Holding

Stridhan remains the exclusive property of the wife; its entrustment to the husband does not create joint ownership or a partnership, and a criminal breach of trust under s.405/406 IPC is maintainable, rendering the High Court’s quashing under s.482 CrPC erroneous.

Summary

Pratibha Rani, an estranged wife, filed a criminal complaint under s.406 IPC alleging that her husband Suraj Kumar, his father, brothers and brother‑in‑law had misappropriated her stridhan (dowry) worth Rs.60,000 that was entrusted to them at the time of marriage. The Punjab & Haryana High Court quashed the complaint under s.482 CrPC, relying on a prior decision that the mere fact of a wife entering the matrimonial home converts her exclusive stridhan into joint property, thereby negating the elements of criminal breach of trust. The Supreme Court held that stridhan remains the absolute property of the wife, that entrustment to the husband does not create a partnership or joint ownership, and that the complaint disclosed a prima facie case of criminal breach of trust under s.405/406 IPC. Consequently, the High Court’s exercise of power under s.482 was unwarranted and the appeal was allowed, restoring the complaint for trial.

Issues considered

The nature and ownership of stridhan during coverture – whether it becomes joint property upon the wife’s entry into the matrimonial home.
Whether a criminal complaint under s.405/406 IPC for misappropriation of stridhan can be maintained against the husband and his relatives.
Whether the High Court could quash the complaint under s.482 CrPC on the basis of the alleged joint ownership theory.
Whether the availability of a civil remedy under the Hindu Marriage Act or Hindu Succession Act bars the criminal remedy.
Whether the concept of partnership under the Indian Partnership Act applies to the husband‑wife relationship in this context.

Legislation cited

Code of Criminal Procedure, 1973s. 125, s. 482
Dowry Prohibition Act, 1961s. 2
Hindu Marriage Act, 1955s. 27
Hindu Succession Act, 1956s. 14
Indian Partnership Act, 1932s. 4
Indian Penal Code, 1860s. 405, s. 406

Subjects

stridhandowrycriminal breach of trustsection 405 IPCsection 406 IPCsection 482 CrPCmatrimonial homecoverturepartnershipcivil vs criminal remedyHindu law

Judgment

PRATIBHA RANI I

v

SURAJ KUMAR & ANR.

March 12, 1985
B
(S.M. FAZAL ALT, A VARADARAJAN AND SABYASACHI MUKHARJI, JJ.J

Nature, character and conc<nnitants of stridhan-Right of exclusive owner-
ship over the stridhan during ciJverture-Whether the dowry/Jtridhan given to a
wife and her exclusive property becomes a joint property/partnership property
a
by fiction of being placed in the custody of her husband and her relation1, the c
moment a 1narried woman enters her malrimonial home-Indian ParJnership Act,
1932, section 4. Dowry Prohibition Act (28of1961) sections 2 /{indu Marriage
Act, 1955 section 27 Hindu Succession Act Section 14 Indian Penal Code, sections
405, 406 and 482.

Remedies open under law-Whether cri1ninal remedy is barred when civil
re1nedy is available sitnf!ltaneous/y. D
Entrustment-Charge of Criminal breach of trust by wife against her
husband and his cloJe relations maintainability-Essential ingredients of an
offence section 405/406 Indian _Penal Code.

Inherent powers of the High Court to quash a First Tnforn1ation Report on
a co1np/aint under section 482 of the Code o/Cri111inal Procedure, 1973 (Act II of E
1974), explained.

The appellant Pratibha Rani. the estranged wife of the first respondent
Suraj Kumar, filed a cri1ninal complaint against her husband, his father, his
three brothers and a brother-in-law ilJ the c·ourt of the Additional Chief
Judicial Magistrate, Lridhiana, alleging; (j) that she was married to the first F
respondent at Ludhiana on 4. 2. 1972 according to Hindu rites and customs ;
(ii) that the aforesaid persons, namely, father, brothers and bro.ther-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
G
four others at Ludhiana- at the time of 'doli' on 5. 2. 1972 in the presence of
Kapur Chand Jain and six others; (iv) that all the six respondents, from the time
of marriage started teasing, harassing and beating her and they kept her:with-
out even food to extract more money from her parents; (v) that they turned out
the appellant with her children in the beginning of 1977 (vi) that after a great
deal of persuasion and intervention by Pancbayatdars, respondent No. 1 came H
192 SUPREME COURT REPORTS (1985] 3 S.C.R.
to Ludhiana and took her to his house, after giving an undertaking in writing
A
on 21. 6. 1977 not to misbehave witli 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.rn. 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
B 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 ; (ix)
that when the appellants' husband and his brother, Vishwinder Kumar, respon-
dent 1 and 5 in the complaint, came to Ludhiana on 10.2.81 to attend the pro-
ceed!ngs started by the appellant under section 125 Criminal Penal Code her
parents persuaded them to return the articles entrusted to the1n at the time of
the marriage but they flatly refused to comply with that demand ; (x) that the
c articles have not been returned in spite of service or 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 appe11ant for their use in violation
of the instructions of the appc11ants' parents given at the time of the marriage
to give the articles for the appellants' use and that (xii) they individually and
jointly commiUed the offences under sections 405 and 406 Indian Penal Code.

D 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 JPC and his order summoning them. A Learned Single Judge of
the High Court relying strongly upon the observations tnade by a Full Bench of
that High Court in Vinod K1unar Sethi & Ors. ·v. State of Punjab & Ors.
E
reported in AIR 1982 Punjab 372 allowed the pcti1ion and quashed the proceed-
ings arising out of the apellants' con1ptaint, observing that the allegations in the
appellants' complaint are sin1ilar to the one in that case a11d therefore, flilly
covered by t_he ratio in that th:cision. :Hence the appt:at by special leave.

Allowing the appeal, the Court.
F
HELD ; (Per Fazal 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
G position of stridhan or a Hindu married woman's property during covcrture 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 the stridhan property is just like
something which the wife kee'ps ia 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 \Vith the sole exception that in times of extreme distress, as
ff
PkATIDHA RANI v. SUkAJ KUMAR 193
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. This right is pu~ely person'al A
to the husband and the property so received by him in marriage cannot be pro·
ceeded against even in eXecution Of a dCcree for debt. [206F; 2010-E]

Suraj Kumar & A~r. v. Pratibha Rani, Criminal Misc. Petition No. 4876
of 1981 Punjab & Haryana High Courtj reversed.
B
Vinod Kumar Sethi & Ors. v. State of Punjab & Anr.AIR 1982 Punjab 372 ;
Surinder Mohan v. Snit.· Kiron Saini, 1917 Chandigarh Law Reporter 212;
..
Kai/ash Vati v. Ayodhya Parkash, !LR (1977) I 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
c
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 rornaments and ~ sarees and other articles mentioned above could D
also be used by the husband: If, therefore, despite demands these articles were
refused to be returned to the wife by the husband and bis parents, it amounted
to an offence of criminal breach of trust. All the ingredients of an offence
under section 405 JPC 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 E
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 nre as much punishable as anywhere else. The
mere factum of the husband and wife living together doCs not c:intitle either of
them to· commit a breach of criminal law and if one does then-he/she will be
liable for a11 the consequences of such breach. In the case of stridhan property
F
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 Jiving in the same
house and under the same roof cannot be expected to keep her personal pro-
G
perty or belongings like jewellery, clothing, etc. under'her own Jock arid 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, th.:reby reducing
the custody to a legal farce. On the other hand, even if the pefsonal property
of the wife .is jointly kept it would be deemed to_be expressly or impleedly kept
iµ rhe cµstody of the husband and if he dishonest!)' misappropriates or refuses
H
194 SUPREME COURT REPORTS (1985] 3 S.C.R.

