TMI Blog1985 (3) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... asons given above, we are satisfied that as the complaint prima facie disclosed an offence of criminal breach of trust, as defined in s. 405/406 of the Indian Penal Code, the High Court was not justified in quashing the complaint. Appeal allowed, set aside the judgment of the High Court and restore the complaint filed by the appellant and direct that the accused may be summoned, if not already summoned, and put on trial in accordance with law. - CRL.A. 684 OF 1982 - - - Dated:- 12-3-1985 - Judge(s) : S. MURTAZA FAZAL ALI., A. VARADARAJAN., SABYASACHI MUKHERJEE JUDGMENT FAZAL ALI J.-Sometimes the law which is meant to impart justice and fair play to the citizens or people of the country is so torn and twisted by a morbid interpretative process that instead of giving haven to the disappointed and dejected litigants, it negatives their well-established rights in law. The present case reveals the sad story of a helpless married woman who, having been turned out by her husband without returning her ornaments, money and clothes despite repeated demands, and dishonestly misappropriating the same, seems to have got some relief by the court of the first instance but to her utter d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alified right, namely, the right of use in times of distress. The entire classical text on the subject has been summarised by N. R. Raghavachariar in " Hindu Law " (5th edn.), at page 533 (s. 487), where the following statement is made: "487. Powers during coverture: Saudayika, meaning the gift of affectionate kindred, includes both Yautaka or gifts received at the time of marriage as well as its negative Ayautaka. In respect of such property, whether given by gift or will, she is the absolute owner and can deal with it in any way she likes. She may spend, sell or give it away at her own pleasure by gift or will without reference to her husband and property acquired by it is equally subject to such rights. Ordinarily, the husband has no manner of right or interest in it. But in times of extreme distress, as in famine, illness or imprisonment, or for the performance of indispensable duty, the husband can take and utilise it for his personal purposes, though even then he is morally bound to restore it or its value when able to do so. But this right is purely personal to him and cannot be availed of by a holder of a decree against the husband, and if the husband dies without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how the complaint filed by the appellant was wrongly quashed by the High Court. The general allegations made in the complaint may be summarised as follows: The complainant was married to Suraj Kumar, accused No. 1 (respondent) on February 4, 1972, at Ludhiana according to Hindu rites and customs in the presence of respectable persons. Accused No. 2 was the father and accused Nos. 3 to 5 were brothers and accused No. 6 was the brother-in law of accused No. 1. It is further alleged that all the accused attended and actively participated in the marriage of the complainant and demanded dowry. The most important allegation made by the appellant was that her parents and relatives gave by way of dowry articles worth Rs. 60,000 inclusive of gold ornaments, clothes and other things which were entrusted to accused Nos. 1 to 6 on February 5, 1972, which were taken into possession by them. Soon after the marriage, accused No. 1 started harassing, teasing and beating the complainant and ultimately turned her out along with her children some time in the year 1977. It was averred in para. 4 of the complaint that the accused never returned the articles to her.. The relevant portion of the alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shingar patti with golden tikka 7. One golden nath (Nose ring) 8. Twelve golden bangles II. Silver articles : 1. Six glasses and one jug 2. Two surma danies 3. One tagari 4. Two payals III. Clothes : Fifty one sarees, twenty-one suits along with petticoats, blouses, nighties, shawls, sweaters, night suits, gowns and woollen coat, etc., six complete beds with sheets, etc." A perusal of the list reveals that so far as the jewellery and clothes, blouses, nighties and gowns are concerned, they could be used only by the wife and were her stridhan. By no stretch of imagination could it be said that the ornaments and sarees and other articles mentioned above could also be used by the husband. If, therefore, despite demands, these articles were refused to be returned to the wife by the husband and his parents, it amounted to an offence of criminal breach of trust. In mentioning the articles in the list, we have omitted furniture and utensils which though also belonged to the complainant, yet there is some room for saying that these were meant for joint use of the husband and wife. Thus, the facts mentioned in the complaint taken at their face value reveal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egations made in the instant complaint are not that the husband of the respondent has placed her ornaments and jewellery, etc., out of her way. What has been alleged therein is that the petitioners who are the parents-in-law of the respondent have converted the ornaments and clothes, etc., presented to the respondent at the time of her marriage to their own use. Section 27 of the Hindu Marriage Act empowers a court while deciding a