Chattisgarh High Court
Rakesh Gautam vs State Of Chhattisgarh on 10 March, 2011
HIGH COURT OF CHATTISGARH BILASPUR
Criminal Revision No 408 of 2010 & Criminal Revision No 413 of 2010
1 Rakesh Gautam
2 Mithlesh
3 Smt Gudiya
4 Dinesh Kumar Mishra
5 Smt Rekha Mishra
...Petitioners
Versus
State of Chhattisgarh
...Respondents
! Mr Goutam Bhaduri counsel for the applicants in Criminal Revision No 408 of 2010 Mr Devershi Thakur counsel for the applic
^ Mr Rakesh Kumar Jha Deputy Govt Advocate for the State
CORAM: Honble Mr TP Sharma J
Dated: 10/03/2011
: Judgement
O R D E R
Criminal revisions under Section 397 read with Section 401 of the Code of Criminal Procedure 1973 Passed on 10th March 2011
1. Since both the above two revisions have been filed against the common order dated 3-7-2010 passed by the 9th Additional Sessions Judge (FTC), Raipur in Sessions Trial No.68/2010, for quashing of the charges framed against the applicants under Sections 304B & 498A of the IPC, they are being disposed of by this common order.
2. As per case of the prosecution, Smt. Kiran Mishra (since deceased) - wife of Rakesh Gautam i.e. applicant No.1 in Criminal Revision No.408/2010, was married to Rakesh Gautam in the year 2000 in accordance with her custom. Gouna ceremony was performed in the year 2002. Applicant Rakesh Gautam and other applicants i.e. relatives of Rakesh Gautam - husband of Kiran Gautam, committed torture & cruelty upon Kiran Gautam in connection with demand of dowry and finally Kiran Gautam died on 31-12-2008 in her matrimonial house in abnormal circumstances. Report was lodged, matter was investigated and finally, charge sheet has been filed against the applicants. After hearing the parties, the trial Court has framed charge under Sections 304B & 498A of the IPC against all the applicants i.e. husband of the deceased and relatives of husband of the deceased.
3. I have heard learned counsel for the parties, perused both the criminal revisions, copy of charge sheet and reply filed on behalf of the State/non-applicant.
4. Learned counsel for the applicants submits that as per case of the prosecution, Kiran Gautam (since deceased) was married to applicant Rakesh Gautam in the year 2000 and she committed suicide or she died in abnormal circumstances on 31- 12-2008 after more than seven years of her marriage and, therefore, the trial Court was not competent to frame charge under Section 304B of the IPC. Penal provisions are required to be applied strictly and the Court was under obligation to frame charge in accordance with the provisions of Section 304B of the IPC. In order to frame charge under Section 304B of the IPC, the prosecution is required to show prima facie material that there was valid marriage, the bride died in abnormal circumstances as a result of suicide or bodily injury or burns within seven years of her marriage and she has been subjected to cruelty or torture in connection with demand of dowry soon before her death. In the present case, as per case of the prosecution, Kiran Gautam died in abnormal circumstances after more than seven years of her marriage.
5. Learned counsel for the applicants placed reliance in the matter of Public Prosecutor, High Court of A.P., Hyderabad v. Tota Basava Punnaiah and others1 in which the High Court of Andhra Pradesh has held that Section 304B of the IPC is a special provision which is inserted by the amendment in 1986 to deal with dowry deaths. It applies where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, if the other conditions i.e. demand of dowry soon before her death and death within seven years of her marriage, are satisfied. Learned counsel further placed reliance in the matter of Baljeet Singh and another v. State of Haryana2 in which the Supreme Court has held that the prosecution is required to establish that the bride died within seven years of her marriage. Learned counsel also placed reliance in the matter of Chhagan v. State of Madhya Pradesh3 in which the High Court of Madhya Pradesh has held that in case of death of wife after more than seven years of her marriage, no presumption under Section 113A of the Indian Evidence Act, 1872 (for short `the Act') would be available. Learned counsel relied upon the matter of Satyabhan Patel v. State of M.P.4 in which the High Court of Madhya Pradesh has held that for the purpose of presumption under Section 113A of the Act, the date of marriage is the material date and not date of Gouna ceremony.