A to return the same, he is certainly guilty of criminal breach of trust, and there
can beno escape from this legal consequence. (207E-G; 208B-C]

2.2 It is an anathema to suppose that when a civil remedy is available, a
criminal prosecution is compktely barred. The two remedies-are under civil
Jaw and the other under criminal law are not mutually exclusive but coextensive
B 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
c committed is to override and distort the real intent of Jaw. [208E-Fl

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 siridhan 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
D 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
lCmedy and does not touch or affect in any way the criminal liability of the
husband in case it is proved that he thas dishonestly misappropriated the
stridhan of his wife. It cannot also be sp::lt out from any textbook or the
E sastrlc 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 slridhan.
[205C-D]

Bbai Sher Jang Singh & Anr. v. Smt. Virinder Kaur, 1979 Criminal Law
Journal, 493 approved.

Surinder Mohan v. S1nt. Kiran Saini, 1977 Chandigarh Law Reporter 212
F
over ruled.

4.1 It is neither appropriate nor apposite io import the concept of partner-
ship of husband and wife for the simple reason that the concept of partnership
·1
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 th.e wife must by some
G
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 condi-
tions of a partnership do not exist, the mere factum of entrustment of stridhan
H would not constitute any co-ownership or legal partnership+ There is also no
PRAT!BHA RANI v. SURAJ KUMAR 195

question of the wife, constituting herself a partner with her husband merely by A
allowing him to keep the article or money in his custody. Further, in this
case, there is, neither any pleading nor any allegation thit 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.
Therefore, a criminal prosecution under section 406 IPC is maintainable.
[209E; 210B·C; G; 211 C-DJ
Vinod Ku1nar Set/ti & Ors. v. State of Punjab & Anr. AIR 1982 Punjab
B
372 ; Surifzder Mohan etc. v. Smt. Kiran Saini, 1977 Chandigarh Law Reporter
212 ; Kai/ash Vati v. Ayodhya Parkash, !LR (1973) 1 Punjab & Haryana,
P 642 ; Kili/ash Nath Agarwal & Ors. v. Prem Pal Agarwal & Anr. Crl. Misc.
case No. 676of1981 connected with Cr!. Misc. case No. 2753of1981 decided
on 22.12.83 Allahabad High Court overruled.
c
•' 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 of the husband having dominion over the properly does
not at all arise. In fact the wife has Ilothing 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] D

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 S.1dayika
which has been administerl!d since more than a cen.tury by High Courts, Privy
Council and also the Supreme Court. [212C.D] E

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 £he 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]
• F
By a pure and simple figment of the fertile imaginations, the Judges in the
Vinod Kumar'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 excep-
tion to the application of the Penal Code. A more tragic consequence of the
view taken by the I-Iigh. 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 G
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 cdminal court. By a strange and ingenious process of
holdin~ that such aµ act of a husband does n9t attract the provisions of the
196 SUPREME COURT REPORTS [1985] 3 $.C.R.
A 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
B male chauvinism so as to exclude the husband from criminal liability merely
because his wife has refused to live fa 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 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
c 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 afe clearly established.
[217C]
D
Chel/oor Manaklal Narayan /ttiravt Nanzbudiri v. State of Travancore ;
AIR 1953 SC 478 ; Jaswantrai Manila/ Akhaney v. State of Bombay, [1956)
SCR 483 ; State of <;ujarat v. Jaswant/al Nathala/ [1968] 2 SCR 408 ; Sushi/
Kun1ar Gupta v. Joy S'1ankar Bhattacharjee, AIR 1971 SC 1543; Superintendent
& Remembrance; of Legal Affairs, West Bengal v. S.K. Roy 1914 (4) SCC 230
referred to.

E Harihar Prasad Dubey v. Tutsi Das Afundl:ra & Ors. AIR 1949 Calcutta
207 ; Akharbhai Nasarali v. Md. Hussain Bhai. AIR 1961 MP 37 ; Basudeb

.,
Patra v. Kanai Lal lfaldar, AIR 1949 Calcutta 207, Bhai Sher Jang Singh and
Anr. v. S1nt. Virinder Kaur, 1979 Crl. L.J. 493 ; Avtar Singh and Anr. v.
Kirpa/ Kaur, Cr!. Misc. No. 2144of1979 and Cr 1 Misc. No. 2145 of 1979 ,_.
approved.

F Vinod Kun1ar Sethi & Ors. v. State of Punjab and Anr. AIR 1982 Punjab
372 ; Surindir Mohan etc. v. Snit. Kiran Saini, 1977 Chandigarh ·Law Reporter
212 ; Kai/ash -fllath Agarwal & OrJ. v. Prem Pal Agarwal & Anr. Crl. Misc.
Case No. 676 of 1981 connected with Crl. Misc. case No. 2753 of 1981,
Allahabad High Court; Kai/ash Vati v. Ayodhya Parkash, !LR (1977) I
Punjab & Haryana· 642 overruled.

G 5. For the purpose of exercising its power under secton 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
H present case, the :allegations are both clear, specific and unambi~uOu$ and
PRATiBHA RANi v. STRAJ KUMAR 191
therefore, the complainant should have been given a chance to prove her case. A
It is, of course open to the accused at the trial to take whatever defeaces 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
ordllr passed by the High Court. [223D-H; 2240-E) B
Vinod Kumar Sethi & Ors. v. State of Punjab & Anr., AIR 1982 Punjab 372,
overruled.

j L. V. Jadhav v. Shakarrao Abasaheb Pawar & Ors. AIR 1983 SC 1219 ;
Snit. Nagawa v. Veeranna Shivalingoppa Ko11jalgi & ors. [1976] Supp.' SCR 123
applied.
OBSERVATION
c
(It is surprising to find thar so deeply drowned and inherently engrossed
are .some of the High Courts in the concept of n1atrimonial 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 o'r bis D
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 are 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 fac"t that the E
husband could also be guility 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 can-
not countinuance su~h a wrong and perverse approach.) [224G-H; 22SA-C] F

Per A. Varadarajan, J. (dissenting)

