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Shankarrao Abasaheb Pawar and Another Vs. L.V. Jadhav and Another - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appln. No. 283 of 1981
Judge
Reported in1983(85)ARBLR44(Bom); 1982(1)BomCR352
ActsDowry Prohibition Act, 1961 - Sections 2, 3 and 4
AppellantShankarrao Abasaheb Pawar and Another
RespondentL.V. Jadhav and Another
Excerpt:
.....prohibition act (xxviii of 1961), sections 4, 3, 2 - term 'dowry' -- meaning of-mere unilateral demand for money or property whether constitutes offence under section 4-words and phrases. ;the legislature has defined the word 'dowry' in section 2 of the dowry prohibition act. ordinarily, in every statute the definition clause is preceded by a rider that those definitions will prevail, 'unless the context otherwise required'. the omission of the above phrase, would therefore mean that it would not be ordinarily open to anybody to contend that the term dowry should be interpreted in a manner other than mentioned in the section. reading section 4 with the help of the definition the term 'dowry' in section 2 would therefore show that a demand so as to bring the case under section 4 must..........the term dowry section 3 makes giving and taking of dowry as a penal act, while under section 4 a demand of dowry is also made punishable. it was contended by shri pungliya that while construing section 4 it will be necessary to bear in mind the definition of term dowry as given in s. 2. after leaving aside some portion of that definition which may not be very much relevant for deciding the controversy in this matter, the section contemplates, (1) that a property should be given as a consideration for the marriage of the parties or (2) that a property should be agreed to be given as a consideration of marriage of the parties. it was, therefore, urged that for bringing the case under s. 4 it is necessary that there should be a property agreed to be given by one party to another and that.....
Judgment:
ORDER

1. The two accused in Criminal Case No. 16340 of 1980 on the file of the Judicial Magistrate, First Class, (Anti-Corruption) Court, Pune have filed this petition for quashing the said Criminal proceedings as also the order of issuing process against the petitioners passed in that case. It would be convenient to give in brief the allegations made by respondent No. 1 (who is a complainant in the above mentioned case) while filing the above mentioned criminal case under the provisions of the Dowry Prohibition Act, 1961 (hereinafter referred to as the Act).

2. Petitioner No. 1 is the father of petitioner No. 2. Respondent No. 1 has a daughter by name Anita. She is a Graduate in Science, while petitioner No. 2 is an Engineering double Graduate working in United States. Respondent No. 1 wanted to marry his daughter, and he learnt that petitioner No. 2 also intended to marry. After some preliminary talks, the bride and bridegroom approved each other and an engagement ceremony took place on June 12, 1978 at Pune. It appears that petitioner No. 2 had come to India, from United States in May 1979 and after his coming here the said marriage was settled and the engagement ceremony took place. In due course, the marriage was performed at Pune on June 19, 1979.

3. According to respondent No. 1, when the marriage ceremonies were in progress on June 19, 1979, the two petitioners demanded a cash of Rs. 50,000/-, under the pretext that this amount was required for the passage of the petitioners as also the daughter Anita. It is further contended that the demand was made in the presence of respectable persons and respondent No. 1 was told that unless he would fulfil this demand of Rs. 50,000/- by way of dowry, further marriage ceremonies would not be completed. Respondent No. 1 also alleged in the complaint that some respectable persons who were present at that time used their good offices and persuaded the petitioner to complete the marriage formalities and the ceremonies. Thus the marriage ceremonies were over. Thereafter the newly married couple went to Bangalore and Utakamand. Respondent No. 1 has alleged that his son-in-law, namely, petitioner No. 2 did not even see the respondent No. 1 while returning from Utakamand. However, that aspect is not very much relevant : It appears that some time in July 1979, the husband petitioner No. 2 went ahead to United States as the arrangement for passport and visa for the daughter Anita were still to be made, and these arrangements were made some time later. The complainant further alleges that the daughter Anita was staying with the father-in-law i.e. petitioner No. 1, and that arrangements for passport and visa for going to United Stated were also made. In paragraph 11, there is a statement that the daughter Anita was not sent to the United States and that during her stay at the house of petitioner No. 1, the accused continued to persist in their demand for money.

4. On June 5, 1980, respondent No. 1 filed a complaint before the Judicial Magistrate, First Class, Pune, against the petitioners alleging that the said petitioners have committed an offence under S. 4 of the Act, by demanding an amount of Rs. 50,000/- as mentioned above. Before filing this complaint, necessary sanction for launching this prosecution was obtained by respondent No. 1 under proviso to S. 4.

5. As stated earlier, the Judicial Magistrate, after verifying the complaint issued process against both the petitioners. In due course, the summonses were sent to them at their United States' address. It appears that at the relevant time petitioner No. 1 was also staying with his son petitioner No. 2 in the United States and hence the summonses were sent on that address. Shri Pungliya made certain grievance that the respondent No. 1 sent the summons and a copy of the complaint along with the covering letter to the employer of petitioner No. 2. His grievance is that all this was made with a view to harass respondent No. 2 by communicating to the employer that petitioner No. 2 has committed an offence.

6. The petitioners have challenged this order of the learned Magistrate of issuing process by filing the present Criminal Application. When the application was heard by Justice Sharad Manohar, he thought it fit that the matter should be referred to the Division Bench for decision according to law. It appears that from the arguments that were advanced before him he formed an opinion that there is likelihood of a conflict between the provisions of S. 2 and S. 4 of the Act. It is in this way that the matter has come up before us.

7. We have already stated in paragraph No. 3 above the relevant averments that have been made by respondent No. 1 in his complaint in a nutshell. The averment is that when the marriage ceremonies were in progress, petitioners Nos. 1 and 2 demanded from respondent No. 1 a cash amount of Rs. 50,000/- by way of dowry and that this demand was reiterated by the petitioners when the daughter Anita was staying with them. The contention of Shri Pungliya is that even accepting all the allegations including the above mentioned relevant averments in the complaint to be true, no offence under S. 4 has been disclosed. In substance, he contends that a prima facie case is not made out against the petitioners even on hypothesis that whatever has been stated in the complaint is true. It is mainly for this reason he contends that the proceedings in the said criminal case deserve to be quashed. As against this, Shri Gupta for respondent No. 1 argued that the above mentioned demand of Rs. 50,000/- from respondent No. 1 would constitute an offence under S. 4 of the Act.

8. In order to understand the rival contentions of the parties, it will be necessary to consider various provisions of the Act and more particularly Ss. 2, 3 and 4 which read as follows :

'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

(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 mehar in the case of persons to whom the Muslim Personal Law (Shariat) applies.'

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 months, 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.'

9. Thus, S. 2 defines the term dowry Section 3 makes giving and taking of dowry as a Penal Act, while under section 4 a demand of dowry is also made punishable. It was contended by Shri Pungliya that while construing Section 4 it will be necessary to bear in mind the definition of term dowry as given in S. 2. After leaving aside some portion of that definition which may not be very much relevant for deciding the controversy in this matter, the section contemplates, (1) that a property should be given as a consideration for the marriage of the parties or (2) that a property should be agreed to be given as a consideration of marriage of the parties. It was, therefore, urged that for bringing the case under S. 4 it is necessary that there should be a property agreed to be given by one party to another and that to make the offence complete under S. 4 there should, be a demand of that property. As against this, Shri Gupte contended that the word 'dowry' mentioned in S. 4 should be construed in a wide manner so as to include not only the property as contemplated by the definition in Section 2 but also an unilateral demand of an amount by one party from the other. According to him, such a demand of money or any other property though other party would not accede to that demand would constitute an offence. Thus Shri Gupte wants that the definition of term dowry as given in S. 2 should include even a demand made by one party though the other party would not agree to pay that amount. We do not think that such construction is possible. S. 2 has specifically defined the term dowry and that definition has to be borne in mind whenever the rest of the provisions of the Act are to be interpreted, particularly where those provisions contain the word 'dowry'. It is for this purpose that the legislature has taken care to define the term dowry. Another important factor is that it is common knowledge that while defining certain terms in an enactment the legislature takes care to provide that those definitions would apply while construing the rest of the provisions of the enactment 'unless the context otherwise requires'. This phrase, 'unless the context otherwise requires', finds place in practically every enactment where certain terms have been defined. However, in the present Act, the Legislature has adopted a different mode. It has not defined the term dowry coupled with a rider that said definition would not apply if the context otherwise requires. The omission of the above phrase, would therefore mean that it would not be ordinarily open to anybody to contend that the term dowry should be interpreted in a manner other than mentioned in S. 2 Shri Gupte, has submitted that even though the above mentioned phrase is not available in the Act, still the word dowry should be interpreted to include an unilateral demand as according to him such an interpretation was necessary to achieve the objects of the enactment namely, the Dowry Prohibition Act. We are afraid that such process of interpretation would not be permissible. Another important factor is that the addition of the word 'unilateral demand' in Section 4 is not at all necessary to make the provisions of the Act complete.

10. It is thus clear that for bringing a case under section 4, there must be a demand of dowry and as stated earlier, dowry means any property agreed to be given. Consequently, the demand must be of a property agreed to be given as a consideration for the marriage of the parties. Shri Gupte has submitted that a demand by one party from the other of an agreement to pay certain amount as a consideration for the marriage would constitute a demand as contemplated by S. 4. It is in this way, that he wants us to hold that when the petitioners demanded an amount of Rs. 50,000/- from respondent No. 1 they in fact demanded an agreement from respondent No. 1 that they would pay the said amount. It is not necessary to consider in details the correctness or otherwise of this contention, inasmuch as a plain reading of the complaint does not indicate that the complainant wanted to say that the petitioners demanded an agreement to pay certain amount. In fact what was pleaded was that the petitioner demanded an amount of Rs. 50,000/-. With these allegations we do not think it necessary to consider as to whether in a given case a demand of an agreement to deliver certain property as a consideration for the marriage would constitute an offence under S. 4 of the Act.

11. Thus reading S. 4 with the help of the definition of the term 'dowry' in S. 2 would, therefore, show that a demand so as to bring the case under Section 4 must be of a property agreed to be given as consideration for the marriage. In the present case, the complainant does not allege that respondent No. 1 has agreed to pay any amount and that the petitioners demanded that agreed amount.

12. To strengthen the above submissions Shri Pungliya for the petitioners and Shri Solkar for the State contended that the position would be very risky and dangerous if the interpretation placed by Shri Gupte is accepted as correct; they gave the following illustration : At the stage of negotiations of marriage a party may demand some money for consideration of the marriage. That party may give up that demand during those very negotiations. In due course the marriage would be performed. Would the party who had made the demand be guilty under section 4 though that demand was given up and thus there was no agreement in that respect It was contended that the Legislature must not have contemplated this type of offence when there is a mere demand at the initial stage without there being any agreement. Shri Solkar also contended that even if there is an agreement to pay certain property as a consideration for the marriage, still the said agreement itself would not constitute any offence, unless on the basis of that agreement demand was made. Theses aspects, however, need not be considered in details inasmuch as, on a plain reading of S. 2 read with S. 4, what is necessary is that there must be a demand of property agreed to be given as a consideration for the marriage and as stated earlier, the complainant does not make any allegations to bring the case in conformity with this requirement. In view of this position, we think that the learned Magistrate has committed an error in issuing a process against the petitioners. Consequently, the order issuing the process as well as the proceedings in Criminal Case No. 1634 of 1980, are liable to be quashed.

12-A. It was also contended by Shri Pungliya that there are certain other factors which may be taken into account for the purpose of deciding as to whether this is a fit case where a criminal prosecution should be allowed to proceed. He contended that immediately after the marriage arrangements were made for the passport and visa for Anita to go to United States to join her husband. The fact that respondent No. 1 did not send Anita to United States was also placed before us as a circumstance that respondent No. 1 does not want that the married couple should live together. We have already observed that respondent No. 1 has sent the summons of the husband (petitioner No. 2) on the address of his employer along with a covering letter. In that letter he has stated as follows :

'I am sending herewith a summons of the Court of Judicial Magistrate, F.C. (A.C.), Pune for being duly served on Mr. Pradeep S. Pawar, one of your employees. Please serve the summons on him and the office copy of the same may please be returned. The copy of the complaint attached herewith will gave you an idea about the allegation made against him.'

The grievance of Shri Pungliya is that there was absolutely no valid reason for the respondent No. 1 to inform the employer of petitioner No. 2, that the perusal of the complaint would give the employer an idea about the allegations in the complaint. Shri Pungliya contended that this would also indicate that respondent No. 1 wants to misuse the present proceedings for the purpose of vitiating the mind of petitioner No. 2's employer. He, therefore, urged that on these grounds also it is necessary to quash the proceedings. His submission is that the respondent No. 1 has initiated the said case maliciously. We, however, do not propose to enter into this aspect of the case inasmuch as for the reasons stated in the earlier part of the judgment, the proceedings deserves to be quashed.

13. The result is, the Rule is made absolute. The proceedings in Criminal Case No. 16340 of 1980 including the issue of process by the learned Magistrate, are quashed and as such no further action in the said case should be taken by the Magistrate.

14. Rule made absolute.


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