MOHAN LAL Vs. RANJIT RANI

JUDGEMENT

(1.) The fact giving rise to this petition under section 482 of the Code of Criminal Procedure are that respondent. No.1 Ranjit Rani had tiled a complaint under Section 4, 4-B and 6 of the Dowry Prohibition Act and section 406 of the Indian Penal Code against her father-in-law, Mohan Lal petitioner, his wife and sons including her husband Surinder Paul. in The Court of Judicial Magistrate 1st Class, Ludhiana. After recording paramilitary evidence, the learned Judicial Magistrate issued summons to the accused under section 406 of the Indian Penal Code, Two of the sons of the petitioner, one of when 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 not constitute an offence under section 406 of the Indian Penal Code or any provision of the Dowry Prohibition Act.

(2.) Here it becomes necessary to give some facts in brief as contained in the 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 formers parents house situated in payal. They stayed there for the night. While leaving on the next day Ranjit Rani told her parents that her father-in-law as well as mother-in-law 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 as shagun. Thereafter the in-laws of Ranjit Rani 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 be should bring these rings. On the occasion of Lorhi festival, Ranjit Rani's brother. Yash Paul came to her with Sandhara, which consisted of a suit for her, one for her mother in law, one blanket for her husband 2nd some money for her father-in-law. When Yash Paul asked Ranjit Ranis father-in, law to send her, her father in-law 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 on her mother in-law asked her that she should bring one Dehri-da-suit from her parents house. Accordingly she brought one She also brought a fan on the asking of her father-in-law. Once her father visited her in village Rauni, which is her in. laws village. He was asked to give Rs. 10,000/- for a moter cycle. However, he expressed his inability to do so. Her in. laws asked her father not to visit Rauni again and, said that the ties of relationship between them had snapped and that she (i.e. Ranjit Rani would not be sent to Payal. Thereafter Ranjit Ranis father brought his young, brothers and twice a Panchayat to village Rauni and asked the in-laws of Ranjit Rani that her marriage had taken place 7 or 8 months back and, therefore she should be sent to Payal for a few days. Her in-laws said that she would be sent on the following Sunday. When her father came to take her, her father-in-law and latters elder son, Dharam Paul told him that in case he wanted to take her daughter, be 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 the accused, he lodged a report in Police Station Payal on 28th August, 1979 alleging danger to his daughter and that her in laws were demanding motor cycle 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 by Ranjit Rani en 24th Decel98O after obtaining section from the Sub. Divisional Magistrate, Khanna.

(3.) 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 another1. I am of the opinion that the above argument has force. In Vinod Kumar Sethi'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 in-laws. It is not necessary to give the facts or 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 bad refused to return the same to her. It was remarked in that case: 44. One may now turn precisely 10 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 me 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 rights of the individual ownership therein then these very pre-requisites of entrustment or dominion over proper to cannot be easily satisfier! betwixt the spouses inter se. It is indeed well settled that the very concept of the joint ness of possession and custody would rule out the entrustment or dominion over property betwixt such joint custodians. In line with the concept of joint ownership where the possession of one joint owner is deemed to be: the possession of all, the analogy is to be extended that 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 overtly hyper technical and subversive of the very concept of marriage, the matrimonial home and the inevitable mutual trust which conjugality necessarily involves. 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 prerequisite under Section 405, Indian Penal Code. The joint custody and posses, ion 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 rebuff. 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 spouses therein, including dowry and traditional presents, which would preclude the essentials of entrustment or dominion over the properly which form the corner-stone of criminality under section 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 relations of the husband or other persons living jointly in the matrimonial home which is not unusual in Hindu families. Whilst a presumption in Jaw may well be drawn about the joint custody and possession of the couple of their respective properties within tile marital homestead, there appear 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 borne and neither on principal nor precedent can it be extended further to others, or indis, criminate 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 bridges parents in-Jaw. 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 larta thereof ?Mr. Thapar attempted to take 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. 56 To conclude; it necessarily follows from the aforesaid discussion that the very concept of the matrimonial home connotes as a joint ness of possession and custody by the spouses even with regard to the moveable proprieties 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 day-to-day by the husband to the wife or vice versa Consequently, during a special written agreement to the contrary, no question of any entrustment or decision over property would normally arise during covertures or its imminent break-up. Therefore the very essential prerequisites and the bare ingredients of the offence under section 406 of toe Penal Code would be lacking in a charge of criminal bearish 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 prime facie and this inevitably hall 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 ambit 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 make out a prima facie case under section 406 of the Indian Penal Code against any of the accused.