Punjab-Haryana High Court
Vinod Kumar Sethi And Ors. vs State Of Punjab And Anr. on 30 March, 1982
Equivalent citations: AIR 1982 P H 372
Author: S Sandhawalia
Bench: S Sandhawalia, I Tiwana, M Punchhi
JUDGMENT S.S. Sandhawalia, C.J.
rces and the following summarization in the authoritative work of Mulla on Hindu Law suffices notice:--
"Stridhana according to the Smritis, that is, the sacred writings of Rishis or Sages of Antiquity:--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 (padavandanika).
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 the time of her making obeisance at the feet of elders (Padavandanika).
4. Gifts made by father.
5. Gifts made by the mother.
6. Gifts made by a brother.
All the commentators are agreed that the above is not an exhaustive enumeration of stridhana.
To the above list Vishnu adds-
1. Gifts made by a husband to his wife on supersession, that is, on the occasion of his taking another wife (adhipedanika).
2. Gifts, subsequent, that is, says Katyayana those made after marriage by her husband's relations or her parent's relations (anwadhayaka).
3. Sulka, or marriage-fee, a term which is used in different senses in different schools.
4. Gifts from sons and relations.
Vishnu does not make any specific mention of gifts made at the bridal procession."
In would be manifest from the above that from time immemorial Hindu law has recognised the individual ownership of the wife with regard to the aforementioned articles of dowry and traditional presents given at the time of wedding. Continued recognition of this fact and the individual ownership of the Hindu wife with regard thereto is manifest from the well-settled rule that Stridhana cannot be attached for the debts of her husband. Equally well-acknowledged is it that the husband has no right of alienation to that which is the Stridhana of his wife. These facets highlight the clear-cut recognition by the oldest treatises of Hindu law with regard to individual ownership of her separate property by a Hindu wife. It is, therefore, wholly idle to contended today that articles of dowry and traditional presents given at the time of the wedding cannot be the individual property of a Hindu wife.
26. Now once it is so held that article 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 forthwith 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 or her husband, does not appear to me as even remotely unwarranted either by the statute, principles or logic. No such marriage hazard against the wife can be implied in law. 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. The second part of Mr. Thapar's argument, therefore, is equally unsustainable.
27. Now in fairness to the learned counsel for the petitioner, a special limb of the aforesaid general argument must also be noticed. Herein, it was broadly argued that those articles in the dowry and traditional presents which are intended for common use and enjoyment by the couple can never be the exclusive property of the wife. In essence the submission was that by their very nature such articles of common use and enjoyment cannot be the exclusive property of the wife, e.g., furniture for the living and the dining room, kitchen-ware, beds etc., would be property which by the very factum of marriage and being in the matrimonial home would be deemed to be jointly owned. On this premise, no question of any entrustment of those article to the husband or his relations would possibly arise.
28. I am afraid that even this line of distinction sought to be drawn with regard to the articles of dowry which are for the common use and enjoyment by the couple also cannot be accepted as a general proposition. Though at the initial flush the argument has a tinge of plausibility, a closer analysis would reveal its fallacy. What may be kept in mind is that the dowry and the traditional presents given to a bride in a Hindu wedding may usually be put in three categories as under:--
(i) Property intended for exclusive use of the bride, e. g., her personal jewellery and wearing apparel etc.,
(ii) Articles of dowry which may be for common use and enjoyment in the matrimonial home;
(iii) Articles given as presents to the husband or the parents-in law and other members of his family.
Obviously as regards the third category those presents and gifts intended for the husband or his relations after delivery would pass into their ownership and may well cease to be the property of the bride. This would be so also as the traditional presents etc. given by the husband and parents-in-law to the bride at or about the time of wedding would pass into her ownership. Similarly as regards the first category of articles meant for the exclusive use of the bride, she would retain her pristine ownership therein irrespective of her entry and presence in the matrimonial home or that of her parents-in-law. As regards category (ii) it is purely a question of fact whether the articles of common use and enjoyment were given and intended to be the exclusive property of the bride or otherwise. I am inclined to the view that the normal presumption would be that the ownership in such like article would vest in the Hindu wife unless it can be clearly established to the contrary that these were given expressly for the joint ownership of the couple. Dowry of this nature would be commonly used and enjoyed with the implied leave and licence of the wife. Mere joint enjoyment thereof does not necessarily divest a Hindu wife of her exclusive ownership or to make it joint property by the mere factum of such use. This seems to be so on general principles of law. An individual owner of property, apart from a Hindu wife, may well allow the use of the property jointly by others. But that by itself cannot divest him of the ownership or make a licencee a joint owner forthwith. I, therefore, see no reason how a Hindu wife is to be treated invidiously and on a different plane from any other owner of property in this context. Indeed the nature of article, whether meant for exclusive or common use, seems hardly relevant to the question of ownership therein. It was rightly contended on behalf of the respondent-State that mere joint user and enjoyment cannot make the husband a joint owner of the property if it originally belonged to the wife strictly. The valid submission herein was that joint user of enjoyment herein must be deemed to be with the express and implied leave and licence of the owner, namely, the wife and the moment she revokes such a leave or licence then any such claim to joint use and enjoyment would obviously come to an end. The break down of the marriage or the splitting up of the matrimonial home would inevitably involve the revocation of such leave and licence by the wife thus resuscitating her right to exclusive possession.
29. Reiterating the stand taken on behalf of the petitioners in Bhai Sher Jang Singh's case (1978-Pun LR 737: 1979 Cri LJ 493) (supra) and assiduously assailing its ratio, Mr. Thapar had contended that whatsoever may have been the position earlier, the codification of Hindu Law had totally eroded the concept of Stridhana. It was contended that, in particular, after the enactment of the Hindu Succession Act and the Hindu Marriage Act, the exclusive property of the Hindu wife stands virtually abolished and is now the joint property not only of the couple, but in fact that of the joint Hindu family to which the husband may belong. Particular reliance was sought to be placed on Section 27 of the Hindu Marriage Act and the procedural provisions of Order 32-A of the Code of Civil Procedure, recently inserted by the Amending Act of 1976, with regard to the suits relating to matters concerning the family.
30. As I am inclined to agree with and affirm the ratio in Bhai Sher Jang Singh's case (supra) on this specific point, it is unnecessary to refute the aforesaid contention with any great elaboration. Suffice it to mention that the identical argument had been expressly noticed by the Bench and elaborately refuted therein. Nor am I able to see how Section 27 of the Hindu Marriage Act even remotely advances the case of the petitioners. It is in the following terms:
"S. 27. In any proceeding under this Act, the Court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time or marriage, which may belong jointly to both the husband and the wife."
The plain words of the section far from aiding the stand of the petitioners in fact tend to undermine the same. 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 that all the wife's property belongs jointly to the couple or that Stridhana 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 and it is concerned only with that property presented at or about the time of the marriage, and belonging jointly to the couple. I have already adverted to this aspect that certain articles of dowry can as a matter of fact be established to be not only jointly owned by the couple, but even as exclusively presented to the husband or his relations. Once it is held as a matter of fact that certain articles of dowry were given to be exclusively owned by the wife then Section 27 can make not the least difference to this vested right of ownership. Equally no other provision in the Hindu Marriage Act could be pointed out which erodes the concept of Stridhana or in any way incapacitates the Hindu wife to hold property as an exclusive owner.
31. Nor can I see how the recently inserted provision of Order 32-A in the Code of Civil Procedure would adversely affect the substantive right of a Hindu wife to own and possess property in her own right. A bare reference to the provisions of Order 32-A would show that Rule 6 thereof defines family for the purposes of the Order and it is provided that the provisions thereof shall apply to all proceedings relating to matters concerning such family. Rules 2 to 5 of this Order are essentially procedural in nature empowering the Court to hold the proceedings in camera and imposing a duty on it to make efforts for settlement and to enquire into facts and secure the services of a welfare expert for its assistance. It is more than manifest that these provisions are pristinely procedural and cannot even remotely impinge on the concept of Stridhana and the absolute ownership of property by Hindu women.
32. Our attention was also drawn to the provisions of the Hindu Succession Act in this context. However, I am unable to find anything in the thirty-one sections of this Act which can even remotely advance the stand taken on behalf of the petitioners and indeed it appears to me that Section 14 of the said Act points conclusively to the contrary. The provisions thereof merit notice in extenso:--
"14. (1) Any property possession by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation:--In this sub-section 'property' includes both movable and immovable property acquired by a female Hindu by inheritance or device, or at a partition, or in lieu of maintenance or arrears of maintenance, by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument of under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."
