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PETITIONER: PRATIBHA RANI

       Vs.

RESPONDENT: SURAJ KUMAR & ANR.

DATE OF JUDGMENT12/03/1985

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA MUKHARJI, SABYASACHI (J) VARADARAJAN, A. (J)

CITATION:  1985 AIR  628            1985 SCR  (3) 191  1985 SCC  (2) 370        1985 SCALE  (1)458  CITATOR INFO :  RF         1986 SC 833  (50)  RF         1992 SC 604  (103)

ACT:      Nature, character and concomitants of stridhan-Right of exclusive ownership  over  the  stridhan  during  coverture- Whether the dowry/stridhan given to a wife and her exclusive property becomes  a joint property/partnership property by a fiction of  being placed  in the  custody of her husband and her  relations,  the  moment  a  married  woman  enters  her matrimonial home-Indian  Partnership Act,  1932, section  4. Dowry Prohibition Act (28 of 1961) sections 2 Hindu Marriage Act, 1955  section 27 Hindu Succession Act Section 14 Indian Penal Code, sections 405, 406 and 482.      Remedies open  under  law-Whether  criminal  remedy  is barred when civil remedy is available simultaneously.      Entrustment-Charge Or  Criminal breach of trust by wife against her husband and his close relations maintainability- Essential ingredients  of an  offence section 405/406 Indian Penal Code.      Inherent powers  of the  High Court  to quash  a  First Information Report  on a  complaint under  section 482’  the Code  of   Criminal  Procedure,   1973  (Act  11  of  1974), explained.

HEADNOTE:      The appellant  Pratibha Rani, the estranged wife of the first respondent  Suraj Kumar,  filed a  criminal  complaint against her  husband, his  father, his  three brothers and a brother-in-law in the court of the Additional Chief Judicial Magistrate, Ludhiana,  alleging; (i) that she was married to the first  respondent at  Ludhiana on 4 2. 1972 according to Hindu rites  and customs;   (ii) that the aforesaid persons, namely, father,  brothers and  brother-in-law of  the  first respondent attended the marriage and demanded dowry from the appellants’ parents as consideration for the marriage; (iii) that the  dowry articles  mentioned in  the  list  worth  Rs 60,000 in  the form  of gold  ornaments, clothes  and  other valuables were  given and  entrusted to  the respondents and four others  at Ludhiana at the time of ’doli’ on 5. 2. 1972 in the  presence of  Kapur Chand  Jain and  six others; (iv)

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that all  the six  respondents, from  the time  of  marriage started teasing, harassing and beating her and they kept her without even  food to  extract more  money from her parents; (v) that  they turned out the appellant with her children in the beginnings  of 1977  (vi) that  after a  great  deal  of persuasion and intervention by Panchayatdars, respondent No. I came 192 to Ludhiana  and took  her to  his house,  after  giving  an undertaking in  writing on 21. 6. 1977 not to misbehave with and not  to maltreat  the appellant  and her children; (vii) that after  some time  all the  respondents in the Complaint not  only   started  again  maltreating  the  appellant  and misbehaving with her, but also brought the appellant at 4.30 a.m. On  11.12.80 and  left her  near Kailash  Cinema Chowk, (viii) that  the articles  (the stridhana)  mentioned in the list appended  to the  complaint were  never  given  by  the respondents to  the appellant  for her use but were retained by them  illegally  and  with  the  dishonest  intention  of causing wrongful gain to themselves and wrongful loss to the appellant y  (ix) that  when the appellants’ husband and his brother,  Vishwinder  Kumar,  respondent  1  and  5  in  the complaint, came  to  Ludhiana  on  10  2.81  to  attend  the proceedings started  by  the  appellant  under  section  125 Criminal Penal Code her parents persuaded them to return the articles entrusted  to them  at the time of the marriage but they flatly refused to comply with that demand; (x) that the articles have  not been  returned in  spite  of  service  of notice dated 17.12.81 on the first respondent; (xi) that the respondents  in   the  complaint   have  dishonestly,  thus, converted the  articles belonging to the appellant for their use in  violation of  the instructions  of  the  appellants’ parents given  at the  time of  the  marriage  to  give  the articles  for  the  appellants’  use  and  that  (xii)  they individually  and   jointly  committed  the  offences  under sections 405 and 406 Indian Penal Code.      Thereupon  respondent   No.  1   filed  Criminal  Misc. Application No.  4876 of 1981 in the Punjab and Haryana High Court under  section 482  of the  Code of Criminal Procedure for quashing  the criminal  proceedings  and  the  complaint taken on  file by  the Additional Chief Judicial Magistrate, Ludhiana under  section 406  IPC  and  his  order  summoning them.A Learned  Single  Judge  of  the  High  Court  relying strongly upon  the observations made by a Full Bench of that High Court  in Vinod Kumar Sethi & Ors. v. State of Punjab & Ors. reported  in AIR  1982 Punjab  372 allowed the petition and quashed  the proceedings  arising out of the appellants’ complaint, observing that the allegations in the appellants’ complaint are similar to the one in that case and therefore, fully covered  by the  ratio in  that  decision.  Hence  the appeal by special leave.      Allowing the appeal, the Court, ^      HELD; (Per  E.lzal Ali,  J.) (on  behalf of  Sabyasachi Mukharji, J. and himself)      1.1 The  stridhan property  of a  married woman  cannot acquire the  character of  a  joint  property  of  both  the spouses as  soon as she enters her matrimonial home so as to eliminate the  application of  section 406 IPC. 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. The entrustment to the husband of

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the stridhan  property is just like something which the wife keeps in  a bank  and can  withdraw any amount when ever she likes  without  any  hitch  or  hindrance.  Ordinarily,  the husband has  no right  or  interest  in  it  with  the  sole exception that in times of extreme distress, as 193 in famine,  illness or  the like, the husband can utilize it but he  is morally  bound to restore it or its value when he is able  to do  so. 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. [206F; 201D-E]      Suraj Kumar  & Anr.  v. Pratibha  Rani, Criminal  Misc. Petition No.  4876 of  1981  Punjab  &  Haryana  High  Court reversed.      Vinod Kumar  Sethi & Ors. v. State of Punjab & Anr. AIR 1982 Punjab  372; Surinder  Mohan v.  Smt Kiran  Saini, 1977 Chandigarh  Law   Reporter  212;  Kailash  Vati  v.  Ayodhya Parkash, ILR (1977) 1 Punjab & Haryana 642 (FB) overruled.      1.2 A  perusal of the allegations made in the complaint undoubtedly makes  out a positive case of the accused having dishonestly misappropriated  the articles handed over to the n  in   a  fiduciary   capacity.  To  characterise  such  an entrustment as  a joint  custody or  property given  to  the husband and  the parents  is wholly unintelligible.A perusal of the  list reveals  that  so  far  as  the  jewellery  and clothes, blouses,  nighties and  gowns  are  concerned  they could be  used only by the wife and were her stridhan. By no stretch of  imagination could it be said that the [ornaments and sarees  and other articles mentioned above could also be used by  the husband.  If, therefore,  despite demands these articles were  refused to  be returned  to the  wife by  the husband and  his parents,  it  amounted  to  an  offence  of criminal breach  of trust. All the ingredients of an offence under section  405 IPC  were pleaded  and a prima facie case for  summoning   the  accused   was  made   out.   In   such circumstances, the  complaint  should  have  been  given  an opportunity by  the High Court to prove her case rather than quashing the  complaint. Such an exercise of jurisdiction by the  High   Court  under  section  482  Cr.  P.  is  totally unwarranted by law. [203A; 204B-D; 203B-C]      2.1  Criminal   law  and   matrimonial  home   are  not strangers. Crimes  committed in matrimonial home are as much punishable as  anywhere else. 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. In the case  of stridhan  properly 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 IPC. Just as a newly married woman living in the same house  and under  the same  roof cannot  be expected 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 behest,  a husband cannot be permitted 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 farce.  On  the  other  hand,  even  if  the  personal property of  the wife  is jointly kept it would be deemed to be expressly or impleedly kept in the custody of the husband and i f he dishonestly misappropriates or refuses

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194 to return  the same,  he is  certainly  guilty  of  criminal breach of  trust, and there can be no escape from this legal consequence. [207E-G; 208B-Cl      2.2 It  is an  anathema to  suppose that  when a  civil remedy is  available, a  criminal prosecution  is completely barred. The  two remedies-are  under civil law and the other under  criminal   law  are   not  mutually   exclusive   but coextensive   and essentially  differ in  their content  and consequences. Therefore,  it cannot  be said  that,  if  the husband dishonestly misappropriates the stridhan property of his wife  though kept  in his  custody, that  would not  par prosecution under  section 406 IPC or render the ingredients of section 405 IPC 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 law. [208E-F]      3.1 Neither  section 27  of the  Hindu Marriage Act nor section 14  of the Hindu Succession Act, go to the extent of providing that the claim of a woman on the basis of stridhan is completely abolished, or that a remedy under the criminal law for  breach of  trust is  taken away.  All that  the two sections, 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. [204G-H; 205A]      3.2  Section  27  of  the  Hindu  Marriage  Act  merely provides for-  an alternate  remedy and  does not  touch  or affect in  any way  the criminal liability of the husband in case it  is proved  that he  has dishonestly misappropriated the stridhan  of his  wife. It cannot also be spelt out from any textbook  or the   sastric  law of the Hindus that these two Acts take away the stridhan right of a woman-at the most these Acts merely modify the concept of stridhan.                                                     [205C-D]      Bhai Sher Jang Singh & Anr. v. Smt. Virinder Kaur, 1979 Criminal Law Journal 493 approved.      Surinder Mohan v. Smt. Kiran Saini, 1977 Chandigarh Law Reporter 212 over ruled.      4.1 It  is neither  appropriate nor  apposite to import the concept  of partner  ship of  husband and  wife for  the simple reason  that the  concept of  partnership is entirely different from that of the husbands’ keeping the stridhan in his custody.  From the  definition  of  the  partnership  in section 4 of the Indian Partnership Act, it is manifest that in a  partnership the  wife must  by some clear and specific act indicate  that the  stridhan which has been entrusted to the husband is to be used for a partnership business and the losses of  the firm,  if any,  would have  to be  shared  by both.A pure and simple act of entrustment of the stridhan to the  husband   does  not   attract  any   of  the  essential ingredients of  a partnership  as defined in the Partnership Act. When  the essential  conditions of a partnership do not exist. the  mere factum of entrustment of stridhan would not constitute any  co-ownership or  legal partnership, There is also no 195 question of  the wife,  constituting herself  a partner with her husband  merely by  allowing him  to keep the article or money in  his custody.  Further, in  this  case,  there  is, neither any  pleading nor  any  allegation  that  after  her marriage, the  appellant transferred  all her  properties to her husband  for  carrying  on  a  partnership  business  in accordance with  the  provisions  of  the  Partnership  Act.

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Therefore, a  criminal prosecution  under section 406 IPC is maintainable.                                    [209E; 210B-C; G; 211C-D]      Vinod Kumar  Sethi & Ors. v. State of Punjab & Anr. AIR 1982 Punjab  372; Surinder  Mohan etc.  V. Smt. Kiran Saini, 1977 Chandigarh  Law Reporter  212; Kailash  Vati v. Ayodhya Parkash, ILR  (1973) 1 Punjab & Haryana, P 612; Kailash Nath Agarwal &  Ors. v.  Prem Pal  Agarwal & Anr. Crl. Misc. case No. 676  of 1981  connected with Crl. Misc. case No. 2753 of 1981 decided on 22.12.83 Allahabad High Court overruled.      In the  instant case,  however, there  is  neither  any allegation nor  anything in  the complaint to show that when the wife  entered her  matrimonial home  she  had  entrusted property to  her husband so as to make him part owner of the same. Therefore, the question Or the husband having dominion over the  property does  not at  all arise. In fact the wife has nothing  to do  With the  partnership, if  any  and  the husband is  a pure  and simple custodian of the property and cannot use  the Same  for any  purposed without her consent. [210E-F]      The concept  of stridhan  property of  a married  woman becoming joint  property of  both the spouses as soon as she enters her matrimonial home and continues to be so until she remains there or even if there is a break in the matrimonial alliance,  is  in  direct  contravention  of  Hindu  law  of Sadayika which  has been  administered  since  more  than  a century by  High Court,  Privy Council  and also the Supreme Court. [212C-D]      4.2 The Full Bench decision in Vinod Kumar’s case would not  only   render  the   provisions  of   section  406  IPC inapplicable and  nugatory  even  if  the  husband  has  the audacity or  the  importunity  of  refusing  to  return  the stridhan of his wife, but also be in direct contravention of a  long   course  of  decisions  of  Supreme  Court  on  the ingredients of section 405 IPC. [212A-B]      By  a   pure  and   simple  figment   of  the   fertile imaginations, the  Judges in  the Vinod Kamat’s case seem to have rewritten the law of criminal breach of trust contained in sections  405 and 406 IPC so as to carve out an imaginary exception to  the application of the Penal Code- more tragic consequence of the view taken by the High Court is that even if there is a break in the matrimonial alliance and the wife wants her  husband to  return her  exclusive property and he refuses lo  return even  then the  provisions of section 406 IPC would  not apply.  It is  an extreme travesty of justice for a  court to  say that  whenever a  married  demands  her stridhan property  from her  husband she should be driven to the dilatory  process of a civil court and her husband would be debarred  from being prosecuted by a criminal court. By a strange and ingenious process of holding that such an act of a husband does not attract the provisions of the 196 Penal Code, as the property being joint there is no question of the  husband being  a trustee  or holding  the same  in a fiduciary capacity.  Such a  view is  not only contradictory but-what the  High  Court  has  said  before  regarding  the applicability of  section 27  of the  Hindu Marriage Act and the nature  of stridhan-is  also neither  in consonance with logic and  reason nor  with the  express provisions  of  the Penal Code  and seems  to be  inspired by  a spirit  of male chauvinism so  as  to  exclude  the  husband  from  criminal liability merely because his wife has refused to live in her matrimonial home. The High Court, functioning in a civilised and socialistic  society such  as ours  cannot play  such  a havoc with judicial interpretation of an important branch of