matrimonial dispute to also pass a decree in respect of property which may jointly belong to both the husband and the wife. This section at best provides a civil remedy to an aggrieved wife and does not in any way take away her right to file a criminal complaint if the property belonging to her is criminally misappropriated by her husband. " In these circumstances, the decision reported in Surinder Mohan v. Kiran Saini [1977] Chandigarh Law Reporter 212, can no longer be considered good law. Even in Vinod Kumar's case, AIR 1982 P H 372, the Full Bench reiterated the view that s. 27 in no way abolishes stridhan but expressly recognises the property exclusively owned by the wife. In this connection, the court observed thus (p. 385): " The expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid observations for the reasons that we shall give hereafter. We fail to understand the logic of the reasoning adopted by the High Court in investing the pure and simple stridhan of the wife with the character of a joint property. We are surprised that the High Court should have taken the view that a woman's absolute property though well recognised by law is interpreted by it as being shorn of its qualities and attributes once a bride enters her matrimonial home. We are clearly of the opinion that the mere factum of the husband and wife living together does not entitle either of them to commit a breach of criminal law and if one does, then he/she will be liable for all the consequences of such breach. Criminal law and matrimonial home are not strangers. Crimes committed in matrimonial home are as much punishable as anywhere else. In the case of stridhan property also, the title of which always remains with the wife though possession of the same may sometimes be with the husband or other members of his family, if the husband or any other member of his family commits such an offence, they will be liable to punishment for the offence of criminal breach of trust under ss. 40 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt property of the two spouses, the logical effect of the observations made by the High Court is that once a woman enters her matrimonial home, she completely loses her exclusive stridhan by the same, being treated as a joint property of the spouses. In other words, if this view is taken in its literal sense, the consequence would be to deprive the wife of the absolute character and nature of her stridhan and make the husband a co-owner of the same such a concept is neither contemplated nor known to Hindu law of stridhan, nor does it appeal to pure common sense. It is impossible to uphold the view that once a married woman enters her matrimonial home, her stridhan property undergoes a vital change so as to protect the husband from being prosecuted even if he dishonestly misappropriates the same. For instance, properties like jewellery, clothing, cash, etc., given by her parents as gifts cannot be touched by the husband except in very extreme circumstances, viz., where the husband is in imprisonment or is in serious distress. Even then the religion and the law enjoin that the husband must compensate the wife and if he cannot do so, he must pay fine to the king which means that the h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion which every owner of property has over his property. But it is not dominion of this kind which satisfies the requirements of s. 405. In order to establish 'entrustment of dominion' over property to an accused person, the mere existence of that person's dominion over property is not enough. It must be further shown that his dominion was the result of entrustment. " In the instant case, however, there is neither any allegation nor anything in the complaint to show that when the wife entered her matrimonial home, she had entrusted the property to her husband so as to make him part owner of the same. Therefore, the question of the husband's having dominion over the property does note at all arise. In fact, the wife has nothing to do with the partnership, if any, and the husband is a pure and simple custodian of the property and cannot use the same for any purpose without her consent. A pure and simple act of entrustment of the stridhan to the husband does not attract any of the essential ingredients of a partnership as defined in the Partnership Act. In the instant case, there is also no question of the wife constituting herself a partner with her husband merely by allowing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e view taken in Vinod Kumar's case, AIR 1982 P H 372 [FB], as also with the opinion expressed by our brother on the points arising in the case. Another serious consequence as a result of the ratio of the Full Bench decision in Vinod Kumar's case, would be to render the provisions of s. 406, IPC, inapplicable and nugatory even if the husband has the audacity or the importunity of refusing to return the stridhan of his wife. Furthermore, we shall hereafter show that the view of the Full Bench is in direct contravention of a long course of decisions of this court on the ingredients of s. 405, IPC. Before coming to this chapter, we would like to say a few things more about the judgment of the High Court which on deeper probe and careful scrutiny seems to be self-contradictory. We are clearly of the opinion that the concept of stridhan property of married woman becoming a joint property of both the spouses as soon