Saturday 20 July 2024

Bombay HC: Husband Convicted For Causing Dowry Death Cannot Inherit Deceased Wife's Property Under Hindu Succession Act

 The position in law which thus emerges is that, the disqualification incorporated in section 25 of the Hindu Succession Act, 1956, is based on public policy that a person who causes death of the person whose property he seeks to inherit, cannot be permitted to take advantage of his own felonious act. The disqualification of the murderer to inherit the property of the person he murdered, even before statutory recognition, was

premised on the principles of justice, equity and good conscience.

The avowed object to disqualify such a person was to disallow a

person to accelerate his inheritance by causing death of the person whose property he seeks to inherit. {Para 19}

20. Secondly, the expression, “a person who commits the murder

or abets the commission of murder,” is required to be so construed as to advance the aforesaid object. The term, “murder” has not been defined in the Hindu Succession Act, 1956. The definition of the offence of murder under section 300 of the Penal Code which is a technical definition for imposing punishment prescribed under section 302 of the Penal Code cannot be readily imported to construe the term, “murder” under section 25 of the Hindu Succession Act, 1956. It is not the correct approach to interpret the term used in one enactment dealing with inheritance and succession by importing the definition of a similar term used in a Penal Statute. Plainly Hindu Succession Act, 1956 and the Penal Code, 1860 do not operate in the same field. Therefore, the term, “murder” ought to receive its ordinary and common parlance connotation. If so construed, it implies causing the death of the person or abetting the causing of death of the person, whose property is sought to be inherited, by the person who is alleged to have incurred the disqualification.

21. Thirdly, the particular section of the Penal Code under which the person accused of causing death is convicted, is not of decisive significance. Nor the factum of conviction, as such, is peremptory. Conversely, even if a person is convicted for an offence punishable under sec.302 of the Penal Code that, by itself, may not sustain the disqualification by a Civil Court under sec.25 of Hindu Succession Act, 1956. The factum of the person, who has allegedly incurred disqualification, having committed the murder of the deceased has to be decided independently on evidence before the Civil Court.

22. In the light of the aforesaid principles, reverting to the

controversy at hand, in my considered view, the Department is not justified in questioning the competence of the petitioner on the sole ground that the husband of the deceased has been convicted for the offence punishable under section 304-B and not 302 of the Penal Code. In the context of the disqualification under section 25 of the Hindu Succession Act, 1956, there does not appear much qualitative difference in the offences punishable under section 302 and 304-B.

28. The conspectus of the aforesaid consideration is that a person who has caused the dowry death of a woman, falls within the dragnet of disqualification prescribed under section 25 of the Hindu Succession Act, 1956, if the said factum is proved to the satisfaction of the Civil Court. Therefore, the Department was not justified in questioning the competence of the petitioner on the count that the husband of the deceased has not been convicted for the offence punishable under section 302 but under section 304-B of the Penal Code. The Department’s requisition thus stands dispensed with.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

TESTAMENTARY AND INTESTATE JURISDICTION

TESTAMENTARY PETITION NO.807 of 2020

Pawan Jain Vs Sejal Anurag Jain ...Deceased

CORAM : N. J. JAMADAR, J.

PRONOUNCED ON : JULY 02, 2024

1. Heard the learned counsel for the parties.

2. A question of general importance as to whether a person who

has caused dowry death within the meaning of section 304-B of the Indian Penal Code, 1860 (Penal Code) incurs disqualification to inherit the property of woman, who met the dowry death, under section 25 of the Hindu Succussion Act, 1956, arises for

consideration in this petition.

3. The background facts in which the aforesaid question crops

up for consideration can be stated in brief as under:-

3a. Ms. Sejal Anurag Jain, the deceased, was the daughter

of the petitioner. Marriage of the deceased was solemnized

with Anurag Jain, on 6th May, 2013. The deceased passed

away on 6th February, 2014 at Noida, Uttar Pradesh. The cause

of death was excess bleeding and multiple injuries, as noted

during the course of postmortem examination.

3b. The petitioner preferred a petition for grant of a

succession certificate in respect of certain debts and

securities belonging to the deceased. In paragraph 4 of the

petition, the petitioner furnished the particulars of the heirs

and next-of-kin left behind by the deceased including Anurag

Jain, the husband, Swatantrakumar Jain, father in law, and

Kamla Jain, mother in law, (Serial Nos. 1 to 3).

3c. The petitioner averred the abovenamed heirs mentioned

at serial Nos. 1 to 3 in the table i.e. husband, father in law and

mother in law of the deceased, were disqualified to inherit the

property of the deceased as they have been convicted for the

offences punishable under sections 304-B, 498-A of the Penal

Code and sections 3 and 4 of the Dowry Prohibition Act, 1961

by a judgment and order dated 31st July, 2019 passed by the

Court of Session at Gautam Buddha Nagar, Noida, Uttar

Pradesh. Thus, the husband and in-laws of the deceased being

directly responsible for the death of the deceased were barred

from inheriting the property of the deceased.


