERASWAMY DATE OF JUDGMENT20/03/1991 BENCH: FATHIMA BEEVI, M. (J) BENCH: FATHIMA BEEVI, M. (J)

AHMADI, A.M. (J) RAMASWAMI, V. (J) II CITATION: 1991 SCR (1) 904 1991 SCC (2) 375 JT 1991 (2) 182 1991 SCALE (1)495 ACT: Code of Criminal Procedure, 1973: section 125-scope and object of- Wife's application for maintenance-Husband's plea of marriage being void on account of subsistence of his earliar marriage-HeldCourt should insist on strick proof of earliar marriage- Insurance nomination and entry in Indenty Card are not conclusive of substance of earliar marriage. HEADNOTE: The appellant-wife filed an application for maintenance against respondent-husband under section 125 of the Code of Criminal procedure, 1973. The respondent contested the application on the ground that appellant was not his legally wedded wife since their marriage was void on account of subsistence of respondent's earlier marriage. The Magistrate awarded a monthly maintenance of Rs. 400 to the wife by holding that the respondent has not proved his first marrige. The order of the magistrate was set aside by the High Court in revision accepting the respodent's plea that his first marriage was subsisting when the respodent married the appellant. In appeal to this court it was contented on behalf of the respodent that the High Court had no material before it for arriving at the finding that there was an earlier valid marriage on the date respondent married the appellant. Allowing the appeal, this Court. HELD:1 Section 125 of the code of Criminal Procedure is meant to achieve a social purpose.The object is to prevent vagrancy and destitution. it provides a speedy remedy for the supply of food,clothing and shelter to the deserted wife. The term "wife" includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried.The woman not having the legal status of a wife is thus brought within the inclusive definition of the term "Wife" consistent with the objective. However,under the law a second wife whose marriage is void on account of

the survival of the first marriage is 905 not a legally wedded wife and is,therefore,not entitled to maintenance under this provision. Therefore, the law which disentitles the second wife from receiving maintenance from her husband for the sole reason that the marriage ceremony though performed in the customary from lacks legal sanctity can be applied only when the husband satisfactorily proves the subsistence of a legal and valid marriage particularly when the provision in the Code is ameasure of social justice intended to protect women and children. Accordingly, when an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court should insist on strict proof of the earlier marriage. [907D-H] 2. The respondent has not discharged the heavy burden by tendering strict proof of the fact in issue. He clearly admitted his marriage with the appellant acording to Hindu rites. But there is no clear admission of his earlier marriage to dispense with the proof of subsisting valid first marriage when the second marriage was solemnised. In the absence of such an admission, the statement that the respondent was living with another woman as husband and wife cannot persuade was court to hold that the marriage duly solemnised between the appellant and the respondent suffers from any legal infirmity. [906C-H] 3. The nomination in the Insurance Policy and Entry in the Identity Card, referred to by the High Court are not conclusive of the subsistence of a valid marriage between the respondent and his earlier wife. The High Court has failed to consider the standard of proof required and has proceeded on no evidence whatsoever in determining the question against the appeallant. Accordingly the order of the High Court is set aside and the order of the Magistrate is restored. [907B-C] JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 664 of 1990. From the Judgement and Order dated 13.3.1990 of the Andhra Pradesh High Court in Criminal Revision Case No. 532 of 1989. K. Ramkumar for the Appellant. B. Kanta Rao for the Respondent.

The Judgment of the Court was delivered by FATIMA BEEVI, J. The appellant and the respondent got 906 married according to Hindu rites and customs on June 30, 1983. They lived together until the appellant started complaining of desertion and ill-treatment. She moved the court for maintenance by an application under Section 125 of the Code of Criminal Procedure. Though the claim was resisted on the ground that the appellant is not the legally wedded wife of the respondent who had earlier married one Veeramma, the learned magistrate awarded a monthly maintenance of Rs.400 holding that the first marriage has not been proved. The order was, however, set-aside by the High Court in revision accepting the plea that the first marriage was subsisting when the respondent married the appellant. We have granted special leave to appeal against the order of the High Court. We have been taken through the pleadings and the evidence by the learned counsel for the appellant for the purpose of satisfying that the High Court had no material before it for arriving at the finding that there was a valid marriage between Veeramma and the respondent on the day the respondent married the appellant. It is pointed out that the appellant had nowhere admitted the subsistence of a valid marriage which would render her marriage illegal. The appellant stated in her petition that one year after her marriage, she came to know that respondent married Veeramma and lived with her in Hyderabad and soon thereafter Veeramma started living along with the appellant and the respondent and, thus extra-marital relationship of the respondent with Veeramma has disrupted her family life. In fact, the respondent had in his counter flatly denied all the averments made by the appellant in the petition and maintained that a marriage ceremony was performed between Veeramma and the respondent when both were children and the appellant is only his kept-mistress. The respondent has, however, clearly admitted that he married the appellant according to Hindu rites. When that marriage is repudiated as void on account of the subsistence of an earlier marriage, the respondent was bound to prove that he married Veeramma in the customary form and the marriage was subsisting in the year 1983 when the appellant was married to him. As rightly pointed out by the learned counsel for the appellant, there is no

clear admission of an earlier marriage between the respondent and Veeramma to dispense with the proof of subsisting valid first marriage when the second marriage was solemnised. In the absence of such an admission, the statement that the respondent is living with another woman as husband and wife cannot persuade the court to hold that the marriage duly solemnised between the appellant and the respondent suffers from any legal infirmity. The High Court has referred to Ex. R-12 and R- 13 relied on 907 by the respondent to prove that he was already married. Ex. R- 12 is the insurance policy issued On 5. 12. 1975 where the name of the nominee is shown as Veeramma indicating that she is the wife of the respondent. Ex. R- 13 is the family identity card issued by the Road Transport Corporation where the respondent was working in 1977. These documents are issued on the basis of what the respondent himself had stated. The entries are not conclusive of the subsistence a valid marriage between the respondent and Veeramma. If they had been living together as husband and wife even without performing a ceremonial marriage, and the respondent represented that Veeramma was his wife, it is possible that such entries would come into existence. Therefore, these documents by themselves cannot prove any marriage or the subsistence of a valid marriage when the admitted marriage with the appellant was solemnised. Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term wife' in Section 15 of the Code of Criminal Procedure includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term 'wife' consistent with the objective. However, under the law a second wife whose marriage is void an account of the

survival of the first marriage is not a legally wedded wife and is, therefore, not entitled to maintenance under this provision. Therefore, the law which disentitles the second wife from receiving maintenance from her husband under Section 125, Cr. P.C., for the sole reason that the marriage ceremony though performed in the customary form lacks legal sanctity can be applied only when the husband satisfactorily proves the subsistence of a legal and valid marriage particularly when the provision in the Code is a measure of social justice intended to protect women and children. We are unable to find that the respondent herein has discharged the heavy burden by tendering strict proof of the fact in issue. The High Court failed to consider the standard of proof required and has proceeded on no evidence whatsoever in determining the question against the appellant. We are, therefore, unable to agree that the appellant is not entitled to maintenance. 908 We find that there is no dispute that the appellant was married to the respondent in the customary form. They lived together as husband and wife and of late the respondent had neglected to maintain her. The respondent has no case that the appellant has means to maintain herself or that the amount she has claimed is not commensurate with the means of the respondent. The learned magistrate was, therefore, justified in awarding an amount of Rs.400 per mensem towards the maintenance of the appellant. That order of the magistrate has to be restored. In the result, we allow the appeal, set-aside the order of the High Court and restore that of the trial court. T. N. A. Appeal allowed. 909 PETITIONER: BEGUM SUBANU ALIAS SAIRA BANU & ANR. Vs. RESPONDENT: A.M. ABDUL GAFOOR DATE OF JUDGMENT03/04/1987 BENCH: NATRAJAN, S. (J)

BENCH: NATRAJAN, S. (J) SEN, A.P. (J) CITATION: 1987 AIR 1103 1987 SCR (2) 773 1987 SCC (2) 285 JT 1987 (2) 55 1987 SCALE (1)672 ACT: Code of Criminal Procedure, 1973--Section 125 and Expla- nation to second proviso of sub-section (3)--Maintenance--Right of a Muslim wife to live separately and claim maintenance against the husband who marries anoth- er wife or takes a mistress--Liability to pay maintenance- Husband not absolved by offer to take back wife and maintain her--Right of Muslim husband to take more than one wife not affected--Scope and effect of. HEADNOTE: The appellant was married to the respondent on May 11, 1980. A girl was born on May 9, 1981. On grounds of neglect and failure to provide maintenance, the appellant filed a petition under Section 125 of the Code of Criminal Proce- dure, 1973, seeking maintenance for herself and the child at Rs.500 and Rs.300 per month respectively. The Magistrate dismissed the petition on the ground that the appellant had failed to establish adequate justification for living sepa- rately. The appellant preferred a Revision Petition to the Sessions Judge. During the pendency of the said petition the respondent married again on October 18, 1984. It was urged on behalf of the appellant in the revision petition that irrespective of the other grounds, the second marriage of the respondent was by itself a ground for grant of mainte- nance. The Sessions Judge, however, held that the appellant was not entitled to claim maintenance since the respondent had contracted the second marriage after giving the appel- lant sufficient time and opportunity to rejoin him and since he had offered to take her back even after the second mar- riage. Insofar as the child was concerned the Sessions Judge granted maintenance at Rs.100 per month. The appellant preferred a Petition to the High Court

under Section 482 for grant of maintenance to her and for enhancing the maintenance awarded to the child and the High Court declined to interfere on the ground that the concur- rent findings of the Court below precluded the appellant from agitating her claim. In the appeal to this Court by special leave the appellant con- 774 tended that the second marriage of the respondent had added a new dimension to her maintenance action and that she had become entitled under law to live separately and claim maintenance. The appeal was contested by the respondent on the ground that he was driven to the necessity of marrying again because the appellant failed to rejoin him and he had offered to take her back to maintain her and the said offer exonerated him from his liability to pay maintenance. It was further contended that as he was permitted by Muslim Law to take more than one wife his second marriage cannot afford a legal ground for the appellant to five separately and claim maintenance. On the questions whether the second marriage of the respondent confers a right upon the appellant to live sepa- rately and claim maintenance and whether the appellant's rights stand curtailed in any manner because of the personal law governing the parties permitting a husband to marry more than one wife, and whether, even if the respondent is liable to pay maintenance, he stands absolved of his liability after his offer to take back the appellant and maintain her. Allowing the Appeal, HELD: 1.1 Section 125 of the Criminal Procedure Code, 1973, its fore-runner being section 488 of the Criminal Procedure Cede 1898, has been enacted with the avowed object of preventing vagrancy and destitution. It is intended to ensure the means of subsistence for three categories of dependents viz. children. wives and parents who are unable to maintain themselves. [782D-E] 1.2. Before an order of maintenance can be passed the three essential requisites to be satisfied are that: (1) the person liable to provide maintenance has sufficient means; (2) that he has neglected or refused to maintain; and (3) the dependent/dependents is/are unable to maintain himself/herself/themselves as the case may be. [782E-F] 1.3 The Legislature being anxious that for the sake of maintenance, the dependants should not resort to begging, stealing or cheating etc., the liability to provide mainte- nance for children has been fixed on the basis of the pater-

nity of the father and the minority of the child and in the case of major children on the basis of their physical handi- cap or mental abnormality without reference to factors of legitimacy or illegitimacy of the children and their being married or not. [782F-G] 1.4 In the case of wives, whether their ties of marriage subsist or 775 not, the anxiety of the Legislature is that they should not only not resort to begging, stealing or cheating etc. but they should also not feel compelled, for the sake of main- taining themselves, to resort to an adulterous life or in the case of divorced women, to resort to remarriage, if they have sentimental attachment to their earlier marriage and feel morally bound to observe their vows of fidelity to the persons whom they had married. [782G-H] 2.1 By reason of sub-sections (4) and (5) a husband can avoid his liability to pay maintenance if his wife is living in adultery. Correspondingly a right has been conferred on the wife under the Explanation to live separately and claim maintenance from the husband if he breaks his vows of fidel- ity and marries another woman or takes a mistress. It mat- ters not whether the woman chosen by the husband to replace the wife is a legally married wife or a mistress. [783B-C] 2.2 The Explanation is of uniform application to all wives including Muslim wives whose husbands have either married another wife or taken a mistress. [783C-D] 2.3 The purpose of the Explanation is not to affect the rights of a Muslim husband to take more than one wife or to denigrate in any manner the legal and social status of a second wife to which she is entitled to as a legally married wife, as compared to a mistress but to place on an equal footing the matrimonial injury suffered by the first wife on account of the husband marrying again or taking a mistress during the subsistence of the marriage with her. [781E-F] 2.4 This Explanation has to be construed from the point of view of the injury to the matrimonial rights of the wife and not with reference to the husband's right to marry again. [782B] 3. The offer to take back the wife and maintain her does not absolve the husband of his liability to pay maintenance. A husband who marries again cannot compel the first wife to the conjugal home with the co-wife and as such unless he offers to set up a separate residence for the first wife, any offer to take her back cannot be considered to be a bona fide offer. [783D-F]

Chand Begum v. Hyderbaig, [1972] Crl. Law Journal 1270, referred to. In the instant case, the offer to take back the appellant had been 776 made only before Revisional Court and that too after the second marriage had taken place. The offer was not to the effect that he would set up a separate residence for the appellant so as to enable her to live in peace and with dignity. The offer was only a make-believe one and not a genuine and sincere offer. On the basis of such an insincere offer the appellant's rights cannot be negated or defeated. [783D-F] The Court granted maintenance to the appellant-wife Rs.300 per month and enhanced the maintenance to the minor girl to Rs.200 per month. [784B; C] Bayanna v. Devamma, [1953], Mad. W.N. Crl. 243 = AIR 1954 Mad. 226; Kundaswami v. Nachammal, AIR 1963 Mad. 263; Syed Ahmed v.N.P. Taj Begum, AIR 1958 Mys 128; Shambu v. Ghalamma, AIR 1966 Mys 311; Teja Bai v. Shankarrao, AIR 1966 Bom 48; Mohammed Haneefa v. Mariam Bi, AIR 1969 Mad 414; Bela Rani v. Bhupal Chandra, AIR 1956 Cal 134; Rupchand v. Charubala, AIR 1966 Cal 83; Ishar v. Soma Devi, AIR 1959 Punj 295; Dhan Kaur v. Niranjan Singh, AIR 1960 Punj 595; Ramji Malviya v. Munni Devi, AIR 1959 All. 767; Sahulmmeedu v. Subaida Beevi, [1970] Kerala Law Times Page 4; and Mohd. A. Khan v. Shah Bano Begum, [1985] 3 SCR 844 at 856, re- ferred to. JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 605 of 1986. From the Judgment and Order dated 27.5.1985 of the Kerala High Court in Crl. Misc. Case No. 211 of 1985. Mrs. Geeta Luthra and D. Goburdhan for the Appellants. S.C. Birla for the Respondent. The Judgment of the Court was delivered by NATARAJAN, J. Is a Muslim wife whose husband has married again worse off under law than a Muslim wife whose husband has taken a mistress to claim maintenance from her husband? Can there be a discrimination between Muslim women falling in the two categories in their right to claim maintenance under Section 125 of the Code of Criminal Procedure, 1973 (for 'short the "Code")? These fundamental questions of a

startling nature run as undercurrents beneath the placid waters of this seemingly commonplace action for maintenance by a 777 Muslim wife against her husband. We have projected these fundemental issues in the prefatory itself because these larger questions also arise for consideration in this ap- peal. Now for a resume of the facts. The appellant was married to the respondent on 11.5.80 and she begot him a girl child on 9.5.81. On grounds of neglect and failure to provide maintenance she filed a petition under Section 125 of the Code in the Court of the Judicial First Class Magistrate, Kasargod to seek maintenance for herself and the child at Rs.500 and Rs.300 per month respectively. The Magistrate dismissed the petition saying the appellant had failed to establish adequate justification for living separately. A revision was preferred to the Sessions Judge of Tellicherry. During the pendency of the revision the respondent married one Sahida Begum on 18.10.84, as his second wife. It was, therefore, urged in the revision that irrespective of the other grounds the second marriage of the respondent was by itself a ground for grant of maintenance. The Sessions Judge skirted the issue by taking a devious view that since the respondent had contracted the second marriage after giving the appellant sufficient time and opportunity to rejoin him and since he had offered to take her back even after the second marriage, the appellant was not entitled to claim maintenance. However, in so far as the child is concerned the Sessions Judge granted maintenance to it at Rs.100 per month. The appellant then preferred a petition to the High Court under Section 482 of the Code for grant of maintenance to her and for enhancing the maintenance awarded to the child. The High Court declined to interfere saying that the concurrent findings of the courts below precluded the appel- lant from agitating her claim any further. The aggrieved appellant has approached this Court of last resort under Article 136 of the Constitution for redressal of her griev- ance. The principal controversy in the appeal centres round the rights of liabilities of the parties in the context of the second marriage entered into by the respondent on 18.10.84. The appellant's case is that the second marriage has added a new dimension to her maintenance action and she has become entitled under law to live separately and claim maintenance. The counter argument of the respondent is that

he was driven to the necessity of marrying again because the appellant failed to rejoin him but even so he had offered to take her back and maintain her and the said offer exonerated him from his liability to pay maintenance. The main defence, however, urged is that since he is permitted by Muslim Law to take more than one wife his second marriage cannot afford a legal ground for the appellant to live 778 separately and claim maintenance. These rival contentions fall for our determination in this appeal. The justification put forward for the second marriage cannot be taken as a tenable defence, even if such a defence is open, because there is no evidence to show that the respondent had asked the appellant to rejoin him and she had declined to do so before the respondent took his second wife. Therefore, what really needs consideration is whether the second marriage of the respondent confers a right upon the appellant to live separately and claim maintenance and secondly whether her rights stand curtailed in any manner because of the personal law governing the parties permitting a husband to marry more than one wife. The further question to be decided is whether even if the respondent is liable to pay maintenance, he stands absolved of his liability after his offer to take back the appellant and maintain her. For adjudicating the rights of the parties we must construe the Explanation and determine its scope and effect. The Explanation reads as follows:- "If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him." Before entering upon our discussion, we may refer to some of the decisions rendered by the High Courts on the scope and effect of the Explanation. We are setting out only some of the cases and not making an exhaustive reference because the purpose of the reference is only to show the divergent views taken by several High Courts. Furthermore, we have grouped the cases on broad classifications and not with reference to the line of reasoning adopted in each case. In the following cases it was held that the second marriage of the husband entitled the wife to an order of maintenance under Section 488, Code of Criminal Procedure, 1898:- (1) Bayanna v. Devamma, [1953] Mad. W.N. Crl. 243 = AIR 1954 Mad. 226. (2) Kundaswami v. Nachammal, AIR 1963 Mad. 263 (3) SyedAhmedv. N.P. TajBegum, AIR 1958 Mys 128

779 (4) Shambu v. Ghalamma, AIR 1966 Mys 311 (5) Tela Bai v. Shankarrao, AIR 1966 Bom 48 (6) Mohammed Haneefa v. Mariam Bi, AIR 1969 Mad 414. In the following cases a contrary view was taken holding that the mere fact that a husband has contracted marriage with another wife or keeps a mistress cannot without more be said to amount to neglect or refusal on the part of the husband to maintain his wife within the meaning of sub- section (1) of Section 488:- (7) Bala Rani v. Bhupal Chandra, AIR 1956 Cal 134 (8) Rupchand v. Charubala, AIR 1966 Ca183 (9) Ishar v. Soma Devi, AIR 1959 Pun} 295 (10) Dhan Kaur v. Niranjan Singh, AIR 1960 Punj 595. A third line of view was taken in Ramji Malviya v. Munni Devi, AIR 1959 All. 767 where it was held that ordinarily remarriage will be a sufficient ground for refusing to live with the husband but if the remarriage had been occasioned by the wife's unjust refusal to live with her husband she cannot take advantage of her own wrong and claim mainte- nance. There are two decisions, one of the Kerala High Court rendered by V.R. Krishna Iyer, J., as the then was, and the other of the Andhra Pradesh High Court rendered by Chinnappa Reddy, J., as he then was, which require mention because they pertain to maintenance actions by Muslim wives whose husband had married again. Krishna lyer, J. held as follows in Sabulameedu v. Subaida Beevi, [1970] Kerala Law Times Page 4. "It behoves the Courts in India to enforce Section 488(3) of the Code of Criminal Procedure in favour of Indian women, Hindu, Muslim or other. I will be failing in my duty if I accede to the argument of the petitioner that Muslim women should be denied the advantage of para. 2 of the proviso to Section 488(3)." Chinnappa Reddy, J. held in Chand Begum v. Hyderabaig, [1972] Crl. Law Journal 1270 as under:- "Therefore, a husband who married again cannot expect the court to come to his rescue if he wants the first wife to 780 share the conjugal home with a co-wife. If she decides to live separately he is bound to provide a home for her and maintain her. If he does not do that, he neglects or refuses to maintain her within the meaning of Section 488(1) Cr.P.C. Thus the offer of a husband who

has taken a second wife, to maintain the first wife on condition of her living with him cannot be considered to be a bona fide offer and the husband will be considered to have neglected or refused to maintain the wife." Lastly, we must also refer to the decision of this Court in Mohd. A. Khan v. Shah Bano Begum, [1985] 3 scr 844 at 856 wherein the Explanation came to be scanned by the Court while examining the larger question regarding the rights of divorced Muslim wives to claim maintenance under Section 125 of the Code. The relevant observation of the Court is in the following terms:- "The conclusion that the right conferred by Section 125 can be exercised irrespective of the personal law of the parties is forti- fied, especially in regard to Muslims, by the provision contained in the Explanation to the second proviso to Section 125(3) of the Code. That proviso says that if the husband offers to maintain his wife on condition that she should live with him, and she refuses to live with him, the Magistrate may consider any grounds of refusal stated by her, and may make an order of maintenance notwithstanding the offer of the husband, if he is satisfied that there is a just ground for passing such an order .........The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage, leave alone 3 or 4 other marriages. It shows, unmistakably, that Section 125 overrides the personal law, if there is any conflict between the two." Having referred to the views taken by some of the High Courts and this Court about the ambit of the Explanation, we will now proceed to consider its terms and its operative force. Though we stand benefited by the enlightenment de- rived from the decisions referred to above, we are of opin- ion that the Explanation calls for a more intrinsical exami- nation than has been done hitherto. Sub-section (1) of Section 125 inter alia provides that if a person having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself, the Magistrate may, upon proof of such neglect or refusal, 781 order the person to make a monthly allowance for the mainte-

nance of his wife. The second proviso to sub-section (3) lays down that if a person liable to pay maintenance offers to maintain his wife on condition of her living with him, and she refuses to live with him, the Magistrate may consid- er the grounds of refusal, and may make an order for mainte- nance notwithstanding the husband's offer, if he is satis- fied that there is just ground for ordering maintenance. Then comes the Explanation which says that if a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for the wife's refusal to live with him. In the reported decisions where the Explanation has been construed, as entitling a Muslim wife to claim maintenance on the basis of the Explanation, the courts have only taken into consideration the first limb of the Explanation viz. "If a husband has contracted mar- riage with another woman." Focussing attention on that part of the Explanation, the courts have held that the Explana- tion is of common application to all wives whose husbands have contracted another marriage irrespective of the fact the personal law governing the parties permits another marriage during the subsistence of the earlier marriage. We would like to point out that the Explanation contemplates two kinds of matrimonial injury to a wife viz. by the hus- band either marrying again or taking a mistress. The Expla- nation places a second wife and a mistress on the some footing and does not make any differentiation between them on the basis of their status under matrimonial law. If we ponder over the matter we can clearly visualise the reason for a second wife and a mistress being treated alike. The purpose of the Explanation is not to affect the rights of a Muslim husband to take more than one wife or to denigrate in any manner the legal and Social Status of a second wife. to which she is entitled to as a legally married wife, as compared to a mistress but to place on an equal footing the matrimonial injury suffered by the first wife on account of the husband marrying again or taking a mistress during the subsistence of the marriage with her. From the point of view of the neglected wife, for whose benefit the Explanation has been provided, it will make no difference whether the woman intruding into her matrimonial life and taking her place in the matrimonial bed is another wife permitted under law to be married and not a mistress. The legal status of the woman to whom a husband has transferred his affections cannot lessen her distress or her feelings of neglect. In fact from one point of view the taking of another wife portends a more permanent destruction of her matrimonial life than the

taking of a mistress by the husband. Be that as it may, can it be said that a second wife would be more tolerant and symapthetic than a mistress so as to persuade the wife to rejoin her husband and lead life 782 with him and his second wife in one and the same house? It will undoubtedly lead to a strange situation if it were to be held that a wife will be entitled to refuse to live with her husband if he has taken a mistress but she cannot refuse likewise if he has married a second wife. The Explanation has to be construed from the point of view of the injury to the matrimonial rights of the wife and not with reference to the husband's right to marry again. The Explanation has, therefore, to be seen in its full perspective and not dis- junctively. Otherwise it will lead to discriminatory treat- ment between wives whose husbands have lawfully married again and wives whose husbands have taken mistresses. Ap- proaching the matter from this angle, we need not resort to a comparison of Muslim wives with Hindu wives or Christian wives but can restrict the comparison to Muslim wives them- selves who stand affected under one or the other of the two contingencies envisaged in the Explanation and notice the discrimination. It is this aspect of the matter which we feel has not been noticed hitherto. Even if the Explanation is viewed in the larger context of the provisions of Section 125 the conclusion reached above is inescapable. Section 125, its fore-runner being Section 488, has been enacted with the avowed object of preventing vagrancy and destitution. The Section is intended to ensure the means of subsistence for three categories of dependents viz. children, wives and parents who are unable to maintain themselves. The three essential requisites to be satisfied before an order of maintenance can be passed are that (1) the person liable to provide maintenance has suffi- cient means; (2) that he has neglected or refused to main- tain and (3) the dependent/dependents is/are unable to maintain himself/herself/themselves as the case may be. The Legislature being anxious that for the sake of maintenance, the dependents should not resort to begging, stealing or cheating etc. the liability to provide maintenance for children has been fixed on the basis of the paternity of the father and the minority of the child and in the case of major children on the basis of their physical handicap or mental abnormality without reference to factors of legitima- cy or illegitimacy of the children and their being married or not. In the case of wives, whether their ties of marriage

subsist or not, the anxiety of the Legislature is that they should not only not resort to begging, stealing or cheating etc. but they should also not feel compelled, for the sake of maintaining themselves, to resort to an adulterous life or in the case of divorced women, to resort to remarriage, if they have sentimental attachment to their earlier mar- riage and feel morally bound to observe their vows of fidel- ity to the persons whom they had married. This position emerges when we take an overall view of sub-sections (1), (4) and (5). 783 While sub-section (4) provides that a wife shall not be entitled to receive maintenance from her husband if she is living in adultery or if without sufficient reason she refuses to live with her husband or if She lives separately by mutal consent, sub-section (5) provides that an order of maintenance already passed can be cancelled for any of the abovesaid reasons. Thus by reason of sub-sections (4) and (5) a husband can avoid his liability to pay maintenance if his wife is living in adultery. Correspondingly a right has been conferred on the wife under the Explanation to live separately and claim maintenance from the husband if he breaks his vows of fidelity and marries another woman or takes a mistress. As already stated it matters not whether the woman chosen by the husband to replace the wife is a legally married wife or a mistress. Therefore, the respond- ent's contention that his taking another wife will not entitle the appellant to claim separate residence and main- tenance cannot be sustained. The Explanation is of uniform application to all wives including Muslim wives whose hus- bands were either married another wife or taken a mistress. It only now remains for us to consider the further defence of the respondent that in view of his offer to take back the appellant and maintain her he stand absolved of his liability to pay maintenance. The offer to take back the appellant had been made only before the Revisional Court and that too after the second marriage had taken place. The offer was not to the effect that he would set up a separate residence for the appellant so as to enable her to live in peace and with dignity. As has been pointed out in Chand Begum v. Hyderbaig (supra) a husband, who marries again cannot compel the first wife to share the conjugal home with the co-wife and as such unless he offers to set up a sepa- rate residence for the first wife, any offer to take her back cannot be considered to be a bona fide offer. It is, therefore, obvious that the offer was only a make-believe

one and not a genuine and sincere offer. On the basis of such an insincere offer the appellant's rights cannot be negated or defeated. It is highly unfortunate that the Sessions Judge and the High Court should have declined to grant maintenance to the appellant in spite of the appel- lant's case falling squarely under the Explanation. As the record contains evidence regarding the earnings of the respondent we are in a position to determine the quantum of maintenance for the appellant in this appeal itself instead of remitting the matter to the Trial Court or the Revisional Court. The respondent has stated in his counter-affidavit in the special leave petition that his income is only Rs.1,000 per month. The appellant has stated in her 784 petition for maintenance that the respondent was getting Rs. 1,500 per month by way of salary and Rs.500 per month by way of income from properties. In the four years that have gone by since the maintenance action was instituted the respond- ent's income must have certainly increased. Therefore, taking all factors into consideration we fix the quantum of maintenance for the appellant at Rs.300 per month. This amountwill be paid with effect from 18.10.84 when the respondent married a second wife. The arrears of maintenance will be paid by the respondent in five equal instalments, the first of such instalments to be paid during the first week of June 1987. The subsequent instalments will be paid at intervals of three months thereafter i.e. during the first week of September 1987, first week of December 1987, first week of March 1988 and first week of June 1988. Future maintenance must be paid before the cloth of every succeed- ing month. We also enhance the maintenance to the minor girl (second appellant) to Rs.200 per month from Rs. 100 per month with effect from 1.1.1987. Default in payment of future maintenance or any instalments of the arrears will entitle the appellant to levy execution against the respond- ent under Section 125(3) of the Code and realise the amount. The appeal will stand allowed accordingly. N.P.V. Appeal al- lowed. 785 PETITIONER: PATHUMMA & ANR. Vs.