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law. The  High Court  cannot make  a complete  volte-face by holding that  these very  properties after  marriage  become joint property  of both  the spouses. The High Court has not realised that  the theory  or philosophy of matrimonial home propounded   by it  stands directly  contradicted by its own observations.                                      [212D-H; 213A; H; 214A]      4.3 The  fundamental core  of the  offence of  criminal breach of trust is that a property must be entrusted and the dominion of  the property should be given to the trustee. In the present  case, all  these conditions,  even according to the findings  of the  High Court  though not its conclusions are clearly established.                                                       [217C]      Chelloor Manaklal  Narayan Ittiravi  Nambudiri v. State of Travancore; AIR 1953 SC478; Jaswantrai Manilal Akhaney v. State of  Bombay,  [1956]  SCR  483;  State  of  Gujarat  v. Jaswantlal Nathalal  [1968] 2 SCR 408; Sushil Kumar Gupta v. Joy Shankar  Bhattacharjee, AIR 1971 SC 1543; Superintendent JUDGMENT: [4] SCC 230 referred to.      Harihar Prasad  Dubey v-  Tulsi Das  Mundhra & Ors. AIR 1949 Calcutta  207; Akharbhai  Nasarali v.  Md. Hussain Bhai AIR 1961  MP 37; Basudeb Patra v. Kana. Lal Haldar, AIR 1949 Calcutta 207, Bhai Sher Jang Singh and Anr. v. Smt. Virinder Kaur, 1979  Crl. L-J.  493; Avtar  Singh and  Anr v.  Kirpal Kaur, Crl. Misc. No. 2144 of 1979 and Cr l Misc. No. 2145 of 1979 approved.      Vinod Kumar  Sethi &  Ors. v-  State of Punjab and Anr. ATR 1982  Punjab 372;  Surinder Mohan  etc.  v.  Smt.  Kiran Saini,  1977  Chandigarh  Law  Reporter  212;  Kailash  Nath Agarwal &  Ors- v.  Prem Pal  Agarwal & Anr. Crl. Misc. Case No. 676  of 1981  connected with Crl. Misc. case No. 2753 of 1981, Allahabad High Court: Kailash Vati v. Ayodhya Parkash, ILR (1977) 1 Punjab d: Haryana 642 overruled.      5. For  the  purpose  of  exercising  its  power  under section 482  Cr. PC to quash a First Information Report or a complaint the  High Court  would have to proceed entirely on the basis  of the  allegations made  in the complaint or the documents  accompanying   the  same   per  se.   It  has  no jurisdiction to  examine the correctness or otherwise of the allegations.  In   case  no  offence  is  committed  on  the allegation and  the ingredients  of section  405 and 406 IPC are not  made out,  the High  Court would  be  justified  in quashing  the   proceedings.  In   the  -present  case,  the allegations are both clear, specific and unambiguous and 197 therefore, the  complaint should have been given a chance to prove her case.  It is, of course open to the accused at the trial to take whatever defences that were open to him or her but that  stage had  not yet  come and  therefore, the  High Court was  totally ill-advised to speculate on the merits of the case  at that stage and quash the proceedings. Since all the facts  stated in  the complaint  constituted an  offence under section  406 IPC,  the appellant  cannot be denied the right to  prove her  case at the trial by pre-empting it the very behest  by the order passed by the High Court. [223D-H; 224D-E-]      Vinod Kumar  Sethi & Ors. v. State of Punjab & Anr, AIR 1982 Punjab 372, over-led.      L.V. Jadhav v. Shakarrao Abasaheb Pawar & Ors. AIR 1983 SC 1219;  Smt. Nagawa  v. Veeranna  Shivalingappa Konjalgi & ors. [1976] Supp. SCR 123 applied. OBSERVATION      (It is  surprising to  find that  so deeply drowned and

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inherently engrossed  are some  of the  High Courts  in  the concept of  matrimonial home qua the stridhan property- of a married woman  that they  simply refuse to believe that such properties are  meant for  the exclusive use of the wife and could also  be legally  entrusted  to  the  husband  or  his relations.  Thus,   if  the   husband   or   his   relations misappropriate the  same and  refuse to  hand it over to the wife and convert them to their own use and even though these facts arc  clearly alleged  in a  complaint for  an  offence under section  405/406 IPC,  some courts  take the view that the complaint  is not maintainable. Thus even when clear and specific allegations  are made  in the  complaint that  such properties were  entrusted to  the husband,  they refuse  to believe these  hard facts and brush them aside on the ground that they  are vague,  and completely shut their eyes to the fact that  the husband  could also  be guilty  under section 405/406 IPC  in view  of the  clear allegations  made in the complaint. In  other words, the High Courts simply refuse to believe that  there can  be any such entrustment and even if it is  so, no offence is committed. Such an approach amounts to a  serious distortion  of the  criminal law, resulting in perpetrating grave and substantial miscarriage of justice to the wife  at the hands of the High Courts. The Supreme Court cannot continuance  such a  wrong  and  perverse  approach.) [224G-H, 225A-C]      Per A. Varadarajan, J. (dissenting)      1.1 In the absence of a separate agreement and specific entrustment by  the wife to the husband and or his relations and vice  versa of  the property  of the husband to the wife and or  her relation,  it would  not be  possible to draw an inference of  entrustment of  custody or  dominion over  the property of  one   spouse  to  the  other  and  his  or  her relations so  as to  attract  the  stringent  provisions  of section 406  IPC. The  offence of criminal break of trust is cognizable and non-bailable and punishable with imprisonment for a  term of three years or with fine or with both. In the absence  of   such  a   separate  agreement   for   specific entrustment of the property of either spouse the appropriate remedy would appear to be by way of a civil suit where there is scope  for the parties to the marriage coming together at the instance  of relations,  elders and  well-  wishers  and patching up their differences. [241G-H; 242A] 198      1.2  Entertaining  complaints  of  the  irate  wife  or husband  against   the  husband  or  wife  without  even  an allegation of a specific and separate agreement constituting entrustment of the property of the wife of the husband would have disastrous  effects and  consequences on  the peace and harmony which ought to prevail in matrimonial homes. [242B]      1.3 The fact that no instance of any case of successful prosecution of  the husband  or wife  at the instance of the wife or  the husband  could be  brought to the notice of the Supreme Court  in the course of the arguments in this appeal would show  that the  spouses had  not lightly rushed in the past to  criminal courts  with complaints of criminal breach of trust  against the other spouses though in the day-to-day life. There  must have been numerous instance where the wife had   used the  property or cash of the husband for purposes different from  the one  for which  they were  given by  the husband to be applied by the wife and vice-versa. Therefore, the minimum requirement in such cases is a specific separate agreement whereby  the property  of the  wife or husband was entrusted to  the husband  or wife  and or  his or her close relations. In  the  absence  of  such  a  specific  separate agreement in  the present  case the  complaint  was  rightly

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quashed. [242D-F]

&      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 684 of 1982      From the  judgment and  order dt. the 31st May, 1982 of the High  Court of  Punjab &  Haryana at  Chandigarh in Crl. Misc. No. 4876M/81.      V.C. Mahajan, and N.S. Das Bahl for the Appellant.      Altat Ahamed for the Respondents.           Mrs. U. Kapoor for the Intervener. T    The following Judgments were delivered      FAZAL ALI,  J. Sometimes  the law  which  is  meant  to impart justice  and fair  play to  the citizens or people of the count  is so torn and twisted by a morbid interpretative process that instead of giving haven to the disappointed and dejected  litigants  it  negatives  their  well  established rights in  law. The  present case reveals the sad story of a helpless married  woman who,  having been  turned out by her husband without  returning her  ornaments, money and clothes despite repeated  demands, and  dishonestly misappropriating the same,  seems to have got some relief by the court of the first instance  but to  her utter  dismay and disappointment when she  moved the  High Court  she was forced like a dumb- driven cattle  to seek  the dilatory remedy of a civil suit- such was  the strange  and harsh approach of the High Court, with due  respect, which seems to have shed all the norms of justice and  fair play.  Even so, the High Court is not much to be  blamed because in the process of following precedents or decisions  of doubtful  validity of some courts, it tried to follow suit. It may be stated that even the old 199 classic Hindu  law jurists  and  celebrated  sages  conceded certain substantial  rights to the women, one of which was - what is  called Saudayika  or stridhan,  with which  we  are concerned here.      This now brings us to a brief discussion of the nature, character and concomitants of stridhan. In the instant case, we are  mainly concerned with that part of stridhan which is the absolute  property of  a married women during coverture. Sir  Gooroodas  Banerjee  in  ’Hindu  Law  of  Marriage  and Stridhana’ while  describing the  nature of  stridhan quoted Katyayana thus:           "Neither the husband, nor the son, nor the father,      nor the brother, has power to use or to alien the legal      property of  a woman.  And if any of them shall consume      such property  against her  own  consent  he  shall  be      compelled to  pay its  value with  interest to her, and      shall also  pay a  fine to the king... Whatever she has      put amicably into the hands of her husband afflicted by      disease, suffering  from disease,  or sorely pressed by      creditors, he  should repay that by his own freewill. "      (P.341)      At another  place while  referring to  the nature  of a husband’s rights  over stridhan during coverture, the author referring to Manu says thus:           "  ..   and  by   the  law  as  expounded  by  the      commentators of  the different schools, the unqualified      dominion  of  the  husband  is  limited  to  only  some      descriptions of  the wife’s  property, while as regards      the rest  he is  allowed only  a qualified right of use      under certain circumstances specifically defined."                                                      (p.340)

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    Similarly, while  describing  the  nature  of  stridhan generally, which  is known  as saudayika,  the  author  says thus:           "First, take  the case  of  property  obtained  by      gift. Gifts of affectionate kinderd, which are known by      the name  saudayika  stridhana,  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." 200      The entire  classical text  on  the  subject  has  been summarised by  N.R. Raghavachariar  in ’Hindu Law’ (5th Edn) at page  533 (section  487) where the following statement is made:      "487. Powers During Coverture.           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  by gift or will without reference      to her  husband and  property acquired by it is equally      subject to  such rights. Ordinarily, the husband has no      manner of  right or  interest in  it. But  in times  of      extreme   distress,    as   in   famine,   illness   or      imprisonment, or  for the  performance of indispensable      duty the  husband can  take  and  utilise  it  for  his      personal purposes, though even then he is morally bound      to restore it or its value when able to do so. But this      right is  purely personal  to him and cannot be availed      of by  a holder of a decree against the husband, and if      the husband  dies with  out utilising  the property for      the liquidation  of his  debts,  his  creditors  cannot      claim to  proceed  against  it  in  the  place  of  her      husband."      To the  same effect is Maines’ treatise on Hindu Law at page 728.  The characteristics  of Saudayika  have also been spelt out  by Mulla’s  Hindu law  at page  168 (section 113) which gives  a complete  list of  the stridhan property of a woman  both  before  and  during  coverture,  which  may  be extracted thus:           "113. Manu enumerates six kinds of stridhana:      1.   Gifts made  before the  nuptial fire, explained by           Katyayana to  mean  gifts  made  at  the  time  of           marriage before  the fire  which is the witness of           the nuptial (adhyagni).      2.   Gifts made at the bridal procession, that is, says           Katyayana, while  the bride  is being led from the           residence of her parents to that of her husband 201           (adhyavanhanika)      3.   Gifts  made  in  token  of  love,  that  is,  says           Katyayana, those  made through  affection  by  her           father-in-law and  mother-in-law (pritidatta), and           those made  at time the of her making obeisance at           the feet of elders (padavan danika).      4.   Gifts made by father.      5.   Gifts made by mother.      6.   Gifts made by a brother."      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

