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CASE NO.:

Appeal (crl.) 25 of 2004

PETITIONER:

Reema Aggarwal

RESPONDENT:

Anupam and Ors.

DATE OF JUDGMENT: 08/01/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

(Arising out of SLP (Crl.) No. 3169 of 2003

ARIJIT PASAYAT, J.

Leave granted.

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 \026 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. A question of

intricate complexity arises in this appeal where factual

scenario has very little role to play.

Filtering out unnecessary details, the factual position

is as follows:

On 13.7.1998 information was received from Tagore

Hospital, Jalandhar that Reema Aggarwal the appellant had

been admitted on having consumed poisonous substance. On

reaching hospital, ASI Charanjit Singh obtained opinion of

the doctor regarding her fitness to make a statement.

Appellant stated before Investigating Officer that she was

married to Anupam the respondent no.1 on 25.1.1998 and after

the marriage, she was harassed by her husband-respondent

no.1, mother-in-law, father-in-law and brother-in-law

(respondents 2, 3 and 4) respectively for not bringing

sufficient and more dowry. It was also disclosed that it was

the second marriage of both the appellant and respondent

no.1. On the date of incident at about 5.00 p.m. all the

four accused persons forced her to take something to put an

end her life and forcibly put some acidic substance in her

mouth. She started vomiting and was taken to the hospital

in an unconscious state. The first information report was

registered accordingly and on completion of investigation

the charge sheet was placed and charges were framed for

offences punishable under Sections 307 and 498-A of the

Indian Penal Code, 1860 (for short the 'IPC'). Accused

persons pleaded innocence. Seven witnesses were examined to

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further the prosecution version.

Before the trial Court the accused persons put the plea

that charge under Section 498-A was thoroughly misconceived

as both Sections 304-B and 498-A IPC pre-suppose valid

marriage of the alleged victim-woman with the offender-

husband. It was required to be shown that the victim-woman

was the legally married wife of the accused. Since it was

admitted that the appellant had married during the lifetime

of the wife of respondent no.1, what happened to his first

marriage remained a mystery. Prosecution has failed to

establish that it stood dissolved legally. Prosecution

having failed to bring any material record in that regard,

Section 498-A had no application. Reliance was placed on a

decision of the Madhya Pradesh High Court in Ramnarayan &

Ors. v. State of M.P. (1998 (3) Crimes 147 M.P.) The Trial

Court held that the accusations, so far as Section 307 is

concerned, were not established and in view of the legal

position highlighted by the accused persons vis-`-vis

Section 498-A the charge in that regard was also not

established. Accordingly the accused persons were acquitted.

The State of Punjab filed an application for grant of

leave to appeal which was disposed of by the Division Bench

of the Punjab and Haryana High Court with the following

order:

"We have heard the learned counsel for

the appellant and with his assistance, have

gone through the finding recorded by the

learned trial Court. In our considered

opinion, the finding recorded by the learned

trial Court cannot be held to be erroneous

or that there was no perverse appreciation

of evidence. Leave to appeal declined.

Appeal is also dismissed."

In view of the dismissal of the State's application

for grant of leave, criminal revision application which was

filed by the appellant before the High Court was dismissed

with the following orders:-

"Vide our separate order of even date

in Crl. Misc. No. 580 MA of 2002, we have

not granted permission to the State to file

the appeal. In these circumstances, there

is no merit in this criminal revision which

is hereby dismissed."

In support of the appeal, learned counsel for the

appellant submitted that the High Court was not justified

to dispose of the application for grant of leave as well as

the revision filed by the appellant by such cryptic orders.

Important questions of law are involved. In fact, various

High Courts have taken view different from the one taken by

the Madhya Pradesh High Court in Vungarala Yedukondalu v.

State of Andhra Pradesh (1988 Crl.L.J. 1538 (DB)) and State

of Karnataka v. Shivaraj (2000 Crl.L.J 2741). The Andhra

Pradesh High Court and the Karnataka High Court have taken

different view. According to him the expressions "husband"

and "woman" appearing in Section 498-A IPC are to be read

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in a manner so as to give full effect to the purpose for

which Section 498-A was brought into the statute. The

restricted meaning as given by the Madhya Pradesh High

Court in Ramnarayan case (supra) does not reflect the

correct position of law. On the other hand, contrary view

expressed by the Karnataka and Andhra Pradesh High Courts

reflect the correct view.

In response, learned counsel for the respondents

submitted that to constitute a marriage in the eye of law

it has first to be established that the same was a valid

marriage. Strong reliance was placed on Bhaurao Shankar

Lokhande and Anr. v. The State of Maharashtra and Anr.

(AIR 1965 SC 1564) in that context. Reference was also made

to Sections 5(i), 11 and 16 of Hindu Marriage Act, 1955

(for short the 'Marriage Act') to contend that the

stipulations of conditions of valid marriage, the

circumstances in which the marriage becomes void and the

protection given to children of void and voidable marriage

respectively makes the position clear that wherever the

legislature wanted to provide for contingencies flowing

from void or voidable marriages, it has specifically done

so. It is latently evident from Section 16 of the Marriage

Act. There is no such indication in Section 498-A IPC.

The language used is "husband or relative of the husband".

Marriage is a legal union of one man and woman as husband

and wife and cannot extend to a woman whose marriage is

void and not a valid marriage in the eye of law.

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

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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 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. As the prosecution had set up a plea of

gandharva marriage and had failed to prove the performance

of ceremonies, it was not open to fall back upon the

presumption of a valid marriage. It was further held that

there was no such presumption if the man was already

married. In Surjit Singh's case (supra) the stand was that

the marriage was in Karewa form. This Court held that under

the custom of Karewa marriage, the widow could marry the

brother or a relation of the husband. But in that case the

man was a stranger. Further even under that form of marriage

certain ceremonies were required to be performed which were

not proved. Dealing with the contention relating to

presumption, reference was made to Lokhande's case (supra).

As the parties had set up a particular form of marriage

which turned out to be invalid due to absence of proof of

having undergone the necessary ceremonies related to such

form of marriage, the presumption of long cohabitation could

not be invoked.

The presumption may not be available in a case, for

example, where the man was already married or there was any

insurmountable obstacle to the marriage, but presumption

arises if there is strong evidence by documents and conduct.

Above position has been highlighted in Mayne's Hindu Law and

Usage.

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 \026 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

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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.

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.

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).

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."

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

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shall not be less than fifteen thousand rupees or the amount

of the value of such dowry whichever is more.

The definition of the expression 'dowry' contained in

Section 2 of the Dowry Act cannot be confined merely to be

'demand' of money, property or valuable security' made at or

after the performance of marriage. The legislature has in

its wisdom while providing for the definition of 'dowry'

emphasized that any money, property or valuable security

given, as a consideration for marriage, 'before, at or

after' the marriage would be covered by the expression

'dowry' and this definition as contained in Section 2 has to

be read wherever the expression 'dowry' occurs in the Act.

Meaning of the expression 'dowry' as commonly used and

understood is different than the peculiar definition thereof

under the Act. Under Section 4, mere demand of 'dowry' is

sufficient to bring home the offence to an accused. Thus,

any 'demand' of money, property or valuable security made

from the bride or her parents or other relatives by the

bridegroom or his parents or other relatives or vice-versa

would fall within the mischief of 'dowry' under the Act

where such demand is not properly referable to any legally

recognized claim and is relatable only to the consideration

of marriage. Marriage in this context would include a

proposed marriage also more particularly where the non-

fulfilment of the "demand of dowry" leads to the ugly

consequence of the marriage not taking place at all. The

expression "dowry" under the Dowry Act has to be

interpreted in the sense which the statute wishes to

attribute to it. The definition given in the statute is the

determinative factor. 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.

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.

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

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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. 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? 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 \026 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 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

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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.

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.

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

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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".

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).

The judgments of High Courts taking a view contrary to

the one expressed above, cannot be considered to lay down

the correct position of law.

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 statute-maker, 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."

In Seaford Court Estates Ltd. v. Asher (1949) 2 All ER

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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."

(underlined for emphasis)

These aspects were highlighted by this Court in S.

Gopal Reddy v. State of A.P. (1996 (4) SCC 596).

Whether the offences are made out is a matter of trial.

The High Court was not justified in summarily rejecting the

application for grant of leave. It has a duty to indicate

reasons when it refuses to grant leave. Any casual or

summary disposal would not be proper. (See State of Punjab

v. Bhag Singh (2003 (8) Supreme 611). In the circumstances,

we set aside the impugned order of the High Court and remit

the matter back to the High Court for hearing the matter on

merits as according to us points involved require

adjudication by the High Court. The appeal is allowed to

the extent indicated.