# PRATIBHA RANI v. SURAJ KUMAR & ANR

- **Citation:** [1985] 3 S.C.R. 191
- **Court:** Supreme Court of India
- **Decided:** 1985-03-12
- **Bench:** S.M. Fazal Alt, A Varadarajan, Sabyasachi Mukharji
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pratibha-rani-v-suraj-kumar-anr-8916
- **Pages:** 52

## Headnote

Nature, character and conc<nnitants of stridhan-Right of exclusive ownership over the stridhan during ciJverture-Whether the dowry/Jtridhan given to a
wife and her exclusive property becomes a joint property/partnership property
by a fiction of being placed in the custody of her husband and her relation1, the
moment a 1narried woman enters her malrimonial home-Indian ParJnership Act,
1932, section 4. Dowry Prohibition Act (28of1961) sections 2 /{indu Marriage
Act, 1955 section 27 Hindu Succession Act Section 14 Indian Penal Code, sections
405, 406 and 482.
Remedies open under law-Whether cri1ninal remedy is barred when civil
re1nedy is available sitnf!ltaneous/y.
Entrustment-Charge of Criminal breach of trust by wife against her
husband and his cloJe relations maintainability-Essential ingredients of an
offence section 405/406 Indian _Penal Code.
Inherent powers of the High Court to quash a First Tnforn1ation Report on
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a co1np/aint under section 482 of the Code o/Cri111inal Procedure, 1973 (Act II of
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1974), explained.
The appellant Pratibha Rani. the estranged wife of the first respondent
Suraj Kumar, filed a cri1ninal complaint against her husband, his father, his
three brothers and a brother-in-law ilJ the c·ourt of the Additional Chief
Judicial Magistrate, Lridhiana, alleging; (j) that she was married to the first
respondent at Ludhiana on 4. 2. 1972 according to Hindu rites and customs ;
(ii) that the aforesaid persons, namely, father, brothers and bro.ther-in-law of
the first respondent attended the marriage and demanded dowry from the
appellants• parents as consideration for the marriage ; (iii) that the dowry
articles mentioned in the list worth Rs. 60,000 in the form of gold -ornaments,
clothes and other valuables were given and _entrusted to the respondents and
four others at Ludhiana- at the time of 'doli' on 5. 2. 1972 in the presence of
Kapur Chand Jain and six others; (iv) that all the six respondents, from the time
of marriage started teasing, harassing and beating her and they kept her:without even food to extract more money from her parents; (v) that they turned out
the appellant with her children in the beginning of 1977 (vi) that after a great
deal of persuasion and intervention by Pancbayatdars, respondent No. 1 came
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SUPREME COURT REPORTS
(1985] 3 S.C.R.
to Ludhiana and took her to his house, after giving an undertaking in writing
on 21. 6. 1977 not to misbehave witli and not to maltreat the appellant and
her children ; (vii) that after some time all the respondents in the complaint
not only started again maltreating the appellant and misbehaving with her, but
also brought the appellant at 4.30 a.rn. on 11.12.80 and left her near Kailash
Cinema Chowk ; (viii) that the articles (the stridhana) mentioned in the list
appended to the complaint were never given by the respondents to the appellant
for her use but were retained by them illegally and with the dishonest intention
of causing wrongful gain to themselves and wrongful loss to the appellant ; (ix)
that when the appellants' husband and his brother, Vishwinder Kumar, respondent 1 and 5 in the complaint, came to Ludhiana on 10.2.81 to attend the proceed!ngs started by the appellant under section 125 Criminal Penal Code her
parents persuaded them to return the articles entrusted to the1n at the time of
the marriage but they flatly refused to comply with that demand ; (x) that the
articles have not been returned in spite of service or notice dated 17.12.81 on the
first respondent; (xi)- that the respondents in the complaint have dishonestly,
thus, converted the articles belonging to the appe11ant for their use in violation
of the instructions of the appc11ants' parents given at the time of the marriage
to give the articles for the appellants' use and that (xii) they individually and
jointly commiUed the offences under sections 405 and 406 Indian Penal Code.
Thereupon respondent No. 1 filed Criminal Misc. Application No. 48

## Text

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PRATIBHA RANI
v
SURAJ KUMAR & ANR.
March 12, 1985
(S.M. FAZAL ALT, A VARADARAJAN AND SABYASACHI MUKHARJI, JJ.J
Nature, character and conc<nnitants of stridhan-Right of exclusive ownership over the stridhan during ciJverture-Whether the dowry/Jtridhan given to a
wife and her exclusive property becomes a joint property/partnership property
by a fiction of being placed in the custody of her husband and her relation1, the
moment a 1narried woman enters her malrimonial home-Indian ParJnership Act,
1932, section 4. Dowry Prohibition Act (28of1961) sections 2 /{indu Marriage
Act, 1955 section 27 Hindu Succession Act Section 14 Indian Penal Code, sections
405, 406 and 482.
Remedies open under law-Whether cri1ninal remedy is barred when civil
re1nedy is available sitnf!ltaneous/y.
