16 Dec 2009

Offence of dowry and curety sustainable even when no legal marriage: Supreme Court

In a recently reported decision, the Supreme Court has held that a person can be convicted for the offence of cruelty by husband against wife [under Section 498A of the Indian Penal Code] even though the lady may NOT be a legally-wedded wife of the person. The Supreme Court was considering the correctness of the High Court decision in declining to quash the proceedings initiated against a person under Section 498A on the point that the complainant was not his wife.

The Supreme Court was of the view that it is not required to prosecute for an offence under Section 498A (cruelty relating to dowry, etc.) that the relationship is one of husband and wife. The Court contrasted the ingredients of an offence of 'bigamy' from one of 'cruelty' and also the purpose behind introduction of the offence under Section 498A in the statutes. It observed,

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. ...
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.
11. 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.
12. 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).
13. 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."
14. 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.
15. ... 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.
16. 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.
17. 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.
In this background the Court posed to itself the question "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?" to answer thus;

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 arriving at this conclusion, the Supreme Court applied the 'rule of purposive interpretation' and observed as under to this regard;
18. 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.
19. 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.
20. 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".
21. 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).
22. 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 statutemaker, 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."
23. 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."
24. These aspects were highlighted by this Court in S. Gopal Reddy v. State of A.P. (1996 (4) SCC 596) and Reema Aggarwal v. Anupam (2004 (3) SCC 199.
The Court also took note of the settled law that "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". It observed to this regard as under;

8. 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 Supreme Court incidentally also noted the significance of marriage. It observed,
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.

No comments: