Case :
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Delhi High Court
Surinder Kumar Yadav & Others vs The State on 5 November, 1999
Equivalent citations: 2000 IIIAD Delhi 188, 84 (2000) DLT 289
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Notes (by Vinayak)
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* woman from Delhi marries a guy from Lucknow
* differences crop up
* woman files 498a 406 package at Delhi and gets hubby arrested
* husband tried jurisdiction quash stating all allegations are at Lucknow and so courts at Delhi have no jurisdiction
* The court says since the woman is such a poor thing the court goes on to say that offences under sec 406 can not only be tried at the matrimonial city / town but also at the parental town of the wife
* The court also says since 498a and 406 are releated they could be tried at the same place
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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Delhi High Court
Surinder Kumar Yadav & Others vs The State on 5 November, 1999
Equivalent citations: 2000 IIIAD Delhi 188, 84 (2000) DLT 289
Author: A D Singh
Bench: A D Singh, R Sodhi
ORDER
Anil Dev Singh, J.
1. This is a writ petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure whereby the petitioners seek quashing of the FIR bearing No. 232/97 under section 498A/406. I.P.C. registered with Police Station Bara Hindu Rao, Delhi. The petition also seeks the quashing of the trial pending before the Metropolitan Magistrate, Tis Hazari, Delhi, arising from the aforesaid F.I.R. The facts giving rise to the petition are as follows :-
2. The first petitioner Surinder Kumar Yadav married Pushpa nee Minakshi on November 24, 1993 according to Hindu rites at Delhi. According to the first petitioner he has been working as Assistant Development Officer in Sahkarita Bhawan, Lucknow. Both Surinder and Pushpa after marriage resided at House No. 554/37/4/GA-8, Lane No. 2 Pawanpuri, Sujanpura, Alambagh, Lucknow. It appears that the relations between the first petitioner and Pushpa soured with the result Pushpa came back to Delhi on June 2, 1994 and on May 31, 1995, a complaint was filed by her with the Crime against Women Cell, Sarai Rohilla, Delhi. On the basis of the complaint, FIR bearing No. 232/97 under section 406/498-A I.P.C. was r
egistered on September 8, 1997 at Police Station Bara Hindu Rao, Delhi. During investigation the first petitioner was arrested on October 23, 1997 and later released on bail. Upon the completion of the investigation a charge sheet was filed before the trial court at Delhi on September 2, 1998 against the first petitioner and his brothers Bhim Singh, Virender Singh and Narender Singh.
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3. The main ground on which the petition has been filed for quashing of the F.I.R. and the proceedings emanating therefrom and pending before the trial Court at Delhi is that the offences, if any, under sections 498A/406 IPC were committed at Lucknow and, therefore, the FIR could not have been lodged in Delhi and the Metropolitan Magistrate at Delhi has no jurisdiction to try the offences. In order to judge the validity of the submission it will be necessary to refer to the complaint filed by Smt. Pushpa with Crime against Women Cell, Sarai Rohilla, Delhi. As per the complaint, the marriage between the complainant, Pushpa, and the first petitioner was solemnised at Delhi, according to Hindu rites and customs. The father of the bride is stated to have performed the marriage with great pomp and show and spent a sum of Rs. 6 lakhs thereon. It is also asserted that she was given articles worth Rs. 4 lakhs at the time of marriage by her parents. After marriage she was first taken to village Majhol (Jabardustpur), District Saharanpur, Uttar Pradesh, where she stayed for about a week and thereafter, to the matrimonial home at Lucknow where she resided with the first petitioner. At Lucknow the brothers of the first petitioner (second, third and fourth petitioners) used to visit them. Soon after marriage the petitioner started pressurising her to bring a sum of Rs. 3 lakhs for purchase of a flat in the name of the first petitioner at Lucknow. She was also told by them that if she failed to bring a sum of Rs. 3 lakhs for the purchase of a flat the first petitioner would divorce her.