33. This provision declares in no uncertain terms that the property of a female Hindu is to be her absolute property and what is of no particular relevance here is that the explanation pointedly refers to any property given before, at or after her marriage and further any property held by her as Stridhana has been brought within the ambit of her absolute ownership. To contend in face of this provision that Hindu women cannot be absolute owners of their property or are not so with regard to dowry or stridhana appears indeed to be the proverbial crying for the moon. The aforequoted provisions of Section 14 indeed show the concern and the object of the law to remove all fetters on the ownership of property by a Hindu female and confer absolute ownership on her with regard thereto. It deserves recalling that prior to the codification of the law there was the well-known concept of limited ownership known as a 'Hindu Woman's Estate'. The provisions of Section 14 virtually abolishes those limitations thereby making a Hindu female an absolute owner of her property and indeed putting her on a higher pedestal than a Hindu male who may well be subject to the limitations of a Hindu coparcenary.
34. In fairness to Mr. Thapar his assiduous challenge to the correctness of the ratio in Bhai Sher Jang Singh v. Smt. Virinder Kaur, (1978) 80 Pun LR 737 : (1979 Cri LJ 493) must be noticed. It was sought to be contended that there was no adequate rationale behind the conclusion arrived at by the Division Bench therein and it was impelled only by sentimental reasons of avoiding hardship against illiterate and helpless wives in this country. I am, however, unable to subscribe to any such criticism and indeed find no flaw in the reasoning underlying the ratio on this point in Bhai Sher Jang's case. Added to this reasoning, Sharma J.'s observations which took into consideration the subservient status of the wives in the country and the general illiteracy with particular reference to female illiteracy are not only well called for and well-merited but indeed deserve affirmance at our hands.
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.
36. Much ado was then raised about the provisions of the Dowry Prohibition Act, 1961 as originally enacted and later amended within the States of Punjab and Haryana (vide Punjab Act No. 26 of 1976 and Haryana Act No. 38 of 1978). Counsel referred to the definition of dowry in Section 2 thereof and the provisions of Sections 3 to 6 for raising a twin contention. It was argued that dowry falls within the ambit of the definition of the provisions of a special Act and therefore would exclude the offences under the general provisions of the Indian Penal Code. In the alternative it was contended that the definition of the dowry under the aforesaid Act would exclude entrustment of property which is a pre-requisite of the offence under Section 406 of the Indian Penal Code.
37. To deal with the aforesaid contention, it becomes necessary to notice the provisions of Section 2 of the Dowry Prohibition Act (the Haryana amendment makes only marginal changes therein whilst the Punjab Act has left the same untouched):--
"2. Definition of dowry. In this Act, 'dowry' means 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 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 dower or mehr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Explanation I:--For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, 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 II:--The expression 'valuable security' has the same meaning as in Section 80 of the Indian Penal Code.
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 the net only if they are made as consideration for such a marriage. It has, therefore, to be borne in mind that this statute was particularly directed to the prohibiting of the giving and taking of dowry by an extortionate means as a prime consideration for the marriage itself. The provisions of the Act itself and the under-mentioned statement of its objects 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 time past, and one of the methods by which this problem, 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 which makes the practice punishable and at the same time ensures that any dowry, if given, does ensure for the benefit of the wife will go a long way to educating public opinion and to the 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 in the 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 goes to the farthest limit of creating criminal offence in order to prescribe the giving or taking of dowry as a consideration for marriage or demanding or abetting the same. What this statute intended to eradicate was this kind of corruption and commercialisation of the concept of dowry. The definition under the Act was, therefore, designed 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 made earlier.
38. 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 within the definition of the aforesaid statute. Indeed, this traditional giving of presents 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 greater 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. Consequently the argument that the applicability of the special provisions of the Dowry Prohibition Act would exclude the general provisions of the Indian Penal. Code would not even arise and in any case has no validity.
