Mohan Lal vs Ranjit Rani and anr.

B.S. Yadav, J.—The facts giving rise tot his petition under section 482 of the Code of criminal Procedure are that respondent No.1 Ranjit Rani had filed a complaint under section 4, 4B and 6 of the Dowry Prohibition Act and section 406 of the Indian Penal Code against her fatherinlaw. Mohal Lal petitioner, his wife and sons including her husband Surinder Pal, in the Court of Judicial Magistrate Ist Class, Ludhian. After recording preliminary evidence, the learned Judicial Magistrate is sued summons to the accused under section 406 of the Indian Penal Code. Two of the sons of the petitioner one of whom is in Military and the other one is studying in Medical College, Pune, have not been served so far. The petitioner has filed this petition for quashing the proceedings on the ground that the facts alleged in the complaint do no constitute an offence under section 406 of the Indian Penal Code or any provision of the Dowry Prohibition Act.

Here is become necessary to give some facts in brief as contained into he above mentioned complaint. Ranjit Rani was married to Surinder Paul on 2nd December, 1978 according to the Hindu rites. The articles mentioned in the list were given in the dowry. A couple of days after, the marriage Ranjit Rani and her husband came to the former''s parents'' house situated in Payal. They stayed there for the night. While leaving on the next day ranjit Rani told her parents that her fatherinlaw as well as motherinlaw had told her that she should bring from her parents 5 suits for the menials and one for herself. Her parents gave 5 suits to her as well as rs. 100/ for her suit and also gave some money to her and her husband started harassing her and said that they had not given gold rings to the relations, as mentioned in para No.4 of the complaint, and in case she wanted to reside there she should bring these rings. On the occasion of Lohri festival, Ranjit Rani''s brother, Yash Paul came to her with Sandhara, which consisted of a suit for her, one for her motherinlaw one blanket for her husband and some money for her fatherinlaw told him that they would not send her and that he should tell his father that her share in the property be given to them (i.e. her in laws'' family). Later n her mohterinlaw asked her that she should bring one dehridasuit from her parents house. Accordingly she brought one. She also brought a fan on the asking of her father inlaw. Once her faster visited her in village Ranunik, which is her in law''s village. He was asked to give Rs. 10,000/ for a motorcycle. However, he expressed his inability to do so. Her in laws asked her father not to visit Rani again and said that the ties of relationship between seem had snapped and that the (i.e. Ranjit Rani) would not be sent of Payal. Thereafter Ranjit Rani''s father brought his younger brother and twice a Panchayat to village Ranuni and asked the inlaw of Ranjit Rani that her marriage had taken place 7 or 8 months back and, therefore, she should be sent to Payla for a few days, Her inlaws said that she would be sent on the following Sunday. When her father came to take her, fatherinlaw and latter''s elder son, Dharam Paul told him that in case he wanted to take her daughter, he should pay Rs. 10,000/ otherwise he should not come. Her father returned to his village. When her father learnt that she was being harassed by the accused, he lodged a report in Police Station, Payal, on 28th August, 1979 alleging danger to his daughter and that her inlaws were demanding motorcycle from him, Police went to village Rauni on the same day with her father and brought her to Payal. At that time she had injuries on her person on account of beating given to her. The complaint was filed by Ranjit Rani on 24th December, 1980 after obtaining sanction from the SubDivisional Magistrate, Khanna.

The learned counsel for the petitioner argued that even if the allegation in the petition are taken as correct even then no offence under section 406 of the Indian Penal Code is made out against any of the accused. In support of his contention he has cited Vinod Kumar Sethi and others v. State of Punjab and another, 1982 P.L.R. 337 (Full Bench). I am of the opinion that the above argument has force. In Vinod Kumar Sthi''s case (supra) a case was registered with the police on the application of the wife under section 406 of the Indian Penal Code against her husband and inlaws. It is not necessary to give the facts of that application in detail. Suffice it to say that the wife had alleged that the dowry items had been entrusted to the accused and they had refused to return the same to her. It was remarked in that case:

One may now turn precisely to the language of the Code itself. Section 405 is in the following terms:

Criminal breach of trustWhoever being in any manner entrusts 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 had made touching the discharge of such trust, or willfully suffers any other person so to do, commits ''criminal breach of trust."

It is well settled that from a legal contract, or violation of direction of law, the entrustment of property or dominion over property are the prerequisites 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 right of the individual ownership therein) then these very prerequisites of entrustment or dominion over property cannot be easily satisfied betwixt the spouses inter se. It is indeed will settled that the very concept of the jointness of possession and custody would rule out the untrustment of 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 the existence of the property within the matrimonial home raises a presumption that both the husband and the wife are in possession thereof jointly and not that each one has entrusted his exclusive property to the custody of the other. Subscribing to the later view would be both overly hyper technical and subversive of the very concept of marriage, the matrimonial home and the inevitable mutual trust which conjugality necessarily involves.

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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 prerequisite under Section 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 animate husband or wife walks out from the matrimonial home in rebuff, this cannot constitute and 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 section 405. Indian Penal Code.

