Citations: Inder Raj Mailk & Ors. Vs Sunita Mailk, 1986 CriLJ 1510
Date of Judgement: 30/01/1986
Equivalent Citations: 1986 CriLJ 1510, 1986 (2) Crimes 435, 1986 RLR 220
Case No. Criminal Misc. (Main) 979 of 1985
Case Type: Writ Petition
Petitioner: Inder Raj Mailk and Ors.
Respondent: Sunita Mailk
Bench: Hon’ble Mr. Justice G Luthra
- Indian Penal Code, 1980; Sections – 109, 327, 406, 498A, 506
- Dowry Prohibition Act, 1961; Section 4
- Constitution of India; Article 14, 20(2)
- Criminal Procedure Code, 1973; Sections – 244, 245, 246
- Smt. Nagawwa Vs Veeranna Shivalingappa Konjalgi & ors., 1976 AIR 1947, 1976 SCR 123;
- L.V. Jadhav Vs Shankarrao Abasaheb & ors. 1983 AIR 1219, 1983 SCR (3) 762;
- Pratibha Rani Vs Suraj Kumar & Anr. 1985 AIR 628, 1985 SCR (3) 191.
- Ram Pukar Thakur and Ors. Vs The State of Bihar AIR 1974 SC 284, 1974 CriLJ 335, (1974) 3 SCC 664, 1974 (6) UJ 119 SC
- Sunita Mailk and Inder Raj Mailk, Accused No.1 were married on 8th February 1981. Accused No. 2 is the mother and Accused No. 2 and 4 are the brothers of Inder Raj Mailk, Accused No. 1.
- With a view to extort more and more money and articles, the Complainant after marriage was maltreated, beaten, starved, and abused, it was done specially on the festivals.
- On 19th February 1982, she was tortured mentally and physically to the extent that she fainted in her matrimonial, yet no doctor was consulted. On 25th August, 1982 she gave birth to a child at Sehgal Nursing Home.
- Sunita Mailk was threatened by Accused Nos. 2 to 4 to kill her and forcibly take away the child unless she forced her parents to sell their property at Hauz Qazi.
- So, it was observed that the responded i.e., Sunita Mailk was treated with the cruelty and tortured mentally as well physically by the accused No.1 and his in – laws
- Sunita Malik was harassed with a view to force her or any related person to meet illegal demand for movable and immovable property.
- Whether the Section 498A of Indian Penal Code, 1908 and Section 4 of Dowry Prohibition Act, 1961, attract Double Jeopardy mentioned under Article 20(2) of the Constitution?
- Whether the Section 498A of Indian Penal Code, 1908 is ultra vires or not?
The counsel for Petitioners contented that:
- Petitioner contented that Section 498A of Indian Penal Code, 1908 came into force on 25th December 1983, which was the late of Criminal law, (Second Amendment Act) 1983.
- That the Complainant even according to her allegations had not been residing in the matrimonial home after 20th February 1982, that therefore there could not be commission of any offence under Section 498A of Indian Penal Code, 1908 against her and that hence the accused could not be summoned in respect of commission of the said offence.
- Petitioner also contented that Section 498A of Indian Penal Code, 1908 is ultra vires the Constitution on the following two grounds:
- Section 498A, Indian Penal Code, 1908 gives an arbitrary power to the police as well as to the court. Thus, offending against the provisions of Article 14 of the constitution.
- Section 498A Indian Penal Code, 1908 offends against the principle of double jeopardy’. So, demand of dowry or any property is punishable under Section 4 of Dowry Prohibition Act, 1961 also Section 498A of Indian Penal Code, 1908.
Contention of Respondent
The counsel for Respondent’ contented that:
Sunita Mailk was treated with cruelty by her husband and in-laws under Section 498A of Indian Penal Code, 1908 and harassed with a view to force for illegal demand for movable and immovable property under Section 4 Dowry Prohibition Act, 1961.
- In this case it was held that the provision of Section 498A, of Indian Penal Code is not ultra vires and it’s constitutional. It doesn’t invoke double jeopardy with the provision of Section 4 of Dowry Prohibition Act.
- Hence an accused can be prosecuted under Section 4 of Dowry Prohibition Act and Section 498A of Indian Penal Code, 1908.
Both petitions shall stand so as disposed off.
- Section 498A of Indian Penal Code, 1908 does not create any situation for double jeopardy. That provision is separable from Section 4 of the Dowry Prohibition Act. Because after the enactment mere demand of dowry of punishable and existing element of cruelty isn’t necessary.
- Section 498A of Indian Penal Code, 1908 deals with aggravated sort of the offence and punishes such demands of property or valuable security from the wife or her relative as are including cruelty, to her.
- Hence a person can be prosecuted in respect of both the offences punishable under Section 4 of the Dowry Prohibition Act and Section 498A of Indian Penal Code, 1908.
In light of the facts of the case the petitioner respectfully argues that Section 498A of Indian Penal Code, 1908 and Section 4 of Dowry Prohibition Act does not create a condition of double jeopardy as the court interpreted that after the enactment Section 498A of Indian Penal Code, 1908 has dealt with aggravated form of the offence. As a result, person can be charged under Section 4 of the Dowry Prohibition Act and Section 498A of Indian Penal Code, 1908.
Drafted By: Samanta Rao, CLS – Gitarattan International Business School
Published On: September 21, 2021 at 14:18 IST