6. On the other hand, learned State counsel opposes both the revisions and submits that definitely, the prosecution is required to collect sufficient material to show that the bride died within seven years of her marriage in abnormal circumstances and to satisfy the other ingredients of the offence of dowry death. Learned State counsel further submits that the word `marriage' should not be construed in technical or limited sense, `marriage' is the sacred union, legally permissible, of two healthy bodies of opposite sexes. In the present case, parties are Hindus and for completion of marriage or solemnization of marriage, parties are required to observe the custom prevailing in their caste or society. Learned State counsel also submits that Gouna ceremony is a part of marriage and marriage only completes after Gouna ceremony and prior to Gouna ceremony there was no occasion of meeting of bride with bridegroom and, therefore, the crucial date for reckoning seven years of marriage in case of social group in which Gouna ceremony is prevalent, is the date of Gouna and not the date of technical marriage.
7. As per the material collected on behalf of the prosecution, available in the charge sheet, bride Kiran Gautam was married to applicant Rakesh Gautam in the year 2000 and her Gouna ceremony was performed in the year 2002. If Gouna ceremony is considered as completion of marriage, charge framed by the trial Court is sustainable under the law and if Gouna ceremony is not considered as essential part of marriage, presumption under Section 113A of the Act would not be available and charge framed against the applicants under Section 304B of the IPC would not be sustainable under the law.
8. Both the parties are Hindus, governed by the Hindu Marriage Act, 1955. Section 5 of the Hindu Marriage Act, 1955 provides conditions for solemnization of marriage between Hindus which reads as follows: -
"5. Conditions for a Hindu marriage.-A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party-
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity;
(iii) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;"
9. As per Section 7 of the Hindu Marriage Act, 1955, a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto and if such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken. A Hindu marriage under the Act must be solemnized in accordance with the customary rites and ceremonies of at least one of the two parties thereto.
10. Marriage solemnized contrary to clauses (i), (iv) & (v) of Section 5 of the Hindu Marriage Act, 1955 is void marriage in accordance with Section 11 of the Hindu Marriage Act, 1955. Section 12 of the Hindu Marriage Act, 1955 provides the marriages which are voidable. Section 12 of the Hindu Marriage Act, 1955 reads as follows: -
"12. Voidable marriages.-(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:--
(a) that the marriage has not been consummated owing to the impotence of the respondent; or
(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 to 1978), the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in sub-
section (1), no petition for annulling a marriage-
(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if-
(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied-
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground."
11. If the marriage is solemnized in violation of clause
(iii) of Section 5 of the Hindu Marriage Act, 1955, same may be repudiatable at the instance of bride who has not completed the age of fifteen years at the time of her marriage in accordance with clause (iv) of sub-section (2) of Section 13 of the Hindu Marriage Act, 1955. Clause (iv) of sub-section (2) of Section 13 of the Hindu Marriage Act, 1955 reads thus, "(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,--
(i) *** *** *** (ii) *** *** *** (iii) *** *** ***
(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
Explanation.-This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)."
In case of marriage of bride who has not attained the age of 15 years at the time of her marriage, she has right to repudiate her marriage, even after consummation, after attaining that age but before attaining the age of 18 years.
12. Dowry death is punishable under Section 304B of the IPC. Section 304B of the IPC reads as follows: -
"304B. Dowry death.-(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation.-For the purpose of this sub- section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
13. As per Section 113A of the Act, abetment of suicide by a married woman may be presumed. Section 113A of the Act reads as follows: -
"113A. Presumption as to abetment of suicide by a married woman.-When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation.-For the purpose of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code, 1860 (45 of 1860)."
14. Penal provision for dowry death under Section 304B of the IPC has been inserted by the legislature by Act 43 of 1986 with effect from 19-11-1986. this penal provision is applicable to all sects and groups of society. Form of marriage required to be observed, customs and completion of marriage are different in different sects and groups of societies, no uniform code would be possible for all groups. In Muslim law, marriage takes effect only after consummation of marriage. The word `marriage' has not been defined in the Hindu Marriage Act, 1955.
15. The word `marriage' has been defined in Black's Law Dictionary, 7th Edition, 1999, as follows: -
"1. The legal union of a man and woman as husband and wife. Although the common law regarded marriage as a civil contract, it is more properly the civil status or relationship existing between a man and a woman who agree to and do live together as spouses. The essentials of a valid marriage are (1) parties legally capable of contracting marriage, (2) mutual consent or agreement, and (3) an actual contracting in the form prescribed by law.