1.1 Ill' 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
iaference of entrustment of custody or dominion over the property of one G
spouse to the other and his or her relations so as to attract the_ stringent pro-
visions of section 406 IPC. The offence of criminal breach of trust is cogniz-
able 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 partit:s to
the marriage coming together at ihe instance of relations, elders and well- H
wishers and patching up their differences. (241G-H; 242A]
198 SUPREME COURT REPORtS [1985] 3 s.c.a.
A 1.2 Entertaining complaints of the irate wife or husband against the
husband or wife without even an allegation of a speci6c and separate agree~
mcnt constituting entru!ltment 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]
t.3 The fact that no instance of any case of successful p1osecution of the
husband ·or wife at the instance of the wife or the husband could be brougpt to
B the notice:or the Supreme Court in the course of the arguments in tbi.) 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 give'1 by the husband to be applied by the wife and
vice~versa. Therefore, the minimum requirement in such cases is a specific
c 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
quashed. [242D· Fl
CRIMINAJ; APPELLATE JURISDICTION : Criminal Appeal
D 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.
A/tat Ahamed for the Respondents.
E Mrs. U. Kapoor for the Intervenor.
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 country
is so torn and twisted by a morbid interpretative process that
instead of giving haven to the disappointed and dejected litigants
F 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 an_d clothes despite repeated demands, and dishonestly
misapporpriating the same, seems to have got some relief by the
court of the first instance but to her utter dismay and disappointment
G 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 harash 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
H
courts, it tried to follow suit. It may be stated that even the old
PRATIBHA RANI v. SiJRAJ KUNAR (Faza/ Ali, 1.) 199
classic Hindu law jurists and celebrated sa'ges conceded certain A
substential 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, charac-
ter and concomitants of stridhan. In the instant case, we are
mainly concerned with that part of stridhan which is the absolute B
property of a married woman during coverture. Sir Gooroodas
Banerjee in 'Hindu .Law of Marriage and Stridhana' while descri-
bing 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 c
ofa woman. And if any of them shall consume .such pro-
perty aginst 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 affiicted by disease, suffering from disease,
or sorley pressed by creditors, he should repay that by his D
own freewill." (p.341)

At another place while · eferring to the nature of a husband's
rights over stridhan during coverture, the author referring to Manu
says thus:

E
" • · and hy the law as expounded hy the commenta·
tors of the different schools, the unqualified dominion of
the husband is limited to only some descriptions of the
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) F

Similarly, while describing the nature of stridhan gen er.ally,
which is known as saudayika, the author says thu~:

"First, take the case of property obtained by gift. G
Gifts of affectionate kinderd, which are known by the name
saudayika stridhana, constitute a 11v0man'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."
ft
200 · SUPREME COURT REPORTS tl985j :\ S.C.R.
A The entire classical tax! on the subject has been summarised
by N.R. Raghavachariar in 'Hindu Law' (5th Edu.) at page 533
(section 487) where the following statement is made:

"487. Powers During Coverture.
B
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.
c She may spend, sell or give it all'•Y at her o\l'n pleasure by
gift or will without reference to her hu•band and property
acquired by it is ellually subject to rnch ri~hts. Ordinarily,
th• 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 I.performance of indispensable
duty the husband can take and utilise it for his personal
D
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 connot claim to proceed against it in the place
E of her husband."

To th~ 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 com-
(;plete list of the stridhan property of a woman both before and
F during coverture, which may be extracted thus:

"113. Manu enumerates six kinds of stridhana:

I. Gifts made before the nuptial fire, explained by
Katyayana to mean gifts made at the time of marriage
G
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
residen~e of her parents to that of her husband
H
PRAtili!IA RANI v. StlRAJ KUMAR (Fazai Ai;, J.) 20!
(adhyavanhanika). A

3. Gifts made in token of love, that is, says Katyayana,
those made through affection by her father-in-Jaw and
mother-in-Jaw (pritidatta), and those made at time the
of her making obeisance at the feet of elders (padavan-
danika). B

4. Gifts made by father.

5. Gifts made by mother.

6. Gifts made by a brother."
c

It is, therefore, manifest that the position of stridhan of a
hindu married woman's property during coverture is absolutely
clear and unambiguous; she is the absolute owner of such property
and can deal with it in any manner she likes - she may spend the D
whole of it or give it away at her own pleasure by gift or will
without any reference to her husband. Ordinarly, 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
E
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 agninst even in execution of a decree
for debt.

Such being the nature and.character of stridhan of a woman, F
it is difficult to countenance the view of the Punjab & Haryana High
Court in Vinod T<umar Sethi & Ors. v. State of Punjab & Anr.(1 )
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.
G
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 he summarised as follow~:-

(!) AIR 1982 Punjab 372. H
2o2 SUPREME COURT REPORTS [!985j 3 s.c .R.
A The complainant was married to Suraj Kumar, Accused No. I
(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 accmed Nos.3 to 5 were brothers and No.6
was brother-in-law of accused No.i It is further alleged that all
the accused attended and actively participated in the marriage
B of the complainant and demanded dowry. The most important
allegation made by the appellant was that her parents and relatives
gave by way of dowry articles wroth Rs. 60,000/- inclusive of gold
ornaments, clothes and other things which were entrusted to aocus '"
Nos.I to 6 on 5,2.72 which were taken into p~ssession b; tilem.
c Soon after the marriage, accused No. 1 started harassing, teasing
and beating the complainant and ultimately turned her out along-
with her children sometime in the year 1977. It was ~vered in
para 4 of the complaint that accused never returned the articles to
her, the relevant portion of the allegations may be extracted thus:-

D "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 mala fidely retained
by the accused in order to make a wrongful gain to them-
selves and wrongful loss to the complainant.

E
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
F presuaded 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
tho accused NoJ 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
G are still in possession of the same in violation of the direc·
tion given by the parents of complainant. The parents of
the complainant directed the accused at the time of marri-
age to give the articles to the complainant for her use, in
the presence of the aforesaicj persons, but the accused have
not done the needful of the demand and have thus commit-
H
ted criminal breach of trust punishable u/s 406 !PC."
PRATIBHA RANI v. SURAJ KUMAR (Fazai Ali, i.) 26:3
A perusal of the allegations made fn the complaint undoub- A
tedly makes out a positive case of the accused having dishonestly
misappropriated the articles handed over to them in a fiduciary
capacity. To charcterise 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 offence under s.405
IPC were pleaded and a prima facie case for summoning the B
accused was made out. In such circumstances, the complainant
should have been gi vell 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 lhe complaint, a list of
valuable articles had also been given, the relevant portion of which c
may be extracted thus;

I. "Jewellery

1. Nine complete gold sets D
2. One complete diamond set
,3. Three gold rings
4. Two golden Bahi (llaju Band)
5. One golden chain E

6. One shingar patti with golden tikka
7. One golden oath (Nose ring)
8. Twelve golden bangles
F
II. Silver articles

1. Six glasses and one jug
2. Two surma danies
3. One tagari G

4. Two payals,

III. Clothes

Fifty one sarees, twenty one suits alongwith petti- H
SUPREME COURT REPORTS (1985] 3 S.C.R.
A
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
B clothes, blouses, nighties and gowns are concerned they could be
used only by the wife and were her stridhan. By no stretc':i 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 bis parents, it amounted
c to an offence of criminal breach of trust. In mentioning the arti-
cles 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.

D 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
E Hindu Marriage Act and s. 14 of the Hindu Succession act, the
concept of stridhan property of a woman was completely abo-
lished. For instance, the Punjab & Haryana High Court in a
case reported in Surindra Mohan etc. v. Smt. Kiran Saini(1J held
thus :

F "That under the present law on claim can be made on
the basis of istridhan, as it has now been completely
abolished and cannot avail against statute which makes
it the joint property of the parties."

We. are of the opinion that this view of the High Court is
G
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 ifthe husband re-

H (I) 1977 Chandigarh Law Report 212
PRATIBHA RANI I', SURA) KUMAR (Fazal Ali, J.) 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 A
sections nowhere provide that the concept of stridhan is abolished
or that a remedy under the criminal Jaw for breach of trust is
taken away.

In a later decision in phai Sher Singh & Anr. v. Smt. B
Virinder Kaurc'>. it was very rightly pointed out by the same High
Court that s. 27 of the Marriage Act merely provides an alter-
nate 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 alter-
nate remedy and does not touch or affect in any way the Criminal c
liabiiity of the husband in case it is proved that he has dishonestly
misappropriated that stridhan of his wife. It canno.t 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
stridban. It may be useful to refer to certain pertinent observa- D
tions 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 E
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-Jaw
of the respondent have converted the ornaments and F
clothes, etc. presented to the respondent at the time of
her marriage to their own use.

Section 27 of the Hin du Marriage Act empowers
a Court while deciding a matrimonial dispute to also pass
a decree in respct 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-

\I) 1979 CrL L.J. 49',
ff
206 SUPREME COURT REPORTS 1985] 3 S.C.R.

A nal complaint if the property belonging to her is crimi-
nally misappropriated by her husband.''

In these circumstances, the decision reported in 1977 Chandi-
grah Law Reporter 212 can no longer be considered good law.
Even in Vinod Kumar's case (supra) the Full Bench reiterated the
B view that s. 27 in no way abolishes stridhan but expressly recog-
nises the property exclusively owned by the wife, In this con-
nection, the Court observed thus :

"The express words of the prov1s1on refer to property
c '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 owaer thereof. Indeed,
in using the above terminology the statute expressly re-
cognises that property which is exclusively owned by
D the wife is not within the ambit of Section 27 of the
Hindu Marriage Act ............ Equally no other provision
in the Hindu Marria5e 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."

E 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 stri-
dhan property becomes a joint property of both the spouses and
the question of application of s. 406 l.P.C is completely elimina-
F ted. 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 ftrst extract the
exact ratio held by the High Court in Vinod Kumar's case:

G
"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 sa!Oe in view of the conjugal relationship as
PRATIBHA RANI v. SURAJ KUMAR (Fazal Ali, J.) 20'/

involving arty entrustment or passing of dominion over A
property day-to-day by the hu,band 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 normalJy arise during
coverture or its imminent break-up. Therefore, the very
essential prerequisites and the core ingredients of the B
offerce 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 c·
learned counsel for the respondent but we find it iropossibie to
agree with the aforesaid observetions 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 D
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 them to E
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·
m~trimonial home ace not strangers. Crimes committed in matri-
monial 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 F
husband or other members of his family, if the husband or any
other member of his family commits stich an offence, they will be
liable to punishment for the offence of criminal breach of trust
under ss. 405 and 406, !PC.

G
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 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 tt
208 SUPREME COURT REPORTS (1985] 3 S.C.R.

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
B 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 cf cases where criminal law and civil law can
c run side by side. The two remedies are not mutually exclusive but
clearly coextensive and essentially differ in their content and conse-
quence. 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,
D 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
E 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 l.P.C. or render the ingredients of
s.A05 !PC nugatory or abortive. To say thai 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
F 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
G
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 abslute
character and nature of her stridhan and make the husband a
co-owner of the same - such a concept is neither contemplated nor
)<now[l to Hindu law of stridhan, nor docs it appeal to pure
PR UIB!'IA R1 lVI v. SU RAJ KUMAR. (Fazal Ali, J.) 209

commonsense. It is impossible to uphold the view that once a A
married woman enters her matrimonial home her stridhan property
undergoes a vital change so as to protect the husband from being
prosecuted_ even ifhe dishonestly misappropriates the same. For
instance, properties like jewellery, clothing, casb, 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 B
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 c
respondent which had appealed to the Full Bench of the Punjab &
Haryana High Court in Vinod kumar's case (supra) as also to our
learned Brother Varadarajan, J., is that after entering the matri-
monial home the costody 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 D
arise. In our opinion, it is neither appropriat nor apposite to import
the cancept 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 •tridhan in his
custody. Section 4 of the Indian Partnership Act, 1932 (hereinafter E
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.
F
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: G

(1) that there should be an actual or physical overt
act on the part of two persons to embark an a business
advernture.

(2) . that if any business is carrie(! on by one or any · Q
210 SUPREME COURT REPORTS [198 5) 3 S.C.R.
A 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
hy some clear and specific act indicates that the stridhan which
B has been entrusted to the hu;band 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 essental 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
Raghavji v. Staie of Maharashtra(•) 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 pro-
perty. But it is not dominion of this kind which satisfies
the requirements of s. 405. In order to establish 'entrust-
ment 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
E was the result of eutrustment."

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 hus-
band s_o as to make him part owner of the same. Therefore, the
question of the husband's having dominion over the property does
F
not at all arise. In fact, the wife has nothing to do with the part-
nership, 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 partnei·ship as defined in the Partnership Act.
a
In the instant case, there is also no question of the wife
constituting herself a partner with her husband merely 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-

H (!)ZAIR 1965 SC 1433.
RMTIBIH RANI v. SURAJ KUMAR (Faza/ Ali].) 211

llant transferred all her properties to her husband for carrying A
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 hus-
band constitutes a partnership and, therefore, a criminal case
B
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 absGlute 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 amout whenever
she likes without any hitch or hindrance and the· husband cannot
c
use the stridhan for bis personal purposes unless he obtains the tacit
consent. of his wife. When the essential conditions of a partner·
ship do not exist the mere act or factum of entrustment of stridhan
would not constitute any co-ownership or legal partnership as deli·
ned under s.4 of the Partnership Act.
D
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 uie the. same to the detriment of his wife without her consent.
The husb1nd hls no justification for not returning the said articles
as and when dem1nded by the wife nor can he burden her with E
losse; of business by using the said property which was never inten-
ded by her while entrusting P<Jssession of stridhan.) On the allc·
gations in the complaint, the husband is no more and no Jess than
a pure and simple custodian a1Jting on behalf of his wife and if ho
diverts the entrusted property elsewhere or for difforent purposes
he takes a clear risk of prosecution under s.406 of the IPC. On a F
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 G
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
fuli Bench decision in Vinod Kumar's case would be to render the u
212 SUPREME COURT REPORTS [1985] 3 S.C.R.