39. This matter can also be viewed from another angle. Herein what we are primarily concerned is the commission of the offence under Section 406 of the Indian Penal Code. The whole exercise is directed to determine whether the requisites, even if accepted as true would disclose any offence thereunder. To go to the definition in an altogether different statute of the Dowry Prohibition Act in this context, therefore, is not only inapt but may be grossly misleading. The settled and indeed the hallowed rule of construction in this context has been succinctly laid by their Lordships in Laurence Arthur Adamson v. Melbourne and Metropolitan Board of Works. AIR 1929 PC 181, as under :--
"It is always unsatisfactory and generally unsafe to seek the meaning of words used in an Act in the definition clauses of another statute dealing with matters more or less cognate, even when enacted by the same legislature and much more so when resort is had to the enactments of other legislatures."
The aforesaid rule was again reiterated tersely in Jainarayan Ramkisan v. Motiram Gangaram, AIR 1949 34 as follows-
"It is a well-known rule of construction that it is not permissible in interpreting one Act to travel beyond it and to apply definitions (except in the General Clauses Act) of other Act."
However, the alternative contention that where property falls within the definition of Section 2 of the dowry Prohibition Act then it cannot come within the ambit of entrustment envisaged under Section 406 of the Indian Penal Code, has plainly a modicum of merit. A plain reading of the definition of dowry under the aforesaid statute would show that it means any property given directly or indirectly as a consideration for the marriage of the said parties. Now once that is so, dowry of this kind is in fact a quid pro for the marriage itself. Inevitably it would follow that whatever is given as consideration for the marriage itself cannot possibly be deemed in the eye of law as an entrustment or passing of dominion over property. To recall the familiar analogy of the Law of Contract--the consideration is the price for the promise and, therefore, such property cannot be deemed even remotely to have been entrusted or dominion passed over it to the other. The necessary result, therefore, is that the same set of facts allegedly constituting an offence under the Dowry Prohibition Act cannot possibly come within the ambit of Section 406, Indian Penal Code. This would be plainly a contradiction in terms. As pointed out above, one offence is rested on property forming the consideration for the marriage as such, whilst the other visualises the entrustment and passing of dominion over property individually owned. The offences under the Dowry Prohibition Act and under Section 406, I.P.C. thus cannot stand together on the same set of facts.
40. Now having held as above that a 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. At the outset I would wish to notice that the learned counsel for the parties did not present this issue before us in the light in which I now proceed to examine the same.
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 bind the husband and the wife can perhaps be best understood only in the context of their 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 same at any great length. Indeed, the martial 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 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 cages 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 bee 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 cannot 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 "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 of the matrimonial home the concept of jointness 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 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 her 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 hands them over to the wife to be spent on the family. Would it be possible to say that if she uses 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, Section 405 is in the following terms:--
"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-settled that from a legal contract, or violation of directions of law, the entrustment of property or dominion over property are the pre-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 pre-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 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 latter 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.
45. It is obviously because of the aforesaid legal position and this inarticulate premise 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 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 wherein 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 this 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 be the individual and exclusive owners of their respective properties. Nevertheless, a marked similarity herein is that in partnership, co-ownership necessary 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 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, in his concurring judgment observed as under (para 46) :--
"The question here is of much broader application and of a more fundamental nature. Its fundamental nature is this that the very conception of partnership 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, AIR 1965 SC 1433, 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. 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. 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 a 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. It is unnecessary to quote profusely from Indian authorities and reference in this connection may be made to Bhupendra Nath Sinha v. Girdhari Lal Nagar, AIR 1933 Cal 582; Man Mohan Das v. Mohendra Bhowal, AIR 1948 Cal 292; Priyanshu Ranjan Datta v. Hirendra Kumar Mitra, ILR (1949)Cal 454; and Jaikrishna v. Crown, AIR 1950 Nag 99. The broad rationale underlying the view that a partner cannot be prosecuted by another partner for criminal breach of trust, in respect of partnership property, is a twin one. The nature, character and incident of partnership property are such that during the subsistence of partnership, there cannot be, except by special agreement, any entrustment or dominion etc. within the ambit of Section 405, Indian Penal Code. Secondly, partnership property is not always specifically ascertainable and sometimes so equivocal and problemetic in nature (until dissolution of partnership or rendition of accounts) that it is not susceptible of being used in a manner which can bring into play S. 405, Indian Penal Code. Now as I said above, there is undoubtedly a point of distinction in so far as partnership property is deemed to be in joint ownership in law. Even keeping that sharp distinction, in mind, it appears to me that this larger rationale is equally attracted to the conjugal relationship. 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 be presumed. Equally, herein the specific and ascertainable property of each spouse within the matrimonial home can be so equivocal and problematic so 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 O. 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 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 corner-stone of criminality under S. 405, Indian Penal Code.
