Sunil Kumar Mukherjee v. Mita Mukherjee — 1989 DIGILAW 291 (CAL)

JUDGMENT Amarabha Sengupta, J. This is an application under s.115 of the C.P. Code directed against an order dated 31.8.88 of the Assistant District Judge of Asansol in M.S. no. 32 of 1984 by which the learned Judge has held the said suit to be maintainable in the Civil Court. 2. The plaintiff opposite, party Smt. Mita Mukherjee, had married the petitioner no. 2, Proloy Mukherjee in June 1981. The petitioner no. 1 Sunil Kumar Mukherjee, is the father of the petitioner no. 2. The marriage has since been dissolved. 3. As per the revisional application the plaintiff, Mita Mukherjee has instituted the money suit against the petitioners for return of the dowries given by the father of the plaintiff at the time of her marriage with the petitioner no. 2, Prolay Mukherjee. The petitioners as defendants filed written statement in the suit, and at their instance the court heard three issues as preliminary issues. These issues are : (i) Is the suit maintainable in its present form? (ii) Has this Court jurisdiction to try the suit in terms of the Dowry Prohibition Act, 1961? (iii) Has the Plaintiff any cause of action? 4. The contentions of the parties before the Trial Court were with regard to the question whether in view of s. 6(2) of Dowry Prohibition Act, 1961 read with s. 6(3-A) thereof the Civil Court has any jurisdiction to entertain a suit and pass a decree therein for transfer of any dowry which may have been received by the defendants. 5. The money suit was instituted in June, 1984. With effect from 2.10.1985 s. 6(2) of the Dowry Prohibition Act was amended and a new provisions being s. 6(3-A) was added in the Act. 6. For our purposes it is worthwhile to reproduce the entire s. 6 of the Act as it stands since the amendment referred to, and also the pre-amendment form of s. 6(2), 7. With effect from 2.10.1985 s. 6(2) of the Dowry Prohibition Act was amended and a new provisions being s. 6(3-A) was added in the Act. 6. For our purposes it is worthwhile to reproduce the entire s. 6 of the Act as it stands since the amendment referred to, and also the pre-amendment form of s. 6(2), 7. Section 6 of the Act runs as follows : Dowry to be for the benefit of the wife or her heirs,- (1) Where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman- (a) if the dowry was received before marriage within three months after the date of marriage; or (b) if the dowry was received at the time of or after the marriage within three months after the date of its receipt: or (c) if the dowry was received when the woman was a minor, within one year after the has attained the age of eighteen years, and pending such transfer, shall hold it in trust for the benefit of the woman. (2) If any person fails to transfer any property as required by sub-s. (1) within the time limit specified therefor or as required by sub-s. (3), he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years or with fine which shall not be less than five thousand rupees, but which may extend to ten thousand rupees or with both. (3) Where the woman entitled to any property under sub-s. (1) dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it for the time being. Provided that where such woman dies within seven years of her marriage, otherwise than due to natural causes, such property shall- (a) if she has no children, be transferred to her parents, or (b) if she has children, be transferred to such children and pending such transfer, be held in trust for such children. Provided that where such woman dies within seven years of her marriage, otherwise than due to natural causes, such property shall- (a) if she has no children, be transferred to her parents, or (b) if she has children, be transferred to such children and pending such transfer, be held in trust for such children. (3-A) Where a person convicted under sub-s. (2) for failure to transfer any property as required by sub-s. (1) or sub-s. (3) has not, before his conviction under that sub-section, transferred such property to the woman entitled thereto, or as the case may be, her heirs, parents or children, the Court shall in addition to awarding punishment under that sub-section, direct by order in writing, that such person shall transfer the property to such woman, or, as the case may be, her heirs, parents or children within such period as may be specified in the order, and if such person fails to comply with the direction within the period so specified, an amount equal to the value of the property may be recovered from him as if it were a fine imposed by such court and paid to such woman or, as the case may be, her, heirs, parents or children. (4) Nothing contained in this section shall affect the provisions of s. 3 or s. 4. 8. When the suit was instituted in 1984 s. 6(3-A) was not in the Act and s. 6(2) was as follows : "If any person fails to transfer any property as required by sub-s. (l) and within the time limited therefor, he shall be punishable with imprisonment which may extend to six months or with fine which may extend to five thousand rupees, or with both, but such punishment shall not absolve the person from his obligation to transfer the property as required by sub-s. (1)." 9. It may also be pointed out that under s. 3 of the Dowry Prohibition Act giving or taking dowry is a punishable offence, and s. 4 makes all agreements for the giving or taking of dowry void. Section 8 of the Act makes the Criminal Procedure Code of 1973 applicable to offences under the Act for the purpose of investigations and also for matters other than matters referred to in s. 42 of that Code and arrests without warrant. 10. Section 8 of the Act makes the Criminal Procedure Code of 1973 applicable to offences under the Act for the purpose of investigations and also for matters other than matters referred to in s. 42 of that Code and arrests without warrant. 10. It was urged before the Trial Court on behalf of the defendants that in view of the provisions in the Dowry Prohibition Act it is only the Criminal Court that can make an order for transfer of the dowry, and therefore, a suit for recovery of dowry was not maintainable. From the side of the plaintiff it was contended that the suit should be adjudicated in terms of the law which prevailed in 1984 when the suit was instituted, and that in terms of s. 6(2) of the Dowry Prohibition Act as it stood before its amendment in 1985, the aggrieved party could have his remedy only in the civil court. On this argument it was maintained that the instant suit having been instituted before the amendment of s. 6(2) and introduction of s. 6(3-A) was maintainable. 11. The learned Judge accepted the contentions of the plaintiff and by the impugned order dated 31.8.88 held the suit to be maintainable. The other two issue, were also disposed of in favour of the plaintiff. 12. We have considered the submissions of the learned Counsel appearing for the petitioners and the opposite party. Their contentions are mostly the same as the contentions made before the Trial Court. An additional contention of the plaintiff opposite party before us is that even independent of the Dowry Prohibition Act the plaintiff opposite party had a Common Law right to recover the dowry and maintain the suit in exercise of her said Common Law right. We shall consider this aspect at appropriate stage. 13. In our view, as far as the transfer or recovery of the dowry in terms of s. 6(1) of the Dowry Prohibition Act is concerned, only the procedural law was changed in 1985 by the amendment of s. 6(2) of the Act and the introduction of s. 6(3-A) in the Act. An amendment of procedural laws takes effect retrospectively in the absence of any specific provision to the contrary. An amendment of procedural laws takes effect retrospectively in the absence of any specific provision to the contrary. Therefore, although the money suit was instituted before the amendment of the Act, the procedure now prevailing and prescribed by the amendment must be applied and followed for transfer or recovery of the dowry in terms of s. 6(1) of the Act. 14. Now, the question arises : Can the Civil Court pass a decree for enforcement of the obligation enjoined by s. 6(1) of the said Act? 15. On going through the provisions of the Act we feel that it is the Criminal Court and Criminal Court alone that can enforce the liability enjoined by s. 6(1) of the Dowry Prohibition Act. 16. The Dowry Prohibition Act is a special statute. It has, in our opinion, created a special right by s. 6(1) for recovery of dowry, although both the giving and the taking of dowry are made punishable offences, and this Act also prescribes the remedy for recovery of the dowry. If the dowry is not transferred despite order of the Court (meaning Criminal Court) made under s. 6(3-A), the same may be realised by following the procedure for realisation of fines. This appears clearly to be the law arising from the provisions of s. 6(3-A) of the Act. 17. Thus, the jurisdiction of the Civil Court to make an order for transfer of the Dowry is by clear implication barred by the provisions of s. 6 of the Act. 18. It was contended on behalf of the opposite party that since under s. 6(1) of the Act the person receiving dowry is required to hold it in trust for the benefit of the woman, a civil suit is maintainable in terms of the provision, of the Indian Trusts Act for recovery of the trust property (dowry). We are unable to accept this view. Indian Trust Act has no manner of application here. The person receiving dowry does not initially receive it as a trustee. Receiving of dowry mean, commission of an offence, and certainly no confidence is reported by the giver of a dowry in the receiver of it. We are unable to accept this view. Indian Trust Act has no manner of application here. The person receiving dowry does not initially receive it as a trustee. Receiving of dowry mean, commission of an offence, and certainly no confidence is reported by the giver of a dowry in the receiver of it. The expression hold it in trust is used in s. 6(1) of the Dowry Prohibition Act in a general sense to signify that the receiver of the dowry shall keep the property in his custody for the benefit of the woman and until he returns it to that woman. 19. It was contended on behalf of the plaintiff opposite party that even before the Dowry Prohibition Act, 1961 a woman had the Common Law right to claim return of dowry and that Dowry Prohibition Act has not created any new right in that regard. It is submitted that the Dowry Prohibition Act has only provided for a speedy and expeditious mode of recovery of dowry. The argument is that even independently of the Dowry Prohibition Act, the plaintiff can maintain the money suit in her common law right for recovery of the dowry. In para 19 of his written argument submitted to us, Learned Counsel for the opposite party relies upon the judgment reported in AIR 1959 SC page 689 (Waman Shriniwas Kini v. Rathilal Bagandas & Co.) in support of his contention that even before the Dowry Prohibition Act there was the common law remedy for recovery of dowry. We have looked into the case cited. We find that the decisions and observations of the Supreme Court in the reported judgment were on different matters. The Supreme Court nowhere in the said judgment has observed that there was or is any common law right for a bride to recover any money or property paid or given as dowry. The judgment quoted on behalf of the opposite party is not relevant to the points under consideration. We have not found any authority or law to support the proposition that even before the Dowry Prohibition Act a bride (not being a muslim) had any common law right to recover any dowry through a civil action. Accordingly, we do not accept the contention of the learned Counsel for the opposite party. 20. We have not found any authority or law to support the proposition that even before the Dowry Prohibition Act a bride (not being a muslim) had any common law right to recover any dowry through a civil action. Accordingly, we do not accept the contention of the learned Counsel for the opposite party. 20. In view of the above, the suit in question is not maintainable for recovery of the dowry allegedly given to the defendants by the father of the plaintiff. 21. It was next contended on behalf of the plaintiff opposite party that the suit is not only for recovery of the dowry alone but also for recovery of the personal belongings of the plaintiff which the defendants have retained for making wrongful gains. Therefore, it was submitted, even if the suit is not maintainable for recovery of the dowry, it is maintainable for a decree for return of the personal effects of the plaintiff or alternatively for the value thereof. Schedule 'C' of the plaint is said to contain a list of the personal belongings and the value thereof. 22. If the personal belongings referred to in the plaint do not form part of the dowry within the meaning of s. 2 of the Dowry Prohibition Act, then of course a civil action for return of those personal belongings would be maintainable. The impugned order of the learned Assistant District Judge has made no reference to those personal belongings. 23. On behalf of the petitioners it has been contended before us that those personal belongings should be treated as dowry inasmuch as the plaint does not say in any clear terms that those articles were not given at or before or at any time after the marriage. This contention of the petitioners has no force and must be rejected. Whether the articles listed in Schedule 'C' of the plaint were part of the dowry or not is a question of fact to be decided upon evidence and other materials. But, on the basis of the averments in the plaint it cannot be said that those articles are part of the dowry. Therefore, the suit is maintainable not for recovery or transfer of the dowry, but for return of the personal belongings other than dowry. 24. But, on the basis of the averments in the plaint it cannot be said that those articles are part of the dowry. Therefore, the suit is maintainable not for recovery or transfer of the dowry, but for return of the personal belongings other than dowry. 24. In the premises we modify the order of the learned Assistant District Judge by holding that in so far as the prayer for transfer or recovery of the dowry is concerned the suit is not maintainable, and consequently, the plaintiff is not entitled in the suit to any decree or order for transfer of the dowry. The plaintiff is, however, entitled to maintain the suit only in respect of her prayer for return of her personal belongings other than dowry or the value thereof and for this limited purpose the suit is maintainable. 25. The Trial Court will hear, try and dispose of the plaintiff's case only in so far as it relates to the prayer for return of the personal belonging, not being dowry and the questions incidental thereto. The parties will be at liberty to adduce evidence in regard to their contentions as to whether the properties shown in Schedule 'C' of the plaint formed or did not form part of the dowry. There shall be no order in the suit for recovery or transfer of dowry. 26. This revisional application is thus disposed of. We make no order as to costs. Sachi Kanta Hazari, J : I agree. Order modified; remanded to trial court.