TMI Blog1996 (12) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... at there was estrangement in the marital relationship between the husband and the wife. It is the case of the appellant that she was treated with cruelty and was driven out of the marital home along with the three children. She was constrained to lay proceedings under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. The appellant was given jewellery, i.e., gold and silver ornaments and other household goods enumerated in Annexures I and II and also cash by her parents, brothers and other relatives at different ceremonies prior to her marriage and after the marriage at the time of bidai (farewell). She claims that all these articles constituted her stridhana properties and were kept in the custody of the respondent-husband. The respondent has asked the appellant to entrust for safe custody all the jewellery and cash mentioned in Annexure I, to his father with the promise that on her demand whenever made, they would be returned. Accordingly, she had entrusted them to the appellant at Lucknow in the presence of three named witnesses. Similarly, the household goods mentioned in Annexure-II were entrusted by the parents of the appellant to the respondent at the ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, it furnished a cause of action. Since complaint was laid in September 1990, it was clearly barred by limitation the period prescribed being three years. Smt. Indira Jaising, Learned senior counsel for the appellant, contended that the ratio in Pratibha Rani V/s. Suraj Kumar Anr. [(1985) 2 SCC 370] has stood the test of time for more than a decade though therein there was difference of opinion between the majority and the minority on certain aspects of the matter. The decision has never been doubted by any other Bench. The said ration is based on the personal law as elaborately discussed in the judgment. Therefore, it requires reiteration. Shri Rajinder Singh, learned senior counsel for the respondent, on the other hand, sought to support the present reference to the three Judge Bench on the basis of the conduct of the appellant. He also contends that a clear demand for return of the stridhana properties was made in October 1986 when the respondent had refused to return the same. Since the complaint came to be filed only in September 1990, i.e., after a delay of 11 months from the expiry of prescribed limitation, it is time barred. Since no application for condonation of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the husband after the marriage is joining property of the wife and the husband. The essential requirement for constituting an offence defined under Section 405, IPC in relation to stridhana property, is that there should be a specific separate agreement between the parties, whereby the property of the wife or the husband, as the case may be, is entrusted. In the absence of such a separate agreement for specific entrustment, it would not be possible to draw an inference of entrustment of custody or dominion over the property of one spouse to the other and/or his or her close relations so as to attract the stringent provisions of Section 406, IPC; otherwise there would be disastrous effects and consequences on the peace and harmony which ought to prevail in matrimonial homes. The appropriate remedy would appear to be by way of a civil suit for recovery of the stridhana property. Fazal Ali, J., speaking for himself and Sabyasachi Mukherjee, J., as he then was, held that the possession of Saudayika or stridhana of a Hindu married female during coverture is absolutely clear and unambiguous. She is the absolute owner of her stridhana property and can deal with it in any manner she li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said that they do not prima facie amount to an offence of criminal breach of trust against the respondent. Thus there could be no room for doubt that all the facts stated in the complaint constitute an offence under Section 406, IPC and the appellant could not be denied the right to prove her case at the trial by pre-empting it at the very inception by the order passed by the High Court. Accordingly, it was quashed. Direction was given to proceed with the trial from the stage at which stay was granted by this Court. The only difference of point was whether there should be special agreement of entrustment. Varadarajan, J. elaborately dealt with the special agreement and had held that in view of the fact that wife and husband have dominion over the wife's property jointly, proof of special agreement of entrustment is an essential ingredient. In Mayne's Hindu Law Usage [13th Edn.] edited by Justice Alladi Kuppuswami, former Chief Justice of Andhra Pradesh High Court, in paragraph 644 at page 877 it is stated that Katyayana indicates a cross-classification of stridhana [Vivadachintamani vide p.259; Jha HLS II, 529-31; Apararka, 21 MLJ (Jour.) 428. He further states: th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and bequests from strangers. Saudayika of all sorts are absolutely at a woman's own disposal. She may spend, sell, devise or give it away at her own pleasure. In support of that conclusion, footnote No.6 cites several decisions including Venkata Rama v. Venkata Suriya [(1880) 2 Mad 333] and Muthukaruppa v. Sellathammal [(1916) 39 Mad 298] etc. It is stated thereafter that her husband can neither control her in her dealings with it, nor use