Allahabad High Court

Rajesh Saxena and Anr.
Vs
State of U.P.& Ors.

9 October 1998

Hon’ble Judges: I.M.Quddusi

Advocates Appeared: Yogesh Kumar Saxena

Case Number: Criminal Misc. Application No. 4662 of 1989

I.M. Quddusi, J.-

In this case the matter for consideration is whether under the Dowry Prohibition Act, 1961 demand of dowry before performing marriage is punishable under the Act or not.

2. In this case a complaint was filed in the Court of the learned Chief Judicial Magistrate, Etah for the prosecution of the accused persons, including the applicants for the offences punishable under Section 4 of the Dowry Prohibition Act, 1961 (hereinafter described as the “Act”), which was registered as complaint case No. 2994 of 1988 according to which the applicants along with their other relatives visited Etah on 28-12-1998 and saw the daughter of respondent No. 2 at his residence. They approved her for marriage and according to their scheduled programme to perform the ceremonies of God Bharai and Teeka. They reached at Allahabad on 31-12-1987 and demanded money to the tune of Rs. 50,000/- when the respondent No. 2 showed his incapability’ to pay such a huge amount. On this the ceremonies were not performed due to non-fulfilment of the demand for dowry. Learned Chief Judicial Magistrate after recording the statement under Sections 200 and 202, Cr PC sum­moned the applicants only but refused to summon the other persons.

3 From the perusal of the allegations made in the complaint as well as the statements given by the witnesses it ap­pears that it is an admitted case of the complainant that no settlement was ar­rived at for giving the amount demanded and hence the settled ceremonies of the marriage were not performed. In view of the above facts we have to consider first the definition of the ‘dowry’ as given in Section 2 of the Dowry Prohibition Act which reads as under :

“2. ‘Dowry’ in this Act means any property or valuable security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a mar­riage or by any other person, to cither party to the marriage or to any other person;

at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or Mahr in the case of persons to whom the Muslim Per­sonal Law (Shariat) applies.”

From the perusal of the above definition of dowry, the following conditions are liable to be fulfilled viz. the property or valuable security given or agreed to be given by or on behalf of one party to other party to the marriage and the valuable security given or agreed to be given at or before or any time after the marriage in connection with the marriage of the par­ties. The definition of the ‘valuable secu­rity’ has been given in Section 30 of the Indian Penal Code, which is reproduced as below:

“Valuable security”.-The words ‘valuable security” denote a document which is, or pur­ports to be a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any per­son acknowledges that he lies under legal li­ability, or has not a certain legal right.”

Thus, if a property or vlauablc secu­rity has been given in connection with the marriage at or before or any time after the marriage comes within the definition of dowry inasmuch as the property or valu­able security agreed to be given at or be­fore or any time after the marriage in con­nection with marriage also comes within the definition of ‘dowry’. Section 4 of the Act provides that if any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with impris­onment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees. In the instant matter it is the admitted case of the com­plainant that neither the property or valu­able security was given nor the same was agreed to be given. Hence the sum de­manded will not come within the meaning of the definition ‘dowry’ unless the same is already given or agreed to be given, as already discussed above. Section 4 comes at a later stage when the dowry is de­manded meaning thereby that first of all there should be an agreement between the parties for transaction of property of valu­able security and non-fulfilment of the agreed transaction and then making a de­mand in, pursuance of that transaction comes within the scope of Section 4. In other words, if there is no agreement be­tween the parties for giving any property or valuable security and in case the same is demanded, one sided, the same will not be a dowry and will not come within the scope of Section 4 of the Act. Moreover, it is also necessary for the parties to consti­tute an offence under Section 4 to demand dowry from the parents or other relatives or guardian of a bride or bridegroom. The words ‘bride’ and ‘bridegroom’ have been used in the Act which clcary indicate thai the ‘bride’ and ‘bridegroom’ will become only at the time of marriage or at the most after the performance of the marriage ceremony. One more thing is to be consid­ered in relation to this section (Section 4) that in this section the word ‘dowry’ has been used and the definition of ‘dowry’ has already been given in Section 2. In Section 2 in tne context of dowry the words any property or valuable security has been used, but in this section the wordings any property or valuable security’ has not been used, which clearly denotes that mere de­mand of any property or valuable security will not constitute an offence under Sec­tion 4. The offence will be constituted only when there is demand of dowry only.

4. In the instant matter no property or valuable security was ever given or agreed to be given by either party and admittedly no performance of marriage has ever been done. Hence it cannot be said that by de­manding some money, property or valu­able security will come within the meaning of ‘dowry’ as defined in Section 2 and thus any dowry if demanded will not constitute an offence under Section 4. In view of this no offence is made out on the basis of the allegations made in the complaint. Hence summoning of the applicants on the basis of the complaint allegations is improper and hence the summoning order passed by the learned Magistrate as well as the whole criminal proceedings are liable to be quashed.

5. In the result, the application is al­lowed. The order dated 23-2-1989 passed by the learned Chief Judicial Magistrate, Etah in complaint case No. 2994 of 1988 under Section 4 of the Dowry Prohibition Act Prem Babu Saxena v. Sri Rajesh Saxena and others, as well as the complaint are quashed. There shall be no order as to costs. Application allowed.