A provisions of s. 406 IPC inapplicable and nugatory even if the
husband has the audacity or the importunity of refusing to return
tbe stridhan of bis wife. Furthermore, we shall hereafter show that
the view of the Full Bench is in direct conravention 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
B 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
c spouses as soon as she enters her matrimonial home and continues
to be so until she remains th.ere 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
D 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 imagi-
. nary 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,
E
even then the povisions 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
F 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 regard-
G ing the applicability of s.27 of the Hindu Marriage Act and the
nature of stridhan as referred to above-is also neither in con-
sonance 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 libility
merely because his wife has refused to live ip her matrimonial
H
PRATiBHA RANI v. SURA! KUMAR (Fazal Ali, J.)

home. we are indeed surprised how could the High Court, func- \
tioning 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. fo
paragraphs 22A, 23 and 24 of the judgment, the High Court obser- B
ves as follows :

"It must, therefore, be .unreservedly stated thatthe
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 rele-
vance 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 D
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, ca;h
amounts put into a fixed deposit in a bank expressly in her E
name ; are obvious examples of dowry raising the stron-
gest, if not conclusive presumption, O(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 nable to see how the mere factum
of marriage would alter any such property right and ·F.
divest her of ownership either totally or partially."
In these paragraphs the High Court unequivocally and cate-
gorically expresses the view that a Hindu woman has complete and
full ownership of her individual property and the factum ·of mar-
riage is of no relevance to determine the nature of the property. It G
also holds that articles like jewellery, wedding apparel and cash
etc., cannot alter any such property right. In view of this clea;
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 philosphy of matrimonial home H
214 StJPREME CoURT REP6RTS tt985J 3 s.c.R.
A propounded by it stands directly contradicte.d by its own observa-
tions 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
B
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
~embers of a joint family with the leave and licence of a
Hindu wife, cannot have the effect of extending the jointness
c 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
othermembers of the house-hold, would have the effect
of passing the possession and control thereof jointly to the
Hindu Undivided Family assuch."
D

Thus, these observations run counter and are totally inco-
sistent and irreconciliable with the view taken by the High Court
in paragraph 41 where it has observed thus :

E "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
bas been passed dominion over the exclusive propetry of
the otber ....... The matrimonial home so long as it subsist
F 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
G
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."

H At other places, the High Court has observed thus :
PR\TlBHA RANl v. SURM KUMAR (Fa;a/ Ali, J.) 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 prop.erty 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 cus-
tody and possession .once established would therafter 8
exclude either express entrustment or the passing of domi-
nion 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 c
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, includ-
ing dowry and traditional presents, which would preclude
the essentials of eritrustment or dominion over the property
D
wllich form the cornerstone of criminality under s.405,
Indian"Penal Code.

53. It cannot, therefore, be prima facie presumed that
these are exclusively the ownership of the wife or inevitably
entrusted either to the husband or his close relations. As E
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 presump-.
tion 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 bas .to be unequivocally
alleged and conclusively established by proof later."

The High Court had itself rightly spelt out the legal proposi- G
tions 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.
.H
2i6 SUPREME COURT REPORTS [1985) 3 S.C.R·
A,
(b) articles of dowry which may be for common use and
enjoyment in the matrimonial home,, and

(c) articles given as presents to the hnsband or the parent-in
-law and other members of his family.
,ii With regard to category (a) above, the High Court observed
ihus:

"Similarly as regards the first category of articles
meant for the exclusive use of the bride she would retain
c 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)
D are meant for the exdusive use of the bride and are her personal
property. Unfortunately, however, with regard to category (c)
while discussing the quastion of the rights of the lfride to her ex-
clusive 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
E is entitled to retain her ownership irrespective of her entry and
presence in the matrimonial borne and in the other they come to
the conclusion that the moment a married woman enters her mat-
rimonial home, all her properties, including her exclusive property,
become a joint property by a fiction of being placed in the custody
F
of her husband or his relations. While we agree with the first part ---111
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
G 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 wholly understandable. Thus, a detailed ana-
lysis 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
B
PRATIBHA RANI v. SURAJ KUMAR (Faza'/, Aii i.) 211

to uphold or support the view of the High Court that upon entering A
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 t? return the same- if and wh_en demanded by her. B

The Supreme Court in a large number of cases has held that
the fundamental core of the offence of crimin.al 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 c
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 Che//oor Manaklal Nar~_van lttiravi Nambudiri v. State of D
Travancor<\ 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 · E
entrusted with some property or with any dominion or
power over it ...... It follows almost axiomatically from
this definition that the ownership or beneficial intere~t
in the property in respect of_ which criminal breach of trust
is alleged to have been committed, must be in some person
F
other than the. accused and the latter must hold it on
account of some person or in some way for his benefit."

In Jaswantrai Manila/ Akhaney v. St~te a/Bombay(') 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

(!) AIR 1953 SC 478. H
(2) [1956] S.C.R. 483.
218 SUPREME COliRT REPORTS (1985] 3 s.C.R.
A in any manner entrusted with property, it does not
contemplate the creation of a trust with all the techni-
calities 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
B contingency arises or to be disposed of by him on the
happening of a certain events."

In Akharbhai Nazara/i v. Md. IHussain Bhai('l the Madhya
Pradesh High Court made the following observations :

c "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 )alter, the mere fact of
telling the employees that it is their contribution to the
provident fund scheme and then making a deduction or
D recovery and retaining it, constitutes the offence of
criminal breach of trust. This is so obvious that nothing
more need be said about it."

These observations were fully endorsed and approved by
this Court in Harihar Pra;ad Dubey v. Tulsi Das Mundhra & Ors.('
where the following observations were made:
E
"Thi_s, 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
F that the impugned order quashing the charge against the
respondents is obviously wrong."

In Basudeb Patra v. Kanai Lal Ha/dar(') the Calcutta High
Court observed thus:

G "Whereas the illustration to s. 405 show equally clearly
that the property comes into.

(!)AIR 1961 M. P. 37:
(2) AIR 1981 SC 92.
H (3) AIR 1949 Calcutta 207,
PRAT!ilHA RANI v. SURAJ KUMAR (Faza/ Ali, J.) 219

the possession of the accused either by an express entrust-
A
ment 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 B
been used for the purpose for which they were handed over.
If this is not an entrustment, it is impossible to conceive
what can be an entrustlnent."
(Emphasis ours)
This ratio was fully approved by this Court in Ve/ji Raghavji
Patel v. State of Maharasatra< 1 ) where the following observation
c
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 entrust-
ment. Therefore, as rightly pointed out by Harris, C.J. D
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."
E
In the case of State of Gujarat v. Jaswantlal Natha/a/,( 2 ) Hegde,
J., speaking for the Court observed thus:

"The expression 'entrustment' carries with it the impli-
cation that the person handing over any property or on
whose behalf that property' is handed over to another, con ti- ·F
nues to be its owner. Further the person handing over
the pro_perty must have confidence in the person taking the
proprty so as to create a fiduciary relationship between
them."

In Sushi/ Kumar Gupta v. Joy Shanker Bhallacharjee(3) this G
Conrt observed thus :

(I) AIR 196S SC 1433.
(2) [1968] 2 SCR 408.
(3) AIR 1971 SC 1~43.
H
220 SUPREME COURT REPORTS (1985] 3 S.C.R.

A "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 turst."
B
In the case of Superintendent & Remembrancer of Legal
Affairs, West Bengal v. S.K. Roy(1) this Court held that for 'entrust·
ment' two things are necessary, viz., (I) 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.
c
In Bhai SherJa11g Singh & Anr. v. Smt. Virinder Kaur (supra)
the Punjab & Haryana High Court observed thus:

It might be that some of the articles which were presen-
ted to her are for the use of both the spouses but the orna-
D
ments 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
E 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 leg1l effect of the allegations made.
All that is required is that the facts constituting a complaint
F 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."
8
(Emphasis supplied)

We fully endorse this decision and hold that it lays down the
correct law on the subject.