as she enters her matrimonial home and continues to be so until she remains there or even if there is a break in the matrimonial alliance, is in direct contravention of Hindu law of Saudayika which has been administered since more than a century by the High Courts, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... du wife can own property in her own right, then it is purely a question, of fact whether the dowry or the traditional presents given to her, were to be individually owned by her or had been gifted to the husband alone or jointly to the couple ............. For instance, jewellery meant for the personal wearing of the bride, wedding apparel made to her measures specifically, cash amounts put into a fixed deposit in a bank expressly in her name, or a motor car presented to her and duly registered in her name, are obvious examples of dowry raising the strongest, if not conclusive presumption, of her separate ownership in these articles. Once it is found as a fact that these articles of dowry were so given to her individually and in her own right, then I am unable to see how the mere factum of marriage would alter any such property right and divest her of ownership either totally or partially." In these paragraphs, the High Court unequivocally and categorically expresses the view that a Hindu woman has complete and full ownership of her individual property and the factum of marriage is of no relevance to determine the nature of the property. It also holds that articles like jeweller ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of the above, it would be equally untenable to hold that either the desertion or the expulsion of one of the spouses from the matrimonial home would result in entrusting dominion over the property belonging to the other so as to bring the case within the ambit of this prerequisite under s. 405, Indian Penal Code. The joint custody and possession once established would thereafter exclude either express entrustment or the passing of dominion over the property. It was rightly argued that if an irate husband or wife walks out from the matrimonial home in huff, this cannot constitute an entrustment or dominion over the property to the other. Consequently, unless a special written agreement to the contrary can be established, the strongest presumption arises that during the existence and immediately after the crumbling of the matrimonial home, there was, in essence, a joint possession and custody of the property of the spouses therein, including dowry and traditional presents, which would preclude the essentials of entrustment or dominion over the property which form the cornerstone of criminality under s. 405, Indian Penal Code ...... 53. It cannot, therefore, be prima facie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, we find it difficult to accept the other propositions adumbrated at a later stage of the judgment which have been fully discussed by us. We fail to understand how the High Court while finding that joint enjoyment does not divest a Hindu wife of her exclusive ownership, still chose to treat it as joint property of the two spouses by the mere factum of joint user. The two views expressed by the High Court stand contradicted by its own findings and are wholly ununderstandable. Thus, a detailed analysis of the judgment of the Punjab Haryana High Court in Vinod Kumar's case, AIR 1982 P H 372 [FB], appears to us to be a mass of confusion and lacks both clarity and coherence. We are, therefore, unable to uphold or support the view of the High Court that upon entering the matrimonial home, the ownership of stridhan property becomes joint with her husband or his relations. To this extent, therefore, we overrule this decision and hold that with regard to the stridhan property of a married woman, even if it is placed in the custody of her husband or her in-laws they would be deemed to be trustees and bound to return the same if and when demanded by her. The Supreme Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it is their contribution to the provident fund scheme and then making a deduction or recovery and retaining it, constitutes the offence of criminal breach of trust. This is so obvious that nothing more need be said about it." These observations were fully endorsed and approved by this court in Harihar Prasad v. Tulsi Das Mundhra, AIR 1981 SC 81, where the following observations were made (p. 82) : " This, in our opinion, is a correct statement of the position and we also agree with the learned judge of the Madhya Pradesh High Court that 'this is so obvious that nothing more need be said about it'. We, therefore, think that the impugned order quashing the charge against the respondents is obviously wrong. " In Basudeb Patra v. Kanai Lai Haldar, AIR 1949 Cal 207, the Calcutta High Court observed thus (p. 207) : " Whereas the illustrations to s. 405, show equally clearly that the property comes into the possession of the accused either by an express entrustment or by some process placing the accused in a position of trust ...... On the facts of the present case, which, as I have said, are not open to question at this stage, it is quite clear that the ornaments were hande ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ented to her are joy the use of both the spouses but the ornaments and things of the like nature are certainly meant for her and her alone. When she makes an allegation in the