Criminal Defence and Marital Litigation

Stridhan and IPC Section 406

स्त्रीधन एवं भारतीय दंड संहिता धारा ४०६
"Some girls give me jewelry
That I never thought I'd own"
— The Rolling Stones –Some Girls
Cases filed at CAW cells or at the SPUWAC are not one-dimensional, which is to say that they do not have only one complaint in them. The most common ingredient of an average CAW cell complaint is an accusation by the wife in question against her husband and in-laws of cruelty in relation to a demand or some demands for dowry. The specific details which validate or claim to validate these allegations are varied in nature, and differ from complaint to complaint. This portion is covered by IPC 498a (Dowry Cruelty).

Another common feature is that the wife accuses her husband of misappropriating her jewellery or clothes or personal effects. All such items are known as Stridhan. This includes all gifts given by the husband to his wife before they become husband and wife, that is to say before their wedding; gifts given by the husband (groom) and his family, other guests or persons, and the wife's parents to the wife at the time of wedding, and any gifts given to her after the wedding by anyone including her parents, her husband and his family, or anybody else. This may include jewellery, apartments, cars, anything. Stridhan is the exclusive property of the wife according to the Hindu Marriage Act, and this definition is by most accounts accepted by judicial authorities for other purposes too. This appears to be very unfair, and is indeed unfair unless you try to define fairness in your own terms as most people are wont to do.

Misappropriation of Stridhan by the husband's side is a crime punishable by the provision of law described in IPC Section 406 ("punishment for criminal breach of trust"). The offence itself is described in Section 405, while sections 407 to section 409 describe punishments for criminal breach of trust in certain specific relationships. The spectrum of relationships covered by these other sections include the relationship between sender and carrier of property or goods, and between an owner of property and his employee, and between owner of property and banker, and between public and public servant, and between an owner of property and his attorney or agents. While 406 prescribes 3 years simple or rigorous imprisonment, both 407 and 408 prescribe 7 years simple or rigorous imprisonment, and section 409 prescribes very serious sentences of ten years to life imprisonment. 406 can be more correctly described as "punishment for criminal breach of trust simpliciter" in the light of these undoubtedly severe sections.

There are conflicting views regarding that component of the Stridhan which has been gifted by the husband's side. Some experts say that taking back such gifts attracts only civil liability, while others maintain that this attracts IPC 406 (Criminal Breach of Trust), which is a criminal provision.

If criminal liability is attracted by the action described above, then we should all be extremely worried, because it implies that one can be jailed as a fairly direct consequence of one's own generosity and/or expression of love towards ones wife/daughter-in-law. Such an interpretation also renders 406 more dangerous than 498a for the accused, because your house can never be raided as a consequence of dowry harassment allegations, but it can in theory be raided if somebody makes cognizable allegations of misappropriation of movable property against you before law enforcement authorities. Another implication of such an interpretation is that the wealth of the family is divided ab initio, without anybody needing to sue for partition. Sadly, this interpretation does indeed appear to be the prevailing one, going by a few recent supreme court decisions, most notably in [Krishna Bhatacharjee vs. Sarathi Choudhury and Anr., 2015 SCC Online SC 1229, November 20, 2015] (Court copy of the judgement from the Supreme Court of India / Copy of the same judgement at indiankanoon.org).

Fearful husbands might justifiably ask if this means that now their houses are in danger of being raided. Raids did take place in earlier days, especially when the media fed 'anti-dowry' frenzy was at its peak. These days though one does not hear about houses being raided by the police in dowry cases. One reason for this is that police officers have learnt to become fearful of possible repercussions of raiding houses of people who are solid members of society, as is the case in 99 percent of dowry allegations. Another reason is that seizure of ornaments can lead to a very serious administrative headache, and –in case of loss or misplacing or theft of valuable objects from police storage– can conceivably cause future accusations of criminal breach of trust against the specific officer investigating an offence of the same description! A hidden reason is that if today the house of a member of the public is raided as a consequence of allegations made by his daughter-in-law then tomorrow the house of a policeman or a police chief or an industrialist or a minister can be subjected to the same treatment. Disputes over purity of gold and diamonds might also arise during court proceedings. This is quite obviously something that people belonging to the influential jewellery trade do not wish to get dragged into.

Coming back to components of stridhan, any gifts given by the wife's side to the husband's side are to be returned if and when the marriage collapses. If these gifts are deemed by the court to have been given "in consideration of marriage" (as a price for marriage), then this is considered as dowry, and the husband's side is liable under the Dowry Act for imprisonment and /or a fine for demanding such items or accepting them.

The way out of this whole problem lies at the beginning of your marriage. Take no gifts and give no gifts, and get this fact recorded by a minimum of four witnesses. After the wedding also, keep a record of all gifts given by you or your family to your wife, and do not give too many gifts until you are sure that she is a permanent member of your family and that she has started considering the joys and sorrows of your family as her own joys and sorrows. However, these days divorces are occurring after even 20 years of marriage. It is very difficult under such conditions to make a correct assessment as to when the wife finally becomes a permanent and loving member of her in-laws' family, and when she starts considering their joys and sorrows as her own joys and sorrows.

Another provision that commonly is included in complaints at the CAW cell or the SPUWAC is Section 34 of IPC (Common Criminal Intention). The husband's family is accused of having a common intention in the commission of crimes under Section 498a and Section 406 IPC.

Any wife who makes allegations under all three sections of IPC has to prove irrefutably in all four courts from the trial court to the Supreme Court that all her allegations are true, to get legal relief. Similar is the case if she makes allegations under one or two sections only. The accused husband also has to prove that his wife is making nonsensical claims if he wishes to get legal relief.

Criminal Defence and Marital Litigation





Written by
Published by Manish Udar

Page Created on
Last Updated on 02nd February 2016


36 comments