Entrustment-Charge of Criminal breach of trust by wife against her
husband and his cloJe relations maintainability-Essential ingredients of an
offence section 405/406 Indian _Penal Code.
Inherent powers of the High Court to quash a First Tnforn1ation Report on
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a co1np/aint under section 482 of the Code o/Cri111inal Procedure, 1973 (Act II of
E
1974), explained.
The appellant Pratibha Rani. the estranged wife of the first respondent
Suraj Kumar, filed a cri1ninal complaint against her husband, his father, his
three brothers and a brother-in-law ilJ the c·ourt of the Additional Chief
Judicial Magistrate, Lridhiana, alleging; (j) that she was married to the first
respondent at Ludhiana on 4. 2. 1972 according to Hindu rites and customs ;
(ii) that the aforesaid persons, namely, father, brothers and bro.ther-in-law of
the first respondent attended the marriage and demanded dowry from the
appellants• parents as consideration for the marriage ; (iii) that the dowry
articles mentioned in the list worth Rs. 60,000 in the form of gold -ornaments,
clothes and other valuables were given and _entrusted to the respondents and
four others at Ludhiana- at the time of 'doli' on 5. 2. 1972 in the presence of
Kapur Chand Jain and six others; (iv) that all the six respondents, from the time
of marriage started teasing, harassing and beating her and they kept her:without even food to extract more money from her parents; (v) that they turned out
the appellant with her children in the beginning of 1977 (vi) that after a great
deal of persuasion and intervention by Pancbayatdars, respondent No. 1 came
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(1985] 3 S.C.R.
to Ludhiana and took her to his house, after giving an undertaking in writing
on 21. 6. 1977 not to misbehave witli and not to maltreat the appellant and
her children ; (vii) that after some time all the respondents in the complaint
not only started again maltreating the appellant and misbehaving with her, but
also brought the appellant at 4.30 a.rn. on 11.12.80 and left her near Kailash
Cinema Chowk ; (viii) that the articles (the stridhana) mentioned in the list
appended to the complaint were never given by the respondents to the appellant
for her use but were retained by them illegally and with the dishonest intention
of causing wrongful gain to themselves and wrongful loss to the appellant ; (ix)
that when the appellants' husband and his brother, Vishwinder Kumar, respondent 1 and 5 in the complaint, came to Ludhiana on 10.2.81 to attend the proceed!ngs started by the appellant under section 125 Criminal Penal Code her
parents persuaded them to return the articles entrusted to the1n at the time of
the marriage but they flatly refused to comply with that demand ; (x) that the
articles have not been returned in spite of service or notice dated 17.12.81 on the
first respondent; (xi)- that the respondents in the complaint have dishonestly,
thus, converted the articles belonging to the appe11ant for their use in violation
of the instructions of the appc11ants' parents given at the time of the marriage
to give the articles for the appellants' use and that (xii) they individually and
jointly commiUed the offences under sections 405 and 406 Indian Penal Code.
Thereupon respondent No. 1 filed Criminal Misc. Application No. 4876
of 1981 in the Punjab and Haryana High Court under section 482 of the Code of
Criminal Procedure for quashing the criminal proceedings and the complaint
taken on file by the Additional Chief Judicial Magistrate, Ludhiana under
section 406 JPC and his order summoning them. A Learned Single Judge of
the High Court relying strongly upon the observations tnade by a Full Bench of
that High Court in Vinod K1unar Sethi & Ors. ·v. State of Punjab & Ors.
reported in AIR 1982 Punjab 372 allowed the pcti1ion and quashed the proceedings arising out of the apellants' con1ptaint, observing that the allegations in the
appellants' complaint are sin1ilar to the one in that case a11d therefore, flilly
covered by t_he ratio in that th:cision. :Hence the appt:at by special leave.
Allowing the appeal, the Court.
HELD ; (Per Fazal Ali, J.) (on behalf of Sabyasachi Mukharji, J. and
himself)
1.1 The stridhan property of a married woman cannot) acquire the
character of a joint property of both the spouses as soon as she enters her
matrimonial home so as to eliminate the application of section 406 IPC. The
position of stridhan or a Hindu married woman's property during covcrture is
absolutely clear and unambiguous ; she is the absolute owner of such property
and can deal with it in any manner she likes-She may spend the whole of it or
give it away at her own pleasure by gift or will without any reference to her
husband. The entrustment to the husband of the stridhan property is just like
something which the wife kee'ps ia a bank and can withdraw any amount when·
ever she likes without any hitch or hindrance. Ordinarily, the husband has no
right or interest in it \Vith the sole exception that in times of extreme distress, as
PkATIDHA RANI v. SUkAJ KUMAR
193
in famine, illness or the like, the husband can utilise it but he is morally bound
to restore it or its value when he is able to do so. This right is pu~ely person'al
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to the husband and the property so received by him in marriage cannot be pro·
ceeded against even in eXecution Of a dCcree for debt. [206F; 2010-E]
Suraj Kumar & A~r. v. Pratibha Rani, Criminal Misc. Petition No. 4876
of 1981 Punjab & Haryana High Courtj reversed.