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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.      Such being  the nature  and character  of stridhan of a woman, it is difficult to countenance the view of the Punjab & Haryana High Court in Vinod Kumar Sethi & Ors. v. State of Punjab &  An.(l) that  the stridhan  property of  a  married woman becomes  a joint  property as  soon as  she enters her matrimonial home.  We shall  deal with  this aspect  of  the matter a little later.      We would first like to narrate the facts of the case to show how  the complaint  filed by  the appellant was wrongly quashed by  the High  Court. The general allegations made in the complaint may be summarised as follows:- (1) AIR 1982 Punjab 372- 202      The complainant was married to Suraj Kumar, Accused No. 1 (respondent)  on 4.2.72  at Ludhiana  according  to  Hindu rites and  customs in  the presence  of respectable persons. Accused No.2  was the  father and  accused Nos.3  to 5  were brothers and  No.6 was  brother-in-law of accused No.; It is further alleged  that all  the accused attended and actively participated in the marriage of the complainant and demanded dowry. The  must important  allegation made by the appellant was that  her parents  and relatives  gave by  way of  dowry articles worth  Rs. 60,000/-  inclusive of  gold  ornaments, clothes and  other things  which were  entrusted to  accused Nos.1 to  6 on  5.2.72 which  were taken  into possession by them.  Soon  after  the  marriage,  accused  No.  1  started harassing,  teasing   and  beating   the   complainant   and ultimately turned her out alongwith her children sometime in the year 1977. It was avered in para 4 of the complaint that accused never  returned the  articles to  her, the  relevant portion of the allegations may be extracted thus:-           "The articles  above-mentioned were never given by      the  accused   to  the  complainant  for  her  use  and      possession of  the same  was illegally, dishonestly and      malafidely retained  by the  accused in order to make a      wrongful gain  to them  selves and wrongful loss to the      complainant.           The accused refused to give the entrusted articles      of dowry,  which were  the stridhan of the complainant.      On 10.2.1981  when the  accused Nos.  1 to  5  came  to      Ludhiana to  attend the  proceeding  u/s  125  Cr.P.C.,      filed by  the complainant  in the  Court of  Shri  S.S.      Tiwana, they  were persuaded  by  the  parents  of  the      complainant to  send the  articles entrusted to them at      the time  of marriage but they gave flat refusal to its      notice which was served upon the accused No.1 which was      dated 17.12.80, but to no effect. The accused have thus      dishonestly   used    and   converted    the   articles      aforementioned to  their own  use,  who  are  still  in      possession of  the same  in violation  of the direction      given by the parents of complainant. The parents of the      complainant  directed   the  accused  at  the  time  of      marriage to  give the  articles to  the complainant for      her use,  in the presence of the aforesaid persons, but

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    the accused have not done the needful of the demand and      have thus committed criminal breach of trust punishable      u/s 406 IPC." 203      A perusal  of the  allegations made  in  the  complaint undoubtedly makes  out a positive case of the accused having dishonestly misappropriated the articles handed over to them in a fiduciary capacity. To characterise such an entrustment as a  joint custody or property given to the husband and the parents is  wholly unintelligible to us. All the ingredients of an offense under s.405 IPC were pleaded and a prima facie case for  summoning  the  accused  was  made  out.  In  such circumstances, the  complainant should  have been  given  an opportunity by  the High Court to prove her case rather than quashing the  complaint. Such  an exercise  of  jurisdiction under s.482  Cr.P.C. is totally unwarranted by law. We might also  mention  that  alongwith  the  complaint,  a  list  of valuable articles  had also been given, the relevant portion of which may be extracted thus;      I. " Jewellery"      1. Nine complete gold sets      2. One complete diamond set      3. Three gold rings      4. Two golden Bahi (Baju Band)      5. One golden chain      6. One shingar patti with golden tikka      7. One golden nath (Nose ring)      8. Twelve golden bangles      II. Silver articles      1. Six glasses and one jug      2. Two surma danies      3. One tagari      4. Two payals      III. Clothes           Fifty one sarees, twenty one suits alongwith petti 204      coats,  blouses,   nighties,  shawls,  sweaters,  night      suits, gowns  and woollen  coat etc., six complete beds      with sheets, etc."      A perusal  of the  list reveals  that  so  far  as  the jewellery and  clothes,  blouses,  nighties  and  gowns  are concerned they  could be  used only by the wife and were her stridhan. By no stretch of imagination could it be said that the ornaments  and sarees and other articles mentioned above could also  be used  by the  husband, If, therefore, despite demands these  articles were  refused to  be returned to the wife by  the husband  and his  parents, it  amounted  to  an offence of  criminal breach  of  trust.  In  mentioning  the articles in the list, we have omitted furniture and utensils which though  also belonged  to the complainant yet there is some room  for saying that these were meant for joint use of the husband and wife.      Thus, the  facts mentioned  in the  complaint taken  at their face value reveal a clear allegation that the stridhan property of  the appellant  was entrusted to the husband who refused to return the same to her      Some courts  were of  the opinion that in view of s. 27 of the  Hindu Marriage Act and s. 14 of the Hindu Succession act, the  concept  of  stridhan  property  of  a  woman  was completely abolished.  For instance,  the Punjab  &  Haryana High Court in a case reported in Surindra Mohan etc. v. Smt. Kiran Saini(1) held thus:           "That under  the present  law on claim can be made      on the basis of stridhan, as it has now been completely      abolished and  cannot avail against statute which makes

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    it the joint property of the parties."      We are  of the opinion that this view of the High Court is not  legally sustainable because neither of the two Acts, referred to  above, go  to the  extent of providing that the claim of  a woman  on the  basis of  stridhan is  completely abolished. All  that  the  two  sections,  mentioned  above, provide is that if the husband re-      (1) 1977 Chandigarh Law Report 212 205 fuses to  return the  stridhan property of his wife, it will be open  to  the  wife  to  recover  the  same  by  properly constituted suit.  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.      In a  later decision  in Bhai Sher Singh & Anr. v. Smt. Virinder Kaur(1),  it was  very rightly  pointed out  by the same High  Court that  s. 27  of  the  Marriage  Act  merely provides an alternate remedy to the wife to bring a properly constituted suit  in respect  of the stridhan property which the husband  refused to return. Thus, it is clear that s. 27 merely provides  for an  alternate remedy and does not touch or affect  in any  way the Criminal liability of the husband in case it is proved that he has dishonestly misappropriated that stridhan  of his wife. It cannot also be spelt out from any textbook  or the  sastric law of the Hindus that the two Acts mentioned  above take  away the  stridhan  right  of  a woman-at the  most these  Acts merely  modify the concept of stridhan. It  may be  useful to  refer to  certain pertinent observations in the aforesaid case.           "The aforementioned  passage shows  that a  female      has an  absolute right  to use  her stridhan in any way      she likes  and  even  if  her  husband  can  take  this      property  at  the  time  of  distress,  this  right  is      personal to  him, The  allegations made  in the instant      complaint are  not that  the husband  of the respondent      has placed  her ornaments and jewellery etc. Out of her      way.  What   has  been  alleged  therein  is  that  the      petitioners  who   are  the   parents-in-law   of   the      respondent have  converted the  ornaments and  clothes,      etc. presented  to the  respondent at  the time  of her      marriage to their own use.           Section 27  of the  Hindu Marriage  Act empowers a      Court while deciding a matrimonial dispute to also pass      a decree  in respect  of  property  which  may  jointly      belong to  both the  husband and the wife. This section      at best  provides a  civil remedy  to an aggrieved wife      and does  not in  any way take away her right to file a      crimi- (1) 1979 Crl. L.J. 493. 206      nal complaint  if the  property  belonging  to  her  is      criminally misappropriated by her husband.’’      In these  circumstances, the  decision reported in 1977 Chandigrah Law Reporter 212 can no longer be considered good law. Even  in Vinod  Kumar’s case  (supra)  the  Full  Bench reiterated the  view that s. 27 in no way abolishes stridhan but expressly  recognises the  property exclusively owned by the wife. In this connection, the Court observed thus:           "The express  words  of  the  provision  refer  to      property ’which  may belong jointly to both the husband      and the  wife’. It  nowhere says  that all  the  wife’s      property  be  longs  jointly  to  the  couple  or  that      Stridhan is  abolished and  she cannot be the exclusive      owner thereof.  Indeed, in  using the above terminology      the statute expressly recognises that property which is

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    exclusively owned  by the  wife is not within the ambit      of Section  27 of the Hindu Marriage Act- - -Equally no      other provision  in the  Hindu Marriage  Act  could  be      pointed out  which erodes the concept of Stridhan or in      anyway incapacitates the Hindu wife to hold property as      an exclusive owner."      The sheet-anchor  of the  arguments of  the counsel for the respondents-which is based on the decision of the Punjab & Haryana  High Court  in Vinod  Kumar’s  case-is  that  the moment a  woman after  Marriage enters her matrimonial home, her stridhan  property becomes  a joint properly of both the spouses and  the question  of application of s. 406 I.P.C is completely eliminated.  It is  true that  to a  great extent this  part  of  the  argument  of  the  learned  counsel  is supported by the aforesaid decision but, in our opinion, the decision, so  far as this aspect of the matter is concerned, is wholly  unsustainable. We  would first  extract the exact ratio held by the High Court in Vinod Kumar’s case:           "To conclude,  it  necessarily  follows  from  the      aforesaid discussion  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. It is,      therefore, inapt  to view  the  same  in  view  of  the      conjugal relationship as 207      involving any  entrustment or  passing of dominion over      property day-to-day  by the husband to the wife or vice      versa.  Consequently,   barring   a   special   written      agreement  to   the  contrary,   no  question   of  any      entrustment or  dominion over  property would  normally      arise  during   coverture  or  its  imminent  break-up.      Therefore, the  very essential  prerequisites  and  the      core ingredients  of the  offence under  S.406  of  the      Penal Code  would be  lacking in  a charge  of criminal      breach of  trust of  property by one spouse against the      other."      These observations  on doubt  support the contention of the learned  counsel for  the  respondent  but  we  find  it impossible to  agree with the aforesaid observations for the reasons that  we shall give hereafter. We fail to understand the logic  of the  reasoning adopted  by the  High Court  in investing the  pure and simple stridhan of the wife with the character of  a joint  property. We  are surprised  that the High Court  should  have  taken  the  view  that  a  woman’s absolute  property   though  well   recognised  by   law  is interpreted  by   it  as   being  shorn  its  qualities  and attributes once a bride enters her matrimonial home.      We are  clearly of  the opinion that the mere factum of the husband and wife living together does not entitle either of then  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 ss. 405 and 406, IPC.      Afterall how could any reasonable person expect a newly married women  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

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showing a  spirit of  distrust to  the husband  at the  very behest. We are surprised how could the High Court permit the husband to cast his covetous eyes on the 208 absolute and personal property of his wife merely because it is kept  in his  custody, thereby  reducing the custody to a legal farce.  On the other hand, it seems to that us even if the personal  property of the wife is jointly kept, it would 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. The  observations of  the High  Court at  other places regarding the inapplicability of s. 406 do not appeal to us  and are in fact not in consonance with the spirit and trend of the criminal law. 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 coextensive 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 of 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 deer 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 s. 406 I.P.C. Or render the ingredients of  s. 405 IPC 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.      Coming back  to the  theory of matrimonial home and the stridhan becoming  a joint  property of the two spouses, the logical effect  of the observation made by the High Court is that once a woman enters her matrimonial home she completely loses her  exclusive stridhan by the same being treated as a joint property  of the spouses. In other words, if this view is taken  in its  literal sense  the consequence would be to deprive the wife of the absolute character and nature of her stridhan and  make the husband a co-owner of the same - such a concept is neither contemplated nor  known to Hindu law of stridhan, nor does it appeal to pure 209 common sense.  It is impossible to uphold the view that once a married  woman enters  her matrimonial  home her  stridhan property undergoes  a vital  change so  as  to  protect  the husband  from   being  prosecuted  even  if  he  dishonestly misappropriates the  same.  For  instance,  properties  like jewellery, clothing,  cash, etc.  given by  her  parents  as gifts cannot  be touched  by  the  husband  except  in  very extreme  circumstances,   viz.,  where  the  husband  is  in imprisonment or  is  in  serious  distress.  Even  then  the religion  and   the  law   enjoins  that  the  husband  must compensate the wife and if he cannot do so, he must pay fine to the King which means that the husband would‘ be liable to penal action under the present law of the land. -      One of  the arguments  addressed by the counsel for the respondent which  had appealed to thee full Bench of the Pun jab &  Haryana High  Court in  Vinod Kumar’s case (supra) as