Since she was not able to meet the demand of the petitioners in respect of Rs. 3 lakhs, she was administered poison as a result whereof, she was admitted to the Gandhi Memorial Hospital at Lucknow on December 17, 1993. During her illness she was made to sign number of blank sheets of papers by the petitioners. Her parents on coming to know of her illness went to Lucknow and on her discharge from the hospital brought her to Delhi. On April 21, 1994 when she went back to Lucknow again, she was mentally and physically tortured by the petitioners. It is claimed that on June 2, 1994 the fi
rst petitioner administered a severe beating to her at the instigation of his brothers and she was turned out of the house. S
he was also threatened that in case she tried to enter the house she would be killed. In these circumstances, she returned to Delhi, virtually in three clothes and since then
she is residing with her parents and no maintenance is being paid to her by the husband. It is also alleged that her jewellery and clothes are being kept by the first petitioner and his brothers. Attempts to secure the return of her stridhan have not fructified. In the complaint she also alludes to the fact that the first petitione
r had developed friendship with several girls and he had threatened to marry one of them. She was told that if she would report the matter to the police the petitioners would have her declared of an unsound mind. On september 11, 1997 a further supplementary statement of Pushpa was recorded by the police during investigation of the case. In her supplementary statement she asserted that her father gave sufficient dowry in her marriage. At the time of marriage, the second petitioner Bhim Singh demanded a sum of Rs. 1 lakh and a car, however, her father gave a sum of Rs. 1 lakhs and a motor cycle. In the supplementary statement, she more or less reiterated the facts stated in the complaint, including the allegation that the articles of stridhan are still with the first petitioner and her brother-in-law (Jeth); which have not being returned to her. To the similar effect are the statement and supplementary statement of her father under section 161 of the Code of Criminal Procedure, 1973 (for short 'the Code').
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4. It is common knowledge that when a bride leaves her parental home for matrimonial home stridhan presented to her by the parents and others for all practical purposes is placed under the charge and dominion of her husband and/or his family members. Normally at that stage she being a new bride placed in an unfamiliar environment and bound by the traditional moorings of the society, cannot take care of her stridhan especially when she is required to be shy and bashful and to keep her head covered and more often than not, to conceal her face by covering the same. In such a situation how can she look after her stridhan or even enquire about it. It is actually her in-laws who exercise control and dominion over the same during the transit and at the matrimonial home till the same, if at all, is made over to her. This dominion over the property amounts to its virtual entrustment to them under section 406 I.P.C. There is no reason to treat the case of Pushpa differently. In the circumstances, the petitioners would have exercised dominion over her stridhan right from Delhi, where marriage took place. Failure to recognise such a situation would amount to negating the realities of life and the traditions. Basically the question of entrustment is a question of fact which is to be determined ultimately during the trial.
5. Insofar as trial of an accused for an offence of misappropriation of stridhan under section 406 I.P.C. by a court within whose jurisdiction dowry articles are entrusted is concerned, poses no difficulty and undoubtedly that court under section 181 of the Code will have the jurisdiction to try the case. Therefore on this aspect no further discussion is required and the same can be left at that with the observation that since prima facie the petitioners had the dominion over the stridhan of Pushpa right at Delhi, the trial court at Delhi has the jurisdiction to try the case.
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6. The further questions which require determination are whether the petitioners were required to return the stridhan at Delhi where Pushpa is residing with her parents after leaving the matrimonial home at Lucknow, and if so, whether the Court at Delhi will have jurisdiction to try the petitioners for offences under sections 406 and 498A.
7.
It appears to us that when a bride is deprived of her stridhan by her in-laws, she is entitled to receive it back at a place where she resides. If she resides at her husband's place, it becomes the place where she is entitled to receive back her stridhan. If due to estrangement with the husband and/or in-laws, she resides with her parents, it will be her parents' place where she is entitled to receive back her stridhan from her husband and/or in-laws. In the complaint it is categorically alleged that despite attempts to secure the return of the stridhan by the parents of Pushpa the same was not returned by the petitioners. Since Pushpa, according to the complaint, is staying at Delhi with her parents, she would be entitled to receive her stridhan at Delhi.
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8. Section 6 of the Dowry Prohibition Act, 1961, provides that where any dowry article is received by any person, that person shall transfer it to the woman in connection with whose marriage that article has been received and pending such transfer shall hold it in trust for the benefit of the woman. Thus, the person receiving the dowry articles, or the person who has dominion over the same, is under a legal obligation to transfer the same to the woman for whom he holds the dowry in trust. This obviously means that the dowry articles must be transferred to the woman at a place where the latter resides. How can any transfer be made at a place where she does not reside. Applying the provisions of Section 6 of the Dowry Prohibition Act, 1961, the petitioners were required to deliver the stridhan to Pushpa at Delhi as she is residing at Delhi. We are fortified in this view by the decision of the Patna High Court in Sardar Harpal Singh and Another Vs. Balbinder Pal Kaur and Another, III (1992) C.C.R. 2598.
9. At this stage it will be necessary to notice Sub-section (4) of Section 181 of the Code which reads as follows :-
"181. Place of trial in case of certain offences.-
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(4) Any offence of criminal misappropriation or criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject to the offence was received or retainer, or was required to be returned or accounted for, by the accused person.
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10. T
hus, as per Section 181(4) of the Code, offence under section 406 I.P.C. would be triable not only where the property which is subject-matter of the offence was received but also at a place where it was required to be returned or accounted for by the accused person. It is, therefore, clear that the offence under section 406 I.P.C., in the instant case would be triable at Delhi for the additional reason that stridhan was required to be returned or accounted for at Delhi by the accused persons since due to their alleged cruelty she had to abandon the matrimonial home and shift her residence to Delhi. She cannot be compelled to file a complaint at Lucknow, a place where she no longer resides. In case this is not so, an unjust situation will be created.
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11. It also needs to be noted that the act of non-return of stridhan by the bridegroom and his relatives is not only covered by Section 406 IPC, but is also an act which amounts to cruelty and would be covered under section 498A I.P.C. Depriving a bride of her stridhan and not returning the same to he surely constitutes cruelty. Besides, non-payment of maintenance to the bride, demands of dowry by the in-laws from the bride and/or her parents and consequential harassment of the bride on failure to meet the demands, etc., are all instances of maltreatment, humiliation and cruelty. In such like cases cruelty would not be confined to the matrimonial home, but it will transcend the boundaries of the matrimonial home and have a reach over the bride residing at her parental home as well. In the instant case, as per the complaint and the supplementary statement of Pushpa, she is still being deprived of her dowry and maintenance. This deprivation continues day after day, event at Delhi and constitutes cruelty. The outcome of the alleged acts of cruelty of the petitioners, is that Pushpa was deprived of her matrimonial home and she had to shift to her parental home at Delhi. We are not impressed by the submission of the learned counsel for the petitioners that the offences, if any, alleged to have been committed by the petitioners, under section 406 and 498A I.P.C., were committed at Lucknow and the misappropriation, if any, also took place there. It appears to us that the petitioners can be tried at Delhi not only for an offence under section 406 I.P.C. but also for an offence under section 498A IPC since the alleged cruelty of petitioners towards Pushpa continues at Delhi. Even from another point of view the petitioners can be tried at Delhi. In the instant case their alleged acts of cruelty and misappropriations are connected with each other so as to form part of the same transaction. By virtue of Section 184 read with Section 220 of the Code, the offences under sections 406 and 498A IPC can be tried together at Delhi.