Vinod Kumar Sethi & Ors. v. State of Punjab & Anr.AIR 1982 Punjab 372 ;
Surinder Mohan v. Snit.· Kiron Saini, 1917 Chandigarh Law Reporter 212;
Kai/ash Vati v. Ayodhya Parkash, !LR (1977) I Punjab & Haryana 642 (FB}
overruled.
1.2 A perusal of the allegations made in the complaint undoubtedly makes
out a positive case of the accused having dishonestly miSappropriated the
articles handed over to the:n in a fiduciary capacity. To characterise such an
entrustment as a joint custody or property given to the husband and the parents
is wholly unintelligible. A perusal of the list reveals that so far as the jewellery
and clothes, blouses, nighties and gowns are concerned they could be used only
by the wife and were her stridhan. By no stretch of imagination could it be
said that the rornaments and ~ sarees and other articles mentioned above could
also be used by the husband: If, therefore, despite demands these articles were
refused to be returned to the wife by the husband and bis parents, it amounted
to an offence of criminal breach of trust. All the ingredients of an offence
under section 405 JPC were pleaded and a prima facie case for summoning the
accused was made out. In such circumstances, the complaint should have
.been given an opportunity by the High Court to prove her case rather than
quashing the complaint. Such an exercise of jurisdiction by the High Court
under section 482 Cr. P. is totally unwarranted by law. [203A; 204B-D; 203B-C] -
2.1
Criminal law and matrimonial home are not strangers. · Crimes
committed in matrimonial home nre as much punishable as anywhere else. The
mere factum of the husband and wife living together doCs not c:intitle either of
them to· commit a breach of criminal law and if one does then-he/she will be
liable for a11 the consequences of such breach. In the case of stridhan property
also, the title of which always remains with the wife though possession of the
same may sometimes be with the husband or other members of his family if
the husband Or any other member of his family commits such an offence, they
will be liable to punishment for the offence of criminal breach of. trust under
sections 405 and 406 IPC. Just as a newly married woman Jiving in the same
house and under the same roof cannot be expected to keep her personal property or belongings like jewellery, clothing, etc. under'her own Jock arid key
thus showing a spirit of distrust to the husband at the very behest, a husband
cannot be permitted to cast his covetous eyes on the absolute and personal
property of his wife merely. because it is kept in his custody, th.:reby reducing
the custody to a legal farce. On the other hand, even if the pefsonal property
of the wife .is jointly kept it would be deemed to_be expressly or impleedly kept
iμ rhe cμstody of the husband and if he dishonest!)' misappropriates or refuses
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to return the same, he is certainly guilty of criminal breach of trust, and there
can be no escape from this legal consequence. (207E-G; 208B-C]
2.2 It is an anathema to suppose that when a civil remedy is available, a
criminal prosecution is compktely barred. The two remedies-are under civil
Jaw and the other under criminal law are not mutually exclusive but coextensive
and essentially differ in their content and consequences. Therefore, it cannot
be said that, if the husband dishonestly misappropriates the stridhan property
of his wife though kept in his custody, that would not par prosecution under
section 406 IPC or render the ingredients of section 405 IPC nugatory or
abortive. To say that because the stridhan of a married woman is kept in the
custody of her husband no action against him can be taken as no ·offence is
committed is to override and distort the real intent of Jaw. [208E-Fl
3.1 Neither section 27 of the Hindu Marriage Act nor section 14 of the
Hindu Succession Act, go to the extent of providing that the claim of a woman
on the basis of siridhan is completely abolished, or that a remedy under the
criminal law for breach of trust is taken away. All that the two sections,
provide is that if the husband refuses to return the stridhan property of his
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wife, it will be open to the wife to recover the same by a properly constituted
suit. [204G-H; 205A]
3.2 Section 27 of the Hindu Marriage Act merely provides for an alternate
lCmedy and does not touch or affect in any way the criminal liability of the
husband in case it is proved that he thas dishonestly misappropriated the
stridhan of his wife. It cannot also be sp::lt out from any textbook or the
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sastrlc law of the Hindus that these two Acts take away the stridhan right of a
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woman-at the most these Acts merely modify the concept of slridhan.
[205C-D]
Bbai Sher Jang Singh & Anr. v. Smt. Virinder Kaur, 1979 Criminal Law
Journal, 493 approved.
Surinder Mohan v. S1nt. Kiran Saini, 1977 Chandigarh Law Reporter 212
over ruled.