RESPONDENT: MUHAMMAD DATE OF JUDGMENT17/04/1986 BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) KHALID, V. (J) CITATION: 1986 SCR (2) 731 1986 SCC (2) 585 1986 SCALE (1)603 ACT: Revisional jurisdiction of the High Court under section 401 of the Criminal Procedure Code, 1973, scope of - Reappreciation of evidence and substituting its own view by the High Court is impermissible. HEADNOTE: In the Criminal application filed by the appellants under section 125 of the Code of Criminal Procedure, the Trial Court on an appreciation of the evidence accepted the defence of the respondent that the first appellant was not his wife but held that the second appellant was his illegitimate child and directed the payment of Rs. 25 per month towards maintenance of the child. Two revision petitions preferred by both the parties before the Kerala High Court were heard together. Allowing the respondents' petition and dismissing the appellants' petition, the Court held that the second appellant was not the child of the respondent. Hence the appeals by special leave. Allowing Criminal Appeal No. 462A/81 and dismissing Crl. Appeal No. 463/81, the Court, ^ HELD : 1. The High Court in its criminal jurisdiction under section 401 of the Code of Criminal Procedure was not justified in making a re-assessment of the evidence and in substituting its own view for that of the trial Judge on a question of fact. The questions whether the appellant No. 1

was the married wife of the respondent and whether the appellant No. 2 was the legitimate or illegitimate child of the respondent are pre-eminently questions of fact. [733 F- G] JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 462A-463 of 1981. From the Judgment and Order dated 21.10.1980 of the Kerala High Court in Crl. R.P. Nos. 188 and 204 of 1979. 732 E.M.S. Anam for the Appellants. Nemo for the Respondents. The Judgment of the Court was delivered by DUTT, J. These two appeals by special leave have been preferred by the appellants against the judgment of the High Court of Kerala dismissing the Criminal Revision Petition of the appellants and allowing that of the respondent, both arising out of a proceeding under section 125 of the Code of Criminal Procedure instituted by the appellants. The appellants filed an application before the Judicial Magistrate, First Class, Pattambi, under section 125 of the Code of Criminal Procedure. The said application was numbered as M.C. No. 5 of 1978. In the application, it was alleged that the respondent married the appellant No. 1, Pathumma, 6 years ago as per Muslim rites and the respondent resided with her as husband and wife. When she was carrying two months, she was taken to her father's house by the respondent. Thereafter, the respondent left her there and did not enquire about her. Subsequently, the respondent divorced her without, however, making any payment to her of any Mahar or other compensation. It was further alleged that the appellant No. 2 Sulekha, a minor daughter, was born out of the wedlock. The appellants had no means of livelihood and accordingly, they claimed maintenance respectively at the rate of Rs. 100 and Rs. 50 per month from the respondent. The application was opposed by the respondent. The case of the respondent was that he never married the appellant No. 1, and that the appellant No. 2 was not his child, legitimate or illegitimate. The learned Magistrate by his order dated March 24, 1979 came to the finding that the marriage of the respondent with the appellant No. 1, as alleged, was not proved and, as such, the appellant No. 1 was not the wife of the

respondent. The learned Magistrate, however, held that the appellant No. 2 was the illegitimate child of the respondent. In that view of the matter, the learned Magistrate directed the respondent to pay maintenance to the appellant No. 2 at the rate of Rs. 25 per month from the date of the application under section 125 Cr. P.C. 733 Against the order of the learned Magistrate, the appellants filed a revision petition being Criminal R.P. No. 204 of 1979 before the High Court of Kerala in so far as it refused the claim of the appellant No. 1 for maintenance. The respondent also filed another petition being Criminal R.P. No. 188 of 1979 against the order of the learned Magistrate directing payment of maintenance at the rate of Rs. 25 per month to the appellant No. 2. Both the said revision petitions were heard together by a learned Singe Judge of the High Court. The learned Judge by his judgment dated November 21, 1980 upheld the finding of the learned Magistrate that the marriage of the respondent with the appellant No.1 was not proved and that, accordingly, the appellant No.1 was not the wife of the respondent. So far as the order of the learned Magistrate directing payment of maintenance to the appellant No.2, the minor child of the appellant No.1 was concerned, the learned Judge made a re-assessment of the evidence and came to the finding that the appellant No.2, Sulekha, was not the illegitimate child of the respondent. Accordingly, the learned Judge dismissed the revision petition of the appellants being Criminal R.P. No. 204 of 1979 and allowed that of the respondent being Criminal R.P. No. 188 of 1979. The net result was that the order of the learned Magistrate allowing maintenance to the appellant No.2, was set aside and the entire application of the appellants under section 125 Cr. P.C. stood dismissed. The questions whether the appellant No.1 was the married wife of the respondent and whether the appellant No.2 was the legitimate or illegitimate child of the respondent, are pre-eminently questions of fact. The learned Magistrate after considering the evidence, as adduced by the parties, held that the appellant No.1 was not the wife of the respondent. He further held on the basis of the evidence on record that the appellant No.2 was the illegitimate child of the respondent. We are afraid, the learned Judge of the High Court committed an error in making a re-assessment of the evidence and coming to a finding that the appellant No.2 was not the illegitimate child of the respondent. We have

ourselves considered the evidence on record and we agree with the learned Magistrate, who had taken much pains in analysing the evidence, that the 734 appellant No.2 was the illegitimate child of the respondent. The High Court in its revisional jurisdiction was not justified in substituting its own view for that of the learned Magistrate on a question of fact. For the reasons aforesaid, we set aside the order of the High Court in so far as it disallows the claim of the appellant No.2, Sulekha, for maintenance as granted by the learned Magistrate and dismiss the Criminal Revision Petition No.188 of 1979. Criminal Appeal No. 462A of 1981 is accordingly allowed. The order of the High Court dismissing Criminal Revision Petition No.204 of 1979 is affirmed and the Criminal Appeal No. 463 of 1981 is dismissed. There will be no order for costs in either of the appeals. The appellants are granted liberty to approach the learned Magistrate for the enhancement of the amount of maintenance of the appellant No.2. Cr.A. No. 462A/81 allowed. S.R. Cr.A. No. 463/81 dismissed. PETITIONER: SAVITRI W/O SHRI GOVIND SINGH RAWAT Vs. RESPONDENT: SHRI GOVIND SINGH RAWAT DATE OF JUDGMENT09/10/1985 BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) MISRA, R.B. (J) CITATION: 1986 AIR 984 1985 SCC (4) 337 1985 SCALE (2)697

ACT: Code of Criminal Procedure, 1973, s. 125 - Whether Magistrate can grant interim maintenance. HEADNOTE: The petitioner filed an application under s. 125 of the Code of Criminal Procedure, 1973 before the Magistrate for an order against her husband directing him to pay maintenance. Thereafter she filed another application for an interim order directing her husband to pay a reasonable sum by way of maintenance pending disposal of the main application. The Magistrate declined to make an interim order on the ground that there was no express provision in the Code enabling a Magistrate to pass such an order. The petitioner filed special leave petition in this Court. Disposing of the petition, ^ HELD : 1. There is no express provision in the Code which authorises a Magistrate to make an interim order directing payment of maintenance pending disposal of an application for maintenance. The Code does not also expressly prohibit the making of such an order- [617 E] 2. The provisions contained in 88. 125, 126, 127 and 128 of the Code of Civil Procedure 1973 show that they are intended to provide for a preventive remedy for securing payment of maintenance which can be granted quickly and in deserving cases with effect from the date of the application itself. [618 C] G 3. The rate of maintenance that can be awarded under the Code is limited even though under the law governing the parties a competent civil court may order payment of a larger sum in appropriate cases. The civil courts have inherent power to grant interim maintenance pending disposal of the suit for maintenance. [618 C-D] 4.The Jurisdiction of a Magistrate under Chapter IX of the Code is not strictly a criminal Jurisdiction. While passing an 616 order under that Chapter asking a person to pay maintenance to his wife, child or parent, the Magistrate is not imposing any punishment on such person for a crime committed by him. Chapter IX of the Code contains a summary remedy for securing some reasonable sum by way of maintenance, subject

to a decree, if any, which may be made in a civil court in a given case provided the Personal Law applicable to the per on concerned authorises the enforcement of any such right to maintenance. The Code, however, provides a quick remedy to protect the applicant against starvation and to tide over immediate difficulties. Chapter IX of the Code does not in reality create any serious new obligation. [618 E-G] 5. It is the duty of the Court to interpret the provisions in Chapter IX of the Code in such away that the construction placed on them would not defeat the very object of the legislation. In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power to the Magistrate to direct the person against whom an application is made under s. 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. [619 E-G] Shri Bhagwan Dutt v. Smt. Kamla Devi and Anr., [1975] 2 S.C.R. 483 at 486, relied upon. 6. There is no room for apprehension that recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist. It is, quite possible that such contingency may arise in a few cases but the prejudice caused thereby to the person against whom it is made is minimal as it can be set right E` quickly after hearing both the parties. The Magistrate may, however, insist upon an affidavit being filed by or on behalf of the applicant concerned stating the grounds in support of the claim for interim maintenance to satisfy himself that there is a prima facie case for making such an order. If a Civil Court can pass such interim orders on affidavits, there is no reason why a magistrate should not rely on them for the purpose of issuing directions regarding payment of interim maintenance. [620 C-E] JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Special Leave Petition (Criminal) No. 1028 of 1984. From the Order dated 11.1.1984 of the Metropolitan Magistrate, New Delhi in Case No. 41/1 of 1983. 617 Ms. Bina Gupta for the Petitioner. The Judgment of the Court was delivered by

VENKATARAMIAH, J. The short question which arises for consideration in this case is whether a magistrate before whom an application is made under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') can made an interim order directing the person against whom the application is made under that section to pay reasonable maintenance to the applicant concerned pending disposal of the application. In the instant case, the petitioner was an applicant under section 125 of the Code before the Metropolitan Magistrate, Delhi. In her application, she prayed for an order against her husband directing him to pay maintenance to her. Immediately after she filed the said application, she made another application before the magistrate for an interim order directing her husband to pay some reasonable sum by way of maintenance pending disposal of the main application. The learned magistrate declined to make such an interim order on the ground that there was no express provision in the Code enabling a magistrate to pass such an order. Aggrieved by the said order the application has filed this special leave petition under Article 136 of the Constitution. It is true that there is no express provision in the Code which authorises a magistrate to make an interim order directing payment of maintenance pending disposal of an application for maintenance. The Code does not also expressly prohibit the making of such an order. The question is whether such a power can be implied to be vested in a magistrate having regard to the nature of the proceedings under section 125 and other cognate provisions found in Chapter IX of the Code which is entitled "Order For Maintenance of Wives, Children and Parents". Section 125 of the Code confers power on a magistrate of the first class to direct a person having sufficient means but who neglects or refuses to maintain (i) his wife, unable to maintain herself, or (ii) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (iii) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself or (iv) his father or mother, unable to maintain himself or herself, upon proof of such neglect or refusal, to pay a monthly allowance for 618 the maintenance of his wife or such child, father or mother, as the case may be, at such monthly rate not exceeding five

hundred rupees in the whole as such magistrate thinks fit. Such allowance shall be payable from the date of the order, or, if so ordered from the date of the application for maintenance. Section 126 of the Code prescribes the procedure for the disposal of an application made under section 125. Section 127 of the Code provides for alteration of the rate of maintenance in the light of the changed circumstances or an order or decree of a competent civil court. Section 128 of the Code deals with the enforcement of the order of maintenance. It is not necessary to refer to the other details contained in the above said provisions. A reading of the above provisions shows that they are intended to provide for a preventive remedy for securing payment of maintenance which can be granted quickly and in deserving cases with effect from the date of the application itself. The rate of maintenance that can be awarded is also limited even though under the law governing the parties a competent civil court may order payment of a larger sum by way of maintenance in appropriate cases. The civil courts have inherent power to grant interim maintenance pending disposal of the suit for maintenance. The point for consideration is whether the magistrate can also make such an interim order or not. The jurisdiction of a magistrate under Chapter IX of the Code is not strictly a criminal jurisdiction. While passing an order under that Chapter asking a person to pay maintenance to his wife, child or parent, as the case may be, the magistrate is not imposing any punishment on such person for a crime committed by him. Chapter IX of the Code contains a summary remedy for securing some reasonable sum by way of maintenance, subject to a decree, if any, which may be made in a civil court in a given case provided the Personal Law applicable to the person concerned authorises the enforcement of any such right to maintenance. The Code, however, provides a quick remedy to protect the applicant against starvation and to tide over immediate difficulties. Chapter IX of the Code does not in reality create any serious new obligation unknown to Indian social life. In Shri Bhagwan Dutt v. Smt. Kamla Devi and Anr., [1975] 2. S.C.R. 483 at 486, this Court has explained the object of sections 488, 489 and 490 of the Code of Criminal Procedure, 1898 which are replaced by the provisions in Chapter IX of the Code thus : "Sections 488, 489 and 490 constitute one family. 619

They have been grouped together in Chapter XXXVI of the Code of 1898 under the caption "Of the maintenance A of wives and children". This chapter, in the words of Sir James Fitzstephen provides "a mode of preventing vagrancy, or at least of preventing its consequences". These provisions are intended to fulfil a social purpose. Their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children. By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife and children are not left beggared and destituted on the scrap-heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. Thus, section 488 is not intended to provide for a full and final determination of the status and personal rights of the parties. The jurisdiction conferred by the section on the Magistrate is more in the nature of a preventive rather than a remedial jurisdiction; it is certainly not punitive. As pointed out in Thompson's case 6 NWP 205 the scope of the Chapter XXXVI is limited and the Magistrate cannot, except as thereunder provided, usurp the jurisdiction in matrimonial disputes possessed by the civil courts. Sub-section (2) of section 489 expressly makes orders passed under Chapter XXXVI of the Code subject to any final adjudication that may be made by a civil court between the parties regarding their status and civil rights." In view of the foregoing it is the duty of the court to interpret the provisions in Chapter IX of the Code in such a way that the construction placed on them would not defeat the very object of the legislation. In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It 18 quite common that applications made under section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number

of cases only if an order for payment of interim maintenance is passed by the court. Every court must be deemed to possess by necessary intendment all 620 such powers as are necessary to make its orders effective. This principle is embodied in the maxim 'ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist.) (Vide Earl Jowitt's Dictionary of English Law 1959 Edn. P.1797). Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then that something else will be supplied by necessary intendment. Such a construction though lt may not always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to result in grave hardship to the applicant, who may have no means to subsist until the final order is passed. There is no room for the apprehension that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist. It is quite possible that such contingency may arise in a few cases but the prejudice Caused thereby to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties. The magistrate, may, however, insist upon an affidavit being filed by or on behalf of the applicant concerned stating the grounds in support of the claim for interim maintenance to satisfy himself that there is a prima facie case for making such an order. Such an order may also be made in an appropriate case ex parte pending service of notice of the application subject to any modification or even an order of cancellation that may be passed after the respondent is heard. If a civil court can pass such interim orders on affidavits, there is no reason why a magistrate should not rely on them for the purpose of issuing directions regarding payment of interim maintenance. The affidavit may be treated as supplying prima facie proof of the case of the applicant. If the allegations in the application or the affidavit are not true, it is always open to the person against whom such an order is made to show that the order is unsustainable. Having regard to the nature of the jurisdiction exercised by a magistrate under section 125 of the Code, we feel that the said provision should be interpreted as conferring power by necessary implication on

the magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance subject to the other conditions referred to there pending final disposal of the application. In taking this view we have also taken note of the provisions of section 7 (2)(a) of the Family Courts Act, 1984 (Act No. 66 of 1984) passed recently by Parlia- 621 ment proposing to transfer the jurisdiction exercisable by magistrates under section 125 of the Code to the Family Courts constituted under the said Act. The above opinion according to us is based on the true construction of the relevant provisions of the Code. We are, however, informed that the dispute regarding maintenance is now finally settled between the parties. Hence no further orders are necessary in this case. The petition is accordingly disposed of. A.P.J. 622 PETITIONER: MOHD. AHMED KHAN Vs. RESPONDENT: SHAH BANO BEGUM AND ORS. DATE OF JUDGMENT23/04/1985 BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) MISRA RANGNATH DESAI, D.A. REDDY, O. CHINNAPPA (J) VENKATARAMIAH, E.S. (J) CITATION: 1985 AIR 945 1985 SCR (3) 844 1985 SCC (2) 556 1985 SCALE (1)767 CITATOR INFO : F 1986 SC 587 (4) RF 1987 SC1103 (10) D 1988 SC 644 (5,6)

ACT: Muslim Personal Law-Concept of divorce-Whether, on the pronounccments of "talaq" and on the expiry of the period of iddat a divorced wife ceases to be a wife. Code of Criminal Procedure Code, 1973 (Act II of 1974) Sections 125(1) (a) and Explanation (b) thereunder, Section 125 (3) and the Explanation, under the proviso thereto and section 127 (3) (b), scope and interpretation of-Correctness of three Judges.' Bench decision reported in (1979) 2 SCR 75 and (1980) 3 SCR 1127 to the effect that section 125 of the code applies to Muslims and divorced Muslim wife is entitled to maintenance-Whether there is any conflict between the provisions of section 125 and that of the Muslim Personal Law on the liability of the Muslim husband to provide for the maintenance of his divorced wife. Code of Criminal Procedure, 1973, section 127 (3) (b) read with section 2 of the Shariat Act XXVI of 1937-Whether section 127 (3) (b) debars payment of maintenance to a divorced wife, once the Mahar or dower is paid-Whether the liability of the husband to maintain a divorced wife is limited to the period of "iddat" Nature of Mahr or dower-Whether Mehr is maintenance. HEADNOTE: Under section 125 (1) (a), if any person, having sufficient means neglects or refuses to maintain his wife, unable to maintain herself, a Magistrate of the first class may, upon proof of such neglect or refusal order such person to make a monthly allowance for the maintenance of his wife at such monthly rate not exceeding five hundred rupees in the whole. Under Explanation (b) thereunder ' wife" includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. Under the explanation below sub section 3 of section 125, if a husband has contracted marriage with another woman or keeps a mistress it shall be considered to be a just ground for his wife's refusal to live with him. Keeping this in view, if in the trial arising out of 845 an application made under section 125, and if the husband offers to maintain his wife on condition of living with him, the Magistrate may consider any of the grounds of the wife's

refusal to live with her husband before ordering the maintenance. Under section 127 (3) (b), the Magistrate shall cancel the order passed by him under section 125, in favour of a woman who has been divorced by, or has obtained a divorce from her husband if the woman who has been divorced by her husband has received, whether before or after the date of the said order, the whole of the sum, which, under any customary or personal law applicable to the parties was payable on such divorce. The appellant. who is an advocate by profession was married to the respondent in 1932. Three ions and two daughters were born of that marriage In 1975, the appellant drove the respondent out of the matrimonial home. In April 1978, the respondent filed a petition against the appellant under section 125 of the Code of Criminal Procedure, in the Court of the Judicial Magistrate (First class) Indore, asking for maintenance at the rate of Rs. 500 per month, in view of the professional income of the appellant which was about Rs. 60,000 per annum. On November 6, 1978, the appellant divorced the respondent by an irrevocable "talaq" and took up the defence that she had ceased to be his wife by reason of the divorce granted by him; that he was, therefore, under no obligation to provide maintenance for her; that he had already paid maintenance for her at the rate of Rs. 200 per month for about two years, and that, he had deposited a sum of Rs. 3,000 in the court by way of "dower or Mahr" during the period of "iddat". In August 1979, the Magistrate directed the appellant to pay a princely sum of Rs. 25 per month to the respondent by way of maintenance. In a revisional application Sled by the respondent the High Court of Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per month. Hence the appeal by special leave by the husband. The view taken in the earlier two three Judges' Benches of the Supreme Court presided over by Krishna Iyer, J. and reported in [1979] 2 SCR 75, and [1980] 3 SCR 1127, to the effect that section 125 of the Code applies to Muslims also and that therefore, the divorced Muslim wife is entitled to apply for maintenance was doubted, by the Bench consisting of Fazal Ali and Varadarajan, JJ., since in their opinion the said decisions required reconsideration by a larger Bench consisting of more than three judges as the decisions are not only in direct contravention of the plain and unambiguous language of section 127 (3) (b) of the Code which far from overriding the Muslim law on the subject protects and applies the same in case where a wife has been

divorced by the husband and the dower specified has been paid and the period of iddat has been observed but also militates against the fundamental concept of divorce by the husband and its consequences under the Muslim law which has been expressly protected by section 2 of the Muslim Personal Law (Shariat) Application Act, 1937-an Act which was not noticed in the said two decisions. Dismissing the appeals, the Court ^ Held: (Per Chandrachud, C. J.) 1. The Judgments of the Supreme Court in Bai Tahira (Krishna lyer, J., Tulzapurkar, J. and Pathak, J.) and Fazlunbi (Krishna pyer, J, Chinnappa 846 Reddy, J. and A.P. Sen, J.) are correct, except to the extent that the statement at page 80 of the report in Bal Tahira made in the context of section 127 (3) (b) namely, "payment of Mahr money, as a customary discharge is within the cognizance of that provision". Justice Krishna Lyre who spoke for the Court in both these cases, relied greatly on the teleological and schematic method of interpretation 90 as to advance the purpose of the law. These constructional techniques have their own importance in the interpretation of statutes meant to ameliorate the conditions of suffering sections of the society.A divorced Muslim wife is, therefore, entitled to apply for maintenance under section 125 of the Code. [865H, 866A-C] 2.1 Clause (b) of the Explanation to section 125 (1) of the Code, which defines "wife" as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope. Wife, means a wife as defined, irrespective of the religion professed by her or by her husband. Therefore, a divorced Muslim woman so long as she has not married, is a wife for the purpose of section 125. [855A-B: 854B] 2.2 Under section 488 of the Code of 1898, the wife's right to maintenance depended upon the continuance of her married status. Therefore, that right could be defeated by the husband by divorcing her unilaterally as under the Muslim Personal Law, or by obtaining a decree of divorce against her under the other systems of law. It was in order to remove this hardship that the Joint Committee recommended that the benefit of the provisions regarding maintenance should be extended toa divorced woman, so long as she has not re married after the divorce. That is the genesis of clause (b) of the Explanation to section 125 (I). Section

125 of the Code is truly secular in character. Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. Whether the spouses are Hindus or Muslims, Christians or Parsis, Pagans or Heathens, is wholly irrelevant in the application of these-provisions. The reason for this is axiomatic, in the sense that section 125 is a part of the Code of Criminal Procedure not of the Civil Laws which define and govern the rights and obligations of the parties belonging to particular relations, like the Hindu Adoptions and Maintenance Act, The Shariat, or the Parsi Matrimonial Act. It would make no difference as to what ii the religion professed by the neglected wife, child or parent. [834D-E: 855E-G] 2.3 Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of section 125. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion. True that they do not supplant the personal law of the parties but, equally, the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws unless, within the framework of the Constitution, their application is restricted to a defined category of religious groups or classes The liability imposed by section 125 to maintain close relatives who are indigent is founded upon the indi- 847 viduals' obligation to the society t a prevent vagrancy and destitution. That is the moral edict of the law and morality cannot be clubbed With relation. [834G-Hl That the right conferred by section 125 can be exercised irrespective of the personal law of the parties, is fortified, especially in regard to Muslims, by the provision contained in the Explanation to the second proviso to section 125 (3) of the Code. The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage leave alone, three or four other marriages, which a Mohammedan may have under the Islamic law. Further it shows unmistakably, that section 125 overrides the personal law, if there is any conflict between the two [836B-C,F-G] Jagir Kaur v. Jaswant Singh, [1964] 2 SCR 73,84, Nanak Chand v. Shri Chandra Kishore Agarwala, 11970] I SCR 56C

applied. 3.1 The contention that, according to Muslim Personal Law the husband's liability to provide for the maintenance of his divorced wife is limited to the period of iddat. despite the fact that she is unable to maintain herself cannot be accepted, since that law does not contemplate or countenance the situation envisaged by section 125 of the Code. Whether a husband is liable to maintain his wife, which includes a divorced wife, in all circumstances, and at all events is not the subject matter of section 125. Section 125 deals with cases in which a person who is possessed of sufficient means neglects or refuses to maintain amongst others, his wife who is unable to maintain herself. [838H, 851A-B] 3.2 One must have regard to the entire conspectus of the Muslim Personal Law in order to determine the extent, both in quantum and in duration, of the husband's liability to provide for the maintenance of an indigent wife who has been divorced by him. Under that law, the husband is bound to pay Mahr to the wife as a mark of respect to her. True, that he may settle any amount he likes by way of dower upon his wife, which cannot be less than 10 Dirhams which is equivalent to three or four rupees. But one must have regard to the realities of life. Mahr is a mark of respect to the wife. The sum settled by way of Mahr is generally expected to take care of the ordinary requirements of the wife, during the marriage and after. But these provisions of the Muslim Personal Law do not countenance cases in which the wife is unable to maintain herself after the divorce. The application of those statements of law to the contrary in text-books on Muslim Law must be restricted to that class of cases, in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife. [858D-G] 3.3 The true position is that, if the divorced wife is able to maintain herself, the husband's liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to section 125 of the Code. Thus there is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband's obligation to provide maintenance for a divorced wife 848 who is unable to maintain herself. Aiyat No. 241 and 242 of 'the Holy Koran' fortify that the Holy Koran imposed an

obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. The contrary argument does less than justice to the teachings of Koran. [859C-D; 862C-D] 3.4 Mahr is not the amount payable by the husband to the wife on divorce and therefore, does not fall within the meaning of section 127 (3) (b) of the Code and the facile answer of the All India Muslim Law Board that the Personal Law has devised the system of Mahr to meet the requirements of women and if a woman is indigent, she must look to her relations, including nephews and cousins, to support her is a most unreasonable view of law as well as of life. [863E-F, 866E-F] 3.5 It is true under the Muslim Personal Law, the amount of Mahr is usually split into two parts, one of which is called 'prompt" which is payable on demand, and the other is called "deferred", which is payable on the dissolution of the marriage by death or by divorce. But, the fact that deferred Mahr is payable at the time of the dissolution of marriage, cannot justify that it is payable 'on divorce'. even assuming that, in a given case, the entire amount of Mahr is of the deferred variety payable on the dissolution of marriage by divorce, it cannot be said that it is an amount which is payable on divorce. [863B-D] 3.6 Divorce may be a convenient or identifiable point of time at which the deferred amount has to be paid by the husband to the wife. But, the payment of the amount is not occasioned by the divorce, which is what is meant by the expression 'on divorce', which occurs in section 127 (3) (b) of the Code. If Mahr is an amount which the wife is entitled to receive from the husband in consideration of the marriage, that is the very opposite of the amount being payable in consideration of divorce. Divorce dissolves the marriage. Therefore. no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce. The alternative premise that Mahr is an obligation imposed upon the husband as a mark of respect for the wife, is wholly detrimental to the stance that it is an amount payable to the wife on divorce.A man may marry a woman for love, looks, learning or nothing at all. And, he may settle a sum upon her as a mark of respect for her. But he does not divorce her as a mark of respect. Therefore, a sum payable to the wife out of respect cannot be a sum payable on divorce'. Thus, the payment of Mahr may be deferred to a future date

as, for example, death or divorce. But, that does not mean that the payment of the deferred dower is occasioned by these events. [863D-G] Similarly, the provision contained in section 127 (3) (b) may have been introduced because of the misconception that dower is an amount payable 'on divorce.' But, that again cannot convert an amount payable as a mark of respect for the wife into an amount payable on divorce. [863H] Hamira Bibi v. Zubaida Bibi, 43 Indian Appeal 294; Syed Sabir Hussain v. Farzand Hasan, 65 Indian Appeal 119 and 127 referred to. 849 OBSERVATION (Article 44 of our Constitution has remained a dead letter. There is no evidence of any official activity for framing a common civil code for the country.A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. It is the State which incharged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.A beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.) JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 103 of 1981. From the Judgment and Order dated 1. 7. 1980 of the Madhya Pradesh High Court in Crl. Revision No. 320 of 1979. P. Govindan Nair, Ashok Mahajan, Mrs. Kriplani, Ms. Sangeeta and S.K Gambhir for the Appellant. Danial Latifi Nafess Ahmad Siddiqui, S.N. Singh and T.N.Singh for the Respondents. Mohd. Yunus Salim and Shakeel Ahmed for Muslim Personal Law Board. S.T. Desai and S.A. Syed for the Intervener Jamat- UlemaHind.

The Judgment of the Court was delivered by CHANDRACHUD,C.J. This appeal does not involve any question of constitutional importance but, that is not to say that it does not involve any question of importance. Some questions which arise under the ordinary civil and criminal law are of a far-reaching significance to large segments of society which have been traditionally subjected to unjust treatment. Women are one such segment. ' Nastree swatantramarhati" said Manu, the Law giver: The woman does not deserve independence. And, it is alleged that the 'fatal 850 point in Islam is the 'degradation of woman'(l). To the Prophet is ascribed the statement, hopefully wrongly, that 'Woman was made from a crooked rib, and if you try to bend it straight, it will break; therefore treat your wives kindly. This appeal, arising out of an appellation filed by a divorced Muslim woman for maintenance under section 125 of the Code of Criminal Procedure, raises a straightforward issue which is of common interest not only to Muslim women, not only to women generally but, to all those who, aspiring to create an equal society of men and women, lure themselves into the belief that mankind has achieved a remarkable degree of progress in that direction. The appellant, who is an advocate by profession, was married to the respondent in 1932. Three sons and two daughters were born of that marriage In 1975, the appellant drove the respondent out of the matrimonial home. In April 1978, the respondent filed a petition against the appellant under section 125 of the Code in the court of the learned Judicial Magistrate (First Class), Indore asking for maintenance at the rate of Rs 500 per month. On November 6, 1978 the appellant divorced the respondent by an irrevocable talaq. His defence to the respondent's petition for maintenance was that she had ceased to be his wife by reason of the divorce granted by him, to provide that he was therefore under no obligation maintenance for her, that he had already paid maintenance to her at the rate of Rs. 200 per month for about two years and that, he had deposited a sum of Rs. 3000 in the court by way of dower during the period the of iddat. In August, 1979 the learned Magistrate directed appellant to pay a princely sum of Rs. 25 per month to the respondent by way of maintenance. It may be mentioned that the respondent had alleged that the appellant earns a professional income of about Rs. 60,000 per year. In July, 1980, in a revisional application filed by the respondent,

the High Court of Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per month. The husband is before us by special leave. Does the Muslim Personal Law impose no obligation upon the husband to provide for the maintenance of his divorced wife ? Undoubtedly, the Muslim husband enjoys the privilege of being (1) 'Selections from Kuran'-Edward William Lane 1843, Reprint 1982, page xc (Introduction) 851 able to discard his wife whenever he chooses to do so, for reasons good, bad or indifferent. Indeed, for no reason at all. But, is the only price of that privilege the dole of a pittance during the period of iddat ? And, is the law so ruthless in its inequality that, no matter how much the husband pays for the maintenance of his divorced wife during the period of iddat, the mere fact that he has paid something, no matter how little, absolves him for ever from the duty of paying adequately so as to enable her to keep her body and soul together ? Then again, is there any provision in the Muslim Personal Law under which a sum is payable to the wife 'on divorce' ? These are some of the important, though agonising, questions which arise for our decision. The question as to whether section 125 of the Code applies to Muslims also is concluded by two decisions of this Court which are reported in Bai Tahira v. Ali Hussain Fidalli Chothia(1) and Fazlunbi v. K. Khader Vali.(2) These decisions took the view that the divorced Muslim wife is entitled to apply for maintenance under section 125. But, a Bench consisting of our learned Brethren, Murtaza Fazal Ali and A. Varadarajan, JJ. were inclined to the view that those cases are not correctly decided. Therefore, they referred this appeal to a larger Bench by an order dated February 3, 1981, which reads thus: "As this case involves substantial questions of law of far-reaching consequences, we feel that the decisions of this Court in Bai Tahira v. Ali Hussain Fidaalli Chothia & Anr and Fuzlunbi v. K. Khader Vnli & Anr. require reconsideration because, in our opinion, they are not only in direct contravention of the plain and an unambiguous language of s. 127(3)(b) of the Code of Criminal Procedure, 1973 which far from overriding the Muslim Law on the subject protects and applies the same in case where a wife has been divorced by the husband and the dower specified has been paid and the

period of iddat has been observed. The decision also appear to us to be against the fundamental concept of divorce by the husband and its consequences (1) 1979 (2) SCR 75 (2) 1980 (3)SCR 1127 852 under the Muslim law which has been expressly protected by s. 2 of the Muslim Personal Law (Shariat) Application Act, 1937-an Act which was not noticed by the aforesaid decisions. We, therefore, direct that the matter may be placed before the Honorable Chief Justice for being heard by a larger Bench consisting of more than three Judges. " Section 125 of the Code of Criminal Procedure which deals with the right of maintenance reads thus: "Order for maintenance of wives, children and parents 125. (1) If any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself, (b)... (c)... (d)... a Magistrate of the first class may, upon proof of such neglecter refusal, order such person to make a monthly allowance for the maintenance of his wife .. at such monthly rate not exceeding five hundred rupees in the whole as such Magistrate think fit Explanation-For the purposes of this Chapter,- (a)...... (b) "Wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband has not remarried. (2)..... . 853 (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided...... Provided further that if such person offers to maintain his wife on condition of her living with him.

and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation-If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him." Section 127(3)(b), on which the appellant has built up the edifice of his defence reads thus: "Alteration in allowance 127. (1)..... (2)...... (3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from her husband, the Magistrate shall, if he is satisfied that- (a)..... (b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the Sum which, 854 under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,- (i) in the case where such sum was paid before such order, from the date on which such order was made. (ii) in any other case, from the date of expiry of the period, if any, for Which maintenance has been actually paid by the husband to the woman." Under section 125(1)(a), a person who, having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself, can be asked by the court to pay a monthly maintenance to her at a rate not exceeding Five Hundred rupees. By clause (b) of the Explanation to section 125(1), 'wife' includes a divorced woman who has not remarried. These provisions are too clear and precise to admit of any doubt or refinement. The religion professed by a spouse or by the spouses has no place in the scheme of these provisions. Whether the spouses are Hindus or Muslims, Christians or Parsis, pagans or heathens, is wholly irrelevant in the application of these provisions. The reason for this is axiomatic, in the sense that section 125 is a part of the Code of Criminal Procedure, not of the

Civil Laws which define and govern The rights and obligations of the parties belonging to particular, religions, like the Hindu Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial Act. Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. What difference would it then make as to what is the religion professed by the neglected wife, child or parent ? Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of section 125. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion. True, that they do not supplant the personal law of the parties but, equally the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws unless, within the framework of the Constitution, their application is restricted to a defined category of religious groups or classes. The liability imposed by section 125 to maintain close relatives who are indigent is founded upon the individual's obligation to the society to prevent vagrancy and 855 destitution. That is the moral edict of the law and morality cannot be clubbed with religion. Clause (b) of the Explanation to section 125(1), which defines 'wife' as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope. Section 125 is truly secular in character. Sir James FitzJames Stephen who piloted the Code of Criminal Procedure, 1872 as a Legal Member of the Viceroy's Council, described the precursor of Chapter IX of the Code in which section 125 occurs, as 'a mode of preventing vagrancy or at least of preventing its consequences. In Jagir kaur v. Jaswont Singh,(1) Subba Rao, J. speaking for the Court said that Chapter XXXVI of the Code of 1898 which contained section 488, corresponding to section 125, "intends to serve a social purpose". In Nanak Chand v. Shri Chandra Kishore Agarwala.(2) Sikri, J., while pointing out that the scope of the Hindu Adoptions and Maintenance Act, 1956 and that of section 488 was different, said that section 488 was "applicable to all persons belonging to all religions and has no relationship with the personal law of the parties". Under section 488 of the Code of 1898, the wife's right

to maintenance depended upon the continuance of her married status. Therefore, that. right could be defeated by the husband by divorcing her unilaterally as under the Muslim Personal Law, or by obtaining a decree of divorce against her under the other systems of law. It was in order to remove this hardship that the Joint Committee recommended that the benefit of the provisions regarding maintenance should be, extended to a divorced woman, so long as she has not remarried after the divorce. That is the genesis of clause (b) of the Explanation to section 125(1), which provides that 'wife' includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. Even in the absence of this provision, the courts had held under the Code of 1&98 that the provisions regarding maintenance were independent of the personal law governing the parties. The induction of the definition of 'wife, so as to include a divorced woman lends even greater weight to that (1) 1964 (2) SCR 73, 84. (2) 1970 (l) S CR 565. 856 conclusion. 'Wife' means a wife as defined, irrespective of the religion professed by her or by her husband. Therefor, a divorced Muslim woman, so long as she has not remarried, is a 'wife' for the purpose of section 125. The statutory right available to her under that section is unaffected by the provisions of the personal law applicable to her. The conclusion that the right conferred by section 125 can be exercised irrespective of the personal law of the parties is fortified, especially in regard to Muslims, by the provision contained in the Explanation to the second proviso to section 125(3) of the Code. That proviso says that if the husband offers to maintain his wife on condition that she should live with him, and she refuses to live with him, the Magistrate may consider any grounds of refusal stated by her, and may make an order of maintenance not with standing the offer of the husband, if he is satisfied that there is a just ground for passing such an order. According to the Explanation to the proviso: "If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him." It is too well-known that "A Mahomedan may have as many as four wives at the same time but not more. If he marries a fifth wife when he has already four, the marriage is not void, but merely irregular". (See Mulla's Mahomedan Law,18th

Edition, paragraph 25S, page 285, quoting Baillie's Digest of Moohummudan Law; and Ameer Ali's Mahomedan Law, 5th Edition, Vol. II, page 280). The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage, leave alone 3 or 4 other marriages. It shows, unmistakably, that section 125 overrides the personal law, if is any there conflict between the two. The whole of this discussion as to whether the right conferred by section 125 prevails over the personal law of the parties, has proceeded on the assumption that there is a conflict between the provisions of that section and those of the Muslim Personal Law. The argument that by reason of section 2 of the Shariat Act, 857 XXVI of 1937, the rule of decision in matters relating, inter alia, to maintenance "shall be the Muslim Personal Law" also proceeds upon a similar assumption. We embarked upon the decision of the question of priority between the Code and the Muslim Personal Law on the assumption that there was a conflict between the two because, in so far as it lies in our power, we wanted to set at rest, once for all, the question whether section 125 would prevail over the personal law of the parties, in cases where they are in conflict. The next logical step to take is to examine the question, on which considerable argument has been advanced before us, whether there is any conflict between the provisions of section 125 and those of the Muslim Personal Law on the liability of the Muslim husband to provide for the maintenance of his divorced wife. The contention of the husband and of the interveners who support him is that, under the Muslim Personal Law, the liability of the husband to maintain a divorced wife is limited to the period of iddat. In support of this proposition, they rely upon the statement of law on the point contained in certain text books. In Mulla's Mahomedan Law (18th Edition, para 279, page 301), there is a statement to the effect that, "After divorce, the wife is entitled to maintenance during the period of iddat". At page 302, the learned author says: - 'Where an order is made for the maintenance of a wife under section 488 of the Criminal Procedure Code and the wife is afterwards divorced, the order ceases to operate on the expiration of the period of iddat. The result is that a Mahomedan may defeat an order made

against him under section 488 by divorcing his wife immediately after the order is made. His obligation to maintain his wife will cease in that case on the completion of her iddat," Tyabji's Muslim law (4th Edition, para 304, pages 268- 269). contains the statement that: "On the expiration of the iddat after talaq, the wife's right to maintenance ceases, whether based on the Muslim 858 Law, or on an order under the Criminal Procedure Code-" According to Dr Paras Diwan: "When a marriage is dissolved by divorce the wife is entitled to maintenance during the period of iddat.... On the expiration of the period of iddat, the wife is not entitled to any maintenance under any circumstances. Muslim Law does not recognise any obligation on the part of a man to maintain a wife whom he had divorced." (Muslim Law in Modern India, 1982 Edition, page 130) These statements in the text book are inadequate to establish the proposition that the Muslim husband is not under an obligation to provide for the maintenance of his divorced wife, who is unable to maintain herself. One must have regard to the entire conspectus of the Muslim Personal Law in order to determine the extent both, in quantum and induration, of the husband's liability to provide for the maintenance of an indigent wife who has been divorced by him. Under that law, the husband is bound to pay Mahr to the wife as a mark of respect to her. True, that he may settle any amount he likes by way of dower upon his wife, which cannot be less than 10 Dir hams, which is equivalent to three or four rupees (Mulla's Mahomedan Law, 18th Edition, para 286, page 308). But, one must have regard to the realities of life Mahr is a mark of respect to the wife. The sum settled by way of Mahr is generally expected to take care of the ordinary requirements of the wife, during the marriage and after. But these provisions of the Muslim Personal Law do not countenance cases in which the wife is unable to maintain herself after the divorce. We consider it not only incorrect but unjust, to extend the scope of the statements extracted above to cases in which a divorced wife is unable to maintain herself. We are of the opinton that the application of those statements of law must be restricted to that class of cases, in which there is no possibility of vagrancy or destitution arising out of the

indigence of the divorced wife. We are not concerned here with the broad and general question whether a husband is liable to maintain his wife, which includes a divorced wife, in all circumstances and at all events. That is not the subject matter of section 125. That section deals with cases in which, a person who is possessed of sufficient means neglects or refuses to maintain, amongst others, his wife who is unable to maintain 859 herself. Since the Muslim Personal Law, which limits the husband's liability to provide for the maintenance of the divorced wife to the period of iddat, does not contemplate or countenance the situation envisaged by section 125, it would be wrong to hold that the Muslim husband, according to his personal law, is not under all obligation to provide maintenance, beyond the period of iddat, to his divorced wife who is unable to maintain herself. The argument of the appellant that, according to the Muslim Personal Law, his liability to provide for the maintenance of his divorced wife is limited to the period of iddat, despite the fact she is unable to maintain herself, has therefore to be rejected. The true position is that, if the divorced wife is able to maintain herself, the husband's liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to section 125 of the Code. The outcome of this discussion is that there is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband's obligation to provide maintenance for a divorced wife who is unable to maintain herself. There can be no greater authority on this question than the Holy Quran, "The Quran, the Sacred Book of Islam, comprises in its 114 Suras or chapters, the total of revelations believed to have been communicated to Prophet Muhammed, as a final expression of God's will". (The Quran- Interpreted by Arthur J. Arberry). Verses (Aiyats) 241 and 242 . of the Quran show that according to the Prophet, there is an obligation on Muslim husbands to provide for their divorced wives. The Arabic version of those Aiyats and their English translation are reproduced below: Arabic version English version Ayat No. 241 For divorced women WA LIL MOTALLAQATAY Maintenance (should be MATA UN Provided)

BIL MAAROOFAY On a reasonable (Scale) HAQQAN This is a duty ALAL MUTTAQEENA On the righteous. Ayat No. 242 KAZALEKA YUBAIYYANULLAHO Thus doth God 860 LAKUM AYATEHEE LA ALLAKUM Make clear His Signs TAQELOON To you: in order that ye may understand. (See 'The Holy Quran' by Yusuf Ali, Page 96). The correctness of the translation of these Aiyats is not in dispute except that, the contention of the appellant is that the word 'Mata' in Aiyat No. 241 means 'provision' and not 'maintenance'. That is a distinction without a difference. Nor are we impressed by the shuffling plea of the All India Muslim Personal Law Board that, in Aiyat 241, the exhortation is to the' Mutta Queena', that is, to the more pious and the more God-fearing, not to the general run of the Muslims, the 'Muslminin'. In Aiyat 242, the Quran says: "It is expected that you will use your commonsense". The English version of the two Aiyats in Muhammad Zafrullah Khan's 'The Quran' (page 38) reads thus: "For divorced women also there shall be provision according to what is fair. This is an obligation binding on the righteous. Thus does Allah make His commandments clear to you that you may understand." The translation of Aiyats 240 to 242 in 'The Meaning of the Quran' (Vol. I, published by the Board of Islamic Publications, Delhi) reads thus . "240-241. Those of you, who shall die and leave wives behind them, should make a will to the effect that they should be provided with a year's maintenance and should not be turned out of their homes. But if they leave their homes of their own accord, you shall not be answerable for whatever they choose for themselves in a fair way; Allah is All Powerful, All-wise. Likewise, the divorced women should also be given something in accordance with the known fair standard. This is an obligation upon the God-fearing people. 861 242. A Thus Allah makes clear His commandments for you: It is expected that you will use your commonsense."

