@ Subramaniam Vs. State of A.P.  Insc 853 (29 April 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 867 OF 2009
(Arising out of SLP (Crl.) No. 4496 of 2006) Koppisetti Subbharao @ Subramaniam
...Appellant Versus State of A.P. ...Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the order passed by a learned Single Judge of the Andhra
Pradesh High Court dismissing the petition filed under Section 482 of the Code
of Criminal Procedure, 1973 (in short the `Code').
The prayer in the
petition was to quash the proceedings in C.C.No. 440 of 1999 and CC No.325 of
2001 on the file of 3rd Additional Judicial First Class Magistrate, Kakinada.
facts in a nutshell are as follows:
A case was registered
against three accused persons including the present appellant for alleged
commission of offence punishable under Section 498-A read with Section 34 of
the Indian Penal Code, 1860 (in short the `IPC'). Initially, the presence of
A-1 could not be secured and therefore court separated the case against A-1 and
proceeded the trial against A-2 and A-3. In the said case A-2 and A-3 were
acquitted. Thereafter, the present application was filed before the High Court
taking the stand that the complainant was not be the legally wedded wife of the
appellant as he was already married and, therefore, Section 498-A has no
application to the facts of the case.
The High Court
dismissed the application on the ground that disputed questions of fact are
counsel for the appellant submitted that in view of the acquittal of the
co-accused persons the proceedings against the appellant should not proceed.
counsel for the respondent-State on the other hand submitted that whether there
was valid legal marriage subsisting qua the appellant is a question of fact
and, therefore, the High Court was justified in dismissing the application
under Section 482 of Code.
to a marriage tying nuptial knot are supposed to bring about the union of
souls. It creates a new relationship of love, affection, care and concern
between the husband and wife. According to Hindu Vedic philosophy it is sanskar
- a sacrament; one of the sixteen important sacraments essential to be taken
during one's lifetime. There may be physical union as a result of marriage for
procreation to perpetuate the lineal progeny for ensuring spiritual salvation
and performance of religious rites, but what is essentially contemplated is
union of two souls. Marriage is considered to be a junction of three important
duties i.e. social, religious and spiritual. A question of intricate complexity
arises in this appeal where factual scenario has to be also considered.
of the appellant was that it was required to be shown that the victim-woman was
the legally married wife of the accused. Since victim claim to have married
during the lifetime of the appellant, prosecution has failed to establish that
it stood dissolved legally. Prosecution having failed to bring any material
record in that regard, Section 498-A has no application.
marriages contracted between Hindus are now statutorily made monogamous. A
sanctity has been attributed to the first marriage as being that which was
contracted from a sense of duty and not merely for personal gratification. When
the fact of celebration of marriage is established it will be presumed in the
absence of evidence to the contrary that all the rites and ceremonies to
constitute a valid marriage have been gone through. As was said as long as 1869
"when once you get to this, namely, that there was a marriage in fact,
there would be a presumption in favour of there being a marriage in law".
(See Inderun Valungypooly v. Ramaswamy (1869 (13) MIA 141.) So also where a man
and woman have been proved to have lived together as husband and wife, the law
will presume, until contrary be clearly proved, that they were living together
in consequence of a valid marriage and not in a state of concubinage. (See
Sastry Velaider v. Sembicutty (1881 (6) AC 364) following De Thoren v. Attorney
General (1876 (1) AC 686) and Piers v. Piers (L.R.(2) H.L.C. 331). Where a
marriage is accepted as valid by relations, friends and others for a long time
it cannot be declared as invalid. In Lokhande's case (supra), it was observed
by this Court "The bare fact that man and woman live as husband and wife
it does not at any rate normally give them the status of husband and wife even
though they may hold themselves before the society as husband and wife and the
society treats them as husband and wife". These observations were cited
with approval in Surjit Kaur v. Garja Singh and Ors. (AIR 1994 SC 135). At
first blush, it would seem that these observations run counter to the long
catena of decisions noted above. But on closer examination of the facts of those
cases it is clear that this Court did not differ from the views expressed in
the earlier cases. In Lokhande's case (supra), this Court was dealing with a
case of prosecution for bigamy. The prosecution had contended that second
marriage was gandharva form of marriage and no ceremonies were necessary and,
therefore, did not allege or prove that any customary ceremonies were
performed. In that background, it was held that even in the case of gandharva
marriages, ceremonies were required to be performed. To constitute bigamy under
Section 494 IPC, the second marriage had to be a valid marriage duly solemnized
and as it was not so solemnized it was not a marriage at all in the eye of law
and was therefore invalid. The essential ingredient constituting the offence of
Bigamy is the "marrying" again during the lifetime of husband or wife
in contrast to the ingredients of Section 498A 5 which, among other things,
envisage subjecting the woman concerned to cruelty. The thrust is mainly
"marrying" in Section 494 IPC as against subjecting of the woman to
cruelty in Section 498A. Likewise, the thrust of the offence under Section 304B
is also the "Dowry Death". Consequently, the evil sought to be curbed
are distinct and separate from the persons committing the offending acts and
there could be no impediment in law to liberally construe the words or
expressions relating to the persons committing the offence so as to rope in not
only those validly married but also any one who has undergone some or other
form of marriage and thereby assumed for himself the position of husband to
live, cohabitate and exercise authority as such husband over another woman. In
Surjit Singh's case (supra) the stand was that the marriage was in Karewa form.