4.1 It is neither appropriate nor apposite io import the concept of partnership of husband and wife for the simple reason that the concept of partnership
is entirely different from that of the husbands' keeping the stridhan in his
custody. From the definition of the partnership in section 4 of the Indian
Partnership Act, it is manifest that in a partnership th.e wife must by some
clear and specific act indicate that the stridhan which has been entrusted to the
husband is to be used for a partnership business and the losses of the firm, if
any, would have to be shared by both. A pure and simple act of entrustment
of the stridhan to the husband does not attract any of the essential ingredients
of a_ partnership as defined in the Partnership Act. When the essential conditions of a partnership do not exist, the mere factum of entrustment of stridhan
would not constitute any co-ownership or legal partnership+ There is also no
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PRAT!BHA RANI v. SURAJ KUMAR
195
question of the wife, constituting herself a partner with her husband merely by
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allowing him to keep the article or money in his custody. Further, in this
case, there is, neither any pleading nor any allegation thit after her marriage,
the appellant transferred all her :·properties to her husband for carrying on· a
partnership business in accordance with the provisions of the Partnership Act.
Therefore, a criminal prosecution under section 406 IPC is maintainable.
[209E; 210B·C; G; 211 C-DJ
Vinod Ku1nar Set/ti & Ors. v. State of Punjab & Anr. AIR 1982 Punjab
372 ; Surifzder Mohan etc. v. Smt. Kiran Saini, 1977 Chandigarh Law Reporter
212 ; Kai/ash Vati v. Ayodhya Parkash, !LR (1973) 1 Punjab & Haryana,
P 642 ; Kili/ash Nath Agarwal & Ors. v. Prem Pal Agarwal & Anr. Crl. Misc.
case No. 676of1981 connected with Cr!. Misc. case No. 2753of1981 decided
on 22.12.83 Allahabad High Court overruled.
In the instant case, however, there is neither any allegation nor anything in
the complaint to show that when the wife entered her matrimonial home she had
entrusted property tO her husband so as to make him part owner of the same.
Therefore, the question of the husband having dominion over the properly does
not at all arise. In fact the wife has Ilothing to do with the partnership, if any
and the husband -is a pure and simple custodian of the property and cannot
use the same for any purposed without her consent. [210E-F]
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The concept of stridhan property of a married woman becoming joint
property of both the spouses as soon as she enters her matrimonial home and
continues to be so until she remains there or even if there is a break in the
matrimonial alliance, is in direct contravention of Hindu law of S.1dayika
which has been administerl!d since more than a cen.tury by High Courts, Privy
Council and also the Supreme Court. [212C.D]
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4.2 The Full Bench decision in Vinod Kumar's case would not only render
the provisions of section 406 IPC inapplicable and nugatory even if £he husband
has the audacity or the importunity of refusing to return the stridhan of his wife,
but also be in direct contravention of a long course of decisions of Supreme
Court on the ingredients of section 405 IPC. [212A-B]
•
By a pure and simple figment of the fertile imaginations, the Judges in the
Vinod Kumar's case seem to have rewritten the law of criminal breach of trust
contained in sections 405 and 406 IPC so as to carve out an imaginary exception to the application of the Penal Code. A more tragic consequence of the
view taken by the I-Iigh. Court is that even if there is a break in the matrimonial
alliance and the wife wants her husband to return her exclusive property and
he refuses lo return even then the provisions of section 406 IPC would not
apply. It is an extreme travesty of justice for a court to say that whenever a
married demands her stridhan property from her husband she should be driven
to the dilatory process of a Civil Court and her husband would be debarred from
being prosecuted by a cdminal court. By a strange and ingenious process of
holdin~ that such aμ act of a husband does n9t attract the provisions of the
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[1985] 3 $.C.R.
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Penal Code, as the property being joint there is no question of the husband
being a trustee or holding the same in a fiduciary capacity. Such a view is not
only contradictory but-what the High Court has said before regarding theapplicability of section 27 of the Hindu Marriage Act and the nature of
stridhan-is also neither in consonance With logic and reason nor with the
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express provisions of the Penal Code and seems to be inspired by a spirit of
male chauvinism so as to exclude the husband from criminal liability merely
because his wife has refused to live fa her matrimonial home. The High Court,
functioning in a civilised and socialistic society such as ours cannot play such
a havoc with judicial interpretation of an important branch of law. The High
Court cannot make a complete volte·face by holding that these Very properties
after marriage become joint property of both the spouses. The High Court
has not realised that the theory or philosophy of matrimonial home propounded
by it stands directly contradicted by its own observations.
[212D-H; 213A; H; 214A]
4,3 The fundamental core of the offence of criminal breach of trust is that
a property must be entrusted and the dominion of the property should be given
to the trustee, In the present case, all these conditions, even according to the
findings of the High Court though not its conclusions afe clearly established.
[217C]
Chel/oor Manaklal Narayan /ttiravt Nanzbudiri v. State of Travancore ;
AIR 1953 SC 478 ; Jaswantrai Manila/ Akhaney v. State of Bombay, [1956)
SCR 483 ; State of <;ujarat v. Jaswant/al Nathala/ [1968] 2 SCR 408 ; Sushi/
Kun1ar Gupta v. Joy S'1ankar Bhattacharjee, AIR 1971 SC 1543; Superintendent
& Remembrance; of Legal Affairs, West Bengal v. S.K. Roy 1914 (4) SCC 230
referred to.
