R.C.Deo Sharma - (1.) THROUGH this application under section 482 of the Code of Criminal Procedure the applicants have prayed that the criminal complaint under sections 406, 120 and 109, IPC filed by the opposite party no.-1 against the applicants and pending in the court of the Special Judicial Magistrate, Sri Pratap Narain, at Lucknow be quashed. The facts giving rise to this application are briefly these.
(2.) SMT. Kishwar Jahan, daughter of opposite party no. 1 Abid Husain, was married to the applicant no. 3 Abdul Sattar on 16-11-73 according to Islamic rites. The couple, however, could not pull on well for long and it appears that differences arose. The applicants' contention is that SMT. Kishwar Jahan wanted her husband to become separate from his parents and live separately to which, being a dutiful son of his parents, he refused. The contention of SMT. Kishwar Jahan, however, was that the applicants expected much more dowry than what she had brought in the marriage and consequently they started harassing her and even gave her physical beating and ultimately her husband pronounced divorce according to Islamic law. She bore three children to her husband. Divorce was pronounced by the husband on 5-3-78 whereafter she was taken by her father to live with him at his house. A notice annexure 1 to the application was given by her father to the applicant no. 3, the husband, calling upon him to pay the dower debt of Rs. 5000/- as was settled at the time of marriage and also to return the ornaments and other articles of dowry valued at Rs. 10,000/- and further to pay Rs. 500/- per month towards her maintenance besides Rs. 300/- per month for the maintenance of the three children. The eldest child at that time was three and a half years and the youngest only seven months old. The husband gave a reply to the notice which is annexure 2 to the petition admitted that the marriage was performed as alleged and Rs. 5000/- was fixed as dower and that three children were born to them out of the wedlock. The allegations about maltreatment, torture or physical beating were denied and it was contended that because his wife wanted him to leave the parents and live separately which he declined, therefore, she herself asked for divorce which was pronounced as desired. Regarding ornaments his contention was that she had taken away with her all the ornaments and he did not object to that, but the remaining articles of presents and dower given at the time of the marriage were with him which he was always prepared to handover in accordance with the list of articles prepared at the time of marriage and a copy whereof should be available with his father-in-law. He also volunteered to pay Rs. 200/- per month to the divorced wife during the period of 'iddat' but denied his liability to pay anything thereafter. Regarding maintenance for the children he shewed his willingness to discharge his obligation provided the children were allowed to meet him and live with him occasionally and when they were grown up so as to be given to his custody in accordance with law, he would be prepared to maintain them fully thereafter. The liability to maintain SMT. Kishwar Jahan after the divorce was, however, denied. Sometime after the reply to the notice was given Abid Husain, opposite party no. 1, filed a complaint under sections 406, 109 and 120, IPC, against the three applicants alleging that the; marriage of his daughter with applicant no. 3 was performed on 16-11-73 and an amount of Rs. 5000/- was fixed as dower. It was also alleged that ornaments worth Rs. 10,000/- and other articles of presents and dowry worth Rs. 10,000/- were given at the time of the marriage to his daughter as detailed in list 'A' appended to the complaint. Further allegation in the complaint was that the ornaments and clothes of his daughter were given to her father-in-law and mother-in-law the same evening at about 5 PM shortly after the marriage while the rest of the articles were given in the custody of the husband and his parents. According to the complaint all the three applicants to whom these articles were entrusted agreed that the ornaments, clothes and utensils: meant for Smt. Kishwar Jahan and given to her in dowry would be handed over to Smt. Kishwar Jahan at the house and that they would have no personal concern with any of these articles but thereafter this was not done and Smt. Kishwar Jahan was not allowed to use any of these articles. She was rather deprived of the ornaments which she was wearing on her person apart from those given in dowry. It was alleged that she was treated with cruelty and was even physically beaten and was divorced on 5-3-78. When she was brought to her parents' house nothing out of the ornaments, utensils or clothes was handed over to her, and the applicants wanted to mis-appropriate and convert the same for their own use. It was prayed that (he applicants may be tried and punished for the aforesaid offences according to law. The present application under section 482 CrPC is directed against this complaint with a prayer that the same may be quashed as its continuance would amount to abuse of process of the court and no case whatsoever was made out on the allegations made in the complaint. On behalf of the opposite party no. 1 ;no formal counter affidavit has been filed but an application supported by an affidavit was filed for vacating the interim stay order. The allegations made in the complaint were reiterated and it was stated that according to the custom and the personal law the orna- ments and other articles given to the bride at the time of the marriage as 'Dahej' belonged to her while the husband and his parents were merely entrusted with the custody thereof. It was also stated that a list of the articles given at the time of the marriage was prepared in duplicate and one copy thereof was given to her husband while the other remained with the father of the bride and a copy whereof had already been annexed to the complaint.