48. However, the concept of joint custody and possession of their individual properties by the spouses, in the matrimonial home cannot be elongated ad infinitum. Particularly in focus herein is the question of the relation of the husband or other person 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 marital homestead, there appears to be no warrant to extend 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 nor precedent can it be extended further to others, or indiscriminately to the whole jointly 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-in-law. However, later the couple may wish to take it away to the place of posting of the husband. Could it be said that having been once brought within the joint family home, the possession and control thereof would pass to the undivided family and thus in a way to the karta thereof? Mr. Thapar attempted to make up the extreme position that 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 as untenable on principle, and no authority could be cited in support thereof.
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 and unreasonable limits. Consequently, there is no reason to assume that the mere user or enjoyment of the dowry by other members of the household, would have the effect of passing the possession and control thereof jointly to the Hindu Undivided Family as 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 brother-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 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.
51. Even on larger consideration as well, Mr. Sethi, learned Additional Advocate General, Punjab, had advocated that the speedier and effective remedy of a criminal breach of trust cannot and should not be denied in the somewhat peculiar context of helpless Hindu wives against avaricious parents-in-law or other relations of the husband, who may dishonestly misappropriate or convert for their own use, the dowry or the traditional presents exclusively owned by the bride. In what appeared to me as a somewhat sentimental appeal, learned counsel for the State beseeched the Court to not lose sight of the social evil of extorting dowry which sometimes leads to the sadistic cases of bride-burning where such a greedy lust had remained thwarted or unsatisfied. On these premises it was submitted that denuding such Hindu wives of the rather speedier relief of the criminal law against even the relations of the husband, and throwing them to the tender mercies of the inevitably long drawn out and protracted civil claims with regard to what may essentially be wife's exclusive property, would be virtually rendering them without remedy against a crying social evil.
52. There is a modicum of merit in the aforesaid stand taken on behalf of the respondent-State. Nevertheless, whilst holding that mere blood relationship of the husband is not ipso facto exclusionary of the criminal law for breach of trust, the matter cannot be pushed to the other extreme of holding that the parents and the members of the joint family of a Hindu husband would be presumed to be entrusted with or dominion over the dowry of the wife by the mere factum of such marriage. As in other fields, so in law, one must shun the falsehood of extremes. The giving of dowry and the traditional presents at or about the time of the wedding, does not in any way raise a presumption that such property is thereby entrusted and put under the dominion of the parents-in-law of the bride or other close relations so as to come within the ambit of those words as used in Ss. 405 and 406 of the Code. Nor would the mere factum of bringing the dowry and such other traditional presents into the family home of the husband by itself constitute such entrustment or passing of dominion to the relations or the other members of the joint family of the husband. The mere living together of the couples in the joint family is not a legal equivalent of entrustment per se of the individual property of the wife to the parents-in-law or the other close relations within the family homestead. Any such entrustment or passing of dominion over the dowry to the relations of the husband, therefore, can only be a subsequent act of conscious volition. Inevitably this has to be a matter of particular and specific proof on its own set of facts.
53. In the aforesaid context, the three categories referred to in paragraph 28 may well be recalled. Inevitably those articles of the dowry given as presents to the husband or the parents-in-law and other members of his family after having been brought in the joint family and delivered to its recepients may pass into the ownership of the latter far from being entrusted to them as such. Again, with regard to the article of dowry which may be for common use and enjoyment in the matrimonial home, it is purely a question of fact in each case, whether these were given and intended to be the exclusive property of the bride or otherwise. It cannot, therefore, be prime 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 tantrum 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.
54. For the sake of clarity of precedent within this Court, a reference must be made to Jaswant Rai v. Smt. Kamal Rani, (1963) 65 Pun LR 667. Therein the learned single Judge, in similar circumstances of a complaint by a Hindu wife whilst quashing the proceedings against the five close relations, nevertheless allowed their continuance against the husband and the mother-in-law of the complainant. It is plain, on analysis of the judgment, that the matter was not presented in an exhaustive manner and in the same light as before, nor were the wide ramifications of the issue debated before the Bench. Consequently, the learned single Judge had no occasion to pronounce thereon. Nevertheless, if this judgment is now read as a warrant for any facile presumptions being raised against the husband or the mother-in-law (as sought to be done on behalf of the respondent-State), as being per se entrustment or dominion over the dowry of the wife, then the same can no longer be held as good law.
