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2010 DIGILAW 391 (RAJ)

Raju @ Raj Kumar v. State of Rajasthan

2010-02-18

M.N.BHANDARI

body2010
Hon'ble BHANDARI, J.—Heard learned counsel for the parties and perused the record of the case. 2. A case under Section 304-B of Indian Penal Code (for short `I.P.C.') has been registered and charge-sheet has been filed against the accused petitioners. 3. Learned counsel for the petitioners submits that marriage took place almost 10 years back from the date of occurrence, thus a case under Section 304-B IPC is not made out against the petitioners. Hence, on that ground alone, the petitioners are entitled for grant of bail. A reference of the judgment of this Court in the case of Heera Ram vs. State reported in 2000 Cr.LR (Raj.) 505 has been given to show that `Muklava' is not considered to be a date of marriage for the purpose of reckoning period of 7 years in view of the provisions of Section 304-B IPC and the case of the present petitioners is covered by the aforesaid judgment. 4. Coming to the merit of the case, it is stated that deceased committed suicide, which is clear from the fact that door of the room was found locked from the inside. The deceased poured kerosene on her and thereupon due to fire, she was burnt to the extent of 90%. Thus, looking to the aforesaid, even on merit, the petitioners are entitled for grant of bail. 5. On the other hand, learned Public Prosecutor as well as learned counsel for complainant have opposed the bail application and submit that date of marriage has to be reckoned from the date of `Gauna', which took place almost one and half year back from the date of occurrence. In view of the aforesaid, a case has rightly been registered and charge-sheet under Section 304-B IPC has also rightly been filed. 6. To support the arguments, a reference of the judgment of this Court in the case of Yatesh Kumar vs. State of Rajasthan reported in 1999(1) R.R.C. 227 = RLW 1998(3) Raj. 1881 has been given. In the aforesaid case also, the issue for determination of period of 7 years was considered from the date of "Gauna" and while subsequent judgment was given by this Court, earlier judgment referred to above was not even considered. The deceased was at the age of 18-19 years at the time of occurrence. 1881 has been given. In the aforesaid case also, the issue for determination of period of 7 years was considered from the date of "Gauna" and while subsequent judgment was given by this Court, earlier judgment referred to above was not even considered. The deceased was at the age of 18-19 years at the time of occurrence. Thus, marriage was not even permissible at the age of 8 years if story taken up by the accused petitioners is accepted that the marriage took place 10 years back. 7. Reference of Section 5(iii) of the Hindu Marriage Act has also been given to show that marriage cannot take place when girl has not attended the age of 18 years. In fact, it is only after "Gauna" that marriage takes place and girl comes in relation to the boy. Hence, looking to the aforesaid, first ground raised by counsel for petitioners cannot be accepted. 8. Coming to the merits of the case, it is stated that occurrence took place almost one and half year of the marriage (Gauna), thus as per the provisions of the Evidence Act, presumption goes against the petitioners. The evidence collected during investigation clearly shows that room was not locked from inside. Thus, in the manner occurrence took place and a young lady died therein, the petitioners may not be granted bail. 9. I have considered the rival submissions of the parties and perused the record of the case carefully. 10. The fist issue is as to whether a period of 7 years can be counted from the date when "Gauna" took place or it should be from the date when symbolic marriage took place. The provisions of Section 304-B of IPC attracts when occurrence takes place within a period of 7 years of marriage. In view of the aforesaid, it is necessary to determine the issue as to from which date period of 7 years is to be taken. There exists two judgments of this Court on the aforesaid issue. The first judgment is in the case of Yatesh Kumar (supra) wherein period of 7 years have been taken from the date of "Gauna" whereas in the case of Heera Ram (supra), period of 7 years were not reckoned from the date of "Muklava". There exists two judgments of this Court on the aforesaid issue. The first judgment is in the case of Yatesh Kumar (supra) wherein period of 7 years have been taken from the date of "Gauna" whereas in the case of Heera Ram (supra), period of 7 years were not reckoned from the date of "Muklava". In the case of Heera Ram (supra), earlier judgment of Yatesh Kumar was not considered, however, therein reason for taking 7 years period from the date of marriage is based on Sections 5 & 7 of the Hindu Marriage Act. 11. Before further discussing the aforesaid two judgments, it is necessary to first refer to the provisions of Section 304-B of IPC, which is quoted hereunder:- "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." 