L. V. Jadhav Vs. Shankarrao Abasaheb
Pawar & Ors [1983] INSC 110 (30 August 1983)
VARADARAJAN, A. (J) VARADARAJAN, A. (J)
FAZALALI, SYED MURTAZA THAKKAR, M.P. (J)
CITATION: 1983 AIR 1219 1983 SCR (3) 762 1983
SCC (4) 231 1983 SCALE (2)175
CITATOR INFO :
R 1985 SC 628 (54) RF 1991 SC 792 (4) RF 1992
SC 604 (106)
ACT:
Dowry Prohibition Act, 1961-Sections 2 and 4
scope of- Demand for payment of money made during marriage ceremonies- Demand
pressed later- Whether constitutes an offence under section 4.
High Court-Inherent power-When should be
exercised.
HEADNOTE:
In a complaint filed before the Judicial
Magistrate the appellant (bride's father) alleged that during the marriage
ceremonies the first respondent (bride groom's father) had demanded a large sum
of money to be paid to him as dowry and threatened that if the appellant did
not pay the sum he would stop further marriage ceremonies, that even after his
daughter. had gone to the first respondent's house after the marriage the
respondent's continued to demand payment of money and that this constituted an
offence under section 4 of the Dowry Prohibition Act, 1961.
After verifying the complaint the Judicial
Magistrate issued processes to the respondents and sent summons is to the
United States where the respondents were, Allowing the respondent's application
impugning the order of the Magistrate issuing summonses, the High Court held
that since there was no allegation in the complaint that the respondents first
demanded the dowry and the appellant had agreed to pay it and the respondents
thereafter demanded it again, no offence under section 4 was made out.
In the appeal to this Court it was contended
on- behalf of the appellant that a mere demand for dowry, even if there was no
consent to comply with that demand, would constitute an offence under section 4
of the Act.
Allowing the appeal,
HELD: From a reading of section 2 of the Act,
it would appear that consent to comply with demand for payment of any property
or valuable securities as 'consideration' for the marriage would alone make the
property or valuable security given or agreed to be given directly or
indirectly "dowry" 763 within the meaning of the Act. But having
regard to the dominant purpose of the Act the entries definition of
"dowry" should not be imported into section 4. The dictionary meaning
of the word 'bride' is a woman about to marry or has just been married and a
`bridegroom' is a man who is about to marry or has just been married. If the
literal-meaning of these words is given to the words bride and bridegroom used
in the section any property or valuable security demanded and contented to be
given before the woman had become a bride or the man had become a bridegroom
may not be dowry. The avowed object of the Act being to eradicate the evil of
demanding dowry, a liberal construction has to be given to the word
"dowry" to mean any property or valuable security which if consented
to be given on demand would be dowry within the meaning of section 2.
There is, therefore, no warrant for the
respondents' contention that initial demand for dowry would not constitute an
offence but that it would be an offence only when the demand was made again
after the party on whom it was made had agreed to comply with it. [771 B-H; 722
A] Inder Sain and Another v. The State, 1981 Crl. L.J. 1116 approved.
The inherent power of the High Court must be
exercised sparingly and with circumspection when there is reason to believe
that the process of law is being misused to harass a citizen. In this case the
High Court should have refused to involve its inherent power at the threshold
to quash the proceedings.
[772 B-C]
CAIMINAL APPELLATE JISRISDICTION: Criminal
Appeal No 494 of 1982.
Appeal by Special Leave from the Judgment and
order dated the 22nd December, 1981 of the Bombay High Court in Criminal Appln.
No. 283 of 1981.
Y. S. Chitale. V. N. Ganpule, Sirish Gupta
and Mrs. V.D. Khanna for the Appellant.
V. S. Desai and G. B. Sathe for the
Respondent.
P. G. Gokhale and M. N. Shroff for the State
of Maharashtra.
The Judgment of the Court was delivered by
VARADARAJAN, J. This appeal by special leave is directed against the judgment
of a Division Bench of the Bombay High Court in Criminal Application No. 283 of
1981, quashing the proceedings in Criminal Case No. 1634 of 1980 on the file of
the Judicial Magistrate, First Class (Anti Corruption), Pune. The application
in the High Court was filed by the respondents in this appeal, who are the 764
two accused in that criminal case, for quashing the criminal proceedings as
well as the order of the Judicial Magistrate, issuing processes against them in
that case.
The appellant L. V. Jadhav was the first
respondent while State of Maharashtra was the second respondent in the
application before the High Court. The first respondent Shankarrao Abasaheb
Pawar is the father of the second respondent Pradeep Shankarra Pawar. There was
a proposal to get the appellant's daughter Anita, a Science Graduate, married
to the second respondent, a double Graduate in Engineering, working in the
United States. After Anita and the second respondent approved each other there
was an engagement ceremony on 12.6.1978 at Pune and the marriage was performed
at that place on 19.6.1979 after the first respondent came from the United
States in May 1979.