This Court held that under the custom of Karewa marriage, the widow could marry
the brother or a relation of the husband. But in that case the man was a
Further even under
that form of marriage certain ceremonies were required to be performed which
were not proved. Dealing with the contention relating to presumption, reference
was made to Lokhande's case (supra). As the parties had set up a particular
form of marriage which turned out to be invalid due to absence of proof of
having undergone the necessary ceremonies related to such form of marriage, the
presumption of long cohabitation could not be invoked.
presumption may not be available in a case, for example, where the man was
already married or there was any insurmountable obstacle to the marriage, but
presumption arises if there is strong evidence by documents and conduct. Above
position has been highlighted in Mayne's Hindu Law and Usage.
question as to who would be covered by the expression `husband' for attracting
Section 498A does present problems. Etymologically, in terms of the definition
of "husband" and "marriage" as given in the various Law
Lexicons and dictionaries - the existence of a valid marriage may appear to be
a sine qua non for applying a penal provision. In Smt. Yamunabai Anantrao Adhav
v. Anantrao Shivram Adhav and Anr. (AIR 1988 SC 644) a woman claimed
maintenance under Section 125 of the Code of Criminal Procedure, 1973 (in short
the `Cr.P.C.'). This Court applied the provision of the Marriage Act and
pointed out that same was a law which held the field after 1955, when it was
enacted and Section 5 lays down that for a lawful marriage the necessary
condition that neither party should have a spouse living at the time of the
marriage is essential and marriage in contravention of this condition therefore
is null and void. The concept of marriage to constitute the relationship of
`husband' and `wife' may require strict interpretation where claims for civil
rights, right to property etc. may follow or flow and a liberal approach and
different perception cannot be an anatheme when the question of curbing a
social evil is concerned.
question of origin of dowry or dos has been the subject of study by
theoreticians. Mayne says that it was a contribution by the wife's family, or
by the wife herself, intended to assist the husband in bearing the expenses of
the conjugal household (Mayne on "Early History of Institution" page
319). While dos or dowry previously belonged to husband, his right over it
being unrestricted, all the property of the wife not included in the dowry was
called her "paraphra" and was her absolute property over which her
husband had no control. (See Banerjee on `Marriage and Stridhan' 345) In
Pratibha Rani v. Suraj Kumar and Anr. (AIR 1985 SC 628) after tracing out the
history of stridhan it was held that wife is the absolute owner of such
property under Section 27 of the Marriage Act. Property presented to the
husband and wife at or about the time of marriage belongs to them jointly.
Dowry Prohibition Act, 1961 (in short the `Dowry Act') was introduced to combat
the ever-increasing menace of dowry. The avowed object is prohibition on giving
and taking of dowry. Section 2 defines "dowry". Section 4 provides
the penalty for demanding "dowry", while Section 5 is a significant
provision making agreement for giving or taking dowry to be void. Section 6 is
another provision which reflects statutory concern for prevention of dowry, be
it taking or giving. It is provided therein that pending transfer of the dowry,
the person who received the dowry holds it in trust for benefit of the woman.
