TMI Blog1983 (12) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... s daughter had been ill-treating and rather torturing his daughter with a view to elicit more dowry than was paid before, during or after the marriage. She was accordingly sent back to her parents' house with ordinary clothes on her person and a few more Sarees etc. but all the ornaments and other presents as also the cash offered to her and the bride-groom and the parents either as consideration of the marriage or otherwise had been retained. A demand was said to have been made by the opposite party No. 1 and his daughter for the return of the ornaments and other articles given in the dowry but nothing was returned and consequently alleging that the husband, father-in-law and mother-in-law of his daughter had mis-appropriated the property and had converted the same to their use, a complaint was filed under Section 406 IPC by the opposite party No. 1 arraying all the aforesaid three persons as accused. This was registered as a Criminal Case No. 3021 of 1979 and the matter was pending in the court of Sri K.M. Lal Agarwal Special Judicial Magistrate, Lucknow. It is this complaint which the applicants in Criminal Misc. Case No. 676 of 1981 have sought to be quashed. The contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was contended that there was no entrustment of these properties either to the husband or the father-in-law or mother-in-law of the bride and consequently any question of breach of trust or misappropriation of property could not arise. In other words, the contention was that even if any of the properties belonged exclusively to the bride she could have claimed to recover the same in a civil suit on proof of the necessary facts but the applicants could not be prosecuted for the offence under Section 406 IPC. Reliance was placed on a Full Bench decision of the Punjab and Haryana High Court in Vinod Kumar Sethi v. State of Punjab AIR 1982 P H 372 (FB). After considering a large number of authorities on the point the court had held in that case that the concept of entrustment of property belonging to the bride or to the bride and husband jointly or to other members of the husband's family is absolutely incompatible with the true nature of the conjugal relationship between the husband and the wife and the concept of matrimonial home. Articles given at the time of the marriage or before or after the marriage as presents to the bride, the bridegroom or the parents of the bride-gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s with the word Whoever (sic) of this word 'Whoever', it was found, were included parents-in-law, brothers-in-law and sisters-in-law and other close relations of the husband and these members being not covered by the presumption of jointness of custody over property in a matrimonial home would undoubtedly form a different category but even in their case the basic ingredients of entrustment or passing of dominion over property must be satisfied in order to bring it within the ambit of an offence under Section 406 IPC. These members of the family would also not be presumed to be entrusted with the dominion over property nor would the mere factum of bringing the dowry or other articles forming traditional presents into the family home of the husband by itself constitute such entrustment or passing of dominion to those persons. It was found that the mere living together of the couple in the joint family could not be legal equivalent of entrustment per se of the individual property of the wife to the parents-in-law or other close relations within the family homestead. According to the Full Bench any such entrustment or passing of the dominion over the dowry to the relations of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch property would constitute the exclusive property of the bride and of which she can legitimately be said to be exclusive owner but the mere fact of ownership does not establish that the property if for the time being it remains in the hands of the husband or the parents-in-law, is in any legal sense entrusted to them so as to attract the criminality contemplated under Section 406 IPC. Entrustment should be a conscious act which should be alleged and proved as a fact. If all is well in the family and the relations are cordial, it cannot be imagined that the ornaments or even personal Sarees of the bride if for the time being kept in the custody of the mother-in-law, could be said to have been entrusted to her. This is the normal state of affairs in a matrimonial home that the property belonging to any one of the members is kept in the house in the custody of any other member of the family and that is regarded as a joint possession of the members. By the mere presence of strained relations between the bride and others the nature of custody would not automatically change, nor would it stand converted into an entrustment within the meaning of the penal provisions of Section 406 IPC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-- Dr. Suresh Kumar Yadav v. Smt. Rekha Yadav decided on 20th November 1981. There too a specific averment was made in the complaint that the ornaments clothes and other articles were entrusted to the accused persons. In the instant case, however, there is no such clear averment and all that can be relied upon in this context is contained in para 15 of the complaint. It reads like this ;-- 15. That the aforesaid articles and belongings which as Streedhan of the complainant's daughter totally amounting to ₹ 41,497/-which was given to the complainant's daughter from her parents to the complainant's daughter, at Lucknow and was entrusted to the accused persons in the manner aforesaid and thereby the accused persons carried dominion over the said property in the manner aforesaid illegally and dishonestly in order to misappropriate and convert the aforesaid property to their own use in utter violation of direction of law and illegally and willfully did not return to the complainant's daughter and thereby illegally retained by the accused persons and have committed criminal breach of trust in doing so. 11. The averment is too vague as there is nothing i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintainable at least in respect of articles which can be the subject-matter for constituting an offence under the Dowry Prohibition Act. It may also be observed in this connection that all the property detailed in the schedules to the complaint is not such which could be said to be dowry within the meaning of the Dowry Prohibition Act but as regards that property also which is outside the definition of the term 'dowry' the fact remains that in view of the decision in Vinod Kumar's case with which I respectfully agree, it cannot be said that the property was entrusted within the meaning of Section 405/406 IPC to the husband or the parents-in-law of Smt. Sunita although the civil remedy was certainly available to her. 14. Regarding the other complaint under the Dowry Prohibition Act, learned Counsel appearing for the applicants in that case has argued that looking to the definition of the term 'dowry' in Section 2 and the ingredients of the offence under Sections 3 and 4 of the Dowry Prohibition Act an offence could not be said to have been made out on the allegations made in the complaint. A reference to the complaint which is Annexure 1 to that applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