According to the appellant's complaint, when
the marriage ceremonies were in progress on 19.6.1979, both the respondents
demanded a cash of Rs. 50,000 from the appellant in the presence of respectable
persons under the pretext that the money was required for the transport of
Anita and the second respondents to the United States. The respondent told the
appellant that if he did not comply with that demand by way of dowry further ceremonies
monies would not be completed. Some respectable persons who were present at
that time persuade the respondents to complete the marriage ceremonies and
formalities and thereafter the marriage ceremonies were over. The second
respondent alone went to the United States in July 1979 as the passport and
visa for Anita had to be arranged which was done some time later while Anita
was staying in the house of the first respondent. Anita was not sent to the
United States and the respondents continued to persist in their demand for the
money when she was staying in the first respondent's house.
The appellant filed a complaint before the
Judicial Magistrate, First Class on 5.6.1980 against both the respondents,
alleging that they had committed an offence under s. 4 of the Dowry Prohibition
Act, 1961 by demanding the sum of Rs. 50,000 as mentioned above. This was done
after the appellant had obtained the necessary sanction required by the proviso
to s 4 of the Act. The Judicial Magistrate verified the complaint and issued
processes to the respondents and sent summonses to the United States where the
first respondent was staying with the second respondent at that time.
765 The respondents challenged the
Magistrate's order issuing summonses to them by filing their application in the
High Court. The learned Single Judge before whom the application originally
came up for consideration referred to a Division Bench. The contention of the
learned counsel for the respondents before the High Court was that even if the
allegations made in the appellant's complaints were true no offence under s. 4
of the Act is disclosed, whereas for the appellant it was contended before the
High Court that the aforesaid demand for Rs. 50,000 would constitute an offence
under s. 4.
Reading the definition of "dowry"
given in s. 2 of the Act into s. 4, the learned judges held that for bringing a
case under s. 4 of the Act, there must be a demand for dowry as such, that is,
for any property agreed to be given as consideration for the marriage, and that
as there is no allegation in the complaint that the appellant had agreed to pay
the sum of Rs. 50,000 and the respondents thereafter demanded the same no
offence under s. 4 of the Act is disclosed in the complaint. In that view the
learned judges allowed the respondent's application and quashed the proceedings
in the appellants’ complaint and the Magistrate's order issuing the processes
to the respondents.
Hence this appeal by special leave.
The question for consideration is whether the
allegation made in the appellant's complaint that there was a demand by the
respondents when the ceremonies of the marriage of Anita with the second
respondent were in progress, for the payment of Rs. 50,000 to be made by the
appellant on pain of the marriage ceremonies not being completed if the demand
was not complied with under the pretext that the said amount was required for
the passage of Anita and the second respondent to the United States discloses
an offence under s. 4 of the Act. It would be necessary to extract the
following relevant ss. 2 to 5 and 8 of the Act for easy reference in order to
consider the question:
"2. 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 766 (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 mahrashtra 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 30 of the Indian Penal Code.
3. If any person after the commencement of
this Act gives or takes or abets the giving or taking of dowry, he shall be
punishable with imprisonment which may extend to six months, or with fine which
may extend to five thousand rupees, or with both.
4. If any person after the commencement of
this Act, demands, directly or indirectly, from the parents or guardian of a
bride or bridegroom, as the case may be, any dowry, he shall be punishable with
imprisonment which may extend to six months, or with fine which may extend to
five thousand rupees, or with both;
Provided that no court shall take cognizance
of any offence under this section except with the previous sanction of the
State Government or of such officer as the State Government may, by general or
special order, specify in this behalf.
5. Any agreement for the giving or taking of
dowry shall be void.