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also to  our learned  Brother Varadarajan, J., is that after entering the  matrimonial home  the custody  of the stridhan entrusted by  the wife  to her  husband becomes  a sort of a partnership firm and in this view of the matter the question of criminal  breach of trust does not arise. In our opinion, it is neither appropriate nor apposite to import the concept of partnership  in the  relationship of husband and wife for the  simple  reason  that  the  concept  of  partnership  is entirely different  from that  of the  husband’s keeping the stridhan in his custody. Section 4 of the Indian Partnership Act, 1932 (hereinafter referred to as the ’Partnership Act’) defines ’partnership’ thus:           "partnership" is  the relation between persons who      have agreed  to share  the profit of a business carried      on by all or any of them acting for all.           Persons who have entered into partnership with one      another  are   called   individually   "partners"   and      collectively "a  firm" and  the name  under which their      business is carried on is called the "firm name".           The essential ingredients of a partnership are:           (1) that  there should  be an  actual or  physical      overt act  on the  part of  two persons  to embark an a      business adventure.           (2) that  if any  business is carried on by one or      any 210      of the  partners the  profits of  the business shall be      shared  by  -  them  in  the  ratio  contained  in  the      partnership agreement.      It is,  therefore, manifest  that in  a partnership the wife must  by some clear and specific act indicates that the stridhan which   has  been entrusted to the husband is to be used for  a partnership business and the losses of the firm, if any  would have to be shared by both. In other words, one of the  essential conditions  of a  partnership firm is that every partner must have dominion over the property by virtue of the  fact that he is a partner. This aspect of the matter was highlighted  in a  decision of  this Court  in  Velji  a Raghavji v.  State of  Maharashtra(1)  where  the  following observations were made:           ".. Every  partner has  dominion over  property by      reason of the fact that he is a partner. This is a kind      of dominion  which every owner of property has over his      property. But  it is  not dominion  of this  kind which      satisfies the  requirements of  s.  405.  In  order  to      establish ’entrustment of dominion’ over property to an      accused person  the mere  existence  of  that  person’s      dominion over  property  is  not  enough.  It  must  be      further shown  that his  dominion .  was the  result of      entrustment."      In the  instant case,  however, there  is  neither  any allegation nor  anything in  the complaint to show that when the wife  entered her matrimonial home she had entrusted the property to  her husband so as to make him part owner of the same.  Therefore,  the  question  of  the  husband’s  having dominion over  the property  does not at all arise. In fact, the wife has nothing to do with the partnership, if any, and the husband  is a  pure and simple custodian of the property and  cannot  use  the  same  for  any  purpose  without  her consent.A pure and simple act of entrustment of the stridhan to the  husband  does  not  attract  any  of  the  essential ingredients of a a partnership as defined in the Partnership Act.      In the  instant case,  there is also no question of the wife constituting  herself a partner with her husband merely

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by allowing  him to  keep  the  articles  or  money  in  his custody. There  is neither  any pleading  nor any allegation that after her marriage, the appe-  (1)AIR 1965 SC 1433. 211 llant transferred  all her  properties to  her  husband  for carrying on  a partnership  business in  accordance with the provisions of  the Partnership Act. Thus, in our opinion, it cannot be  said that a bare act of keeping stridhan property in the custody of the husband constitutes a partnership and, therefore,  a   criminal  case  under  s.  406  IPC  is  not maintainable. It  is not  necessary for us to multiply cases on this  point on  which there  does not  appear to  be  any controversy. We  have already  pointed out that the stridhan of a  woman is  her absolute property and the husband has no interest in the same and the entrustment to him is just like something which he wife keeps in a Bank and can withdraw any amount whenever she likes without any hitch or hindrance and the  husband  cannot  use  the  stridhan  for  his  personal purposes unless  he obtains  the tacit  consent of his wife. When the  essential conditions of a partnership do not exist the mere  act or factum of entrustment of stridhan would not constitute any  co-ownership or legal partnership as defined under s.4 of the Partnership Act.      To sum  up the  position seems  to be  that 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 loss-, 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 b-half of his wife  and if he diverts the entrusted property elsewhere or  for   different  purposes  he  takes  a  clear  risk  of prosecution  under   s.406  of  the  IPC.  On  a  parity  of reasoning, it  is mainfest  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.      For  these  reasons,  the  custody  or  entrustment  of stridhan with  the husband  does not amount to a partnership in any  sense of  the term  and therefore,  we are unable to agree with view taken in Vinod Kumar’s case as also with the opinion expressed  by our  Brother on  the points arising in the case.      Another serious consequence as a result of the ratio of the full  Bench decision  in Vinod  Kumar’s case would be to render the 212 provisions of  s. 406  IPC inapplicable and nugatory even if the husband  has the audacity or the importunity of refusing to return  the stridhan  of his  wife. Furthermore, we shall hereafter show  that the view of the Full Bench is in direct contravention of a long course of decisions of this Court on the ingredients  of  s.  405  IPC.  Before  coming  to  this chapter, we  would like  to say  a few things more about the judgment of the High Court which on deeper probe and careful scrutiny seems to be self-contradictory.      We are  clearly of  the opinion  that  the  concept  of stridhan property  of  a  married  woman  becoming  a  joint property of  both the  spouses as  soon as  she  enters  her matrimonial home  and continues  to be  so until she remains

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there or  even if  there  is  a  break  in  the  matrimonial alliance,  is  in  direct  contravention  of  Hindu  Law  of Sadayika which  has been  administered  since  more  than  a century by  High Courts,  Privy- Council as also this Court. By a  pure and simple figment of the fertile imagination the Judges in  Vinod Kumar’s case seem to have rewritten the law of criminal breach of trust contained in ss. 405 and 406 IPC so as to carve out an imaginary exception to the application of the  Penal Code.A  more tragic  consequence of  the  view taken by  the High Court is that even if there is a break in the matrimonial  alliance and  the wife wants her husband to return her exclusive property and he refuses to return, even then the  provisions of s. 406 IPC would not apply. It is an extreme travesty of justice for a court to say that whenever a married  woman demands-  her stridhan  property  from  her husband she  should be  driven to  the dilatory process of a civil court  and her  husband would  be debarred  from being prosecuted by  a criminal  court. By a strange and ingenious process of  holding that  such an  act of a husband does not attract the  provisions of  the Penal  Code, as the property being joint  there is  no question  of the  husband being  a trustee or  holding the same in a fiduciary capacity. Such a view, in our opinion, is not only contradictory but-what the High Court  has said  before regarding  the applicability of s.27 of the Hindu Marriage Act and the nature of stridhan as referred to  above-is also  neither in consonance with logic and reason nor with the express provisions of the Penal Code and seems  to  us  to  be  inspired  by  a  spirit  of  male chauvininism so  as to  exclude the  husband  from  criminal lability  merely  because  his  wife  has  refused  to  live  in  her matrimonial 213 home. We  are indeed  surprised how  could the  High  Court, functioning in  a civilised  and socialistic society such as ours,  play   havoc  with   judicial  interpretation  of  an important branch of law.      We shall  now show how the final view taken by the High Court is  clearly contradictory  to  what  it  has  observed before. In  paragraphs 22A,  23 and  24 of the judgment, the High Court observes as follows:           "It must,  therefore, be  unreservedly stated that      the law,  as it stands today, visualises a complete and      full ownership  of her  individual property  by a Hindu      wife and  in this  context the factum of marriage is of      little or  no relevance  and she  can own  and  possess      property in the same manner as a Hindu male.           Once it is held that a Hindu wife can own property      in her  own right, then it is purely a question of fact      whether the  dowry or the traditional presents given to      her, were  to be  individually owned by her or had been      gifted to  the husband alone or jointly to the couple.-      ..  For  instance  jewellery  meant  for  the  personal      wearing of  the bride,  wedding  apparel  made  to  her      measures specifically,  cash amounts  put into  a fixed      deposit ill a bank expressly in her E name; are obvious      examples  of   dowry  raising  the  strongest,  if  not      conclusive presumption,  of her  separate owner ship in      these articles.  Once it  is found as a fact that these      articles of dowry were so given to her individually and      in her  own right, then I am unable to see how the mere      factum of  marriage would alter any such property right      and  divest   her  of   ownership  either   totally  or      partially."      In these  paragraphs the  High Court  unequivocally and

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categorically expresses  the view  that a  Hindu  woman  has complete and  full ownership  of her individual property and the factum  of marriage  is of no relevance to determine the nature of  the property  It also  holds that  articles  like jewellery, wedding  apparel and cash, etc., cannot alter any such property  right. In view of this clear finding given by the High  Court, how  could it make a complete volte-face by holding that  these very  properties after  marriage  become joint property  of both  the spouses. The High Court has not realised that the theory or philosophy of matrimonial home 214 propounded by  it stands  directly contradicted  by its  own observations referred to above.      In paragraph 49 of the judgment, the High Court clearly finds that  the mere  use by  the relations  of the  husband would not  have the  effect of passing the possession of the property  to   the  Hindu   undivided  family  and  in  this connection observes thus :-           Equally, the  common use  and enjoyment of certain      articles of  dowry and  traditional  presents,  by  the      other members  of a  joint family  with the  leave  and      licence of  a Hindu  wife, cannot  have the  effect  of      extending the  jointness Of  control and custody of the      couple   to    undefined   and   unreasonable   limits.      Consequently, there  is no  reason to  assume that  the      mere user or enjoyment of the dowry by other members of      the house-hold,  would have  the effect  of passing the      possession and  control thereof  jointly to  the  Hindu      Undivided Family as such."      Thus, these  observations run  counter and  are totally inconsistent and  irreconcilable with  the view taken by the High Court in paragraph 41 where it has observed thus:           "In the light of the above it would be farcical to      assume that  despite the  factum of  a marriage  and  a      common matrimonial  home the two spouses would stand in      a kind of a formal relationship where each is entrusted      with or  has been  passed dominion  over the  exclusive      property of  the other..-....The  matrimonial  home  so      long as  it subsist presumes a jointness of custody and      possession by  the spouses  of their individual as also      of  their   joint  properties   line..  The  inevitable      presumption during  the existence or the imminent break      up of  the matrimonial  home there fore is one of joint      possession  of  the  spouses  which  might  perhaps  be      dislodged by  the special  terms of a written contract.      However,  to  be  precise  this  presumption  of  joint      possession properties  within the  matrimonial home can      subsist only  as long- as the matrimonial home subsists      or on the immediate break up thereof."      At other places the High Court has observed thus: 215      "47.  In  view  of  the  above,  it  would  be  equally      untenable to  hold that  either the  desertion  or  the      expulsion of  one of  the spouses  from the matrimonial      home would  result  in  entrusting  dominion  over  the      property belonging to the other so as to bring the case      within the  ambit of  this pre  requisite under  S.405,      Indian Penal  Code. The  joint custody  and  possession      once  established   would  thereafter........   exclude      either express  entrustment or  the passing of dominion      over the  property. It  was rightly  argued that  if an      irate husband  or wife  walks out  from the matrimonial      home in  a huff,  this cannot constitute an entrustment      or  dominion   over  the   property   to   the   other.      Consequently, unless a special written agreement to the

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    contrary can  be established, the strongest presumption      arises that  during the existence and immediately after      the crumbling  of the  matrimonial home,  there was  in      essence, a joint possession and custody of the property      of the spouses therein, including dowry and traditional      presents,  which   would  preclude  the  essentials  of      entrustment or  dominion over  the property  which form      the cornerstone  of  criminality  under  s.405,  Indian      Penal Code.      53. It  cannot, therefore, be prim. facie presumed that      these are  exclusively the  ownership of  the  wife  or      inevitably entrusted either to the husband or his close      relations. As  was noticed earlier, if an irate wife in      a tantrums  abandons the  matrimonial home,  such  like      property does not in the eye of law become entrusted to      the parents-in-law  or other  close  relations  of  the      husband No  such gullible presumption of entrustment or      passing of  the dominion  of property  can be raised in      such  a  situation  to  come  within  the  mischief  of      criminality  for   breach  of   trust.  Entrustment  or      dominion over  the property  has  to  be  unequivocally      alleged and conclusively established by proof later."      The High  Court had  itself rightly spelt out the legal propositions that the pure and traditional presents given to a bride  in a  Hindu  wedding  may  be  divided  into  three categories, viz.,      (a)  property intended  for exclusive use of the bride,           e. g.,  her personal  jewellery, wearing  apparel,           etc. 216      (b)  articles of  dowry which may be for common use and           enjoyment in the matrimonial home, and      (c)  articles given  as presents  to the husband or the           parent-in -law and other members of his family.      With regard  to category  (a)  above,  the  High  Court observed thus:           "Similarly  as   regards  the  first  category  of      articles meant  for the  exclusive use of the bride she      would   retain    her   pristine    ownership   therein      irrespective  or   her  entry   and  presence   in  the      matrimonial home or that of her parents in-law."      The High  Court thus  accepts the well established rule of Hindu  law of  stridhan that  that articles  mentioned in category (a)  are meant  for the  exclusive use of the bride and are  her personal property. Unfortunately, however, with regard to  category (c) while discussing the question of the rights of the bride to her exclusive property upon her entry in her  matrimonial home, the High Court has wrongly applied what it  had previously held with regard to category (a). In one breath  the Judges  say that  the bride  is entitled  to retain her  ownership irrespective of her entry and presence in the  matrimonial home  and in  the other they come to the conclusion that  the  moment  a  married  woman  enters  her matrimonial  home,   all  her   properties,  including   her exclusive property,  become a joint property by a fiction of being placed in the custody of her husband or his relations. While we  agree with  the first  part of  the categories, as extracted above,  we find  it difficult  to accept the other propositions adumbrated  at a  later stage  of the  judgment which have been fully discussed by us. We fail to understand how the  High Court  while finding that joint enjoyment does not divest  a Hindu  wife of  her exclusive  ownership still chose to treat it a joint property of the two spouses by the mere factum  of joint  user. The  two views expressed by the High Court  stand contradicted  by its  own findings and are

