Full Judgment Text
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PETITIONER:
L. V. JADHAV
Vs.
RESPONDENT:
SHANKARRAO ABASAHEB PAWAR & OTHERS
DATE OF JUDGMENT30/08/1983
BENCH:
VARADARAJAN, A. (J)
BENCH:
VARADARAJAN, A. (J)
FAZALALI, SYED MURTAZA
THAKKAR, M.P. (J)
CITATION:
1983 AIR 1219 1983 SCR (3) 762
1983 SCC (4) 231 1983 SCALE (2)175
CITATOR INFO :
R 1985 SC 628 (54)
RF 1991 SC 792 (4)
RF 1992 SC 604 (106)
ACT:
Dowry Prohibition Act, 1961-Sections 2 and 4 scope of-
Demand for payment of money made during marriage ceremonies-
Demand pressed later- Whether constitutes an offence under
section 4.
High Court-Inherent power-When should be exercised.
HEADNOTE:
In a complaint filed before the Judicial Magistrate the
appellant (bride’s father) alleged that during the marriage
ceremonies the first respondent (bride groom’s father) had
demanded a large sum of money to be paid to him as dowry and
threatened that if the appellant did not pay the sum he
would stop further marriage ceremonies, that even after his
daughter. had gone to the first respondent’s house after the
marriage the respondent’s continued to demand payment of
money and that this constituted an offence under section 4
of the Dowry Prohibition Act, 1961.
After verifying the complaint the Judicial Magistrate
issued processes to the respondents and sent summons is to
the United States where the respondents were,
Allowing the respondent’s application impugning the
order of the Magistrate issuing summonses, the High Court
held that since there was no allegation in the complaint
that the respondents first demanded the dowry and the
appellant had agreed to pay it and the respondents
thereafter demanded it again, no offence under section 4 was
made out.
In the appeal to this Court it was contended on- behalf
of the appellant that a mere demand for dowry, even if there
was no consent to comply with that demand, would constitute
an offence under section 4 of the Act.
Allowing the appeal,
^
HELD: From a reading of section 2 of the Act, it would
appear that consent to comply with demand for payment of any
property or valuable securities as ’consideration’ for the
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marriage would alone make the property or valuable security
given or agreed to be given directly or indirectly "dowry"
763
within the meaning of the Act. But having regard to the
dominant purpose of the Act the entries definition of
"dowry" should not be imported into section 4. The
dictionary meaning of the word ’bride’ is a woman about to
marry or has just been married and a ‘bridegroom’ is a man
who is about to marry or has just been married. If the
literal-meaning of these words is given to the words bride
and bridegroom used in the section any property or valuable
security demanded and contented to be given before the woman
had become a bride or the man had become a bridegroom may
not be dowry. The avowed object of the Act being to
eradicate the evil of demanding dowry, a liberal
construction has to be given to the word "dowry" to mean any
property or valuable security which if consented to be given
on demand would be dowry within the meaning of section 2.
There is, therefore, no warrant for the respondents’
contention that initial demand for dowry would not
constitute an offence but that it would be an offence only
when the demand was made again after the party on whom it
was made had agreed to comply with it. [771 B-H; 722 A]
Inder Sain and Another v. The State, 1981 Crl. L.J.
1116 approved.
The inherent power of the High Court must 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 this case the High Court should have refused to
involve its inherent power at the threshold to quash the
proceedings.
[772 B-C]
JUDGMENT:
CAIMINAL APPELLATE JISRISDICTION: Criminal Appeal No
494 of 1982.
Appeal by Special Leave from the Judgment and order
dated the 22nd December, 1981 of the Bombay High Court in
Criminal Appln. No. 283 of 1981.
Y. S. Chitale. V. N. Ganpule, Sirish Gupta and Mrs.
V.D. Khanna for the Appellant.
V. S. Desai and G. B. Sathe for the Respondent.
P. G. Gokhale and M. N. Shroff for the State of
Maharashtra.
