Guntupalli Rama Subbaiah vs Guntupalli Rajamma

S. Obul Reddi, C.J.—These two appeals arise out of the judgment of the Principal Subordinate Judge. Guntur, in O.S. No. 191 of 1971 filed by the 1st respondent, the wife of the appellant, INFORMA PAUPERIS for maintenance and O. P. No. 153 of 1963 filed by the appellant against the 1st respondent for restitution of conjugal rights. The suit filed by the wife was decreed and the petition filed by the husband was dismissed. The facts leading to the filing of these two appeals are these : The 1st respondent was married to the appellant about 11 years prior to her filing an application under Or. 33, Rule 1 C.P.C. for permission to sue INFORMA PAUPERIS, Very soon after the marriage it is the case of the 1st respondent that her husband started ill-treating her having developed illicit intimacy with his brother''s wife she hoped that some change may come in her husband. She bore the ill-treatment meted out to her with patience; but as the husband had subjected her to ill-treatment beyond her capacity to bear, she went to live with her parents. Her husband then gave a notice and filed the petition for restitution of conjugal rights alleging that she had, without reasonable cause, deserted him. Her defence in the petition is the same as what she averred in her plaint in the suit. According to her she required a minimum of Rs. 50/- per mensem for food and clothing in addition to provision for separate residence. She also claimed return of the dowry of Rs. 2,000/- and other articles of the value of Rs. 850/- given to her husband by her father at the time of the marriage on the ground of custom and usage prevailing in the kamma caste to which they belong. In the written statement filed by the appellant, he denied having received any dowry or any articles as presentation at the of his marriage. He also disputed Her claim for maintenance on the ground that he was always ready and twilling to maintain her and had nor neglected or deserted her.

The learned Subordinate Judge framed appropriate issues and found that the appellant is not entitled to restitution of conjugal rights on account of his illicit intimacy with his brother''s wife. For the same reasons, he allowed her claim for maintenance at the rate of Rs. 30/- per mensem from the date of the suit and past maintenance at the same rate for one year and recovery of Rs. 2,000/- paid towards dowry.

Mr. A.L. Narayana Rao, the learned Counsel appearing for the appellant, strenuously contended that the evidence on record dues not warrant the finding that the appellant was having illicit intimately with his brother''s wife and that 1st respondent had deserter her husband without reasonable cause, it is also contended by him that even assuming that the appellant is not entitled to a decree for restitution of conjugal rights, the 1st respondent''s claim for return of the dowry of Rs. 2,000/- on the ground of custom and usage prevailing in the Kamma community, when there is estrangement between the husband and wife, is illegal and unenforceable in view of the provisions of the Prohibition of Dowry Act. Alternatively, it is contended by him that the 1st respondent''s claim for return of the dowry in barred by Article 113 of the Limitation Act.

We may first consider the question whether the appellant was having illicit intimacy with his brother''s wife. The 1st respondent had not seen her husband and his sister-in-law ''actually in compromising position''; but says that her husband was having illicit intimacy with his brother''s wife and often visiting his sister-in-law at her parent''s house.

P.W. 3 is no other than the brother of the appellant. He does not mince words in speaking about the illicit intimacy between his wife and his brother. He came to know about the illicit relationship in May 1962 and deserted his wife. He maintains that his brother and his wife are still continuing their illicit intimacy. He remembers the date 5th may, 1962 when be saw his wife and brother ''being together in a cot''. He pretended to go to another village on that evening, but stayed on in the same village and came home later in the night only to find them together on a cot. It is no doubt suggested to him that there is enmity between him and his brother and there are cases and counter cases. He admits that there is litigation between him and his brother in respect of house and lands. The enmity between the brothers is only subsequent to 1962 and partition between them. We do not believe that, just for the sake of defeating the right of his brother for restitution of conjugal rights, this witness has fabricated the story of illicit relationship between his wife and the appellant. The learned Subordinate Judge, who watched the demeanour of the witness, has chosen to accept the testimony of P.Ws. 1 and 2 and we see no reason to disagree with the finding recorded by him that the appellant was living in illicit intimacy with his sister-in-law.