Harihar Prasad Dubey v. Tutsi Das Afundl:ra & Ors. AIR 1949 Calcutta
207 ; Akharbhai Nasarali v. Md. Hussain Bhai. AIR 1961 MP 37 ; Basudeb
Patra v. Kanai Lal lfaldar, AIR 1949 Calcutta 207, Bhai Sher Jang Singh and
Anr. v. S1nt. Virinder Kaur, 1979 Crl. L.J. 493 ; Avtar Singh and Anr. v.
Kirpa/ Kaur, Cr!. Misc. No. 2144of1979 and Cr 1 Misc. No. 2145 of 1979
approved.
Vinod Kun1ar Sethi & Ors. v. State of Punjab and Anr. AIR 1982 Punjab
372 ; Surindir Mohan etc. v. Snit. Kiran Saini, 1977 Chandigarh ·Law Reporter
212 ; Kai/ash -fllath Agarwal & OrJ. v. Prem Pal Agarwal & Anr. Crl. Misc.
Case No. 676 of 1981 connected with Crl. Misc. case No. 2753 of 1981,
Allahabad High Court; Kai/ash Vati v. Ayodhya Parkash, !LR (1977) I
Punjab & Haryana· 642 overruled.
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5. For the purpose of exercising its power under secton 482 Cr. PC to
quash a First Information Report or a complaint the High Court would have
to proceed entirely on the basis of the allegations made in the complaint or
the documents accompanying the same per se. It has no jurisdiction to examine
the correctness or otherwise of the allegations. In case no offence is committed
on the allegation and the ingredients of section 405 and 406 IPC are.not made
out, the High Court would be justified in quashing the proceedings.
In the
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present case, the :allegations are both clear, specific and unambi~uOu$ and
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PRATiBHA RANi v. STRAJ KUMAR
191
therefore, the complainant should have been given a chance to prove her case.
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It is, of course open to the accused at the trial to take whatever defeaces that
were open to him or her but that stage had not yet come and therefore, the
High Court was totally ill-advised to speculate on the merits of the case at that
stage and quash the proceedings. Since all the facts stated in the complaint
constituted an offence under section 406 IPC, the appellant cannot be denied
the right to prove her case at the trial by pre-empting it the very behest by the
ordllr passed by the High Court. [223D-H; 2240-E)
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Vinod Kumar Sethi & Ors. v. State of Punjab & Anr., AIR 1982 Punjab 372,
overruled.
L. V. Jadhav v. Shakarrao Abasaheb Pawar & Ors. AIR 1983 SC 1219 ;
Snit. Nagawa v. Veeranna Shivalingoppa Ko11jalgi & ors. [1976] Supp.' SCR 123
applied.
OBSERVATION
(It is surprising to find thar so deeply drowned and inherently engrossed
are .some of the High Courts in the concept of n1atrimonial home qua the
stridhan property of a married woman that _they simply refuse to believe that
such properties are meant for the exclusive use of the wife and could also be
legally entrusted to the husband or his relations. Thus, if the husband o'r bis
relations misappropriate the same and refuse to hand it over to the wife and
convert them to their own use and even though these facts are clearly alleged in
a complaint for an offence under section 405/406 IPC, some courts take the
view that the complaint is not maintainable. Thus even when clear and specific
allegations are made in the complaint that- such properties were entrusted to
the husband, they refuse to believe these hard facts and brush them aside on the
ground that they are vague, and completely shut their eyes to the fac"t that the
husband could also be guility under section 405/406 IPC in view of the clear
allegations made in the complaint. In other words, the High Courts simply
refuse to believe that there can be any such entrustment and even if it is so, no
offenCe is committed. Such an approach amounts to a serious distortion of
the criminal law. resulting in perpetrating grave and substantial miscarriage of
justice to the wife at the hands of the High Courts. The Supreme Court cannot countinuance su~h a wrong and perverse approach.) [224G-H; 22SA-C]
Per A. Varadarajan, J. (dissenting)
1.1 Ill' the absence of a separate agreement and specific entrustment by
the wife to the husband and or his relations and vice versa of the property of
the husband to the wife and or her relation, it would not be possible to draw an
iaference of entrustment of custody or dominion over the property of one
spouse to the other and his or her relations so as to attract the_ stringent provisions of section 406 IPC. The offence of criminal breach of trust is cognizable and non-bailable and punishable with imprisonment for a term of three
years or with fine or with both. In the absence of such a separate agreement
for specific entrustment of the property of either spouse the appropriate remedy
would appear to be by way of a civil suit where there is scope for the partit:s to
the marriage coming together at ihe instance of relations, elders and wellwishers and patching up their differences. (241G-H; 242A]
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1.2 Entertaining complaints of the irate wife or husband against the
husband or wife without even an allegation of a speci6c and separate agree~
mcnt constituting entru!ltment of the property of the wife of the husband would
have disastrous effects and consequences on the peace and harmony which ought
to prevail in matrimonial homes. [242B]
t.3 The fact that no instance of any case of successful p1osecution of the
husband ·or wife at the instance of the wife or the husband could be brougpt to
the notice:or the Supreme Court in the course of the arguments in tbi.) appeal,
would show that the spouses had not lightly rushed in the past to criminal courts
with complaints of criminal breach of trust against the other spouses though in
the day.to·day life. There must have been numerous instance where the wife
had used the property or cash of the husband for purposes different from the
one for which they were give'1 by the husband to be applied by the wife and
vice~versa. Therefore, the minimum requirement in such cases is a specific
separate agreement whereby the property of the wife or husband was entrusted
to the husband or wife and or his or her close relations. In the absence of such
· a specific separate agreement in the present case the complaint was rightly
quashed. [242D· Fl
CRIMINAJ;
APPELLATE
JURISDICTION :
Criminal
Appeal
No. 684 of.1982
From the judgment and order dt. the 31st May, 1982 of the
High Court of Punjab & Haryana at Chandigarh in Crl. Misc.