The Judgment of the Court was delivered by
VARADARAJAN, J. This appeal by special leave is
directed against the judgment of a Division Bench of the
Bombay High Court in Criminal Application No. 283 of 1981,
quashing the proceedings in Criminal Case No. 1634 of 1980
on the file of the Judicial Magistrate, First Class (Anti
Corruption), Pune. The application in the High Court was
filed by the respondents in this appeal, who are the
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two accused in that criminal case, for quashing the
criminal proceedings as well as the order of the Judicial
Magistrate, issuing processes against them in that case.
The appellant L. V. Jadhav was the first respondent
while State of Maharashtra was the second respondent in the
application before the High Court. The first respondent
Shankarrao Abasaheb Pawar is the father of the second
respondent Pradeep Shankarra Pawar. There was a proposal to
get the appellant’s daughter Anita, a Science Graduate,
married to the second respondent, a double Graduate in
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Engineering, working in the United States. After Anita and
the second respondent approved each other there was an
engagement ceremony on 12.6.1978 at Pune and the marriage
was performed at that place on 19.6.1979 after the first
respondent came from the United States in May 1979.
According to the appellant’s complaint, when the
marriage ceremonies were in progress on 19.6.1979, both the
respondents demanded a cash of Rs. 50,000 from the appellant
in the presence of respectable persons under the pretext
that the money was required for the transport of Anita and
the second respondents to the United States. The respondent
told the appellant that if he did not comply with that
demand by way of dowry further ceremonies monies would not
be completed. Some respectable persons who were present at
that time persuade the respondents to complete the marriage
ceremonies and formalities and thereafter the marriage
ceremonies were over. The second respondent alone went to
the United States in July 1979 as the passport and visa for
Anita had to be arranged which was done some time later
while Anita was staying in the house of the first
respondent. Anita was not sent to the United States and the
respondents continued to persist in their demand for the
money when she was staying in the first respondent’s house.
The appellant filed a complaint before the Judicial Magis-
trate, First Class on 5.6.1980 against both the respondents,
alleging that they had committed an offence under s. 4 of
the Dowry Prohibition Act, 1961 by demanding the sum of Rs.
50,000 as mentioned above. This was done after the appellant
had obtained the necessary sanction required by the proviso
to s 4 of the Act. The Judicial Magistrate verified the
complaint and issued processes to the respondents and sent
summonses to the United States where the first respondent
was staying with the second respondent at that time.
765
The respondents challenged the Magistrate’s order
issuing summonses to them by filing their application in the
High Court. The learned Single Judge before whom the
application originally came up for consideration referred to
a Division Bench. The contention of the learned counsel for
the respondents before the High Court was that even if the
allegations made in the appellant’s complaints were true no
offence under s. 4 of the Act is disclosed, whereas for the
appellant it was contended before the High Court that the
aforesaid demand for Rs. 50,000 would constitute an offence
under s. 4.
Reading the definition of "dowry" given in s. 2 of the
Act into s. 4, the learned judges held that for bringing a
case under s. 4 of the Act, there must be a demand for dowry
as such, that is, for any property agreed to be given as
consideration for the marriage, and that as there is no
allegation in the complaint that the appellant had agreed to
pay the sum of Rs. 50,000 and the respondents thereafter
demanded the same no offence under s. 4 of the Act is
disclosed in the complaint. In that view the learned judges
allowed the respondent’s application and quashed the
proceedings in the appellants’s complaint and the
Magistrate’s order issuing the processes to the respondents.
Hence this appeal by special leave.
The question for consideration is whether the
allegation made in the appellant’s complaint that there was
a demand by the respondents when the ceremonies of the
marriage of Anita with the second respondent were in
progress, for the payment of Rs. 50,000 to be made by the
appellant on pain of the marriage ceremonies not being
completed if the demand was not complied with under the
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pretext that the said amount was required for the passage of
Anita and the second respondent to the United States
discloses an offence under s. 4 of the Act. It would be
necessary to extract the following relevant ss. 2 to 5 and 8
of the Act for easy reference in order to consider the
question:
"2. In this Act, "dowry means 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
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(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 mahr in the
case of persons to whom the Muslim Personal Law
(Shariat) applies.
Explanation I-For the removel of doubts it is
hereby declared that any presents made at the time
of a marriage to either party to the marriage in
the form of cash, ornaments, clothes or other
articles, shall not be deemed to be dowry within
the meaning of this section, unless they are made
as consideration for the marriage of the said
parties.
Explanation II- The expression "valuable
security" has the same meaning as in section 30 of
the Indian Penal Code.
3. If any person after the commencement of
this Act, gives or takes or abets the giving or
taking of dowry, he shall be punishable with
imprisonment which may extend to six months, or
with fine which may extend to five thousand
rupees, or with both.
4. If any person after the commencement of
this Act, demands, directly or indirectly, from
the parents or guardian of a bride or bridegroom,
as the case may be, any dowry, he shall be
punishable with imprisonment which may extend to
six moths, or with fine which may extend to five
thousand rupees, or with both;
Provided that no court shall take cognizance
of any offence under this section except with the
previous sanction of the State Government or of
such officer as the State Government may, by
general or special order, specify in this behalf.
5. Any agreement for the giving or taking of
dowry shall be void.
767
6. Every offence under this Act shall be non-
cognizable, bailable and non-compoundable."
According to the appellant’s complaint, when the
marriage of his daughter Anita and the second respondent,
the son of the first respondent, was in progress on
19.6.1979, both the respondents demanded from him cash of
Rs. 50, 000 in the presence of respectable persons under the
pretext that the amount was required for the passage or
transport of Anita and the second respondent to the United
States where the second respondent was employed at that time
and they told him that if he did dot comply with their
demand by way of dowry further ceremonies in the marriage
would not be completed. It is further alleged that some
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respectable persons who were present at that time persuaded
the respondents to complete the marriage ceremonies and
formalities and thereafter the marriage ceremonies were
completed and that subsequently the second respondent went
to the United States in July 1979 alone because the passport
and visa of Anita had to be arranged which was done some
time later while Anita was staying in the house of the first
respondent, and the respondents continued to persist in
their demand for the money when Anita was saying in the
house of the first respondent without being sent to the
United States. Mr. V. S. Desai, Senior Advocate, appearing
for the respondents invited our attention to the decision of
a learned Single Judge of the Delhi High Court in Inder Sain
and another v. The State(1) and also of another Single Judge
of the Patna High Court in Kashi Prasad and others v. State
of Bihar and others(2) and submitted that the demand for Rs.
50,000 alleged in the complaint would not constitute an
offence under s. 4 of the Act as there is no allegation in
tile complaint that the appellant consented to pay the
amount and that without consent to the payment the sum of
Rs. 50,000 alleged to have been demanded does not become
dowry within the meaning of s. 2 of the Act which 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;
768
at or before or after the marriage as
consideration for the marriage of the said
parties, but does not include dower or mahr in the
case of persons to whom the Muslim Personal Law
(shariat) applies."
Section 2 contains two explanations with which we are not
concerned in this case. In the Delhi High Court’s decision
the question for consideration was what constituted
"consideration" for marriage within the meaning of s. 2 of
the Act, and Luthra, J, has observed:
"Thus the definition of the word
"consideration" leads to the conclusion that the
property or valuable security should be demanded
or given whether in the past, present or future
for bringing out solemnization of marriage. After
the marriage, giving a property or valuable
security by the parents of the bride cannot
constitute a "consideration" for the marriage
unless it was agreed at the time of or before the
marriage that such property or valuable security
would be given in future."
The complaint i n that case did not spell out that the
articles mentioned in the same were given after the marriage
as a result of some agreement for the purpose of the
marriage. The allegations in the complaint jndicated that
those articles were given after the marriage with a view to
have smooth sailing and continuance of good material
relations. The learned Judge, therefore, held that the
articles given in those circumstances did not constitute
dowry within the meaning of s. 2 of the Act. We think that
the learned judge is right in holding so, and that it is
desirable that even such a demand should be prohibited and
made punishable in law.
We are concerned in the present case with a complaint
in which it has been alleged that the demand for the sum of
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Rs. 50,000 as dowry was made when the marriage ceremonies
between the appellant’s daughter Anita and the second
respondent were in progress, by both the respondents. under
the pretext that it was required for the passage of the
parties to the marriage to the United States with a threat
that if the amount was not paid the marriage ceremonies
would not be completed and that there was demand for payment
of the amount even after the marriage ceremonies were over
when Anita was staying in the house of the first respondent
after the second respondent went away alone to the United
States because the, passport
769
and visa for Anita had not been obtained by then. The
decision of even the Patna High Court relied upon by Mr.
Desai relates only to what constitutes "consideration" for
the marriage within the meaning of s 2 of the Act. On the
other hand, Dr; Y.S. Chitale, Senior Advocate, appearing for
the appellant invited our attention to a decision of a
Division Bench of the Bombay High Court in Daulat Mansingh
Aher v. C.R. Bansi and another(1) and submitted that a mere
demand for money as dowry for completing the marriage
ceremonies on pain of not completing the ceremonies if the
money was not given is sufficient to constitute an offence
under s. 4 of the Act even though there was no consent on
the part of the appellant to comply with that demand. What
appeared from the record of the case out of which the
decision of the Bombay High Court arose, was that the
accused-petitioner filed an application on 6.10.1978 raising
a contention that the Court of the Metropolitan Magistrate,
Dadar, Bombay had no jurisdiction to entertain and try the
case because the accused and the complainant were residing
’outside the jurisdiction of that Court. A contention was
also raised that the complaint was barred by limitation and
was, therefore, liable to be dismissed. However, during the
arguments in the High Court it was conceded by the learned
counsel for the accused-petitioner that the complaint was
filed within the period prescribed. Therefore, the only
question that arose for consideration by the learned Judges
of the Division Bench was the one relating to the
jurisdiction of the Metropolitan Magistrate, Dadar, Bombay
to entertain and inquire into the complaint. However, the
learned Judges have observed in the judgment after
extracting s. 4 of the Act that "what is made punishable
under that provision is the demand itself, whether direct or
indirect, from the parents of a bride or bridegroom". The
learned Judges have further observed thus:-
"On the averments made in the complaint the
demand is made by the accused by writing a letter
from Wadala, Bombay-31. This demand was made
through his elder brother who is the son-in-law of
the complainant and resides at Agartala. From
Agartala the said letter of demand was forwarded
by the son-in-law of the complainant to Andheri,
Bombay where the complainant is residing.
Therefore, the demand by accused was not made at
Agartala. He had only used the good offices of
770
his elder brother to forward the letter. Instead
of writing a direct letter to complainant
demanding dowry, the demand was made through the
elder brother who is residing at Agartala. Still
the demand is by accused and is made from Wadala
at Bombay. The demand became complete when the
complainant received the letter at Andheri,
Bombay. Hence the dowry was demanded at Bombay.
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The offence was partly committed at Wadala,
Bombay, from there the dowry was demanded. It was
also committed at Andheri, Bombay, where the
complainant received the demand letter. It is
further alleged by the complainant in the
complaint that the marriage of Alka which was
almost settled, could not take place due to the
demand of dowry made by the accused. This
consequential result or consequence of the demand
also took place at Bombay. Wadala is within the
local jurisdiction of Metropolitan Magistrate,
Dadar. Letter of demand was actually sent from
Wadala, Bombay. Hence, in any case it can safely
be said that offence as alleged is partly
committed at Wadala also. Though a contention was
raised before the trial court that neither accused
nor complainant are residing within the jurisdic-
tion of the Dadar Court, now it is an admitted
position that accused resides at Wadala.