The only other question that remains to be considered is whether the 1st respondent is entitled to the return of the dowry of Rs. 2,000/-. The appellant''s case is that no dowry was given to him on the occasion of his marriage by his father-in-law and even if it is established that an amount of Rs. 2,000/- was given to him towards dowry, the 1st respondent is not entitled to the return of that amount in view of the provisions of the Prohibition of Dowry Act. The lather of the 1st respondent speaks to the payment of of Rs. 2,000/- towards dowry at the time of the marriage of the appellant. His testimony is attacked on the ground that the Purohit, who officiated at the marriage and announced the payment of dowry, has not been examined. The fact that the Purohit, who officiated at the marriage in 1957 has not been produced in Court does not by itself militate against the testimony of the 1st respondent''s father (P.W. 2) P.W. 3, the brother of the appellant also speaks to to the payment of the dowry of Rs. 2,000/- at the time of the marriage. There is also the evidence of one of the relations of the appellant (P.W. 4), who supports the case of the 1st respondent that dowry was paid to the appellant at the time of the marriage. The suggestion that he was on inimical terms with the appellant was denied by him. The appellant examined his mother to say that no dowry was given to her son at the time of the marriage. In addition to her evidence, there is his own version that his father-in-law did not give him any amount as dowry at the time of his marriage. Ultimately, it is a case of believing or disbelieving the payment of dowry by the 1st respondent''s father to the appellant at the time his marriage. The learned Subordinate Judge has found that the testimony of the 1st respondent and her father "is very cogent, natural and convincing". That apart, there is the well recognised custom of payment of dowry in the Kamma community to the bridegroom on the occasion of the marriage. This custom has received judicial recognition (See Parandhamayya v. Navarathna Sikhamani) 1949 Mad LJ 467. That apart, there is no reason to reject the testimony of P.Ws. 1, 2, 3 and 4.

It is now to be seen whether the Prohibition of Dowry Act disentitles the 1st respondent to claim return of the amount towards dowry. Before the Prohibition of Dowry Act was enacted by the Parliament there was the Andhra Pradesh Dowry Prohibition Act, 1958 (Act No. 1 of 1958) and that Act was repealed by Section 10 of the Central Act. The expression "dowry" has been defined in Section 2 of the Central Act and it reads; "dowry" means any property or valuable security given or agreed to be given either directly or indirectly.

(a) by one party to a marriage or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person,

at or before or after the marriage as consideration for the marriage of the said parties, but does not include dowry or mahar in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation 1:-For the removal of doubts, it is hereby declared that any present made at the time of a marriage to either party to the marriage in the form of case, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties.

Explanation 2:--The expression "valuable security" has the same meaning as in Section 30 of the Indian Penal Code. (48 of 1860).

There is no doubt from the Hading recorded by us that a sum of Rs. 2 000/- has been given by P.W. 2, the father of the 1st respondent to the appellant as consideration for his marriage with the 1st respondent to the appellant as consideration for his marriage with 1st respondent. The question is whether the 1st respondent is precluded from claiming the return of the money paid in consideration for the marriage. Section 3 of the Act provides for punishment of persons giving or taking or abetting the giving or taking of dowry. Section 4 further provides for punishment of persons demanding, erectly of indirectly, from the parents or guardian of a bride or a bridegroom, payment of any dowry. Section 5 declares that any agreement for the giving or taking or taking of dowry shall be void. Section 6 is in the nature of exception. Though the giving and taking of a dowry is prohibited, yet if such dowry to be for the benefit of the woman who has been married and if the dowry has been received by a person other than the woman married, such person is bound to return it to her within the period provided in clauses (a) and (b) of Section 5 (1). The failure to return the dowry to the woman married by a person with has received it for her benefit renders that person liable for (sic). Section 7 empowers a Court not inferior to that of a Magistrate of the First Class to try any offence under the Act and provides that the Court shall not take cognizance of any such offence except (sic) complaint made within one year from the date of the offence. u/s 8, the offences under she Act ate non-cognizable, bailable and non-compoundable. That, in essence, is the scheme of the Act.