2.The act or ceremony so uniting them; a wedding."
16. As per Christian law, marriage as understood in Christendom is the "voluntary union for life of one man and one woman, to the exclusion of all other".
17. As per inquest report and autopsy report, age of deceased Kiran Gautam as on 1-1-2009 was about 22 years. In the year 2000, the alleged year of marriage, she was aged about 14-15 years and in the year 2002, on the date of alleged Gouna, her age was about 16-17 years. On the date of her alleged marriage, the bride was not in a position to satisfy condition No.(iii) of Section 5 of the Hindu Marriage Act, 1955, considering her age between 14 and 15 years.
18. Marriage was also repudiatable and revocable at the instance of bridge till attaining the age of 18 years.
19. Statements of the witnesses recorded under Section 161 of the CrPC clearly reveal that marriage took place in the year 2000 and Gouna ceremony took place in the year 2002, thereafter, deceased Kiran Gautam went to her matrimonial house. This shows that in the year 2002, Kiran Gautam went to her matrimonial house for the first time for discharging her marital obligations and she became capable of discharging her marital obligations only from 2002 and not from 2000. In the present case, Gouna is not second time or subsequent vidai of the bride from her paternal house. But the material collected on behalf of the prosecution, prima facie, reveals that in the present case, Gouna is first time vidai / departure of the bride from her paternal house for her matrimonial house to discharge her marital obligations and prior to Gouna it was not possible for her, in accordance with her custom, to discharge her marital obligations or to unite with her husband.
20. As per the definition of marriage given in Black's Law Dictionary, 7th Edition, 1999, the essentials of a valid marriage are (1) parties legally capable of contracting marriage, (2) mutual consent or agreement, and (3) an actual contracting in the form prescribed by law; and the act or ceremony so uniting them.
21. In the present case, Gouna ceremony is a ceremony for uniting the bride and the bridegroom as a part of marriage. Therefore, in the present case, it appears from the material collected on behalf of the prosecution that Gouna was the essential ceremony for completion of marriage and after Gouna the bride would be able to discharge her marital obligations in accordance with the custom and marriage of the bride will be treated as complete only after the Gouna ceremony. The bride died in abnormal circumstances within seven years of her Gouna. In the present case, the prosecution has also collected material to satisfy other ingredients of the offence punishable under Section 304B of the IPC. Complete marriage in accordance with custom is a question of fact and depends upon the custom of different groups and sects of the society, no straight jacket formula would be possible.
22. The alleged marriage between the parties was not lawful marriage till attainment of the age of 18 years by the bride.
23. As held in Tota Basava's case (supra), Chhagan's case (supra) and Baljeet's case (supra), the prosecution is required to show prima facie material that the bride died within seven years of her marriage in abnormal circumstances, with other ingredients of the offence.
24. For framing charge under Section 304B of the IPC, the prosecution is required to show prima facie material that the deceased died within seven years of her marriage. As held in Satyabhan's case (supra), the date of marriage is the material date and not date of Gouna ceremony. But in that case, Gouna ceremony and its effect have not been discussed. In absence of any fact relating to Gouna and the facts of the present case that at the time of marriage, age of the deceased was below 16 years; the bride (deceased) was even not competent to give consent or valid marriage was not possible in terms of Section 5 of the Hindu Marriage Act, 1955; only after Gouna ceremony i.e. after two years of the alleged marriage, she went to the house of her husband for discharging her marital obligations; Gouna is essential ceremony of marriage in the present case; and marriage was not valid without Gouna ceremony, the case of Satyabhan (supra) is distinguishable on facts to that of the present case.
25. In the present case, the bride died within seven years of her Gouna ceremony i.e. completion of her marriage.
26. After considering the material collected on behalf of the prosecution, by framing charge under Section 304B of the IPC against the applicants, considering the crucial date of reckoning seven years from the date of Gouna, which is the essential ceremony for completion of marriage, the trial Court has not committed any illegality.
27. Consequently, both the revisions are devoid of merit, same are liable to be dismissed and they are hereby dismissed.
J U D G E