No.
4876M/81.
V.C. Mahajan, and N.S. Das Bahl for the Appellant.
A/tat Ahamed for the Respondents.
Mrs. U. Kapoor for the Intervenor.
The following Judgments were delivered
FAZAL ALI, J. Sometimes the law which is meant to
impart justice and fair play to the citizens or people of the country
is so torn and twisted by a morbid interpretative process that
instead of giving haven to the disappointed and dejected litigants
it negatives their well established rights in law.
The present case
reveals the sad story of a helpless married woman who, having
been turned out by her husband without returning her ornaments,
money an_d clothes despite repeated demands, and dishonestly
misapporpriating the same, seems to have got some relief by the
court of the first instance but to her utter dismay and disappointment
when she moved the High Court she was forced like a dumb-driven
cattle to seek the dilatory remedy of a civil suit-such was the strange
and harash approach of the High Court, with due respect, which
seems to have shed all the norms of justice and fair play. Even so,
the High Court is not much to be blamed because in the process of
following precedents or decisions of doubtful validity of some
courts, it tried to follow suit. It may be stated that even the old
PRATIBHA RANI v. SiJRAJ KUNAR (Faza/ Ali, 1.)
199
classic Hindu law jurists and celebrated sa'ges conceded certain
substential rights to the women, one of which was - what is calledSaudayika or stridhan, with which we are concerned here.
This now brings us to a brief discussion of the nature, character and concomitants of stridhan. In the instant case, we are
mainly concerned with that part of stridhan which is the absolute
property of a married woman during coverture. Sir Gooroodas
Banerjee in 'Hindu .Law of Marriage and Stridhana' while describing the nature of stridhan quoted Katyayana thus:
"Neither the husband, nor the son, nor the father, nor
the brother, has power to use or to alien, the legal property
ofa woman. And if any of them shall consume .such property aginst her own consent he shall be compelled to pay
its value with interest to her, and shall also pay a fine to the
king ......... Whatever she has put amicably into the hands
of her husband affiicted by disease, suffering from disease,
or sorley pressed by creditors, he should repay that by his
own freewill."
(p.341)
At another place while · eferring to the nature of a husband's
rights over stridhan during coverture, the author referring to Manu
says thus:
" • · and hy the law as expounded hy the commenta·
tors of the different schools, the unqualified dominion of
the husband is limited to only some descriptions of the
the wife's property, while as regards the rest he is allowed
only a qualified right of use under certain circumstances
specifically defined."
(p.340)
Similarly, while describing the nature of stridhan gen er.ally,
which is known as saudayika, the author says thu~:
"First, take the case of property obtained by gift.
Gifts of affectionate kinderd, which are known by the name
saudayika
stridhana, constitute a
11v0man's
absolute
property, which she has at all times independent power to
alienate, and over which her husband has only a qualified
right, -namely, the right of use in times of distress."
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SUPREME COURT REPORTS
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The entire classical tax! on the subject has been summarised
by N.R. Raghavachariar in 'Hindu Law' (5th Edu.) at page 533
(section 487) where the following statement is made:
"487. Powers During Coverture.
Saudayika, meaning the gift of affectionate kindred,
includes both Yautaka or gifts received at the time of
marriage as well as its negative Ayautaka. In respect of
such property, whether given by gift or will, she is the
absolute owner and can deal with it in any way she likes.
She may spend, sell or give it all'•Y at her o\l'n pleasure by
gift or will without reference to her hu•band and property
acquired by it is ellually subject to rnch ri~hts. Ordinarily,
th• husband has no manner of right or interest in it.
But
in times of extreme distress, as in famine, illness or
imprisonment, or for the I.performance of indispensable
duty the husband can take and utilise it for his personal
purposes, though even then he is morally bound to restore
it or its value when able to do so.
But this right is purely
personal to him and cannot be availed of by a holder of a
decree against the husband, and if the husband dies without utilising the property for the liquidation of his debts,
his creditors connot claim to proceed against it in the place
of her husband."