H (I) [19741 4 s.c.c. 230.
YRAT!BHA RANI v. SURAJ KUMAR (Faza/ Ali, J.) 221

There is a judgment of the Allahabad High Court which more A
·or less takes the same view as the Punjab & Haryana High Court
in Vinod Kumar's case (supra). Jn Criminal Misc. Case No. 676
· of 1981 (connected with) Cri.minal Misc. Case No. 2753 of 1981,
Kai/ash Nath Agarwal & Ors. v. Prem Pal Agarwal & Anr., (decided
on 22.12.1983), the Allahabad High Court, out of the three cate-
B
gories 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 nse 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·ofthe
bride and once it was brought to the family home, the possession c
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 bf the view taken by the Punjab
and Haryana High Court in Vinod Kumar's case. Furthermore, D
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 Marrige 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, he could be prosecu-
ted by a criminal court on a complaint filed by· the wife. In this F
connection, the Court in Avtar Singh & Anr. v. Kirpa/ Kaur
Criminal Misc. No.2144-M of 1979 nd 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 misapproriation would
be comitted on a date the demand for return of the entrus- G
ted articles is made and the saine is decliried ... According
to the complaint, the first demad 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 mis-
appropriation of the dowry articles lying in trust was
committed on January 27, 1976."
H
222 SUPREMB COURT REPORTS [1985J 3 S.C.R.
We find onrselves in entire agreement with this decision and
hold that this was correctly decided.

This Conrt 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.( 1) (to
B which two of us were a party), this Court made the following
observations:

c
"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
t1
circumspection when there is reason to believe that the
l'rocess of law is being misused to harass a citizen."

In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi & Ors.(')
this Court observed as follows :- ·
D
"Thus, it may be safely held that in the following cases
an order of the Magistrate issuing process against the acc-
used can be quashed or set aside :

(I) Where the allegations made in the complaint or
E the statments of the witnessess 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;
F (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
G
in suing process is capricious and arbitrary having been
either on no evidence or on materials which are wholly
- irrelevant or inadmissible; and

(I) AIR !983]SC 1219.
H (2) [1976) Supp. SCRl 123
PRATIBHA RANI v. SURAJ KUMAR (Fazal Ali, J.) 2<3

(4) where the comp'aint suffers from fundamental A
legal defects, such as, want of senction, 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 crimi-
nal complaint ..
We now come to the question as to whether or not a clear
allegation of entrustment and misappropriation of pr~perties. was c
I made by the appellant in her complaint and, if so, was the High
Court justified in qushaing the complaint at that stage. It ·is well
'settled by a long course of this Court that for the purpose of exer-
cising 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 bas no jurisdiction to examine the correctness D
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 pro-
ceedings. In the present case, we shall show that the allegations
are both clear, specific and unambiguous and, therefore, the com-
plainant should have been given a chance to prove her case. It is, E
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 there-
fore, 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 ofour judgment
but we might again, even at the risk ·or repetition, indicate the bare F
. 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 :

(I) that all the accused attended the marriage of the appel- G
!ant 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- H
224 SUPREME COURT REPORTS [1985) 3 S.C,R.

A (inclusive of jewllery, wearing apparel, etc.) were
given and entrusted to accused Nos.I to 6 at the. time
of the Dali on 5.2. 72,

(3) that the articles entrusted to the accused were meant
for the exclusive use of the appellant,
B
(4) that the dowry articles were never given by the accu-
sed . to the appellant even for her use arrd 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,
c (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.

D Taking all the allegations made above, by no stretch of imagi-
nation 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
E 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 and of the Allahabad High Court
and other cases following Vinod Kumar's case.
F
By way of post-script we might add that we are indeed amazed
to fiind that so deeply drowned and inherently engroS>ed 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
G of the wife and could also be legally entrusted to the husband
or bis relations. Thus, if the husband or his relations misap-
propriate 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,
H even when clear and specific allegations are made iµ the complaint
PRA.TiBl{A RAN"! v. SURAJ KUMAR (Fazal Ali, J.) 225

that such properties were entrusted to the hnsband, they refuse A
to believe these bard facts and brush them aside on the ground that ·
they are vague. The allegations of the complainant in this appeal and
the· appeals 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 Courts completely . B
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, nci
offence is committed. Such an approach amounts to a serious dis- ·
tortion of the criminal law, resulting . in perpe-trating grave and c
~ubstantial 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 comp- ·
laint 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 Juge 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 respon- ·
dent 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. ,,__,

G
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 cqstorns. The material averments in the complaint
226 SUPREM\2 COURT REPORTS (1985] 3 s.c.R.

A are. these: The aforesaid persons, namely, father, brother and
brother-in-law of the first respondent attended the marriage and
dem'anded 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
B 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 parents. They
turned out the appellant with her childran in the beginning of 1977.
c After a great deal of persuasion and intervention by Panchayatdars,
res)londent 1 came.to Ludhiana and took the appellant to his house
after giving an undertaking in writing on 21. 6. 1977 not to misbe-
have 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 wjth the
dishonest intention of causing wrongful gain to themselves and wrong·
ful 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 .Jist which are the stridhana 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
oil IO. 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 dishone-
stly converted the articles belonging to the appellant for their use .
G 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
:l s.482 of the Code of Criminal procedvre for quashing the criminal
PRATIBHA RANI v. SURA.J KUMAR (Varadarajan; J.) 227

Proceedings and the complaint taken on file by the Additional Chief A
Judicial Magistrate, Ludhiana under s. 406 I.P.C. and his ord'er
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. B
State of Punjab and Ors.ll) 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
c
can be such an entnistment 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 ofience 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 cir 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 appeJlant'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.

In a petition under s.482 Cr.P.C. for quashing a criniino]
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
Shiva Jingappa Konjalgi & Or3. (') 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:

(I) AIR 1982 Punjab 372.
(2) [1976) Suppl S.C.R. 123 H
228 SUPREME COURT REPORTS [1985] 3 S.C.R.

A (l) 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 again.st the accused or the complaint does not disclose
the essential ingredients of an offence which is alleged
against the accused;
B
(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;

c (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
"
D 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:

E "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 !]leaning: .