(3.) I have heard the learned counsel for the parties and have also gone through the record. The State opposite party no. 2 has taken no stand in the matter. The main contention of the applicants learned counsel was that on the allegations made in the complaint no case; under Section 406, IPC could be said to have been made out and consequently the complaint deserved to be quashed. In the alternative, it was contended that if the opposite party no. 1 or his daughter felt aggrieved and a case was made out on facts and law they could take recourse to the provisions of the Dowry Prohibition Act but could not prosecute the applicants under Section 406, IPC. It has not been denied that the ornaments, clothes and other articles of personal use given to Smt. Kishwar Jahan at the time of the marriage would be her personal property of which she would be owner and which she would be entitled to use in any manner she liked. Even in the reply to the notice the husband, opposite party no. 3, had stated that he was prepared to hand over all the articles according to the list, a copy whereof should be available with his father-in-law. Regarding ornaments the factual averment made in reply to the notice was that after the divorce his wife had taken away all the ornaments with her when she left his house to live with her parents. Thus there is no dispute that the articles in question were the property of Smt. Kishwar Jahan. The material question therefore, was whether in these circumstances the said property can be considered as having been entrusted to the applicants so that on demand for return if it was not given back it would amount to criminal breach of trust. Reliance was placed on the recent Ful.'l Bench decision of the Punjab and Haryana High Court in Vinod Kumar v. State, AIR 1982 Punjab and Haryana 372. That was a case governed by Hirxlu Law and it was found that the property given at the time of the marriage: or before or after that as customary presents out of love and affection etc. earlier constituted 'stridhan' property and would even now after the Hindu Marriage Act and other allied laws governing the matter would constitute her personal property. The position under the Mohemmadan Law too would :not be different. It was then held in the aforsaid Full Bench decision that if a property given as customary presents etc. or taken to the matrimonial home remained in the custody of the parents of the husband, it would not ipso-facto amount to entrustment of property to them because the possession would be deemed to be joint of the bride, bride groom and the latter's parents. The concept of the matrimonial home was the basis for holding that the possession would be joint and the case would not be considered as one of etntrustment of property. Even in that case, however, an exception was envisaged and it was that in case there was any written agreement indicating that the property would be deemed to be entrusted to the members of the family the position could be otherwise. The following observation made towards the end of Para 41 of the report may be noticed : "Whilst the law undoubtedly now clearly recognises the individual ownership of property by the husband and wife, the necessary assumption in law, therefore, would be that during the existence or even the imminent break up of the matrimonial home the concept of jointness of possession therein seems to be a paramount one. The inevitable presumption during the existeance 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 preperties within the matrimonial home can subsist only as long as the matrimonial home subsists or on the immediate break up thereof." (emphasis supplied) Again in para 47 the following observations have been made : "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 Section 405, Indian Penal Code." Thus what has been held in the Full Bench decision is that normally possession over the ornaments and other articles of traditional presents would be regarded as joint possession and would exclude the theory of entrustment of property, but this presumption could be repelled by a written agreement to the contrary. If such a presumption can be excluded by written agreement there is no reason why even oral evidence, if convincing and acceptable to court, should not be regarded as a legal equivalent of the written agreement. The emphasis on the written agreement perhaps was because of the fact that oral agreement could be easily set up to show entrustment and thereby the process of the court could be abused by instituting false criminal complaints under Section 406 IPC but apparently there does not appear to be any reason why an oral agreement to the contrary if established by reliable evidence should also not exclude the presumption of jointness and establish entrustment within the meanings of Sections 405 and 406 IPC. In the instant case a reference to para 2 of the complaint, annexure 3 to the application, would reveal that according to the complainant all the ornaments and the clothes were entrusted to the applicants no. 1 and 2 at about 5 P.. M. on the date of the marriage itself when the 'Rukhsati' ceremony had taken place. It was also stated in the same para that other articles of 'Dahej' or traditional presents were entrusted to all the three applicants and they had promised that this entire property would be handed over to Smt. Kishwar Jahan at their house. An averment about specific entrustment of the property to the applicants with a direction that the same shall be handed over to the daughter of the opposite party no. 1 was specifically made. The allegation in the complaint may or may not be true and also it may or may not be provable by reliable and acceptable evidence to the satisfaction of the trial court, but in the proceedings under Section 482 CrPC this aspect of the matter need not be gone into in such detail. If prima facie a case of entrustment of property is made out it should be left to the discretion of the trial court to decide on the basis of the evidence brought on record if the averments made can be held as duly proved. The Full Bench decision of Punjab High Court in Vinod Kumar's case (supra) has noticed another decision of the same court in Bhai Sher Jang Singh v. Virendra Kaur, 1979 CrLJ 493. Certain observations made in Bhai Sher Jang's case have been approved while some others have not been approved. On facts, however, in Sher Jang's case it was found that in case there were specific averments about entrustment of property they had to be given their legal effect. Such averments were made in that case and therefore, the application under Section 482 CrPC was ultimately dismissed. In the instant case therefore, on facts the case of Vinod Kumar (supra) will not apply and rather Bhai Sher Jong Singh's case can more appro- priately be held to be applicable.;