In "The Running Commentary of The Holy Quran" (1964 Edition) by Dr. Allamah Khadim Rahmani Nuri, Aiyat No. 241 is translated thus: "241 And for the divorced woman (also) a provision (should be made) with fairness (in addition to her dower); (This is) a duty (incumbent) on the reverent." In "The Meaning of the Glorious Quran, Text and Explanatory Translation", by Marmaduke Pickthall, (Taj Company Ltd.,karachi), Aiyat 241 is translated thus: '-241. For divorced women a provision in kindness: A duty for those who ward off (evil)." Finally, in "The Quran Interpreted" by Arthur J. Arberry. Aiyat 241 is translated thus: "241. There shall be for divorced women provision honourable-an obligation on the god fearing." So God makes clear His signs for you: Happily you will understand." Dr. K.R. Nuri in his book quoted above: 'The Running Commentary of the Holy Quran", says in the preface: "Belief in Islam does not mean mere confession of the existence of something. It really means the translation of 862 the faith into action. Words without deeds carry no meaning in Islam. Therefore the term "believe and do good" has been used like a phrase all over the Quran. Belief in something means that man should inculcate the qualities or carry out the promptings or guidance of that thing in his action. Belief in Allah means that besides acknowledging the existence of the Author of the Universe, we are to show obedience to His commandments..." These Aiyats leave no doubt that the Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. The contrary argument does less than justice to the teaching of the Quran. As observed by Mr. M. Hidayatullah in his introduction to Mulla's Mahomedan Law, the Quran is Al- furqan' that is one showing truth from falsehood and right from wrong. The second plank of the appellant's argument is that the respondent's application under section 125 is liable to be dismissed be cause of the provision contained in section

127 (3) (b). That section provides, to the extent material, that the Magistrate shall cancel the order of maintenance, if the wife is divorced by the husband and, she has received "the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce". That raises the question as to whether, under the Muslim Personal law, any sum is payable to the wife 'on divorce'. We do not have to grope in the dark and speculate as to which kind of a sum this can be because, the only argument advanced before us on behalf of the appellant and by the interveners supporting him, is that Mahr is the amount payable by the husband to the wife on divorce. We find it impossible to accept this argument. In Mulla's principles of Mahomedan Law (18th Edition, page 308), Mahr or Dower is defined in paragraph 285 as "a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage." Dr. Paras Diwan in his book, "Muslim Law in Modern India" (1982 Edition, page 60), criticises this definition on the ground that Mahr is not payable "in consideration of marriage" but is an obligation imposed by law on the husband as a mark of respect for the wife, as is evident from the 863 fact that non-specification of Mahr at the time of marriage does not affect the validity of the marriage. We need not enter into this controversy and indeed, Mulla`s book itself contains the further statement at page 308 that the word 'consideration' is not used in the sense in which it is used in the Contract Act and that under the Mohammedan Law, Dower is an obligation imposed upon the husband as a mark of respect for the wife. We are concerned to find is whether Mahr is an amount payable by the husband to the wife on divorce. Some confusion is caused by the fact that, under the Muslim Personal Law, the amount of Mahr is usually split into two parts, one of which is called "prompt", which is payable on demand, and the other is called "deferred ", which is payable on the dissolution of the marriage by death or by divorce. But, the tact that deferred Mahr is payable at the time of the dissolution of marriage, cannot justify the conclusion that it is payable 'on divorce'. Even assuming that, in a given case, the entire amount of Mahr is of the deferred variety payable on the dissolution of marriage by divorce, it cannot be said that it is an amount which is payable on divorce. Divorce may be a convenient or identifiable point of time at which the deferred amount has to be paid by the husband to the wife. But, the payment of

the amount is not occasioned by the divorce, which is what is meant by the expression 'on divorce', which occurs in section 127 (3) (b) of the Code. If Mahr is an amount which the wife is entitled to receive from the husband hl consideration of the marriage, that is the very opposite of the amount being payable in consideration of divorce. Divorce dissolves the Marriage. Therefore no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce. The alternative premise that Mahr is an obligation imposed upon the husband as a mark of respect for the wife, is wholly detrimental to the stance that it is an amount payable to the wife on divorce.A man may marry a woman for love, looks, learning or nothing at all. And. he may settle a sum upon her as a mark of respect for her. But he does not divorce her as a mark of respect. Therefore, a sum payable to the wife out of respect cannot be a sum payable 'on divorce'. In an appeal from a Full Bench decision of the Allahabad High Court, the Privy Council in Hamira Bibi v. Zubaide Bibi(1) sum- (1) 43 1. A. 294. 864 med up the nature and character of Mahr in these words: "Dower is an essential incident under the Muslim Law to the status of marriage; to such an extent that is so that when it is unspecified at the time the marriage is contracted, the law declares that it must be adjudged on definite principles. Regarded as a consideration for the marriage, it is, in theory, payable before consummation; but the law allows its division into two parts, one of which is called "prompt" payable before the wife can be called upon to enter the conjugal domicil; the other " deferred", payable on the dissolution of the contract by the death of either of the parties or by divorce." (p. 300-301) This statement of law was adopted in another decision of the Privy Council in Syed Sabir Husain v. Farzand Hasan.(1) It is not quite appropriate and seems invidious to describe any particular Bench of a court as "strong" but, we cannot resist the temptation of mentioning that Mr. Syed Ameer Ali was a party to the decision in Hamira Bibi while Sir Shadi Lal was a party to the decision in Syed Sabir Husain. These decisions show that the payment of dower may be deferred to a future date as, for example, death or divorce. But, that does not mean that the payment of the

deferred dower is occasioned by these events. It is contended on behalf of the appellant that the proceedings of the Rajya Sabha dated December 18, 1973 (volume 86, column 186), when the bill which led to the Code of 1973 was on the anvil, would show that the intention of the Parliament was to leave the provisions of the Muslim Personal Law untouched. In this behalf, reliance is placed on the following statement made by Shri Ram Niwas Mirdha, the then Minister of State, Home Affairs: "Dr. Vyas very learnedly made certain observations that a divorced wife under the Muslim law deserves to be treated justly and she should get what is her equitable or legal due. Well, I will not go into this, but say that we would not like to interfere with the customary law of the Muslims through the Criminal Procedure Code. If there is (1) 65 I.A. 119, 127 865 a demand for change in the Muslim Personal Law, it should actually come from the Muslim Community itself and we should wait for the Muslim public opinion on these matters to crystalise before we try to change this customary right or make changes in their personal law. Above all, this is hardly, the place where we could do so. But as I tried to explain, the provision in the Bill is an advance over the previous situation. Divorced women have been included and brought within the admit of clause 125, but a limitation is being imposed by this amendment to clause 127, namely, that the maintenance orders would ceases to operate after the amounts due to her under the personal law are paid to her. This is a healthy compromise between wh lt has been termed a conservative interpretation of law or a concession to conservative public opinion and liberal approach to the problem. We have made an advance and not tried to transgress what are the personal rights of Muslim women. So this, I think, should satisfy Hon. Members that whatever advance we have made is in the right direction and it should be welcomed." lt does appear from this speech that the Government did not desire to interfere with the personal law of the Muslim through the Criminal Procedure Code. It wanted the Muslim community to take the lead and the Muslim public opinion to crystalise on the reforms in their personal law. However, we do not concerned with the question whether the Government did not desire to bring about changes in the Muslim

Personal Law by enacting sections 125 and 127 of the Code. As we have said earlier and, as admitted by the Minister, the Government did introduce such a change by defining the expression 'wife' to include a divorced wife. It also introduced another significant change by providing that the fact that the husband has contracted marriage with another woman is a just ground for the wife's refusal to live with him. The provision contained in section 127 (3) (b) may have been introduces because of the misconception that dower is an amount payable "on divorce". But, that cannot convert an amount payable as a mark of respect for the wife into an amount payable on divorce. It must follow from this discussion, unavoidably a little too long, that the judgments of this Court in Bai Tahira (Krishna 866 Iyer J., Tulzapurkar J. and Pathak J.) and Fazlunbi (Krishna Iyer, J.,) one of us, Chinnappa Reddy J. and A. P. Sen J.) are correct. Justice Krishna Iyer who spoke for the Court in both these cases, relied greatly on the teleological and schematic method of interpretation so as to advance the purpose of the law. These constructional techniques have their own importance in the interpretation of statutes meant to ameliorate the conditions of suffering sections of the society. We have attempted to show that taking the language of the statute as one finds it, there is no escape from the conclusion that a divorced Muslim wife is entitled to apply for maintenance under section 125 and that, Mahr is not a sum which, under the Muslim Personal Law, is payable on divorce. Though Bai Tahira was correctly decided, we would like, respectfully, to draw attention to an error which has crept in the judgement There is a statement at page 80 of the report, in the context of section 127 (3) (b), that "payment of Mahr money, as a customary discharge, is within the cognizance of that provision". We have taken the view that Mahr, not being payable on divorce, does not fall within the meaning of that provision. It is a matter of deep regret that some of the interveners who supported the appellant, took up an extreme position by displaying an unwarranted zeal to defeat the right to maintenance of women who are unable to maintain themselves. The written submissions of the All India Muslim Personal Law Board have gone to the length of asserting that it is irrelevant to inquire as to how a Muslim divorce should maintain herself. The facile answer of the Board is

(that the Personal Law has devised the system of Mahr to meet the requirements of women and if a woman is indigent, she must look to her relations, including nephew and cousins, to support her. This is a most unreasonable view of law as well as life. We appreciate that Begum Temur Jehan, a social worker who has been working in association with the Delhi City Women's Association for the uplift of Muslim women, intervened to support Mr. Daniel Latifi who appeared on behalf of the wife It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India". There is no evidence of any official activity for 867 framing a common civil code for the country.A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law.A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal Laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case. Dr. Tahir Mahmood in his book 'Muslim Personal Law' (1977 Edition, pages 200-202), has made a powerful plea for framing a uniform Civil Code for all citizens of India. He says: "In pursuance of the goal of secularism, the State must stop administering religion based personal laws". He wants the lead to come from the majority community but, we should have thought that, lead or no lead, the State must act. It would be useful to quote the appeal made by the

author to the Muslim community: "Instead of wasting their energies in exerting theological and political pressure in order to secure an "immunity" for their traditional personal law from the state` legislative jurisdiction, the Muslim will do well to begin exploring and demonstrating how the true Islamic laws, purged of their time-worn and anachronistic interpretations, can enrich the common civil code of India." At a Seminar held on October 18, 1980 under the auspices of the Department of Islamic and Comparative Law, Indian Institute of Islamic Studies New Delhi? he also made an appeal to the 868 Muslim community to display by their conduct a correct understanding of Islamic concepts on marriage and divorce (See Islam and Comparative Law Quarterly, April-June, 1981, page 146). Before we conclude, we would like to draw attention to the Report of the Commission on marriage and Family Laws, which was appointed by the Government of Pakistan by a Resolution dated August 4, 1955. The answer of the Commission to Question No.5 (page 1215 of the Report) is that "a large number of middle-aged women who are being divorced without rhyme or reason should not be thrown on the streets without a roof over their heads and without any means of sustaining themselves and their children." The Report concludes thus: "In the words of Allama Iqbal, "the question which is likely to confront Muslim countries in the near future, is whether the law of Islam is capable of evolution-a question which will require great intellectual effort, and is sure to he answered in the affirmative " For these reasons, we dismiss the appeal and confirm the judgment of the High Court. The appellant will pay the costs of the appeal to respondent 1, which we quantify at rupees ten thousand. It is needless to add that it would be open to the respondent to make an application under section 127 (1) of the Code for increasing the allowance of maintenance granted to her on proof of a change in the circumstances as envisaged by that section. S.R. .Appeal dismissed 869

PETITIONER: PRATIBHA RANI Vs. RESPONDENT: SURAJ KUMAR & ANR. DATE OF JUDGMENT12/03/1985 BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA MUKHARJI, SABYASACHI (J) VARADARAJAN, A. (J) CITATION: 1985 AIR 628 1985 SCR (3) 191 1985 SCC (2) 370 1985 SCALE (1)458 CITATOR INFO : RF 1986 SC 833 (50) RF 1992 SC 604 (103) ACT: Nature, character and concomitants of stridhan-Right of exclusive ownership over the stridhan during coverture- Whether the dowry/stridhan given to a wife and her exclusive property becomes a joint property/partnership property by a fiction of being placed in the custody of her husband and her relations, the moment a married woman enters her matrimonial home-Indian Partnership Act, 1932, section 4. Dowry Prohibition Act (28 of 1961) sections 2 Hindu Marriage Act, 1955 section 27 Hindu Succession Act Section 14 Indian Penal Code, sections 405, 406 and 482. Remedies open under law-Whether criminal remedy is barred when civil remedy is available simultaneously. Entrustment-Charge Or Criminal breach of trust by wife against her husband and his close relations maintainability- Essential ingredients of an offence section 405/406 Indian Penal Code. Inherent powers of the High Court to quash a First Information Report on a complaint under section 482' the Code of Criminal Procedure, 1973 (Act 11 of 1974),

explained. HEADNOTE: The appellant Pratibha Rani, the estranged wife of the first respondent Suraj Kumar, filed a criminal complaint against her husband, his father, his three brothers and a brother-in-law in the court of the Additional Chief Judicial Magistrate, Ludhiana, alleging; (i) that she was married to the first respondent at Ludhiana on 4 2. 1972 according to Hindu rites and customs; (ii) that the aforesaid persons, namely, father, brothers and brother-in-law of the first respondent attended the marriage and demanded dowry from the appellants' parents as consideration for the marriage; (iii) that the dowry articles mentioned in the list worth Rs 60,000 in the form of gold ornaments, clothes and other valuables were given and entrusted to the respondents and four others at Ludhiana at the time of 'doli' on 5. 2. 1972 in the presence of Kapur Chand Jain and six others; (iv) that all the six respondents, from the time of marriage started teasing, harassing and beating her and they kept her without even food to extract more money from her parents; (v) that they turned out the appellant with her children in the beginnings of 1977 (vi) that after a great deal of persuasion and intervention by Panchayatdars, respondent No. I came 192 to Ludhiana and took her to his house, after giving an undertaking in writing on 21. 6. 1977 not to misbehave with and not to maltreat the appellant and her children; (vii) that after some time all the respondents in the Complaint not only started again maltreating the appellant and misbehaving with her, but also brought the appellant at 4.30 a.m. On 11.12.80 and left her near Kailash Cinema Chowk, (viii) that the articles (the stridhana) mentioned in the list appended to the complaint were never given by the respondents to the appellant for her use but were retained by them illegally and with the dishonest intention of causing wrongful gain to themselves and wrongful loss to the appellant y (ix) that when the appellants' husband and his brother, Vishwinder Kumar, respondent 1 and 5 in the complaint, came to Ludhiana on 10 2.81 to attend the proceedings started by the appellant under section 125 Criminal Penal Code her parents persuaded them to return the articles entrusted to them at the time of the marriage but

they flatly refused to comply with that demand; (x) that the articles have not been returned in spite of service of notice dated 17.12.81 on the first respondent; (xi) that the respondents in the complaint have dishonestly, thus, converted the articles belonging to the appellant for their use in violation of the instructions of the appellants' parents given at the time of the marriage to give the articles for the appellants' use and that (xii) they individually and jointly committed the offences under sections 405 and 406 Indian Penal Code. Thereupon respondent No. 1 filed Criminal Misc. Application No. 4876 of 1981 in the Punjab and Haryana High Court under section 482 of the Code of Criminal Procedure for quashing the criminal proceedings and the complaint taken on file by the Additional Chief Judicial Magistrate, Ludhiana under section 406 IPC and his order summoning them.A Learned Single Judge of the High Court relying strongly upon the observations made by a Full Bench of that High Court in Vinod Kumar Sethi & Ors. v. State of Punjab & Ors. reported in AIR 1982 Punjab 372 allowed the petition and quashed the proceedings arising out of the appellants' complaint, observing that the allegations in the appellants' complaint are similar to the one in that case and therefore, fully covered by the ratio in that decision. Hence the appeal by special leave. Allowing the appeal, the Court, ^ HELD; (Per E.lzal Ali, J.) (on behalf of Sabyasachi Mukharji, J. and himself) 1.1 The stridhan property of a married woman cannot acquire the character of a joint property of both the spouses as soon as she enters her matrimonial home so as to eliminate the application of section 406 IPC. The position of stridhan of a Hindu married woman's property during coverture is absolutely clear and unambiguous; she is the absolute owner of such property and can deal with it in any manner she likes-She may spend the whole of it or give it away at her own pleasure by gift or will without any reference to her husband. The entrustment to the husband of the stridhan property is just like something which the wife keeps in a bank and can withdraw any amount when ever she likes without any hitch or hindrance. Ordinarily, the husband has no right or interest in it with the sole exception that in times of extreme distress, as 193 in famine, illness or the like, the husband can utilize it

but he is morally bound to restore it or its value when he is able to do so. This right is purely personal to the husband and the property so received by him in marriage cannot be proceeded against even in execution of a decree for debt. [206F; 201D-E] Suraj Kumar & Anr. v. Pratibha Rani, Criminal Misc. Petition No. 4876 of 1981 Punjab & Haryana High Court reversed. Vinod Kumar Sethi & Ors. v. State of Punjab & Anr. AIR 1982 Punjab 372; Surinder Mohan v. Smt Kiran Saini, 1977 Chandigarh Law Reporter 212; Kailash Vati v. Ayodhya Parkash, ILR (1977) 1 Punjab & Haryana 642 (FB) overruled. 1.2 A perusal of the allegations made in the complaint undoubtedly makes out a positive case of the accused having dishonestly misappropriated the articles handed over to the n in a fiduciary capacity. To characterise such an entrustment as a joint custody or property given to the husband and the parents is wholly unintelligible.A perusal of the list reveals that so far as the jewellery and clothes, blouses, nighties and gowns are concerned they could be used only by the wife and were her stridhan. By no stretch of imagination could it be said that the [ornaments and sarees and other articles mentioned above could also be used by the husband. If, therefore, despite demands these articles were refused to be returned to the wife by the husband and his parents, it amounted to an offence of criminal breach of trust. All the ingredients of an offence under section 405 IPC were pleaded and a prima facie case for summoning the accused was made out. In such circumstances, the complaint should have been given an opportunity by the High Court to prove her case rather than quashing the complaint. Such an exercise of jurisdiction by the High Court under section 482 Cr. P. is totally unwarranted by law. [203A; 204B-D; 203B-C] 2.1 Criminal law and matrimonial home are not strangers. Crimes committed in matrimonial home are as much punishable as anywhere else. The mere factum of the husband and wife living together does not entitle either of them to commit a breach of criminal law and if one does then he/she will be liable for all the consequences of such breach. In the case of stridhan properly also, the title of which always remains with the wife though possession of the same may sometimes be with the husband or other members of his family, if the husband or any other member of his family commits such an offence, they will be liable to punishment for the offence of criminal breach of trust under sections

405 and 406 IPC. Just as a newly married woman living in the same house and under the same roof cannot be expected to keep her personal property or belongings like jewellery, clothing, etc. under her own lock and key thus showing a spirit of distrust to the husband at the very behest, a husband cannot be permitted to cast his covetous eyes on the absolute and personal property of his wife merely because it is kept in his custody, thereby reducing the custody to a legal farce. On the other hand, even if the personal property of the wife is jointly kept it would be deemed to be expressly or impleedly kept in the custody of the husband and i f he dishonestly misappropriates or refuses 194 to return the same, he is certainly guilty of criminal breach of trust, and there can be no escape from this legal consequence. [207E-G; 208B-Cl 2.2 It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two remedies-are under civil law and the other under criminal law are not mutually exclusive but coextensive and essentially differ in their content and consequences. Therefore, it cannot be said that, if the husband dishonestly misappropriates the stridhan property of his wife though kept in his custody, that would not par prosecution under section 406 IPC or render the ingredients of section 405 IPC nugatory or abortive. To say that because the stridhan of a married woman is kept in the custody of her husband no action against him can be taken as no offence is committed is to override and distort the real intent of law. [208E-F] 3.1 Neither section 27 of the Hindu Marriage Act nor section 14 of the Hindu Succession Act, go to the extent of providing that the claim of a woman on the basis of stridhan is completely abolished, or that a remedy under the criminal law for breach of trust is taken away. All that the two sections, provide is that if the husband refuses to return the stridhan property of his wife, it will be open to the wife to recover the same by a properly constituted suit. [204G-H; 205A] 3.2 Section 27 of the Hindu Marriage Act merely provides for- an alternate remedy and does not touch or affect in any way the criminal liability of the husband in case it is proved that he has dishonestly misappropriated the stridhan of his wife. It cannot also be spelt out from any textbook or the sastric law of the Hindus that these two Acts take away the stridhan right of a woman-at the most

these Acts merely modify the concept of stridhan. [205C-D] Bhai Sher Jang Singh & Anr. v. Smt. Virinder Kaur, 1979 Criminal Law Journal 493 approved. Surinder Mohan v. Smt. Kiran Saini, 1977 Chandigarh Law Reporter 212 over ruled. 4.1 It is neither appropriate nor apposite to import the concept of partner ship of husband and wife for the simple reason that the concept of partnership is entirely different from that of the husbands' keeping the stridhan in his custody. From the definition of the partnership in section 4 of the Indian Partnership Act, it is manifest that in a partnership the wife must by some clear and specific act indicate that the stridhan which has been entrusted to the husband is to be used for a partnership business and the losses of the firm, if any, would have to be shared by both.A pure and simple act of entrustment of the stridhan to the husband does not attract any of the essential ingredients of a partnership as defined in the Partnership Act. When the essential conditions of a partnership do not exist. the mere factum of entrustment of stridhan would not constitute any co-ownership or legal partnership, There is also no 195 question of the wife, constituting herself a partner with her husband merely by allowing him to keep the article or money in his custody. Further, in this case, there is, neither any pleading nor any allegation that after her marriage, the appellant transferred all her properties to her husband for carrying on a partnership business in accordance with the provisions of the Partnership Act. Therefore, a criminal prosecution under section 406 IPC is maintainable. [209E; 210B-C; G; 211C-D] Vinod Kumar Sethi & Ors. v. State of Punjab & Anr. AIR 1982 Punjab 372; Surinder Mohan etc. V. Smt. Kiran Saini, 1977 Chandigarh Law Reporter 212; Kailash Vati v. Ayodhya Parkash, ILR (1973) 1 Punjab & Haryana, P 612; Kailash Nath Agarwal & Ors. v. Prem Pal Agarwal & Anr. Crl. Misc. case No. 676 of 1981 connected with Crl. Misc. case No. 2753 of 1981 decided on 22.12.83 Allahabad High Court overruled. In the instant case, however, there is neither any allegation nor anything in the complaint to show that when the wife entered her matrimonial home she had entrusted property to her husband so as to make him part owner of the same. Therefore, the question Or the husband having dominion

over the property does not at all arise. In fact the wife has nothing to do With the partnership, if any and the husband is a pure and simple custodian of the property and cannot use the Same for any purposed without her consent. [210E-F] The concept of stridhan property of a married woman becoming joint property of both the spouses as soon as she enters her matrimonial home and continues to be so until she remains there or even if there is a break in the matrimonial alliance, is in direct contravention of Hindu law of Sadayika which has been administered since more than a century by High Court, Privy Council and also the Supreme Court. [212C-D] 4.2 The Full Bench decision in Vinod Kumar's case would not only render the provisions of section 406 IPC inapplicable and nugatory even if the husband has the audacity or the importunity of refusing to return the stridhan of his wife, but also be in direct contravention of a long course of decisions of Supreme Court on the ingredients of section 405 IPC. [212A-B] By a pure and simple figment of the fertile imaginations, the Judges in the Vinod Kamat's case seem to have rewritten the law of criminal breach of trust contained in sections 405 and 406 IPC so as to carve out an imaginary exception to the application of the Penal Code- more tragic consequence of the view taken by the High Court is that even if there is a break in the matrimonial alliance and the wife wants her husband to return her exclusive property and he refuses lo return even then the provisions of section 406 IPC would not apply. It is an extreme travesty of justice for a court to say that whenever a married demands her stridhan property from her husband she should be driven to the dilatory process of a civil court and her husband would be debarred from being prosecuted by a criminal court. By a strange and ingenious process of holding that such an act of a husband does not attract the provisions of the 196 Penal Code, as the property being joint there is no question of the husband being a trustee or holding the same in a fiduciary capacity. Such a view is not only contradictory but-what the High Court has said before regarding the applicability of section 27 of the Hindu Marriage Act and the nature of stridhan-is also neither in consonance with logic and reason nor with the express provisions of the Penal Code and seems to be inspired by a spirit of male chauvinism so as to exclude the husband from criminal

liability merely because his wife has refused to live in her matrimonial home. The High Court, functioning in a civilised and socialistic society such as ours cannot play such a havoc with judicial interpretation of an important branch of law. The High Court cannot make a complete volte-face by holding that these very properties after marriage become joint property of both the spouses. The High Court has not realised that the theory or philosophy of matrimonial home propounded by it stands directly contradicted by its own observations. [212D-H; 213A; H; 214A] 4.3 The fundamental core of the offence of criminal breach of trust is that a property must be entrusted and the dominion of the property should be given to the trustee. In the present case, all these conditions, even according to the findings of the High Court though not its conclusions are clearly established. [217C] Chelloor Manaklal Narayan Ittiravi Nambudiri v. State of Travancore; AIR 1953 SC478; Jaswantrai Manilal Akhaney v. State of Bombay, [1956] SCR 483; State of Gujarat v. Jaswantlal Nathalal [1968] 2 SCR 408; Sushil Kumar Gupta v. Joy Shankar Bhattacharjee, AIR 1971 SC 1543; Superintendent JUDGMENT: [4] SCC 230 referred to. Harihar Prasad Dubey v- Tulsi Das Mundhra & Ors. AIR 1949 Calcutta 207; Akharbhai Nasarali v. Md. Hussain Bhai AIR 1961 MP 37; Basudeb Patra v. Kana. Lal Haldar, AIR 1949 Calcutta 207, Bhai Sher Jang Singh and Anr. v. Smt. Virinder Kaur, 1979 Crl. L-J. 493; Avtar Singh and Anr v. Kirpal Kaur, Crl. Misc. No. 2144 of 1979 and Cr l Misc. No. 2145 of 1979 approved. Vinod Kumar Sethi & Ors. v- State of Punjab and Anr. ATR 1982 Punjab 372; Surinder Mohan etc. v. Smt. Kiran Saini, 1977 Chandigarh Law Reporter 212; Kailash Nath Agarwal & Ors- v. Prem Pal Agarwal & Anr. Crl. Misc. Case No. 676 of 1981 connected with Crl. Misc. case No. 2753 of 1981, Allahabad High Court: Kailash Vati v. Ayodhya Parkash, ILR (1977) 1 Punjab d: Haryana 642 overruled. 5. For the purpose of exercising its power under section 482 Cr. PC to quash a First Information Report or a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations. In case no offence is committed on the

allegation and the ingredients of section 405 and 406 IPC are not made out, the High Court would be justified in quashing the proceedings. In the -present case, the allegations are both clear, specific and unambiguous and 197 therefore, the complaint should have been given a chance to prove her case. It is, of course open to the accused at the trial to take whatever defences that were open to him or her but that stage had not yet come and therefore, the High Court was totally ill-advised to speculate on the merits of the case at that stage and quash the proceedings. Since all the facts stated in the complaint constituted an offence under section 406 IPC, the appellant cannot be denied the right to prove her case at the trial by pre-empting it the very behest by the order passed by the High Court. [223D-H; 224D-E-] Vinod Kumar Sethi & Ors. v. State of Punjab & Anr, AIR 1982 Punjab 372, over-led. L.V. Jadhav v. Shakarrao Abasaheb Pawar & Ors. AIR 1983 SC 1219; Smt. Nagawa v. Veeranna Shivalingappa Konjalgi & ors. [1976] Supp. SCR 123 applied. OBSERVATION (It is surprising to find that so deeply drowned and inherently engrossed are some of the High Courts in the concept of matrimonial home qua the stridhan property- of a married woman that they simply refuse to believe that such properties are meant for the exclusive use of the wife and could also be legally entrusted to the husband or his relations. Thus, if the husband or his relations misappropriate the same and refuse to hand it over to the wife and convert them to their own use and even though these facts arc clearly alleged in a complaint for an offence under section 405/406 IPC, some courts take the view that the complaint is not maintainable. Thus even when clear and specific allegations are made in the complaint that such properties were entrusted to the husband, they refuse to believe these hard facts and brush them aside on the ground that they are vague, and completely shut their eyes to the fact that the husband could also be guilty under section 405/406 IPC in view of the clear allegations made in the complaint. In other words, the High Courts simply refuse to believe that there can be any such entrustment and even if it is so, no offence is committed. Such an approach amounts to a serious distortion of the criminal law, resulting in perpetrating grave and substantial miscarriage of justice to the wife at the hands of the High Courts. The Supreme Court

cannot continuance such a wrong and perverse approach.) [224G-H, 225A-C] Per A. Varadarajan, J. (dissenting) 1.1 In the absence of a separate agreement and specific entrustment by the wife to the husband and or his relations and vice versa of the property of the husband to the wife and or her relation, it would not be possible to draw an inference of entrustment of custody or dominion over the property of one spouse to the other and his or her relations so as to attract the stringent provisions of section 406 IPC. The offence of criminal break of trust is cognizable and non-bailable and punishable with imprisonment for a term of three years or with fine or with both. In the absence of such a separate agreement for specific entrustment of the property of either spouse the appropriate remedy would appear to be by way of a civil suit where there is scope for the parties to the marriage coming together at the instance of relations, elders and well- wishers and patching up their differences. [241G-H; 242A] 198 1.2 Entertaining complaints of the irate wife or husband against the husband or wife without even an allegation of a specific and separate agreement constituting entrustment of the property of the wife of the husband would have disastrous effects and consequences on the peace and harmony which ought to prevail in matrimonial homes. [242B] 1.3 The fact that no instance of any case of successful prosecution of the husband or wife at the instance of the wife or the husband could be brought to the notice of the Supreme Court in the course of the arguments in this appeal would show that the spouses had not lightly rushed in the past to criminal courts with complaints of criminal breach of trust against the other spouses though in the day-to-day life. There must have been numerous instance where the wife had used the property or cash of the husband for purposes different from the one for which they were given by the husband to be applied by the wife and vice-versa. Therefore, the minimum requirement in such cases is a specific separate agreement whereby the property of the wife or husband was entrusted to the husband or wife and or his or her close relations. In the absence of such a specific separate agreement in the present case the complaint was rightly quashed. [242D-F]

& CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 684 of 1982 From the judgment and order dt. the 31st May, 1982 of the High Court of Punjab & Haryana at Chandigarh in Crl. Misc. No. 4876M/81. V.C. Mahajan, and N.S. Das Bahl for the Appellant. Altat Ahamed for the Respondents. Mrs. U. Kapoor for the Intervener. T The following Judgments were delivered FAZAL ALI, J. Sometimes the lawwhich is meant to impart justice and fair play to the citizens or people of the count is so torn and twisted by a morbid interpretative process that instead of giving haven to the disappointed and dejected litigants it negatives their well established rights in law. The present case reveals the sad story of a helpless married woman who, having been turned out by her husband without returning her ornaments, money and clothes despite repeated demands, and dishonestly misappropriating the same, seems to have got some relief by the court of the first instance but to her utter dismay and disappointment when she moved the High Court she was forced like a dumb- driven cattle to seek the dilatory remedy of a civil suit- such was the strange and harsh approach of the High Court, with due respect, which seems to have shed all the norms of justice and fair play. Even so, the High Court is not much to be blamed because in the process of following precedents or decisions of doubtful validity of some courts, it tried to follow suit. It may be stated that even the old 199 classic Hindu law jurists and celebrated sages conceded certain substantial rights to the women, one of which was - what is called Saudayika or stridhan, with which we are concerned here. This now brings us to a brief discussion of the nature, character and concomitants of stridhan. In the instant case, we are mainly concerned with that part of stridhan which is the absolute property of a married women during coverture. Sir Gooroodas Banerjee in 'Hindu Law of Marriage and Stridhana' while describing the nature of stridhan quoted Katyayana thus: "Neither the husband, nor the son, nor the father, nor the brother, has power to use or to alien the legal property of a woman. And if any of them shall consume such property against her own consent he shall be compelled to pay its value with interest to her, and

shall also pay a fine to the king... Whatever she has put amicably into the hands of her husband afflicted by disease, suffering from disease, or sorely pressed by creditors, he should repay that by his own freewill. " (P.341) At another place while referring to the nature of a husband's rights over stridhan during coverture, the author referring to Manu says thus: " .. and by the law as expounded by the commentators of the different schools, the unqualified dominion of the husband is limited to only some descriptions of the wife's property, while as regards the rest he is allowed only a qualified right of use under certain circumstances specifically defined." (p.340) Similarly, while describing the nature of stridhan generally, which is known as saudayika, the author says thus: "First, take the case of property obtained by gift. Gifts of affectionate kinderd, which are known by the name saudayika stridhana, constitute a woman's absolute property, which she has at all times independent power to alienate, and over which her husband has only a qualified right, -namely, the right of use in times of distress." 200 The entire classical text on the subject has been summarised by N.R. Raghavachariar in 'Hindu Law' (5th Edn) at page 533 (section 487) where the following statement is made: "487. Powers During Coverture. Saudayika, meaning the gift of affectionate kindred, includes both Yautaka or gifts received at the time of marriage as well as its negative Ayautaka. In respect of such property, whether given by gift or will, she is the absolute owner and can deal with it in any way she likes. She may spend, sell or give it away at her own pleasure by gift or will without reference to her husband and property acquired by it is equally subject to such rights. Ordinarily, the husband has no manner of right or interest in it. But in times of extreme distress, as in famine, illness or imprisonment, or for the performance of indispensable duty the husband can take and utilise it for his personal purposes, though even then he is morally bound to restore it or its value when able to do so. But this

right is purely personal to him and cannot be availed of by a holder of a decree against the husband, and if the husband dies with out utilising the property for the liquidation of his debts, his creditors cannot claim to proceed against it in the place of her husband." To the same effect is Maines' treatise on Hindu Law at page 728. The characteristics of Saudayika have also been spelt out by Mulla's Hindu law at page 168 (section 113) which gives a complete list of the stridhan property of a woman both before and during coverture, which may be extracted thus: "113. Manu enumerates six kinds of stridhana: 1. Gifts made before the nuptial fire, explained by Katyayana to mean gifts made at the time of marriage before the fire which is the witness of the nuptial (adhyagni). 2. Gifts made at the bridal procession, that is, says Katyayana, while the bride is being led from the residence of her parents to that of her husband 201 (adhyavanhanika) 3. Gifts made in token of love, that is, says Katyayana, those made through affection by her father-in-law and mother-in-law (pritidatta), and those made at time the of her making obeisance at the feet of elders (padavan danika). 4. Gifts made by father. 5. Gifts made by mother. 6. Gifts made by a brother." It is, therefore, manifest that the position of stridhan of a Hindu married woman's property during coverture is absolutely clear and unambiguous; she is the absolute owner of such property and can deal with it in any manner she likes - she may spend the whole of it or give it away at her own pleasure by gift or will without any reference to her husband. Ordinarily, the husband has no right or interest in it with the sole exception that in times of extreme distress, as in famine illness or the like, the husband can utilise it but he is morally bound to restore it or its value when he is able to do so. It may be further noted that this right is purely personal to the husband and the property so received by him in marriage cannot be proceeded against even in execution of a decree for debt. Such being the nature and character of stridhan of a

woman, it is difficult to countenance the view of the Punjab & Haryana High Court in Vinod Kumar Sethi & Ors. v. State of Punjab & An.(l) that the stridhan property of a married woman becomes a joint property as soon as she enters her matrimonial home. We shall deal with this aspect of the matter a little later. We would first like to narrate the facts of the case to show how the complaint filed by the appellant was wrongly quashed by the High Court. The general allegations made in the complaint may be summarised as follows:- (1) AIR 1982 Punjab 372- 202 The complainant was married to Suraj Kumar, Accused No. 1 (respondent) on 4.2.72 at Ludhiana according to Hindu rites and customs in the presence of respectable persons. Accused No.2 was the father and accused Nos.3 to 5 were brothers and No.6 was brother-in-law of accused No.; It is further alleged that all the accused attended and actively participated in the marriage of the complainant and demanded dowry. The must important allegation made by the appellant was that her parents and relatives gave by way of dowry articles worth Rs. 60,000/- inclusive of gold ornaments, clothes and other things which were entrusted to accused Nos.1 to 6 on 5.2.72 which were taken into possession by them. Soon after the marriage, accused No. 1 started harassing, teasing and beating the complainant and ultimately turned her out alongwith her children sometime in the year 1977. It was avered in para 4 of the complaint that accused never returned the articles to her, the relevant portion of the allegations may be extracted thus:- "The articles above-mentioned were never given by the accused to the complainant for her use and possession of the same was illegally, dishonestly and malafidely retained by the accused in order to make a wrongful gain to them selves and wrongful loss to the complainant. The accused refused to give the entrusted articles of dowry, which were the stridhan of the complainant. On 10.2.1981 when the accused Nos. 1 to 5 came to Ludhiana to attend the proceeding u/s 125 Cr.P.C., filed by the complainant in the Court of Shri S.S. Tiwana, they were persuaded by the parents of the complainant to send the articles entrusted to them at the time of marriage but they gave flat refusal to its notice which was served upon the accused No.1 which was dated 17.12.80, but to no effect. The accused have thus

dishonestly used and converted the articles aforementioned to their own use, who are still in possession of the same in violation of the direction given by the parents of complainant. The parents of the complainant directed the accused at the time of marriage to give the articles to the complainant for her use, in the presence of the aforesaid persons, but the accused have not done the needful of the demand and have thus committed criminal breach of trust punishable u/s 406 IPC." 203 A perusal of the allegations made in the complaint undoubtedly makes out a positive case of the accused having dishonestly misappropriated the articles handed over to them in a fiduciary capacity. To characterise such an entrustment as a joint custody or property given to the husband and the parents is wholly unintelligible to us. All the ingredients of an offense under s.405 IPC were pleaded and a prima facie case for summoning the accused was made out. In such circumstances, the complainant should have been given an opportunity by the High Court to prove her case rather than quashing the complaint. Such an exercise of jurisdiction under s.482 Cr.P.C. is totally unwarranted by law. We might also mention that alongwith the complaint, a list of valuable articles had also been given, the relevant portion of which may be extracted thus; I. " Jewellery" 1. Nine complete gold sets 2. One complete diamond set 3. Three gold rings 4. Two golden Bahi (Baju Band) 5. One golden chain 6. One shingar patti with golden tikka 7. One golden nath (Nose ring) 8. Twelve golden bangles II. Silver articles 1. Six glasses and one jug 2. Two surma danies 3. One tagari 4. Two payals III. Clothes Fifty one sarees, twenty one suits alongwith petti 204 coats, blouses, nighties, shawls, sweaters, night suits, gowns and woollen coat etc., six complete beds with sheets, etc."

A perusal of the list reveals that so far as the jewellery and clothes, blouses, nighties and gowns are concerned they could be used only by the wife and were her stridhan. By no stretch of imagination could it be said that the ornaments and sarees and other articles mentioned above could also be used by the husband, If, therefore, despite demands these articles were refused to be returned to the wife by the husband and his parents, it amounted to an offence of criminal breach of trust. In mentioning the articles in the list, we have omitted furniture and utensils which though also belonged to the complainant yet there is some room for saying that these were meant for joint use of the husband and wife. Thus, the facts mentioned in the complaint taken at their face value reveal a clear allegation that the stridhan property of the appellant was entrusted to the husband who refused to return the same to her Some courts were of the opinion that in view of s. 27 of the Hindu Marriage Act and s. 14 of the Hindu Succession act, the concept of stridhan property of a woman was completely abolished. For instance, the Punjab & Haryana High Court in a case reported in Surindra Mohan etc. v. Smt. Kiran Saini(1) held thus: "That under the present law on claim can be made on the basis of stridhan, as it has now been completely abolished and cannot avail against statute which makes it the joint property of the parties." We are of the opinion that this view of the High Court is not legally sustainable because neither of the two Acts, referred to above, go to the extent of providing that the claim of a woman on the basis of stridhan is completely abolished. All that the two sections, mentioned above, provide is that if the husband re- (1) 1977 Chandigarh Law Report 212 205 fuses to return the stridhan property of his wife, it will be open to the wife to recover the same by properly constituted suit. The sections nowhere provide that the concept of stridhan is abolished or that a remedy under the criminal law for breach of trust is taken away. In a later decision in Bhai Sher Singh & Anr. v. Smt. Virinder Kaur(1), it was very rightly pointed out by the same High Court that s. 27 of the Marriage Act merely provides an alternate remedy to the wife to bring a properly constituted suit in respect of the stridhan property which the husband refused to return. Thus, it is clear that s. 27

merely provides for an alternate remedy and does not touch or affect in any way the Criminal liability of the husband in case it is proved that he has dishonestly misappropriated that stridhan of his wife. It cannot also be spelt out from any textbook or the sastric law of the Hindus that the two Acts mentioned above take away the stridhan right of a woman-at the most these Acts merely modify the concept of stridhan. It may be useful to refer to certain pertinent observations in the aforesaid case. "The aforementioned passage shows that a female has an absolute right to use her stridhan in any way she likes and even if her husband can take this property at the time of distress, this right is personal to him, The allegations made in the instant complaint are not that the husband of the respondent has placed her ornaments and jewellery etc. Out of her way. What has been alleged therein is that the petitioners who are the parents-in-law of the respondent have converted the ornaments and clothes, etc. presented to the respondent at the time of her marriage to their own use. Section 27 of the Hindu Marriage Act empowers a Court while deciding a matrimonial dispute to also pass a decree in respect of property which may jointly belong to both the husband and the wife. This section at best provides a civil remedy to an aggrieved wife and does not in any way take away her right to file a crimi- (1) 1979 Crl. L.J. 493. 206 nal complaint if the property belonging to her is criminally misappropriated by her husband.'' In these circumstances, the decision reported in 1977 Chandigrah Law Reporter 212 can no longer be considered good law. Even in Vinod Kumar's case (supra) the Full Bench reiterated the view that s. 27 in no way abolishes stridhan but expressly recognises the property exclusively owned by the wife. In this connection, the Court observed thus: "The express words of the provision refer to property 'which may belong jointly to both the husband and the wife'. It nowhere says that all the wife's property be longs jointly to the couple or that Stridhan is abolished and she cannot be the exclusive owner thereof. Indeed, in using the above terminology the statute expressly recognises that property which is exclusively owned by the wife is not within the ambit

of Section 27 of the Hindu Marriage Act- - -Equally no other provision in the Hindu Marriage Act could be pointed out which erodes the concept of Stridhan or in anyway incapacitates the Hindu wife to hold property as an exclusive owner." The sheet-anchor of the arguments of the counsel for the respondents-which is based on the decision of the Punjab & Haryana High Court in Vinod Kumar's case-is that the moment a woman after Marriage enters her matrimonial home, her stridhan property becomes a joint properly of both the spouses and the question of application of s. 406 I.P.C is completely eliminated. It is true that to a great extent this part of the argument of the learned counsel is supported by the aforesaid decision but, in our opinion, the decision, so far as this aspect of the matter is concerned, is wholly unsustainable. We would first extract the exact ratio held by the High Court in Vinod Kumar's case: "To conclude, it necessarily follows from the aforesaid discussion that the very concept of the matrimonial home connotes a jointness of possession and custody by the spouses even with regard to the moveable properties exclusively owned by each of them. It is, therefore, inapt to view the same in view of the conjugal relationship as 207 involving any entrustment or passing of dominion over property day-to-day by the husband to the wife or vice versa. Consequently, barring a special written agreement to the contrary, no question of any entrustment or dominion over property would normally arise during coverture or its imminent break-up. Therefore, the very essential prerequisites and the core ingredients of the offence under S.406 of the Penal Code would be lacking in a charge of criminal breach of trust of property by one spouse against the other." These observations on doubt support the contention of the learned counsel for the respondent but we find it impossible to agree with the aforesaid observations for the reasons that we shall give hereafter. We fail to understand the logic of the reasoning adopted by the High Court in investing the pure and simple stridhan of the wife with the character of a joint property. We are surprised that the High Court should have taken the view that a woman's absolute property though well recognised by law is interpreted by it as being shorn its qualities and

attributes once a bride enters her matrimonial home. We are clearly of the opinion that the mere factum of the husband and wife living together does not entitle either of then to commit a breach of criminal law and if one does then he/she will be liable for all the consequences of such breach. Criminal law and matrimonial home are not strangers. Crimes committed in matrimonial home are as much punishable as anywhere else. In the case of stridhan property also, the title of which always remains with the wife though possession of the same may sometimes be with the husband or other members of his family, if the husband or any other member of his family commits such an offence, they will be liable to punishment for the offence of criminal breach of trust under ss. 405 and 406, IPC. Afterall how could any reasonable person expect a newly married women living in the same house and under the same roof to keep her personal property or belongings like jewellery, clothing, etc., under her own lock and key, thus showing a spirit of distrust to the husband at the very behest. We are surprised how could the High Court permit the husband to cast his covetous eyes on the 208 absolute and personal property of his wife merely because it is kept in his custody, thereby reducing the custody to a legal farce. On the other hand, it seems to that us even if the personal property of the wife is jointly kept, it would be expressly or impliedly kept in the custody of the husband and if he dishonestly misappropriates or refuses to return the same, he is certainly guilty of criminal breach of trust, and there can be no escape from this legal consequence. The observations of the High Court at other places regarding the inapplicability of s. 406 do not appeal to us and are in fact not in consonance with the spirit and trend of the criminal law. There are a large number of cases where criminal law and civil law can run side by side. the two remedies are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property of the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrong deer in cases like arson, accidents, etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope

and import. It is not at all intelligible to us to take the stand that if the husband dishonestly misappropriates the stridhan property of his wife, though kept in his custody, that would bar prosecution under s. 406 I.P.C. Or render the ingredients of s. 405 IPC nugatory or abortive. To say that because the stridhan of a married woman is kept in the custody of her husband, no action against him can be taken as no offence is committed is to override and distort the real intent of the law. Coming back to the theory of matrimonial home and the stridhan becoming a joint property of the two spouses, the logical effect of the observation made by the High Court is that once a woman enters her matrimonial home she completely loses her exclusive stridhan by the same being treated as a joint property of the spouses. In other words, if this view is taken in its literal sense the consequence would be to deprive the wife of the absolute character and nature of her stridhan and make the husband a co-owner of the same - such a concept is neither contemplated nor known to Hindu law of stridhan, nor does it appeal to pure 209 common sense. It is impossible to uphold the view that once a married woman enters her matrimonial home her stridhan property undergoes a vital change so as to protect the husband from being prosecuted even if he dishonestly misappropriates the same. For instance, properties like jewellery, clothing, cash, etc. given by her parents as gifts cannot be touched by the husband except invery extreme circumstances, viz., where the husband is in imprisonment or is in serious distress. Even then the religion and the law enjoins that the husband must compensate the wife and if he cannot do so, he must pay fine to the King which means that the husband would` be liable to penal action under the present law of the land. - One of the arguments addressed by the counsel for the respondent which had appealed to thee full Bench of the Pun jab & Haryana High Court in Vinod Kumar's case (supra) as also to our learned Brother Varadarajan, J., is that after entering the matrimonial home the custody of the stridhan entrusted by the wife to her husband becomes a sort of a partnership firm and in this view of the matter the question of criminal breach of trust does not arise. In our opinion, it is neither appropriate nor apposite to import the concept of partnership in the relationship of husband and wife for the simple reason that the concept of partnership is entirely different from that of the husband's keeping the

stridhan in his custody. Section 4 of the Indian Partnership Act, 1932 (hereinafter referred to as the 'Partnership Act') defines 'partnership' thus: "partnership" is the relation between persons who have agreed to share the profit of a business carried on by all or any of them acting for all. Persons who have entered into partnership with one another are called individually "partners" and collectively "a firm" and the name under which their business is carried on is called the "firm name". The essential ingredients of a partnership are: (1) that there should be an actual or physical overt act on the part of two persons to embark an a business adventure. (2) that if any business is carried on by one or any 210 of the partners the profits of the business shall be shared by - them in the ratio contained in the partnership agreement. It is, therefore, manifest that in a partnership the wife must by some clear and specific act indicates that the stridhan which has been entrusted to the husband is to be used for a partnership business and the losses of the firm, if any would have to be shared by both. In other words, one of the essential conditions of a partnership firm is that every partner must have dominion over the property by virtue of the fact that he is a partner. This aspect of the matter was highlighted in a decision of this Court in Velji a Raghavji v. State of Maharashtra(1) where the following observations were made: ".. Every partner has dominion over property by reason of the fact that he is a partner. This is a kind of dominion which every owner of property has over his property. But it is not dominion of this kind which satisfies the requirements of s. 405. In order to establish 'entrustment of dominion' over property to an accused person the mere existence of that person's dominion over property is not enough. It must be further shown that his dominion . was the result of entrustment." In the instant case, however, there is neither any allegation nor anything in the complaint to show that when the wife entered her matrimonial home she had entrusted the property to her husband so as to make him part owner of the same. Therefore, the question of the husband's having

dominion over the property does not at all arise. In fact, the wife has nothing to do with the partnership, if any, and the husband is a pure and simple custodian of the property and cannot use the same for any purpose without her consent.A pure and simple act of entrustment of the stridhan to the husband does not attract any of the essential ingredients of a a partnership as defined in the Partnership Act. In the instant case, there is also no question of the wife constituting herself a partner with her husband merely by allowing him to keep the articles or money in his custody. There is neither any pleading nor any allegation that after her marriage, the appe- (1)AIR 1965 SC 1433. 211 llant transferred all her properties to her husband for carrying on a partnership business in accordance with the provisions of the Partnership Act. Thus, in our opinion, it cannot be said that a bare act of keeping stridhan property in the custody of the husband constitutes a partnership and, therefore, a criminal case under s. 406 IPC is not maintainable. It is not necessary for us to multiply cases on this point on which there does not appear to be any controversy. We have already pointed out that the stridhan of a woman is her absolute property and the husband has no interest in the same and the entrustment to him is just like something which he wife keeps in a Bank and can withdraw any amount whenever she likes without any hitch or hindrance and the husband cannot use the stridhan for his personal purposes unless he obtains the tacit consent of his wife. When the essential conditions of a partnership do not exist the mere act or factum of entrustment of stridhan would not constitute any co-ownership or legal partnership as defined under s.4 of the Partnership Act. To sum up the position seems to be that a pure and simple entrustment of stridhan without creating any rights in the husband excepting putting the articles in his possession does not entitle him to use the same to the detriment of his wife without her consent. The husband has no justification for not returning the said articles as and when demanded by the wife nor can he burden her with loss-, of business by using the said property which was never intended by her while entrusting possession of stridhan.) On the allegations in the complaint, the husband is no more and no less than a pure and simple custodian acting on b-half of his wife and if he diverts the entrusted property elsewhere

or for different purposes he takes a clear risk of prosecution under s.406 of the IPC. On a parity of reasoning, it is mainfest that the husband, being only a custodian of the stridhan of his wife, cannot be said to be in joint possession thereof and thus acquire a joint interest in the property. For these reasons, the custody or entrustment of stridhan with the husband does not amount to a partnership in any sense of the term and therefore, we are unable to agree with view taken in Vinod Kumar's case as also with the opinion expressed by our Brother on the points arising in the case. Another serious consequence as a result of the ratio of the full Bench decision in Vinod Kumar's case would be to render the 212 provisions of s. 406 IPC inapplicable and nugatory even if the husband has the audacity or the importunity of refusing to return the stridhan of his wife. Furthermore, we shall hereafter show that the view of the Full Bench is in direct contravention of a long course of decisions of this Court on the ingredients of s. 405 IPC. Before coming to this chapter, we would like to say a few things more about the judgment of the High Court which on deeper probe and careful scrutiny seems to be self-contradictory. We are clearly of the opinion that the concept of stridhan property of a married woman becoming a joint property of both the spouses as soon as she enters her matrimonial home and continues to be so until she remains there or even if there is a break in the matrimonial alliance, is in direct contravention of Hindu Law of Sadayika which has been administered since more than a century by High Courts, Privy- Council as also this Court. By a pure and simple figment of the fertile imagination the Judges in Vinod Kumar's case seem to have rewritten the law of criminal breach of trust contained in ss. 405 and 406 IPC so as to carve out an imaginary exception to the application of the Penal Code.A more tragic consequence of the view taken by the High Court is that even if there is a break in the matrimonial alliance and the wife wants her husband to return her exclusive property and he refuses to return, even then the provisions of s. 406 IPC would not apply. It is an extreme travesty of justice for a court to say that whenever a married woman demands- her stridhan property from her husband she should be driven to the dilatory process of a civil court and her husband would be debarred from being

prosecuted by a criminal court. By a strange and ingenious process of holding that such an act of a husband does not attract the provisions of the Penal Code, as the property being joint there is no question of the husband being a trustee or holding the same in a fiduciary capacity. Such a view, in our opinion, is not only contradictory but-what the High Court has said before regarding the applicability of s.27 of the Hindu Marriage Act and the nature of stridhan as referred to above-is also neither in consonance with logic and reason nor with the express provisions of the Penal Code and seems to us to be inspired by a spirit of male chauvininism so as to exclude the husband from criminal lability merely because his wife has refused to live in her matrimonial 213 home. We are indeed surprised how could the High Court, functioning in a civilised and socialistic society such as ours, play havoc with judicial interpretation of an important branch of law. We shall now show how the final view taken by the High Court is clearly contradictory to what it has observed before. In paragraphs 22A, 23 and 24 of the judgment, the High Court observes as follows: "It must, therefore, be unreservedly stated that the law, as it stands today, visualises a complete and full ownership of her individual property by a Hindu wife and in this context the factum of marriage is of little or no relevance and she can own and possess property in the same manner as a Hindu male. Once it is held that a Hindu wife can own property in her own right, then it is purely a question of fact whether the dowry or the traditional presents given to her, were to be individually owned by her or had been gifted to the husband alone or jointly to the couple.- .. For instance jewellery meant for the personal wearing of the bride, wedding apparel made to her measures specifically, cash amounts put into a fixed deposit ill a bank expressly in her E name; are obvious examples of dowry raising the strongest, if not conclusive presumption, of her separate owner ship in these articles. Once it is found as a fact that these articles of dowry were so given to her individually and in her own right, then I am unable to see how the mere factum of marriage would alter any such property right and divest her of ownership either totally or

partially." In these paragraphs the High Court unequivocally and categorically expresses the view that a Hindu woman has complete and full ownership of her individual property and the factum of marriage is of no relevance to determine the nature of the property It also holds that articles like jewellery, wedding apparel and cash, etc., cannot alter any such property right. In view of this clear finding given by the High Court, how could it make a complete volte-face by holding that these very properties after marriage become joint property of both the spouses. The High Court has not realised that the theory or philosophy of matrimonial home 214 propounded by it stands directly contradicted by its own observations referred to above. In paragraph 49 of the judgment, the High Court clearly finds that the mere use by the relations of the husband would not have the effect of passing the possession of the property to the Hindu undivided family and in this connection observes thus :- Equally, the common use and enjoyment of certain articles of dowry and traditional presents, by the other members of a joint family with the leave and licence of a Hindu wife, cannot have the effect of extending the jointness Of control and custody of the couple to undefined and unreasonable limits. Consequently, there is no reason to assume that the mere user or enjoyment of the dowry by other members of the house-hold, would have the effect of passing the possession and control thereof jointly to the Hindu Undivided Family as such." Thus, these observations run counter and are totally inconsistent and irreconcilable with the view taken by the High Court in paragraph 41 where it has observed thus: "In the light of the above it would be farcical to assume that despite the factum of a marriage and a common matrimonial home the two spouses would stand in a kind of a formal relationship where each is entrusted with or has been passed dominion over the exclusive property of the other..-....The matrimonial home so long as it subsist presumes a jointness of custody and possession by the spouses of their individual as also of their joint properties line.. The inevitable presumption during the existence or the imminent break up of the matrimonial home there fore is one of joint possession of the spouses which might perhaps be

dislodged by the special terms of a written contract. However, to be precise this presumption of joint possession properties within the matrimonial home can subsist only as long- as the matrimonial home subsists or on the immediate break up thereof." At other places the High Court has observed thus: 215 "47. In view of the above, it would be equally untenable to hold that either the desertion or the expulsion of one of the spouses from the matrimonial home would result in entrusting dominion over the property belonging to the other so as to bring the case within the ambit of this pre requisite under S.405, Indian Penal Code. The joint custody and possession once established would thereafter........ exclude either express entrustment or the passing of dominion over the property. It was rightly argued that if an irate husband or wife walks out from the matrimonial home in a huff, this cannot constitute an entrustment or dominion over the property to the other. Consequently, unless a special written agreement to the contrary can be established, the strongest presumption arises that during the existence and immediately after the crumbling of the matrimonial home, there was in essence, a joint possession and custody of the property of the spouses therein, including dowry and traditional presents, which would preclude the essentials of entrustment or dominion over the property which form the cornerstone of criminality under s.405, Indian Penal Code. 53. It cannot, therefore, be prim. facie presumed that these are exclusively the ownership of the wife or inevitably entrusted either to the husband or his close relations. As was noticed earlier, if an irate wife in a tantrums abandons the matrimonial home, such like property does not in the eye of law become entrusted to the parents-in-law or other close relations of the husband No such gullible presumption of entrustment or passing of the dominion of property can be raised in such a situation to come within the mischief of criminality for breach of trust. Entrustment or dominion over the property has to be unequivocally alleged and conclusively established by proof later." The High Court had itself rightly spelt out the legal propositions that the pure and traditional presents given to a bride in a Hindu wedding may be divided into three

categories, viz., (a) property intended for exclusive use of the bride, e. g., her personal jewellery, wearing apparel, etc. 216 (b) articles of dowry which may be for common use and enjoyment in the matrimonial home, and (c) articles given as presents to the husband or the parent-in -law and other members of his family. With regard to category (a) above, the High Court observed thus: "Similarly as regards the first category of articles meant for the exclusive use of the bride she would retain her pristine ownership therein irrespective or her entry and presence in the matrimonial home or that of her parents in-law." The High Court thus accepts the well established rule of Hindu law of stridhan that that articles mentioned in category (a) are meant for the exclusive use of the bride and are her personal property. Unfortunately, however, with regard to category (c) while discussing the question of the rights of the bride to her exclusive property upon her entry in her matrimonial home, the High Court has wrongly applied what it had previously held with regard to category (a). In one breath the Judges say that the bride is entitled to retain her ownership irrespective of her entry and presence in the matrimonial home and in the other they come to the conclusion that the moment a married woman enters her matrimonial home, all her properties, including her exclusive property, become a joint property by a fiction of being placed in the custody of her husband or his relations. While we agree with the first part of the categories, as extracted above, we find it difficult to accept the other propositions adumbrated at a later stage of the judgment which have been fully discussed by us. We fail to understand how the High Court while finding that joint enjoyment does not divest a Hindu wife of her exclusive ownership still chose to treat it a joint property of the two spouses by the mere factum of joint user. The two views expressed by the High Court stand contradicted by its own findings and are wholly understandable. Thus, a detailed analysis of the judgment of the Punjab & Haryana High Court in Vinod Kumar's case (supra) appears to us to be a mass of confusion and lacks both clarity and coherence. We are, therefore, unable 217 to uphold or support the view of the High Court that upon

entering the matrimonial home the ownership of stridhan property becomes joint with her husband or his relations- To this extent, therefore, we overrule this decision and hold that with regard to the stridhan property of a married woman, even if it is placed in the custody of her husband or in-laws they would be deemed to be trustees and bound to return the same if and when demanded by her. The Supreme Court in a large number of cases has held that the fundamental core of the offence of criminal breach of trust. is that a property must be entrusted and the dominion of the property should be given to the trustee. In the present case, all these conditions, even according to the findings of the Court though not its conclusion, are clearly established. That the view of the High Court is absolutely wrong would be clear from a number of authorities, some of which we would like to discuss here. In Chelloor Manaklal Narayan Ittiravi Nambudiri v. State of Travancore(1) this Court made the following observations: "As laid down in S. 385, Cochin Penal Code (corresponding to S. 405, Indian Penal Code) to constitute an offence of criminal breach of trust it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it-It follows almost axiomatically from this definition that the ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit." In Jaswantrai Manilal Akhaney v., State of Bombay(2) Sinha, J. (as he then was) observed thus: "For an offence under section 409, Indian Penal Code, the first essential ingredient to be proved is that the property was entrusted- - But when section 405 which defines "criminal breach of trust speaks of a person being (1) AIR 1953 SC 478. (2) [1956] S.C.R. 483. 218 in any manner entrusted with property, it does not contemplate the creation of a trust with all the technicalities of trust. It contemplates the creation of a relationship whereby the owner of property makes it over to another person to be retained by him until a

certain contingency arises or to be disposed of by him on the happening of a certain events." In Akharbhai Nazorali v. Md. Hussain Bhai(1) the Madhya Pradesh High Court made the following observations: "It may be that the deduction and retention of the employees' contribution is a trust created by virtue of that very fact, or by virtue of a provision in statute or statutory rule. But even apart from the latter, the mere fact of telling the employees that it is their contribution to the provident fund scheme and then making a deduction or recovery and retaining it, constitutes the offence of criminal breach of trust. This is so obvious that nothing more need be said about it." These observations were fully endorsed and approved by this Court in Harihar Prasad Dubey v. Tulsi Das Mundhra & Ors.(2 where the following observations were made: "This, in our opinion, is a correct statement of the position and we also agree with the learned Judge of the Madhya Pradesh High Court that "this so obvious that nothing more need be said about it We, therefore, think that the impugned order quashing the charge against the respondents is obviously wrong." In Basudeb Patra v. Kanai Lal Haldar(3) the Calcutta High Court observed thus: "Whereas the illustration to s. 405 show equally clearly that the property comes into. (1) AIR 1961 M. P. 37: (2) AIR 1981 SC 92. (3) AIR 1949 Calcutta 207, 219 the possession of the accused either by an express entrustment or by some process placing the accused in a position of trust..-.-On the facts of the present case, which, as I have said, are not open to question at this stage, it is quite clear that the ornaments were handed over to the petitioner by the beneficial owner in the confidence that they would be returned to the beneficial owner in due time after having been used for the purpose for which they were handed over. If this is not an entrustment, if is impossible to conceive what can be an entrustment." (Emphasis ours) This ratio was fully approved by this Court in Velji Raghavji Patel v. State of Maharashtra(1) where the following observation were made:

"In order to establish " entrustment of dominion" over property to an accused person the mere existence of that person's dominion over property is not enough. It must be further shown that his dominion was the result of entrustment. Therefore, as rightly pointed out by Harris, C.J. the prosecution must establish that dominion over the assets or a particular asset of the partnership was by a special agreement between the parties, entrusted to the accused person." In the case of State of Gujrat v. Jaswantlal Nathalal,(2) Hegde, J., speaking for the Court, observed thus: "The expression 'entrustment' carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Further the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them." In Sushil Kumar Gupta v. Joy Shanker Bhattacharjee(3) this Court observed thus: (1) AIR 1965 SC 1433. (2) [1968] 2 SCR 408. (3) AIR 1971 SC 1543. 220 "The offence of criminal breach of trust is committed when a person who is entrusted in any mannerwith property or with dominion over it, dishonestly misappropriates it or converts it to his own use.. The appellant's manner of dealing with the money entrusted to his custody clearly constitutes criminal breach of trust." In the case of Superintendent & Remembrancer of Legal Affairs, West Bengal v. S.K. Roy (1) this Court held that for 'entrustment' two things are necessary, viz., (l) the entrustment may arise in "any manner" whether or not it is fraudulent, and (2) the accused must have acquisition or dominion over the property. In Bhai Sher Jang Singh & Anr. v. Smt. Virinder Kaur (supra) the Punjab & Haryana High Court observed thus: It might be that some of the articles which were presented to her are for the use of both the spouses but the ornaments and things of the like nature are certainly meant for her and her alone. When she makes an allegation in the complaint that either her husband or her parents-in-law had converted to their own use

the ornaments forming the part of her stridhan which she had entrusted to them, the Court has to give legal effect to such allegation and to assume that such ornaments had been made the subject matter of criminal breach of trust. It is settled law that even in a criminal complaint the complainant is under no obligation to plead the legal effect of the allegations made. All that is required is that the facts constituting a complaint should be specifically mentioned so that the Court may be able to perform its duty of punishing the accused under the appropriate provision of law if such allegations are made out. Further more, in a case like this a complaint cannot be quashed without giving the aggrieve wife an opportunity of proving that the ornaments had been given to her at the time of her marriage for her use only." (Emphasis supplied) We fully endorse this decision and hold that it lays down the correct law on the subject. (1) [1974] 4 S.C.C. 230. 221 There is a judgment of the Allahabad High Court which more or less takes the same view as the Punjab & Haryana High Court in Vinod Kumar's case (supra). In Criminal Misc. Case No. 676 of 1981 (connected with) Criminal Misc. Case No. 2753 of 1981, Kailash Nath Agarwal & Ors. v. Prem Pal Agarwal & Anr., (decided on 22.12.1983), the Allahabad High Court, out of the three categories laid down by Punjab & Haryana High Court in Vinod Kumar's case, accepted only the third category, viz., articles which constitute the individual property of the person for whose use it was given, and held that the rest of the property falling under categories (a) and (b) would be property exclusively meant for the use of the bride and once it was brought to the family home, the possession would be joint unless by an express written agreement there was an entrustment of the property of the bride to other members of the family. The Allahabad High Court thus also accepts the concept of the property being a joint property in the matrimonial home. By and large this decision toes the line of the view taken by the Punjab and Haryana High Court in Vinod Kumar's case. Furthermore, the High Court has gravely erred in holding that the property could only be claimed by filing a properly constituted civil suit or in accordance with the provisions of the Dowry Prohibition Act or the Hindu Marriage Act as the case may be. This proposition, in our opinion, is wholly

incorrect as conceded even by the Punjab , & Haryana High Court in Vinod Kumar's case. There is an earlier decision of the Punjab & Haryana High Court which clearly holds that where there is a clear allegation of entrustment by the wife against the husband, he could be prosecuted by a criminal court on a complaint filed by the wife. In this connection, the Court in Avtar Singh & Anr. v. Kirpal Kaur Criminal Misc. No.2144-M of 1979 and Criminal Misc.No.2145 of 1979, decided on 16 8.79) made the following observations: "In my opinion, where certain thing is lying in trust with a person, offence of dishonest misappropriation would be committed on a date the demand for return of the entrusted articles is made and the same is declined...According to the complaint, the first demand for the return of the articles was made on January 27, 1976 and it was that date when the demand was declined. Hence, the offence of misappropriation of the dowry articles lying in trust was committed on January 27, 1976." 222 We find ourselves in entire agreement with this decision and hold that this was correctly decided. This Court has pointed out more than once that the High Court should very sparingly exercise its discretion under s. 482 Cr. P.C. In L.V. Jadhav v. Shankarrao Abasaheb Pawar & Ors.(l) (to which two of us were a party), this Court made the following observations: "The High Court, we cannot refrain from observing, might well have refused to invoke its inherent powers at the very threshold in order to quash the proceedings, for these powers are meant to be exercised sparingly and with circumspection when there is reason to believe that the process of law is being misused to harass a citizen." In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi & Ors.(2) this Court observed as follows :- "Thus, it may be safely held that in the following cases an order of the magistrate issuing process against the accused can be quashed or set aside: (1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in suing process is capricious and arbitrary having been either on no evidence or on materials which are wholly irrelevant or inadmissible; and (1) AIR [1983]SC 1219. (2) [1976] Supp. SCR123 223 (4) where the complaint suffers from fundamental legal defects, such as, want of section, or absence of a complaint by legally competent authority and the like. The cases mentioned by us are purely illustrative and pro vide sufficient guidelines to indicate contingencies where the High Court can quash proceedings." B The same principles would apply mutatis mutandis to a criminal complaint. We now come to the question as to whether or not a clear allegation of entrustment and misappropriation of properties was made by the appellant in her complaint and, if so, was the High Court justified in quashing the complaint at that stage. It is well settled by a long course of this Court that for the purpose of exercising its power under s. 482 Cr.P.C. to quash a FIR or a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations. In case no offence is committed on the allegation and the ingredients of s.405 & 406, I.P.C. are not made out, the High Court would be justified in quashing the proceedings. In the present case, we shall show that the allegations are both clear, specific and unambiguous and, therefore, the complainant should have been given a chance to prove her case. It is, of course, open to the accused at the trial to take whatever defence that were open to him but that stage had not yet come and therefore, the High Court was totally ill-advised to speculate on the merits of the case at that stage and quash the proceedings. We have narrated the facts in detail in

the earlier part of our judgment but we might again, even at the risk of repetition, indicate the bare facts which prima facie make out a clear case under s.406, IPC against the accused. The important portions of the complaint may be spelt out thus: (1) that all the accused attended the marriage of the appellant with the respondent and demanded dowry from the parents of the appellant in consideration of the marriage. (2) that the parents of the appellant spent Rs,75,000 on the marriage and dowry articles worth Rs.60,000 224 (inclusive of jewellery, wearing apparel, etc.) were given and entrusted to accused Nos.1 to 6 at the time of the Doli on 5.2.72, (3) that the articles entrusted to the accused were meant for the exclusive use of the appellant, (4) that the dowry articles were never given by the accused to the appellant even for her use and possession of the same was illegally, dishonestly and mala fidely retained by the accused in order to obtain a wrongful gain to themselves and wrongful loss to the appellant, (5) that on 11.12.1980 in the morning, the accused brought the appellant to Ludhiana in three clothes and refused to give the entrusted articles which were the stridhan of the appellant. Taking all the allegations made above, by no stretch of imagination can it be said that the allegations do not prima facie amount to an offence of criminal breach of trust against the respondent. Thus, there can be no room for doubt that all the facts stated in the complaint constitute an offence under s. 406 IPC and the appellant cannot be denied the right to prove her case at the trial by per-empting it at the very behest by the order passed by the High Court. We therefore, overrule the decisions of the Punjab & Haryana High Court in Vinod Kumar's case. By way of post-script we might add that we are indeed amazed to find that so deeply drowned and inherently engrossed are some of the High Courts in the concept of matrimonial home qua the stridhan property of a married women that they simply refuse to believe that such properties are meant for the exclusive use of the wife and could also be legally entrusted to the husband or his relatives. Thus, if the husband or his relatives misappropriate the same and refuse to hand it over to the wife and convert them to their own

use and even though these facts are clearly alleged in a complaint for an offence under s. 405/406 I.P.C., some courts take the complaint is not maintainable. Thus, even when clear and specific allegations are made in the complaint 225 that such properties were entrusted to the husband, they refuse to believe these hard facts and brush them aside on the ground that they are vague. The allegations of the complainant in this appeal and the appeal before the Allahabad and the Punjab & Haryana High Court show that it is not so but is a pure figment of the High Court's imagination as a result of which the High Court completely shut their eyes to the fact that the husband could also be guilty under s. 405/406 I P.C. in view of the clear allegations made in the complaint. In other words, the High Courts simply refuse to believe that there can be any such entrustment and even if it is so no offence is committed. Such an approach amounts to a serious distortion of the criminal law, resulting in perpetrating grave and substantial miscarriage of justice to the wife at the hands of the High Courts. We cannot countenance such a wrong and perverse approach. For the reasons given above, we are satisfied that as the complaint prima facie disclosed an offence of criminal breach of trust as defined in s. 405/406 of the Indian Penal Code the High Court was not justified in quashing`the complaint. We, therefore, allow this appeal, set aside the judgment of the High Court and restore the complaint filed by the appellant and direct that the accused may be summoned, if not already summoned, and put on trial in accordance with law. VARADARAJAN, J. This criminal appeal by special leave is directed against the judgment of a learned Single Judge of the Punjab and Haryana High Court in Criminal Misc. Case No.4876 of 1981. The appellant, Pratibha Rani is the estranged wife of the first respondent Suraj Kumar who is the brother of the second respondent Krishan Lal. One Rattan Chand is the father of respondents 1 and 2 and two others Chander Kumar and Vishwinder Kumar. One Jugal Kumar is the brother-in-law of the first respondent. The appellant filed a criminal complaint for an offence under s.406 I.P.C. against her husband and his father and brothers and brother-in-law mentioned above in the Court of the Additional Chief Judicial Magistrate, Ludhiana, alleging

that she was married to the first respondent at Ludhiana on 4. 2. 1972 according to the Hindu rites and customs. The material averments in the complaint 226 are these: The aforesaid persons, namely, father, brother and brother-in-law of the first respondent attended the marriage and demanded dowry from the appellant's parents as consideration for the marriage. Accordingly, dowry articles mentioned in the list appended to the complaint, worth Rs. 60,000, in the form of golden articles, clothes and other valuables were given and entrusted to the respondents and four others mentioned in the complaint at Ludhiana time of 'doli' on 5.2.1972 in the presence of Kapur Chand Jain and six others. The six respondents in the complaint started teasing, harassing and beating the appellant and they kept her without even food to extract more money from her parents. They turned out the appellant with her children in the beginning of 1977. After a great deal of persuasion and intervention by Panchayatdars, respondent 1 came to Ludhiana and took the appellant to his house after giving an undertaking in writing on 21. 6. 1977 not to misbehave with and maltreat the appellant her children. But after some time all the respondents in the complaint started maltreating the appellant and misbehaving with her. The articles mentioned in the list were never given by the respondents in the complaint to the appellant for her use but were retained by them illegally and with the dishonest intention of causing wrongful gain to themselves and wrongful loss to the appellant. The respondents in the complaint brought the appellant to Ludhiana at 4.30 a.m. On 11.12.1980 and left her near Kailash Cinema Chowk. They refused to give the articles mentioned in the list which are the stridhan of the appellant to her. When the appellant's husband and his brother, Vishwinder Kumar, respondents 1 and 5 in the complaint, came to Ludhiana on 10.2.1981 to attend the proceeding started by the appellant under s. 125 Cr. P.C., her parents persuaded them to return the articles entrusted to them at the time of the marriage but they flatly refused to comply with that demand. The articles have not been returned in spite of service of notice dated 17. 12. 1981 on the first respondent. Thus the respondents in the complaint have dishonestly converted the articles belonging to the appellant for their use in violation of the direction of the appellant's parents given at the time of the marriage to give the articles for the appellant's use. The respondents in this appeal filed Criminal Misc.

Case No.4876 of 1981 in the Punjab and Haryana High Court under s.482 of the Code of Criminal procedure for quashing the criminal 227 Proceedings and the complaint taken on file by the Additional Chief Judicial Magistrate, Ludhiana under s. 406 I.P.C. and his order summoning them. Sukhdev Singh Kang, J. before whom the matter came up in the High Court relied strongly upon the observations made by a Full Bench of that High Court in Vinod Kumar Sethi & Ors. v. State of PunJab and Ors.(l) and has observed in his judgment that the mere handing over of the articles of dowry of stridhana to the husband and other relations at the time of the marriage does not constitute entrustment in the sense of the word used in ss. 405 and 406 I P.C. and that it does not amount to passing of dominion over those articles to them. The learned Judge has observed that there can be such an entrustment only by a subsequent conscious act of volition ` and that in the absence of such an act any allegations of breach of trust between the husband and wife cannot constitute an offence under s.406 I.P.C. The learned Judge has further observed that between the husband and wife there is always a jointness of control and possession of the properties of the spouse within the matrimonial home and that it goes against the very concept of entrustment of his or her property by one spouse to the other. In this view, he allowed the petition and quashed the proceeding arising out of the appellant's complaint, observing that the allegations in the appellant's complaint are similar to the one in Vinod Kumar's case (supra) and that this case is fully covered by the ratio in that decision. The appellant has, therefore, come to this Court in appeal by special leave, impleading the petitioners before the High Court, who are only two out of the six respondents in the complaint, as respondents in this appeal. In a petition under s.482 Cr.P.C. for quashing a criminal complaint, the allegations made in the complaint have to be taken to be correct in order to find out whether they constitute the various ingredient of the offence alleged. In Nagawa Veernna Shivalingappa Konjalgi & Ors ) illustrations have been given of cases in which it may be safely held that an order of a Magistrate issuing process against an accused can be quashed or set aside. They are: (1) AIR 1982 Punjab 372. (2) [1976] Suppl S.C.R. 123 228

(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same, taken at their face value, make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) Where the allegations made in the complaint are palpably absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) Where the complaint suffers from fundamental legal defects such as want of sanction, or absence of a complaint by a legally competent authority and the like." Article 126 in Mulla's Hindu Law, Fifteenth Edition, describing what constitutes Stridhana reads: - "property given or bequeathed to a Hindu female whether during maidenhood, coverture or widowhood by her parents and their relation or by her husband and his relations is stridhana according to all schools except that the Dayabhaga does not recognise immovable property given or bequeathed by husband to his wife as stridhana." Section 2 of the Dowry prohibition Act, 1961 defines "dowry" as meaning: "any property or valuable security given or agreed to be given either directly or indirectly-(a) by one party to a marriage to the other party to the marriage, or (b) by the parents of either party to the marriage, or by any other person to either party to the marriage or to any other person at or before of after the marriage in connection with the marriage of the said parties but does not include dower or mahr in the case of person to whom the Muslim personal law (Shariat) applies." 229 In the present complaint of the wife against the husband and , his three brothers, father and brother-in-law, it is alleged that the marriage was performed at Ludhiana on 4.2.1972 according to Hindu rites and customs and that the

father and three brothers and the brother-in law of the husband attended the marriage and demanded dowry from the wife's parents as consideration for the marriage and that accordingly dowry articles worth Rs.60,000, mentioned in the list attached to the complaint, consisting of gold articles, clothes and other valuables were given and entrusted to the husband and the other five respondents in the complaint, at the time of the 'doli' at Ludhiana on 5.2. 1972 in the presence of Kapur Chand Jain and six other persons. For the purpose of the petition under s.482 Cr.P.C. those articles must be prima facie considered to be dowry or stridhana of the appellant-wife. In Velji Raghavjl Patel v. State of Maharashtra,(1) it is observed: "Upon the plain reading of s.405, I.P.C. it is obvious that before a person can be said to have committed criminal breach of trust it must be established that he was either entrusted with or entrusted with dominion over property which he is said to have converted to his own use or disposed of in violation of any direction of law etc. Every partner has dominion over property by reason of the fact that he is a partner. This is a kind of dominion which every owner of property has over his property. But it is not dominion of the kind which satisfies the requirements of s. 405. In order to establish "entrustment of dominion" over property to an accused person the mere existence of that person's dominion over property is not enough. It must be further shown that his dominion was the result of entrustment. Therefore, as rightly pointed out by Harris C.J., the prosecution must establish that dominion over the assets or a particular asset of the partnership was by a special agreement between the parties, entrusted to the accused person. If in the absence of such a a special agreement a partner receives money belonging to the partnership he cannot be said to have received it in a (1) [1965] 2 S C.R. 429 230 fiduciary capacity or in other words cannot be held to have been "entrusted" with dominion over partnership properties." In State of Gujarat v. Jaswantlal Nathalal(1) it is observed: "Before there can be any entrustment there must be a trust meaning thereby an obligation annexed to the

owner ship of property and a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner. But that does not mean that such an entrustment need conform to all the technicalities of the law of trust - see Jaswantrai Manilal Akhaney v. State of Bombay [1956] SCR 483, 498-500. The expression 'entrustment' carries with it the implication that the person handing over any property or on whose behalf that property is handed over to anther, continues to be its owner. Further the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them." In Sushil Kumar Gupta v. Joy Shankar Bhattacharyya(2), it is observed: "The offence of criminal breach of trust is committed when a person who is entrusted in any manner with property or with dominion over it, dishonestly misappropriates it, or converts it to his own use, or dishonestly uses it or disposes it of, in violation of any direction of law prescribing the mode in which the trust is to be discharged, or of any lawful contract, express or implied, made by him touching such discharge, or wilfully suffers any other person so to do." In Superintendent Remembrancer of Legal Affairs, West Bengal v. S.K. Roy(8), it is observed: "There are, however, two distinct parts involved in the commission of the offence of criminal breach of trust. The first consists of the creation of an obligation in rela (1) [1968] 2 SCR 408. (2) [1970] 3 SCR, 770. (3) [1974] 4 SCC,230. 231 tion to the property over which dominion or control is acquired by the accused. The second is a misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created. The most important ingredient of an offence under s. 406, which is alleged by the wife against her husband, his three brothers, father and brother-in-law in her complaint in the present case is the entrustment of the dowry articles to the respondent in the complaint and ,their dishonest conversion thereof to their own use. There is no doubt an

allegation in the complaint that these articles were given and entrusted to the respondents in the complaint at Ludhiana at the time of doll on 5-2-1972. Apart from the husband the other respondents in the complaint, as already stated, are his father, three brothers and brother-in-law. The articles were given for the use of the wife- If so, could there be entrustment of the articles to such a number of diverse persons? In the background of what usually happens in Hindu marriages namely, placing of the articles presented to the bride in the presence of the elders and others assembled for the occasion and removal thereof after the function is over it has to be seen whether the allegation made in the complaint amounts to entrustment as required by law to make out an offence under s. 406 l.P.C. This question has been considered in detail by a Full Bench of the Punjab and Haryana High Court in Vinod Kumar's case (supra) after an analysis of several decision relating to the question. The learned Single Judge who has quashed the complaint in the present case on a petition of the husband and one of his brothers has heavily relied upon that Full Bench decision of his Court. What runs through the judgment of the learned Judges in that case is the concern of the Court for the peaceful and harmonious relationship between the spouses in a matrimonial home and a careful consideration of the question whether the ingredient of entrustment" exists in such cases. Therefore, it is necessary to note what has been observed in some of the paragraphs of the judgment to that case. The learned Chief justice speaking for the Bench has observed: "21.. The present set of cases presents a sad spectacle of a house divided against itself, not merely in the biblical but in the literal sense, where wives are ranged against their husbands in acrimonious criminal prosecu- 232 tions. The challenge on behalf of the husbands and their relations is focussed basically against the charge of breach of trust under Section 406 of the Indian Penal Code, levelled against them. Now the core of the argument on behalf of the petitioners is that the very concept of any entrustment or passing dominion over her property by the wife to the husband does not arise at all so long as the marriage subsists. The contention is that the very nature of the conjugal relationship itself would negative any such stand. On this premise it is contended that the basic pre-

requisite of the entrustment of property or dominion over property being lacking and non-existent, no offence under Section 406, Indian renal Code, can possibly be made out. Therefore, it was argued that even accepting the first information reports as they do not and indeed cannot disclose a cognizable offence under Section 406. The petitioners, therefore, seek the quashing of the proceedings - forthwith rather than being obliged to go through the tortuous mill of a police investigation or the consequent criminal trial." "25. Now apart from the principle, the most ancient texts of Hindu Law have always been categoric that dowry, as commonly understood, was stridhana and thus in the exclusive ownership of the bride." "26. Now once it is so held that articles of dowry and traditional presents given at the wedding are owned by the bride individually in her own right, then one fails to see how by the mere fact of her bringing the same into her husband's or parents-in-law's household, would forth with divest her of the ownership thereof. Separate and individual right to property of the wife therein cannot vanish into thin air the moment the threshold of the matrimonial home is crossed. To say that at that point - of time she would cease to own such property altogether and the title therein would pass to her husband or in any case she would lose half of her right therein and become merely a joint owner of the same, with the family of her husband, does not appear to me as even remotely warranted either by the statute, principles or logic. No such marriage hazard against the wife can be implied in law. 233 Once she owns property exclusively, she would continue to hold and own it as such despite marriage and coverture and the factum of entering the matrimonial home.. " "35. To conclude on this aspect, I find nothing in the codification of Hindu Law which in any way abolishes the concept of stridhana or the right of a Hindu wife to exclusive individual ownership. Indeed the resultant effect of such enactments is to put the Hindu female wholly at par with the Hindu male, if not at a higher pedestal with regard to individual ownership of the property." 40. Now having held as above that Hindu wife can exclusively own and hold property including her dowry

and traditional presents given at the wedding, the decks are cleared for tackling the core question posed at the very outset. What indeed is the true legal relationship of the husband and wife qua the property individually owned by each within the four walls of the matrimonial home? Does the wife stand entrusted with the property belonging to her husband individually and vice versa the husband stands entrusted with such property vesting in the exclusive ownership of the wife? It is the answer to this question which in essence would determine the attraction and applicability of Section 405, I.P.C betwixt the spouses.." "41. It bears 'repetition that the question herein has to be examined against the backdrop of the matrimonial home. What truly is the concept and essence thereof had come up for exhaustive consideration earlier before a Full Bench in Kailash Vati v. Ayodhia Parkash, ILR (1977) 1 Punj. & Har. 642 in the context of Hindu Law itself. It is, therefore, apt to refer to the authoritative enunciation therein:- "To my mind, the idea of the matrimonial home appears to lie at the very centre of the concept of marriage in all civilised societies. It is indeed around it that generally the marriage tie revolves. The home epitomizes the finer nuances of the marital status. The bundle of indefinable rights and duties which 234 bind the husband and the wife can perhaps be best understood only in the context of their living together in the marital home The significance of the conjugal home in the marriage tie is indeed so patent that it would perhaps be wasteful to elaborate the 8 same at any great length. Indeed, the marital status and the conjugal home have been almost used as interchangeable terms." and "To summarise, I have attempted to show by reference to Anglo-American Jurisprudence that the a concept of the marital home lies at the very centre of the idea of marriage in all civilised societies. Perhaps from primeval times when human beings lived sheltered in subterranean caves to the modern day when many live perched in flats in high rise apartments within the megapolis, the husband and the wife have always hankered for a place which may be their very own and

which they may call a home. The innumerable mutual obligations and rights which stem from the living together of man and wife are undoubtedly beyond any precise definition and stand epitomized by the concept of the matrimonial home." In the light of the above it would be farcical to assume that despite the factum of a marriage and a common matrimonial home the two Spouses would stand in a kind of a formal relationship where each is entrusted with or has been passed dominion over the exclusive property of the other. Rather it appears to me that the conjugal relationship and the existence of a matrimonial home automatically obviates any such hyper-technicalities of an entrustment or dominion over property. It seems inapt to conceive the relationship as a day-to-day entrustment of the property of the husband to the custody of the wife or vice versa of the property of the wife to the husband. The matrimonial home so long as it subsists presumes a jointness of custody and possession by the spouses of their individual as also of their joint properties which can not be divided by any metaphorical line. In a homely metaphor in the context of the modern commercialised world it has been said that the marriage relationship is not one of 235 "I and You limited" but that of "We limited". Whilst the law undoubtedly now clearly recognises the individual ownership of property by the husband and wife, the necessary assumption in law, therefore, would be that during the existence or even the imminent break up the matrimonial home the concept of jaintness of possession therein seems to be a paramount one. The inevitable presumption during the existence or the imminent break up of the matrimonial home therefore is one of joint possession of the spouses which might perhaps be dislodged by the special terms of a written contract. However, to be precise this presumption of joint possession of properties within the matrimonial home can subsist only as long as the matrimonial home subsists or on the immediate break up thereof." "42-43. The aforesaid position seems to be well borne out by a homely example which was rightly advanced by Mr. Bhandare on behalf of the petitioners. It was submitted that where a husband entrusts a specific amount to a wife for paying the school fees of their children but in a shopping spree she converts the same into sarees for herself, would she thereby become

liable to breach of trust under Section 406, Indian Penal Code? The answer would obviously appear to be in the negative. Similarly where a husband misuses or even appropriates any property exclusively belonging to his wife within the matrimonial home he hardly comes within the ambit of criminality under Section 406, Indian Penal Code. Usually if not invariably where the husband is the bread winner he brings home the month's wages and bands them over to the wife to be spent on the family. Would it be possible to say that if she use the same for herself and even against the consent of her husband she would be committing a criminal breach of trust? Obviously the answer would appear to be in the negative." "44. One may now turn precisely to the language of the Code itself. Sec. 405 is in the following terms:- 236 "405. Criminal Breach of trust: Whoever being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in, which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other Person so to do, commits criminal breach of trust." It is well-setted that from a legal contract, or violation of direction of law, the entrustment of property or dominion over property are the per- requisites for the applicability of the aforesaid provision. Once it is held as above, that property within the matrimonial home is in the joint possession and custody (despite rights of the individual ownership therein) then these very per-requisites of entrustment or dominion over property cannot be easily satisfied betwixt the spouses inter se. It is indeed well-settled that the very concept of the jointness of possession and custody would rule out the entrustment or dominion over property betwixt such joint custodians. In line with the concept of joint ownership where the possession of one joint owner is deemed to be the possession of all, the analogy,is to be extended that existence of the property within the matrimonial home

rises a presumption that both the husband the wife are in possession thereof jointly and not that each one has entrusted his exclusive property to the custody of other. Subscribing to the latter view would be both overly hypertechnical and subversive of the very concept of marriage, the matrimonial home and the inevitable mutual trust which conjugality necessarily involves." "45. It is obviously because of the afore said legal position and this inarticulate peremise underlying the same that the learned counsel for the State and the complainants were unable to cite even a single case of conviction for criminal breach of trust betwixt husband and wife. Even when 237 pointedly asked, counsel conceded that despite the diligent research neither under the Indian Penal Code, nor under the analogous provisions of English law could they lay their hands for over a century and a half on any case where such a conviction had been upheld. This paucity, rather the total absence of precedent, indirectly buttresses the view I have expressed above on principle and the statutory provisions. An analogy in their context may well be drawn from the Law of Partnership. However, at the very outset I would notice that the position is not identical because partnership envisages a joint or co-ownership of partnership property whereas in a conjugal relationship, as shown above, the spouses may well bethe individual and exclusive owners of their respective properties. Nevertheless a marked similarity therein is that in partnership, co-ownership necessarily connotes a jointness of possession of partnership properties whilst the same position inheres in the matrimonial home where the spouses are deemed to be jointly in possession and custody. Now, barring some ancient notes of discordance, it seems to be now well accepted that a partner cannot be held guilty of criminal breach of trust qua partnership property except by virtue of a special agreement either written or conclusively established. This had always been so in English law until it was specifically and altered by Statute 31 and 32 Victoria c. 116 and it is now governed by the special provisions of the same and subsequent legislation. In India, however, in the absence of any statutory change, the legal position would continue to

be the same. This came up for pointed consideration before a Full Bench of five Judges in Bhuban Mohan Das v. Surendra Mohan Das, AIR 1951 Cal, 69. The relief sought therein of quashing the proceedings under S. 406, Indian Penal Code, betwixt partners, was granted whilst holding that a charge under S. 406, Indian Penal Code cannot be framed against a person who, according to the complainant, is a partner with him and is accused of the offence in respect of property belonging to them as partners. P.B. Mukharji, J. in his concurring judgment observed as under (Para 46) : "The question here is of much broader application and of a more fundamental nature. Its fundamen- 238 tal nature is this that the very conception of partner ship precludes possibility of entrustment or dominion of the partnership property by one partner as against the other and, therefore, precludes any possible operation of the crime under Section 406 Penal Code, of criminal breach of trust by one partner against the other in respect of the partnership property." The aforesaid view has been expressly referred to and approved by their Lordships in Velji Raghavji v. State of Maharashtra,(1) with the following added observations (at pp. 1435-36) :- "... Every partner has dominion over property by reason of the fact that he is a partner. This is a kind of dominion which every owner of property has over his property. out it is not dominion of this kind which satisfies the requirements of S.405. In order to establish `entrustment of dominion' over property to an accused person the mere existence of that person's dominion over property is not enough. It must be further shown that his dominion was the result of entrustment. Therefore, as rightly pointed out by Harris, C.J., the prosecution must establish that dominion over the assets or a particular asset of the partnership was, by a special agreement between the parties entrusted to the accused person. If in the absence of such a special agreement partner receives money belonging to the partnership he cannot be said to have received it in a fiduciary capacity or in other words cannot be held to have been 'entrusted' with dominion over partnership properties. " If that is so in the partnership relation it appears to me that it would be more so in the conjugal relationship

with regard to the property within the matrimonial home." "46..... The nature, character and the incident of property within the matrimonial home, so long as the marriage subsists, seem to be such that except by a special written agreement, no entrustment or dominion etc. Of the individual property of the spouses to each other can b e presumed. Equally, herein the specific and ascertainable (I) A.T.R. 1965 S.C. 1433 239 property of each spouse within the matrimonial home can , be so equivocal and problematic as to oust the requisite mens rea with consequent criminality with regard thereto until the title to such property is clearly and specifically established. If the civil remedy seems to be adequate betwixt partners, during the subsistence of partnership there is no reason why it would not equally be so betwixt spouses in an existing matrimonial home during the subsistence of the conjugal relationship. As already referred to, apart from the civil remedy under the general law, added provisions exist in this context under S.27 of the Hindu Marriage Act buttressed by the procedural provisions of 0.32-A of the Code of Civil Procedure." "47. In view of the above, it would be equally untenable to hold that either the desertion or the expulsion one of the spouses from the matrimonial home would result in entrusting dominion over the property belonging to the other so as to bring the case within the ambit of this pre-requisite under S.405, Indian Penal Code. The joint custody and possession once established would thereafter exclude either express entrustment or the passing of dominion over the property. It was rightly argued that if an irate husband or wife walks out from the matrimonial home in a huff, this cannot constitute an entrustment or dominion over the property to the other. Consequently, unless a special written agreement to the contrary can be established, the strongest presumption arises that during the existence and immediately after the crumbling of the matrimonial home, there was in essence, a joint possession and custody of the property of the spouses therein, including dowry and traditional presents, which would preclude the essentials entrustment of dominion over the property which form the corner-stone of criminality under S.405, Indian

Penal Code." "49. Equally the common use and enjoyment of certain articles of dowry and traditional presents, by the other members of a joint family with the leave and licence of a Hindu wife, cannot have the effect of extending the jointness of control and custody of the couple to undefined 240 and unreasonable limits. Consequently, there is no reason to assume that the mere use or enjoyment of dowry by other members of the household, would have the effect of passing the possession and control thereof Jointly to the Hindu Undivided Family a such." "50. In the aforesaid context, pointed reference must be made to the opening word 'whoever' of S.405 of the Code to highlight that the criminal law does not take ken of any proximity of relationship for the offence of breach of trust. "Whoever" would include within its ambit the parents-in-law, the brothers-in-law, sisters- in-law (and other close relations of the husband) of a Hindu wife provided that the basic ingredients of entrustment or passing of dominion over her separate individual property stands fully satisfied. Apart from the peculiarity of the conjugal relationship and the consequent sharing of the matrimonial home, the existence of the blood relationship of the parties does not seem to be relevant for the applicability or otherwise of S.406 of the Code, Since the other members of the Hindu Joint family, to which the husband may belong, would not be covered by the presumption of jointness of custody v and possession of their individual properties by the spouses alone, they cannot by the mere fact of kinship be excluded from the scope of ss. 405 and 406 of the Code." "56. To conclude, it necessarily follows from the aforesaid discussion that the very concept of the matrimonial home cannotes a jointness of possession and custody by the spouses even with regard to the movable properties exclusively owned by each of them. It is, therefore, inapt to view the same in view of the conjugal relationship as involving any entrustment or passing of dominion over property day-to-day by the husband to the wife or vice versa. Consequently, barring a special written agreement to the contrary, no question of any entrustment or dominion over property would normally arise during coverture or its imminent

break-up. There fore, the very essential pre-requisites and the core ingredients of the offence under S.406 of the Penal Code would be lacking in a charge of criminal breach of trust of 241 property by one spouse against the other. Inevitably, therefore, the purported allegations of breach of trust betwixt husband and wife so long as the conjugal relation ship lasts and the matrimonial home subsists, cannot constitute an offence under Section 406 of the Indian Penal Code, subject to any special written agreement. Equally, as against the close relations of the husband, no facile presumption of entrustment and dominion over the dowry can be raised prims facie and this inevitably has to be by a subsequent conscious act of volition which must be specifically alleged and conclusively established by proof. Lastly, because of the definition in S. 2 of the Dowry Prohibition Act, the offences under the said Act cannot come within the ambit of S. 406 of the Indian Penal Code as these cannot stand together on the same set of facts." "57. Hence the answer (to the question) posed at the very outset is rendered in the affirmative. The bond of matrimony, therefore, bar the spectre of the criminal breach of trust qua the property of the spouses at the very threshold of the matrimonial home. It cannot enter its hallowed precincts except through the back door of a special written contract to the contrary with regard to such property." I have extracted above several passages from the Judgment of the learned judges of the Full Bench in Vinod Kumar's case (supra) since I share their view and concern for peace and harmony in matrimonial homes and feel that the learned Single Judge who has quashed the wife's complaint in the present case was justified in relying heavily upon that judgment of the Full Bench. In these circumstances, 1 think that in the absence of a separate agreement and specific entrustment by the wife to the husband and of his relations and vice versa of the property of the husband to the wife and or her relation, it would not be possible to draw an inference of entrustment of custody or dominion over the property of one spouse to the other and his or her relations so as to attract the stringent provisions of s.406 I.P.C. The offense of criminal breach of trust is cognizable and non-bailable and punishable with imprisonment for a term of three years or

242 with fine or with both. In the absence of such a separate agreement for specific entrustment of the property of either spouse the appropriate remedy would appear to be by way of a civil suit where there is scope for the parties to the marriage coming together at the instance of relations, elders and well-wishers and patching up their differences. Entertaining complaints of the irate wife or husband against the husband or wife without even an allegation of a specific and separate agreement constituting entrustment of the property of the wife or the husband would have disastrous effects and consequences on the peace and harmony which ought to prevail in matrimonial homes. It is seen from para 45 of-the judgment in Vinod Kumar's case (supra) that in spite of diligent research no instance of any case of successful prosecution of the husband of wife at the instance of the wife or the husband could be brought to the notice of the learned Judges. It may be stated that none was brought to the notice of this Court either in the course of the arguments in this appeal. This would show that the spouses had not lightly rushed in the past to criminal courts with complaints of criminal breach of trust against the other spouses though in the day-to-day life there must have been numerous instances where the wife had used the property or cash of the husband for purposes different from the one for which they were given by the husband to be applied by the wife and vice-versa. I am anxious that no light-hearted change should be brought about in-the position and that the minimum requirement in such cases is a specific separate agreement whereby the property of the wife to husband was entrusted to the husband or wife and or his or her close relations. In the absence of such a specific separate agreement in the complaint, in the present case, I am of the opinion that the learned Single Judge was perfectly justified in following the decision of the Full Bench in Vinod Kumar s case (supra) and quashing the wife's complaint filed against the husband and his close relations. I would, therefore, dismiss the appeal. In view of the majority decision, this appeal is allowed, the judgment of the High Court is set aside and the complaint filed by the appellant is restored. The accused may now be summoned and put on trial in accordance with law. S.R. Appeal allowed 243PETITIONER: PRATIBHA RANI

Vs. RESPONDENT: SURAJ KUMAR & ANR. DATE OF JUDGMENT12/03/1985 BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA MUKHARJI, SABYASACHI (J) VARADARAJAN, A. (J) CITATION: 1985 AIR 628 1985 SCR (3) 191 1985 SCC (2) 370 1985 SCALE (1)458 CITATOR INFO : RF 1986 SC 833 (50) RF 1992 SC 604 (103) ACT: Nature, character and concomitants of stridhan-Right of exclusive ownership over the stridhan during coverture- Whether the dowry/stridhan given to a wife and her exclusive property becomes a joint property/partnership property by a fiction of being placed in the custody of her husband and her relations, the moment a married woman enters her matrimonial home-Indian Partnership Act, 1932, section 4. Dowry Prohibition Act (28 of 1961) sections 2 Hindu Marriage Act, 1955 section 27 Hindu Succession Act Section 14 Indian Penal Code, sections 405, 406 and 482. Remedies open under law-Whether criminal remedy is barred when civil remedy is available simultaneously. Entrustment-Charge Or Criminal breach of trust by wife against her husband and his close relations maintainability- Essential ingredients of an offence section 405/406 Indian Penal Code. Inherent powers of the High Court to quash a First Information Report on a complaint under section 482' the Code of Criminal Procedure, 1973 (Act 11 of 1974), explained.

HEADNOTE: The appellant Pratibha Rani, the estranged wife of the first respondent Suraj Kumar, filed a criminal complaint against her husband, his father, his three brothers and a brother-in-law in the court of the Additional Chief Judicial Magistrate, Ludhiana, alleging; (i) that she was married to the first respondent at Ludhiana on 4 2. 1972 according to Hindu rites and customs; (ii) that the aforesaid persons, namely, father, brothers and brother-in-law of the first respondent attended the marriage and demanded dowry from the appellants' parents as consideration for the marriage; (iii) that the dowry articles mentioned in the list worth Rs 60,000 in the form of gold ornaments, clothes and other valuables were given and entrusted to the respondents and four others at Ludhiana at the time of 'doli' on 5. 2. 1972 in the presence of Kapur Chand Jain and six others; (iv) that all the six respondents, from the time of marriage started teasing, harassing and beating her and they kept her without even food to extract more money from her parents; (v) that they turned out the appellant with her children in the beginnings of 1977 (vi) that after a great deal of persuasion and intervention by Panchayatdars, respondent No. I came 192 to Ludhiana and took her to his house, after giving an undertaking in writing on 21. 6. 1977 not to misbehave with and not to maltreat the appellant and her children; (vii) that after some time all the respondents in the Complaint not only started again maltreating the appellant and misbehaving with her, but also brought the appellant at 4.30 a.m. On 11.12.80 and left her near Kailash Cinema Chowk, (viii) that the articles (the stridhana) mentioned in the list appended to the complaint were never given by the respondents to the appellant for her use but were retained by them illegally and with the dishonest intention of causing wrongful gain to themselves and wrongful loss to the appellant y (ix) that when the appellants' husband and his brother, Vishwinder Kumar, respondent 1 and 5 in the complaint, came to Ludhiana on 10 2.81 to attend the proceedings started by the appellant under section 125 Criminal Penal Code her parents persuaded them to return the articles entrusted to them at the time of the marriage but they flatly refused to comply with that demand; (x) that the articles have not been returned in spite of service of notice dated 17.12.81 on the first respondent; (xi) that the respondents in the complaint have dishonestly, thus,

converted the articles belonging to the appellant for their use in violation of the instructions of the appellants' parents given at the time of the marriage to give the articles for the appellants' use and that (xii) they individually and jointly committed the offences under sections 405 and 406 Indian Penal Code. Thereupon respondent No. 1 filed Criminal Misc. Application No. 4876 of 1981 in the Punjab and Haryana High Court under section 482 of the Code of Criminal Procedure for quashing the criminal proceedings and the complaint taken on file by the Additional Chief Judicial Magistrate, Ludhiana under section 406 IPC and his order summoning them.A Learned Single Judge of the High Court relying strongly upon the observations made by a Full Bench of that High Court in Vinod Kumar Sethi & Ors. v. State of Punjab & Ors. reported in AIR 1982 Punjab 372 allowed the petition and quashed the proceedings arising out of the appellants' complaint, observing that the allegations in the appellants' complaint are similar to the one in that case and therefore, fully covered by the ratio in that decision. Hence the appeal by special leave. Allowing the appeal, the Court, ^ HELD; (Per E.lzal Ali, J.) (on behalf of Sabyasachi Mukharji, J. and himself) 1.1 The stridhan property of a married woman cannot acquire the character of a joint property of both the spouses as soon as she enters her matrimonial home so as to eliminate the application of section 406 IPC. The position of stridhan of a Hindu married woman's property during coverture is absolutely clear and unambiguous; she is the absolute owner of such property and can deal with it in any manner she likes-She may spend the whole of it or give it away at her own pleasure by gift or will without any reference to her husband. The entrustment to the husband of the stridhan property is just like something which the wife keeps in a bank and can withdraw any amount when ever she likes without any hitch or hindrance. Ordinarily, the husband has no right or interest in it with the sole exception that in times of extreme distress, as 193 in famine, illness or the like, the husband can utilize it but he is morally bound to restore it or its value when he is able to do so. This right is purely personal to the husband and the property so received by him in marriage cannot be proceeded against even in execution of a decree

for debt. [206F; 201D-E] Suraj Kumar & Anr. v. Pratibha Rani, Criminal Misc. Petition No. 4876 of 1981 Punjab & Haryana High Court reversed. Vinod Kumar Sethi & Ors. v. State of Punjab & Anr. AIR 1982 Punjab 372; Surinder Mohan v. Smt Kiran Saini, 1977 Chandigarh Law Reporter 212; Kailash Vati v. Ayodhya Parkash, ILR (1977) 1 Punjab & Haryana 642 (FB) overruled. 1.2 A perusal of the allegations made in the complaint undoubtedly makes out a positive case of the accused having dishonestly misappropriated the articles handed over to the n in a fiduciary capacity. To characterise such an entrustment as a joint custody or property given to the husband and the parents is wholly unintelligible.A perusal of the list reveals that so far as the jewellery and clothes, blouses, nighties and gowns are concerned they could be used only by the wife and were her stridhan. By no stretch of imagination could it be said that the [ornaments and sarees and other articles mentioned above could also be used by the husband. If, therefore, despite demands these articles were refused to be returned to the wife by the husband and his parents, it amounted to an offence of criminal breach of trust. All the ingredients of an offence under section 405 IPC were pleaded and a prima facie case for summoning the accused was made out. In such circumstances, the complaint should have been given an opportunity by the High Court to prove her case rather than quashing the complaint. Such an exercise of jurisdiction by the High Court under section 482 Cr. P. is totally unwarranted by law. [203A; 204B-D; 203B-C] 2.1 Criminal law and matrimonial home are not strangers. Crimes committed in matrimonial home are as much punishable as anywhere else. The mere factum of the husband and wife living together does not entitle either of them to commit a breach of criminal law and if one does then he/she will be liable for all the consequences of such breach. In the case of stridhan properly also, the title of which always remains with the wife though possession of the same may sometimes be with the husband or other members of his family, if the husband or any other member of his family commits such an offence, they will be liable to punishment for the offence of criminal breach of trust under sections 405 and 406 IPC. Just as a newly married woman living in the same house and under the same roof cannot be expected to keep her personal property or belongings like jewellery, clothing, etc. under her own lock and key thus showing a

spirit of distrust to the husband at the very behest, a husband cannot be permitted to cast his covetous eyes on the absolute and personal property of his wife merely because it is kept in his custody, thereby reducing the custody to a legal farce. On the other hand, even if the personal property of the wife is jointly kept it would be deemed to be expressly or impleedly kept in the custody of the husband and i f he dishonestly misappropriates or refuses 194 to return the same, he is certainly guilty of criminal breach of trust, and there can be no escape from this legal consequence. [207E-G; 208B-Cl 2.2 It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two remedies-are under civil law and the other under criminal law are not mutually exclusive but coextensive and essentially differ in their content and consequences. Therefore, it cannot be said that, if the husband dishonestly misappropriates the stridhan property of his wife though kept in his custody, that would not par prosecution under section 406 IPC or render the ingredients of section 405 IPC nugatory or abortive. To say that because the stridhan of a married woman is kept in the custody of her husband no action against him can be taken as no offence is committed is to override and distort the real intent of law. [208E-F] 3.1 Neither section 27 of the Hindu Marriage Act nor section 14 of the Hindu Succession Act, go to the extent of providing that the claim of a woman on the basis of stridhan is completely abolished, or that a remedy under the criminal law for breach of trust is taken away. All that the two sections, provide is that if the husband refuses to return the stridhan property of his wife, it will be open to the wife to recover the same by a properly constituted suit. [204G-H; 205A] 3.2 Section 27 of the Hindu Marriage Act merely provides for- an alternate remedy and does not touch or affect in any way the criminal liability of the husband in case it is proved that he has dishonestly misappropriated the stridhan of his wife. It cannot also be spelt out from any textbook or the sastric law of the Hindus that these two Acts take away the stridhan right of a woman-at the most these Acts merely modify the concept of stridhan. [205C-D] Bhai Sher Jang Singh & Anr. v. Smt. Virinder Kaur, 1979 Criminal Law Journal 493 approved.

Surinder Mohan v. Smt. Kiran Saini, 1977 Chandigarh Law Reporter 212 over ruled. 4.1 It is neither appropriate nor apposite to import the concept of partner ship of husband and wife for the simple reason that the concept of partnership is entirely different from that of the husbands' keeping the stridhan in his custody. From the definition of the partnership in section 4 of the Indian Partnership Act, it is manifest that in a partnership the wife must by some clear and specific act indicate that the stridhan which has been entrusted to the husband is to be used for a partnership business and the losses of the firm, if any, would have to be shared by both.A pure and simple act of entrustment of the stridhan to the husband does not attract any of the essential ingredients of a partnership as defined in the Partnership Act. When the essential conditions of a partnership do not exist. the mere factum of entrustment of stridhan would not constitute any co-ownership or legal partnership, There is also no 195 question of the wife, constituting herself a partner with her husband merely by allowing him to keep the article or money in his custody. Further, in this case, there is, neither any pleading nor any allegation that after her marriage, the appellant transferred all her properties to her husband for carrying on a partnership business in accordance with the provisions of the Partnership Act. Therefore, a criminal prosecution under section 406 IPC is maintainable. [209E; 210B-C; G; 211C-D] Vinod Kumar Sethi & Ors. v. State of Punjab & Anr. AIR 1982 Punjab 372; Surinder Mohan etc. V. Smt. Kiran Saini, 1977 Chandigarh Law Reporter 212; Kailash Vati v. Ayodhya Parkash, ILR (1973) 1 Punjab & Haryana, P 612; Kailash Nath Agarwal & Ors. v. Prem Pal Agarwal & Anr. Crl. Misc. case No. 676 of 1981 connected with Crl. Misc. case No. 2753 of 1981 decided on 22.12.83 Allahabad High Court overruled. In the instant case, however, there is neither any allegation nor anything in the complaint to show that when the wife entered her matrimonial home she had entrusted property to her husband so as to make him part owner of the same. Therefore, the question Or the husband having dominion over the property does not at all arise. In fact the wife has nothing to do With the partnership, if any and the husband is a pure and simple custodian of the property and cannot use the Same for any purposed without her consent.

[210E-F] The concept of stridhan property of a married woman becoming joint property of both the spouses as soon as she enters her matrimonial home and continues to be so until she remains there or even if there is a break in the matrimonial alliance, is in direct contravention of Hindu law of Sadayika which has been administered since more than a century by High Court, Privy Council and also the Supreme Court. [212C-D] 4.2 The Full Bench decision in Vinod Kumar's case would not only render the provisions of section 406 IPC inapplicable and nugatory even if the husband has the audacity or the importunity of refusing to return the stridhan of his wife, but also be in direct contravention of a long course of decisions of Supreme Court on the ingredients of section 405 IPC. [212A-B] By a pure and simple figment of the fertile imaginations, the Judges in the Vinod Kamat's case seem to have rewritten the law of criminal breach of trust contained in sections 405 and 406 IPC so as to carve out an imaginary exception to the application of the Penal Code- more tragic consequence of the view taken by the High Court is that even if there is a break in the matrimonial alliance and the wife wants her husband to return her exclusive property and he refuses lo return even then the provisions of section 406 IPC would not apply. It is an extreme travesty of justice for a court to say that whenever a married demands her stridhan property from her husband she should be driven to the dilatory process of a civil court and her husband would be debarred from being prosecuted by a criminal court. By a strange and ingenious process of holding that such an act of a husband does not attract the provisions of the 196 Penal Code, as the property being joint there is no question of the husband being a trustee or holding the same in a fiduciary capacity. Such a view is not only contradictory but-what the High Court has said before regarding the applicability of section 27 of the Hindu Marriage Act and the nature of stridhan-is also neither in consonance with logic and reason nor with the express provisions of the Penal Code and seems to be inspired by a spirit of male chauvinism so as to exclude the husband from criminal liability merely because his wife has refused to live in her matrimonial home. The High Court, functioning in a civilised and socialistic society such as ours cannot play such a havoc with judicial interpretation of an important branch of

law. The High Court cannot make a complete volte-face by holding that these very properties after marriage become joint property of both the spouses. The High Court has not realised that the theory or philosophy of matrimonial home propounded by it stands directly contradicted by its own observations. [212D-H; 213A; H; 214A] 4.3 The fundamental core of the offence of criminal breach of trust is that a property must be entrusted and the dominion of the property should be given to the trustee. In the present case, all these conditions, even according to the findings of the High Court though not its conclusions are clearly established. [217C] Chelloor Manaklal Narayan Ittiravi Nambudiri v. State of Travancore; AIR 1953 SC478; Jaswantrai Manilal Akhaney v. State of Bombay, [1956] SCR 483; State of Gujarat v. Jaswantlal Nathalal [1968] 2 SCR 408; Sushil Kumar Gupta v. Joy Shankar Bhattacharjee, AIR 1971 SC 1543; Superintendent JUDGMENT: [4] SCC 230 referred to. Harihar Prasad Dubey v- Tulsi Das Mundhra & Ors. AIR 1949 Calcutta 207; Akharbhai Nasarali v. Md. Hussain Bhai AIR 1961 MP 37; Basudeb Patra v. Kana. Lal Haldar, AIR 1949 Calcutta 207, Bhai Sher Jang Singh and Anr. v. Smt. Virinder Kaur, 1979 Crl. L-J. 493; Avtar Singh and Anr v. Kirpal Kaur, Crl. Misc. No. 2144 of 1979 and Cr l Misc. No. 2145 of 1979 approved. Vinod Kumar Sethi & Ors. v- State of Punjab and Anr. ATR 1982 Punjab 372; Surinder Mohan etc. v. Smt. Kiran Saini, 1977 Chandigarh Law Reporter 212; Kailash Nath Agarwal & Ors- v. Prem Pal Agarwal & Anr. Crl. Misc. Case No. 676 of 1981 connected with Crl. Misc. case No. 2753 of 1981, Allahabad High Court: Kailash Vati v. Ayodhya Parkash, ILR (1977) 1 Punjab d: Haryana 642 overruled. 5. For the purpose of exercising its power under section 482 Cr. PC to quash a First Information Report or a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations. In case no offence is committed on the allegation and the ingredients of section 405 and 406 IPC are not made out, the High Court would be justified in quashing the proceedings. In the -present case, the allegations are both clear, specific and unambiguous and

197 therefore, the complaint should have been given a chance to prove her case. It is, of course open to the accused at the trial to take whatever defences that were open to him or her but that stage had not yet come and therefore, the High Court was totally ill-advised to speculate on the merits of the case at that stage and quash the proceedings. Since all the facts stated in the complaint constituted an offence under section 406 IPC, the appellant cannot be denied the right to prove her case at the trial by pre-empting it the very behest by the order passed by the High Court. [223D-H; 224D-E-] Vinod Kumar Sethi & Ors. v. State of Punjab & Anr, AIR 1982 Punjab 372, over-led. L.V. Jadhav v. Shakarrao Abasaheb Pawar & Ors. AIR 1983 SC 1219; Smt. Nagawa v. Veeranna Shivalingappa Konjalgi & ors. [1976] Supp. SCR 123 applied. OBSERVATION (It is surprising to find that so deeply drowned and inherently engrossed are some of the High Courts in the concept of matrimonial home qua the stridhan property- of a married woman that they simply refuse to believe that such properties are meant for the exclusive use of the wife and could also be legally entrusted to the husband or his relations. Thus, if the husband or his relations misappropriate the same and refuse to hand it over to the wife and convert them to their own use and even though these facts arc clearly alleged in a complaint for an offence under section 405/406 IPC, some courts take the view that the complaint is not maintainable. Thus even when clear and specific allegations are made in the complaint that such properties were entrusted to the husband, they refuse to believe these hard facts and brush them aside on the ground that they are vague, and completely shut their eyes to the fact that the husband could also be guilty under section 405/406 IPC in view of the clear allegations made in the complaint. In other words, the High Courts simply refuse to believe that there can be any such entrustment and even if it is so, no offence is committed. Such an approach amounts to a serious distortion of the criminal law, resulting in perpetrating grave and substantial miscarriage of justice to the wife at the hands of the High Courts. The Supreme Court cannot continuance such a wrong and perverse approach.) [224G-H, 225A-C] Per A. Varadarajan, J. (dissenting) 1.1 In the absence of a separate agreement and specific

entrustment by the wife to the husband and or his relations and vice versa of the property of the husband to the wife and or her relation, it would not be possible to draw an inference of entrustment of custody or dominion over the property of one spouse to the other and his or her relations so as to attract the stringent provisions of section 406 IPC. The offence of criminal break of trust is cognizable and non-bailable and punishable with imprisonment for a term of three years or with fine or with both. In the absence of such a separate agreement for specific entrustment of the property of either spouse the appropriate remedy would appear to be by way of a civil suit where there is scope for the parties to the marriage coming together at the instance of relations, elders and well- wishers and patching up their differences. [241G-H; 242A] 198 1.2 Entertaining complaints of the irate wife or husband against the husband or wife without even an allegation of a specific and separate agreement constituting entrustment of the property of the wife of the husband would have disastrous effects and consequences on the peace and harmony which ought to prevail in matrimonial homes. [242B] 1.3 The fact that no instance of any case of successful prosecution of the husband or wife at the instance of the wife or the husband could be brought to the notice of the Supreme Court in the course of the arguments in this appeal would show that the spouses had not lightly rushed in the past to criminal courts with complaints of criminal breach of trust against the other spouses though in the day-to-day life. There must have been numerous instance where the wife had used the property or cash of the husband for purposes different from the one for which they were given by the husband to be applied by the wife and vice-versa. Therefore, the minimum requirement in such cases is a specific separate agreement whereby the property of the wife or husband was entrusted to the husband or wife and or his or her close relations. In the absence of such a specific separate agreement in the present case the complaint was rightly quashed. [242D-F] & CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 684 of 1982 From the judgment and order dt. the 31st May, 1982 of

the High Court of Punjab & Haryana at Chandigarh in Crl. Misc. No. 4876M/81. V.C. Mahajan, and N.S. Das Bahl for the Appellant. Altat Ahamed for the Respondents. Mrs. U. Kapoor for the Intervener. T The following Judgments were delivered FAZAL ALI, J. Sometimes the lawwhich is meant to impart justice and fair play to the citizens or people of the count is so torn and twisted by a morbid interpretative process that instead of giving haven to the disappointed and dejected litigants it negatives their well established rights in law. The present case reveals the sad story of a helpless married woman who, having been turned out by her husband without returning her ornaments, money and clothes despite repeated demands, and dishonestly misappropriating the same, seems to have got some relief by the court of the first instance but to her utter dismay and disappointment when she moved the High Court she was forced like a dumb- driven cattle to seek the dilatory remedy of a civil suit- such was the strange and harsh approach of the High Court, with due respect, which seems to have shed all the norms of justice and fair play. Even so, the High Court is not much to be blamed because in the process of following precedents or decisions of doubtful validity of some courts, it tried to follow suit. It may be stated that even the old 199 classic Hindu law jurists and celebrated sages conceded certain substantial rights to the women, one of which was - what is called Saudayika or stridhan, with which we are concerned here. This now brings us to a brief discussion of the nature, character and concomitants of stridhan. In the instant case, we are mainly concerned with that part of stridhan which is the absolute property of a married women during coverture. Sir Gooroodas Banerjee in 'Hindu Law of Marriage and Stridhana' while describing the nature of stridhan quoted Katyayana thus: "Neither the husband, nor the son, nor the father, nor the brother, has power to use or to alien the legal property of a woman. And if any of them shall consume such property against her own consent he shall be compelled to pay its value with interest to her, and shall also pay a fine to the king... Whatever she has put amicably into the hands of her husband afflicted by disease, suffering from disease, or sorely pressed by creditors, he should repay that by his own freewill. "

(P.341) At another place while referring to the nature of a husband's rights over stridhan during coverture, the author referring to Manu says thus: " .. and by the law as expounded by the commentators of the different schools, the unqualified dominion of the husband is limited to only some descriptions of the wife's property, while as regards the rest he is allowed only a qualified right of use under certain circumstances specifically defined." (p.340) Similarly, while describing the nature of stridhan generally, which is known as saudayika, the author says thus: "First, take the case of property obtained by gift. Gifts of affectionate kinderd, which are known by the name saudayika stridhana, constitute a woman's absolute property, which she has at all times independent power to alienate, and over which her husband has only a qualified right, -namely, the right of use in times of distress." 200 The entire classical text on the subject has been summarised by N.R. Raghavachariar in 'Hindu Law' (5th Edn) at page 533 (section 487) where the following statement is made: "487. Powers During Coverture. Saudayika, meaning the gift of affectionate kindred, includes both Yautaka or gifts received at the time of marriage as well as its negative Ayautaka. In respect of such property, whether given by gift or will, she is the absolute owner and can deal with it in any way she likes. She may spend, sell or give it away at her own pleasure by gift or will without reference to her husband and property acquired by it is equally subject to such rights. Ordinarily, the husband has no manner of right or interest in it. But in times of extreme distress, as in famine, illness or imprisonment, or for the performance of indispensable duty the husband can take and utilise it for his personal purposes, though even then he is morally bound to restore it or its value when able to do so. But this right is purely personal to him and cannot be availed of by a holder of a decree against the husband, and if the husband dies with out utilising the property for the liquidation of his debts, his creditors cannot

claim to proceed against it in the place of her husband." To the same effect is Maines' treatise on Hindu Law at page 728. The characteristics of Saudayika have also been spelt out by Mulla's Hindu law at page 168 (section 113) which gives a complete list of the stridhan property of a woman both before and during coverture, which may be extracted thus: "113. Manu enumerates six kinds of stridhana: 1. Gifts made before the nuptial fire, explained by Katyayana to mean gifts made at the time of marriage before the fire which is the witness of the nuptial (adhyagni). 2. Gifts made at the bridal procession, that is, says Katyayana, while the bride is being led from the residence of her parents to that of her husband 201 (adhyavanhanika) 3. Gifts made in token of love, that is, says Katyayana, those made through affection by her father-in-law and mother-in-law (pritidatta), and those made at time the of her making obeisance at the feet of elders (padavan danika). 4. Gifts made by father. 5. Gifts made by mother. 6. Gifts made by a brother." It is, therefore, manifest that the position of stridhan of a Hindu married woman's property during coverture is absolutely clear and unambiguous; she is the absolute owner of such property and can deal with it in any manner she likes - she may spend the whole of it or give it away at her own pleasure by gift or will without any reference to her husband. Ordinarily, the husband has no right or interest in it with the sole exception that in times of extreme distress, as in famine illness or the like, the husband can utilise it but he is morally bound to restore it or its value when he is able to do so. It may be further noted that this right is purely personal to the husband and the property so received by him in marriage cannot be proceeded against even in execution of a decree for debt. Such being the nature and character of stridhan of a woman, it is difficult to countenance the view of the Punjab & Haryana High Court in Vinod Kumar Sethi & Ors. v. State of Punjab & An.(l) that the stridhan property of a married woman becomes a joint property as soon as she enters her

matrimonial home. We shall deal with this aspect of the matter a little later. We would first like to narrate the facts of the case to show how the complaint filed by the appellant was wrongly quashed by the High Court. The general allegations made in the complaint may be summarised as follows:- (1) AIR 1982 Punjab 372- 202 The complainant was married to Suraj Kumar, Accused No. 1 (respondent) on 4.2.72 at Ludhiana according to Hindu rites and customs in the presence of respectable persons. Accused No.2 was the father and accused Nos.3 to 5 were brothers and No.6 was brother-in-law of accused No.; It is further alleged that all the accused attended and actively participated in the marriage of the complainant and demanded dowry. The must important allegation made by the appellant was that her parents and relatives gave by way of dowry articles worth Rs. 60,000/- inclusive of gold ornaments, clothes and other things which were entrusted to accused Nos.1 to 6 on 5.2.72 which were taken into possession by them. Soon after the marriage, accused No. 1 started harassing, teasing and beating the complainant and ultimately turned her out alongwith her children sometime in the year 1977. It was avered in para 4 of the complaint that accused never returned the articles to her, the relevant portion of the allegations may be extracted thus:- "The articles above-mentioned were never given by the accused to the complainant for her use and possession of the same was illegally, dishonestly and malafidely retained by the accused in order to make a wrongful gain to them selves and wrongful loss to the complainant. The accused refused to give the entrusted articles of dowry, which were the stridhan of the complainant. On 10.2.1981 when the accused Nos. 1 to 5 came to Ludhiana to attend the proceeding u/s 125 Cr.P.C., filed by the complainant in the Court of Shri S.S. Tiwana, they were persuaded by the parents of the complainant to send the articles entrusted to them at the time of marriage but they gave flat refusal to its notice which was served upon the accused No.1 which was dated 17.12.80, but to no effect. The accused have thus dishonestly used and converted the articles aforementioned to their own use, who are still in possession of the same in violation of the direction given by the parents of complainant. The parents of the

complainant directed the accused at the time of marriage to give the articles to the complainant for her use, in the presence of the aforesaid persons, but the accused have not done the needful of the demand and have thus committed criminal breach of trust punishable u/s 406 IPC." 203 A perusal of the allegations made in the complaint undoubtedly makes out a positive case of the accused having dishonestly misappropriated the articles handed over to them in a fiduciary capacity. To characterise such an entrustment as a joint custody or property given to the husband and the parents is wholly unintelligible to us. All the ingredients of an offense under s.405 IPC were pleaded and a prima facie case for summoning the accused was made out. In such circumstances, the complainant should have been given an opportunity by the High Court to prove her case rather than quashing the complaint. Such an exercise of jurisdiction under s.482 Cr.P.C. is totally unwarranted by law. We might also mention that alongwith the complaint, a list of valuable articles had also been given, the relevant portion of which may be extracted thus; I. " Jewellery" 1. Nine complete gold sets 2. One complete diamond set 3. Three gold rings 4. Two golden Bahi (Baju Band) 5. One golden chain 6. One shingar patti with golden tikka 7. One golden nath (Nose ring) 8. Twelve golden bangles II. Silver articles 1. Six glasses and one jug 2. Two surma danies 3. One tagari 4. Two payals III. Clothes Fifty one sarees, twenty one suits alongwith petti 204 coats, blouses, nighties, shawls, sweaters, night suits, gowns and woollen coat etc., six complete beds with sheets, etc." A perusal of the list reveals that so far as the jewellery and clothes, blouses, nighties and gowns are concerned they could be used only by the wife and were her stridhan. By no stretch of imagination could it be said that

the ornaments and sarees and other articles mentioned above could also be used by the husband, If, therefore, despite demands these articles were refused to be returned to the wife by the husband and his parents, it amounted to an offence of criminal breach of trust. In mentioning the articles in the list, we have omitted furniture and utensils which though also belonged to the complainant yet there is some room for saying that these were meant for joint use of the husband and wife. Thus, the facts mentioned in the complaint taken at their face value reveal a clear allegation that the stridhan property of the appellant was entrusted to the husband who refused to return the same to her Some courts were of the opinion that in view of s. 27 of the Hindu Marriage Act and s. 14 of the Hindu Succession act, the concept of stridhan property of a woman was completely abolished. For instance, the Punjab & Haryana High Court in a case reported in Surindra Mohan etc. v. Smt. Kiran Saini(1) held thus: "That under the present law on claim can be made on the basis of stridhan, as it has now been completely abolished and cannot avail against statute which makes it the joint property of the parties." We are of the opinion that this view of the High Court is not legally sustainable because neither of the two Acts, referred to above, go to the extent of providing that the claim of a woman on the basis of stridhan is completely abolished. All that the two sections, mentioned above, provide is that if the husband re- (1) 1977 Chandigarh Law Report 212 205 fuses to return the stridhan property of his wife, it will be open to the wife to recover the same by properly constituted suit. The sections nowhere provide that the concept of stridhan is abolished or that a remedy under the criminal law for breach of trust is taken away. In a later decision in Bhai Sher Singh & Anr. v. Smt. Virinder Kaur(1), it was very rightly pointed out by the same High Court that s. 27 of the Marriage Act merely provides an alternate remedy to the wife to bring a properly constituted suit in respect of the stridhan property which the husband refused to return. Thus, it is clear that s. 27 merely provides for an alternate remedy and does not touch or affect in any way the Criminal liability of the husband in case it is proved that he has dishonestly misappropriated that stridhan of his wife. It cannot also be spelt out from

any textbook or the sastric law of the Hindus that the two Acts mentioned above take away the stridhan right of a woman-at the most these Acts merely modify the concept of stridhan. It may be useful to refer to certain pertinent observations in the aforesaid case. "The aforementioned passage shows that a female has an absolute right to use her stridhan in any way she likes and even if her husband can take this property at the time of distress, this right is personal to him, The allegations made in the instant complaint are not that the husband of the respondent has placed her ornaments and jewellery etc. Out of her way. What has been alleged therein is that the petitioners who are the parents-in-law of the respondent have converted the ornaments and clothes, etc. presented to the respondent at the time of her marriage to their own use. Section 27 of the Hindu Marriage Act empowers a Court while deciding a matrimonial dispute to also pass a decree in respect of property which may jointly belong to both the husband and the wife. This section at best provides a civil remedy to an aggrieved wife and does not in any way take away her right to file a crimi- (1) 1979 Crl. L.J. 493. 206 nal complaint if the property belonging to her is criminally misappropriated by her husband.'' In these circumstances, the decision reported in 1977 Chandigrah Law Reporter 212 can no longer be considered good law. Even in Vinod Kumar's case (supra) the Full Bench reiterated the view that s. 27 in no way abolishes stridhan but expressly recognises the property exclusively owned by the wife. In this connection, the Court observed thus: "The express words of the provision refer to property 'which may belong jointly to both the husband and the wife'. It nowhere says that all the wife's property be longs jointly to the couple or that Stridhan is abolished and she cannot be the exclusive owner thereof. Indeed, in using the above terminology the statute expressly recognises that property which is exclusively owned by the wife is not within the ambit of Section 27 of the Hindu Marriage Act- - -Equally no other provision in the Hindu Marriage Act could be pointed out which erodes the concept of Stridhan or in anyway incapacitates the Hindu wife to hold property as

an exclusive owner." The sheet-anchor of the arguments of the counsel for the respondents-which is based on the decision of the Punjab & Haryana High Court in Vinod Kumar's case-is that the moment a woman after Marriage enters her matrimonial home, her stridhan property becomes a joint properly of both the spouses and the question of application of s. 406 I.P.C is completely eliminated. It is true that to a great extent this part of the argument of the learned counsel is supported by the aforesaid decision but, in our opinion, the decision, so far as this aspect of the matter is concerned, is wholly unsustainable. We would first extract the exact ratio held by the High Court in Vinod Kumar's case: "To conclude, it necessarily follows from the aforesaid discussion that the very concept of the matrimonial home connotes a jointness of possession and custody by the spouses even with regard to the moveable properties exclusively owned by each of them. It is, therefore, inapt to view the same in view of the conjugal relationship as 207 involving any entrustment or passing of dominion over property day-to-day by the husband to the wife or vice versa. Consequently, barring a special written agreement to the contrary, no question of any entrustment or dominion over property would normally arise during coverture or its imminent break-up. Therefore, the very essential prerequisites and the core ingredients of the offence under S.406 of the Penal Code would be lacking in a charge of criminal breach of trust of property by one spouse against the other." These observations on doubt support the contention of the learned counsel for the respondent but we find it impossible to agree with the aforesaid observations for the reasons that we shall give hereafter. We fail to understand the logic of the reasoning adopted by the High Court in investing the pure and simple stridhan of the wife with the character of a joint property. We are surprised that the High Court should have taken the view that a woman's absolute property though well recognised by law is interpreted by it as being shorn its qualities and attributes once a bride enters her matrimonial home. We are clearly of the opinion that the mere factum of the husband and wife living together does not entitle either of then to commit a breach of criminal law and if one does

then he/she will be liable for all the consequences of such breach. Criminal law and matrimonial home are not strangers. Crimes committed in matrimonial home are as much punishable as anywhere else. In the case of stridhan property also, the title of which always remains with the wife though possession of the same may sometimes be with the husband or other members of his family, if the husband or any other member of his family commits such an offence, they will be liable to punishment for the offence of criminal breach of trust under ss. 405 and 406, IPC. Afterall how could any reasonable person expect a newly married women living in the same house and under the same roof to keep her personal property or belongings like jewellery, clothing, etc., under her own lock and key, thus showing a spirit of distrust to the husband at the very behest. We are surprised how could the High Court permit the husband to cast his covetous eyes on the 208 absolute and personal property of his wife merely because it is kept in his custody, thereby reducing the custody to a legal farce. On the other hand, it seems to that us even if the personal property of the wife is jointly kept, it would be expressly or impliedly kept in the custody of the husband and if he dishonestly misappropriates or refuses to return the same, he is certainly guilty of criminal breach of trust, and there can be no escape from this legal consequence. The observations of the High Court at other places regarding the inapplicability of s. 406 do not appeal to us and are in fact not in consonance with the spirit and trend of the criminal law. There are a large number of cases where criminal law and civil law can run side by side. the two remedies are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property of the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrong deer in cases like arson, accidents, etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import. It is not at all intelligible to us to take the stand that if the husband dishonestly misappropriates the stridhan property of his wife, though kept in his custody, that would bar prosecution under s. 406 I.P.C. Or render the

ingredients of s. 405 IPC nugatory or abortive. To say that because the stridhan of a married woman is kept in the custody of her husband, no action against him can be taken as no offence is committed is to override and distort the real intent of the law. Coming back to the theory of matrimonial home and the stridhan becoming a joint property of the two spouses, the logical effect of the observation made by the High Court is that once a woman enters her matrimonial home she completely loses her exclusive stridhan by the same being treated as a joint property of the spouses. In other words, if this view is taken in its literal sense the consequence would be to deprive the wife of the absolute character and nature of her stridhan and make the husband a co-owner of the same - such a concept is neither contemplated nor known to Hindu law of stridhan, nor does it appeal to pure 209 common sense. It is impossible to uphold the view that once a married woman enters her matrimonial home her stridhan property undergoes a vital change so as to protect the husband from being prosecuted even if he dishonestly misappropriates the same. For instance, properties like jewellery, clothing, cash, etc. given by her parents as gifts cannot be touched by the husband except invery extreme circumstances, viz., where the husband is in imprisonment or is in serious distress. Even then the religion and the law enjoins that the husband must compensate the wife and if he cannot do so, he must pay fine to the King which means that the husband would` be liable to penal action under the present law of the land. - One of the arguments addressed by the counsel for the respondent which had appealed to thee full Bench of the Pun jab & Haryana High Court in Vinod Kumar's case (supra) as also to our learned Brother Varadarajan, J., is that after entering the matrimonial home the custody of the stridhan entrusted by the wife to her husband becomes a sort of a partnership firm and in this view of the matter the question of criminal breach of trust does not arise. In our opinion, it is neither appropriate nor apposite to import the concept of partnership in the relationship of husband and wife for the simple reason that the concept of partnership is entirely different from that of the husband's keeping the stridhan in his custody. Section 4 of the Indian Partnership Act, 1932 (hereinafter referred to as the 'Partnership Act') defines 'partnership' thus: "partnership" is the relation between persons who

have agreed to share the profit of a business carried on by all or any of them acting for all. Persons who have entered into partnership with one another are called individually "partners" and collectively "a firm" and the name under which their business is carried on is called the "firm name". The essential ingredients of a partnership are: (1) that there should be an actual or physical overt act on the part of two persons to embark an a business adventure. (2) that if any business is carried on by one or any 210 of the partners the profits of the business shall be shared by - them in the ratio contained in the partnership agreement. It is, therefore, manifest that in a partnership the wife must by some clear and specific act indicates that the stridhan which has been entrusted to the husband is to be used for a partnership business and the losses of the firm, if any would have to be shared by both. In other words, one of the essential conditions of a partnership firm is that every partner must have dominion over the property by virtue of the fact that he is a partner. This aspect of the matter was highlighted in a decision of this Court in Velji a Raghavji v. State of Maharashtra(1) where the following observations were made: ".. Every partner has dominion over property by reason of the fact that he is a partner. This is a kind of dominion which every owner of property has over his property. But it is not dominion of this kind which satisfies the requirements of s. 405. In order to establish 'entrustment of dominion' over property to an accused person the mere existence of that person's dominion over property is not enough. It must be further shown that his dominion . was the result of entrustment." In the instant case, however, there is neither any allegation nor anything in the complaint to show that when the wife entered her matrimonial home she had entrusted the property to her husband so as to make him part owner of the same. Therefore, the question of the husband's having dominion over the property does not at all arise. In fact, the wife has nothing to do with the partnership, if any, and the husband is a pure and simple custodian of the property and cannot use the same for any purpose without her

consent.A pure and simple act of entrustment of the stridhan to the husband does not attract any of the essential ingredients of a a partnership as defined in the Partnership Act. In the instant case, there is also no question of the wife constituting herself a partner with her husband merely by allowing him to keep the articles or money in his custody. There is neither any pleading nor any allegation that after her marriage, the appe- (1)AIR 1965 SC 1433. 211 llant transferred all her properties to her husband for carrying on a partnership business in accordance with the provisions of the Partnership Act. Thus, in our opinion, it cannot be said that a bare act of keeping stridhan property in the custody of the husband constitutes a partnership and, therefore, a criminal case under s. 406 IPC is not maintainable. It is not necessary for us to multiply cases on this point on which there does not appear to be any controversy. We have already pointed out that the stridhan of a woman is her absolute property and the husband has no interest in the same and the entrustment to him is just like something which he wife keeps in a Bank and can withdraw any amount whenever she likes without any hitch or hindrance and the husband cannot use the stridhan for his personal purposes unless he obtains the tacit consent of his wife. When the essential conditions of a partnership do not exist the mere act or factum of entrustment of stridhan would not constitute any co-ownership or legal partnership as defined under s.4 of the Partnership Act. To sum up the position seems to be that a pure and simple entrustment of stridhan without creating any rights in the husband excepting putting the articles in his possession does not entitle him to use the same to the detriment of his wife without her consent. The husband has no justification for not returning the said articles as and when demanded by the wife nor can he burden her with loss-, of business by using the said property which was never intended by her while entrusting possession of stridhan.) On the allegations in the complaint, the husband is no more and no less than a pure and simple custodian acting on b-half of his wife and if he diverts the entrusted property elsewhere or for different purposes he takes a clear risk of prosecution under s.406 of the IPC. On a parity of reasoning, it is mainfest that the husband, being only a custodian of the stridhan of his wife, cannot be said to be

in joint possession thereof and thus acquire a joint interest in the property. For these reasons, the custody or entrustment of stridhan with the husband does not amount to a partnership in any sense of the term and therefore, we are unable to agree with view taken in Vinod Kumar's case as also with the opinion expressed by our Brother on the points arising in the case. Another serious consequence as a result of the ratio of the full Bench decision in Vinod Kumar's case would be to render the 212 provisions of s. 406 IPC inapplicable and nugatory even if the husband has the audacity or the importunity of refusing to return the stridhan of his wife. Furthermore, we shall hereafter show that the view of the Full Bench is in direct contravention of a long course of decisions of this Court on the ingredients of s. 405 IPC. Before coming to this chapter, we would like to say a few things more about the judgment of the High Court which on deeper probe and careful scrutiny seems to be self-contradictory. We are clearly of the opinion that the concept of stridhan property of a married woman becoming a joint property of both the spouses as soon as she enters her matrimonial home and continues to be so until she remains there or even if there is a break in the matrimonial alliance, is in direct contravention of Hindu Law of Sadayika which has been administered since more than a century by High Courts, Privy- Council as also this Court. By a pure and simple figment of the fertile imagination the Judges in Vinod Kumar's case seem to have rewritten the law of criminal breach of trust contained in ss. 405 and 406 IPC so as to carve out an imaginary exception to the application of the Penal Code.A more tragic consequence of the view taken by the High Court is that even if there is a break in the matrimonial alliance and the wife wants her husband to return her exclusive property and he refuses to return, even then the provisions of s. 406 IPC would not apply. It is an extreme travesty of justice for a court to say that whenever a married woman demands- her stridhan property from her husband she should be driven to the dilatory process of a civil court and her husband would be debarred from being prosecuted by a criminal court. By a strange and ingenious process of holding that such an act of a husband does not attract the provisions of the Penal Code, as the property being joint there is no question of the husband being a

trustee or holding the same in a fiduciary capacity. Such a view, in our opinion, is not only contradictory but-what the High Court has said before regarding the applicability of s.27 of the Hindu Marriage Act and the nature of stridhan as referred to above-is also neither in consonance with logic and reason nor with the express provisions of the Penal Code and seems to us to be inspired by a spirit of male chauvininism so as to exclude the husband from criminal lability merely because his wife has refused to live in her matrimonial 213 home. We are indeed surprised how could the High Court, functioning in a civilised and socialistic society such as ours, play havoc with judicial interpretation of an important branch of law. We shall now show how the final view taken by the High Court is clearly contradictory to what it has observed before. In paragraphs 22A, 23 and 24 of the judgment, the High Court observes as follows: "It must, therefore, be unreservedly stated that the law, as it stands today, visualises a complete and full ownership of her individual property by a Hindu wife and in this context the factum of marriage is of little or no relevance and she can own and possess property in the same manner as a Hindu male. Once it is held that a Hindu wife can own property in her own right, then it is purely a question of fact whether the dowry or the traditional presents given to her, were to be individually owned by her or had been gifted to the husband alone or jointly to the couple.- .. For instance jewellery meant for the personal wearing of the bride, wedding apparel made to her measures specifically, cash amounts put into a fixed deposit ill a bank expressly in her E name; are obvious examples of dowry raising the strongest, if not conclusive presumption, of her separate owner ship in these articles. Once it is found as a fact that these articles of dowry were so given to her individually and in her own right, then I am unable to see how the mere factum of marriage would alter any such property right and divest her of ownership either totally or partially." In these paragraphs the High Court unequivocally and categorically expresses the view that a Hindu woman has complete and full ownership of her individual property and

the factum of marriage is of no relevance to determine the nature of the property It also holds that articles like jewellery, wedding apparel and cash, etc., cannot alter any such property right. In view of this clear finding given by the High Court, how could it make a complete volte-face by holding that these very properties after marriage become joint property of both the spouses. The High Court has not realised that the theory or philosophy of matrimonial home 214 propounded by it stands directly contradicted by its own observations referred to above. In paragraph 49 of the judgment, the High Court clearly finds that the mere use by the relations of the husband would not have the effect of passing the possession of the property to the Hindu undivided family and in this connection observes thus :- Equally, the common use and enjoyment of certain articles of dowry and traditional presents, by the other members of a joint family with the leave and licence of a Hindu wife, cannot have the effect of extending the jointness Of control and custody of the couple to undefined and unreasonable limits. Consequently, there is no reason to assume that the mere user or enjoyment of the dowry by other members of the house-hold, would have the effect of passing the possession and control thereof jointly to the Hindu Undivided Family as such." Thus, these observations run counter and are totally inconsistent and irreconcilable with the view taken by the High Court in paragraph 41 where it has observed thus: "In the light of the above it would be farcical to assume that despite the factum of a marriage and a common matrimonial home the two spouses would stand in a kind of a formal relationship where each is entrusted with or has been passed dominion over the exclusive property of the other..-....The matrimonial home so long as it subsist presumes a jointness of custody and possession by the spouses of their individual as also of their joint properties line.. The inevitable presumption during the existence or the imminent break up of the matrimonial home there fore is one of joint possession of the spouses which might perhaps be dislodged by the special terms of a written contract. However, to be precise this presumption of joint possession properties within the matrimonial home can subsist only as long- as the matrimonial home subsists

or on the immediate break up thereof." At other places the High Court has observed thus: 215 "47. In view of the above, it would be equally untenable to hold that either the desertion or the expulsion of one of the spouses from the matrimonial home would result in entrusting dominion over the property belonging to the other so as to bring the case within the ambit of this pre requisite under S.405, Indian Penal Code. The joint custody and possession once established would thereafter........ exclude either express entrustment or the passing of dominion over the property. It was rightly argued that if an irate husband or wife walks out from the matrimonial home in a huff, this cannot constitute an entrustment or dominion over the property to the other. Consequently, unless a special written agreement to the contrary can be established, the strongest presumption arises that during the existence and immediately after the crumbling of the matrimonial home, there was in essence, a joint possession and custody of the property of the spouses therein, including dowry and traditional presents, which would preclude the essentials of entrustment or dominion over the property which form the cornerstone of criminality under s.405, Indian Penal Code. 53. It cannot, therefore, be prim. facie presumed that these are exclusively the ownership of the wife or inevitably entrusted either to the husband or his close relations. As was noticed earlier, if an irate wife in a tantrums abandons the matrimonial home, such like property does not in the eye of law become entrusted to the parents-in-law or other close relations of the husband No such gullible presumption of entrustment or passing of the dominion of property can be raised in such a situation to come within the mischief of criminality for breach of trust. Entrustment or dominion over the property has to be unequivocally alleged and conclusively established by proof later." The High Court had itself rightly spelt out the legal propositions that the pure and traditional presents given to a bride in a Hindu wedding may be divided into three categories, viz., (a) property intended for exclusive use of the bride, e. g., her personal jewellery, wearing apparel, etc.

216 (b) articles of dowry which may be for common use and enjoyment in the matrimonial home, and (c) articles given as presents to the husband or the parent-in -law and other members of his family. With regard to category (a) above, the High Court observed thus: "Similarly as regards the first category of articles meant for the exclusive use of the bride she would retain her pristine ownership therein irrespective or her entry and presence in the matrimonial home or that of her parents in-law." The High Court thus accepts the well established rule of Hindu law of stridhan that that articles mentioned in category (a) are meant for the exclusive use of the bride and are her personal property. Unfortunately, however, with regard to category (c) while discussing the question of the rights of the bride to her exclusive property upon her entry in her matrimonial home, the High Court has wrongly applied what it had previously held with regard to category (a). In one breath the Judges say that the bride is entitled to retain her ownership irrespective of her entry and presence in the matrimonial home and in the other they come to the conclusion that the moment a married woman enters her matrimonial home, all her properties, including her exclusive property, become a joint property by a fiction of being placed in the custody of her husband or his relations. While we agree with the first part of the categories, as extracted above, we find it difficult to accept the other propositions adumbrated at a later stage of the judgment which have been fully discussed by us. We fail to understand how the High Court while finding that joint enjoyment does not divest a Hindu wife of her exclusive ownership still chose to treat it a joint property of the two spouses by the mere factum of joint user. The two views expressed by the High Court stand contradicted by its own findings and are wholly understandable. Thus, a detailed analysis of the judgment of the Punjab & Haryana High Court in Vinod Kumar's case (supra) appears to us to be a mass of confusion and lacks both clarity and coherence. We are, therefore, unable 217 to uphold or support the view of the High Court that upon entering the matrimonial home the ownership of stridhan property becomes joint with her husband or his relations- To this extent, therefore, we overrule this decision and hold that with regard to the stridhan property of a married

woman, even if it is placed in the custody of her husband or in-laws they would be deemed to be trustees and bound to return the same if and when demanded by her. The Supreme Court in a large number of cases has held that the fundamental core of the offence of criminal breach of trust. is that a property must be entrusted and the dominion of the property should be given to the trustee. In the present case, all these conditions, even according to the findings of the Court though not its conclusion, are clearly established. That the view of the High Court is absolutely wrong would be clear from a number of authorities, some of which we would like to discuss here. In Chelloor Manaklal Narayan Ittiravi Nambudiri v. State of Travancore(1) this Court made the following observations: "As laid down in S. 385, Cochin Penal Code (corresponding to S. 405, Indian Penal Code) to constitute an offence of criminal breach of trust it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it-It follows almost axiomatically from this definition that the ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit." In Jaswantrai Manilal Akhaney v., State of Bombay(2) Sinha, J. (as he then was) observed thus: "For an offence under section 409, Indian Penal Code, the first essential ingredient to be proved is that the property was entrusted- - But when section 405 which defines "criminal breach of trust speaks of a person being (1) AIR 1953 SC 478. (2) [1956] S.C.R. 483. 218 in any manner entrusted with property, it does not contemplate the creation of a trust with all the technicalities of trust. It contemplates the creation of a relationship whereby the owner of property makes it over to another person to be retained by him until a certain contingency arises or to be disposed of by him on the happening of a certain events." In Akharbhai Nazorali v. Md. Hussain Bhai(1) the Madhya Pradesh High Court made the following observations:

"It may be that the deduction and retention of the employees' contribution is a trust created by virtue of that very fact, or by virtue of a provision in statute or statutory rule. But even apart from the latter, the mere fact of telling the employees that it is their contribution to the provident fund scheme and then making a deduction or recovery and retaining it, constitutes the offence of criminal breach of trust. This is so obvious that nothing more need be said about it." These observations were fully endorsed and approved by this Court in Harihar Prasad Dubey v. Tulsi Das Mundhra & Ors.(2 where the following observations were made: "This, in our opinion, is a correct statement of the position and we also agree with the learned Judge of the Madhya Pradesh High Court that "this so obvious that nothing more need be said about it We, therefore, think that the impugned order quashing the charge against the respondents is obviously wrong." In Basudeb Patra v. Kanai Lal Haldar(3) the Calcutta High Court observed thus: "Whereas the illustration to s. 405 show equally clearly that the property comes into. (1) AIR 1961 M. P. 37: (2) AIR 1981 SC 92. (3) AIR 1949 Calcutta 207, 219 the possession of the accused either by an express entrustment or by some process placing the accused in a position of trust..-.-On the facts of the present case, which, as I have said, are not open to question at this stage, it is quite clear that the ornaments were handed over to the petitioner by the beneficial owner in the confidence that they would be returned to the beneficial owner in due time after having been used for the purpose for which they were handed over. If this is not an entrustment, if is impossible to conceive what can be an entrustment." (Emphasis ours) This ratio was fully approved by this Court in Velji Raghavji Patel v. State of Maharashtra(1) where the following observation were made: "In order to establish " entrustment of dominion" over property to an accused person the mere existence of that person's dominion over property is not enough. It must be further shown that his dominion was the result

of entrustment. Therefore, as rightly pointed out by Harris, C.J. the prosecution must establish that dominion over the assets or a particular asset of the partnership was by a special agreement between the parties, entrusted to the accused person." In the case of State of Gujrat v. Jaswantlal Nathalal,(2) Hegde, J., speaking for the Court, observed thus: "The expression 'entrustment' carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Further the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them." In Sushil Kumar Gupta v. Joy Shanker Bhattacharjee(3) this Court observed thus: (1) AIR 1965 SC 1433. (2) [1968] 2 SCR 408. (3) AIR 1971 SC 1543. 220 "The offence of criminal breach of trust is committed when a person who is entrusted in any mannerwith property or with dominion over it, dishonestly misappropriates it or converts it to his own use.. The appellant's manner of dealing with the money entrusted to his custody clearly constitutes criminal breach of trust." In the case of Superintendent & Remembrancer of Legal Affairs, West Bengal v. S.K. Roy (1) this Court held that for 'entrustment' two things are necessary, viz., (l) the entrustment may arise in "any manner" whether or not it is fraudulent, and (2) the accused must have acquisition or dominion over the property. In Bhai Sher Jang Singh & Anr. v. Smt. Virinder Kaur (supra) the Punjab & Haryana High Court observed thus: It might be that some of the articles which were presented to her are for the use of both the spouses but the ornaments and things of the like nature are certainly meant for her and her alone. When she makes an allegation in the complaint that either her husband or her parents-in-law had converted to their own use the ornaments forming the part of her stridhan which she had entrusted to them, the Court has to give legal effect to such allegation and to assume that such ornaments had been made the subject matter of criminal

breach of trust. It is settled law that even in a criminal complaint the complainant is under no obligation to plead the legal effect of the allegations made. All that is required is that the facts constituting a complaint should be specifically mentioned so that the Court may be able to perform its duty of punishing the accused under the appropriate provision of law if such allegations are made out. Further more, in a case like this a complaint cannot be quashed without giving the aggrieve wife an opportunity of proving that the ornaments had been given to her at the time of her marriage for her use only." (Emphasis supplied) We fully endorse this decision and hold that it lays down the correct law on the subject. (1) [1974] 4 S.C.C. 230. 221 There is a judgment of the Allahabad High Court which more or less takes the same view as the Punjab & Haryana High Court in Vinod Kumar's case (supra). In Criminal Misc. Case No. 676 of 1981 (connected with) Criminal Misc. Case No. 2753 of 1981, Kailash Nath Agarwal & Ors. v. Prem Pal Agarwal & Anr., (decided on 22.12.1983), the Allahabad High Court, out of the three categories laid down by Punjab & Haryana High Court in Vinod Kumar's case, accepted only the third category, viz., articles which constitute the individual property of the person for whose use it was given, and held that the rest of the property falling under categories (a) and (b) would be property exclusively meant for the use of the bride and once it was brought to the family home, the possession would be joint unless by an express written agreement there was an entrustment of the property of the bride to other members of the family. The Allahabad High Court thus also accepts the concept of the property being a joint property in the matrimonial home. By and large this decision toes the line of the view taken by the Punjab and Haryana High Court in Vinod Kumar's case. Furthermore, the High Court has gravely erred in holding that the property could only be claimed by filing a properly constituted civil suit or in accordance with the provisions of the Dowry Prohibition Act or the Hindu Marriage Act as the case may be. This proposition, in our opinion, is wholly incorrect as conceded even by the Punjab , & Haryana High Court in Vinod Kumar's case. There is an earlier decision of the Punjab & Haryana High Court which clearly holds that where there is a clear

allegation of entrustment by the wife against the husband, he could be prosecuted by a criminal court on a complaint filed by the wife. In this connection, the Court in Avtar Singh & Anr. v. Kirpal Kaur Criminal Misc. No.2144-M of 1979 and Criminal Misc.No.2145 of 1979, decided on 16 8.79) made the following observations: "In my opinion, where certain thing is lying in trust with a person, offence of dishonest misappropriation would be committed on a date the demand for return of the entrusted articles is made and the same is declined...According to the complaint, the first demand for the return of the articles was made on January 27, 1976 and it was that date when the demand was declined. Hence, the offence of misappropriation of the dowry articles lying in trust was committed on January 27, 1976." 222 We find ourselves in entire agreement with this decision and hold that this was correctly decided. This Court has pointed out more than once that the High Court should very sparingly exercise its discretion under s. 482 Cr. P.C. In L.V. Jadhav v. Shankarrao Abasaheb Pawar & Ors.(l) (to which two of us were a party), this Court made the following observations: "The High Court, we cannot refrain from observing, might well have refused to invoke its inherent powers at the very threshold in order to quash the proceedings, for these powers are meant to be exercised sparingly and with circumspection when there is reason to believe that the process of law is being misused to harass a citizen." In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi & Ors.(2) this Court observed as follows :- "Thus, it may be safely held that in the following cases an order of the magistrate issuing process against the accused can be quashed or set aside: (1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the

accused; (3) where the discretion exercised by the Magistrate in suing process is capricious and arbitrary having been either on no evidence or on materials which are wholly irrelevant or inadmissible; and (1) AIR [1983]SC 1219. (2) [1976] Supp. SCR123 223 (4) where the complaint suffers from fundamental legal defects, such as, want of section, or absence of a complaint by legally competent authority and the like. The cases mentioned by us are purely illustrative and pro vide sufficient guidelines to indicate contingencies where the High Court can quash proceedings." B The same principles would apply mutatis mutandis to a criminal complaint. We now come to the question as to whether or not a clear allegation of entrustment and misappropriation of properties was made by the appellant in her complaint and, if so, was the High Court justified in quashing the complaint at that stage. It is well settled by a long course of this Court that for the purpose of exercising its power under s. 482 Cr.P.C. to quash a FIR or a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations. In case no offence is committed on the allegation and the ingredients of s.405 & 406, I.P.C. are not made out, the High Court would be justified in quashing the proceedings. In the present case, we shall show that the allegations are both clear, specific and unambiguous and, therefore, the complainant should have been given a chance to prove her case. It is, of course, open to the accused at the trial to take whatever defence that were open to him but that stage had not yet come and therefore, the High Court was totally ill-advised to speculate on the merits of the case at that stage and quash the proceedings. We have narrated the facts in detail in the earlier part of our judgment but we might again, even at the risk of repetition, indicate the bare facts which prima facie make out a clear case under s.406, IPC against the accused. The important portions of the

complaint may be spelt out thus: (1) that all the accused attended the marriage of the appellant with the respondent and demanded dowry from the parents of the appellant in consideration of the marriage. (2) that the parents of the appellant spent Rs,75,000 on the marriage and dowry articles worth Rs.60,000 224 (inclusive of jewellery, wearing apparel, etc.) were given and entrusted to accused Nos.1 to 6 at the time of the Doli on 5.2.72, (3) that the articles entrusted to the accused were meant for the exclusive use of the appellant, (4) that the dowry articles were never given by the accused to the appellant even for her use and possession of the same was illegally, dishonestly and mala fidely retained by the accused in order to obtain a wrongful gain to themselves and wrongful loss to the appellant, (5) that on 11.12.1980 in the morning, the accused brought the appellant to Ludhiana in three clothes and refused to give the entrusted articles which were the stridhan of the appellant. Taking all the allegations made above, by no stretch of imagination can it be said that the allegations do not prima facie amount to an offence of criminal breach of trust against the respondent. Thus, there can be no room for doubt that all the facts stated in the complaint constitute an offence under s. 406 IPC and the appellant cannot be denied the right to prove her case at the trial by per-empting it at the very behest by the order passed by the High Court. We therefore, overrule the decisions of the Punjab & Haryana High Court in Vinod Kumar's case. By way of post-script we might add that we are indeed amazed to find that so deeply drowned and inherently engrossed are some of the High Courts in the concept of matrimonial home qua the stridhan property of a married women that they simply refuse to believe that such properties are meant for the exclusive use of the wife and could also be legally entrusted to the husband or his relatives. Thus, if the husband or his relatives misappropriate the same and refuse to hand it over to the wife and convert them to their own use and even though these facts are clearly alleged in a complaint for an offence under s. 405/406 I.P.C., some courts take the complaint is not maintainable. Thus, even when clear and specific allegations are made in the

complaint 225 that such properties were entrusted to the husband, they refuse to believe these hard facts and brush them aside on the ground that they are vague. The allegations of the complainant in this appeal and the appeal before the Allahabad and the Punjab & Haryana High Court show that it is not so but is a pure figment of the High Court's imagination as a result of which the High Court completely shut their eyes to the fact that the husband could also be guilty under s. 405/406 I P.C. in view of the clear allegations made in the complaint. In other words, the High Courts simply refuse to believe that there can be any such entrustment and even if it is so no offence is committed. Such an approach amounts to a serious distortion of the criminal law, resulting in perpetrating grave and substantial miscarriage of justice to the wife at the hands of the High Courts. We cannot countenance such a wrong and perverse approach. For the reasons given above, we are satisfied that as the complaint prima facie disclosed an offence of criminal breach of trust as defined in s. 405/406 of the Indian Penal Code the High Court was not justified in quashing`the complaint. We, therefore, allow this appeal, set aside the judgment of the High Court and restore the complaint filed by the appellant and direct that the accused may be summoned, if not already summoned, and put on trial in accordance with law. VARADARAJAN, J. This criminal appeal by special leave is directed against the judgment of a learned Single Judge of the Punjab and Haryana High Court in Criminal Misc. Case No.4876 of 1981. The appellant, Pratibha Rani is the estranged wife of the first respondent Suraj Kumar who is the brother of the second respondent Krishan Lal. One Rattan Chand is the father of respondents 1 and 2 and two others Chander Kumar and Vishwinder Kumar. One Jugal Kumar is the brother-in-law of the first respondent. The appellant filed a criminal complaint for an offence under s.406 I.P.C. against her husband and his father and brothers and brother-in-law mentioned above in the Court of the Additional Chief Judicial Magistrate, Ludhiana, alleging that she was married to the first respondent at Ludhiana on 4. 2. 1972 according to the Hindu rites and customs. The material averments in the complaint 226

are these: The aforesaid persons, namely, father, brother and brother-in-law of the first respondent attended the marriage and demanded dowry from the appellant's parents as consideration for the marriage. Accordingly, dowry articles mentioned in the list appended to the complaint, worth Rs. 60,000, in the form of golden articles, clothes and other valuables were given and entrusted to the respondents and four others mentioned in the complaint at Ludhiana time of 'doli' on 5.2.1972 in the presence of Kapur Chand Jain and six others. The six respondents in the complaint started teasing, harassing and beating the appellant and they kept her without even food to extract more money from her parents. They turned out the appellant with her children in the beginning of 1977. After a great deal of persuasion and intervention by Panchayatdars, respondent 1 came to Ludhiana and took the appellant to his house after giving an undertaking in writing on 21. 6. 1977 not to misbehave with and maltreat the appellant her children. But after some time all the respondents in the complaint started maltreating the appellant and misbehaving with her. The articles mentioned in the list were never given by the respondents in the complaint to the appellant for her use but were retained by them illegally and with the dishonest intention of causing wrongful gain to themselves and wrongful loss to the appellant. The respondents in the complaint brought the appellant to Ludhiana at 4.30 a.m. On 11.12.1980 and left her near Kailash Cinema Chowk. They refused to give the articles mentioned in the list which are the stridhan of the appellant to her. When the appellant's husband and his brother, Vishwinder Kumar, respondents 1 and 5 in the complaint, came to Ludhiana on 10.2.1981 to attend the proceeding started by the appellant under s. 125 Cr. P.C., her parents persuaded them to return the articles entrusted to them at the time of the marriage but they flatly refused to comply with that demand. The articles have not been returned in spite of service of notice dated 17. 12. 1981 on the first respondent. Thus the respondents in the complaint have dishonestly converted the articles belonging to the appellant for their use in violation of the direction of the appellant's parents given at the time of the marriage to give the articles for the appellant's use. The respondents in this appeal filed Criminal Misc. Case No.4876 of 1981 in the Punjab and Haryana High Court under s.482 of the Code of Criminal procedure for quashing the criminal 227

Proceedings and the complaint taken on file by the Additional Chief Judicial Magistrate, Ludhiana under s. 406 I.P.C. and his order summoning them. Sukhdev Singh Kang, J. before whom the matter came up in the High Court relied strongly upon the observations made by a Full Bench of that High Court in Vinod Kumar Sethi & Ors. v. State of PunJab and Ors.(l) and has observed in his judgment that the mere handing over of the articles of dowry of stridhana to the husband and other relations at the time of the marriage does not constitute entrustment in the sense of the word used in ss. 405 and 406 I P.C. and that it does not amount to passing of dominion over those articles to them. The learned Judge has observed that there can be such an entrustment only by a subsequent conscious act of volition ` and that in the absence of such an act any allegations of breach of trust between the husband and wife cannot constitute an offence under s.406 I.P.C. The learned Judge has further observed that between the husband and wife there is always a jointness of control and possession of the properties of the spouse within the matrimonial home and that it goes against the very concept of entrustment of his or her property by one spouse to the other. In this view, he allowed the petition and quashed the proceeding arising out of the appellant's complaint, observing that the allegations in the appellant's complaint are similar to the one in Vinod Kumar's case (supra) and that this case is fully covered by the ratio in that decision. The appellant has, therefore, come to this Court in appeal by special leave, impleading the petitioners before the High Court, who are only two out of the six respondents in the complaint, as respondents in this appeal. In a petition under s.482 Cr.P.C. for quashing a criminal complaint, the allegations made in the complaint have to be taken to be correct in order to find out whether they constitute the various ingredient of the offence alleged. In Nagawa Veernna Shivalingappa Konjalgi & Ors ) illustrations have been given of cases in which it may be safely held that an order of a Magistrate issuing process against an accused can be quashed or set aside. They are: (1) AIR 1982 Punjab 372. (2) [1976] Suppl S.C.R. 123 228 (1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same, taken at their face value, make out absolutely no case against the accused or the complaint

does not disclose the essential ingredients of an offence which is alleged against the accused; (2) Where the allegations made in the complaint are palpably absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) Where the complaint suffers from fundamental legal defects such as want of sanction, or absence of a complaint by a legally competent authority and the like." Article 126 in Mulla's Hindu Law, Fifteenth Edition, describing what constitutes Stridhana reads: - "property given or bequeathed to a Hindu female whether during maidenhood, coverture or widowhood by her parents and their relation or by her husband and his relations is stridhana according to all schools except that the Dayabhaga does not recognise immovable property given or bequeathed by husband to his wife as stridhana." Section 2 of the Dowry prohibition Act, 1961 defines "dowry" as meaning: "any property or valuable security given or agreed to be given either directly or indirectly-(a) by one party to a marriage to the other party to the marriage, or (b) by the parents of either party to the marriage, or by any other person to either party to the marriage or to any other person at or before of after the marriage in connection with the marriage of the said parties but does not include dower or mahr in the case of person to whom the Muslim personal law (Shariat) applies." 229 In the present complaint of the wife against the husband and , his three brothers, father and brother-in-law, it is alleged that the marriage was performed at Ludhiana on 4.2.1972 according to Hindu rites and customs and that the father and three brothers and the brother-in law of the husband attended the marriage and demanded dowry from the wife's parents as consideration for the marriage and that accordingly dowry articles worth Rs.60,000, mentioned in the

list attached to the complaint, consisting of gold articles, clothes and other valuables were given and entrusted to the husband and the other five respondents in the complaint, at the time of the 'doli' at Ludhiana on 5.2. 1972 in the presence of Kapur Chand Jain and six other persons. For the purpose of the petition under s.482 Cr.P.C. those articles must be prima facie considered to be dowry or stridhana of the appellant-wife. In Velji Raghavjl Patel v. State of Maharashtra,(1) it is observed: "Upon the plain reading of s.405, I.P.C. it is obvious that before a person can be said to have committed criminal breach of trust it must be established that he was either entrusted with or entrusted with dominion over property which he is said to have converted to his own use or disposed of in violation of any direction of law etc. Every partner has dominion over property by reason of the fact that he is a partner. This is a kind of dominion which every owner of property has over his property. But it is not dominion of the kind which satisfies the requirements of s. 405. In order to establish "entrustment of dominion" over property to an accused person the mere existence of that person's dominion over property is not enough. It must be further shown that his dominion was the result of entrustment. Therefore, as rightly pointed out by Harris C.J., the prosecution must establish that dominion over the assets or a particular asset of the partnership was by a special agreement between the parties, entrusted to the accused person. If in the absence of such a a special agreement a partner receives money belonging to the partnership he cannot be said to have received it in a (1) [1965] 2 S C.R. 429 230 fiduciary capacity or in other words cannot be held to have been "entrusted" with dominion over partnership properties." In State of Gujarat v. Jaswantlal Nathalal(1) it is observed: "Before there can be any entrustment there must be a trust meaning thereby an obligation annexed to the owner ship of property and a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner. But that does not mean that such an entrustment need

conform to all the technicalities of the law of trust - see Jaswantrai Manilal Akhaney v. State of Bombay [1956] SCR 483, 498-500. The expression 'entrustment' carries with it the implication that the person handing over any property or on whose behalf that property is handed over to anther, continues to be its owner. Further the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them." In Sushil Kumar Gupta v. Joy Shankar Bhattacharyya(2), it is observed: "The offence of criminal breach of trust is committed when a person who is entrusted in any manner with property or with dominion over it, dishonestly misappropriates it, or converts it to his own use, or dishonestly uses it or disposes it of, in violation of any direction of law prescribing the mode in which the trust is to be discharged, or of any lawful contract, express or implied, made by him touching such discharge, or wilfully suffers any other person so to do." In Superintendent Remembrancer of Legal Affairs, West Bengal v. S.K. Roy(8), it is observed: "There are, however, two distinct parts involved in the commission of the offence of criminal breach of trust. The first consists of the creation of an obligation in rela (1) [1968] 2 SCR 408. (2) [1970] 3 SCR, 770. (3) [1974] 4 SCC,230. 231 tion to the property over which dominion or control is acquired by the accused. The second is a misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created. The most important ingredient of an offence under s. 406, which is alleged by the wife against her husband, his three brothers, father and brother-in-law in her complaint in the present case is the entrustment of the dowry articles to the respondent in the complaint and ,their dishonest conversion thereof to their own use. There is no doubt an allegation in the complaint that these articles were given and entrusted to the respondents in the complaint at Ludhiana at the time of doll on 5-2-1972. Apart from the husband the other respondents in the complaint, as already

