Prosecution U/S.406 IPC Of Every Member Of Family Can’t Be Sustained Merely On Basis Of General Allegation Of Non-Return Of Stridhan: Delhi High Court

The High Court was considering a Petition filed under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) seeking quashing of an FIR registered under Sections 498A and 406 read with Section 34 of the Indian Penal Code, 1860 (IPC), and all consequential proceedings emanating therefrom.

The Single Bench of Justice Madhu Jain held, “The principle emerging from the aforesaid decision is that a general allegation of non-return of stridhan cannot sustain a prosecution under Section 406 of IPC against every member of the matrimonial family. The complaint and the charge-sheet must disclose the entrustment or dominion attributed to the particular accused and the subsequent dishonest dealing with the entrusted property. Even if the prosecution material is accepted in its entirety, those facts are not disclosed qua the petitioner in the present case. Permitting the charge under Section 406 of IPC to continue against him would, therefore, amount to an abuse of the process of Court.”

Advocate Rajeev Sirohi represented the Petitioner while Additional Public Prosecutor Manoj Pant represented the Respondent.

Factual Background

The petitioner, a medical practitioner and a citizen of the United States of America, and the second respondent were introduced to each other in April 2007, and their marriage was solemnised. The marriage was registered. No child was born from the wedlock. The petitioner husband thereafter returned to the United States, while the respondent continued to reside in India. A spousal visa application was thereafter pursued to enable the respondent wife to join the petitioner in the United States. The United States Embassy declined to issue the visa and called for further material concerning the relationship between the parties. The visa record further included a refusal worksheet which recorded the ineligibility of the respondent wife under the category ‘Alien Smuggling’.

The petitioner instituted annulment proceedings before the Circuit Court of Greene County, Missouri, Family Court. The said Court annulled the marriage on the ground of fraud after recording findings relating to the respondent wife’s criminal record and her inability to enter the United States. The petitioner subsequently instituted a petition under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (HMA) before the Principal Judge. Notice in the aforesaid petition was issued, and the said petition was disposed of as withdrawn.

In 2019, the second respondent wife lodged a Complaint before the Crime Against Women Cell (CAW), West District and alleged matrimonial cruelty, demands for cash and a vehicle, a further demand of approximately Rs. 16-17 crores for purchase of land and establishment of a hospital, as well as non-return of jewellery stated to have been entrusted to the petitioner's sister-in-law. A criminal case then came to be registered under Sections 498A and 406 read with Section 34 of the IPC.

Reasoning

The Bench noticed that the wife had alleged that during the husband’s visit to Delhi in April 2012, he stayed at her Delhi residence for three to four days, reiterated the demand of Rs. 16–17 crores, and forced her to engage in unnatural sex. She had further alleged that, in December 2012, while she and her mother were on a holiday in Malaysia and Singapore, the petitioner called and abused her when she stated that the money being demanded by the petitioner was not available.

According to the Bench, the allegations at their face value disclosed a prima facie case of cruelty and harassment by the petitioner. “Whether the alleged incidents occurred, whether the monetary transactions bore the character attributed to them, and whether respondent No. 2 would ultimately be able to prove the allegations are all matters and questions of evidence which cannot be determined at this stage by preferring the petitioner’s version over that of respondent No. 2”, it added.

It was further noted that the husband’s assertion that the parties did not meet after December 2011 was directly disputed by the specific allegation concerning his visit to Delhi in April 2012. The Bench also explained that the communications were described as an apology and an assurance of reconciliation. They had not been alleged to constitute independent acts of cruelty and therefore did not furnish a fresh starting point under Sections 469 or 472 of the CrPC.

The Bench further explained that Section 473 of CrPC permits cognisance even after expiry of the prescribed period of limitation under Section 468 of CrPC where the delay has been properly explained or where the Court considers it necessary to do so in the interests of justice. The Bench made it clear that a general allegation of non-return of stridhan could not sustain a prosecution under Section 406 of the IPC against the husband.

“The fact that the allegations under Section 498A of IPC survive does not preclude the Court from quashing the prosecution for the offence under Section 406 of IPC The permissibility of offence-wise or partial quashing was authoritatively settled by the Supreme Court in Ishwar Pratap Singh v. State of U.P., (2018)...”, it added.

The Bench held that the allegations constituting the offence under Section 498A of IPC would be considered by the Trial Court in accordance with law. “The prosecution under Section 406 of IPC, however, cannot be sustained against the petitioner and is liable to be quashed to that limited extent”, it held.

The Bench thus quashed the FIR, the charge-sheet arising therefrom and all consequential proceedings qua the petitioner only insofar as they related to the offence punishable under Section 406 of IPC. “The FIR, the charge-sheet and the consequential proceedings shall continue against the petitioner in respect of the remaining offence i.e. Section 498A read with Section 34 of IPC, in accordance with law”, it held while disposing of the application.

Cause Title: A v. State (Neutral Citation: 2026:DHC:7904)

Appearance

Petitioner: Advocates Rajeev Sirohi, Puneet Narula

Respondent: Additional Public Prosecutor Manoj Pant, Advocates Mahavir Sharma, Neha Bisht

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