."any property or valuable security given or agreea to
be given either directly or indirectly -(a) by one party to
<f· a marriage to the other party to the marriage, or (b) by the
. parent< 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 who111 the Mµsli111
~ personal law (Shariat) applies.''
PRATIBHA RANI v. SURAi KUMAR (Varadarajan, i.) 229

In the present complaint of the wife agains(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, B
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 presence of
Kapur Chand Jain an~ six other persons. For the purpose of the
petition under s.482 Cr .P ,C, those articles must be prima facie c
considered to be .dowry or stridhana of the appellant-wife.·

In Ve/ji Raghavji Patel v. Stale of Maharashtra,(') it is
observed:

"Upon the plain reading of s.405, l.P.C. it is obvious D
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 co'nverted to his own
use or disposed of in violation of any direction of law
etc. Every partner. has dominion over property by reason E
of the fact that he is a partner. This is a kind of domi-
nion which every owner of property has over bis property.
But it is not dominion of the kind which satisfies the
Tequirements 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 iiot F
enough. lt 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 domi-'
nion 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 G
special agreement a partner receives money belonging to·
the partnership he cannot be said to have received it in a

(I) [1965] 2 S C.R. 429
H

'
i3o SUPREME COURT REPORTS [1985) 3 s.C.k.
A fiduciary capacity or in other words cannot be held. to have
been "entrusted" with dominion over partnership
properties."
. Ill State of Gujarat v. iaswantla/ Natho/a/(') 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 bene-
fit of another or of another and the owner. But that does
not mean that such an entrustment need conform to all tbe
technicalities of the law of trust - see Jaswantrai Manila/
c Akhaney v. Stille of Bombay [1956] S.CR 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
D property must have confidence in the person taking the
property so as to create a fiduciary relationship between
them."
In Sushi/ Kumar Gupta v. Joy Shankar IJhatlacharyya(•), it is'
observed:
"The offence of criminal breach of trust is committed
E when a pesron who is entrusted in any manner with pro-
perty 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 perscri-
. bing the mode in which the trust is to be discharged, or of
any lawful contract, express or implied, made by him
F touching such discharge, or wilfully suffers any other
person so to do."
In Superintendent Remembrancer of Legal Affairs, West Bengal
v. S.K. Roy(8l, it is observed:

G "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) [19681 2 SCR 408.
(2) (1970) 3 SCR, 770.
H (3) (19741 4 sec, 230,
J.: •.
PRATl'IBA R~Nr v. SURAJ KU.llAR (Varadaraja1, J.) :iJi
tion to the property over which dominion or control is
acquired by the accused. The second is a misappropria-
tion or dealing with the property dishonestly and contrary
to the terms of the obligation created.

The most important ingredient of an offen~e under s. 406,
which is alleged by the wife against her husband, his three brothers, B
father and brother-in-law in her complaint in the persent case is the
entrustment of the dowry articles to the respondent in the comp-
laint 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 hus-
c
band the other respondents in the complaint, as already stated,
are his father, three brother; and brother-in-law. Th(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.back-
ground of what usually happens in Hindu marriages, namely, plac-
ing of the articles presented to the bride in the persence of the elders
and others assembled for the occasion' and removal thereof after
the function is over it has to be seen whether the all~gation made
in the complaint amounts to entrustment as. required by law to
~ake out an offence unde.r s. 406 I.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 persent ca.se on a
petition of the husband and one of his brothers Jias heavily relied
upon that Full Bench decision of his Court. What runs thrdugli
the judgment of the learned Judges in that case is the concert\ of
the Court for the poaceful ond harmonious relationship between
the spouses in a matrimonial home and a careful consideration of
the question whether the ingredient of "entrustment" exist~ in such
cases. Therefore, it is necessary to note what has been obseverd in
some of the paragraphs of the judgment to that case. The learned
Chief Justice speaking for the Bench has observed: ..
G •·,,

"2[. ..... The present set of cases presents a sad spec-
tacle 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- H
232 SUPREMB COURT REPORTS ll98SJ 3 s.c.R..
tions. The challenge on behalf of the husbands and their
relations is focussed basically against the charge of brea.ch ·
of trust under Section · 406 of the Indian Penal Code,
levelled against them. Now the core of the argument on
B, 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
c pre-requisite of the entrustment of property ordominion
over property being lacking and non-existent, no offence
under Section 406, Indian Penal Code, can possibly be
made out. Therefore, it was argued that even accepting the
first information reports asthey do not and indeed cannot
disclose a cognizable offence under Section 406. The peti-
D tioners, 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,
E 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
G· 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 Jose 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 warran-
ted either by the statute, principles or logic. No such
H marriage hazard against the wife can be implied in law.
PRATIBHA RANI v. SURAJ KUMAR ( iiaradarajan, J.) 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 exclu- B
sive 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 re-
gard to individual ownership of the property."
c
''40. Now having held as above that a 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 D
each within the four walls of the matrimonial heme? 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 owner-
ship of the wife? It is the answer to this question which
in essence would determine the attraction and applicability E
of Section 405, I.P.C betwixt the sposes ...... "

"41. It bears repetition that the question herein has to
be exaimined against the backdrop of the matrimonial
home. What truly is the concept and essence thereof had
F
come up for exhaustive consideration earlier before a Full
Bench in Kai/ash Vaii"v. Ayodhia Parkash, !LR (1977) I
Punj. & Har. 642 in the context of Hindu Law itself. It is,
therefore, apt to refer to the authoritative enunciation
therein:-
G
"To my mind, the idea of the matrimonial home
appears to lie at the very centre of the concept of
marriage in all civilsed socities. 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 H
234 sueREME COURT REPORTS [1985] 3 s.d.R.
bind the husband and the wife can perhaps be best
A understood only in the context of their living to-
gether 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
same at any great length. Indeed, the marital status
B
and the conjugal home have been almost ·used as
interchangeble terms." and

"To summarise, I have attempted to show by
reference to Angk-American Jurisprudence that the
0 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 shel-
tered 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
D always hankered for a place which may be their very
own and which they may call a home. The innumer-
able mutual obligations and rights which stem from
the living together of man and wife are undoubtedly
beyond any precise defination and stand epitomized
by the concept of the matrimonial home."
E
In the light of the above it would be farcical to assu-
me 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
(I the other. Rather it appears to me that the cnjugal rela-
tionship and the existence of a matrimonial home automa-
tically obviates any such hyper-teClinicalities of an entrust-
ment or dominion over property. It seems inapt to
conceive the relationship as a ·day-to-day entrustment of
the property of the husba.nd 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 tM 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
H it has been said that the marrige relationship is not one of
PRATlliHA RANi v. SURAi KUMAR (Varadarajan, i.) 23S
"I and You limited" but that of "We ·limited''. Whilst A
· the law undoubtedly now clearly recognises the individual
·ownership of property by the husband and wife, the neces-
sary assumption in law, therefore, would be that during
the existence or even the imminent break up the matri-
monial home the concept of jaintness of possession therein
B
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 spo'!ses 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 c
the matrimonial home can subsist only as long as the
matrimonial home 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 D
Mr. Bhandare on behalf of the petitioners. It was submi-
tted that where a husband entrusts a specific amout to a
wife for paying the school fees of their children but in a
shopping spree she converts the same into sarees for her-
- self, would she thereby become liable to breach of trust E
under Section 406, Inian Penal Code? The answer would
obviously appear to de in the negative. Similarly where a
husband misuses or even ·approriates any property exclu-
vely 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 invari~bly F
where the husband is the bread winner he brings h.ome
the. month's wages and hands them over to the wife to
be spent on the family. Would it be posssble to say that
if she use the same for herself and even against the con-
sent of her husband she would be committing a criminal
G
breach of trust? Obviously the answer would appear to
be in the negative." · ·

