HAJI BADAL Vs. AHUD HUSSAIN

JUDGEMENT

(1.) THROUGH this application under section 482 of the Code of Criminal Procedure the applicants have prayed that the criminal complaint under sections 406, 120 and 109, IPC filed by the opposite party no.-1 against the applicants and pending in the court of the Special Judicial Magistrate, Sri Pratap Narain, at Lucknow be quashed. The facts giving rise to this application are briefly these.

(2.) SMT. Kishwar Jahan, daughter of opposite party no. 1 Abid Husain, was married to the applicant no. 3 Abdul Sattar on 16-11-73 according to Islamic rites. The couple, however, could not pull on well for long and it appears that differences arose. The applicants' contention is that SMT. Kishwar Jahan wanted her husband to become separate from his parents and live separately to which, being a dutiful son of his parents, he refused. The contention of SMT. Kishwar Jahan, however, was that the applicants expected much more dowry than what she had brought in the marriage and consequently they started harassing her and even gave her physical beating and ultimately her husband pronounced divorce according to Islamic law. She bore three children to her husband. Divorce was pronounced by the husband on 5-3-78 whereafter she was taken by her father to live with him at his house. A notice annexure 1 to the application was given by her father to the applicant no. 3, the husband, calling upon him to pay the dower debt of Rs. 5000/- as was settled at the time of marriage and also to return the ornaments and other articles of dowry valued at Rs. 10,000/- and further to pay Rs. 500/- per month towards her maintenance besides Rs. 300/- per month for the maintenance of the three children. The eldest child at that time was three and a half years and the youngest only seven months old. The husband gave a reply to the notice which is annexure 2 to the petition admitted that the marriage was performed as alleged and Rs. 5000/- was fixed as dower and that three children were born to them out of the wedlock. The allegations about maltreatment, torture or physical beating were denied and it was contended that because his wife wanted him to leave the parents and live separately which he declined, therefore, she herself asked for divorce which was pronounced as desired. Regarding ornaments his contention was that she had taken away with her all the ornaments and he did not object to that, but the remaining articles of presents and dower given at the time of the marriage were with him which he was always prepared to handover in accordance with the list of articles prepared at the time of marriage and a copy whereof should be available with his father-in-law. He also volunteered to pay Rs. 200/- per month to the divorced wife during the period of 'iddat' but denied his liability to pay anything thereafter. Regarding maintenance for the children he shewed his willingness to discharge his obligation provided the children were allowed to meet him and live with him occasionally and when they were grown up so as to be given to his custody in accordance with law, he would be prepared to maintain them fully thereafter. The liability to maintain SMT. Kishwar Jahan after the divorce was, however, denied.

(3.) I have heard the learned counsel for the parties and have also gone through the record. The State opposite party no. 2 has taken no stand in the matter. The main contention of the applicants learned counsel was that on the allegations made in the complaint no case; under Section 406, IPC could be said to have been made out and consequently the complaint deserved to be quashed. In the alternative, it was contended that if the opposite party no. 1 or his daughter felt aggrieved and a case was made out on facts and law they could take recourse to the provisions of the Dowry Prohibition Act but could not prosecute the applicants under Section 406, IPC. It has not been denied that the ornaments, clothes and other articles of personal use given to Smt. Kishwar Jahan at the time of the marriage would be her personal property of which she would be owner and which she would be entitled to use in any manner she liked. Even in the reply to the notice the husband, opposite party no. 3, had stated that he was prepared to hand over all the articles according to the list, a copy whereof should be available with his father-in-law. Regarding ornaments the factual averment made in reply to the notice was that after the divorce his wife had taken away all the ornaments with her when she left his house to live with her parents. Thus there is no dispute that the articles in question were the property of Smt. Kishwar Jahan. The material question therefore, was whether in these circumstances the said property can be considered as having been entrusted to the applicants so that on demand for return if it was not given back it would amount to criminal breach of trust. Reliance was placed on the recent Ful.'l Bench decision of the Punjab and Haryana High Court in Vinod Kumar v. State, AIR 1982 Punjab and Haryana 372. That was a case governed by Hirxlu Law and it was found that the property given at the time of the marriage: or before or after that as customary presents out of love and affection etc. earlier constituted 'stridhan' property and would even now after the Hindu Marriage Act and other allied laws governing the matter would constitute her personal property. The position under the Mohemmadan Law too would :not be different. It was then held in the aforsaid Full Bench decision that if a property given as customary presents etc. or taken to the matrimonial home remained in the custody of the parents of the husband, it would not ipso-facto amount to entrustment of property to them because the possession would be deemed to be joint of the bride, bride groom and the latter's parents. The concept of the matrimonial home was the basis for holding that the possession would be joint and the case would not be considered as one of etntrustment of property. Even in that case, however, an exception was envisaged and it was that in case there was any written agreement indicating that the property would be deemed to be entrusted to the members of the family the position could be otherwise. The following observation made towards the end of Para 41 of the report may be noticed :