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wholly understandable.  Thus, a  detailed  analysis  of  the judgment of the Punjab & Haryana High Court in Vinod Kumar’s case (supra)  appears to  us to  be a  mass of confusion and lacks both clarity and coherence. We are, therefore, unable 217 to uphold  or support  the view  of the High Court that upon entering the  matrimonial home  the  ownership  of  stridhan property becomes joint with her husband or his relations- To this extent,  therefore, we  overrule this decision and hold that with  regard to  the stridhan  property  of  a  married woman, even if it is placed in the custody of her husband or in-laws they  would be  deemed to  be trustees  and bound to return the same if and when demanded by her.      The Supreme  Court in  a large number of cases has held that the  fundamental core of the offence of criminal breach of trust.  is that  a property  must be  entrusted  and  the dominion of  the property should be given to the trustee. In the present  case, all  these conditions,  even according to the findings  of the  Court though  not its  conclusion, are clearly established.  That the  view of  the High  Court  is absolutely  wrong   would  be   clear  from   a  number   of authorities, some of which we would like to discuss here.      In Chelloor  Manaklal  Narayan  Ittiravi  Nambudiri  v. State  of   Travancore(1)  this  Court  made  the  following observations:           "As  laid  down  in  S.  385,  Cochin  Penal  Code      (corresponding  to   S.  405,  Indian  Penal  Code)  to      constitute an offence of criminal breach of trust it is      essential that  the prosecution must prove first of all      that the  accused was  entrusted with  some property or      with any  dominion or  power over  it-It follows almost      axiomatically from  this definition  that the ownership      or beneficial  interest in  the property  in respect of      which criminal  breach of trust is alleged to have been      committed, must  be  in  some  person  other  than  the      accused and  the latter must hold it on account of some      person or in some way for his benefit."      In Jaswantrai  Manilal Akhaney  v., State  of Bombay(2) Sinha, J. (as he then was) observed thus:           "For an  offence under  section 409,  Indian Penal      Code, the  first essential  ingredient to  be proved is      that the property was entrusted- - But when section 405      which defines  "criminal breach  of trust  speaks of  a      person being (1) AIR 1953 SC 478. (2) [1956] S.C.R. 483. 218      in any  manner entrusted  with property,  it  does  not      contemplate the  creation  of  a  trust  with  all  the      technicalities of  trust. It  contemplates the creation      of a  relationship whereby  the owner of property makes      it over to another person to be retained by him until a      certain contingency  arises or to be disposed of by him      on the happening of a certain events."      In Akharbhai Nazorali v. Md. Hussain Bhai(1) the Madhya Pradesh High Court made the following observations:           "It may be that the deduction and retention of the      employees’ contribution is a trust created by virtue of      that very  fact, or by virtue of a provision in statute      or statutory  rule. But even apart from the latter, the      mere fact  of telling  the employees  that it  is their      contribution to  the provident  fund  scheme  and  then      making  a  deduction  or  recovery  and  retaining  it,      constitutes the  offence of  criminal breach  of trust.      This is so obvious that nothing more need be said about

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    it."      These observations  were fully endorsed and approved by this Court  in Harihar  Prasad Dubey  v. Tulsi Das Mundhra & Ors.(2 where the following observations were made:           "This, in  our opinion,  is a correct statement of      the position  and we  also agree with the learned Judge      of the  Madhya Pradesh High Court that "this so obvious      that nothing  more need be said about it We, therefore,      think that  the  impugned  order  quashing  the  charge      against the respondents is obviously wrong."      In Basudeb  Patra v.  Kanai Lal  Haldar(3) the Calcutta      High Court observed thus:      "Whereas  the  illustration  to  s.  405  show  equally      clearly that the property comes into. (1) AIR 1961 M. P. 37: (2) AIR 1981 SC 92. (3) AIR 1949 Calcutta 207, 219      the possession  of the  accused either  by  an  express      entrustment or by some process placing the accused in a      position of trust..-.-On the facts of the present case,      which, as I have said, are not open to question at this      stage, it is quite clear that the ornaments were handed      over to  the petitioner  by the beneficial owner in the      confidence  that   they  would   be  returned   to  the      beneficial owner in due time after having been used for      the purpose for which they were handed over. If this is      not an  entrustment, if  is impossible to conceive what      can be an entrustment."                                              (Emphasis ours)      This ratio  was fully  approved by  this Court in Velji Raghavji  Patel   v.  State   of  Maharashtra(1)  where  the following observation were made:      "In order  to establish " entrustment of dominion" over      property to  an accused  person the  mere existence  of      that person’s  dominion over property is not enough. It      must be  further shown that his dominion was the result      of entrustment.  Therefore, as  rightly pointed  out by      Harris,  C.J.   the  prosecution  must  establish  that      dominion over  the assets  or a particular asset of the      partnership was  by a  special  agreement  between  the      parties, entrusted to the accused person."      In  the   case  of   State  of   Gujrat  v.  Jaswantlal Nathalal,(2) Hegde,  J., speaking  for the  Court,  observed thus:           "The expression  ’entrustment’ carries with it the      implication that  the person  handing over any property      or on  whose behalf  that property  is handed  over  to      another, continues  to be its owner. Further the person      handing over  the property  must have confidence in the      person taking  the property so as to create a fiduciary      relationship between them."      In Sushil  Kumar Gupta  v. Joy Shanker Bhattacharjee(3) this Court observed thus: (1) AIR 1965 SC 1433. (2) [1968] 2 SCR 408. (3) AIR 1971 SC 1543. 220      "The offence  of criminal  breach of trust is committed      when a  person who  is entrusted  in  any  manner  with      property  or   with  dominion   over  it,   dishonestly      misappropriates it  or converts it to his own use.. The      appellant’s manner  of dealing with the money entrusted      to his  custody clearly  constitutes criminal breach of      trust."

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    In the  case of  Superintendent & Remembrancer of Legal Affairs, West  Bengal v.  S.K. Roy  (1) this Court held that for ’entrustment’  two things  are necessary,  viz., (l) the entrustment may  arise in  "any manner" whether or not it is fraudulent, and  (2) the  accused must  have acquisition  or dominion over the property.      In Bhai  Sher Jang  Singh &  Anr. v. Smt. Virinder Kaur (supra) the Punjab & Haryana High Court observed thus:           It might  be that  some of the articles which were      presented to  her are  for the  use of both the spouses      but the  ornaments and  things of  the like  nature are      certainly meant  for her  and her alone. When she makes      an allegation  in the complaint that either her husband      or her  parents-in-law had  converted to  their own use      the ornaments  forming the  part of  her stridhan which      she had  entrusted to them, the Court has to give legal      effect to  such allegation  and  to  assume  that  such      ornaments had  been made the subject matter of criminal      breach of  trust. It  is settled  law that  even  in  a      criminal  complaint   the  complainant   is  under   no      obligation to plead the legal effect of the allegations      made.  All   that  is   required  is   that  the  facts      constituting  a   complaint  should   be   specifically      mentioned so  that the Court may be able to perform its      duty of  punishing the  accused under  the  appropriate      provision of  law if  such allegations  are  made  out.      Further more, in a case like this a complaint cannot be      quashed without giving the aggrieve wife an opportunity      of proving  that the ornaments had been given to her at      the time of her marriage for her use only."                                          (Emphasis supplied)      We fully  endorse this  decision and  hold that it lays down the correct law on the subject. (1) [1974] 4 S.C.C. 230. 221      There is  a judgment  of the Allahabad High Court which more or  less takes  the same  view as  the Punjab & Haryana High Court  in Vinod Kumar’s case (supra). In Criminal Misc. Case No.  676 of  1981 (connected  with) Criminal Misc. Case No. 2753  of 1981,  Kailash Nath  Agarwal & Ors. v. Prem Pal Agarwal &  Anr., (decided on 22.12.1983), the Allahabad High Court, out  of the  three categories  laid down  by Punjab & Haryana High  Court in Vinod Kumar’s case, accepted only the third  category,   viz.,  articles   which  constitute   the individual property  of the  person for  whose  use  it  was given, and  held that the rest of the property falling under categories (a)  and (b)  would be property exclusively meant for the  use of  the bride  and once  it was  brought to the family home,  the possession  would be  joint unless  by  an express written  agreement there  was an  entrustment of the property of  the bride  to other  members of the family. The Allahabad High  Court thus  also accepts  the concept of the property being  a joint property in the matrimonial home. By and large  this decision  toes the line of the view taken by the Punjab  and Haryana  High Court  in Vinod  Kumar’s case. Furthermore, the  High Court  has gravely  erred in  holding that the property could only be claimed by filing a properly constituted civil  suit or in accordance with the provisions of the  Dowry Prohibition  Act or  the Hindu Marriage Act as the case may be. This proposition, in our opinion, is wholly incorrect as  conceded even  by the  Punjab , & Haryana High Court in Vinod Kumar’s case.      There is  an earlier  decision of  the Punjab & Haryana High Court  which clearly  holds that where there is a clear allegation of  entrustment by  the wife against the husband,

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he could  be prosecuted  by a  criminal court on a complaint filed by  the wife.  In this  connection, the Court in Avtar Singh & Anr. v. Kirpal Kaur Criminal Misc. No.2144-M of 1979 and Criminal  Misc.No.2145 of 1979, decided on 16 8.79) made the following observations:           "In my  opinion, where  certain thing  is lying in      trust   with    a   person,    offence   of   dishonest      misappropriation would  be  committed  on  a  date  the      demand for return of the entrusted articles is made and      the same  is declined...According to the complaint, the      first demand for the return of the articles was made on      January 27,  1976 and  it was that date when the demand      was declined. Hence, the offence of misappropriation of      the dowry  articles lying  in trust  was  committed  on      January 27, 1976." 222      We  find   ourselves  in  entire  agreement  with  this decision and hold that this was correctly decided.      This Court has pointed out more than once that the High Court should very sparingly exercise its discretion under s. 482 Cr.  P.C. In  L.V. Jadhav v. Shankarrao Abasaheb Pawar & Ors.(l) (to  which two  of us were a party), this Court made the following observations:           "The High Court, we cannot refrain from observing,      might well  have refused  to invoke its inherent powers      at  the   very  threshold   in  order   to  quash   the      proceedings, for these powers are meant to be exercised      sparingly and  with circumspection when there is reason      to believe  that the process of law is being misused to      harass a citizen."      In Smt.  Nagawwa v.  Veeranna Shivalingappa  Konjalgi & Ors.(2) this Court observed as follows :-           "Thus, it may be safely held that in the following      cases  an  order  of  the  magistrate  issuing  process      against the accused can be quashed or set aside:           (1) Where the allegations made in the complaint or      the statements  of the witnesses recorded in support of      the same  taken at their face value make out absolutely      no case  against the  accused or the complaint does not      disclose the  essential ingredients of an offence which      is alleged against the accused;           (2) Where  the allegations  made in  the complaint      are patently  absurd and  inherently improbable so that      no prudent  person can  ever reach  a  conclusion  that      there is  sufficient ground  for proceeding against the      accused;           (3)  where   the  discretion   exercised  by   the      Magistrate in suing process is capricious and arbitrary      having been either on no evidence or on materials which      are wholly irrelevant or inadmissible; and (1) AIR [1983]SC 1219. (2) [1976] Supp. SCR123 223           (4) where  the complaint  suffers from fundamental      legal defects,  such as, want of section, or absence of      a complaint  by legally  competent  authority  and  the      like.      The cases  mentioned by  us are purely illustrative and      pro   vide    sufficient   guidelines    to    indicate      contingencies  where   the   High   Court   can   quash      proceedings." B      The same  principles would  apply mutatis mutandis to a criminal complaint.           We now come to the question as to whether or not a      clear allegation of entrustment and misappropriation of