12. In Surinder Kaur Vs. State of Punjab and Others, 1997 (3) C.C.C. 355 (HC), where the parties were married at Amritsar, they stayed and lived at Malerkotla, the wife was ill-treated and tortured at the matrimonial home to extract valuables and cash from her parents and proceedings under section 498A/406/496 I.P.C. were initiated at Amritsar, it was held that the Court at Amritsar had the jurisdiction to try the aforesaid offences at Amritsar. In this regard it was observed as follows :-
"Insofar as it pertains to the offence under Section 498-A Cr. P.C., these instances have taken place at Malerkotla, and that offence would be triable in the Court of Malerkotla, if that is the only offence to be tried in this case. In this case there is an allegation regarding offence under Section 406 IPC also. Offence under Section 406 IPC is triable at the place where the offence of Criminal breach of trust was committed, or at the place where any part of the property which is the subject matter of the offence, was received or retained, or was required to be retained or was required to be returned or accounted for by the accused persons. Clause 4 of Section 181 Cr. P.C. applies to such cases. In this case admittedly the marriage took place at Amritsar. It was contended by the respondent that there is no allegation that a particular Stridhan' article was given or entrusted to a particular accused. In respect of entrustment of 'Stridhan' articles one has to take into consideration to common custom followed at the time of entrustment of such articles. These articles are sent along with the bride when she leaves her parents house soon after the marriage and enters in her matrimonial home. These articles are normaly kept in her atrimonial home. The term 'entrustment' in such cases is to be understood and interpreted in view of definition in Section 405 of the IPC which contemplates that entrustment could be dominion of the accused over property. It is enough if the circumstances indicate that the accused had dominion over the property. Presently, I need not deal with aspect in details. Suffice it to mention that since the marriage took place at Amritsar and the 'Stridhan' in question had also left along with the bride when she left her parents house, the accused can be said to under obligation in the particular situation to return those articles at the place where the wife requires it to be returned. To spell out the offence under Section 406 IPC, it would be matter of evidence as to who can be said to be under obligation to return these articles. An ambiguity in that respect in the complaint would be an aspect to be considered while evaluating the evidence, by applying as one of the tests as to whether the ambiguity is an omission amounting to contradiction as per explanation to Section 162 Cr. P.C.
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Para 11 of the complaint Annexure-P.2 indicate that the petitioner had demanded the dowry articles and 'Stridhan' articles but the accused declined to return. Thereafter the petitioner came back to her parents house. Allegedly, while in the house of the accused, the wife had demanded these articles, but the accused declined to return these articles. If these articles formed the 'Stridhan', articles given to the bride at the time of marriage, in this particular case, these are required to be returned to her at the place where she was presently staying. Thus for both these reasons it would appear that the offence punishable under Section 406 of IPC is triable at Amritsar.
The question, therefore, is in which of the two courts the case be triable in case offences under Section 498-A IPC is triable in one Court, and offence under Section 406 IPC is triable in either of the two courts. The reply in that respect can be found under Section 184 Cr.P.C. It provides that in a case where person is charged with more than one offences which by virtue of provisions of under Sections 219, 220 and 221 of Cr.P.C. can be enquired into or tried by any court competent to enquire that case may be tried in any of these courts. Section 220(1) Cr.P.C. provides that in case where any one series of acts connected to one another form same transactions, more offences than one are committed by the same person, he may be charged with an tried at one trial for every such offence. The question thus is as to whether it could be said that offence under Section 498-A and Section 406 in this case are the outcome of series of acts connected to one another so as to form same transactions. In order to sort out that aspects one has to take into consideration the sequence of events in this case. Allegations are that accused committed acts falling under Section 498-A IPC. That ultimately culminated into the deprivation of the matrimonial home to the wife. At the same time she had demanded the return of 'Stridhan' which was declined. So the events in this case are are so closely connected with each other that it can be safely said that these form series of act in the course of and resulting in cruelty under Section 498-A IPC. These are series of acts so connected together as to form transaction of cruelty as defined by Explanation to Section 498-A IPC. The word 'transaction' is a noun form the transitive verb 'transit', the dictionary meaning of which, among other, is to carry on or conduct activities to a conclusion. In this case the allegation of conduct falling under Section 498-A IPC also encompasses the alleged denial to return 'Stridhan'. In my opinion, therefore, these could have been tried at the Court in Amritsar also.
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13. We are in full agreement with the principles laid down in the aforesaid case. In the case in hand, the alleged cruelty cannot be said to have come to an end once Pushpa was made to leave her matrimonial home at Lucknow. As per the allegations, as a consequence of the cruelty, she had to take refuge at her parental home at Delhi. That apart, as already pointed out, non-return of stridhan is one of the facets of cruelty. In the circumstances, therefore, the alleged cruelty did not end at Lucknow, despite the fact that Pushpa reached her parental home at Delhi.