6. Every offence under this Act shall be non-
cognizable, bailable and non-compoundable." According to the appellant's
complaint, when the marriage of his daughter Anita and the second respondent,
the son of the first respondent, was in progress on 19.6.1979, both the
respondents demanded from him cash of Rs. 50, 000 in the presence of
respectable persons under the pretext that the amount was required for the
passage or transport of Anita and the second respondent to the United States
where the second respondent was employed at that time and they told him that if
he did not comply with their demand by way of dowry further ceremonies in the
marriage would not be completed. It is further alleged that some respectable
persons who were present at that time persuaded the respondents to complete the
marriage ceremonies and formalities and thereafter the marriage ceremonies were
completed and that subsequently the second respondent went to the United States
in July 1979 alone because the passport and visa of Anita had to be arranged
which was done some time later while Anita was staying in the house of the
first respondent, and the respondents continued to persist in their demand for
the money when Anita was saying in the house of the first respondent without
being sent to the United States. Mr. V. S. Desai, Senior Advocate, appearing
for the respondents invited our attention to the decision of a learned Single
Judge of the Delhi High Court in Inder Sain and another v. The State(1) and
also of another Single Judge of the Patna High Court in Kashi Prasad and others
v. State of Bihar and others(2) and submitted that the demand for Rs. 50,000
alleged in the complaint would not constitute an offence under s. 4 of the Act
as there is no allegation in tile complaint that the appellant consented to pay
the amount and that without consent to the payment the sum of Rs. 50,000
alleged to have been demanded does not become dowry within the meaning of s. 2
of the Act which defines "dowry" as meaning "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;
768 at or before or after the marriage as
consideration for the marriage of the said parties, but does not include dower
or mahr in the case of persons to whom the Muslim Personal Law (shariat)
applies." Section 2 contains two explanations with which we are not
concerned in this case. In the Delhi High Court's decision the question for
consideration was what constituted "consideration" for marriage
within the meaning of s. 2 of the Act, and Luthra, J, has observed:
"Thus the definition of the word
"consideration" leads to the conclusion that the property or valuable
security should be demanded or given whether in the past, present or future for
bringing out solemnization of marriage. After the marriage, giving a property
or valuable security by the parents of the bride cannot constitute a
"consideration" for the marriage unless it was agreed at the time of
or before the marriage that such property or valuable security would be given
in future." The complaint i n that case did not spell out that the
articles mentioned in the same were given after the marriage as a result of
some agreement for the purpose of the marriage. The allegations in the
complaint jndicated that those articles were given after the marriage with a
view to have smooth sailing and continuance of good material relations. The
learned Judge, therefore, held that the articles given in those circumstances
did not constitute dowry within the meaning of s. 2 of the Act. We think that
the learned judge is right in holding so, and that it is desirable that even
such a demand should be prohibited and made punishable in law.
We are concerned in the present case with a
complaint in which it has been alleged that the demand for the sum of Rs.
50,000 as dowry was made when the marriage ceremonies between the appellant's
daughter Anita and the second respondent were in progress, by both the
respondents. under the pretext that it was required for the passage of the
parties to the marriage to the United States with a threat that if the amount was
not paid the marriage ceremonies would not be completed and that there was
demand for payment of the amount even after the marriage ceremonies were over
when Anita was staying in the house of the first respondent after the second
respondent went away alone to the United States because the, passport 769 and
visa for Anita had not been obtained by then. The decision of even the Patna
High Court relied upon by Mr. Desai relates only to what constitutes
"consideration" for the marriage within the meaning of s 2 of the
Act. On the other hand, Dr; Y.S. Chitale, Senior Advocate, appearing for the
appellant invited our attention to a decision of a Division Bench of the Bombay
High Court in Daulat Mansingh Aher v. C.R. Bansi and another(1) and submitted
that a mere demand for money as dowry for completing the marriage ceremonies on
pain of not completing the ceremonies if the money was not given is sufficient
to constitute an offence under s. 4 of the Act even though there was no consent
on the part of the appellant to comply with that demand. What appeared from the
record of the case out of which the decision of the Bombay High Court arose,
was that the accused-petitioner filed an application on 6.10.1978 raising a
contention that the Court of the Metropolitan Magistrate, Dadar, Bombay had no
jurisdiction to entertain and try the case because the accused and the
complainant were residing 'outside the jurisdiction of that Court. A contention
was also raised that the complaint was barred by limitation and was, therefore,
liable to be dismissed. However, during the arguments in the High Court it was
conceded by the learned counsel for the accused-petitioner that the complaint
was filed within the period prescribed. Therefore, the only question that arose
for consideration by the learned Judges of the Division Bench was the one
relating to the jurisdiction of the Metropolitan Magistrate, Dadar, Bombay to
entertain and inquire into the complaint. However, the learned Judges have
observed in the judgment after extracting s. 4 of the Act that "what is
made punishable under that provision is the demand itself, whether direct or
indirect, from the parents of a bride or bridegroom". The learned Judges
have further observed thus:- "On the averments made in the complaint the
demand is made by the accused by writing a letter from Wadala, Bombay-31. This
demand was made through his elder brother who is the son-in-law of the
complainant and resides at Agartala. From Agartala the said letter of demand
was forwarded by the son-in-law of the complainant to Andheri, Bombay where the
complainant is residing.
Therefore, the demand by accused was not made
at Agartala. He had only used the good offices of 770 his elder brother to
forward the letter. Instead of writing a direct letter to complainant demanding
dowry, the demand was made through the elder brother who is residing at
Agartala. Still the demand is by accused and is made from Wadala at Bombay. The
demand became complete when the complainant received the letter at Andheri,
Bombay. Hence the dowry was demanded at Bombay.