55. The preceding observations apply equally to this aspect of the judgment in Bhai Sher Jang's case (1979 Cri LJ 493) (supra). Therein paragraphs 12 and 13 of the report are capable of a strained construction of raising a presumption of entrustment of dominion over the property against the husband and the parents-in-law of the Hindu wife. For the detailed reasons above, with respect, such a view cannot hold the field any longer.
56. 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 execlusively 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. 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. Inevitably, therefore, the purported allegations of breach of trust betwixt husband and wife so long as the conjugal relationship 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 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 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 posed at the very outset is rendered in the affirmative. The bonds 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.
58. In the light of the aforesaid principles one may now turn to the terra firma of facts which have been already briefly delineated in paragraphs 2 and 3 of this judgment. In pursuance of the 1st information report lodged by respondent No. 2 Smt. Veena Rani, the police authorities arrested the petitioners on the 1st of July, 1981, and they were remanded to policy custody for four days. As already noticed, the stand of the petitioners is that they were tortured to the maximum during this period and extortionate demands were made upon them in pursuance whereof they had to shell out Rs.50,000/- in cash and 30 tolas of gold to the police. However, according to the investigating agency the three petitioners made disclosure statements under S. 27 of the Evidence Act leading to the recovery of the alleged article of dowry. Curiously enough the case is that a sum of Rs.24,750/- in cash and about 27 tolas of gold were also recovered which were identified to be the same which had been given to respondent No. 2 at the time of her marriage. In accordance with the view expressed in the earlier part of this judgment, we had called upon the respondent-State with regard to any subsequent collection of materials in pursuance of the first information report. In this context the basic reliance of the learned Additional Advocate General, Mr. Sethi was on the written statement in the form of an affidavit filed by Shri Bhagat Ram, Sub-Inspector, S. H. O. of Police Station Kotwali, Bhatinda, dated the 16th of August, 1981. Therein the stand of the investigation is that an offence is jointly made out against the three petitioners under Section 406 read with S. 34, Indian Penal Code, and a synopsis of the steps taken during the course of the investigation till it was stayed under the orders of the Court is given in the affidavit.
59. Adverting now to the first information report what first catches the eye is para 3 thereof in the following terms:--
"That at the time of my marriage I received substantial presents of ornaments, valuable clothes, furniture and other house-hold articles besides Rupees 21,000/- from my parents, relations, my husband and mother-in-law as consideration of the marriage."
It would be plain from the above that on respondent No. 2's own showing substantial parts of the alleged dowry are said to have been given by the relations of her husband and mother-in-law. It is equally with regard to these that the charge of entrustment is laid at the door of the husband and his relations as also her mother-in-law. These allegations, however, look even more incongruous in the context of the underquoted allegation in paragraph 5 of the complaint to the effect that the alleged entrustment was done on the very day of the wedding itself.
60. Apart from the above, the rather ambivalent allegations of entrustment to the husband and the parents-in-law jointly are then contained in paragraphs 4, 5 and 6 of the first information report as under:--
"4. That as dutiful wife and daughter-in-law I had reposed full faith in my husband and in my parents-in-laws and entrusted all the properties aforesaid to them as mentioned in Annexures A and B.
5. That the above mentioned articles as shown in Annexures 'A' and 'B' were entrusted at Bhatinda to accused persons in the presence of Sarvshri Jas Rai, Bhagla, Sham Sunder S/o Ramji Dass, Rajpal and Dr. S. K. Arora on the same day, i.e. 28-1-1979.
6. That immediate after the marriage, all the abovesaid accused started maltreating me for not fulfilling the lust of the accused for more dowry which they were demanding repeatedly from time to time. It was ultimately about 3 months back that all the accused expelled me in my wearing apparels and deprived me of all the articles in Annexures 'A' and 'B'."
