D.R. Khanna, J.
(1) This petition u/s. 482 Cr.P.C. is directed against an order dated 30-11-1983 of Mr. Mahesh Chandra, Additional Sessions Judge, Delhi whereby the revision petition of the petitioner Kishan Chand against the framing of charge against him by Mr. Prem Kumar, Metropolitan Magistrate, was dismissed.
(2) The case had been set into motion on a report lodged by the petitioner's wife Smt. Shobha Chhabra against him with the police on 27-7-1981 to the effect that the petitioner had been threatening, quarrelling and ill treating her. He had also been demanding more dowry and had further told her that he would keep her in the house only if she brought a fridge and T.V. On 23-7-1981, she next stated that the petitioner had taken away all her goods which included sofa, Godrej almirah, doubled bed, ornaments, etc. which had been given to her as dowry. This list of the rest of the articles, she stated, would be furnished later after scrutiny. Action in accordance with the law was, thereforee, sought to be taken.
(3) The parties were married on 7-5-1977 and have at present two children, the elder being son of six age, and the other, daughter about three years old. The complainant is employed as a Sub-Inspector in the police, while the petitioner is working as Assistant Executive Engineer in the New Delhi Municipal Committee. At present divorce proceedings initiated by the petitioner are pending. The male child is with the petitioner, while the daughter is with the mother.
(4) The circumstances leading to the incident of 23-7-1981 are peculiar. The parties were then residing at Quarter No. 6 Post and Telegraph quarters, Sewa Nagar, New Delhi, Along with their children. Both of them in the morning left for their jobs. The male child went to the school, while the daughter was left by the mother in a creche in Lodi Colony. The allotment of the quarter was not in the name of any of the parties, and according to the petitioners, he had obtained the same on rent from a friend on an understanding that he would vacate the same as early as possible. On the evening of 23-7-1981 when the complainant returned from her office, she found that the quarter was lying locked and everything there from had been removed. From the neighbours, she learnt that the Petitioner had come and taken away everything in a truck. She then found that the male child had as well been taken away by the petitioner from the school, while she managed to bring the daughter from the creche. At present she is residing with her parents. The petitioner is residing at house No. 500, block No. 42, Panchkuin Road, New Delhi, along with his son.
(5) During the course of investigation, a search was effected by the police, and a number of articles were taken into possession from the premises wherein the petitioner is residing. They are in the nature of furniture, some utensils and clothes of children and two quilts. They were handed over to the complainant on superdari. According to her, there are several other valuables and articles still to be recovered.
(6) The police later filed a challan under section 406/380 Indian Penal Code , against the petitioner, and the petitioner was summoned. Mr. Prem Kumar Metropolitan Magistrate, then after hearing the parties, came to the view that a prima facie case under section 380 Indian Penal Code ., was made out, and framed a charge accordingly. Against this order, the petitioner went in revision before Mr. Mahesh Chandra. Additional Sessions Judge, who dismissed the same on 30.11-1983.
(7) According to the petitioner, it has been he who hag been the victim of oppression in the matrimonial life from the complainant, and that he being a member of Scheduled Caste, was always looked down upon by the complainant as well as her parents. In the matrimonial home, where the parties were in joint possession, it is urged the question of misappropriation or theft did not, in any manner, arise. These criminal proceedings, it is contended, are abuse of the position held by the complainant as a Sub-Inspector in the police, and thus he has been put to a great harassment. Reliance has been placed upon an unreported/decision of this court by T.P.S. Chawla, J., dated 22-5-1981 in Vivek Bajaj and others v. Mrs. Mira Bajaj [Criminal Misc. (Main) No. 93 of 1981] in support of the contention that in such like domestic quarrels recourse to criminal action should not be taken. That was, however, a case where the reconciliation during the pendency of the criminal proceedings took place, and the husband and wife started living together. In the circumstances, the proceedings in the criminal case were quashed. In the present case also attempts were made to bring in reconciliation between the parties, but the same could not fructify. Since, however, the petitioner has referred to the treatment extended by the complainant and her parents towards him because he happens to be of low caste, it may be relevant to mention that. the complainant who ostensibly displayed a conciliatory attitude, stated that the caste of the petitioner was well known to her and her parents, and when they still chose to marry her to him, they would look down upon him in the society. It has also been pleaded that simply because the complainant happens to be a police officer, should not deprive her of her right to take recourse to law, the protection of which is available to any citizen. She has denied that she has used her official influence.
(8) Ordinarily such like criminal action should not be encouraged in the delicate relationship of husband and wife, more so when they had been living together before the incident. Each one of them is in common dominion over the joint goods. However, the allegations brought out in the present case are of very peculiar nature. Prima facie, it appeared highly unusual that when in the morning both the husband and wife went to their places of work, and one of the children went to the school and the other left in a creche, that the husband should in the absence of the wife take away the entire articles lying in the premises, and shift them to his own place to the entire exclusion of the wife. Even if the petitioner had to vacate the quarter, the elementary matrimonial relationship would have involved discussion of the same inter-se husband and wife. Normally it would not be that without even sounding the wife, the husband would take away everything in her absence. That would be hardly conductive to the tender relationship of matrimonial home to which the petitioner has made reference. There can be different types of properties existing in a matrimonial home. One set can be of those exclusively given in dowry before, during or after the marriage to the bride, such as her personal jewellery, wearing apparels etc. The second set can be of articles which may be for common use and enjoyment in the matrimonial home. The third set can be presents .given to the husband or the parents-in-law of the bride and other members of their family. Where the husband and wife are both working, they have separate earnings, and as such the wife can as well own property from such earnings. The wife may as well otherwise inherit property or obtain that under gift. So far as the property belonging to her or which has been given for her exclusive use as bride, it cannot be said that joint ownership results merely because of the existence of wedlock. It is another thing that the wife may keep that property in the matrimonial home, and allow the benefit of its user by the husband also. However, her exclusive ownership remains, and it cannot be that when the husband throws her out of the matrimonial home, or departs for good from her he can deprive the wife of those properties, and take them away for his own exclusive benefit. The matrimonial home when it breaks down and comes to the rock, does not justify retention of the other spouse's property whether the property belongs to a particular spouse is a question of fact and can only by decided be evidence.
(9) I have the occasion to discuss the position of law in- this regard in Criminal Revision No. 34 of 1983 (Anil Bhardwaj v. State) being decided today along with this petition. Reference has been made therein to two Full Bench decisions of the Punjab and Haryana High Court in the cases Vinod Kumar Sethi v. State of Punjab and another and Kailash Vativ.Audhia Parkash, 2nd (1977) 1 P& H 642, in which it has been held that the home epitomizes the finer nuances of the marital status, and that the strongest presumption arises that during the existence and immediately after the crumbling of the matrimonial home, there was inessence, 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 from the corner-stone of criminality under section 405 Indian Penal Code . I have in my said decision observed as under:
'WITH utmost respect, I must say that I am unable to persuade myself to subscribe to the ultimate reasoning that prevailed in holding that in no circumstances a case of misappropriation can be made out where there is a break down of matrimonial home. The said sanctimonious concepts, the matrimonial harmony and oneness, and the unison of two beings when they enter into wedlock are certainly sentiments and values to be greatly admired, chershed and endeavored to be achieved. In fact, no stone need be left unturned to make a success of marriage. It is the blissful vista of new life of love, companionship and procreation which opens. This pervades in text books and surely become reality where matrimonial homes develop harmony and homogeneity. No court should attempt to disturb it. It has as such not been without purpose that the law enjoins upon the courts to ensure as far as possible the rehabilitation of the matrimonial home and bring in reconciliation in what may otherwise be mere storms in a teacup which the parties have for lack of maturity, experience or wisdom, unduly magnified. In the present case also, attempts in this direction were made by this court, but without result. At the same time there is no point in indulging in euphoria, high solicitudes to nobler tenets, and what idealism would demand where marriages have irretrievably broken down and the spouses have fallen out entirely. The ceremonious platitudes become irrelevant and totally divorced from realities, and are nothing more than blindfold declining to assess the affairs in correct perspective, howsoever crude and repulsive they may appear to conventional thinking or religious adjuncts. The human affairs have to be judged not in the context of what an ideal human being should be, but in the realisation of humans as they are with all their virtues and frailities.'
