Reema Aggarwal
Vs. Anupam & Ors [2004] Insc 22 (8 January 2004)
Doraiswamy
Raju & Arijit Pasayat.
(Arising
out of SLP (Crl.) No. 3169 of 2003 ARIJIT PASAYAT, J.
Leave
granted.
Parties
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 very little role to play.
Filtering
out unnecessary details, the factual position is as follows:
On
13.7.1998 information was received from Tagore Hospital, Jalandhar that Reema Aggarwal the
appellant had been admitted on having consumed poisonous substance. On reaching
hospital, ASI Charanjit Singh obtained opinion of the doctor regarding her
fitness to make a statement.
Appellant
stated before Investigating Officer that she was married to Anupam the
respondent no.1 on 25.1.1998 and after the marriage, she was harassed by her
husband-respondent no.1, mother-in-law, father-in-law and brother-in-law
(respondents 2, 3 and 4) respectively for not bringing sufficient and more dowry.
It was also disclosed that it was the second marriage of both the appellant and
respondent no.1. On the date of incident at about 5.00 p.m. all the four accused persons forced her to take something
to put an end her life and forcibly put some acidic substance in her mouth. She
started vomiting and was taken to the hospital in an unconscious state. The
first information report was registered accordingly and on completion of
investigation the charge sheet was placed and charges were framed for offences
punishable under Sections 307 and 498-A of the Indian Penal Code, 1860 (for
short the 'IPC'). Accused persons pleaded innocence. Seven witnesses were
examined to further the prosecution version.
Before
the trial Court the accused persons put the plea that charge under Section
498-A was thoroughly misconceived as both Sections 304-B and 498-A IPC
pre-suppose valid marriage of the alleged victim-woman with the offender- husband.
It was required to be shown that the victim-woman was the legally married wife
of the accused. Since it was admitted that the appellant had married during the
lifetime of the wife of respondent no.1, what happened to his first marriage
remained a mystery. Prosecution has failed to establish that it stood dissolved
legally. Prosecution having failed to bring any material record in that regard,
Section 498-A had no application. Reliance was placed on a decision of the
Madhya Pradesh High Court in Ramnarayan & Ors. v. State of M.P. (1998 (3) Crimes 147 M.P.) The Trial Court held that
the accusations, so far as Section 307 is concerned, were not established and
in view of the legal position highlighted by the accused persons vis-`-vis
Section 498-A the charge in that regard was also not established. Accordingly
the accused persons were acquitted.
The
State of Punjab filed an application for grant of
leave to appeal which was disposed of by the Division Bench of the Punjab and Haryana High Court with the following
order:
"We
have heard the learned counsel for the appellant and with his assistance, have
gone through the finding recorded by the learned trial Court. In our considered
opinion, the finding recorded by the learned trial Court cannot be held to be erroneous
or that there was no perverse appreciation of evidence. Leave to appeal
declined.
Appeal
is also dismissed." In view of the dismissal of the State's application
for grant of leave, criminal revision application which was filed by the
appellant before the High Court was dismissed with the following orders:-
"Vide our separate order of even date in Crl. Misc. No. 580 MA of 2002, we
have not granted permission to the State to file the appeal. In these
circumstances, there is no merit in this criminal revision which is hereby
dismissed." In support of the appeal, learned counsel for the appellant
submitted that the High Court was not justified to dispose of the application
for grant of leave as well as the revision filed by the appellant by such cryptic
orders.
Important
questions of law are involved. In fact, various High Courts have taken view
different from the one taken by the Madhya Pradesh High Court in Vungarala Yedukondalu
v. State of Andhra
Pradesh (1988 Crl.L.J.
1538 (DB)) and State of Karnataka v. Shivaraj (2000 Crl.L.J 2741).
The Andhra Pradesh High Court and the Karnataka High Court have taken different
view. According to him the expressions "husband" and
"woman" appearing in Section 498-A IPC are to be read in a manner so
as to give full effect to the purpose for which Section 498-A was brought into
the statute. The restricted meaning as given by the Madhya Pradesh High Court
in Ramnarayan case (supra) does not reflect the correct position of law. On the
other hand, contrary view expressed by the Karnataka and Andhra Pradesh High
Courts reflect the correct view.
In
response, learned counsel for the respondents submitted that to constitute a
marriage in the eye of law it has first to be established that the same was a
valid marriage. Strong reliance was placed on Bhaurao Shankar Lokhande and Anr.
v. The State of Maharashtra and Anr. (AIR 1965 SC 1564) in that
context. Reference was also made to Sections 5(i), 11 and 16 of Hindu Marriage
Act, 1955 (for short the 'Marriage Act') to contend that the stipulations of
conditions of valid marriage, the circumstances in which the marriage becomes
void and the protection given to children of void and voidable marriage
respectively makes the position clear that wherever the legislature wanted to
provide for contingencies flowing from void or voidable marriages, it has
specifically done so. It is latently evident from Section 16 of the Marriage
Act. There is no such indication in Section 498-A IPC.
The
language used is "husband or relative of the husband".
Marriage
is a legal union of one man and woman as husband and wife and cannot extend to
a woman whose marriage is void and not a valid marriage in the eye of law.
The
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 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. As the prosecution had
set up a plea of gandharva marriage and had failed to prove the performance of
ceremonies, it was not open to fall back upon the presumption of a valid
marriage. It was further held that there was no such presumption if the man was
already married. 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 stranger. 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.
The
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.
The
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.
The
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.
The
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).
The
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." Section 4 of the Dowry Act aims
at discouraging the very "demand" of "dowry" 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.
The
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- fulfilment 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 Dowry
Act.
Aryan
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.
The
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. The nomenclature '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. The legislative 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.
In
Chief Justice of A.P. v. L.V.A. Dixitulu (1979 (2) SCC 34), this Court
observed:
"The
primary principle of interpretation is that a constitutional or statutory
provision should be construed "according to the intent of they that made
it" (Coke).
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 interpretation.
In 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 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.
In
District Mining Officer v. Tata Iron & Steel Co. (JT 2001 (6) SC 183), this
Court stated:
"The
legislation 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".
The
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).
The
judgments of High Courts taking a view contrary to the one expressed above,
cannot be considered to lay down the correct position of law.
In
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:
"Interpretation
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. That interpretation 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." In 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 and observed:
"The
English 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) These aspects were highlighted by this Court in S. Gopal Reddy v.
State of A.P. (1996 (4) SCC 596).
Whether
the offences are made out is a matter of trial.
The
High Court was not justified in summarily rejecting the application for grant
of leave. It has a duty to indicate reasons when it refuses to grant leave. Any
casual or summary disposal would not be proper. (See State of Punjab v. Bhag Singh (2003 (8) Supreme
611). In the circumstances, we set aside the impugned order of the High Court
and remit the matter back to the High Court for hearing the matter on merits as
according to us points involved require adjudication by the High Court. The
appeal is allowed to the extent indicated.
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