15. At this stage we would like to notice with approval, the decision rendered by Kapoor, J. in Pritam Singh and Others Vs. State of Delhi and Another, 1999 (1) JCC (Delhi) 322, where it was held as follows:-
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"There cannot be any doubt that sub-section (2) of Section 182 has specifically provided that any offence punishable under Section 494 or Section 495 of the Indian Penal Code may be inquired or tried by a court within whose local jurisdiction the offence was committed or the offence(?) last resided with her or her spouse or the wife of the first marriage has taken up permanent residence after the commission. But this Sub-section (2) is confined to offence punishable under Sections 494 and 495, though it indicates a specific legislative intention to provide a forum at the Place where the aggrieved wife has taken a permanent residence after the commission of the offence. In order to prove real protection and to avoid any ambiguity, it may be desirable that Section 498-A as well as offence under Section 406 relating to matrimonial matters should also be included in sub-section (2) of Section 182 Cr.P.C. But in any case Section 180 clearly pro vides for the continuing offences under Section 498-A in the cases like the present one, the aggrieved wife could file a case before the Court in whose jurisdiction she is residing.
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Prima facie it appears that she was so much tortured and illtreated in Patiala that she feels insecure to stay at Patiala specially on account of threats given to finish the complainant and her son in case she was seen in Patiala. As a consequence thereof, she had to leave her matrimonial home at Patiala and had to live here in Delhi at her father's house. She could not have left her matrimonial home, if she would not have been subjected to ill-treatment and torture. Consequences of physical atrocities and mental torture caused at Patiala are still flowing at Delhi also as mentioned hereinabove where she is residing presently at her fathers house. Consequently, in view of the provisions of Section 180 it could not be said that the Delhi Courts have no jurisdiction. Accordingly, I feel that there is virtually no substance in the submission that the Delhi Courts have no jurisdiction.
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16. Learned counsel for the petitioners relied upon a decision of the Learned Single Judge of this court in Mohan Lal and Others Vs. State, , where it was held that the alleged acts of cruelty had taken place in District Kangra, Himachal Pradesh, at the matrimonial home of the complainant and they came to an end as soon as the complainant left her matrimonial home and came to Delhi to live at her parents house. Consequently, it was held that the offence under Section 498A IPC Could not be tried at Delhi. It is significant to point out that in Mohan Lal's case (supra), it was not shown by the complainant as to how the offence was committed at Delhi. There seems to be no discussion on the question whether the wife left the matrimonial home as a result of her being subjected to cruelty by her the in-laws or otherwise. No plea seems to have been raised in the case that the stridhan of the wife was not returned to her by the in-laws despite a demand having been made by her at Delhi and the very act of misappropriation of dowry was a manifestation of cruelty. It appears to us that there cannot be any rule of general application to the effect that the cruelty comes to an end as soon as the wife leaves her matrimonial home and reaches her parental house. Each case must be judged on its own facts. In a case where a wife alleges cruelty at the hands of her in-laws and misappropriation of her stridhan by them as a consequence of which she has to leave her matrimonial home, she can certainly file an FIR in a police station which has jurisdiction over the location to which she has shifted, provided the cruelty of her in-laws continues in one form or the other e.g. non-return of her dowry, refusal to pay maintenance to her, taking away her child, extending threats to her, etc. In this regard it will be apposite to notice section 179 of the Code. It provides that when an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a court within whose local jurisdiction such a thing has been done or such a consequence has ensued.
