• Krishna Bhatacharjee Vs. Sarathi Choudhury

  • Head Notes

    Judicially separated wife  is an “aggrieved person” under Section 2(a) of D V Act, 2005 Act - The Woman has an unalienable right over streedhan and she can claim her streedhan Under Section 12 of the D V Act, 2005 at her will. Streedhan refers to all valuables- movable and immovable properties and gifts which she receives in her lifetime. The term “streedhan” cannot be confused with and restricted to the term “dowry”. It is way beyond dowry. Even judicial separation does not create any legal impediment in such claims by a wife: The Hon’ble Supreme Court held so in the recent judgment, namely, Krishna Bhatacharjee Versus Sarathi Choudhury And Anr, Criminal Appeal No. 1545 Of 2015 (@ SLP(Crl) No. 10223 Of 2014), Judgment Dated 20.11.2015,  Dipak Misra, J & Prafulla C Panta, J, Supreme Court Of India [Full PDF Judgment].

    Full Judgment

    IN THE SUPREME COURT OF INDIA

    CRIMINAL APPELLATE JURISDICTION

    CRIMINAL APPEAL NO. 1545 OF 2015

    (@ SLP(Crl) No. 10223 OF 2014)

    Krishna Bhatacharjee ... Appellant

    Versus

    Sarathi Choudhury and Anr. ... Respondents

    J U D G M E N T

    Dipak Misra, J.

    Leave granted.

    2. The appellant having lost the battle for getting her Stridhan back
    from her husband, the first respondent herein, before the learned
    Magistrate on the ground that the claim preferred under Section 12 of
    the Protection of Women from Domestic Violence Act, 2005 (for short,
    ‘the 2005 Act’) was not entertainable as she had ceased to be an
    “aggrieved person” under Section 2(a) of the 2005 Act and further that
    the claim as put forth was barred by limitation; preferred an appeal
    before the learned Additional Sessions Judge who concurred with the
    view expressed by the learned Magistrate, and being determined to get
    her lawful claim, she, despite the repeated non-success, approached
    the High Court of Tripura, Agartala in Criminal Revision No. 19 of
    2014 with the hope that she will be victorious in the war to get her
    own property, but the High Court, as is perceivable, without much
    analysis, declined to interfere by passing an order with Spartan
    austerity possibly thinking lack of reasoning is equivalent to a
    magnificent virtue and that had led the agonised and perturbed wife to
    prefer the present appeal, by special leave.
    3. Prior to the narration of facts which are essential for adjudication
    of this appeal, we may state that the 2005 Act has been legislated, as
    its Preamble would reflect, to provide for more effective protection of
    the rights of the women guaranteed under the Constitution who are
    victims of violence of any kind occurring within the family and for
    matters connected therewith or incidental thereto. The 2005 Act is a
    detailed Act. The dictionary clause of the 2005 Act, which we shall
    advert to slightly at a later stage, is in a broader spectrum. The
    definition of “domestic violence” covers a range of violence which takes
    within its sweep “economic abuse” and the words “economic abuse”,
    as the provision would show, has many a facet.
    4. Regard being had to the nature of the legislation, a more
    sensitive approach is expected from the courts where under the 2005
    Act no relief can be granted, it should never be conceived of but,
    before throwing a petition at the threshold on the ground of
    maintainability, there has to be an apposite discussion and thorough
    deliberation on the issues raised. It should be borne in mind that
    helpless and hapless “aggrieved person” under the 2005 Act
    approaches the court under the compelling circumstances. It is the
    duty of the court to scrutinise the facts from all angles whether a plea
    advanced by the respondent to nullify the grievance of the aggrieved
    person is really legally sound and correct. The principle “justice to the
    cause is equivalent to the salt of ocean” should be kept in mind. The
    court of law is bound to uphold the truth which sparkles when justice
    is done. Before throwing a petition at the threshold, it is obligatory to
    see that the person aggrieved under such a legislation is not faced
    with a situation of non-adjudication, for the 2005 Act as we have
    stated is a beneficial as well as assertively affirmative enactment for
    the realisation of the constitutional rights of women and to ensure
    that they do not become victims of any kind of domestic violence.
    5. Presently to the narration of the facts. The marriage between the
    appellant and the respondent No. 1 was solemnised on 27.11.2005
    and they lived as husband and wife. As the allegations proceed, there
    was demand of dowry by the husband including his relatives and,
    demands not being satisfied, the appellant was driven out from the matrimonial home.

    However, due to intervention of the elderly people
    of the locality, there was some kind of conciliation as a consequence of
    which both the husband and the wife stayed in a rented house for two
    months. With the efflux of time, the husband filed a petition seeking
    judicial separation before the Family Court and eventually the said
    prayer was granted by the learned Judge, Family Court. After the
    judicial separation, on 22.5.2010 the appellant filed an application
    under Section 12 of the 2005 Act before the Child Development
    Protection Officer (CDPO), O/O the District Inspector, Social Welfare
    & Social Education, A.D. Nagar, Agartala, Tripura West seeking
    necessary help as per the provisions contained in the 2005 Act. She
    sought seizure of Stridhan articles from the possession of the
    husband. The application which was made before the CDPO was
    forwarded by the said authority to the learned Chief Judicial
    Magistrate, Agartala Sadar, West Tripura by letter dated 1.6.2010.
    The learned Magistrate issued notice to the respondent who filed his
    written objections on 14.2.2011.
    6. Before the learned Magistrate it was contended by the respondent
    that the application preferred by the wife was barred by limitation and
    that she could not have raised claim as regards Stridhan after the decree

    of judicial separation passed by the competent court. The learned
    Magistrate taking into consideration the admitted fact that respondent

    and the appellant had entered into wedlock treated her as an “aggrieved person”,

    but opined that no “domestic relationship” as defined
    under Section 2(f) of the 2005 Act existed between the parties and,
    therefore, wife was not entitled to file the application under Section 12
    of the 2005 Act. The learned Magistrate came to hold that though the
    parties had not been divorced but the decree of judicial separation
    would be an impediment for entertaining the application and being of
    this view, he opined that no domestic relationship subsisted under the
    2005 Act and hence, no relief could be granted. Be it stated here that
    before the learned Magistrate, apart from herself, the appellant

    examined three witnesses and the husband had examined himself as DW-1.
    The learned Magistrate while dealing with the maintainability of the
    petition had noted the contentions of the parties as regards merits,
    but has really not recorded any finding thereon.
    7. The aggrieved wife preferred criminal appeal No. 6(1) of 2014
    which has been decided by the learned Additional Sessions Judge,
    Agartala holding, inter alia, that the object of the 2005 Act is primarily
    to give immediate relief to the victims; that as per the decision of this
    Court in Inderjit Singh Grewal v. State of Punjab1 that Section 468
    of the Code of Criminal Procedure applies to the proceedings under the
    2005 Act and, therefore, her application was barred by time. Being of
    this view, the appellate court dismissed the appeal.
    8. On a revision being preferred, the High Court, as is demonstrable
    from the impugned order, after referring to the decision in Inderjit
    Singh Grewal (supra), has stated that the wife had filed a criminal
    case under Section 498(A) IPC in the year 2006 and the husband had
    obtained a decree of judicial separation in 2008,

    and hence, the proceedings under the 2005 Act was barred by limitation. That apart, it
    has also in a way expressed the view that the proceedings under the
    2005 Act was not maintainable.
    9. In our prefatory note, we have stated about the need of sensitive
    approach to these kinds of cases. There can be erroneous perception
    of law, but as we find, neither the learned Magistrate nor the appellate
    court nor the High Court has made any effort to understand and appreciate

    the stand of the appellant. Such type of cases and at such
    stage should not travel to this Court. We are compelled to say so as we
    are of the considered opinion that had the appellate court and the
    High Court been more vigilant, in all possibility, there could have been
    adjudication on merits. Be that as it may.
    10. The facts that we have enumerated as regards the “status of the
    parties”, “judicial separation” and “the claim for Stridhan” are not in
    dispute. Regard being had to the undisputed facts, it is necessary to
    appreciate the scheme of the 2005 Act. Section 2(a) defines “aggrieved
    person” which means any woman who is, or has been, in a domestic
    relationship with the respondent and who alleges to have been

    subjected to any act of domestic violence by the respondent. Section 2(f)
    defines “domestic relationship” which means a relationship between
    two persons who live or have, at any point of time, lived together in a
    shared household, when they are related by consanguinity, marriage,
    or through a relationship in the nature of marriage, adoption or are
    family members living together as a joint family. Section 2(g) defines
    the term “domestic violence” which has been assigned and given the
    same meaning as in Section 3. Sub-section (iv) of Section 3 deals
    with “economic abuse”. As in the facts at hand, we are concerned with
    the “economic abuse”, we reproduce Section 3(iv) which reads as follows:-
    “Section 3. Definition of domestic violence.
    (iv) "economic abuse" includes-
    (a) deprivation of all or any economic or financial resources
    to which the aggrieved person is entitled under any law or
    custom whether payable under an order of a court or otherwise

    or which the aggrieved person requires out of necessity
    including, but not limited to, household necessities for the
    aggrieved person and her children, if any, stridhan, property,

    jointly or separately owned by the aggrieved person,
    payment of rental related to the shared household and
    maintenance;
    (b) disposal of household effects, any alienation of assets
    whether movable or immovable, valuables, shares, securi
    ties, bonds and the like or other property in which the aggrieved person

    has an interest or is entitled to use by virtue
    of the domestic relationship or which may be reasonably required by the

    aggrieved person or her children or her stridhan or any other property

    jointly or separately held by the
    aggrieved person; and
    (c) prohibition or restriction to continued access to resources or facilities

    which the aggrieved person is entitled
    to use or enjoy by virtue of the domestic relationship including

    access to the shared household.
    Explanation II.-For the purpose of determining whether any
    act, omission, commission or conduct of the respondent
    constitutes "domestic violence" under this section, the overall facts and

    circumstances of the case shall be taken into
    consideration.”
    11. Section 8(1) empowers the State Government to appoint such
    number of Protection Officers in each district as it may consider necessary

    and also to notify the area or areas within which a Protection
    Officer shall exercise the powers and perform the duties conferred on
    him by or under the 2005 Act. The provision, as is manifest, is
    mandatory and the State Government is under the legal obligation to
    appoint such Protection Officers. Section 12 deals with application to
    Magistrate. Sub-sections (1) and (2) being relevant are reproduced below:-
    “Section 12. Application to Magistrate.-(1) An aggrieved
    person or a Protection Officer or any other person on behalf
    of the aggrieved person may present an application to the
    Magistrate seeking one or more reliefs under this Act: Provided that

    before passing any order on such application, the
    Magistrate shall take into consideration any domestic incident

    report received by him from the Protection Officer or
    the service provider.
    (2) The relief sought for under sub-section (1) may include a
    relief for issuance of an order for payment of compensation
    or damages without prejudice to the right of such person to
    institute a suit for compensation or damages for the injuries caused by the

    acts of domestic violence committed by
    the respondent: Provided that where a decree for any
    amount as compensation or damages has been passed by
    any court in favour of the aggrieved person, the amount, if
    any, paid or payable in pursuance of the order made by the
    Magistrate under this Act shall be set off against the
    amount payable under such decree and the decree shall,
    notwithstanding anything contained in the Code of Civil
    Procedure, 1908 (5 of 1908), or any other law for the time
    being in force, be executable for the balance amount, if any,
    left after such set off.”
    12. Section 18 deals with passing of protection orders by the Magistrate.

    Section 19 deals with the residence orders and Section 20 deals
    with monetary reliefs. Section 28 deals with procedure and stipulates
    that all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and
    offences under Section 31 shall be governed by the provisions of the
    Code of Criminal Procedure, 1973. Section 36 lays down that the provisions of the 2005

    Act shall be in addition to, and not in derogation of
    the provisions of any other law, for the time being in force.
    13. Having scanned the anatomy of the 2005 Act, we may now refer
    to a few decisions of this Courts that have dealt with the provisions of
    the 2005 Act. In V.D. Bhanot v. Savita Bhanot2 the question arose
    whether the provisions of the 2005 Act can be made applicable in relation

    to an incident that had occurred prior to the coming into force of
    the said Act. Be it noted, the High Court had rejected the stand of the
    respondent therein that the provisions of the 2005 Act cannot be i

    nvoked if the occurrence had taken place prior to the coming into force
    of the 2005 Act. This Court while dealing with the same referred to
    the decision rendered in the High Court which after considering the
    constitutional safeguards under Article 21 of the Constitution vis-à-vis
    the provisions of Sections 31 and 33 of the 2005 Act and after examining

    the Statement of Objects and Reasons for the enactment of the
    2005 Act, had held that it was with the view of protecting the rights of
    women under Articles 14, 15 and 21 of the Constitution that Parliament enacted

    the 2005 Act in order to provide for some effective protection of rights guaranteed

    under the Constitution to women, who are
    victims of any kind of violence occurring within the family and matters
    connected therewith and incidental thereto, and to provide an efficient
    and expeditious civil remedy to them and further that a petition under
    the provisions of the 2005 Act is maintainable even if the acts of domestic violence had

    been committed prior to the coming into force of
    the said Act, notwithstanding the fact that in the past she had lived
    together with her husband in a shared household, but was no more
    living with him, at the time when the Act came into force. After analyzing the verdict

    of the High Court, the Court concurred with the view
    expressed by the High Court by stating thus:-
    “We agree with the view expressed by the High Court that in
    looking into a complaint under Section 12 of the PWD Act,
    2005, the conduct of the parties even prior to the coming
    into force of the PWD Act, could be taken into consideration
    while passing an order under Sections 18, 19 and 20
    thereof. In our view, the Delhi High Court has also rightly
    held that even if a wife, who had shared a household in the
    past, but was no longer doing so when the Act came into
    force, would still be entitled to the protection of the PWD
    Act, 2005.”
    14. In Saraswathy v. Babu3 a two-Judge Bench, after referring to
    the decision in V.D. Bhanot (supra), reiterated the principle. It has
    been held therein:-
    “We are of the view that the act of the respondent husband
    squarely comes within the ambit of Section 3 of the DVA,
    2005, which defines “domestic violence” in wide terms. The
    High Court made an apparent error in holding that the conduct of the

    parties prior to the coming into force of the DVA,
    2005 cannot be taken into consideration while passing an
    order. This is a case where the respondent husband has not
    complied with the order and direction passed by the trial
    court and the appellate court. He also misleads the Court
    by giving wrong statement before the High Court in the contempt petition filed

    by the appellant wife. The appellant wife
    having being harassed since 2000 is entitled for protection
    order and residence order under Sections 18 and 19 of the
    DVA, 2005 along with the maintenance as allowed by the
    trial court under Section 20(1)(d) of the DVA, 2005. Apart
    from these reliefs, she is also entitled for compensation and
    damages for the injuries, including mental torture and emotional distress,

    caused by the acts of domestic violence committed by the respondent husband.

    Therefore, in addition to

    the reliefs granted by the courts below, we are of the view
    that the appellant wife should be compensated by the respondent husband.

    Hence, the respondent is hereby directed to pay compensation and damages to the extent of Rs
    5,00,000 in favour of the appellant wife.”
    15. In the instant case, as has been indicated earlier, the courts
    below as well as the High Court have referred to the decision in
    Inderjit Singh Grewal (supra). The said case has to be understood
    regard being had to the factual exposè therein. The Court had referred
    to the decision in D. Velusamy v. D. Patchaiammal4 wherein this
    Court had considered the expression “domestic relationship” under
    Section 2(f) of the Act and judgment in Savitaben Somabhai Bhatiya
    v. State of Gujarat5 and distinguished the said judgments as those
    cases related to live-in relationship without marriage. The Court
    analyzing the earlier judgments opined that the couple must hold
    themselves out to society as being akin to spouses in addition to
    fulfilling all other requisite conditions for a valid marriage. The said
    judgments were distinguished on facts as those cases related to live-in
    relationship without marriage. The Court opined that the parties
    therein had got married and the decree of the civil court for divorce
    subsisted and that apart a suit to declare the said judgment and
    decree as a nullity was still pending consideration before the
    competent court. In that background, the Court ruled that:

    “In the facts and circumstances of the case, the submission
    made on behalf of Respondent 2 that the judgment and decree

    of a civil court granting divorce is null and void and
    they continued to be the husband and wife, cannot be
    taken note of at this stage unless the suit filed by Respondent 2

    to declare the said judgment and decree dated

    20-3-2008 is decided in her favour. In view thereof, the evidence adduced

    by her particularly the record of the telephone calls, photographs

    attending a wedding together and
    her signatures in school diary of the child cannot be taken
    into consideration so long as the judgment and decree of
    the civil court subsists. On a similar footing, the contention
    advanced by her counsel that even after the decree of divorce, they

    continued to live together as husband and wife
    and therefore the complaint under the 2005 Act is maintainable, is

    not worth acceptance at this stage.”
    [Emphasis supplied]
    16. It may be noted that a submission was advanced by the wife with
    regard to the applicability of Section 468 CrPC. While dealing with the
    submission on the issue of limitation, the Court opined:-
    “...... in view of the provisions of Section 468 CrPC, that the
    complaint could be filed only within a period of one year from
    the date of the incident seem to be preponderous in view of the
    provisions of Sections 28 and 32 of the 2005 Act read with
    Rule 15(6) of the Protection of Women from Domestic Violence
    Rules, 2006 which make the provisions of CrPC applicable and
    stand fortified by the judgments of this Court in Japani Sahoo
    v. Chandra Sekhar Mohanty, (2007) 7 SCC 394, and NOIDA
    Entrepreneurs Assn. v. NOIDA, (2011) 6 SCC 508.”
    17. As it appears, the High Court has referred to the same but the
    same has really not been adverted. In fact, it is not necessary to
    advert to the said aspect in the present case.
    18. The core issue that is requisite to be addressed is whether theappellant has ceased to

    be an “aggrieved person” because of the decree
    of judicial separation. Once the decree of divorce is passed, the status
    of the parties becomes different, but that is not so when there is a
    decree for judicial separation. A three-Judge Bench in Jeet Singh
    and Others Vs. State of U.P. and Others6 though in a different
    context, adverted to the concept of judicial separation and ruled that
    the judicial separation creates rights and obligations. A decree or an
    order for judicial separation permits the parties to live apart. There
    would be no obligation for either party to cohabit with the other.
    Mutual rights and obligations arising out of a marriage are suspended.
    The decree however, does not sever or dissolve the marriage. It affords
    an opportunity for reconciliation and adjustment. Though judicial
    separation after a certain period may become a ground for divorce, it is
    not necessary and the parties are not bound to have recourse to that
    remedy and the parties can live keeping their status as wife and
    husband till their lifetime.
    19. In this regard, we may fruitfully refer to the authority in

    Hirachand Srinivas Managaonkar v. Sunanda7 wherein the issue that
    arose for determination was whether the husband who had filed a petition

    seeking dissolution of the marriage by a decree of divorce under
    Section 13(1-A)(i) of the Hindu Marriage Act, 1955 can be declined relief on

    the ground that he had failed to pay maintenance for his wife
    and daughter despite an order of the court. The husband was appellant before

    this Court and had filed an application under Section 10 of
    the Hindu Marriage Act, 1955 for seeking judicial separation on the
    ground of adultery on the part of the appellant. Thereafter, the appellant presented

    the petition for dissolution of marriage by decree of divorce on the ground that

    there has been no resumption of cohabitation as between the parties to

    the marriage for a period of more than
    one year after passing of the decree for judicial separation. The stand
    of the wife was that the appellant having failed to pay the maintenance
    as ordered by the court, the petition for divorce filed by the husband
    was liable to be rejected inasmuch he was trying to get advantage of
    his own wrong for getting the relief. The High Court accepted the plea
    of the wife and refused to grant the prayer of the appellant seeking divorce.

    It was contended before this Court that the only condition for
    getting divorce under Section 13(1-A)(i) of the Hindu Marriage Act,
    1955 is that there has been no resumption of cohabitation between
    the parties to the marriage for a period of one year or upwards after
    the passing of the decree for judicial separation in a proceeding to
    which both the spouses are parties. It was urged that if the said condition

    is satisfied the court is required to pass a decree of divorce. On
    behalf of the wife, the said submissions were resisted on the score that the

    husband had been living in continuous adultery even after passing
    of the decree of judicial separation and had reasonably failed to maintain the

    wife and daughter. The Court proceeded to analyse Section
    13(1-A)(i) of the Hindu Marriage Act, 1955. Analysing the provisions at
    length and speaking about judicial separation, it expressed that after
    the decree for judicial separation was passed on the petition filed by
    the wife it was the duty of both the spouses to do their part for cohabitation. The

    husband was expected to act as a dutiful husband towards
    the wife and the wife was to act as a devoted wife towards

    the husband. If this concept of both the spouses making sincere contribution
    for the purpose of successful cohabitation after a judicial separation is
    ordered then it can reasonably be said that in the facts and circumstances of the

    case the husband in refusing to pay maintenance to the
    wife failed to act as a husband. Thereby he committed a “wrong”
    within the meaning of Section 23 of the Act. Therefore, the High Court
    was justified in declining to allow the prayer of the husband for dissolution of the

    marriage by divorce under Section 13(1-A) of the Act.

    20. And, the Court further stated thus:-
    “... The effect of the decree is that certain mutual rights and
    obligations arising from the marriage are as it were suspended and the rights

    and duties prescribed in the decree
    are substituted therefor. The decree for judicial separation
    does not sever or dissolve the marriage tie which continues
    to subsist. It affords an opportunity to the spouse

    for reconciliation and readjustment.

    The decree may fall by a conciliation of the parties in

    which case the rights of the respective

    parties which float from the marriage and were suspended

    are restored. Therefore the impression that Section
    10(2) vests a right in the petitioner to get the

    decree of divorce notwithstanding the fact that

    he has not made any attempt for cohabitation with the respondent and has even
    acted in a manner to thwart any move for cohabitation does
    not flow from a reasonable interpretation of the statutory
    provisions. At the cost of repetition it may be stated here
    that the object and purpose of the Act is to maintain the
    marital relationship between the spouses and not to

    encourage snapping of such relationship.”
    21. It is interesting to note that an issue arose whether matrimonial
    offence of adultery had exhausted itself when the decree for judicial
    separation was granted and, therefore, it cannot be said that it is a
    new fact or circumstance amounting to wrong which will stand as an
    obstacle in the way of the husband to obtain the relief which he claims
    in the divorce proceedings. Be it stated that reliance was placed on
    the decision of Gujarat High Court in Bai Mani v. Jayantilal
    Dahyabhai8. This Court did not accept the contention by holding that
    living in adultery on the part of the husband is a continuing matrimonial offence,

    and it does not get frozen or wiped out merely on passing
    of a decree for judicial separation which merely suspends certain

    duties and obligations of the spouses in connection with their marriage
    and does not snap the matrimonial tie. The Court ruled that the decision

    of the Gujarat High Court does not lay down the correct position
    of law. The Court approved the principle stated by the Madras High Court

    in the case of Soundarammal v. Sundara Mahalinga Nadar9
    in which a Single Judge had taken the view that the husband who
    continued to live in adultery even after decree at the instance of the
    wife could not succeed in a petition seeking decree for divorce and that
    Section 23(1)(a) barred the relief.
    22. In view of the aforesaid pronouncement, it is quite clear that
    there is a distinction between a decree for divorce and decree of judicial

    separation; in the former, there is a severance of status and the
    parties do not remain as husband and wife, whereas in the later, the
    relationship between husband and wife continues and the legal relationship

    continues as it has not been snapped. Thus understood, the
    finding recorded by the courts below which have been concurred by
    the High Court that the parties having been judicial separated, the appellant

    wife has ceased to be an “aggrieved person” is wholly unsustainable.
    23. The next issue that arises for consideration is the issue of limitation. In

    the application preferred by the wife, she was claiming to get
    back her stridhan. Stridhan has been described as saudayika by Sir
    Gooroodas Banerjee in “Hindu Law of Marriage and Stridhan” which is
    as follows:-
    “First, take the case of property obtained by gift. Gifts of affectionate kindred,

    which are known by the name of saudayika stridhan,

    constitute a woman’s absolute property,
    which she has at all times independent power to alienate,
    and over which her husband has only a qualified right,
    namely, the right of use in times of distress.”
    24. The said passage, be it noted, has been quoted Pratibha Rani v.
    Suraj Kumar and Another10. In the said case, the majority referred
    to the stridhan as described in “Hindu Law” by N.R. Raghavachariar
    and Maine’s “Treatise on Hindu Law”. The Court after analyzing the
    classical texts opined that:-
    ”It is, therefore, manifest that the position of stridhan of a
    Hindu married woman’s property during coverture is absolutely clear and

    unambiguous; she is the absolute owner of
    such property and can deal with it in any manner she likes
    — she may spend the whole of it or give it away at her own
    pleasure by gift or will without any reference to her husband. Ordinarily,

    the husband has no right or interest in it
    with the sole exception that in times of extreme distress, as
    in famine, illness or the like, the husband can utilise it but
    he is morally bound to restore it or its value when he is able
    to do so. It may be further noted that this right is purely
    personal to the husband and the property so received by
    him in marriage cannot be proceeded against even in execution of a decree for debt.”
    25. In the said case, the Court ruled:-
    “... a pure and simple entrustment of stridhan without creating any rights in the

    husband excepting putting the articles in his possession

    does not entitle him to use the same
    to the detriment of his wife without her consent.

    The husband has no justification

    for not returning the said articles
    as and when demanded by the wife nor can he burden her
    with losses of business by using the said property which
    was never intended by her while entrusting possession of
    stridhan. On the allegations in the complaint, the husband
    is no more and no less than a pure and simple custodian
    acting on behalf of his wife and if he diverts the entrusted
    property elsewhere or for different purposes he takes a clear
    risk of prosecution under Section 406 of the IPC. On a parity of reasoning,

    it is manifest that the husband, being only
    a custodian of the stridhan of his wife, cannot be said to be
    in joint possession thereof and thus acquire a joint interest
    in the property.”
    26. The decision rendered in the said case was referred for a fresh
    look by a three-Judge Bench. The three-Judge Bench Rashmi Kumar
    (Smt) v. Mahesh Kumar Bhada11 while considering the issue in the
    said case, ruled that :-
    “9. A woman’s power of disposal, independent of her husband’s control, is not

    confined to saudayika but extends to
    other properties as well. Devala says: “A woman’s maintenance (vritti),

    ornaments, perquisites (sulka), gains (labha),
    are her stridhana. She herself has the exclusive right to enjoy it. Her

    husband has no right to use it except in
    distress….” In N.R. Raghavachariar’s

    Hindu Law — Principles and Precedents, (8th Edn.) edited by Prof. S.
    Venkataraman, one of the renowned Professors of Hindu
    Law para 468 deals with “Definition of Stridhana”. In para
    469 dealing with “Sources of acquisition” it is stated that
    the sources of acquisition of property in a woman’s possession are: gifts before

    marriage, wedding gifts, gifts subsequent to marriage etc. Para 470 deals with “Gifts to a
    maiden”. Para 471 deals with “Wedding gifts” and it is
    stated therein that properties gifted at the time of marriage
    to the bride, whether by relations or strangers, either Adhiyagni or

    Adhyavahanika, are the bride’s stridhana. In
    para 481 at page 426, it is stated that ornaments presented
    to the bride by her husband or father constitute her Stridhana property.

    In para 487 dealing with “powers during
    coverture” it is stated that saudayika meaning the gift of affectionate kindred,

    includes both Yautaka or gifts received
    at the time of marriage as well as its negative Ayautaka. In
    respect of such property, whether given by gift or will she is
    the absolute owner and can deal with it in any way she likes. She may spend, sell or

    give it away at her own pleasure.
    10. It is thus clear that the properties gifted to her before
    the marriage, at the time of marriage or at the time of giving
    farewell or thereafter are her stridhana properties. It is her
    absolute property with all rights to dispose at her own pleasure. He has no control over

    her stridhana property. Husband may use it during the time of his distress but

    nonetheless he has a moral obligation to restore the same or its
    value to his wife. Therefore, stridhana property does not become a joint

    property of the wife and the husband and the
    husband has no title or independent dominion over the
    property as owner thereof.”
    27. After so stating the Court proceeded to rule that stridhana property

    is the exclusive property of the wife on proof that she entrusted
    the property or dominion over the stridhana property to her husband
    or any other member of the family, there is no need to establish any
    further special agreement to establish that the property was given to
    the husband or other member of the family. Further, the Court observed

    that it is always a question of fact in each case as to how the
    property came to be entrusted to the husband or any other member of
    the family by the wife when she left the matrimonial home or was
    driven out therefrom. Thereafter, the Court adverted to the concept of
    entrustment and eventually concurred with the view in the case of
    Pratibha Rani (supra). It is necessary to note here that the question
    had arisen whether it is a continuing offence and limitation could begin

    to run everyday lost its relevance in the said case, for the Court on
    scrutiny came to hold that the complaint preferred by the complainant
    for the commission of the criminal breach of trust under Section 406
    of the Indian Penal Code was within limitation.
    28. Having appreciated the concept of Stridhan, we shall now proceed
    to deal with the meaning of “continuing cause of action”. In Raja
    Bhadur Singh v. Provident Fund Inspector and Others12 the Court
    while dealing with the continuous offence opined that the expression
    “continuing offence” is not defined in the Code but that is because the
    expressions which do not have a fixed connotation or a static import
    are difficult to define. The Court referred to the earlier decision in
    State of Bihar v. Deokaran Nenshi13 and reproduced a passage from
    the same which is to the following effect:-
    “A continuing offence is one which is susceptible of continuance and is

    distinguishable from the one which is committed once

    and for all. It is one of those offences which arises
    out of a failure to obey or comply with a rule or its requirement

    and which involves a penalty, the liability for which
    continues until the rule or its requirement is obeyed or
    complied with. On every occasion that such disobedience or
    non-compliance occurs and reoccurs, there is the offence
    committed. The distinction between the two kinds of offences

    is between an act or omission which constitutes an
    offence once and for all and an act or omission which continues,

    and therefore, constitutes a fresh offence every time
    or occasion on which it continues. In the case of a continuing

    offence, there is thus the ingredient of continuance of
    the offence which is absent in the case of an offence which
    takes place when an act or omission is committed once and
    for all.”
    29. The Court further observed :-
    “This passage shows that apart from saying that a continuing

    offence is one which continues and a non-continuing offence

    is one which is committed once and for all, the Court
    found it difficult to explain as to when an offence can be described

    as a continuing offence. Seeing that difficulty, the
    Court observed that a few illustrative cases would help to
    bring out the distinction between a continuing offence and
    a non-continuing offence. The illustrative cases referred to
    by the Court are three from England, two from Bombay and
    one from Bihar.”
    30. Thereafter, the Court referred to the authorities and adverted to
    Deokaran Nenshi (supra) and eventually held:-
    “The question whether a particular offence is a continuing
    offence must necessarily depend upon the language of the
    statute which creates that offence, the nature of the offence
    and, above all, the purpose which is intended to be
    achieved by constituting the particular act as an offence...”
    31. Regard being had to the aforesaid statement of law, we have to
    see whether retention of stridhan by the husband or any other family
    members is a continuing offence or not. There can be no dispute that
    wife can file a suit for realization of the stridhan but it does not debar
    her to lodge a criminal complaint for criminal breach of trust. We
    must state that was the situation before the 2005 Act came into force.
    In the 2005 Act, the definition of “aggrieved person” clearly postulates
    about the status of any woman who has been subjected to domestic

    violence as defined under Section 3 of the said Act. “Economic abuse”
    as it has been defined in Section 3(iv) of the said Act has a large

    canvass. Section 12, relevant portion of which have been reproduced
    hereinbefore, provides for procedure for obtaining orders of reliefs. It
    has been held in Inderjit Singh Grewal (supra) that Section 498 of
    the Code of Criminal Procedure applies to the said case under the
    2005 Act as envisaged under Sections 28 and 32 of the said Act read
    with Rule 15(6) of the Protection of Women from Domestic Violence
    Rules, 2006. We need not advert to the same as we are of the

    considered opinion that as long as the status of the aggrieved person remains
    and stridhan remains in the custody of the husband, the wife

    can always put forth her claim under Section 12 of the 2005 Act.

    We are disposed to think so as the status between the parties

    is not severed because of the decree of dissolution of marriage.

    The concept of “continuing offence” gets attracted

    from the date of deprivation of stridhan, for
    neither the husband nor any other family members can have any right
    over the stridhan and they remain the custodians. For the purpose of
    the 2005 Act, she can submit an application to the Protection Officer
    for one or more of the reliefs under the 2005 Act. In the present case,
    the wife had submitted the application on 22.05.2010 and the said authority

    had forwarded the same on 01.06.2010. In the application, the
    wife had mentioned that the husband had stopped payment of monthly
    maintenance from January 2010 and, therefore, she had been

    compelled to file the application for stridhan. Regard being had to the said
    concept of “continuing offence” and the demands made, we are disposed to

    think that the application was not barred by limitation and
    the courts below as well as the High Court had fallen into a grave error
    by dismissing the application being barred by limitation.
    32. Consequently, the appeal is allowed and the orders passed by the
    High Court and the courts below are set aside. The matter is remitted
    to the learned Magistrate to proceed with the application under Section
    12 of the 2005 Act on merits.

    .............................J.
    [Dipak Misra]

    ..........................., J.

    [Prafulla C. Pant]

    New Delhi

    November 20, 2015

    • 1 (2011) 12 SCC 588
    • 2 (2012) 3 SCC 183
    • 3 (2014) 3 SCC 712
    • 4 (2010) 10 SCC 469
    • 5 (2005) 3 SCC 636
    • 6 (1993) 1 SCC 325
    • 7 (2001) 4 SCC 125
    • 8 AIR 1979 Guj 209
    • 9 AIR 1980 Mad 294
    • 10 (1985) 2 SCC 370
    • 11 (1997) 2 SCC 397 
    • 12 (1984) 4 SCC 222
    • 13 (1972) 2 SCC 890

     

     

     

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