stated, are his father, three brothers and brother-in-law. The articles were given for the use of the wife- If so, could there be entrustment of the articles to such a number of diverse persons? In the background of what usually happens in Hindu marriages namely, placing of the articles presented to the bride in the presence of the elders and others assembled for the occasion and removal thereof after the function is over it has to be seen whether the allegation made in the complaint amounts to entrustment as required by law to make out an offence under s. 406 l.P.C. This question has been considered in detail by a Full Bench of the Punjab and Haryana High Court in Vinod Kumar's case (supra) after an analysis of several decision relating to the question. The learned Single Judge who has quashed the complaint in the present case on a petition of the husband and one of his brothers has heavily relied upon that Full Bench decision of his Court. What runs through the judgment of the learned Judges in that case is the concern of the Court for the peaceful and harmonious relationship between the spouses in a matrimonial home and a careful consideration of the question whether the ingredient of entrustment" exists in such cases. Therefore, it is necessary to note what has been observed in some of the paragraphs of the judgment to that case. The learned Chief justice speaking for the Bench has observed: "21.. The present set of cases presents a sad spectacle of a house divided against itself, not merely in the biblical but in the literal sense, where wives are ranged against their husbands in acrimonious criminal prosecu- 232 tions. The challenge on behalf of the husbands and their relations is focussed basically against the charge of breach of trust under Section 406 of the Indian Penal Code, levelled against them. Now the core of the argument on behalf of the petitioners is that the very concept of any entrustment or passing dominion over her property by the wife to the husband does not arise at all so long as the marriage subsists. The contention is that the very nature of the conjugal relationship itself would negative any such stand. On this premise it is contended that the basic pre- requisite of the entrustment of property or dominion over property being lacking and non-existent, no offence under Section 406, Indian renal Code, can possibly be made out. Therefore, it was argued that

even accepting the first information reports as they do not and indeed cannot disclose a cognizable offence under Section 406. The petitioners, therefore, seek the quashing of the proceedings - forthwith rather than being obliged to go through the tortuous mill of a police investigation or the consequent criminal trial." "25. Now apart from the principle, the most ancient texts of Hindu Law have always been categoric that dowry, as commonly understood, was stridhana and thus in the exclusive ownership of the bride." "26. Now once it is so held that articles of dowry and traditional presents given at the wedding are owned by the bride individually in her own right, then one fails to see how by the mere fact of her bringing the same into her husband's or parents-in-law's household, would forth with divest her of the ownership thereof. Separate and individual right to property of the wife therein cannot vanish into thin air the moment the threshold of the matrimonial home is crossed. To say that at that point - of time she would cease to own such property altogether and the title therein would pass to her husband or in any case she would lose half of her right therein and become merely a joint owner of the same, with the family of her husband, does not appear to me as even remotely warranted either by the statute, principles or logic. No such marriage hazard against the wife can be implied in law. 233 Once she owns property exclusively, she would continue to hold and own it as such despite marriage and coverture and the factum of entering the matrimonial home.. " "35. To conclude on this aspect, I find nothing in the codification of Hindu Law which in any way abolishes the concept of stridhana or the right of a Hindu wife to exclusive individual ownership. Indeed the resultant effect of such enactments is to put the Hindu female wholly at par with the Hindu male, if not at a higher pedestal with regard to individual ownership of the property." 40. Now having held as above that Hindu wife can exclusively own and hold property including her dowry and traditional presents given at the wedding, the decks are cleared for tackling the core question posed at the very outset. What indeed is the true legal relationship of the husband and wife qua the property

individually owned by each within the four walls of the matrimonial home? Does the wife stand entrusted with the property belonging to her husband individually and vice versa the husband stands entrusted with such property vesting in the exclusive ownership of the wife? It is the answer to this question which in essence would determine the attraction and applicability of Section 405, I.P.C betwixt the spouses.." "41. It bears 'repetition that the question herein has to be examined against the backdrop of the matrimonial home. What truly is the concept and essence thereof had come up for exhaustive consideration earlier before a Full Bench in Kailash Vati v. Ayodhia Parkash, ILR (1977) 1 Punj. & Har. 642 in the context of Hindu Law itself. It is, therefore, apt to refer to the authoritative enunciation therein:- "To my mind, the idea of the matrimonial home appears to lie at the very centre of the concept of marriage in all civilised societies. It is indeed around it that generally the marriage tie revolves. The home epitomizes the finer nuances of the marital status. The bundle of indefinable rights and duties which 234 bind the husband and the wife can perhaps be best understood only in the context of their living together in the marital home The significance of the conjugal home in the marriage tie is indeed so patent that it would perhaps be wasteful to elaborate the 8 same at any great length. Indeed, the marital status and the conjugal home have been almost used as interchangeable terms." and "To summarise, I have attempted to show by reference to Anglo-American Jurisprudence that the a concept of the marital home lies at the very centre of the idea of marriage in all civilised societies. Perhaps from primeval times when human beings lived sheltered in subterranean caves to the modern day when many live perched in flats in high rise apartments within the megapolis, the husband and the wife have always hankered for a place which may be their very own and which they may call a home. The innumerable mutual obligations and rights which stem from the living together of man and wife are undoubtedly beyond any precise definition and stand epitomized by the concept

of the matrimonial home." In the light of the above it would be farcical to assume that despite the factum of a marriage and a common matrimonial home the two Spouses would stand in a kind of a formal relationship where each is entrusted with or has been passed dominion over the exclusive property of the other. Rather it appears to me that the conjugal relationship and the existence of a matrimonial home automatically obviates any such hyper-technicalities of an entrustment or dominion over property. It seems inapt to conceive the relationship as a day-to-day entrustment of the property of the husband to the custody of the wife or vice versa of the property of the wife to the husband. The matrimonial home so long as it subsists presumes a jointness of custody and possession by the spouses of their individual as also of their joint properties which can not be divided by any metaphorical line. In a homely metaphor in the context of the modern commercialised world it has been said that the marriage relationship is not one of 235 "I and You limited" but that of "We limited". Whilst the law undoubtedly now clearly recognises the individual ownership of property by the husband and wife, the necessary assumption in law, therefore, would be that during the existence or even the imminent break up the matrimonial home the concept of jaintness of possession therein seems to be a paramount one. The inevitable presumption during the existence or the imminent break up of the matrimonial home therefore is one of joint possession of the spouses which might perhaps be dislodged by the special terms of a written contract. However, to be precise this presumption of joint possession of properties within the matrimonial home can subsist only as long as the matrimonial home subsists or on the immediate break up thereof." "42-43. The aforesaid position seems to be well borne out by a homely example which was rightly advanced by Mr. Bhandare on behalf of the petitioners. It was submitted that where a husband entrusts a specific amount to a wife for paying the school fees of their children but in a shopping spree she converts the same into sarees for herself, would she thereby become liable to breach of trust under Section 406, Indian Penal Code? The answer would obviously appear to be in the negative. Similarly where a husband misuses or even appropriates any property exclusively belonging to his

wife within the matrimonial home he hardly comes within the ambit of criminality under Section 406, Indian Penal Code. Usually if not invariably where the husband is the bread winner he brings home the month's wages and bands them over to the wife to be spent on the family. Would it be possible to say that if she use the same for herself and even against the consent of her husband she would be committing a criminal breach of trust? Obviously the answer would appear to be in the negative." "44. One may now turn precisely to the language of the Code itself. Sec. 405 is in the following terms:- 236 "405. Criminal Breach of trust: Whoever being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in, which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other Person so to do, commits criminal breach of trust." It is well-setted that from a legal contract, or violation of direction of law, the entrustment of property or dominion over property are the per- requisites for the applicability of the aforesaid provision. Once it is held as above, that property within the matrimonial home is in the joint possession and custody (despite rights of the individual ownership therein) then these very per-requisites of entrustment or dominion over property cannot be easily satisfied betwixt the spouses inter se. It is indeed well-settled that the very concept of the jointness of possession and custody would rule out the entrustment or dominion over property betwixt such joint custodians. In line with the concept of joint ownership where the possession of one joint owner is deemed to be the possession of all, the analogy,is to be extended that existence of the property within the matrimonial home rises a presumption that both the husband the wife are in possession thereof jointly and not that each one has entrusted his exclusive property to the custody of other. Subscribing to the latter view would be both

overly hypertechnical and subversive of the very concept of marriage, the matrimonial home and the inevitable mutual trust which conjugality necessarily involves." "45. It is obviously because of the afore said legal position and this inarticulate peremise underlying the same that the learned counsel for the State and the complainants were unable to cite even a single case of conviction for criminal breach of trust betwixt husband and wife. Even when 237 pointedly asked, counsel conceded that despite the diligent research neither under the Indian Penal Code, nor under the analogous provisions of English law could they lay their hands for over a century and a half on any case where such a conviction had been upheld. This paucity, rather the total absence of precedent, indirectly buttresses the view I have expressed above on principle and the statutory provisions. An analogy in their context may well be drawn from the Law of Partnership. However, at the very outset I would notice that the position is not identical because partnership envisages a joint or co-ownership of partnership property whereas in a conjugal relationship, as shown above, the spouses may well bethe individual and exclusive owners of their respective properties. Nevertheless a marked similarity therein is that in partnership, co-ownership necessarily connotes a jointness of possession of partnership properties whilst the same position inheres in the matrimonial home where the spouses are deemed to be jointly in possession and custody. Now, barring some ancient notes of discordance, it seems to be now well accepted that a partner cannot be held guilty of criminal breach of trust qua partnership property except by virtue of a special agreement either written or conclusively established. This had always been so in English law until it was specifically and altered by Statute 31 and 32 Victoria c. 116 and it is now governed by the special provisions of the same and subsequent legislation. In India, however, in the absence of any statutory change, the legal position would continue to be the same. This came up for pointed consideration before a Full Bench of five Judges in Bhuban Mohan Das v. Surendra Mohan Das, AIR 1951 Cal, 69. The relief sought therein of quashing the proceedings under S.

406, Indian Penal Code, betwixt partners, was granted whilst holding that a charge under S. 406, Indian Penal Code cannot be framed against a person who, according to the complainant, is a partner with him and is accused of the offence in respect of property belonging to them as partners. P.B. Mukharji, J. in his concurring judgment observed as under (Para 46) : "The question here is of much broader application and of a more fundamental nature. Its fundamen- 238 tal nature is this that the very conception of partner ship precludes possibility of entrustment or dominion of the partnership property by one partner as against the other and, therefore, precludes any possible operation of the crime under Section 406 Penal Code, of criminal breach of trust by one partner against the other in respect of the partnership property." The aforesaid view has been expressly referred to and approved by their Lordships in Velji Raghavji v. State of Maharashtra,(1) with the following added observations (at pp. 1435-36) :- "... Every partner has dominion over property by reason of the fact that he is a partner. This is a kind of dominion which every owner of property has over his property. out it is not dominion of this kind which satisfies the requirements of S.405. In order to establish `entrustment of dominion' over property to an accused person the mere existence of that person's dominion over property is not enough. It must be further shown that his dominion was the result of entrustment. Therefore, as rightly pointed out by Harris, C.J., the prosecution must establish that dominion over the assets or a particular asset of the partnership was, by a special agreement between the parties entrusted to the accused person. If in the absence of such a special agreement partner receives money belonging to the partnership he cannot be said to have received it in a fiduciary capacity or in other words cannot be held to have been 'entrusted' with dominion over partnership properties. " If that is so in the partnership relation it appears to me that it would be more so in the conjugal relationship with regard to the property within the matrimonial home." "46..... The nature, character and the incident of property within the matrimonial home, so long as the marriage subsists, seem to be such that except by a

special written agreement, no entrustment or dominion etc. Of the individual property of the spouses to each other can b e presumed. Equally, herein the specific and ascertainable (I) A.T.R. 1965 S.C. 1433 239 property of each spouse within the matrimonial home can , be so equivocal and problematic as to oust the requisite mens rea with consequent criminality with regard thereto until the title to such property is clearly and specifically established. If the civil remedy seems to be adequate betwixt partners, during the subsistence of partnership there is no reason why it would not equally be so betwixt spouses in an existing matrimonial home during the subsistence of the conjugal relationship. As already referred to, apart from the civil remedy under the general law, added provisions exist in this context under S.27 of the Hindu Marriage Act buttressed by the procedural provisions of 0.32-A of the Code of Civil Procedure." "47. In view of the above, it would be equally untenable to hold that either the desertion or the expulsion one of the spouses from the matrimonial home would result in entrusting dominion over the property belonging to the other so as to bring the case within the ambit of this pre-requisite under S.405, Indian Penal Code. The joint custody and possession once established would thereafter exclude either express entrustment or the passing of dominion over the property. It was rightly argued that if an irate husband or wife walks out from the matrimonial home in a huff, this cannot constitute an entrustment or dominion over the property to the other. Consequently, unless a special written agreement to the contrary can be established, the strongest presumption arises that during the existence and immediately after the crumbling of the matrimonial home, there was in essence, a joint possession and custody of the property of the spouses therein, including dowry and traditional presents, which would preclude the essentials entrustment of dominion over the property which form the corner-stone of criminality under S.405, Indian Penal Code." "49. Equally the common use and enjoyment of certain articles of dowry and traditional presents, by the other members of a joint family with the leave and

licence of a Hindu wife, cannot have the effect of extending the jointness of control and custody of the couple to undefined 240 and unreasonable limits. Consequently, there is no reason to assume that the mere use or enjoyment of dowry by other members of the household, would have the effect of passing the possession and control thereof Jointly to the Hindu Undivided Family a such." "50. In the aforesaid context, pointed reference must be made to the opening word 'whoever' of S.405 of the Code to highlight that the criminal law does not take ken of any proximity of relationship for the offence of breach of trust. "Whoever" would include within its ambit the parents-in-law, the brothers-in-law, sisters- in-law (and other close relations of the husband) of a Hindu wife provided that the basic ingredients of entrustment or passing of dominion over her separate individual property stands fully satisfied. Apart from the peculiarity of the conjugal relationship and the consequent sharing of the matrimonial home, the existence of the blood relationship of the parties does not seem to be relevant for the applicability or otherwise of S.406 of the Code, Since the other members of the Hindu Joint family, to which the husband may belong, would not be covered by the presumption of jointness of custody v and possession of their individual properties by the spouses alone, they cannot by the mere fact of kinship be excluded from the scope of ss. 405 and 406 of the Code." "56. To conclude, it necessarily follows from the aforesaid discussion that the very concept of the matrimonial home cannotes a jointness of possession and custody by the spouses even with regard to the movable properties exclusively owned by each of them. It is, therefore, inapt to view the same in view of the conjugal relationship as involving any entrustment or passing of dominion over property day-to-day by the husband to the wife or vice versa. Consequently, barring a special written agreement to the contrary, no question of any entrustment or dominion over property would normally arise during coverture or its imminent break-up. There fore, the very essential pre-requisites and the core ingredients of the offence under S.406 of the Penal Code would be lacking in a charge of criminal breach of trust of

241 property by one spouse against the other. Inevitably, therefore, the purported allegations of breach of trust betwixt husband and wife so long as the conjugal relation ship lasts and the matrimonial home subsists, cannot constitute an offence under Section 406 of the Indian Penal Code, subject to any special written agreement. Equally, as against the close relations of the husband, no facile presumption of entrustment and dominion over the dowry can be raised prims facie and this inevitably has to be by a subsequent conscious act of volition which must be specifically alleged and conclusively established by proof. Lastly, because of the definition in S. 2 of the Dowry Prohibition Act, the offences under the said Act cannot come within the ambit of S. 406 of the Indian Penal Code as these cannot stand together on the same set of facts." "57. Hence the answer (to the question) posed at the very outset is rendered in the affirmative. The bond of matrimony, therefore, bar the spectre of the criminal breach of trust qua the property of the spouses at the very threshold of the matrimonial home. It cannot enter its hallowed precincts except through the back door of a special written contract to the contrary with regard to such property." I have extracted above several passages from the Judgment of the learned judges of the Full Bench in Vinod Kumar's case (supra) since I share their view and concern for peace and harmony in matrimonial homes and feel that the learned Single Judge who has quashed the wife's complaint in the present case was justified in relying heavily upon that judgment of the Full Bench. In these circumstances, 1 think that in the absence of a separate agreement and specific entrustment by the wife to the husband and of his relations and vice versa of the property of the husband to the wife and or her relation, it would not be possible to draw an inference of entrustment of custody or dominion over the property of one spouse to the other and his or her relations so as to attract the stringent provisions of s.406 I.P.C. The offense of criminal breach of trust is cognizable and non-bailable and punishable with imprisonment for a term of three years or 242 with fine or with both. In the absence of such a separate agreement for specific entrustment of the property of either spouse the appropriate remedy would appear to be by way of a

civil suit where there is scope for the parties to the marriage coming together at the instance of relations, elders and well-wishers and patching up their differences. Entertaining complaints of the irate wife or husband against the husband or wife without even an allegation of a specific and separate agreement constituting entrustment of the property of the wife or the husband would have disastrous effects and consequences on the peace and harmony which ought to prevail in matrimonial homes. It is seen from para 45 of-the judgment in Vinod Kumar's case (supra) that in spite of diligent research no instance of any case of successful prosecution of the husband of wife at the instance of the wife or the husband could be brought to the notice of the learned Judges. It may be stated that none was brought to the notice of this Court either in the course of the arguments in this appeal. This would show that the spouses had not lightly rushed in the past to criminal courts with complaints of criminal breach of trust against the other spouses though in the day-to-day life there must have been numerous instances where the wife had used the property or cash of the husband for purposes different from the one for which they were given by the husband to be applied by the wife and vice-versa. I am anxious that no light-hearted change should be brought about in-the position and that the minimum requirement in such cases is a specific separate agreement whereby the property of the wife to husband was entrusted to the husband or wife and or his or her close relations. In the absence of such a specific separate agreement in the complaint, in the present case, I am of the opinion that the learned Single Judge was perfectly justified in following the decision of the Full Bench in Vinod Kumar s case (supra) and quashing the wife's complaint filed against the husband and his close relations. I would, therefore, dismiss the appeal. In view of the majority decision, this appeal is allowed, the judgment of the High Court is set aside and the complaint filed by the appellant is restored. The accused may now be summoned and put on trial in accordance with law. S.R. Appeal allowed 243 PETITIONER: SHRI DILIP K. BASU ETC.ASHOK K. JOHARI Vs.

RESPONDENT: STATE OF WEST BENGAL & ORS. DATE OF JUDGMENT: 01/08/1997 BENCH: A.S. ANAND, K.T. THOMAS ACT: HEADNOTE: JUDGMENT: THE 1ST DAY OF AUGUST, 1997 Present: Hon'ble Dr. Justice A.S. Anand Hon'ble Mr. Justice K.T. Thomas Dr. A.M. Singhvi, Additional Solicitor General (A.C.), Ms. Suruchi Agarwal, Sushil Kumar Jain, Y.P. Dhamija, B. Krishna Prasad, Ms. A. Subhashini, B.B. Singh, Uma Nath Singh, B.S. Chahar, Ashok Mathur, Ms. Hemantika Wahi, Ms. Nandini Mukherjee, Kailash Vasdev, C.K. Sasi Raj Kumar Mehta, Dilip Sinha, K.R. Nagaraja, Ms. S. Janani, Aruneshwar Gupta, G. Prakash, Ms. Beena Prakash, Shakil Ahmed Syed, S.N. Jadhav, D.M. Nargolkar, A.S. Pundit, R.B. Misra, Gunture Prabhakar, Prem Malhotra, M. Veerappa, R.S. Sodhi, J.K. Manhas, V. Krishnamurthy, D.N. Mukherjee, T. Sridharan, Gopal Singh, D.S. Mehra, Ms. Kamakshi Singh Mehlwal, V.G. Pragasam and Ms. Kamini Jaiswal, Advs. with him for the appearing parties. O R D E R The following Order of the Court was delivered: WITH WRIT PETITION (CRL) no. 592 OF 1987 O R D E R On December 18, 1996 in D.K. Basu Versus State of West Bengal (1997 (1) SCC 416), this court laid down certain basic "requirements" to be followed in all cases of arrest or detention till legal provisions are made in that behalf

as a measure to prevent custodial violence. The requirements read as follows. "1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. 2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. 3. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock- up, shall be entitled to have one friend or relative or other person know to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. 4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal

Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. 5. The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. 6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next fried of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. 7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. 8. The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a penal for all tehsils and districts as well. 9. Copies of all the documents including the memo of arrest, referred to above, should be sent

to the Illega Magistrate for his record. 10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. 11. A police control room could be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board." This court also opined that failure to comply with the above requirements, apart from rendering the official concerned liable for departmental action, would also render him liable to be punished for contempt of court and the proceedings for contempt of court could be instituted in any High Court of country, having territorial jurisdiction over the matter. This Court further observed : "The requirements mentioned above shall be forwarded to the Director General of every State/Union Territory and it shall be their obligation to circulate the same to every police station under their charge and get the same notified at every police station under their charge and get the same notified at every police station at a conspicuous place. It would also be useful and serve larger interest to broadcast the requirements on All India Radio besides being shown on the national Network of Doordarshan any by publishing and distributing pamphlets in the local language containing these requirements for information of the general public. Creating awareness about the lights of the arrestee would in our opinion be a step in

the right direction to combat the evil of custodial crime and bring in transparency and accountability. It is hoped and accountability. It is hoped that thee requirements would help to curb, if not totally eliminate, the use of a questionable methods during interrogation and investigation leading to custodial commission of crimes." More than seven months have elapsed since the directions were issued. Through these petitions, Dr. Singhvi, the learned Amicus Curiae, who had assisted the Court in the main petition, seeks a direction, calling upon the Director General of Police and the Home Secretary of every State/union Territory to report to this Curt compliance of the above directions and the steps taken by the All India Radio and the National Network of Doordarshan for broadcasting the requirements. We direct the Registry to send a copy of this application, together with a copy of this order to respondents 1 to 31 to have the report/reports from the Director General of Police and the Home Secretary of the concerned State/Union Territory, sent to this Court regarding the compliance of the above directions concerning arrestees. The report shall indicate in a tabular from a to which of the "requirements" has been carried out and in what manner, as also which are the "requirements" which still remain to be carried out and the steps being taken for carrying out those. Report shall also be obtained from the Directors of All India Radio and Doordarshan regarding broadcasts made. The notice on respondents 1 to 31, in addition, may also be served through the standing counsel of the respective State/union Territories in the Supreme Court. After the reports are received, copies of the same shall be furnished to the Advocate on Record for Dr. Singhvi, Ms. Suruchi Agarwal, Advocate. The reports shall be submitted to this court in the terms, indicated above, within six weeks from today. The matters shall be put up on board for monitoring, after seven weeks.

PETITIONER: SMT. KULDIP KAUR Vs. RESPONDENT: SURINDER SINGH AND ANR. DATE OF JUDGMENT03/11/1988 BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) NATRAJAN, S. (J) CITATION: 1989 AIR 232 1988 SCR Supl. (3) 762 1989 SCC (1) 405 JT 1988 (4) 412 1988 SCALE (2)1329 ACT: Code of Criminal Procedure, 1973-Sections 125 to 128 Distinction to be made between mode of enforcement and mode of satisfaction of maintenance order-Sentencing the person o jail is a mode of enforcement and not a mode of satisfaction of the liability. % Code of criminal Procedure, 1973-Section 125-Order for maintenance of wife and child passed-Whether detaining husband in jail for failing o pay arrears of maintenance would be tantamount to satisfaction of the order of maintenance even though areas of maintenance allowance remain unrecovered in fact-Held no. Actual payment must the made for satisfaction of he order. HEADNOTE: The appellant was awarded maintenance for herself and her son to be paid by respondent No. 1, her husband, under Section 125 of the Code of Criminal Procedure, 1973, by the Metropolitan Magistrate. The husband did not pay the maintenance allowance and it fell into arrears. The appellant moved an application for execution of the order

for maintenance. In the course of enforcement of the order of maintenance the husband was sentenced to suffer simple imprisonment for one month by the Metropolitan Magistrate. The appellant again prayed for recovery of the arrears. The Metropolitan Magistrate rejected her prayer on the ground that the claim for arrears stood satisfied upon the husband having been sent to jail. The appellant filed a revisional application in the High Court. The High Court rejected the revisional application summarily without a speaking order. Hence this appeal by special leave. Allowing the appeal, this Court, HELD: A distinction has to be drawn between a mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly maintenance allowance which has fallen in arrears on the other. Sentencing a person to jail is a `mode of enforcement'. It is not a `mode of satisfaction' of the liability. The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to Jail is to oblige a person PG NO 762 PG NO 763 liable to pay the monthly allowance who refuses to comply with the order without sufficient cause, to obey the order and to make the payment. The purpose of sending him to Jail not to wipe out the liability which he has refused to discharge. be it also realised that a person ordered pay monthly allowance can be sent to jail on if he fails pay monthly allowance 1without sufficient cause' complywith the order. I would indeed be strange to hold that a person who without reasonable cause' refuses to comply with the order of the court to maintain his neglected wife or child would be absolved of his liability merely because he prefers to go to jail. A sentence of jail is no substitute for the revocery of the amount of monthly allowance which has fallen in arrears, Monthly allowance is paid in order to enable the wife and child to live b providing with the essential economic wherewithal. Neither the neglected wife nor the neglected child can live without funds for purchasing food and the essential articles to enable them to live. Instead of providing them with the funds, no useful purpose would be served by sending he husband to jail, Sentencing to jail, is the means for achieving the end of enforcing the order by recovering the amount of arrears. It is no a mode of discharging liability. The order for monthly allowance can be discharged only upon the monthly allowance being recovered. [767B-G]

JUDGMENT: CRIMlNAL APPELLATE JURISDICTION Criminal Appeal No 4 of 1983. From the Judgment and Order dated 29.7.1982 of the Delhi High Court in Criminal Revision No 187 of 1982. Anand Prakash and V. B. Saharaya for the Appellant. Arvind Kumar, Mrs Laxmi Arvind. Ms K. V Lalitha and K. B. Chatterjee for the Respondents. The Judgment of the Court was delivered by THAKKAR, J. We have yet to come across a case of a wife wronged by her husband and a child wronged by his father who had to suffer also at the hands of the Court For, while the Trial Magistrate has disposed of the matter in a very cursory manner taking a thoroughly untenable and unjust view, the High Court has rejected the Revisional Application summarily Both the Courts have done so notwithstanding the fact that the point involved (whether detaining the husband in jail for failing to pay the arrears of maintenance would be tantamount to satisfaction of the order of maintenance passed in her favour even though the arrears of maintenance PG NO 764 allowance remain unrecovered in fact) is not capable of being answered against the petitioner. The Metropolitan Magistrate (Shri L.D. Malik) in his order dated July 4, 1981 recorded a clear finding that the husband was guilty of cruelty in the context of the demand for dowry. He observed: "I have heard the attorney for the petitioner and carefully examined the evidence produced by the petitioner and find that the evidence on record is sufficient to show that the petitioner was maltreated and neglected by the respondent. The evidence on record indicates that the petitioner was maltreated and neglected by the respondent. The evidence on record indicates that the petitioner was maltreated on account of less dowry and was not looked after properly during the course of her advance stage of pregnancy The evidence also indicates that the respondent did not bother about the petitioner gave birth to a male child The statements of the witnesses which include that of the petitioner and her father are unrebutted by any evidence on behalf of the respondent and the averments of the respondent in his reply are unsupported by any evidence since the respondent did not produce any evidence having been

proceeded ex parte on account of his absence The cross- examination of the witnesses of the petitioner also does not reveal any thing so as to support the allegation of the respondent in his reply. " In the context of this finding a sum of Rs 200 to the wife and Rs 75 to the son were awarded by the aforesaid order. The respondent-husband was in arrears to the tune of Rs 5090. The wife moved an application for execution of the order for maintenance in order to recover the arrears of maintenance. In the course of enforcement of the order of maintenance dated 17.1.1982 the husband was sentenced to suffer simple imprisonment for one month pursuant to the order dated 1.1.1982 of the Metropolitan Magistrate (Shri L.D. Malik). The operative portion of the order reads as under "The J.D. Surinder Singh, s/o Bhagwan Singh is accordingly sentenced to S.I. for one month and shall be released if he makes payment of Rs.5090 as maintenance due from him upto 16.1.82. Both the execution tiles pending are PG NO 765 disposed of accordingly except that payment of R.400 remains to be paid to D H. who shall appear personally for obtaining the amount. The wife prayed for recovery of the arrears, whereupon the Metropolitan Magistrate rejected her prayer on the ground that the claim for arrears stood satisfied upon the husband having been sent to jail. Says the Metropolitan Magistrate: "The J.D. was sentenced to Jail for one month and the order of the court dated 17 .1.82 are material to be mentioned here vide which it has been decided that the J D was sentencedfor non-payment of maintenance allowance Rs.5090 due from him upto 16.1.82. The J D remained in custody for one month and as per orders dated 17.1.82, sum of Rs 5090 stands satisfied. As per orders of the court, the J. D. was directed to pay Rs 400 remaining amount. This amount was paid on 19.1.82 by the J. D. to the decree-holder." The wife who wanted the maintenance amount for maintaining herself and the minor child approached the High Court by way of a revisional application. Naturally the need of the wife for a few crumbs of bread for herself and spoonfuls of milk for her minor son were not satisfied by the imprisonment of the husband for one month. These needs would be satisfied only upon the economic means for purchasing the crumbs of bread and spoonfuls of milk being

provided by effecting the recovery of the maintenance amount. The learned Metropolitan Magistrate having failed to do so. the wife approached the High Court by way of a Revisional Application. Even though no support was sought from any provision of law and it was assumed that the claim for recovery stood satisfied upon the husband being sent to jail, the High Court rejected the Revisional Application summarily without a speaking order, on 29th July, 1982. It is this order which has been subjected to appeal by special leave. We fail to comprehend how such an important question arising in the context of the petition preferred by a helpless woman could have been summarily rejected by the High Court by a non-speaking order. To say the least of it, it betrays total lack of sensitivity on the part of the High Court to the plight of a helpless woman. Were it not so, the High Court would have at least passed a speaking order unfolding the rational process which made the High Court PG NO 766 feel helpless in helping a helpless woman and a helpless child. The legal position may not be examined. Section 125 of the Code of Criminal Procedure Code (hereinafter referred to as the Code) provides for an order for maintenance to wives, children and parents. A Magistrate upon being about the proof of negligence or refusal on the part of the person from whom monthly allowance for the maintenance of the wife, child, father or mother as the case may be, is due, upon being satisfied about the fact that the person has sufficient means, may pass an order for monthly allowance under sub-sections (1) and (2) of Section 125 of the Code. Section 128 of the Code provides for enforcement of such an order of maintenance passed by a competent Magistrate. The section reads as under: "128. Enforcement of order of maintenance---A copy of the order of maintenance shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance is to he paid; and such order may be enforced by any Magistrate in any place where the person to whom the allowance is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance due." Sub-section (3) to Section 125 deals with the problem arising in the of a person against whom order for maintenance allowance has been made failing without

sufficient cause to comply with the order. It deserves to be reproduced to the extent material for the present purposes: " 125(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying finest and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made. The scheme of the provisions embodies in Chapter IX of the Code comprising of Sections 125 to 128 which constitutes a complete code in itself requires to be comprehended. It deals with three questions, viz.: (1) PG NO 767 adjudication as regards the liability to pay monthly allowance to the neglected wife and child etc., (2) the execution of the order on recovery of monthly allowance, and (3) the mode of execution of an order for monthly allowance. Now, one of the modes for enforcing the order of maintenance allowance with a view to effect recovery thereof is to impose a sentence of jail on the person liable to pay the monthly allowances. A distinction has to be drawn between a mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which has fallen in arrears on the other. Sentencing a person to jail is a `mode of enforcement'. It is not a `mode of satisfaction' of the liability. The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to jail is to oblige a person liable to pay the monthly allowance who refuses to comply with the order without sufficient cause, to obey the order and to make the payment. The purpose of sending him to jail is not to wipe out the liability which he has refused to discharge Be it also realised that a person ordered to pay monthly allowance can be sent to jail only if he fails to pay monthly allowance 'without sufficient cause' to comply with the order. It would indeed be strange to hold that a person who `without reasonable cause' refuses to comply with the order of the Court to maintain his neglected wife or child would be absolved of his liability merely because he prefers to go to jail sentence of jail is no substitute for the recovery of the amount of monthly allowance which has fallen in arrears Monthly allowance is paid in order to enable the wife and

child to live by providing with the essential economic wherewithal. Neither the neglected wife nor the neglected child can live without funds for purchasing food and the essential articles to enable them to live. Instead of providing them with the funds, no useful purpose would be served by sending the husband to jail Sentencing to jail is the means for achieving the end of enforcing the order by recovering the amount of arrears. It is not a mode of discharging liability. The section does not say so. The Parliament in its wisdom has not said so commence does not support such a construction. From where does the Court draw inspiration for persuading itself that the liability arising under the order for maintenance would stand discharged upon an effort being made to recover it? The order for monthly allowance can be discharged only upon the monthly allowance being recovered. The liability cannot be taken to have been by sending the person liable to pay the monthly allowance, to jail. At the cost of repetition it may be stated that it is only a mode or method of recovery and not a substitute for recovery. No other view is possible. That is the reason PG NO 768 why we set aside the order under appeal and passed an order in the following terms: "Heard both the sides. The appeal is allowed. The order passed by the learned Magistrate as confirmed by the High Court in exercise of its revisional jurisdiction to the effect that the amount of monthly allowance payable under Section 125 of the Code of Criminal Procedure is wiped out and is not recoverable any more by reason of the fact that respondent No. 1, Surinder Singh, was sent to jail in exercise of the powers under Section 125 of the Code of Criminal Procedure is set . In our opinion, respondent No. 1, husband of appellant, is not absolved from his liability to pay the monthly allowance by reason of his undergoing a sentence of jail and the amount is still recoverable notwithstanding the fact that the respondent No. 1 husband who is liable to pay he monthly allowance has undergone a sentence of jail for failure to pay the same. Our reasons for reaching this conclusion will follow. So far as the amount of monthly allowance awarded in this particular case is concerned, by consent of parties, we pass the following order in regard to future payments with effect from 15th August, 1986. We direct that Respondent No 1, Surinder Singh shall pay Rs.275 (Rs.200 for the wife and Rs 75 for the child) as and

by way of maintenance to the appellant Smt Kuldip Kaur commencing from August 15, 1986. The amount of Rs 275 shall be paid by the 15th of every succeeding month. On failure to pay any monthly allowance for any month hereafter on the part of respondent No 1, Surinder Singh, the learned Metropolitan Magistrate shall issue a warrant for his arrest, cause him to be arrested and put in jail for his failure to comply with this Court's order and he shall not be released till he makes the payment. With regard to the arrears which have become due till August 15, 1986, learned counsel for the appellant states that having regard to the fact that respondent No 1, has agreed to the aforesaid consent order, the appellant will PG NO 769 not apply for the respondent being sent to jail under Section 125 of the Code of Criminal Procedure but will reserve the liberty to realize the said amount (Rs 5090 plus the difference between the amount that became due and the amount actually paid under the interim order) under the law except by seeking an order for sending respondent No. 1 to jail. The appeal will stand disposed of accordingly ." H.S.K. Appeal allowed. Pg. No. 770