61. What would be manifest from the above is that an omnibus and equivocal allegation of entrustment jointly to the husband and his mother and father is suggested. What calls for pointed notice is that the alleged date and time of entrustment is said to be the very day of the wedding itself on the 28th of Jan. 1979. Plainly enough the import of the allegation herein is that the factum of the marriage on that date was tantamount to the entrustment of the dowry to the husband as also the latter's mother and father. No subsequent specific entrustment of my property thereinafter is even remotely alleged in the first information report. It is then the complainant's own case that for full two years thereafter from the date of the marriage till her alleged expulsion from the home of her husband and in-laws around January-February 1981, she continued to live in the matrimonial home even though unhappily. It was not disputed before us that the firm case of the prosecution itself is that the allegation articles of dowry were taken from Bhatinda to the matrimonial home at Malout and were allegedly taken in possession from there in July, 1981, by the police.
62. Even accepting the first information report as the gospel truth it would appear that when tested on the anvil of the principles laid earlier the allegations therein cannot amount to entrustment stricto sensu within the meaning of Section 405, Indian Penal Code. As has been said earlier there is a jointness of control and possession of the property of the spouses within the matrimonial home which negates the very concept of entrustment by the husband to the wife or the wife to the husband therein. As has been held above in paragraph 50 the factum of the marriage itself does not in any way raise a presumption that dowry is thereby entrusted to the husband or the parents-in-law or put under their dominion per se. It bears repetition that the allegation herein is that the entrustment jointly to the husband and the parents-in-law took place on the wedding day itself. Equally the mere factum of taking the dowry and the traditional presents into the family home of the husband does not and cannot in law constitute entrustment or passing of dominion to their the husband or his close relations. Lastly, the admitted fact to this dowry having been kept in the matrimonial home for well-nigh two years (from the alleged date of entrustment on the wedding day of 28th of January, 1979) which inevitably brings in the strongest presumption of the jointness of possession and control negates the very concept or continuance of any such entrustment. It has been held expressly above that either the irate walking of from the matrimonial home by anyone of the spouses or even his or her alleged expulsion therefrom would not saddle the other with being entrusted with or dominion over the property in the matrimonial home within the meaning of S. 405, Indian Penal Code.
63. It would thus be plain that even accepting the allegations in the first information report as wholly true they would not amount to any entrustment or passing of dominion over the dowry to the husband and his mother and father jointly. Inevitably, therefore, the first information report does not even remotely disclose any offence under Section 406 read with S. 34, Indian Penal Code.
64. Once that finding is arrived at this Court is entitled to consider the quashing of the first information report in the light of the principles enunciated in paragraph 20 above. It has already been held that the allegations, considered in detail above, even at their face value, would not in the eye of law, amount to any entrustment or passing of dominion over properly within the ambit of Section 405, Indian Penal Code. Consequently, the first information report would not and cannot indicate any reasonable suspicion of the commission of the cognizable of the offence of criminal breach of trust punishable under S. 406, Indian penal Code. Despite the lodging of the aforesaid report on the 18th of April, 1981 and the subsequent investigation of the same, till the matter was stayed by this Court in July, 1981, no material collected by the investigating agency further disclose the commission of any such cognizable offence either. Indeed, the alleged recoveries of property from the matrimonial home itself and the stance taken by the investigating agency in the affidavit of the investigating officer, seem to detract from the allegations originally made rather than in any way add to them. The averments made in this Criminal Miscellaneous Petition, even if not accepted as wholly true, at least indicate clearly that the whole matter is an unseemly aftermath of a broken marriage with its inevitable bitterness and in this context the further continuation of the police investigation cannot, but amount to an abuse of power which eminently calls for interference by this Court in the ends of justice. I am, therefore, of the view that the case is one which clearly calls for the exercise of inherent jurisdiction under Section 482, Criminal Procedure Code. Even whilst sharply keeping in mind the somewhat exceptional nature of the exercise of such a power. I am constrained to hold that the Criminal Miscellaneous Application No. 4022-M/1981 must necessarily be allowed and the criminal proceedings initiated against the petitioners be and are hereby quashed.
65. Criminal Miscellaneous Applications Nos. 3884-M, 5119-M, 5309-M, 5791-M, 5860-M of 1980; 1451-M, 1478-M, 1585-M, 1597-M, 2361-M and 3367-M of 1981 however, would go back for decision on merits before a single Bench, in the light of the law enunciated and its application as above.
66. Order accordingly.