it himself. But he may take it in case of extreme distress, as in a famine, or for some indispensable duty, or during illness, or while a creditor keeps him in prison. Even then he would appear to be under at least a moral obligation to restore the value of the property when able to do so. What he has taken without necessity, he is bound to repay with interest. This right to take the wife's property is purely a personal one in the husband. If he does not choose to avail himself of it, his creditors cannot proceed against her properties. The word `take' in the text of Yajanavalkya means `taking' and `using'. Hence if the husband taking his wife's property in the exceptional circumstances mentioned in the text does not actua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the fact of a wife's having been driven out from the matrimonial home without taking along with her stridhana properties, amount to entrustment with the husband within the meaning of Section 405, IPC? Section 405 defines Criminal breach of trust thus: 405. Criminal breach of trust. - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharge, or of any legal contract, express or implied, which he has made touching the ?? of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust . It is not necessary to refer to the Explanations to the said section for the purpose of this case. Hence they are omitted. Thus when the wife entrusts her stridhana property with the dominion over that property to her husband or any other member of the family and the husband or such other member of the family dishonestly misappropriates or converts to his own use that property or wilfully suffers any othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween the parties. The property of the partnership being a partnership asset, every partner has a right o or a dominion over it. It was held that special agreement was necessary to constitute an offence of criminal breach of trust defined under Section 405, IPS. In view of the finding that stridhana property is the exclusive property of the wife on proof that she entrusted the property or dominion over the stridhana property to her husband or any other member of the family, there is no need to establish any further special agreement to establish that the property was given to the husband or other member of the family. It is always a question of fact in each case as to how property came to be entrusted to the husband or any other member of the family by the wife when she left the matrimonial home or was driven out therefrom. No absolute or fixed rule of universal application can be laid down in that behalf. It requires to be established by the complainant or the prosecution, depending upon the facts and circumstances of the case, as to how and in what manner the entrustment of the stridhana property or dominion over her stridhana came to be made to the husband or any other member o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been made out by the appellant as the stridhana properties were not returned to her by the husband. Obviously, therefore, the learned Magistrate, having taken cognizance of the offence, had issued process for appearance of the respondent. It is fairly settled legal position that at the time of taking cognisance of the offence, the Court has to consider only the averments made in the complaint or in the charge-sheet filed under Section 173, as the case may be. It was held in State of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164] that it is not open for the Court to sift or appreciate the evidence at that stage with reference to the material and come to the conclusion that no prima facie case is made out for proceeding further in the matter. It is equally settled law that it is open to the Court, before issuing the process, to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, it is required to find out whether an offence has been made out. On finding that such an offence has been made out and after taking cognizance thereof, process would be issued to the respondent to take further steps in the matters. If it is a charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 200 of the Code. The learned counsel for the respondent read out the text of the evidence to establish that the appellant had demanded in October 1986 for return of the jewellery and that the respondent refused to do the same. Thus it constitutes refusal from which date the limitation period began to run and the complaint have been filed in September 1990, is time barred, i.e., beyond three years. That view of the learned Judge is clearly based on the evidence torn of the context without reference to the specific averments made in the complaint and the evidence recorded under section 200 of the Code. As stated earlier, the sequence in which the averments came to be made was the voluntary promise of the respondent and his failure to abide by the promise. It is incongruous to comprehend the demand for return of jewellery etc, at the stage when she was persuading him to take her into matrimonial home. Accordingly, we hold that the complaint was filed within the limitation. The question, therefore, whether it is a continuing offence and limitation began to run everyday loses its relevance, in view of the above finding. The decisions cited in support thereof, viz., Van ..... X X X X Extracts X X X X X X X X Extracts X X X X
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