12. Perusal of the aforesaid provision reveals that it relates to demand of dowry within a period of 7 years of marriage and consequential occurrence as narrated in the aforesaid provision. The word `marriage' is thus of significance. Before coming to word `marriage', it is necessary to know as to why amendment was made in the provisions of Indian Penal Code so as to bring provisions of Section 304-B. The object is to punish those who causes occurrence of the nature given under the provisions of Section 304-B of IPC on account of demand of dowry within a period of 7 years of marriage. It was seen that after marriage when bride comes to husband's place, then many times, bride is being harassed on account of dowry because in most of religious when actual marriage takes place, the girl is given many articles by her parents and even in some cases when marriage takes place without dowry, immediately after the marriage, the bride is teased or harassed on account of insufficient dowry and harassment goes to the extent of even causing death of the bride. To penalize such person, who causes occurrence, aforesaid provision was brought by way of amendment in the IPC. In the aforesaid background and object behind it, the meaning of word `marriage' is to be looked into. In many religions, marriage takes place but girl does not come in relation of boy, that used to be symbolic marriage and actual marriage takes place subsequently, which is called as `Muklava' or `Gauna'. In view of the aforesaid, period of 7 years if reckoned from the date of symbolic marriage, the very object for which amendment under I.P.C. was brought is frustrated. In fact, harassment or occurrence of the nature given under the provisions of Section 304-B IPC generally takes place when bride comes to the husband's place, thus to give real meaning and to make interpretation of the provision in consonance to the object, period of 7 years has to be reckoned from the date of `Gauna' i.e., the actual marriage. The word `marriage' used under Section 304-B IPC is not in reference to Hindu Law only and in fact, provision is applicable to all religions, thus for different religion, meaning of marriage cannot be given differently. In fact, word `marriage' has to be given only one meaning. For that purpose, guiding factor cannot be Hindu Law, but interpretation of word `marriage' has to be given in reference to all the religions and for the object for which amendment has been brought. If the facts of this case are taken note of, then marriage takes place when the girl was at the age of 8 to 9 years. This is not permissible even as per Hindu Law. If the interpretation given in the case of Heera Ram (supra) is taken into consideration, then it will recognize a child or illegal marriage, which cannot be said to be correct interpretation as Section 5(iii) does not permit a child marriage. The fact, however, remains that if seven steps ceremony have taken place while the child marriage took place, can it means to be marriage at that stage or be considered said marriage at the stage when bride attained the age of 18 years. In my opinion, when a girl cannot marry below the age of 18 years, then even seven steps ceremony took place in childhood, it cannot be said that marriage becomes complete and binding. In my opinion, when a girl cannot marry below the age of 18 years, then even seven steps ceremony took place in childhood, it cannot be said that marriage becomes complete and binding. If the interpretation is taken otherwise, then it would mean recognition of child marriage. It is then not legal marriage as per provisions of the law. The word `marriage' as used under the provisions of Section 304-B IPC has to be given an independent meaning and thus should not be guided by the provisions of any other law. In the case of Yatesh Kumar (supra), learned Single Judge has rightly taken the view that real marriage takes place when "Gauna" is performed. It is the stage when girl comes to her husband's place and actual marriage takes place at that stage. A symbolic marriage cannot be considered to be a real marriage for attracting the provisions of Section 304-B IPC otherwise very object of making amendment is frustrated. In the case of Yatesh Kumar (supra), this Court has further taken note of the fact that sexual intercourse can take place only after "Gauna" and not on symbolic marriage. This is again an important aspect of the matter to give correct interpretation of the word `marriage' as used under the provisions of Section 304-B IPC, hence I am of the opinion that period of 7 years for attracting Section 304-B IPC is to be counted from the date of Gauna". 13. So far as the conflict of the view between the case of Yatesh Kumar and Heera Ram, the matter could have been referred to the Larger Bench, but for the reason that in the subsequent judgment of Heera Ram (supra), the earlier judgment of Yatesh Kumar (supra) has not been considered, the subsequent judgment cannot be held to be binding. So far as the reference of the judgments of the Hon'ble Apex Court therein are concerned, those are not in reference to Section 304-B of IPC. and otherwise meaning of word `marriage' as used under Section 304-B IPC cannot be determined based on the provisions of the Hindu Law as demand of dowry and occurrence under Section 304-B IPC can take place in any other religion also, thus word `marriage' has to be given one meaning in respect of all the religions. and otherwise meaning of word `marriage' as used under Section 304-B IPC cannot be determined based on the provisions of the Hindu Law as demand of dowry and occurrence under Section 304-B IPC can take place in any other religion also, thus word `marriage' has to be given one meaning in respect of all the religions. The decision in the case of Heera Ram (supra) cannot be made applicable in respect of all the religions. This is more so when word `marriage' has not been defined in IPC and thus cannot be interpreted based on the provisions of Hindu Law only. Case of Yatesh Kumar (supra) was decided earlier, thus it is having binding force as such there is no need to refer the matter to the Larger Bench. 14. Coming to the merit of the case, it is seen that occurrence took place after one and half year of `Gauna' when the girl was at the age of 18-19 years and it is a case where out of fire girl sustained 90% burn injury and died. Thus, after considering the rival submissions of the parties and without expressing any opinion on merits of the case, which may otherwise affect the outcome of the trial, but looking to the facts of this case, at this stage, I am of the view that the petitioners are not entitled for grant of bail and accordingly their bail application is dismissed.