Amendment to Section 2 by Amendment Act 43 of 1986 has made the provision clear
and demand made after the marriage is a part of dowry, in view of addition of
words "at or before or after the marriage". (See State of H.P. v.
Nikku Ram (AIR 1996 SC 67).
definition of the term `dowry' under Section 2 of the Dowry Act shows that any
property or valuable security given or "agreed to be given" either
directly or indirectly by one party to the marriage to the other party to the
marriage "at or before or after the marriage" as a
"consideration for the marriage of the said parties" would become
`dowry' punishable under the Dowry Act. Property or valuable security so as to
constitute `dowry' within the meaning of the Dowry Act must, therefore, be
given or demanded "as consideration for the marriage."
4 of the Dowry Act aims at discouraging the very "demand"
as a `consideration for the marriage' between the parties thereto and lays down
that if any person after the commencement of the Act, "demands",
directly or indirectly, from the parents or guardians of a `bride' or
`bridegroom', as the case may be, any `dowry' he shall be punishable with
imprisonment or with fine or within both. Thus, it would be seen that Section 4
makes punishable the very demand of property or valuable security as a
consideration for marriage, which demand, if satisfied, would constitute the
graver offence under Section 3 of the Act punishable with higher imprisonment
and with fine which shall not be less than fifteen thousand rupees or the
amount of the value of such dowry whichever is more.
definition of the expression `dowry' contained in Section 2 of the Dowry Act
cannot be confined merely to be `demand' of money, property or valuable
security' made at or after the performance of marriage. The legislature has in
its wisdom while providing for the definition of `dowry' emphasized that any
money, property or valuable security given, as a consideration for marriage,
`before, at or after' the marriage would be covered by the expression `dowry'
and this definition as contained in Section 2 has to be read wherever the expression
`dowry' occurs in the Act.
Meaning of the
expression `dowry' as commonly used and understood is different than the
peculiar definition thereof under the Act. Under Section 4, mere demand of
`dowry' is sufficient to bring home the offence to an accused. Thus, any
`demand' of money, property or valuable security made from the bride or her
parents or other relatives by the bridegroom or his parents or other relatives
or vice-versa would fall within the mischief of `dowry' under the Act where such
demand is not properly referable to any legally recognized claim and is
relatable only to the consideration of marriage. Marriage in this context would
include a proposed marriage also more particularly where the non-fulfillment of
the "demand of dowry" leads to the ugly consequence of the marriage
not taking place at all. The expression "dowry" under the Dowry Act
has to be interpreted in the sense which the statute wishes to attribute to it.
The definition given in the statute is the determinative factor. The Dowry Act
is a piece of social legislation which aims to check the growing menace of the
social evil of dowry and it makes punishable not only the actual receiving of
dowry but also the very demand of dowry made before or at the time or after the
marriage where such demand is referable to the consideration of marriage. Dowry
as a quid pro quo for marriage is prohibited and not the giving of traditional
presents to the bride or the bridegroom by friends and relatives. Thus,
voluntary presents given at or before or after the marriage to the bride or the
bridegroom, as the case may be, of a traditional nature, which are given not as
a consideration for marriage but out of love, affection or regard, would not
fall within the mischief of the expression `dowry' made punishable under the
Hindus recognised 8 forms of marriage, out of which four were approved, namely,
Brahma, Daiva, Arsha and Prajapatya. The dis-approved forms of marriages were
Gandharva, Asura, Rakshasa and Paisacha. In the Brahma form of marriage, some
amounts had to be spent by father/guardian, as the case may be, to go
ultimately to the spouses. The origin of dowry may be traced to this amount
either in cash or kind.