In this case, the payment of dowry was made even prior to the passing of the Andhra Pradesh Dowry Prohibition Act, 1958. That is evident from the averment of the appellant in his petition for restitution of conjugal rights that his marriage with the 1st respondent was solemnized in the year 1957. It is for the reason that, after their marriage, the Andhra Pradesh Dowry Prohibition Act, 1958, came into force that Mr. Narayana Rao contended that the question of returning the dowry, which is prohibited by law, does not arise in support of his contention, he relied upon a decision of the Punjab Chief Court in Firm of Attar Singhajab Singh v. Haku and others 1914 Indian Cases, 692 where Shadi Lal J. observed that a suit is not maintainable for recovering money lent and used for an illegal object as bribe. He also relied upon Sec. 56 of the Contract Act to say that the contract has become impossible for performance.

In Satyabrata Ghose Vs. Mugneeram Bangur and Co. and Another, Mukherjee J, (as he then was) dealing with the doctrine of frustration observed.

In the large majority of cases, however, the doctrine of frustration is applied not on the ground that the parties themselves agreed to an implied term which operated to release them from the performance of the contract. The relief is given by the Court on the ground of subsequent impossibility when it finds that the whole purpose or basis of a contract was frustrated by the institution or occurrence of an unexpected event or change of circumstances which was beyond what was contemplated by the parties at the time when they entered into agreement. When such an event or change of circumstances occurs which is so fundamental as to be regarded by law as striking at the root of the contract as a whole, it is the Court which can pronounce the contract to be frustrated and at an end. The Court undoubtedly has to examine the contract and the circumstances under which it was made. The belief, knowledge and intention of the parties are evidence but evidence only on which the Court has to form, its own conclusion whether the changed circumstances destroyed altogether the basis of the adventure and its underlying object. This is really a rule of positive law and as such comes within the purview of S. 56 of the Contract Act.

On the strength of the above two cases, the learned Counsel for the appellant contended that, on account of the legislation prohibiting or taking of dowry, there is no obligation cast for return of the dowry, on the ground that such return is permissible under an existing custom in the Kamma community to which community or set the parties belong. We are of the view that the above decisions do not at all apply to the facts of this case as demanding return of the dowry paid prior to the coming, into force of the Andhra Pradesh or Central Act is not the same as giving or taking dowry as contemplated under Sec. 3 of the Central Act.

The decision in Hoode Venkataramanayya Vs. J.M. Lobo, is also not of much assistance for deciding the question raised in the present case. That was a ''shanbhogue'' should not revert to his post and the person making the payment should continue in his place as a ''shanbhogue'' was void under Sec. 23 of the Contract Act, as its object was opposed to public policy.

There is a direct decision of the Madras High Court in Punukollu Parandhamayya Vs. Punukollu Navarathna Sikhamani, governing the return of the dowry when estrangement takes place between wife and husband in the Kamma community. That decision, in our opinion, will govern cases where dowry was paid prior to the coming into force of the Andhra Pradesh or Central Act. Subba Rao, J. (as he then was of that Court), speaking for the Bench, upheld the claim for return of the dowry made by the wife in these words:

This custom must have had its origin in an attempt made by the Kamma community to stablise the condition of a woman, who for one reason or other, had to live apart from her husband. It was conceived in the best interests of women, a section of the public who would otherwise be put to grave hardships and untold miseries. Not only this custom is not against public policy but is really in the interests of an important sec. of the public. The custom is not that an unchaste women who has been discarded by her husband because of her unchastity, should be given money presented at the time of the marriage. If so, there may be some force in the argument of the learned advocate for the appellant. The custom is really to safeguard the interests of a woman who, for one reason or other, has to live apart from her husband.

The Supreme Court, in Sita Ram Vs. Radhabai and Others, was considering the question of enforceability of an illegal agreement at the instance of a person we was himself party to an illegality or fraud. Referring to the exceptions to the maxim its pari delicto potrior est condition defendants, Shah, J. (as he then was) observed.