To th~ same effect is Maines' treatise on Hindu Law at page
728. The characteristics of Saudayika have also been spelt out by
Mulla's Hindu law at page 168 (section 113) which gives a com-
(;plete list of the stridhan property of a woman both before and
during coverture, which may be extracted thus:
"113. Manu enumerates six kinds of stridhana:
I. 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
residen~e of her parents to that of her husband
PRAtili!IA RANI v. StlRAJ KUMAR (Fazai Ai;, J.)
20!
(adhyavanhanika).
3.
Gifts made in token of love, that is, says Katyayana,
those made through affection by her father-in-Jaw and
mother-in-Jaw (pritidatta), and those made at time the
of her making obeisance at the feet of elders (padavandanika).
4.
Gifts made by father.
5.
Gifts made by mother.
6.
Gifts made by a brother."
It is, therefore, manifest that the position of stridhan of a
hindu married woman's property during coverture is absolutely
clear and unambiguous; she is the absolute owner of such property
and can deal with it in any manner she likes - she may spend the
whole of it or give it away at her own pleasure by gift or will
without any reference to her husband. Ordinarly, the husband has
no right or interest .in it with the sole exception that in times of
extreme distress, as in famine illness or the like, the husband can
utilise it but he is morally bound to restore it or its value when he
is able to do so. It may be further noted that this right is purely
personal to the husband and the property .so received by him in
marriage cannot be proceeded agninst even in execution of a decree
for debt.
Such being the nature and.character of stridhan of a woman,
it is difficult to countenance the view of the Punjab & Haryana High
Court in Vinod T<umar Sethi & Ors. v. State of Punjab & Anr.(1)
that the stridhan property of a married woman becomes a joint
property as soon as she enters her matrimonial home.
We shall
deal with this aspect of the matter a little later.
We would first like to narrate the facts of the case to show
how .the complaint filed by the appellant was wrongly quashed by
the High Court. The general allegations made in the complaint
may he summarised as follow~:-
(!) AIR 1982 Punjab 372.
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SUPREME COURT REPORTS
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The complainant was married to Suraj Kumar, Accused No. I
(respondent) on 4.2.72 at Ludhiana according to Hindu rites and
customs in the presence of respectable persons. Accused No.2
was the father and accmed Nos.3 to 5 were brothers and No.6
was brother-in-law of accused No.i It is further alleged that all
the accused attended and actively participated in the marriage
of the complainant and demanded dowry. The most important
allegation made by the appellant was that her parents and relatives
gave by way of dowry articles wroth Rs. 60,000/- inclusive of gold
ornaments, clothes and other things which were entrusted to aocus '"
Nos.I to 6 on 5,2.72 which were taken into
p~ssession b; tilem.
Soon after the marriage, accused No. 1 started harassing, teasing
and beating the complainant and ultimately turned her out alongwith her children sometime in the year 1977. It was ~vered in
para 4 of the complaint that accused never returned the articles to
her, the relevant portion of the allegations may be extracted thus:-
"The articles above-mentioned were never given by
the accused to the complainant for her use and possession of
the same was illegally, dishonestly and mala fidely retained
by the accused in order to make a wrongful gain to themselves and wrongful loss to the complainant.
The accused refused to give the entrusted articles
of dowry, which were the stridhan of the complainant. On
10.2;1981 when the accused Nos. 1 to 5 came to Ludhiana
to attend the proceeding u/s 125 Cr.P.C., filed by the
complainant in the Court of Shri S.S. Tiwana, they were
presuaded by the parents of the complainant to send the
articles entrusted to them at the time of marriage but
they gave flat refusal to its notice which was served upon
tho accused NoJ which was dated 17.12.80, but to no
effect. The accused have thus
dishonestly used and
converted the articles aforementioned to their own use, who
are still in possession of the same in violation of the direc·
tion given by the parents of complainant. The parents of
the complainant directed the accused at the time of marriage to give the articles to the complainant for her use, in
the presence of the aforesaicj persons, but the accused have
not done the needful of the demand and have thus committed criminal breach of trust punishable u/s 406 !PC."
PRATIBHA RANI v. SURAJ KUMAR (Fazai Ali, i.)
26:3
A perusal of the allegations made fn the complaint undoubtedly makes out a positive case of the accused having dishonestly
misappropriated
the articles handed over to them in a fiduciary
capacity. To charcterise such an entrustment as a joint custody
or property given to the husband and the parents is wholly
unintelligible to us.
All the ingredients of an offence under s.405
IPC were pleaded and a prima facie case for summoning the
accused was made out.
In such circumstances, the complainant
should have been gi vell an opportunity by the High Court to prove
her case rather than quashing the complaint. Such an exercise
of jurisdiction under s.482 Cr .P.C. is totally unwarranted by law.
We might also mention that alongwith lhe complaint, a list of
valuable articles had also been given, the relevant portion of which
may be extracted thus;
I. "Jewellery
1.
Nine complete gold sets
2.
One complete diamond set
,3. Three gold rings
4.
Two golden Bahi (llaju Band)
5.
One golden chain
6.