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    properties was  made by  the appellant in her complaint      and, if  so, was  the High  Court justified in quashing      the complaint  at that  stage. It  is well settled by a      long course  of this  Court that  for  the  purpose  of      exercising its  power under  s. 482  Cr.P.C. to quash a      FIR or a complaint the High Court would have to proceed      entirely on  the basis  of the  allegations made in the      complaint or  the documents  accompanying the  same per      se. It  has no  jurisdiction to examine the correctness      or otherwise  of the allegations. In case no offence is      committed on  the allegation  and  the  ingredients  of      s.405 &  406, I.P.C.  are not  made out, the High Court      would be  justified in quashing the proceedings. In the      present case,  we shall  show that  the allegations are      both clear,  specific and  unambiguous and,  therefore,      the complainant  should have  been given  a  chance  to      prove her  case. It  is, of course, open to the accused      at the trial to take whatever defence that were open to      him but  that stage had not yet come and therefore, the      High Court  was totally ill-advised to speculate on the      merits  of  the  case  at  that  stage  and  quash  the      proceedings. We  have narrated  the facts  in detail in      the earlier  part of  our judgment  but we might again,      even at the risk of repetition, indicate the bare facts      which prima  facie make  out a  clear case under s.406,      IPC against  the accused. The important portions of the      complaint may be spelt out thus:      (1)  that all  the accused attended the marriage of the           appellant with  the respondent  and demanded dowry           from the parents of the appellant in consideration           of the marriage.      (2)  that the  parents of the appellant spent Rs,75,000           on the marriage and dowry articles worth Rs.60,000 224           (inclusive of  jewellery, wearing  apparel,  etc.)           were given  and entrusted to accused Nos.1 to 6 at           the time of the Doli on 5.2.72,      (3)  that the  articles entrusted  to the  accused were           meant for the exclusive use of the appellant,      (4)  that the  dowry articles  were never  given by the           accused to  the appellant  even for  her  use  and           possession of  the same was illegally, dishonestly           and mala  fidely retained  by the accused in order           to  obtain  a  wrongful  gain  to  themselves  and           wrongful loss to the appellant,      (5)  that on  11.12.1980 in  the morning,  the  accused           brought the appellant to Ludhiana in three clothes           and refused  to give  the entrusted articles which           were the stridhan of the appellant.      Taking all the allegations made above, by no stretch of imagination can it be said that the allegations do not prima facie amount  to an  offence of  criminal  breach  of  trust against the respondent. Thus, there can be no room for doubt that all  the facts  stated in  the complaint  constitute an offence under  s. 406 IPC and the appellant cannot be denied the right  to prove  her case at the trial by per-empting it at the very behest by the order passed by the High Court.      We therefore,  overrule the  decisions of  the Punjab & Haryana High Court in Vinod Kumar’s case. By way of post-script we might add that we are indeed amazed to find  that so deeply drowned and inherently engrossed are some of  the High  Courts in the concept of matrimonial home qua the  stridhan property  of a  married  women  that  they simply refuse  to believe that such properties are meant for the exclusive  use of  the wife  and could  also be  legally

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entrusted to  the husband  or his  relatives. Thus,  if  the husband or  his relatives misappropriate the same and refuse to hand  it over  to the  wife and convert them to their own use and  even though  these facts  are clearly  alleged in a complaint for  an offence  under  s.  405/406  I.P.C.,  some courts take  the complaint  is not  maintainable. Thus, even when  clear   and  specific  allegations  are  made  in  the complaint 225 that such  properties were  entrusted to  the husband,  they refuse to  believe these  hard facts and brush them aside on the ground  that they  are vague.  The  allegations  of  the complainant  in  this  appeal  and  the  appeal  before  the Allahabad and  the Punjab  & Haryana High Court show that it is not  so but  is  a  pure  figment  of  the  High  Court’s imagination as  a result  of which the High Court completely shut their   eyes to the fact that the husband could also be guilty   under s.  405/406 I  P.C.  in  view  of  the  clear allegations made  in the complaint. In other words, the High Courts simply  refuse to  believe that there can be any such entrustment and  even if  it is  so no offence is committed. Such an  approach amounts  to a  serious distortion  of  the criminal  law,   resulting   in   perpetrating   grave   and substantial miscarriage  of justice to the wife at the hands of the  High Courts.  We cannot countenance such a wrong and perverse approach.      For the  reasons given  above, we are satisfied that as the complaint  prima facie  disclosed an offence of criminal breach of trust as defined in s. 405/406 of the Indian Penal Code the  High  Court  was  not  justified  in  quashing‘the complaint. We,  therefore, allow  this appeal, set aside the judgment of  the High  Court and restore the complaint filed by  the  appellant  and  direct  that  the  accused  may  be summoned, if  not already  summoned, and  put  on  trial  in accordance with law.      VARADARAJAN, J.  This criminal  appeal by special leave is directed  against the  judgment of a learned Single Judge of the  Punjab and Haryana High Court in Criminal Misc. Case No.4876 of 1981.      The appellant,  Pratibha Rani  is the estranged wife of the first  respondent Suraj  Kumar who is the brother of the second respondent  Krishan Lal.  One  Rattan  Chand  is  the father of  respondents 1  and 2 and two others Chander Kumar and Vishwinder  Kumar. One Jugal Kumar is the brother-in-law of the first respondent.      The appellant filed a criminal complaint for an offence under s.406  I.P.C. against  her husband  and his father and brothers and  brother-in-law mentioned above in the Court of the Additional Chief Judicial Magistrate, Ludhiana, alleging that she  was married to the first respondent at Ludhiana on 4. 2.  1972 according  to the  Hindu rites  and customs. The material averments in the complaint 226 are these:  The aforesaid  persons, namely,  father, brother and brother-in-law  of the  first  respondent  attended  the marriage and  demanded dowry from the appellant’s parents as consideration for  the marriage. Accordingly, dowry articles mentioned in  the list  appended to the complaint, worth Rs. 60,000, in  the form  of golden  articles, clothes and other valuables were  given and  entrusted to  the respondents and four others  mentioned in  the complaint at Ludhiana time of ’doli’ on  5.2.1972 in  the presence of Kapur Chand Jain and six others.  The six  respondents in  the complaint  started teasing, harassing  and beating  the appellant and they kept her without  even  food  to  extract  more  money  from  her

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parents. They  turned out the appellant with her children in the beginning  of 1977. After a great deal of persuasion and intervention by Panchayatdars, respondent 1 came to Ludhiana and  took  the  appellant  to  his  house  after  giving  an undertaking in  writing on 21. 6. 1977 not to misbehave with and maltreat the appellant her children. But after some time all the respondents in the complaint started maltreating the appellant and  misbehaving with  her. The articles mentioned in the  list were  never given  by the  respondents  in  the complaint to  the appellant for her use but were retained by them illegally  and with  the dishonest intention of causing wrongful  gain  to  themselves  and  wrongful  loss  to  the appellant. The  respondents in  the  complaint  brought  the appellant to  Ludhiana at  4.30 a.m.  On 11.12.1980 and left her near  Kailash Cinema  Chowk. They  refused to  give  the articles mentioned in the list which are the stridhan of the appellant to  her. When  the  appellant’s  husband  and  his brother, Vishwinder  Kumar,  respondents  1  and  5  in  the complaint, came  to Ludhiana  on  10.2.1981  to  attend  the proceeding started  by the  appellant under s. 125 Cr. P.C., her parents  persuaded them to return the articles entrusted to them  at the time of the marriage but they flatly refused to comply  with that  demand. The  articles  have  not  been returned in spite of service of notice dated 17. 12. 1981 on the first  respondent. Thus the respondents in the complaint have dishonestly  converted the  articles belonging  to  the appellant for their use in violation of the direction of the appellant’s parents  given at  the time  of the  marriage to give the articles for the appellant’s use.      The respondents  in this  appeal filed  Criminal  Misc. Case No.4876  of 1981  in the  Punjab and Haryana High Court under   s.482 of the Code of Criminal procedure for quashing the criminal 227 Proceedings  and   the  complaint   taken  on  file  by  the Additional Chief  Judicial Magistrate, Ludhiana under s. 406 I.P.C. and his order summoning them.      Sukhdev Singh  Kang, J.  before whom the matter came up in the High Court relied strongly upon the observations made by a  Full Bench  of that  High Court in Vinod Kumar Sethi & Ors. v.  State of PunJab and Ors.(l) and has observed in his judgment that the mere handing over of the articles of dowry of stridhana  to the husband and other relations at the time of the marriage does not constitute entrustment in the sense of the  word used in ss. 405 and 406 I P.C. and that it does not amount  to passing  of dominion  over those  articles to them. The  learned Judge has observed that there can be such an  entrustment  only  by  a  subsequent  conscious  act  of volition ‘  and that  in the  absence of  such  an  act  any allegations of  breach of trust between the husband and wife cannot constitute  an offence under s.406 I.P.C. The learned Judge has further observed that between the husband and wife there is always a jointness of control and possession of the properties of  the spouse  within the  matrimonial home  and that it  goes against the very concept of entrustment of his or her property by one spouse to the other. In this view, he allowed the  petition and quashed the proceeding arising out of the appellant’s complaint, observing that the allegations in the appellant’s complaint are similar to the one in Vinod Kumar’s case  (supra) and that this case is fully covered by the ratio in that decision.      The appellant  has, therefore,  come to  this Court  in appeal by  special leave,  impleading the petitioners before the High  Court, who are only two out of the six respondents in the complaint, as respondents in this appeal.

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    In a  petition  under  s.482  Cr.P.C.  for  quashing  a criminal complaint,  the allegations  made in  the complaint have to  be taken to be correct in order to find out whether they  constitute  the  various  ingredient  of  the  offence alleged. In  Nagawa Veernna  Shivalingappa Konjalgi  & Ors ) illustrations have  been given  of cases  in which it may be safely held  that an  order of  a Magistrate issuing process against an accused can be quashed or set aside. They are: (1) AIR 1982 Punjab 372. (2) [1976] Suppl S.C.R. 123 228           (1) Where the allegations made in the complaint or      the statements  of the witnesses recorded in support of      the  same,   taken  at   their  face  value,  make  out      absolutely no case against the accused or the complaint      does not  disclose  the  essential  ingredients  of  an      offence which is alleged  against the accused;           (2) Where  the allegations  made in  the complaint      are palpably  absurd and  inherently improbable so that      no prudent  person can  ever reach  a  conclusion  that      there is  sufficient ground  for proceeding against the      accused;           (3)  Where   the  discretion   exercised  by   the      Magistrate  in   issuing  process   is  capricious  and      arbitrary having been based either on no evidence or on      materials which  are wholly irrelevant or inadmissible;      and      (4) Where  the complaint suffers from fundamental legal      defects such  as want  of sanction,  or  absence  of  a      complaint by  a legally  competent  authority  and  the      like."      Article 126  in Mulla’s  Hindu Law,  Fifteenth Edition, describing what constitutes Stridhana reads: -           "property given  or bequeathed  to a  Hindu female      whether during  maidenhood, coverture  or widowhood  by      her parents  and their  relation or  by her husband and      his relations  is stridhana  according to  all  schools      except that  the Dayabhaga does not recognise immovable      property given  or bequeathed by husband to his wife as      stridhana."      Section 2  of the  Dowry prohibition  Act, 1961 defines "dowry" as meaning:           "any property or valuable security given or agreed      to be  given either  directly or  indirectly-(a) by one      party to a marriage to the other party to the marriage,      or (b)  by the parents of either party to the marriage,      or by  any other person to either party to the marriage      or to  any other  person at  or  before  of  after  the      marriage in  connection with  the marriage  of the said      parties but  does not include dower or mahr in the case      of person  to whom  the Muslim  personal law  (Shariat)      applies." 229      In the  present  complaint  of  the  wife  against  the husband and , his three brothers, father and brother-in-law, it is alleged that the marriage was performed at Ludhiana on 4.2.1972 according  to Hindu  rites and customs and that the father and  three brothers  and the  brother-in law  of  the husband attended  the marriage  and demanded  dowry from the wife’s parents  as consideration  for the  marriage and that accordingly dowry articles worth Rs.60,000, mentioned in the list attached to the complaint, consisting of gold articles, clothes and  other valuables were given and entrusted to the husband and  the other five respondents in the complaint, at the time  of the  ’doli’ at  Ludhiana on  5.2. 1972  in  the