The offence was partly committed at Wadala,
Bombay, from there the dowry was demanded. It was also committed at Andheri,
Bombay, where the complainant received the demand letter. It is further alleged
by the complainant in the complaint that the marriage of Alka which was almost
settled, could not take place due to the demand of dowry made by the accused.
This consequential result or consequence of the demand also took place at
Bombay. Wadala is within the local jurisdiction of Metropolitan Magistrate,
Dadar. Letter of demand was actually sent from Wadala, Bombay. Hence, in any
case it can safely be said that offence as alleged is partly committed at
Wadala also. Though a contention was raised before the trial court that neither
accused nor complainant are residing within the jurisdic- tion of the Dadar
Court, now it is an admitted position that accused resides at Wadala.
Even if it is held that offence became
complete when complainant received letter at Andheri, Bombay, still it will be
triable by Bombay Court. Whether it is Dadar or Andheri Court will not make any
difference. On the other hand we are told that Dadar Court is nearer to the
residence of accused. The point raised is too technical and no prejudice will
be caused to the accused nor on that count it could be said that trial is
vitiated; or will result in failure of justice. Hence there is no substance in
this contention".
It appears from a reading of this judgment
that it was either not disputed before the learned Judges or that it was
presumed that a mere demand for property as consideration for the marriage
taking place would constitute an offence under s. 4 of the Act.
The Dowry Prohibition Act, 1961 is intended
to prohibit the giving or taking of dowry, and Parliament has made every
offence 771 under the Act non-compoundable by s. 8 of the Act. By s. 5 it has
been enacted that any agreement for the giving or taking of dowry shall be void.
Section 3 makes abetment of the giving or taking of dowry an offence. No doubt,
according to s. 2 of the Act "dowry" is any property or valuable
security given or agreed to be given either directly or indirectly at or before
or after the marriage as consideration for the marriage but does not include
dowar or mahr in the case of person to whom the Muslim Personal Law (Shariat)
appear applies. It would appear from s. 2 that consent to comply with the
demand for any property as consideration for the marriage would alone make the
property or valuable security given or agreed to be given directly or
indirectly, "dowry" within the meaning of the Act. But having regard
to the dominant object of the Act which is to stemp out the practice of
demanding dowry in any shape or form either before or after the marriage, we
are of the opinion that the entire definition of word "dowry" should
not be imported into s. 4 which lays down that "if any person after the
commencement of this Act, demands directly or indirectly from the parents or
guardian of a bride or bridegroom, as the case may be, any dowry, he shall be
punishable with imprisonment which may extend to six months or with fine which
may extend to five thousand rupees or with both". According to Webester's New
World Dictionary, 1962 edn. bride means a woman who has just been married or it
about to be married, and bridegroom means a man who has just been married or is
about to be married. If we give this strict meaning of a bride or a bridegroom
to the word bride or bridegroom used in s. 4 of the Act property or valuable
security demanded and consented to be given prior to the time when the woman
had become a bride or the man had become a bridegroom, may not be
"dowry" within the meaning of the Act, We are of the opinion that
having regard to the object of the Act a liberal construction has to be given
to the word "dowry" used in s. 4 of the Act to mean that any property
or valuable security which if consented to be given on the demand being made
would become dowry within the meaning of s. 2 of the Act. We are also of the
opinion that the object of s. 4 of the Act is to discourage the very demand for
property or valuable security as consideration for a marriage between the
parties thereto. Section 4 prohibits the demand for 'giving' property or
valuable security which demand, if satisfied, would constitute an offence under
s. 3 read with s. 2 of the Act. There is no warrant for taking the view that
the initial demand for giving of property or valuable security would not
constitute an offence and that an offence would take place only when 772 the
demand was made again after the party on whom the demand was made agreed to
comply with it. The learned Magistrate was, therefore, right in proceeding on
the basis that the allegations in the complaint prima facie constitute an
offence under s. 4 of the Act and issuing processes to the respondents. The
High Court, we cannot refrain from observing, might well have refused to invoke
its inherent powers at the very threshold in order to quash the proceedings,
for these powers are meant to be exercised sparingly and with circumspection
when there is reason to believe that the process of law is being misused to
harass a citizen. The present was not such a case. We find that the complaint
had been filed after obtaining the previous sanction of the State Government or
of such officer as the State Government may by general or special order specify
in this behalf as required by the proviso to s. 4 of the Act.
Mr. P.G. Gokhale who appeared for the second
respondent, State of Maharashtra, was not in a position to tell us about what
the exact stand of the State Government in this appeal is as to whether it
supports or opposes the contention of the appellant that the allegation made in
the complaint constitutes an offence under s. 4 of the Act. For the reasons
stated above, we allow the appeal and direct the learned Judicial Magistrate,
First Class to take further proceedings on the complaint and dispose of the
case according to law.
P.B.R. Appeal allowed.
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