They fall into three clauses : (a) where the illegal purpose has not yet been substantially carried into effect before it is sought to recover money paid or goods delivered in furtherance of it; (b) where the plaintiff is not in pari delicto with the defendant; (c) where the plaintiff does not have to rely on the illegality to make out his claim. Where the parties are not in pari delicto the less guilty patty may be able to recover money paid, or property transferred, under the contract. This possibility may arise in three situations :

First, the contract may be of a kind made illegal by statute in the interests of a particular class of persons of whom the plaintiff is one.

Secondly, the plaintiff must have been induced to enter into the contract by fraud or strong pressure.

Thirdly, a person who is under a fiduciary duty to the plaintiff will not be allowed to retain property, or to refuse to account for moneys received, on the ground that the property or the moneys have come into his hands as the proceeds of an illegal transaction.

This decision goes to show that, if the bride''s party had been pressurized or induced to pay dowry, then he would be in a position to claim return of the money. The custom in the Kamma community is such that dowry is paid by the bride''s party to the bridegroom for consideration of the marriage of the bridegroom with the bride. Unless dowry is given by the bride''s father or guardian, the marriage will not be solemnized. To put it differently, dowry is the ''purchase price" paid to the bridegroom. The understanding then is that, in the event of estrangement later between the husband and wife, the amount paid in consideration for the marriage shall be returned to the bride so that she may have certain degree of economic security. The divorce between the parties to the marriage put them back to their original position prior to their marriage. The maritial ties cease to exist with the estrangement or divorce and the husband has no right to retain the money paid as consideration after he had freed himself. That is the custom in their community. It is not a case where it could be contended that, on account of the prohibition of giving or taking dowry under the Prohibition of Dowry Act, the 1st respondent cannot take advantage of that illegality, although it may be inequitable for the appellant to retain the money. What is prohibited u/s 3, as already noticed, is giving or taking or abetting the giving or taking of dowry after the commencement of the Act. No dowry is given or taken after the commencement of this Act. Section 3 does not prohibit asking for return of the dowry paid prior to the commencement of the Act as a result of divorce or estrangement between the parties to the marriage. If the 1st respondent''s father had paid the dowry after the commencement of the Act or the appellant has taken the dowry after the commencement of the Act, then undoubtedly it will come within the mischief of Section 3 of the Act subject, of course, to the provisions of Sec. 6. There is nothing in Section 3 which prohibits taking back the dowry paid before the Andhra Pradesh or Central Act came into force The object is only to put an end to the obnoxious social evil of giving and taking dowry after the commencement of the Act; but if dowry paid prior to the commencement of the Act is asked to be returned, it is not opposed to any of the provisions of the Act or to public policy.

A similar question arose in A. S. Nos. 387 of 1969 and 455 of 1971 dated 21st, June, 1973 and our learned brother, Sambasiva Rao, J. observed :

It is true that the Act prohibits payment and receiving of dowries. It is also true that payment of dowry is made punishable along with receiving of dowry. That is obviously to warn the givers of dowry also against giving it. But that cannot be understood as superseding any custom that prevails in any of the communities in regard to the return or refund of the dowry amount in the event of estrangement between the spouses or the death of the girl.

In so observing, the learned Judge relied upon the observations of Subba Rao, J (as he then was of the Madras High Court) in Punukollu Parandhamayya Vs. Punukollu Navarathna Sikhamani, We are, therefore, unable to say that the prohibition of Dowry Act in any way prohibits taking return of the dowry paid prior to the commencement of the Act.

The learned Counsel next sought to contend that the claim for return of the dowry is barred by time under Article 113 of the Limitation Act. It may be relevant to point out that no issue was raised in the Court below nor was the question of limitation argued. We are not prepared to entertain this plea which is a mixed question of fact and law. For the reasons recorded, we confirm the Judgment and decrees of the Court below and dismiss the appeals with costs in Transferred Appeal No. 700 of 1972.