complaint that either her husband or her parents-in-law had converted to their own use the ornaments forming part of her stridhan which she had entrusted to them, the court has to give legal effect to such allegation and to assume that such ornaments had been made the subject-matter of criminal breach of trust. It is settled law that even in a criminal complaint, the complainant is under no obligation to plead the legal effect of the allegations made. All that is required is that the facts constituting complaint should be specifically mentioned so that the court may be able to perform its duty of punishing the accused under the appropriate provision of law if such allegations are made out. Furthermore, in a case like this, a complaint cannot be quashed without giving the aggrieved wife an opportunity of proving that the ornaments had been given to her at the time of her marriage for her use only. " We fully endorse this decision and hold that it lays down the correct law on the subject. There is a judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was declined. Hence, the offence of misappropriation of the dowry articles lying in trust was committed on January 27, 1976. " We find ourselves in entire agreement with this decision and hold that this was correctly decided. This court has pointed out more than once that the High Court should very sparingly exercise its discretion under s. 482, Cr PC. In L. V. Jadhav v. Shankarrao Abasaheb Pawar, AIR 1983 SC 1219 (to which two of us were a party), this court made the following observations (p. 1224): "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." In Nagawwa v. Veeranna Shivalingappa Konjalgi [1976] Supp SCR 123; AIR 1976 SC 1947, this court observed as follows (p. 1951): " Thus, it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside: (1) where the allegations made in the complaint or the stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t but we might again, even at the risk of repetition, indicate the bare facts which prima facie make out a clear case under s.406, IPC, against the accused. The important portions of the complaint may be spelt out thus: (1) that all the accused attended the marriage of the appellant with the respondent and demanded dowry from the parents of the appellant in consideration of the marriage; (2) that the parents of the appellant spent Rs. 75,000 on the marriage and dowry articles worth Rs. 60,000 (inclusive of jewellery, wearing apparel, etc.,) were given and entrusted to accused Nos. 1 to 6 at the time of the doli on February 5, 1972; (3) that the articles entrusted to the accused were meant for the exclusive use of the appellant; (4) that the dowry articles were never given by the accused to the appellant even for her use and possession of the same was illegally, dishonestly and malafide retained by the accused in order to obtain wrongful gain to themselves and wrongful loss to the appellant; (5) that on December 11, 1980, in the morning, the accused brought the appellant to Ludhiana in three clothes and refused to give the entrusted articles which were the stridhan of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s given above, we are satisfied that as the complaint prima facie disclosed an offence of criminal breach of trust, as defined in s. 405/406 of the Indian Penal Code, the High Court was not justified in quashing the complaint. We, therefore, allow this appeal, set aside the judgment of the High Court and restore the complaint filed by the appellant and direct that the accused may be summoned, if not already summoned, and put on trial in accordance with law. VARADARAJAN J.-This criminal appeal by special leave is directed against the judgment of a learned single judge of the Punjab and Haryana High Court in Criminal Misc. Case No. 4876 of 1981. The appellant, Pratibha Rani, is the estranged wife of the first respondent, Suraj Kumar, who is the brother of the second respondent, Krishan Lal. One Rattan Chand is the father of respondents Nos. 1 and 2 and two others, Chander Kumar and Vishwinder Kumar. One Jugal Kumar is the brother-in-law of the first respondent. The appellant filed a criminal complaint for an offence under s. 406, IPC, against her husband and his father and brothers and brother-in-law mentioned above in the Court of the Additional Chief Judicial Magistrate, L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estly converted the articles belonging to the appellant for their use in violation of the direction of the appellant's parents given at the time of the marriage to give the articles for the appellant's use. The respondents in this appeal filed Criminal Misc. Case No. 4876 of 1981 in the Punjab and Haryana High Court under s. 482 of the, Code of Criminal Procedure for quashing the criminal proceedings and the complaint taken on file by the Additional Chief Judicial Magistrate, Ludhiana, under s. 406, IPC, and his order summoning them. Sukhdev Singh Kang J., before whom the matter came up in the High Court, relied strongly upon the observations made by a Full Bench of that High Court in Vinod Kumar Sethi v. State of Punjab, AIR 1982 P H 372, and has observed in his judgment that the mere handing over of the articles of dowry or stridhana to the husband and other relations at the time of the marriage does not constitute entrustment in the sense of the word used in ss. 405 and 406, IPC, and that it does not amount to passing of dominion