"44. ~ne may now turn precisely ,to the language of the
Code itself. Sec. 405 is in the following terms:-
H
236 SUPREME COURT REPORTS (1985] j s.c.a.
A "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 dishones'
tly uses or disposes of that property in violation of
any direction of law prescribing the mode in which
B such trust is to be discharged or of any legal contract,
express O! implied, which he bas made touching the
discharge of such trust, or wilfully suffers any other
person so to do, commits criminal brech of trust."

c It is well-setted that from a legal contract, or viola-
tion 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
D the joint possession and custody (despite rights of the
individual ownership therein) t!1en these very per-requisi-
ties of entrustmont 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 posses-
sion and custody would rule out the entrustment or -
dominion over property betwixt such joint custodians.
E In line with the concept o( joint ownership where the
possession of one joint owner is deemed to be the posses-
sion of all, the analogy is to be extended that existence of
the property within the matrimonial home rises a presump-
tion that both the husband the wife are in possession
F thereof jointly and not that each one has entrusted bis
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 matrimo-
nial home ·and the inevitable mutual trust which conjugality
necessarily involves."
G
"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 complai-
nants were unable to cite even a single case of conviction for
IJ criminal breach of trust betwixt husband and wife. Even when
PRATIBHA RANI v. SURAJ KUMAR (Vara.darajan, J.) 237

pointedly asked, counsel conceded that despite the diligent
A
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 B
statutory provhions. 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
identicai because partnership envisages a joint or co-ow:
nership of partnership property whereas in a conjugal c
. relationship.as shown .above, the spouses may well be the
. individual and exch1sive owners_ of their respective_ pro-
.perti<;s. 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 spou- D
.. ses are demed to be. jo.intly 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 partnersnip property
.except by virtue of a special agreement either written or
E
conclusivelyJestablished. This had always been so in English
· law until it was speciflcally 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 aDsenc.e of any statutory change,
the legal.position V<ould continue to be the· same. This
came up for pointed consideration before a ·Full -B-encb ~f F
five Judges in Bhuban Mohan Das v. Surendra Mohan DaJ,
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 G
with him and is accused of the offence in respect of pro-
perty belowing to them as partners. P.B. Mukharji, J. in
his concurring judgment observed as under (Para 46) :-
"The question here is of much broader applica-
(iop and of a more functamental patµre. Its functaI11en- JI
238 SUPREME COURT RE~PORTS [1985] 3 S.C.R.

A ta! 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
B against the other in respect of the partnership pro-
perty."
The aforesaid view has been expressly referred to and appro-
ved by their Lordships in Vef;i Ra?havii v. State of Maharashtra,\ 1)
with the following added observations (at pp. 1435-36) :-
c
" ... 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 bas over his
property. llut it is not dominion of this kind which satis-
fies the requirements of S.405. In order to establish 'entrust-
DI ment 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
E partnership was, by a special agreement between the
, parties entrusted to the accused person. If in the absence
. of such a special agreementa 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
F 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
G 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 be
presumed. Equally, herein the specific and ascertainable

H
(I) A.I.R. 1965 S.C. l '133
PRATIBHA RANI v. SURA! KUMAR (Varadarajan, J.) 239

property of each spouse within the matrimonial home can A
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 cfril remedy seems to be adequate
betwixt partners, during the subsistance of partnership there
is no reason .why it would not equally be so betwixt spouses .B
in an existing matrimonial home during the subsistance 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 \\'.OUld be equally
untenable to hold . that either th.e 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 iraie husband or wife walks out .from the E
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 imme·
diately after the crumbling of the matrimonial home, there
was in essence, a joint posession · 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 tranditional 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 H·
240 SUPREME COURT REPORTS (1985] 3 S.C,R,

A 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."

B "SQ. In the aforesaid context, pointed reference must
be made to the opentng word 'whoever' ofS.405 of the
Code to highlight that the criminal law does not take ken
of any proximity of reltaionship for the offence of breach
of trust. "Whoever" would include within its ambit the
parents-in-law, the brothers-in-law, sisters-in-Jaw (and
c other close relations of the husband) of a Hindn 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
conjngal 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 applica-
bility 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 costody and possession of their individual pro-
E perties by the spouses a/Jne, they cannot by the mere fact
of kinship be acluded 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 matri-
F monial home cannotes a jointness of possession and
custody by the spouses even with regard to the movable •-1
I
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
G 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 ingre-
dients of the offence under S.406 of the Penal Code would
H be lacking in a charge of criminal breach of trust of
PRATIBHA RANi v. SUR.I.I KUMAR (Vdradilrajan. l 241

property by one spo.use against tbe ·other. ·inevitably, A
therefore, the purported allegations of breach of trust ·
·betwixt husban·d and wife so Jong 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 prima facie and this inevitably has
to be by a subsequent conscious act of volition which
must be specifically alleged and conclusively established .
by !'roof. Lastly, because of the definition in S. 2 of the c
Dowry Prohibition Act, the offences under the said Act
cannot come within the ambit of S. 406 of thdndian
•Penal Code as these· cannot stand to~ether on the same
set of facts."

D
· '"57. Hence the answer (to the question) posed at 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 e;:iter
its hallowed precincts excel;! through the back door of a
special written contract to the contrary wit~l re11ard to
su~h property." ,.

. 1 have extracted above several passages from the judgment
of the learned Judges of tl>e Full Bench in Vinod Kumar's case
F
(supra) since I ·share their view and concern for peac:e an.i harmony
i·a matrimonial hotn:s and feel that tho karned Single Judge who
. ~ho has qµashed the wife's complaint in the pre1tent case was
justified iii relying heavily upon that judgment of the Full Bench.
In these circumstances, I think think that in the. absence of a
separate agreamC!1t and specific en.trustment by the wife to the
G
husband and of his relations and vice versa of the property of the
husband to the wife and or her relation, it WJuld not be pJssible
to draw an inference of entrustment of custody or dominion over
the property or one spouse to the other and his or her relations
so as to attract tile stringent provisions of s.406 l.P.C. The
offenee of criminal breach of trust is cogniz1bk and goo-bailable H
and punishable with imprisonment for a term of three years or
242 SUPREME COURt ll.EPORJ'S [1985] 3 s.c.R.
A 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
B 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
c 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
D the spou"s 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 l1ad used the property
or cash of ihe husband for purposes different from .the one for
·which they were given by the husband to be applied by the wife
E
and_ vice.-vcrsa.. I am anxious that no light-hearted change
should be hrought about in the position and that the minimum
requirement in such cases is a specific separate agreement whereby
the property of the wife or husband was entrus•ed to the husband
or· wife and or his or her close relations; lit the absence of such a
F specific separate. agreement in the complaint, in the present case,
lam of tl1e opinion t.bat. the learoed: Single. Judge was perfectly
justified in fellowing. the· decision of the Full. Bench in Vinod
Ku•11<n;s case. (supra)• ·and quashing the wife's complaint flied
against the husban-1 and• . his: close rclJ•tions. I would, theref,Jre.
dismiss the appeal.

G Jn view. of.the majority. decision, this apreal is allowed, the
judgment of the High Court is set aside and the compLiint filed by
the appellant; is. restored. The accused mciy now be summoned
a.nd. pu.t on trial in accordance with law.

H S.R. Appeal ollol!'cd

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