concept of "dowry" is intermittently linked with a marriage and the
provisions of the Dowry Act apply in relation to marriages. If the legality of
the marriage itself is an issue further legalistic problems do arise. If the
validity of the marriage itself is under legal scrutiny, the demand of dowry in
respect of an invalid marriage would be legally not recognizable. Even then the
purpose for which Sections 498A and 304B-IPC and Section 113B of the Indian
Evidence Act, 1872 (for short the `Evidence Act') were introduced cannot be
lost sight of. Legislations enacted with some policy to curb and alleviate some
public evil rampant in society and effectuate a definite public purpose or
benefit positively requires to be interpreted with certain element of realism
too and not merely pedantically or hyper technically. The obvious objective was
to prevent harassment to a woman who enters into a marital relationship with a
person and later on, becomes a victim of the greed for money. Can a person who
enters into a marital arrangement be allowed to take a shelter behind a
smokescreen to contend that since there was no valid marriage the question of
dowry does not arise? Such legalistic niceties would destroy the purpose of the
provisions. Such hairsplitting legalistic approach would encourage harassment to
a woman over demand of money.
`dowry' does not have any magic charm written over it. It is just a label given
to demand of money in relation to marital relationship.
intent is clear from the fact that it is not only the husband but also his
relations who are covered by Section 498A. Legislature has taken care of
children born from invalid marriages. Section 16 of the Marriage Act deals with
legitimacy of children of void and voidable marriages. Can it be said that
legislature which was conscious of the social stigma attached to children of
void and voidable marriages closed eyes to plight of a woman who unknowingly or
unconscious of the legal consequences entered into the marital relationship. If
such restricted meaning is given, it would not further the legislative intent.
On the contrary, it would be against the concern shown by the legislature for
avoiding harassment to a woman over demand of money in relation to marriages.
The first exception to Section 494 has also some relevance. According to it,
the offence of bigamy will not apply to "any person whose marriage with
such husband or wife has been declared void by a Court of competent
jurisdiction". It would be appropriate to construe the expression
`husband' to cover a person who enters into marital relationship and under the
colour of such proclaimed or feigned status of husband subjects the woman
concerned to cruelty or coerce her in any manner or for any of the purposes
enumerated in the relevant provisions - Sections 304B/498A, whatever be the
legitimacy of the marriage itself for the limited purpose of Sections 498A and
304B IPC. Such an interpretation, known and recognized as purposive
construction has to come into play in a case of this nature. The absence of a
definition of `husband' to specifically include such persons who contract
marriages ostensibly and cohabitate with such woman, in the purported exercise
of his role and status as `husband' is no ground to exclude them from the
purview of Section 304B or 498A IPC, viewed in the context of the very object
and aim of the legislations introducing those provisions.
Chief Justice of A.P. v. L.V.A. Dixitulu (1979 (2) SCC 34), this Court
principle of interpretation is that a constitutional or statutory provision
should be construed "according to the intent of they that made it"
Normally, such intent
is gathered from the language of the provision. If the language or the
phraseology employed by the legislation is precise and plain and thus by itself
proclaims the legislative intent in unequivocal terms, the same must be given
effect to, regardless of the consequences that may follow. But if the words
used in the provision are imprecise, protean or evocative or can reasonably
bear meanings more than one, the rule of strict grammatical construction ceases
to be a sure guide to reach at the real legislative intent. In such a case, in
order to ascertain the true meaning of the terms and phrases employed, it is
legitimate for the Court to go beyond the arid literal confines of the
provision and to call in aid other well-recognised rules of construction, such
as its legislative history, the basic scheme and framework of the statute as a
whole, each portion throwing light, on the rest, the purpose of the
legislation, the object sought to be achieved, and the consequences that may
flow from the adoption of one in preference to the other possible
Kehar Singh v. State (Delhi Admn.) (AIR 1988 SC 1883), this Court held:
"....But, if the
words are ambiguous, uncertain or any doubt arises as to the terms employed, we
deem it as out paramount duty to put upon the language of the legislature
rational meaning. We then examine every word, every section and every provision.
We examine the Act as a whole. We examine the necessity which gave rise to the
Act. We look at the mischiefs which the legislature intended to redress. We
look at the whole situation and not just one-to-one relation. We will not
consider any provision out of the framework of the statute. We will not view
the provisions as abstract principles separated from the motive force behind.
We will consider the provisions in the circumstances to 15 which they owe
their origin. We will consider the provisions to ensure coherence and
consistency within the law as a whole and to avoid undesirable consequences.