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presence of  Kapur Chand Jain and six other persons. For the purpose of  the petition  under s.482 Cr.P.C. those articles must be  prima facie  considered to be dowry or stridhana of the appellant-wife.      In Velji  Raghavjl Patel v. State of Maharashtra,(1) it is observed:           "Upon the  plain reading  of s.405,  I.P.C. it  is      obvious that  before a  person  can  be  said  to  have      committed  criminal   breach  of   trust  it   must  be      established  that  he  was  either  entrusted  with  or      entrusted with  dominion over property which he is said      to have  converted to  his own  use or  disposed of  in      violation of  any direction  of law  etc. Every partner      has dominion  over property  by reason of the fact that      he is a partner. This is a kind of dominion which every      owner of  property has over his property. But it is not      dominion of  the kind  which satisfies the requirements      of s.  405.  In  order  to  establish  "entrustment  of      dominion" over  property to  an accused person the mere      existence of  that person’s  dominion over  property is      not enough.  It must be further shown that his dominion      was the  result of  entrustment. Therefore,  as rightly      pointed out   by  Harris  C.J.,  the  prosecution  must      establish that dominion over the assets or a particular      asset of  the partnership  was by  a special  agreement      between the  parties, entrusted  to the accused person.      If in  the absence  of such  a a  special  agreement  a      partner receives  money belonging to the partnership he      cannot be said to have received it in a (1) [1965] 2 S C.R. 429 230      fiduciary capacity  or in other words cannot be held to      have been  "entrusted" with  dominion over  partnership      properties."      In State  of Gujarat  v. Jaswantlal  Nathalal(1) it  is observed:           "Before there can be any entrustment there must be      a trust  meaning thereby  an obligation  annexed to the      owner ship  of property and a confidence reposed in and      accepted by  the owner  or declared and accepted by him      for the benefit of another or of another and the owner.      But that  does not  mean that  such an entrustment need      conform to all the technicalities of the law of trust -      see Jaswantrai  Manilal  Akhaney  v.  State  of  Bombay      [1956] SCR  483, 498-500.  The expression ’entrustment’      carries with it the implication that the person handing      over any  property or  on whose behalf that property is      handed over  to anther,  continues  to  be  its  owner.      Further the  person handing over the property must have      confidence in  the person  taking the property so as to      create a fiduciary relationship between them."      In Sushil  Kumar Gupta v. Joy Shankar Bhattacharyya(2), it is observed:           "The  offence  of  criminal  breach  of  trust  is      committed when  a person who is entrusted in any manner      with property  or with  dominion over  it,  dishonestly      misappropriates it,  or converts  it to his own use, or      dishonestly uses  it or disposes it of, in violation of      any direction  of law prescribing the mode in which the      trust is  to be  discharged, or of any lawful contract,      express  or   implied,  made   by  him   touching  such      discharge, or  wilfully suffers  any other person so to      do."      In Superintendent  Remembrancer of  Legal Affairs, West Bengal v. S.K. Roy(8), it is observed:

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         "There are,  however, two  distinct parts involved      in the  commission of the offence of criminal breach of      trust.  The  first  consists  of  the  creation  of  an      obligation in rela (1) [1968] 2 SCR 408. (2) [1970] 3 SCR, 770. (3) [1974] 4 SCC,230. 231      tion to  the property over which dominion or control is      acquired   by    the   accused.   The   second   is   a      misappropriation   or   dealing   with   the   property      dishonestly and contrary to the terms of the obligation      created.      The most  important ingredient  of an  offence under s. 406, which  is alleged  by the wife against her husband, his three brothers,  father and  brother-in-law in her complaint in the present case is the entrustment of the dowry articles to the  respondent in  the complaint  and  ,their  dishonest conversion thereof  to their  own use.  There is no doubt an allegation in  the complaint  that these articles were given and  entrusted  to  the  respondents  in  the  complaint  at Ludhiana at  the time  of doll  on 5-2-1972.  Apart from the husband the  other respondents  in the complaint, as already stated, are  his father,  three brothers and brother-in-law. The articles  were given  for the  use of  the wife-  If so, could there  be entrustment of the articles to such a number of diverse  persons?  In  the  background  of  what  usually happens in  Hindu marriages  namely, placing of the articles presented to  the bride  in the  presence of  the elders and others assembled  for the occasion and removal thereof after the  function  is  over  it  has  to  be  seen  whether  the allegation made  in the  complaint amounts to entrustment as required by  law to  make out an offence under s. 406 l.P.C. This question  has been considered in detail by a Full Bench of the  Punjab and  Haryana High Court in Vinod Kumar’s case (supra) after  an analysis  of several  decision relating to the question.  The learned  Single Judge who has quashed the complaint in  the present  case on a petition of the husband and one  of his  brothers has  heavily relied upon that Full Bench decision  of his Court. What runs through the judgment of the  learned Judges  in that  case is  the concern of the Court for  the peaceful  and harmonious relationship between the  spouses   in  a   matrimonial  home   and   a   careful consideration of  the question  whether  the  ingredient  of entrustment"  exists   in  such   cases.  Therefore,  it  is necessary to  note what  has been  observed in  some of  the paragraphs of  the judgment  to that case. The learned Chief justice speaking for the Bench has observed:           "21.. The  present set  of cases  presents  a  sad      spectacle of a house divided against itself, not merely      in the  biblical but  in the literal sense, where wives      are  ranged   against  their  husbands  in  acrimonious      criminal prosecu- 232      tions. The  challenge on  behalf of  the  husbands  and      their  relations  is  focussed  basically  against  the      charge of  breach of  trust under  Section 406  of  the      Indian Penal  Code, levelled against them. Now the core      of the  argument on  behalf of  the petitioners is that      the very concept of any entrustment or passing dominion      over her  property by  the wife to the husband does not      arise at  all so  long as  the marriage  subsists.  The      contention is  that the  very nature  of  the  conjugal      relationship itself  would negative  any such stand. On      this premise  it  is  contended  that  the  basic  pre-

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    requisite of  the entrustment  of property  or dominion      over  property   being  lacking  and  non-existent,  no      offence under  Section  406,  Indian  renal  Code,  can      possibly be  made out.  Therefore, it  was argued  that      even accepting the first information reports as they do      not and  indeed cannot  disclose a  cognizable  offence      under Section 406. The petitioners, therefore, seek the      quashing of  the proceedings  - forthwith  rather  than      being obliged  to go  through the  tortuous mill  of  a      police investigation or the consequent criminal trial."           "25.  Now  apart  from  the  principle,  the  most      ancient texts  of Hindu  Law have always been categoric      that dowry,  as commonly  understood, was stridhana and      thus in the exclusive ownership of the bride."           "26. Now once it is so held that articles of dowry      and traditional presents given at the wedding are owned      by the  bride individually  in her  own right, then one      fails to  see how  by the mere fact of her bringing the      same into  her husband’s or parents-in-law’s household,      would forth  with divest  her of the ownership thereof.      Separate and  individual right  to property of the wife      therein cannot  vanish into  thin air  the  moment  the      threshold of  the matrimonial  home is  crossed. To say      that at  that point  - of  time she  would cease to own      such property  altogether and  the title  therein would      pass to  her husband or in any case she would lose half      of her right therein and become merely a joint owner of      the same,  with the  family of  her husband,  does  not      appear to  me as  even remotely warranted either by the      statute, principles  or logic.  No such marriage hazard      against the wife can be implied in law. 233      Once she  owns property exclusively, she would continue      to hold  and  own  it  as  such  despite  marriage  and      coverture and  the factum  of entering  the matrimonial      home.. "         "35. To  conclude on  this aspect, I find nothing in      the  codification   of  Hindu  Law  which  in  any  way      abolishes the  concept of  stridhana or  the right of a      Hindu wife  to exclusive  individual ownership.  Indeed      the resultant  effect of  such enactments is to put the      Hindu female  wholly at par with the Hindu male, if not      at  a   higher  pedestal   with  regard  to  individual      ownership of the property."         40. Now  having held  as above  that Hindu  wife can      exclusively own  and hold  property including her dowry      and traditional  presents given  at  the  wedding,  the      decks are  cleared for tackling the core question posed      at the  very outset.  What indeed  is  the  true  legal      relationship of  the husband  and wife qua the property      individually owned by each within the four walls of the      matrimonial home?  Does the  wife stand  entrusted with      the property  belonging to her husband individually and      vice versa  the  husband  stands  entrusted  with  such      property vesting  in the  exclusive  ownership  of  the      wife? It  is the  answer  to  this  question  which  in      essence   would    determine   the    attraction    and      applicability  of   Section  405,   I.P.C  betwixt  the      spouses.."          "41.  It bears ’repetition that the question herein      has  to   be  examined  against  the  backdrop  of  the      matrimonial home. What truly is the concept and essence      thereof  had   come  up  for  exhaustive  consideration      earlier before  a Full Bench in Kailash Vati v. Ayodhia      Parkash, ILR  (1977) 1  Punj. & Har. 642 in the context

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    of Hindu  Law itself. It is, therefore, apt to refer to      the authoritative enunciation therein:-            "To  my mind,  the idea  of the  matrimonial home           appears to  lie at  the very centre of the concept           of marriage  in all  civilised  societies.  It  is           indeed around  it that  generally the marriage tie           revolves. The home epitomizes the finer nuances of           the marital  status.  The  bundle  of  indefinable           rights and duties which 234      bind the  husband and  the wife  can  perhaps  be  best      understood only in the context of their living together      in the  marital home  The significance  of the conjugal      home in  the marriage  tie is  indeed so patent that it      would perhaps  be wasteful  to elaborate  the 8 same at      any great  length. Indeed,  the marital  status and the      conjugal home  have been almost used as interchangeable      terms." and      "To summarise, I have attempted to show by reference to      Anglo-American Jurisprudence  that the a concept of the      marital home  lies at  the very  centre of  the idea of      marriage  in  all  civilised  societies.  Perhaps  from      primeval times  when human  beings lived  sheltered  in      subterranean caves  to the  modern day  when many  live      perched in  flats in  high rise  apartments within  the      megapolis,  the   husband  and  the  wife  have  always      hankered for  a place  which may  be their very own and      which they  may call  a home.  The  innumerable  mutual      obligations and  rights  which  stem  from  the  living      together of  man and  wife are  undoubtedly beyond  any      precise definition  and stand epitomized by the concept      of the matrimonial home."      In the  light of  the above  it would  be  farcical  to assume that  despite the  factum of  a marriage and a common matrimonial home  the two Spouses would stand in a kind of a formal relationship where each is entrusted with or has been passed dominion  over the  exclusive property  of the other. Rather it  appears to  me that the conjugal relationship and the existence  of a  matrimonial home automatically obviates any such  hyper-technicalities of an entrustment or dominion over property.  It seems  inapt to conceive the relationship as a  day-to-day entrustment  of the property of the husband to the  custody of the wife or vice versa of the property of the wife  to the husband. The matrimonial home so long as it subsists presumes  a jointness  of custody and possession by the spouses  of their  individual as  also  of  their  joint properties which  can not  be divided  by  any  metaphorical line. In  a homely  metaphor in  the context  of the  modern commercialised world  it has  been said  that  the  marriage relationship is not one of 235      "I and  You limited"  but that  of "We limited". Whilst      the  law   undoubtedly  now   clearly  recognises   the      individual ownership  of property  by the  husband  and      wife, the necessary assumption in law, therefore, would      be that during the existence or even the imminent break      up the  matrimonial home  the concept  of jaintness  of      possession therein  seems to  be a  paramount one.  The      inevitable presumption  during  the  existence  or  the      imminent break  up of the matrimonial home therefore is      one of  joint possession  of the  spouses  which  might      perhaps be  dislodged by the special terms of a written      contract. However,  to be  precise this  presumption of      joint possession  of properties  within the matrimonial      home can  subsist only  as long as the matrimonial home

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    subsists or on the immediate break up thereof."        "42-43. The aforesaid position seems to be well borne      out by  a homely  example which was rightly advanced by      Mr. Bhandare  on behalf  of  the  petitioners.  It  was      submitted that  where a  husband  entrusts  a  specific      amount to  a wife  for paying  the school fees of their      children but  in a shopping spree she converts the same      into sarees  for  herself,  would  she  thereby  become      liable to  breach of  trust under  Section 406,  Indian      Penal Code?  The answer would obviously appear to be in      the negative. Similarly where a husband misuses or even      appropriates any  property exclusively belonging to his      wife within the matrimonial home he hardly comes within      the ambit  of criminality  under  Section  406,  Indian      Penal Code. Usually if not invariably where the husband      is the  bread winner  he brings  home the month’s wages      and bands  them over  to the  wife to  be spent  on the      family. Would it be possible to say that if she use the      same for  herself and  even against  the consent of her      husband she  would be  committing a  criminal breach of      trust? Obviously  the answer  would appear to be in the      negative."      "44. One  may now turn precisely to the language of the      Code itself. Sec. 405 is in the following terms:- 236            "405.  Criminal Breach of trust: Whoever being in           any manner  entrusted with  property, or  with any           dominion      over      property,      dishonestly           misappropriates or  converts to  his own  use that           property, or  dishonestly uses or disposes of that           property in  violation of  any  direction  of  law           prescribing the mode in, which such trust is to be           discharged or  of any  legal contract,  express or           implied, which  he has made touching the discharge           of such  trust,  or  wilfully  suffers  any  other           Person  so  to  do,  commits  criminal  breach  of           trust."         It is  well-setted that  from a  legal contract,  or      violation of  direction  of  law,  the  entrustment  of      property  or   dominion  over  property  are  the  per-      requisites  for  the  applicability  of  the  aforesaid      provision. Once  it is  held as  above,  that  property      within the  matrimonial home is in the joint possession      and custody (despite rights of the individual ownership      therein) then  these very per-requisites of entrustment      or dominion  over property  cannot be  easily satisfied      betwixt the spouses inter se. It is indeed well-settled      that the  very concept  of the  jointness of possession      and custody  would rule out the entrustment or dominion      over property  betwixt such  joint custodians.  In line      with  the   concept  of   joint  ownership   where  the      possession of  one joint  owner is  deemed  to  be  the      possession of  all, the  analogy,is to be extended that      existence of  the property  within the matrimonial home      rises a  presumption that both the husband the wife are      in possession thereof jointly and not that each one has      entrusted his  exclusive property  to  the  custody  of      other. Subscribing  to the  latter view  would be  both      overly  hypertechnical   and  subversive  of  the  very      concept of  marriage,  the  matrimonial  home  and  the      inevitable mutual  trust which  conjugality necessarily      involves."         "45. It is obviously because of the afore said legal      position and  this inarticulate peremise underlying the      same that  the learned  counsel for  the State  and the