However, the concept of joint custody and possession of their individual properties by the spouses, in the matrimonial home cannot be elongated adinfinitum. Particularly in focus herein is the question of the relations of the husband or other persons living jointly in the matrimonial home which is not unusual in Hindu families. Whilst a presumption in law may well be drawn about the joint custody and possession of the couple of their respective properties within the martial homestead, there appears to be no warrant to extended it to every other occupant thereof. The rule flows from the peculiar nature of the conjugal relationship and the incidents of the matrimonial home and neither on principle not precedent can it be extended further to others, or indiscriminately to the whole joint family to which the husband may happen to belong. An apt example in this context, was spelt out by Mr. Sethi, learned Additional Advocate General, Punjab on behalf of the respondent State. He cited a hypothetical instance of dowry given to the bride of a serving Army Officer which initially may be taken to the home of the bride''s parents inlaw. However, later the couple may wish take it away tot he place of posting of the husband, Could it be said that having been once brought within he joint family home,t he possession and control thereof would pass to the undivided family and thus in a way to the Karta thereof? Mr. Thaper attempted to take up the extreme position tha this would be so and once such property had been brought into this would be so and once such a property had been brought into the joint Hindu Family home, the possession and control therein would pass jointly to the family and its karta. I see not the least reason to accept such an extreme position which appears to me is untenable on principle, and no authority could be cited in support thereof.

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To conclude, it necessarily follows from the aforesaid discussion that the very concept of the matrimonial home connotes as 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 involving any entrustment of passing of dominion over property daytoday by the husband to the wife or vice versa. Consequently, barring a special written agreement to the contrary, no question of any entrustment or decision over property would normally arise during coverture of rits imminent breakup. Therefore, the very essential prerequisites and the bare ingredients of ht offence under section 406 of the Penal Code would be lacking in a charge of Criminal breach of trust of property by one spouse against he other. Inevitably, therefore the purported allegations of breach of trust betwixt husband and wife so long as the conjugal relationship last 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 prima 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 section 2 of the Dowry Prohibition Act, the offences under the said Act cannot come within the amibit of section 406 of the Indian Penal Code as these cannot stand together on the same set of facts."

The above observations clearly apply to the present case and therefore, it will have to be held that the allegations do not mark out a prima facie case under section 406 of the Indian Penal Code against any of the accused.

The learned counsel for Ranjit Rani argued that the complaint is to be seen as a whole and its discloses the commission of the offence by the accused under dowry Prohibition Act. I am of the opinion that this argument has no force. Thee is no allegation that the articles mentioned into he application were given by the parents of the bride as consideration for the marriage of the said parties. In Viond Kumar Sthi''s case (supra) after quoting the definition of dowry as given in the Act it was remarked:

"A plain reading of the provisions makes it manifest that the aforesaid definition is a specialised one directed to a particular purpose. The core of the matter here is that dowry must be as a consideration for the marriage of the parties and Explanation (1) again highlights that the presents made at the time of the marriage would come within he net only if they are made as consideration for such as marriage. It has,therefore, to be borne in mind that this statute was particularly directed tot he prohibiting of the giving and taking of dowry by an extortionate means as a prima consideration for the marriage itself. The provisions of the act itself and the under mentioned statement of the subjects and reasons would disclose that it had been enacted in order to strike at this particular social evil:

''The object of this Bill is to prohibit the evil practice of giving and taking of dowry. This question has been engaging the attention of the Government for some item past and one of the methods by which this problems, which is essentially a social one was sought to be tackled was by the conferment of improved property rights on women by the Hindu Succession act, 1956. It is, however, felt that a law whcih makes the practice punishable and at the same time ensures taht any dowry, if given does ensure for the benefit of the wife will go a long way to educating public opinion and tot he eradication of this evil. There has also been a persistent demand for such a law both in and outside Parliament. Hence, the present Bill. It, however, takes care to exclude presents into he form of clothes, ornaments etc. which are customary at marriages, provided the value thereof does not exceed Rs. 2,000/. such a provision appears to be necessary to make the law workable''

The Dowry prohibition Act to the farthest limit of creating criminal offences in order to prescribe the giving or taking of dowry as a consideration for marriage or demanding or a betting the same. Wheat this statute intended to eradicate was this kind of corruption and commercialization of the concept of dowry. The definition under the Act was, therefore, de signed for and moulded to the peculiar object of nipping this extortionate evil in the bud. This special definition, therefore, has no relevance to the word ''dowry'' as understood in common parlance and its ordinary dictionary meaning to which reference has been earlier.

IT calls for pointed notice that the Dowry Prohibition Act does not, in any way, bar the traditional giving of presents at or about the time of the wedding, which may be willing and affectionate gifts by parents and close relations of the bride to her. Such presents or dowry given by the parents is, therefore, not at all with in t h definition of the aforesaid statute. Indeed, this traditional giving of present at or about the time of wedding is an accepted practice which finds mention in the oldest of Hindu scriptures and is continued today with a grater zeal. Consequently, dowry as commonly understood is something different and alien to the peculiar definition thereof in the Dowry Prohibition Act. A voluntary and affectionate giving of dowry and traditional presents would thus be plainly out of the ambit of the particular definition under the Act and once that is so the rest of the provisions thereof would be equally inapplicable."

Thus prima facie the accused in the present case have not committed any offence under the Dowry Prohibition Act. That appears to be the reason why the learned trial Court did not summon any of the accused for having committed any of the offences under that Act.

The learned counsel for Ranjit Rani Respondent argued that in the petition there is an allegation tot effect taht she was given beating. However, in her statement she has not named any particular accused who gave beating to her. The doctor, who had examined her, had found only one injury on her. There is no specific evidence on the file to connect any of the accused with that injury.

For the foregoing reasons this petition is liable to be accepted and accordingly I accept it and quash the complaint filed by Ranjit Rani and the proceedings taken on its basis.