Full Judgment
V. Gopalaswamy, J.
1. The facts giving rise to this Criminal Misc. Case may be briefly stated as follows :
The opposite party is the legally married wife of the petitioner No. 1 (son of petitioner No. 2) and they were married on 19-11-1985 and they lived a married life till 31-5-1987. Subsequently serious differences arose between them and ultimately the opposite party filed O.S. No. 112 of 1987 in the court of the Subordinate Judge, Baripada, under Section 13 of the Hindu Marriage Act praying for a decree of divorce and also prayed for a direction to be given to the petitioner No. 1 to return to her the gold and silver articles and other valuables belonging to her as mentioned in plaint schedules A and B. The petitioner No. 1 filed Matrimonial Suit No. 219 of 1987 against the wife (the present opposite party) for restitution of conjugal rights in the court of the District Judge, Howrah. The opposite party filed criminal case ICC No. 89 of 1988 against the petitioners before the S.D.J.M., Baripada, alleging that as they refused to return the gold and silver ornaments and other valuables belonging to her inspite of repeated demands made by her and misappropriated the same, they rendered themselves liable under Section 406, I.P.C. read with Section 6(2) of the Dowry Prohibition Act. The learned S.D.J.M., after considering the materials placed before him, by his order dated 5-10-1988 took cognizance against the petitioner under Section 406, I.P.C. Being aggrieved by that order the present Criminal Misc. Case is filed for quashing the same.
2. The learned counsel for the petitioners contended that the very concept of the matrimonial home connotes a jointness of possession and custody by the spouses even with regard to the moveable properties exclusively owned by each of them and so no question of any entrustment or dominion over the property would normally arise during overture and therefore, the very essential pre-requisites and the cure ingredients of the offence under Section 406, I.P.C. would be lacking in a charge of criminal breach of trust of property by one spouse against the other. This contention of the petitioners is based on and fully supported by, Vinod Kumar Sathi and Ors. v. State of Punjab and Anr., AIR 1982 Punjab and Haryana 872, a Full Bench decision of the Punjab and Haryana High Court. But then, as pointed out by the learned counsel for the opposite party, the said Full Bench decision of the Punjab and Haryana High Court was over-ruled by the Supreme Court in Pratibha Rani v. Suraj Kumar and another, AIR 1985 Supreme Court 628. The following observations of the Supreme Court in Pratibha Rani's case are considered relevant and material in the present context and hence quoted below :
'We are clearly of the opinion that the mere factum of the husband and wife living together does not entitle either of them to commit a breach of criminal law and if one does then he/she will be liable for all the consequences of such breach. Criminal law and matrimonial home are not strangers. Crimes committed in matrimonial home are as much punishable as anywhere else. In the case of stridhan property also, the title of which always remains with the wife though possession of the same may sometimes be with the husband or other members of his family, if the husband or any other member of his family commits such an offence, they will be liable to punishment for the offence of criminal breach of trust under Sections 405 and 406, I.P.C.'
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'After all how could any reasonable person except a newly married woman living in the same house and under the same roof to keep her personal property or belongings like jewellery, clothing, etc., under her own lock and key, thus showing a spirit of distrust to the husband at the very outset. We are surprised how could the High Court permit the husband to cast his covetous eyes on the absolute and personal property of his wife merely because it is kept in his custody, thereby reducing the custody to a legal force. On the other hand, it seems to us that even if the personal property of the wife is jointly kept, it would be deemed to be expressly or impliedly kept in the custody of the husband and if he dishonestly misappropriates or refuses to return the same, he is certainly guilty of criminal breach of trust, and there can be no escape from this legal consequence.'
From the decision of the Supreme Court in Pratibha Rani's case (supra) it is seen that the present position of law is that it cannot be said that upon a woman entering the matrimonial home the ownership of stridhan property becomes joint with her husband or his relations. Even if the stridhan of a married woman is placed in the custody of her husband or in-laws, they would be deemed to be trustees and are bound to return the same if and when demanded by her and if they dishonestly misappropriate or refuse to return the same, they would be guilty of criminal breach of trust.
3. The learned counsel for the petitioners next contended that as the opposite party had prayed for the return of her gold and silver ornaments and other valuables in O.S. No. 112 of 1987 and therefore, as the remedy is available to her in the civil court, if she is entitled to it, the present proceedings filed against the petitioners in the criminal court are misconceived and therefore, liable to be quashed. The answer to this point is found in the following observations of the Supreme Court in the very Pratibha Rani's case (supra) :--
'There are a large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrong doer in cases like arson, accidents etc. It is an anathema to suppose that when a civil remedy is available, a criminal, prosecution is completely barred. The two types of actions are quite different in content, scope and import. It is not at all intelligible to us to take the stand that if the husband dishonestly misappropriates the stridhan property of his wife, though kept in his custody, that would bar prosecution under Section 406, I.P.C. or render the ingredients of Section 405, I.P.C. nugatory or abortive. To say that because the stridhan of a married woman is kept in the custody of her husband, no action against him can be taken as no offence is committed is to override and distort the real intent of the law.'
4. In Pratibha Rani's case (supra), the Supreme Court held that all that the two sections--Section 27 of the Hindu Marriage Act and Section 14 of the Hindu Succession Act--provide is that if the husband refuses to return the stridhan property of his wife, it will be open to the wife to recover the same by a properly constituted suit and the sections nowhere provide that the concept of stridhan is abolished or that a remedy under the criminal law for breach of trust is taken away.
6. So when the allegation of entrustment and misappropriation of her stridhan property is made out by the married woman in a complaint and all the facts stated in the complaint constitute the offence under Section 405/406, I.P.C., the right to prove the case cannot be denied to the complainant. On a perusal of the impugned order it is seen that after being satisfied that there is a prima facie case of breach of trust against the petitioners the learned S.D.J.M. took cognizance against them under Section 406, I.P.C. and therefore, there is no justification for this Court to interfere with the same in any manner.
7. In the result, I find no merit in the Criminal Misc. Case and the same is, therefore, dismissed.