ORDER
1. By this petition under Article 227 of the Constitution of India, the petitioners sought various reliefs. However, Shri Bhattad, the learned counsel for the petitioners/accused, specifically restricted his prayer to the effect that a direction be issued to he Judicial Magistrate, First Class, Shegaon, to allow the parties to compound the offence punishable under Section 498-A read with S. 34 of the Indian Penal Code. In the instant petition, though the learned J.M.F.C. Shegaon, is not a party, but State being the respondent No. 1 and the petition being under Article 227 of the Constitution of India, which prescribes the supervisory powers, the oral prayer made by Shri Bhattad is to be considered.
2. The petitioner Suresh Nathmal Rathi and the petitioner No. 2, Smt. Shobha wife of Suresh Rathi are the husband and wife. Petitioner No. 3 Ramesh and the petitioner No. 4 Dilip are the brothers of the petitioner No. 1 Suresh. Petitioner No. 5 Smt. Basantibai Rathi is the mother of the petitioner No. 1 Suresh.
3. The marriage between Suresh and Smt. Shobha was solemnized sometime in the year 1988. It is the case of Smt. Shobha that after the marriage, initially, she was treated well by her husband and other members of the family, but subsequently, she was given a cruel treatment. The cruel treatment being unbearable, she was compelled to lodge the report with the Police Station, Shegaon, on the basis of which an offence was registered under Section 498-A read with S. 34 of the Indian Penal Code. After the investigation, the chargesheet was filed against the petitioners Nos. 1, 3, 4 and 6, and the proceedings were commenced in Criminal Case No. 246/89.
4. During the pendency of the criminal case No. 246/89, the complainant Smt. Shobha and accused settled their dispute amicably and Smt. Shobha Joined the society of her husband, started living with him and other members of his family. Petitioner No. 2 Smt. Shobha is residing with other petitioners for the last more than a year. As husband and wife being living in peace, enjoying marital bliss, an application was filed before the Judicial Magistrate, First Class, Shegaon, on 25-1-1991 to accord permission to them to compound the offence and on the very day another application was filed to compound the offence. The learned Judicial Magistrate, First Class, Shegaon, passed the following orders on the applications Exh. 34 and Exh. 35. The order below Exh. 34 is :
'The accused are alleged to have been committed the offence punishable u/s. 498-A R/W S. 34 of the I.P. Code which is not compoundable with or without permission of the court as provided u/s. 320 of the Cr.P.C. Hence this application is hereby rejected.'
The order below Exh. 35 is
'In view of the order passed below Exh. 34 this composition pursis is rejected.'
5. Marriage, whether considered as a contract or sacrament, confers, a status of husband and wife on the parties to the marriage, of legitimacy on the children of the marriage, and gives rise to certain mutual rights and obligations of spouses. All over the Hindu and Christian worlds, marriage began as a sacrament. Marriage, as a Sacramental, necessarily implied a permanent and indissoluble union. Hindus took the notion of indissolubility of marriage, a step further and laid down that even death did not put the marriage asunder. It was a union not merely in this life but also in all lives to come an eternal union. Thus, Hindus conceived their marriage as a holy and sacramental tie and not a contractual union. The intention of the sacrament is to make the husband and the wife one, physically and psychically, for secular and spiritual purposes, for this life and for after lives.
6. The man is incomplete without his wife, and it is wife completes him. She is ardhangi (half of him). The wife is verily the half of the husband. Those who have wives can fulfil their due obligations in this world; those that have wives can be happy; those that have wives can lead a full life. Wife is not just a patni but dharmapatni - (partner in the performance of spiritual as well as secular duties). Thus, Hindus conceived of their marriage a sacramental union, - a sacrosant, permanent, indissoluble and eternal union. For Hindus, the marriage is not a contract, but it is a tie which once tied cannot be untied.
7. Undoubtedly, marriage as a social institution is regarded solemn all over the civilized world. Thus, marriage came to be regarded as a sacrament, as an indissoluble union; only death can put it asunder. The marriage as understood in the Christendom may be defined as 'the voluntary union for life of one man and one woman to the exclusion of all others'. Though the marriage squarely came to be established as a contractual union, it was also regarded as a social institution, there is a social interest in preservation and protection of the institution of marriage. Thus, the institution of marriage is hedged with many legal protections. Therefore, not only in the interest of the couple, but in the interest of the society, the marriage tie should not be broken. On the contrary, it is to be seen that every couple must live happily and enjoy the marital bliss. The law should, therefore, recognise the reality and redeem the parties from the situation that has become untolerable.
8. It is not in dispute and it cannot be disputed that the Parliament is competent to make law in respect of the matters included in the Indian Penal Code by operation of Entry I of the Concurrent List (List III) of the 7th Schedule to the Constitution, and marriages under Entry-IV and evidence under Entry XII thereof. Therefore, parliament is competent to make the impugned law of cruelty by the husband or the relatives of the husband in relation to a Woman and evidence in respect thereof. Section 498-A of the Indian Penal Code is brought on statute under Chapter XXI of the Code as amended by Section 2 of Amendment Act.
9. Section 498-A of the Code postulates that the husband or the relatives of the husband of a woman, if they subject such woman 'to cruelty', he or they shall be liable to punishment prescribed thereunder. The harassed Woman would unfold them at trial. It is common knowledge that despite prohibition of the pernicious social evil of demand or offer or payment of dowry under Dowry Prohibition Act, 1961, Dowry deaths are escalating in countless number every year. It has becomes a grave concern to the enlightened section of the society and subject of an anxious consideration by the Joint Committee of the House of Parliament. Diverse methods, forms and situations are being created meting out cruelty to a helpless married fair sex to meet unconscionable or unlawful demands which the parents or relatives of the woman are unable to meet. As a result, by constant harassment, nagging, humiliation, etc., the married woman becomes helpless, and being unable to bear with, driven to commit suicide by her or to murder her by her husband or the relatives of the husband, etc. This problem is an indelible blot on the civilized society. As a result, the legislature thought it expedient to deal with the situation by making a legislation preventing commission of those acts, declaring them to be an offence by bringing Section 498-A through the amendment Act. The statement of objects and reasons relevant for the purpose reads thus :
'The increasing number of dowry deaths is a matter of serious concern. The extent of evil has been commented upon by the Joint Committee of the Houses to examine the working of the Dowry Prohibition Act 1961. Cases of cruelty by the husband and relatives of the husband which culminate in suicide by, or murder of, the helpless woman concerned, constitute only a small fraction of the cases involving such cruelty. It is, therefore, proposed to amend the the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by their in-laws.'
10. The human ingenuity is such that several forms could be devised to drive a married woman to the extremity of putting an end to her precious life. The conjugal society and marital home are intractable terrain to others and exclusive domain to the husband and accessible habitation to his relations. From crude physical injury or harm to subtle devices with intellectual arrogance could be employed in causing cruelty or harassment to a married woman. Each case is to be adjudged in the light of the facts presented and proved. This is a pernicious evil corroding the social fabric. So long as the need is felt acute, it is for the legislature to remedy the defect because the crime under Section 498-A of the Indian Penal Code, being a crime against the conscious of the civilised humanity. As marriage is said to be the security, it is irrevocable. Marriage, according to the community to which parties belong, is sacramental and is believed to have been ordained in heaven. The religious rites performed at the marriage altar clearly indicates that the man accepts the woman as his better-half, by assuming her the protection as guardian, ensuring food and necessities of life as the provider, guaranteeing companionship as the mate and by resolving that the pleasure and sorrows in the pursuit of life shall be shared with her and Dharma shall be observed.
11. The parties to the marriage cannot dissolve it at will. They are bound to each other until the death of either of them; and the wife is supposed to be bound to her husband even after his death. This concept of marriage, that it is indissoluble, is a lofty one because it means that the husband and wife after marriage have to adjust their tastes and temper, their ideals and interests, instead of breaking with each other when they find that these differ. It thus involves sacrifices on the part of both husband and wife as each is called upon to overcome the incompatibility of the other. The marriage, thus viewed, is not an ordinary affair wherein the weakness of flesh plays a dominant part. On the contrary, demands of personal gratification and pleasures are subordinated, and the individual is called upon to make marriage a success by means of compromise and adjustment.
12. Mankind has shifted from the state of nature towards a civilized society. Marriage is a social duty towards the family and the community. Man and woman enjoyed equality of status and society looked upon women as living goddesses. Where ladies lived in peace, harmony and with dignity and status, Gods were believed to be roaming about in human form. When a bride was brought into the family, it was considered to be great event and it was looked upon as bringing fortune into the family not by way of dowry but on account of the grace the young lady carried with and around her.
13. Every marriage ordinarily involves a transplant. A girl born and brought-up in her natural family, when given in marriage, has to leave the natural setting and come into a new family. When a tender plant is shifted from the place of origin to a new setting, great care is taken to ensure that the new soil is suitable and not far different from the soil where the plant had hither to been growing, care is taken to ensure that there is not much of variation of the temperature, watering facility is assured and congeniality attempted to be provided. When a girl is transplanted from her natural setting into an alien family, the care expected is bound to be more than in the case of a plant. Plant has life but the girl has a more developed one. Human emotions are unknown to the plant life. In the growing years in the natural setting, the girl has formed her own habits, gathered her own impressions, developed her own aptitudes and got used to a way of life. In the new setting some of these have to be accepted and some she has to surrender. This process of adaptation is not and cannot be one-sided. Give and take, live and let live, are the ways of life and when the bride is received in the new family she must have a feeling of welcome and by the fond bonds of love and affection, grace and generosity, attachment and consideration that she may receive in the family of husband, she will get into a new mould; the mould which would last for her life. She has to get used to a new set of relationship - one type with the husband, another with the parents-in-law. For this, she would require loving guidance.
14. Woman must rise and on account of certain virtues which nature has endowed than that to the exclusion of the man, due credit must be given to woman as desired of these exclusive qualities. Thus, woman who is capable of playing more effective role in the preservation of society of society and, therefore, she has to be respected. She has greater dose of divinity in her and by her granted qualities. She can protect the society against the evil. To that extent, woman has special quality to serve society in due discharge of social responsibility. While all these are true and has to continue, can it be said that man and woman in human creation are complementary to each other. That man and woman are to be together with a unit is formed. One without the other has place in the community of homesicks. Therefore, in a world where man and woman are in dissociable to each other and the status of one depends upon the existence and livelihood of the others, to what extent is competition between the two justifiable is a matter to be adopted in a solitary sitting.
15. Normally, it is expected that the husband and the wife should always treat each other in such a manner that no occasion may arise for them to separate from each other. Marriage being social institution, it is the duty not only of the couple, but everyone in the country whether an individual or an organization, should contribute to social metabolism. It is my considered opinion that this Court has the obligation within reasonable limit and justifying bounds to provide food for thoughts which may help to generate the proper social order and hold the community in an even form, so that no home torn by strife conditions.
16. With this pious thinking, the marriage tie be continued till the last breath of the spouse and should not be untied during the subsistence of their marriage, therefore, even under the provisions of the Hindu Marriage Act, some provisions are incorporated to maintain the sanctity of the Social institution. The objection of Section 14 of the Hindu Marriage Act, 1955 is that - Section 14 provides restrictions presumably designed to prevent hasty recourse to legal proceedings before the parties have made a real effort to save their marriage from disaster. It is grounded on public policy because marriage is the very foundation of civil society, and no part of the laws and institutions of a country can be of more vital importance to its subjects than those which regulate the manner and conditions of forming and, if necessary of dissolving the marriage contract. American Jurisprudence, page (Section 12) 154 has the following to say :
'Marriage is a relation in which the public is deeply interested and is subject to proper regulation and control by the State or sovereignty in which it is assumed or exists. The public policy relating to marriage is to foster and protect it, to make it a permanent and public institution, to encourage the parties to live together and to prevent separation. This policy finds expression in probably every State in this country in legislative enactments designed to prevent the sundering of the marriage ties for slight or trivial causes, or by the agreement of the husband and wife, or in any except on full and satisfactory proof of such facts as legislature has declared to be cause for divorce. Such provisions find their justification only in this well-recognised interest of the State in the permanency of the marriage relation. The right to a divorce exists by legislative grant, only the marriage contract in this respect being regulated and controlled by the sovereign power, and not being, like ordinary contract, subject to dissolution by the mutual consent of the contracting parties, except for the causes sanctioned by law. As said by the Federal Supreme Court : 'Other contracts may be modified, restricted or enlarged or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress'. Andrews v. Andrews (1903) 188 US 14; Maynard v. Hill (1888) 125 US 190; 31 Law Ed 654 (H)'.
17. Section 23(2) of the Hindu Marriage Act, 1955, casts on the Court the duty, in the first instance, in matrimonial cases, where it may appear that there may be chance of saving the marriage, to make every endeavour to bring about a reconciliation between the parties. Both from the personal and social point of view, stability of marriage has certain value. The duty is imposed on every Court from the Trial Court to the Supreme Court. Hence, the State is interested in its security and preservation. The sanctity of marriage is a cornerstone of civilization.
What is the reconciliation which could be brought about It can only be in the shape of bringing the parties nearer and making them together and that is achieved only by granting restitution of conjugal rights. It is only in cases where the relief of judicial separation or divorce is asked for by one of the parties, the Court should try to avoid the granting of a relief and see if it is possible to bring them together. For bringing about amity between husband and wife, a judge should talk to the parties personally. He should not go by the version of their advocates that reconciliation is not possible. If the Court relies upon the advocates only, it would be on the one hand practically not a good approach and on the other it would fall short of the duty of the Court of making every endeavour to bring about a reconciliation between the estranged spouses.
In the case of V. K. Gupta v. Smt. Nirmala Gupta : [1980]1SCR506 . Their Lordships observed that :-
'It is fundamental that reconciliation of a ruptured marriage is the first essay of the Judge, aided by counsel in their noble adventure. The sanctity of marriage is in essence, the foundation of civilization and, therefore, Court and counsel owe a duty to society to strain to the utmost to repair the snapped relation between the parties. This task becomes more insistent when an innocent off-spring of the wedding struggle in between the disputed parents.
It means reconciliation is a joint process or endeavour by the Courts and the counsel of the parties to work on the minds of the clients and to heal a wounded situation into a healthy reapproachment, so that the parties would act sensitively and constructively. Naturally, there would be initial resistance, mistrust, apprehension. At the end of this conciliation journey, it is possible to reach a happy situation resulting in the resolution of the conflict between the parties and eventual restoration of the conjugal home to enjoy the ardour and love of partners in life. An ideal marriage is one where - 'each sucked into each, on the new stream rolls whatever rocks obstruct.'
18. To restore friendly, good neighbourly relations and harmony in society, parties are allowed to enter into composition in respect of offences specified in the table under Section 320(1) and some offences allowed to be compounded with the permission of presiding officer mentioned in Table under Section 320(2) of the Criminal Procedure Code. Some offences which are punishable for more than 3 years punishment are also included, such as :
Section 320(1)---------------------------------------------------------------------- Offence Section Person by whom Punishmentof the offence may be a term I.P.C. compounded. which may applicable.extend to ..1. 2. 3. 4.----------------------------------------------------------------------Adultery 497 The husband of 5 years. the woman. Voluntarily causing 324 The person to 3 years. hurt by dangerous whom hurt is weapons or means. caused. Voluntarily causing 325 Ditto. 7 years. grievous hurt. Voluntarily causing 335 The person to 4 years. grievous hurt on grave whom hurt is and sudden provocation. caused. Assault or criminal 354 The woman 2 years. force to woman with assaulted to whom intent to outrage her the criminal modesty. force was used. Theft, where the value 379 The owner of the 3 years. of property stolen does property stolen. not exceed two hundred and fifty rupees. Theft, by clerk or 381 Ditto. 7 years. servant of property in possession of master, where the value of the property stolen does not exceed two hundred and fifty rupees. Criminal breach of trust, 406 The owner of the 3 years. where the value of the property in respect property does not exceed of which the breach two hundred and fifty of trust has been rupees. committed. Criminal breach of trust 407 Ditto. 7 years. by a carrier wharfinger, etc., where the value of the property does not exceed two hundred and fifty rupees. Criminal breath of trust 408 Ditto. 7 years. by a clerk or servant, where the value of the property does not exceed two hundred and fifty rupees. Dishonestly receiving 411 The owner of the 3 years. stolen property, property stolen. knowing it to be stolen when the value 411 of the stolen property does not exceed two hundred and fifty rupees. Assisting in the 414 Ditto. 3 years. concealment or disposal of stolen property, knowing it to be stolen, where the value of stolen property does not exceed two hundred and fifty rupees. Cheating a person whose 418 The person cheated. 3 years. interest the offender was bound, either by law or by legal contract to protect. Cheating by personation. 419 Ditto. 3 years. Cheating and dishonestly 420 Ditto. 7 years. inducing delivery of property or the making, alteration or destruction of a valuable security. Mischief by killing or 429 The owner of the 5 years. maiming cattle, etc., animal or cattle. of any value or any other animal of the value of fifty rupees or upwards. Mischief by injury to 430 The person to 5 years. work of irrigation by whom the loss wrongfully diverting or damage is water when the only caused. loss or damage caused is loss or damage to a private person. Marrying again during 494 The husband or 7 years. the lifetime of a husband wife or the or wife. person so marrying. Uttering words or sounds 509 The person whom 1 year. or making gestures or it was intended exhibiting any object to insult or intending to insult the whose privacy modesty of a woman or was intruded intruding upon the upon. privacy of a woman.
19. However, for the offence u/S. 498-A, if it is proved, the accused shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Similarly, it cannot be lost sight that offences committed by a person other than the husband, like u/Ss. 354, 497, 494 and 509, are compoundable. Therefore, question arises, why husband and wife, if they compound or compromised, settling their differences, are not allowed to compound offences However, it being the domain of the legislature, whether to include or not in the provisions of S. 320 Criminal Procedure Code It is our common experience that the minor frictions which get distorted into disruption are really the wear and tear of the wedded life. Stability of marriage, being in the interest of individuals, family and society, the spouses be allowed to forgive and forget their differences and to lead the marital bliss.
In a case of Ram Shanker v. State of Uttar Pradesh : (1982)3SCC388a (1), Their Lordships converted the conviction of appellant Ram Shanker from one u/S. 307, IPC to that u/Ss. 325/34, IPC and sanctioned the compounding of the offence as the parties had settled their differences and acquit Ram Shanker of the charges framed against him.
In another case of Mainuddin v. State of Uttar Pradesh, : (1982)3SCC367 (2), Their Lordships granted permission to the parties before them to compound the offences punishable u/Ss. 324 and 325, IPC. Consequently the appellant was acquitted of the charges. Similarly, in a case of Hindu Singh v. State of Uttar Pradesh, : (1982)3SCC368 (2), in the appeal before Their Lordships, the parties being closely related, they were permitted to compound the offence u/Ss. 324 and 325 of IPC and the order of conviction and sentence was set aside and the accused were acquitted.
20. In the case of Ramji Lal v. State of Haryana, : (1983)1SCC368 , Their Lordships of the Supreme Court allowed the parties to enter into a composition to restore friendly and good neighbourly relations as well as to restore harmony in society, the offence u/Ss. 323, 324 and 325 read with 34 of IPC.
Though not the identical case, but a case u/S. 307, IPC was before Their Lordships of the Supreme Court for consideration. In the case of Mahesh Chand v. State of Rajasthan : 1988CriLJ121 , considering the special circumstances, even if the accused were convicted for the offence u/S. 307, IPC, Their Lordships directed the trial Judge to accord permission to compound the offence after giving opportunity to the parties and after being satisfied with the compromise between the parties. One of the accused was a lawyer practising in lower Court. Counter cases arising out of the same transaction were already compromised.
21. After giving conscious consideration to the case and also the facts placed before me for seeking the permission and to direct the Judicial Magistrate First Class to allow the parties to compound the offences, no doubt, such permission can be granted only under the peculiar and special circumstances and considering the facts and circumstances, it is a peculiar and special case. As it is submitted in the applications exhs. 34 and 35 filed before the J.M.F.C., Shegaon and statement made by Shri Bhattad, the learned counsel for the petitioners, it is crystal clear that now there is no dispute between the parties and the complainant Smt. Shobha is leading happy married life. If the permission sought for to compound the offence punishable u/S. 498-A of IPC, is not considered, there would be a destruction of the married life and they would not prolong well in the eyes of the society. If the hanging sword is over the neck of the husband as well as the old mother and the brothers, the relations may again become strained and there would be a destruction of the happy life of Smt. Shobha and her husband. It may be that at one point of time, the husband and the relations had committed some un-described act, but subsequently, the fact reveal that they repent and ultimately, all are happy. Under these circumstances, it would not be desirable to reject the prayer made by the petitioners and to disturb their happy life. On the contrary, the husband and wife are enjoying the peaceful life. Under the circumstances and in the interest of the maintenance of the coordinative relationship between husband and wife as well as other members of the family, the petitioners be allowed to compound the offence u/S. 498-A of the Indian Penal Code.
22. A case identical to the case before me, was before the Division Bench of the Karnataka High Court in State of Karnataka v. Basavaraju, (1990) 2 Crim 196. In that case, the accused were prosecuted for the offence punishable under S. 498-A of IPC. During the pendency of the proceedings the husband and wife started cohabiting cordially for about six months before filing an application for compounding of the offence. Considering the special circumstances, in that case, the learned trial Court allowed the parties to compound the offence. The State being aggrieved by the order of the trial Court, preferred a criminal appeal, but the same was dismissed, and the view taken by the lower Court was upheld.
23. While, granting permission to compound the offence, particularly u/S. 498-A of the Indian Penal Code, peculiar and special circumstances are to be considered and if considering the special and peculiar circumstances, if the trial Court is satisfied, then only parties are to be allowed to compromise the matter keeping in view the welfare of the parties in the matrimonial cases. Keeping in mind the interest of the couple and its impact on the society, I allow the petition to the extent only to the oral submissions made by Shri Bhattad, the learned counsel for the petitioners. Looking to the chastened and the commendable attitude of the parties, in order to restore their house in order, I accept the composition. I grant permission to enter into the composition and accept the same. Accordingly, I allow the petition in the term of the issue raised and acquit them to liberty.
24. Considering some specified offences, specified in S. 320, where the imposition of sentence is much more than u/S. 498-A, inspite of this, the offence u/S. 498-A is not compoundable even with the permission of the Magistrate. The petitioners are not restricted in respect of their case alone, with the petition a representation made by the Bar Council of Maharashtra and Goa, dated 30th November, 1989, addressed to the Secretary to Government of India, Ministry of Law and Justice, New Delhi, Secretary to Government of Maharashtra, Law and Judiciary Department, Mantralaya, Bombay and the Member-Secretary, Law Commission of India, New Delhi, is filed. The copies of this representation were also sent to the Secretary. Bar Council of India, New Delhi, All State Bar Councils and the Presidents of various Bars. It makes clear that society in general is interested to have suitable amendment to S. 320 of the Code of Criminal Procedure. In para 3 of the representation, it is suggested or proposed an amendment to the S. 498-A of the IPC in the interest and welfare of the married couple and the society, this section should be made compoundable and bailable. This being the jurisdiction of the legislature, I cannot express my opinion, but at the same time, considering the peculiar and special circumstances of the case before me, to maintain the cordial relations between Smt. Shobha and her husband and other family members, I passed the above order.
25. A copy of this judgment is directed to be forwarded to the Government of Maharashtra, Law & Judiciary Department, for consideration. The Government of Maharashtra should persuade the Government of India to introduce necessary amendments to S. 498-A of the Indian Penal Code and S. 320 of the Code of Criminal Procedure, as suggested by various Bar Associations, since the issue is affecting millions of people involving their family and social life.
26. Petition allowed.