Even if it is held that offence became
complete when complainant received letter at
Andheri, Bombay, still it will be triable by
Bombay Court. Whether it is Dadar or Andheri Court
will not make any difference. On tho other hand we
are told that Dadar Court is nearer to the
residence of accused. The point raised is too
technical and no prejudice will be caused to the
accused nor on that count it could be said that
trial is vitiated; or will result in failure of
justice. Hence there is no substance in this
contention".
It appears from a reading of this judgment that it was
either not disputed before the learned Judges or that it was
presumed that a mere demand for property as consideration
for the marriage taking place would constitute an offence
under s. 4 of the Act.
The Dowry Prohibition Act, 1961 is intended to prohibit
the giving or taking of dowry, and Parliament has made every
offence
771
under the Act non-compoundable by s. 8 of the Act. By s. 5
it has been enacted that any agreement for the giving or
taking of dowry shall be void. Section 3 makes abetment of
the giving or taking of dowry an offence. No doubt,
according to s. 2 of the Act "dowry" is any property or
valuable security given or agreed to be given either
directly or indirectly at or before or after the marriage as
consideration for the marriage but does not include dowar or
mahr in the case of person to whom the Muslim Personal Law
(Shariat) appear applies. It would appear from s. 2 that
consent to comply with the demand for any property as
consideration for the marriage would alone make the property
or valuable security given or agreed to be given directly or
indirectly, "dowry" within the meaning of the Act. But
having regard to the dominant object of the Act which is to
stemp out the practice of demanding dowry in any shape or
form either before or after the marriage, we are of the
opinion that the entire definition of word "dowry" should
not be imported into s. 4 which lays down that "if any
person after the commencement of this Act, demands directly
or indirectly from the parents or guardian of a bride or
bridegroom, as the case may be, any dowry, he shall be
punishable with imprisonment which may extend to six months
or with fine which may extend to five thousand rupees or
with both". According to Webester’s New World Dictionary,
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1962 edn. bride means a woman who has just been married or
it about to be married, and bridegroom means a man who has
just been married or is about to be married. If we give this
strict meaning of a bride or a bridegroom to the word bride
or bridegroom used in s. 4 of the Act property or valuable
security demanded and consented to be given prior to the
time when the woman had become a bride or the man had become
a bridegroom, may not be "dowry" within the meaning of the
Act, We are of the opinion that having regard to the object
of the Act a liberal construction has to be given to the
word "dowry" used in s. 4 of the Act to mean that any
property or valuable security which if consented to be given
on the demand being made would become dowry within the
meaning of s. 2 of the Act. We are also of the opinion that
the object of s. 4 of the Act is to discourage the very
demand for property or valuable security as consideration
for a marriage between the parties thereto. Section 4
prohibits the demand for ’giving’ property or valuable
security which demand, if satisfied, would constitute an
offence under s. 3 read with s. 2 of the Act. There is no
warrant for taking the view that the initial demand for
giving of property or valuable security would not constitute
an offence and that an offence would take place only when
772
the demand was made again after the party on whom the demand
was made agreed to comply with it. The learned Magistrate
was, therefore, right in proceeding on the basis that the
allegations in the complaint prima facie constitute an
offence under s. 4 of the Act and issuing processes to the
respondents. 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. The present was not such a case. We find that the
complaint had been filed after obtaining the previous
sanction of the State Government or of such officer as the
State Government may by general or special order specify in
this behalf as required by the proviso to s. 4 of the Act.
Mr. P.G. Gokhale who appeared for the second respondent,
State of Maharashtra, was not in a position to tell us about
what the exact stand of the State Government in this appeal
is as to whether it supports or opposes the contention of
the appellant that the allegation made in the complaint
constitutes an offence under s. 4 of the Act. For the
reasons stated above, we allow the appeal and direct the
learned Judicial Magistrate, First Class to take further
proceedings on the complaint and dispose of the case
according to law.
P.B.R. Appeal allowed.
773