over those articles to them. The learned judge has observed that there can be such an entrustment only by a subsequent conscious act of volitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 126 in Mulla's Hindu Law, fifteenth edition, describing what constitutes stridhana, reads : " Property given or bequeathed to a Hindu female, whether during maidenhood, coverture or widowhood, by her parents and their relations, or by her husband and his relations is stridhana according to all the schools, except that the Dayabhaga does not recognise immovable Property given or bequeathed by a husband to his wife as stridhana." Section 2 of the Dowry Prohibition Act, 1961, 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; at or before or after the marriage as consideration for the marriage of the said parties, but does not include dower or mehr in the case of persons to whom the Muslim Personal Law (Shariat) applies." In the present complaint of the wife against the husband and his three brothers, father and brother-in-law, it is alleged that the marriage was performed at Ludhiana on Febr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ownership of property and a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner. But that does not mean that such an entrustment need conform to all the technicalities of the law of trust-(see Jaswantrai Manilal Akhaney v. State of. Bombay [1956] SCR 483, 498-500; AIR 1956 SC 575 at pp. 582-583. The expression ' entrustment ' carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Further, the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them. " In Sushil Kumar Gupta v. Joy Shankar Bhattacharjee [1970] 3 SCR 770; AIR 1971 SC 1543, it is observed (p. 1546 of AIR): " The offence of criminal breach of trust is committed when a person who is entrusted in any manner with property or with dominion over it, dishonestly misappropriates it, or converts it to his own use, or dishonestly uses it or disposes it of, in violation of any direction of law prescribing the mode in which the trust is to be discharged, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and careful consideration of the question whether the ingredient of " entrustment " exists in such cases. Therefore, it is necessary to note what has been observed in some of the paragraphs of the judgment in that case. The learned Chief justice, speaking for the Bench, has observed: " 21 ... The present set of cases presents a sad spectacle of a house divided against itself, not merely in the biblical but in the literal sense, where wives are ranged against their husbands in acrimonious criminal prosecutions. The challenge on behalf of the husbands and their relations is focussed basically against the charge of breach of trust under section 406 of the Indian Penal Code , levelled against them. Now, the core of the argument on behalf of the petitioners is that the very concept of any entrustment or passing dominion over her property by the wife to the husband does not arise at all so long as the marriage subsists. The contention is that the very nature of the conjugal relationship itself would negative any such stand. On this premise, it is contended that the basic pre-requisite of the entrustment of property or dominion over property being lacking and non-existent, no offence u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty individually owned by each within the four walls of the matrimonial home ? Does the wife stand entrusted with the property belonging to her husband individually and vice versa the husband stands entrusted with such property vesting in the exclusive ownership of the wife ? It is the answer to this question which in essence would determine the attraction and applicability of section 405, IPC, betwixt the spouses... "41. It bears repetition that the question here in has to be examined against the backdrop of the matrimonial home. What truly is the concept and essence thereof had come up for exhaustive consideration earlier before a Full Bench in Kailash Vati v. Ayodhia Parkash [1977] ILR I P 642, in the context of Hindu law itself it is, therefore, apt to refer to the authoritative enunciation therein: `To my mind, the idea of the matrimonial home appears to lie at the very centre of the concept of marriage in all civilised societies. It is indeed around it that generally the marriage tie revolves. The home epitomizes the finer nuances of the marital status. The bundle of indefinable rights and duties which bind the husband and the wife can perhaps be best understood o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paramount one. The inevitable presumption during the existence or the imminent break up of the matrimonial home, therefore, is one of joint possession of the spouses which might perhaps be dislodged by the special terms of a written contract. However, to be precise, this presumption of joint possession of properties within the matrimonial home can subsist only as long as the matrimonial home subsists or on, the immediate break up thereof. 