17. The instant case exemplifies the situation where the offence of cruelty is continuing inasmuch as the wife was made to leave the matrimonial home due to the alleged maltreatment and torture and demand of dowry, and no maintenance is being paid to her. The alleged articles of dowry have still not been returned to the wife. In the given circumstances the factors constituting cruelty, therefore, still persist. Thus, not only the alleged cruelty is continuing at Delhi but the consequence thereof is also ensuing at Delhi. In this view of the matter it cannot be said that the trial court does not have jurisdiction to try the case. In Smt. Sujata Mukherjee Vs. Prashant Kumar Mukherjee, , where the complainant wife had been subjected to cruel treatment persistently, at Raigarh, the matrimonial home, and also at Raipur, the house of her parents, it was held that the incident at Raipur was not an isolated event but consequential to a series of incidents taking place at Raigarh. In the circumstances, it was held that the complaint revealed a continuing offence of maltreatment and humiliation mated out to the wife, at the hands of her in-laws. The Supreme Court, while allowing the appeal of the appellant-wife, held as follows :-
"Mr. Anoop Choudhary, learned senior counsel appearing for the State has submitted that Clause (b) of Section 178 is not attracted but if this Court is inclined to accept the ubmission of Mr. Gambhir that the offence was continuing one and the episode at Raipur was only a sequence of the continuing offence of harassment and ill treatment meted out to the complainant, clause (c) of the Section 178 may be attracted. Mr. Choudhary has submitted that from the complaint it cannot be reasonably held that all the accused had committed the offence partly in one area and partly in another local area. Therefore, it will not be appropriate to apply clause (b) of Section 178 of the Code of Criminal Procedure. In our view, there is force in such submission of Mr. Choudhary.
Despite service being effected on the private respondents, no one has appeared for any of the accused respondents. We have taken into consideration the complaint filed by the appellant and it appears to us that the complaint reveals a continuing offence of maltreatment and humiliation meted out to the appellant in the hands of all the accused-respondents and in such continuing offence, on some occasions all the respondents had taken part and on other occasion, one of the respondents had taken part. Therefore, clause (c) of Section 178 of the Code of Criminal procedure is clearly attracted. We, therefore, set aside the impugned order of the High Court and direct the learned Chief Judicial Magistrate, Raipur to proceed with the criminal case. Since the matter is pending for long steps should be taken to expedite the hearing. The appeals are accordingly allowed."
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18. Learned counsel for the petitioners submitted that to confer jurisdiction on the Metropolitan Magistrate, Delhi, for trying the offence under section 406 I.P.C. the complainant ought to have claimed that the entrustment of stridhan was made to the husband and in-laws at Delhi, or the same was retained by them at Delhi, or the same was required to be returned or accounted for at Delhi. He further submitted that there is nothing on record to show that any of these requirements have been satisfied and that there was any stipulation or agreement between the parties at the time of marriage that the stridhan would be returned to the wife at Delhi. It is common knowledge that at the time of solemnisation of marriage between the Hindus there cannot be any question of entering into a written or oral agreement for the return of stridhan at a particular place in case of estrangement between the spouses. Marriage between the Hindus is considered to be a sacrament. The couple is supposed to sail through good and bad times together and remain united during their sojourn on earth. In such marriages no one thinks of putting any conditions while giving stridhan,since the same belongs to the girl. As already noted, sub-section (4) of Section 181 of the Code clearly envisages that an offence under Section 406 I.P.C., can be tried in a court which has jurisdiction over the place where the stridhan may be required to be returned or accounted for. Obviously, a wife who has been made to leave the matrimonial home and is required to fend for herself is in a no position to run after the husband for return of her stridhan. Stridhan must be returned by the husband to the wife at the place where she resides.
19. Learned counsel for the petitioners relied upon the decision of a learned Single Judge of this Court in Rajinder Singh Vs. State and Another, 1998 VI A.D. (Delhi) 680, where it was held that since the entrustment of stridhan took place at Patiala and there was no averment in the complaint that stridhan was to be returned at Delhi or any specific demand was made by the complainant for the return of the same at Delhi, the Court at Delhi did not have jurisdiction to try the offence under Section 406 I.P.C. It was also held that since all the acts of cruelty took place at Patiala, the offence under Section 498A I.P.C. could not have been tried at Delhi. It appears that this case has been decided by the learned Single Judge having regard to its peculiar facts and circumstances. We would also like to make the same observations as we have made heretofore while dealing with the decision in Mohan Lal's case (supra). We, however, do not intend to repeat the observations and what has been stated above will apply with the same force, in relation to the principle laid down in Rajinder Singh's case (supra).
Note :
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vinayak is NOT sure if this is the complete judgement; Please post the full judgement as a comment below if you have the fully judgement ...thanks
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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist
