REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.     867      OF 2009   (Arising out of SLP (Crl.) No. 4496 of 2006)

Koppisetti Subbharao @ Subramaniam ...Appellant  

Versus

State of A.P. ...Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1 Leave granted.

2. Challenge in this appeal is to the order passed by a learned Single  

Judge of the Andhra Pradesh High Court  dismissing the petition filed under  

Section 482 of the Code of Criminal Procedure, 1973 (in short the ‘Code’).  

The prayer in the petition was to quash the proceedings in C.C.No. 440 of

1999 and CC No.325 of 2001 on the file of 3rd Additional Judicial First Class  

Magistrate, Kakinada.

3. Background facts in a nutshell are as follows:

A case  was  registered  against  three  accused  persons  including  the  

present  appellant  for  alleged  commission   of  offence  punishable  under  

Section 498-A read with Section 34 of the Indian Penal Code, 1860 (in short  

the ‘IPC’). Initially, the presence of A-1 could not be secured and therefore  

court separated the case against A-1 and proceeded the trial against A-2 and  

A-3. In the said case A-2 and A-3 were acquitted.  Thereafter, the present  

application  was  filed  before  the  High  Court  taking  the  stand  that  the  

complainant was not be the legally wedded wife of the appellant as he was  

already married and, therefore, Section 498-A has no application to the facts  

of the case.   

The High Court dismissed the application on the ground that disputed  

questions of fact are involved.  

2

4. Learned  counsel  for  the  appellant  submitted  that  in  view  of  the  

acquittal  of  the  co-accused  persons  the  proceedings  against  the  appellant  

should not proceed.  

5. Learned counsel for the respondent-State on the other hand submitted  

that whether there was valid legal marriage subsisting qua the appellant is a  

question of fact and, therefore, the High Court was justified in dismissing  

the application under Section 482 of Code.  

6. 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  –  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 to be also considered.

3

7. Stand of the appellant was that it was required to be shown that the  

victim-woman was the legally married wife of the accused.  Since victim  

claim to have married during the lifetime of the appellant, prosecution has  

failed to establish that it stood dissolved legally. Prosecution having failed to  

bring any material record in that regard, Section 498-A has no application.  

8. 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  

4

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  

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  

5

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.  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.

6

9. 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.  

10. 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 – 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 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  

7

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.     

11. 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.  

12. 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  

8

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).  

13. 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.”

14. 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,  

9

“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  shall  not  be  less  than  fifteen  

thousand rupees or  the amount  of  the value of such dowry whichever is  

more.

15. 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  

10

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  

11

under the Dowry Act.

16. 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.  

17. 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 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  

12

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  

13

“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 –  

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.    

18. 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).  

14

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 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.  

19. 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  

15

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.  

20. 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  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”.        

21. 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  

16

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).   

22. 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  

17

have to be construed so that every word has a place and  everything is in its place.”

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

18

  (underlined for emphasis)   

24. These aspects were highlighted by this Court in  S. Gopal Reddy v.  

State of A.P. (1996 (4) SCC 596) and Reema Aggarwal v.  Anupam (2004  

(3) SCC 199.

25. The High Court was justified in holding that disputed questions of fact  

are involved and the application under Section 482 of Code has been rightly  

rejected.  We do not find any scope for interference with the order of the  

High Court.  However,  we make it  clear  that  we have not  expressed any  

opinion on the merits of the case.  

26. The appeal is dismissed.  

………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J. (ASOK KUMAR GANGULY)

New Delhi, April 29, 2009

19

20