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    complainants were  unable to cite even a single case of      conviction for criminal breach of trust betwixt husband      and wife. Even when 237      pointedly asked,  counsel  conceded  that  despite  the      diligent research  neither under the Indian Penal Code,      nor under the analogous provisions of English law could      they lay  their hands  for over a century and a half on      any case  where such a conviction had been upheld. This      paucity,  rather   the  total   absence  of  precedent,      indirectly buttresses  the view  I have expressed above      on principle  and the  statutory provisions. An analogy      in their  context may  well be  drawn from  the Law  of      Partnership. However, at the very outset I would notice      that the  position is not identical because partnership      envisages  a   joint  or  co-ownership  of  partnership      property whereas  in a  conjugal relationship, as shown      above, the  spouses may  well  be  the  individual  and      exclusive  owners   of  their   respective  properties.      Nevertheless a  marked similarity  therein is  that  in      partnership,  co-ownership   necessarily   connotes   a      jointness  of   possession  of  partnership  properties      whilst the  same position  inheres in  the  matrimonial      home where  the spouses  are deemed  to be  jointly  in      possession and custody. Now, barring some ancient notes      of discordance, it seems to be now well accepted that a      partner cannot  be held  guilty of  criminal breach  of      trust qua  partnership property  except by  virtue of a      special  agreement   either  written   or  conclusively      established. This  had always  been so  in English  law      until it was specifically and altered by Statute 31 and      32 Victoria  c. 116  and it  is  now  governed  by  the      special  provisions   of  the   same   and   subsequent      legislation. In  India, however,  in the absence of any      statutory change,  the legal position would continue to      be the  same. This  came up  for pointed  consideration      before a  Full Bench of five Judges in Bhuban Mohan Das      v. Surendra  Mohan Das,  AIR 1951  Cal, 69.  The relief      sought therein  of quashing  the proceedings  under  S.      406, Indian  Penal Code,  betwixt partners, was granted      whilst holding that a charge under S. 406, Indian Penal      Code cannot  be framed  against a person who, according      to the  complainant, is  a  partner  with  him  and  is      accused of the offence in respect of property belonging      to  them   as  partners.   P.B.  Mukharji,  J.  in  his      concurring judgment observed as under (Para 46) :      "The question  here is  of much broader application and      of a more fundamental nature. Its fundamen- 238      tal nature  is this that the very conception of partner      ship precludes  possibility of  entrustment or dominion      of the  partnership property  by one partner as against      the  other   and,  therefore,  precludes  any  possible      operation of the crime under Section 406 Penal Code, of      criminal breach  of trust  by one  partner against  the      other in respect of the partnership property."      The aforesaid  view has  been expressly referred to and approved by  their Lordships  in Velji  Raghavji v. State of Maharashtra,(1) with  the following  added observations  (at pp. 1435-36) :-         "... Every  partner has  dominion over  property  by      reason of the fact that he is a partner. This is a kind      of dominion  which every owner of property has over his      property. out  it is  not dominion  of this  kind which      satisfies  the  requirements  of  S.405.  In  order  to

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    establish ‘entrustment of dominion’ over property to an      accused person  the mere  existence  of  that  person’s      dominion over  property  is  not  enough.  It  must  be      further shown  that his  dominion  was  the  result  of      entrustment.  Therefore,  as  rightly  pointed  out  by      Harris,  C.J.,  the  prosecution  must  establish  that      dominion over  the assets  or a particular asset of the      partnership was,  by a  special agreement  between  the      parties entrusted  to the  accused person.  If  in  the      absence of  such a  special agreement  partner receives      money belonging to the partnership he cannot be said to      have received  it in  a fiduciary  capacity or in other      words cannot   be  held to  have been  ’entrusted’ with      dominion over partnership properties. "      If that is so in the partnership relation it appears to me that  it would  be more  so in  the conjugal relationship with regard to the property within the matrimonial home."          "46.....  The nature, character and the incident of      property within  the matrimonial  home, so  long as the      marriage subsists,  seem to  be such  that except  by a      special written  agreement, no  entrustment or dominion      etc. Of  the individual property of the spouses to each      other can  b e  presumed. Equally,  herein the specific      and ascertainable (I) A.T.R. 1965 S.C. 1433 239      property of each spouse within the matrimonial home can      , be  so equivocal  and  problematic  as  to  oust  the      requisite mens  rea with  consequent  criminality  with      regard thereto  until the  title to  such  property  is      clearly and  specifically  established.  If  the  civil      remedy seems  to be  adequate betwixt  partners, during      the subsistence  of partnership  there is no reason why      it would  not equally  be  so  betwixt  spouses  in  an      existing matrimonial home during the subsistence of the      conjugal relationship.  As already  referred to,  apart      from the  civil remedy  under the  general  law,  added      provisions exist  in this  context under  S.27  of  the      Hindu  Marriage   Act  buttressed   by  the  procedural      provisions of 0.32-A of the Code of Civil Procedure."         "47. In  view of  the above,  it  would  be  equally      untenable to  hold that  either the  desertion  or  the      expulsion one  of the spouses from the matrimonial home      would result  in entrusting  dominion over the property      belonging to  the other  so as to bring the case within      the ambit  of this  pre-requisite under  S.405,  Indian      Penal Code.  The  joint  custody  and  possession  once      established would  thereafter  exclude  either  express      entrustment  or   the  passing  of  dominion  over  the      property. It  was  rightly  argued  that  if  an  irate      husband or  wife walks out from the matrimonial home in      a  huff,  this  cannot  constitute  an  entrustment  or      dominion over  the property to the other. Consequently,      unless a  special written agreement to the contrary can      be established,  the strongest  presumption arises that      during  the   existence  and   immediately  after   the      crumbling  of   the  matrimonial  home,  there  was  in      essence, a joint possession and custody of the property      of the spouses therein, including dowry and traditional      presents,   which   would   preclude   the   essentials      entrustment of  dominion over  the property  which form      the corner-stone  of criminality  under  S.405,  Indian      Penal Code."         "49. Equally the common use and enjoyment of certain      articles of  dowry and  traditional  presents,  by  the

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    other members  of a  joint family  with the  leave  and      licence of  a Hindu  wife, cannot  have the  effect  of      extending the  jointness of  control and custody of the      couple to undefined 240      and unreasonable  limits.  Consequently,  there  is  no      reason to  assume that  the mere  use or  enjoyment  of      dowry by other members of the household, would have the      effect of  passing the  possession and  control thereof      Jointly to the Hindu Undivided Family a such."        "50. In the aforesaid context, pointed reference must      be made  to the  opening word ’whoever’ of S.405 of the      Code to  highlight that  the criminal law does not take      ken of any proximity of relationship for the offence of      breach of  trust. "Whoever"  would include  within  its      ambit the parents-in-law, the brothers-in-law, sisters-      in-law (and  other close relations of the husband) of a      Hindu wife  provided  that  the  basic  ingredients  of      entrustment or  passing of  dominion over  her separate      individual property  stands fully satisfied. Apart from      the peculiarity  of the  conjugal relationship  and the      consequent  sharing   of  the   matrimonial  home,  the      existence of the blood relationship of the parties does      not seem  to  be  relevant  for  the  applicability  or      otherwise of S.406 of the Code, Since the other members      of the  Hindu Joint  family, to  which the  husband may      belong, would  not be  covered by  the  presumption  of      jointness  of   custody  v   and  possession  of  their      individual properties by the spouses alone, they cannot      by the  mere fact of kinship be excluded from the scope      of ss. 405 and 406 of the Code."         "56. To  conclude, it  necessarily follows  from the      aforesaid discussion  that  the  very  concept  of  the      matrimonial home cannotes a jointness of possession and      custody by  the spouses even with regard to the movable      properties exclusively  owned by  each of  them. It is,      therefore, inapt  to view  the  same  in  view  of  the      conjugal relationship  as involving  any entrustment or      passing of  dominion over  property day-to-day  by  the      husband  to  the  wife  or  vice  versa.  Consequently,      barring a special written agreement to the contrary, no      question of  any entrustment  or dominion over property      would normally  arise during  coverture or its imminent      break-up. There fore, the very essential pre-requisites      and the  core ingredients of the offence under S.406 of      the Penal Code would be lacking in a charge of criminal      breach of trust of 241      property by  one spouse  against the other. Inevitably,      therefore, the purported allegations of breach of trust      betwixt husband  and  wife  so  long  as  the  conjugal      relation ship  lasts and the matrimonial home subsists,      cannot constitute  an offence  under Section 406 of the      Indian Penal  Code,  subject  to  any  special  written      agreement. Equally,  as against  the close relations of      the husband,  no facile  presumption of entrustment and      dominion over  the dowry  can be raised prims facie and      this inevitably has to be by a subsequent conscious act      of volition  which must  be  specifically  alleged  and      conclusively established  by proof.  Lastly, because of      the definition  in S.  2 of  the Dowry Prohibition Act,      the offences  under the said Act cannot come within the      ambit of  S. 406  of the  Indian Penal  Code  as  these      cannot stand together on the same set of facts."           "57. Hence  the answer  (to the question) posed at

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    the very  outset is  rendered in  the affirmative.  The      bond of  matrimony, therefore,  bar the  spectre of the      criminal breach  of  trust  qua  the  property  of  the      spouses at  the very threshold of the matrimonial home.      It cannot  enter its  hallowed precincts except through      the back  door of  a special  written contract  to  the      contrary with regard to such property."      I  have  extracted  above  several  passages  from  the Judgment of  the learned  judges of  the Full Bench in Vinod Kumar’s case  (supra) since  I share  their view and concern for peace and harmony in matrimonial homes and feel that the learned Single Judge who has quashed the wife’s complaint in the present  case was justified in relying heavily upon that judgment of  the Full Bench. In these circumstances, 1 think that in  the absence  of a  separate agreement  and specific entrustment by  the wife to the husband and of his relations and vice  versa of  the property  of the husband to the wife and or  her relation,  it would  not be  possible to draw an inference of  entrustment of  custody or  dominion over  the property of one spouse to the other and his or her relations so as  to attract  the stringent  provisions of s.406 I.P.C. The offense  of criminal  breach of  trust is cognizable and non-bailable and  punishable with imprisonment for a term of three years or 242 with fine  or with  both. In  the absence of such a separate agreement for specific entrustment of the property of either spouse the appropriate remedy would appear to be by way of a civil suit  where there  is scope  for the  parties  to  the marriage coming  together  at  the  instance  of  relations, elders and  well-wishers and  patching up their differences. Entertaining complaints of the irate wife or husband against the husband or wife without even an allegation of a specific and  separate  agreement  constituting  entrustment  of  the property of  the wife  or the  husband would have disastrous effects and  consequences on  the peace  and  harmony  which ought to  prevail in matrimonial homes. It is seen from para 45 of-the  judgment in  Vinod Kumar’s  case (supra)  that in spite of  diligent research  no  instance  of  any  case  of successful  prosecution  of  the  husband  of  wife  at  the instance of  the wife or the husband could be brought to the notice of the learned Judges. It may be stated that none was brought to  the notice of this Court either in the course of the arguments  in this  appeal. This  would  show  that  the spouses had  not lightly  rushed in  the  past  to  criminal courts with  complaints of  criminal breach of trust against the other  spouses though  in the day-to-day life there must have been  numerous instances  where the  wife had  used the property or  cash of the husband for purposes different from the one  for which  they were  given by  the husband  to  be applied by  the wife  and vice-versa.  I am  anxious that no light-hearted change should be brought about in-the position and that the minimum requirement in such cases is a specific separate agreement  whereby the  property  of  the  wife  to husband was  entrusted to  the husband or wife and or his or her close  relations. In  the absence  of  such  a  specific separate agreement  in the complaint, in the present case, I am  of  the  opinion  that  the  learned  Single  Judge  was perfectly justified  in following  the decision  of the Full Bench in  Vinod Kumar s case (supra) and quashing the wife’s complaint filed against the husband and his close relations. I would, therefore, dismiss the appeal.      In view  of  the  majority  decision,  this  appeal  is allowed, the judgment of the High Court is set aside and the complaint filed  by the  appellant is  restored. The accused

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may now be summoned and put on trial in accordance with law. S.R.                                          Appeal allowed 243