It was further observed as under :
'HOWEVER,when the right of a spouse to own exclusive property is recognised, and so also dowry items intended for exclusive use of the bride, e.g. her personal jewellery and wearing apparels etc. are acknowledged, it would be wholly unjustified and unacceptable line of reasoning to say that when the wedlock has come to rock, the other party who is not the owner or entitled to the user thereof can with immunity usurp and deprive the rightful owner of those properties. The language of Section 406 or Section 378 does not make any exception in this regard, and there is no justification to exclude the operation of their provisions qua victimised spouse, more so of an unfortunate wife who is thrown out of the matrimonial home home in the clothes that she may be just wearing.' It cannot be that she is just rendered into penury all of a sudden at the whim and fancy of the husband. Civil rights apart when the requirements of criminal law are attracted, there is no point in ignoring them by escapist compulsions of what ought to be or what the age-old male dominated concepts have passed on from the past. Societies which are diseased with compulsive dowries, where the parents do attempt to do everything for their children to make a success of their marriages, and not unoften go beyond their means in this direction, cannot be passive spectators to either of the spouses indulging in high handedness of appropriating everything and throwing out the other to wilderness. The basic concepts of individual ownerships cannot be in such circumstances ignored, and any violation of them must entail the consequences which otherwise in normal circumstances must flow. I am, thereforee, of the considered opinion that where an exclusive property of one of the spouses is unwarrantedly taken away or misappropriated by the other, and the marriage breaks down, it will not be correct to have a rigid approach, divorced from facts and circumstances of each case, to hold that the offence of misappropriation or theft cannot be made out. Similar must be held to be the position of the dowry items given for the exclusive use of 96 one of the spouses. Even with regard to the articles of dowry which are given for common use and enjoyment, the purpose for which they are brought in for such use and enjoyment disappears when the commonality no longer remains with the break down of the matrimonial life. In such a case, the spouse bringing in the article in the commonality should be entitled to render that into his or her severality. If in such eventuality the other spouse is not ready to see reason, and is bent upon unwarranted retention or usurpation, the law must take its course. The bonds of matrimonial home are already fallen as under and when the human beings constituting the wedlock part companying for good, it is folly to treat what belonged to each one of them exclusively as continuing to remain joint or common. There is no gain-saying that acts of misappropriation can take place even where initial possession was acquired innocently or in the legitimate course of events. Thus a postman who is given an article for disbursement can subsequently acquire criminal design to misappropriate the same to his own benefit. This can be the position in the case of any other employee, a hire-purchase agreement, pledged goods and so on. There can be as well theft of goods placed in the same almirah in a room of a hostel shared by two students when one of them steals away or misappropriates the articles of the other. Taking possession of rest nullius may be an innocent act, but when it is later learnt that the article belongs to a particular person, its retention may involve criminal intention. Thus in an old decision in Queen Empress v. Butchi (1893) 17 Mad 401, it was. Observed that there is no presumption of law that a wife and husband constitute one person in India for the purpose of criminal law. If the wife removing her husband's property from his house, does so with dishonest intention she is guilty of theft. Similarly a wife who clandestinely gives over the articles of her husband to her paramour without his knowledge, and the paramour also takes them away knowing this position well, he can be held guilty of theft. Of course, where there is a claim of right in good faiths it reasonably saves the act of taking from being theft, and where such a plea is raised by the accused, it is mainly a question of fact whether such belief exists or not. Similarly a partner using partnership assets for his own use, is not liable for misappropriation as he has undefined ownership along with other partners over all the assets of the partnership. (See in regard Chandi Kumar Das Karmarker and another v. Abanidhar Roy, : 1965CriLJ496 , and Veiji Raghavji Patel v. The State of Maharashira, : 1965CriLJ431 ).'
(10) I am, thereforee, of the opinion that there is no reason to interfere in the exercise of inherent powers in this case. It is however, clarified that nothing in this order will be considered as an expression of opinion on merits which the parties may ultimately establish during the trial.
(11) I am further of the opinion that once the criminal revision moved by the petitioner had been rejected by the Additional Session Judge, no further recourse to the inherent cowers could be taken by the petitioner before this Court. It is now well settled that invocation of inherent powers is permissible where there is no other suitable remedy available. That remedy was by way of revision which the petitioner has already availed. The impugned orders do not suffer from any basic infirmity or illegality which can be termed as abuse of the process of court. The petition is, thereforee, liable to be dismissed on this short ground as well.