42-43. The aforesaid position seems to be well borne out by homely example which was rightly advanced by Mr. Bhandare on behalf of the petitioners. It was submitted that where a husband entrusts specific amount to a wife for paying the school fees of their children but in a shopping spree she converts the same into sarees for herself, would she thereby become liable to breach of trust under section 406, Indian Penal Code ? The answer would obviously appear to be in the negative. Similarly, where a husband misuses or even appropriates any property exclusively belonging to his wife within the matrimonial home, he hardly comes within the ambit of criminality under section 406, Indian Penal Code. Usually if not invariably, where the husband is bre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and the complainants were unable to cite even a single case of conviction for criminal breach of trust betwixt husband and wife. Even when pointedly asked, counsel conceded that despite the diligent research neither under the Indian Penal Code, nor under the analogous provisions of English law, could they lay their hands for over a century and a half on any case where such a conviction had been upheld. This Paucity, rather the total absence of Precedent, indirectly buttresses the view, I have expressed above on principle and the statutory provisions. An analogy in this context may well be drawn from the Law of partnership. However, at the very outset, I would notice that the position is not identical because partnership envisages a joint or co-ownership of partnership property whereas in a conjugal relationship, as shown above, the spouses may well be the individual and exclusive owners of their respective properties. Nevertheless, a marked similarity herein is that in partnership, co-ownership necessarily connotes a jointness of possession of partnership properties whilst the same position inheres in the matrimonial home where the spouses are deemed to be jointly in possession a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the assets or a particular asset of the partnership was, by a special agreement between the parties, entrusted to the accused person. If in the absence of such a special agreement a partner receives money belonging to the partnership, he cannot be said to have received it in fiduciary capacity or in other words cannot be held to have been of entrusted " with dominion over partnership properties.' If that is so in the partnership relation, it appears to me that it would be more so in the conjugal relationship with regard to the property within the matrimonial home. 46 . ...... The nature, character and the incident of property within the matrimonial home, so long as the marriage subsists, seem to be such that except by a special written agreement, no entrustment or dominion, etc., of the individual property of the spouses to each other can be presumed. Equally, herein the specific and ascertainable property of each spouse within the matrimonial home can be so equivocal and problematic so as to oust the requisite mens rea with consequent criminality with regard thereto until the title to such property is clearly and specifically established. If the civil remedy seems to be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would include within its ambit the parents in-law, the brothers-in-law, sisters-in-law (and other close relations of the husband) of a Hindu wife provided that the basic ingredients of entrustment or passing of dominion over her separate individual property stands fully satisfied. Apart from the peculiarity of the conjugal relationship and the consequent sharing of the matrimonial home, the existence of the blood relationship of the parties does not seem to be relevant for the applicability or otherwise of s. 406 of the Code. Since the other members of the Hindu joint family to which the husband may belong would not be covered by the Presumption of jointness of custody and Possession of their individual Properties by the spouses alone, they cannot by the mere fact of kinship be excluded from the scope of ss. 405 and 406 of the Code. 56. To conclude, it necessarily follows from the aforesaid discussion that the very concept of the matrimonial home connotes a jointness of possession and custody by the spouses even with regard to the movable properties exclusively owned by each of them. It is, therefore, inapt to view the same in view of the conjugal relationship as involving any e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... custody or dominion over the property of one spouse to the other and his or her relations so as to attract the stringent provisions of s. 406 of the I.P.C. The offence of criminal breach of trust is cognizable and non-bailable and punishable with imprisonment for a term of three years or with fine or with both. In the absence of such a separate agreement for specific entrustment of the property of either spouse, the appropriate remedy would appear to be by way of a civil suit where there is scope for the parties to the marriage coming together at the instance of relations, elders and well-wishers and patching up their differences. Entertaining complaints of the irate wife or husband against the husband or wife without even an allegation of a specific and separate agreement constituting entrustment of the property of the wife or the husband would have disastrous effects and consequences on the peace and harmony which ought to prevail in matrimonial homes. It is seen from para. 45 of the judgment in Vinod Kumar's case, AIR 1982 P H 372 [FB], that in spite of diligent research, no instance of any case of successful prosecution of the husband or wife at the instance of the wife or th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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