District Mining Officer v. Tata Iron & Steel Co. (JT 2001 (6) SC 183), this
is primarily directed to the problems before the legislature based on
information derived from past and present experience. It may also be designed
by use of general words to cover similar problems arising in future. But, from
the very nature of thing, it is impossible to anticipate fully in the varied
situations arising in future in which the application of the legislation in
hand may be called for the words chosen to communicate such indefinite
referents are bound to be in many cases, lacking in charity and precision and
thus giving rise to controversial questions of construction. The process of
construction combines both literal and purposive approaches. In other words,
the legislative intention i.e. the true or legal meaning of an enactment is
derived by considering the meaning of the words used in the enactment in the
light of any discernible purpose or object which comprehends the mischief and
its remedy to which the enactment is directed".
suppression of mischief rule made immortal in Heydon's case (3 Co Rep 7a 76 ER
637) can be pressed into service. With a view to suppress the mischief which
would have surfaced had the literal rule been allowed to cover the field, the
Heydon's Rule has been applied by this Court in a number of cases, e.g. Bengal
Immunity Co. Ltd., v. State of Bihar and Ors. (AIR 1955 SC 661), Goodyear India
Ltd. v. State of Haryana and Anr. (AIR 1990 SC 781), P.E.K. Kalliani Amma and
Ors. v. K. Devi and Ors. (AIR 1996 SC 1963) and Ameer Trading Corporation Ltd.,
v. Shapporji Data Processing Ltd. (2003 (8) Supreme 634).
Reserve Bank of India etc. etc. v. Peerless General Finance and Investment Co.
Ltd. and others etc. etc. (1987 (1) SCC 424) while dealing with the question of
interpretation of a statute, this Court observed:
must depend on the text and the context. They are the bases of interpretation.
One may well say if the text is the texture, context is what gives the colour.
Neither can be ignored. Both are important.
is best which makes the textual interpretation match the contextual. A statue
is best interpreted when we know why it was enacted. With this knowledge, the
statute must be read, first as a whole and then section by section, clause by
clause, phrase by phrase and word by word. If a statute is looked at in the
context of its enactment, with the glasses of the statute- maker, provided by
such context, its scheme, the sections, clauses, phrases and words may take
colour and appear different than when the statute is looked at without the
glasses provided by the context. With these glasses we must look at the Act as
a whole and discover what each section, each clause, each phrase and each word
is meant and designed to say as to fit into the scheme of the entire Act. No
part of a statute and no word of a statute can be construed in isolation.
Statutes have to be construed so that every word has a place and everything is
in its place."
Seaford Court Estates Ltd. v. Asher (1949) 2 All ER 155 (CA), Lord Denning,
advised a purposive approach to the interpretation of a word used in a statute
language is not an instrument of mathematical precision. Our literature would
be much the poorer if it were. This is where the draftsmen of Acts of
Parliament have often been unfairly criticised. A Judge, believing himself to
be fettered by the supposed rule that he must look to the language and nothing
else, laments that the draftsmen have not provided for this or that, or have
been guilty of some or other ambiguity. It would certainly save the Judges
trouble if Acts of Parliament were drafted with divine prescience and perfect
clarity. In the absence of it, when a defect appears, a Judge cannot simply
fold his hands and blame the draftsman. He must set to work on the constructive
task of finding the intention of Parliament, and he must do this not only from
the language of the statute, but also from a consideration of the social
conditions which gave rise to it and of the mischief which it was passed to
remedy, and then he must supplement the written word so as to give `force and
life' to the intention of the legislature......A Judge should ask himself the
question how, if the makers of the Act had themselves come across this ruck in
this texture of it, they would have straightened it out? He must then do so as
they would have doe. A Judge must not alter the material of which the Act is
woven, but he can and should iron out the creases." (underlined for
emphasis) 24. These aspects were highlighted by this Court in S. Gopal Reddy v.
State of A.P. (1996 (4) SCC 596) and Reema Aggarwal v. Anupam (2004 (3) SCC
High Court was justified in holding that disputed questions of fact are
involved and the application under Section 482 of Code has been rightly
rejected. We do not find any scope for interference with the order of the High
Court. However, we make it clear that we have not expressed any opinion on the
merits of the case.
appeal is dismissed.
(Dr. ARIJIT PASAYAT)