One shingar patti with golden tikka
7.
One golden oath (Nose ring)
8.
Twelve golden bangles
II. Silver articles
1.
Six glasses and one jug
2. Two surma danies
3.
One tagari
4.
Two payals,
III. Clothes
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SUPREME COURT REPORTS
(1985] 3 S.C.R.
coats, blouses, nighties, shawls, sweaters, night suits,
gowns and woollen coat etc., six complete beds with
sheets, etc."
A perusal of the list reveals that so far as the jewellery and
clothes, blouses, nighties and gowns are concerned they could be
used only by the wife and were her stridhan.
By no stretc':i of
imagination could it be said that the ornaments and sarees and
other articles mentioned above could also be used by the husband.
If, therefore, despite demands these articles were refused to be
returned to the wife by the husband and bis parents, it amounted
to an offence of criminal breach of trust. In mentioning the articles in the list, we have omitted furniture and utensils which
though also belonged to the complainant yet there is some room
for saying that these were meant for joint use of the husband
and wife.
Thus, the facts mentioned in the complaint taken at their
face value reveal a clear allegation that the stridhan property of
the appellant was entrusted to the husband who refused to return
the same to her.
Some courts were of the opinion that in view of s. 27 of the
Hindu Marriage Act and s. 14 of the Hindu Succession act, the
concept of stridhan property of a woman was completely abolished. For instance, the Punjab & Haryana High Court in a
case reported in Surindra Mohan etc. v. Smt. Kiran Saini(1J held
thus :
"That under the present law on claim can be made on
the basis of istridhan, as it has now been completely
abolished and cannot avail against statute which makes
it the joint property of the parties."
We. are of the opinion that this view of the High Court is
not legally sustainable because neither of the two Acts, referred
to above, go to the extent of providing that the claim of a woman
on the basis of stridhan is completely abolished.
All that the
two sections, mentioned above, provide is that ifthe husband re-
(I) 1977 Chandigarh Law Report 212
PRATIBHA RANI I', SURA) KUMAR (Fazal Ali, J.)
205
fuses to return the stridhan property of his wife, it will be open
to the wife to recover the same by properly constituted suit. The
sections nowhere provide that the concept of stridhan is abolished
or that a remedy under the criminal Jaw for breach of trust is
taken away.
In a later decision in phai Sher Singh & Anr. v. Smt.
Virinder Kaurc'>. it was very rightly pointed out by the same High
Court that s. 27 of the Marriage Act merely provides an alternate remedy to the wife to bring a properly constituted suit in
respect of the stridhan property which the husband refused to
return. Thus, it is clear that s. 27 merely provides for an alternate remedy and does not touch or affect in any way the Criminal
liabiiity of the husband in case it is proved that he has dishonestly
misappropriated that stridhan of his wife. It canno.t also be
spelt out from any textbook or the sastric law of the Hindus that
the two Acts mentioned above take away the stridhan right of a
woman-at the most these Acts merely modify the concept of
stridban. It may be useful to refer to certain pertinent observations in the aforesaid case.
"The aforementioned passage shows that a female
has an absolute right to use her stridhan in any way
she likes and even if her husband can take this property
at the time of distress, this right is personal to him, The
allegations made in the instant complaint are not that the
husband of the respondent has placed her ornaments and
jewellery etc. out of her way.
What has been alleged
therein is that the petitioners who are the parents-in-Jaw
of the respondent have converted the ornaments and
clothes, etc. presented to the respondent at the time of
her marriage to their own use.
Section 27 of the Hin du Marriage Act empowers
a Court while deciding a matrimonial dispute to also pass
a decree in respct of property which may jointly belong
to both the
husband and the wife. This section at
best provides a "civil remedy to an aggrieved wife and
does not in any way take away her right· to file a crimi-
\I) 1979 CrL L.J. 49',
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SUPREME COURT REPORTS
1985] 3 S.C.R.
A
nal complaint if the property belonging to her is criminally misappropriated by her husband.''
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In these circumstances, the decision reported in 1977 Chandigrah Law Reporter 212 can no longer be considered good law.
Even in Vinod Kumar's case (supra) the Full Bench reiterated the
view that s. 27 in no way abolishes stridhan but expressly recognises the property exclusively owned by the wife, In this connection, the Court observed thus :
"The express words of the prov1s1on refer to property
'which may belong jointly to both the husband and the
wife'. It nowhere says that all the wife's property belongs jointly to the couple or that Stridhan is abolished
and she cannot be the exclusive owaer 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 ............ Equally no other provision
in the Hindu Marria5e Act could be pointed out which
erodes the concept of Stridhan or in anyway incapacitates
the Hindu wife to hold property as an exclusive owner."
The sheet-anchor of the arguments of the counsel for the
respondents-which is based on the decision of the Punjab &
Haryana High Court in Vinod Kumar's case-is that the moment
a woman after Marriage enters her matrimonial home, her stridhan property becomes a joint property of both the spouses and
the question of application of s. 406 l.P.C is completely eliminated.