Domestic Violence and Endangered stridhan—sC to the Rescue!

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Introduction

Stridhan is one of the unique features of Hindu Law. It signifies the exclusive property of a Hindu married lady and the Courts, generally, would strive to protect the same at all costs, including from her husband and in-laws. However, what happens when the lady’s marriage has undergone a judicial separation? Further, what happens if she has approached the Courts after the decree of judicial separation? Can she compel her husband and in-laws to return her stridhan in such a scenario? Recently, all these interesting questions were posed before the Supreme Court in the case of Krishna Bhatacharjee vs. Sarathi Choudhury, Cr. Appeal No. 1545 /2015 (hereinafter referred to as “Krishna’s case”). Let us analyse some of these interesting facets through this Article.

In Krishna’s case, on dowry demands not being satisfied, a married lady was driven out of her husband’s home. Ultimately, the couple were granted judicial separation by the Family Court. Thereafter, since the husband stopped paying monthly maintenance, the lady sought help from a Protection Officer, constituted under the Protection of Women from Domestic Violence Act, 2005, and sought his help for recovery of her stridhan which was yet in her husband’s custody. She also filed a criminal appeal claiming a criminal breach of trust by her husband which was punishable u/s. 405/406 of the Indian Penal Code, 1860. All the lower Courts, including the High Court, denied relief to the lady since the claim for stridhan was made after the decree for judicial separation was passed. Further, they held that the criminal plea was time-barred by virtue of section 468 of the Criminal Procedure Code. It was in the light of these facts, that the aggrieved lady approached the Supreme Court and sought relief.

First and foremost it becomes important to understand the concept of stridhan. The term is coined from two different Sanskrit words “Stri” (meaning a lady) + “Dhan” (meaning property) = “Stridhan” (meaning a lady’s property). It thus, represents that property of a married lady over which she has exclusive domain. Only she can decide what she wants to do with such property. She can use it, gift it and will it away. The general meaning is the gift she received on marriage, from her parents, her husband, her in-laws, etc. In certain cases, property inherited by a female can also become stridhan. Thus, jewellery, personal belongings, etc., received by her on marriage would form part of her stridhan.

The position of stridhan has been explained by the Supreme Court in Pratibha Rani vs. Suraj Kumar, (1985) 2 SCC 370. The Court held that the position of stridhan of a Hindu married woman is that, she is the absolute owner of such property and can deal with it in any manner she liked. 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 her stridhan property was like something which the wife kept in a bank and could withdraw any amount whenever she liked without any hitch or hindrance. The husband had no right or interest in it with the sole exception that in times of extreme distress he could use it. It further held that the husband had no jurisdiction over the stridhan and must return the same as and when demanded by the wife and he could not burden her with the losses of his business by using her stridhan. It was manifest that the husband, being only a custodian of the stridhan of his wife, could not be said to be in joint possession thereof and thus did not acquire a joint interest in the stridhan property.

Again in Smt. Rashmi Kumar vs. Mahesh Kumar Bhada, (1997) 2 SCC 397, the Supreme Court held that stridhan is the exclusive property of the wife on proof that she entrusted the custody over the stridhan to her husband or any other member of the family, there is no need to prove any further special agreement to establish that the property was given to the husband or other member of the family. It was always a question of fact in each case as to how property came to be entrusted to the husband or any other member of the family by the wife when she left the matrimonial home or was driven out therefrom. No absolute or fixed rule of universal application could be laid down in that behalf.

Next, it becomes essential to understand the important provisions of the Protection of Women from Domestic Violence Act, 2005 (“the 2005 Act”). It is an Act to provide for more effective protection of the rights, guaranteed under the Constitution of India, of those women who are victims of violence of any kind occurring within the family. It provides that if any act of domestic violence has been committed against a women, then she can approach designated Protection Officers to protect her. Hence, it becomes essential to consider as to what constitutes an act of Domestic Violence and who can claim shelter under this Act? Any aggrieved woman under the Act is one who is, or has been, in a domestic relationship with an adult male and who alleges to have been subjected to any act of domestic violence by him. A domestic relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by marriage, or through a relationship in the nature of marriage or are family members living together as a joint family. A live-in relationship is also considered as a domestic relationship. In D. Velusamy vs. D. Patchaiammal, (2010) 10 SCC 469, it was held that in the 2005 Act, Parliament has taken notice of a new social phenomenon which has emerged in India, known as livein relationships. According to the Court, a relationship in the nature of marriage was akin to a common law marriage and must satisfy the following conditions:-

(i) T he couple must hold themselves out to society as being akin to spouses.

(ii) T hey must be of a legal age to marry.

(iii) They must be otherwise qualified to enter into a legal marriage, including being unmarried.

(iv) T hey must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

(v) T he parties must have lived together in a `shared household’

The concept of domestic violence is very important and section 3 of the 2005 Act defines the same as an act committed against the lady, which :

(a) harms or injures or endangers the health, safety, or well being, whether mental or physical, of the lady and includes causing abuse of any nature, physical, verbal, economic abuse, etc.; or

(b) harasses or endangers the lady with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Thus, economic abuse is also considered to be an act of domestic violence under the 2005 Act. This term is defined in a wide manner and includes deprivation of all or any economic or financial resources to which she is entitled under any law or custom or which she requires out of necessity including, household necessities, stridhan property, etc.

Various Supreme Court decisions have analysed the provisions of the 2005 Act. For instance, in V. D. Bhanot vs. Savita Bhanot, (2012) 3 SCC 183, it was held that this Act applied even to cases of domestic violence which have taken place before the Act came into force. The same view has been expressed in Saraswathy vs. Babu, (2014) 3 SCC 712.

Judicial Separation a Roadblock?

The question posed before the Supreme Court in Krishna’s case, was whether the decree of judicial separation was a hindrance to a plea for recovery of stridhan under the 2005 Act? Thus, does a lady cease to have recourse to this Act merely because she has obtained a decree of judicial separation. If a divorce is obtained she would not be entitled to relief under the 2005 Act. However, the Court held that the position in the case of a judicial separation was different. Judicial separation lied between a subsisting marriage and a marriage severed by a divorce. It observed that a judicial separation created rights and obligations. It permitted the parties to live apart. There would be no obligation for either party to cohabit with the other. Mutual rights and obligations arising out of a marriage were suspended. However, judicial separation did not severe or dissolve the marriage. It afforded an opportunity for reconciliation and adjustment. Though judicial separation after a certain period may become a ground for divorce, it was not necessary and the parties were not bound to have recourse to that remedy and the parties could live keeping their status as wife and husband till their lifetime. It held after considering various earlier decisions in the cases of Jeet Singh vs. State of U.P., (1993) 1 SCC 325; Hirachand Srinivas Managaonkar vs. Sunanda, (2001) 4 SCC 125; Bai Mani vs. Jayantilal Dahyabhai, AIR 1979 209; Soundarammal vs. Sundara Mahalinga Nadar, AIR 1980 Mad 294, that there was a distinction between a decree for divorce and decree of judicial separation; in divorce, there was a severance of the status and the parties did not remain as husband and wife, whereas in judicial separation, the relationship between husband and wife continued and the legal relationship continued as it had not been snapped.

Accordingly, the Supreme Court in Krishna’s case held that the decree of judicial separation did not act as a deterrent for the lady from claiming relief under the 2005 Act since the relationship of marriage was yet subsisting.

The Code of Criminal Procedure, 1973 provides for the method and manner in which criminal cases, prosecutions, etc. would be tried in the Courts. The Code also provides for the limitation period after which the Courts would not entertain any prosecutions in respect of offences. The object of enunciating a bar on prosecutions was explained by the Apex Court in its decision in the case of State of Punjab vs. Sarwan Singh AIR 1981 SC 722. The Supreme Court held that the object in putting a time limit on prosecution is clearly to prevent parties from filing of vexatious and belated prosecutions. Section 468 of the Code provides the periods of limitation after the expiry of which a Court shall not take cognizance of an offence. The term “cognizance” may be defined to mean the judicial recognition or the judicial notice of any cause of action. According to the Supreme Court in the case of Darshan Singh Ram Kishan vs. State of Maharashtra, (1971) 2 SCC 654, cognizance takes place at a point when a magistrate first takes judicial notice of an offence.

A question arose as to whether a belated complaint by the aggrieved lady under the 2005 Act for recovering her stridhan was hit by the period of limitation provided u/s. 468 of the Code? Connected with section 468 is the concept of continuing offence u/s. 472 of the Code. Section 472 provides that for a continuing offence, a fresh period of limitation begins to run at every moment of the time during which the offence continues. The term continuing offence has not been defined and thus, one must depend upon the language of the Act. In Maya Rani Punj vs. CIT, 157 ITR 330 (SC), the Supreme Court observed that if a duty continued from day to day, then its non-performance from day to day was a continuing wrong. Again, in State of Bihar vs. Deokaran Nenshi, (1972) 2 SCC 890, the Court held that a continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all.

Based on this discussion, the Supreme Court in Krishna’s case, concluded that the retention of stridhan by the husband or any other family members was a continuing offence. The concept of “continuing offence” got attracted from the date of deprivation of stridhan, for neither the husband nor any other family members had any right over the stridhan and they only remained custodians. Further, as long as the status of the aggrieved lady remained and stridhan remained in the custody of the husband, the wife could always put forth her claim under the 2005 Act. There could be no dispute that wife could file a suit for realisation of the stridhan but that did not debar her from lodging a criminal complaint for criminal breach of trust. Accordingly, it held that the application was not barred by the period of limitation u/s.468 of the Criminal Procedure Code.

Finally, the Supreme Court, in Krishna’s case, held that retention of stridhan by a husband was a continuing offence against which no period of limitation applied for filing a criminal appeal for a criminal breach of trust. Further, a decree for judicial separation was not a bar against claiming relief under the 2005 Act. Thus, she could avail of a dual remedy. The Supreme Court held that a more sensitive approach was expected from the courts in such matters. If relief could not be granted under the 2005 Act then so be it. However, before disposing of any petition for want of maintainability, a thorough discussion was a must. Courts must bear in mind that, under the 2005 Act, it was a hapless and a helpless lady who approached them and that too under compelling circumstances. The 2005 Act being a beneficial Act and one which asserts the rights of women, it must be viewed sensitively to ensure that women are not wrongly deprived of their rights.

Through this very important judgment, the Apex Court has untangled the complex criss-cross web of domestic violence, economic abuse, stridhan, period of limitation under Criminal Procedure Code and judicial separation. The cross currents flowing under each of these concepts have been analysed and dissected to arrive at a considered view.