3d. As the mother of the deceased, Kiran Jain mentioned at

Serial No. 5 in the table, expired during the pendency of this

petition, the petitioner being the father, is the only surviving

legal heir of the deceased.


4. On 14th June, 2023, the officer on special duty, Testamentary

Department raised an objection to the tenability of the petition at

the instance of the petitioner/ father of the deceased questioning his

capacity as the husband of the deceased was alive and, in the

opinion of the testamentary department, the person convicted for

an offence punishable under section 304-B of the Penal Code,

cannot be equated with a murderer, who is disqualified under

section 25 of the Hindu Succussion Act, 1956.

5. To appreciate the controversy in a correct perspective, it may

be apposite to extract the observations in paragraphs 4 and 5 of the

order dated 14th June, 2023 which articulate the reasons which

weighed with the Department. They read as under:-

4] Hence, in a present petition, upon perusal of the copy

of the judgment, produced at Exhibit-B, it appears that

the husband of the deceased and his relatives were held

guilty for above referred offences under Section 304-B of

the Penal Code is in respect of the conduct of the persons

and held them liable for such death defined in the said

section. However, section 299 of the Penal Code provides

definition of murder. As per the said provision, direct act

of the person is required to cause bodily injury which

resulted into a death of said person. Even sec. 107 of the

Penal Code and other sections denotes that there must

be a criminal agreement between the persons to commit

a wrong, that is murder of the person. However, section

304-B of IPC, does not have effect of the definition of the

“murder” but it relates to the dowry death. Hence, at

this juncture, I cannot travel beyond the definition given

in the statute.

5] Submission of the learned advocate for the petitioner

is that husband of the deceased, who is responsible for

the death of the deceased. No doubt, submission is not

groundless. However, such interpretation of the statute

cannot be done by this office. It is a jurisdiction of the

Court to interpret the statue. Hence, in present petition,

unless fact accepted that husband of the deceased

disqualified under Section 25 of the Hindu Succession

Act, 1956, capacity of the petitioner to present

petitioner comes in question. Hence, question regarding

the capacity of the petitioner arises. Therefore,

petitioner is called upon to establish capacity first,

before proceed ahead with the petition.


6. When the petitioner moved this Court, questioning the

correctness of aforesaid requisition, by an order dated 25th July,

2023, this Court considered it appropriate to appoint Mr. Anuj

Desai, learned Amicus Curiae, to assist the Court in deciding the

legal issue, noted above.

7. I have heard Mr. Neeraj Patil, learned counsel for the

petitioner, and Mr. Anuj Desai, learned Amicus Curiae at some

length. With the assistance of the learned counsel, I have perused

the material on record including the judgment passed by the

learned Additional Session Judge, Gautam Buddha Nagar, Noida,

Uttar Pradesh convicting the husband and in-laws of the deceased

for the offences punishable under sections 304-B and 498-A of the

Penal Code and sections 3 and 4 of the Dowry Prohibition Act, 1961.

8. Evidently, there is not much controversy on facts. The

capacity of the petitioner/ father of the deceased is questioned on

the premise that since the husband of the deceased is alive and has

been convicted under section 304-B and 498-A of the Penal Code

and not found guilty of the murder of the deceased, the

disqualification under section 25 of the Hindu Succession Act, 1956

is not attracted.

9. Mr. Neeraj Patil, learned counsel for the petitioner submitted

that the Department’s aforesaid view is erroneous. The particular

section of the Penal Code under which an heir of the deceased is

convicted is not material. The question that ought to be posed by

the Court is, whether the heir, who is alleged to be disqualified, has

caused the death of the deceased or abetted the causing of the death

of the deceased.

10. Mr. Anuj Desai, learned Amicus Curiae, submitted that the

Department has taken a very technical and constricted view of the


matter. It is not the requirement of law that the person who has

allegedly incurred the disqualification, must be convicted for an

offence punishable under section 302 of the Penal Code. The

definition of “murder” under section 299 of the Penal Code can not

be imported while appreciating the question of disqualification on

the said count. Mr. Desai strenuously submitted that the

disqualification, even before the introduction of section 25 of the

Hindu Succession Act, 1956, was based on the principles of justice,

equity and good conscience. The underlying principle was that a

person should not benefit from his own wrong.

11. Viewed through this prism, according to Mr. Desai, learned

Amicus Curiae, the fact that the heir who is alleged to be

disqualified has not been convicted for the offence punishable under

section 302 of the Penal Code, and has been convicted for a lesser

offence, or for that matter, has not at all been convicted of the

offence, is not of decisive significance. The term, “murderer” has to

be interpreted in the light of the object of incorporating the

disqualification for a murderer under Hindu Succession Act, 1956.

12. Mr. Desai submitted that the controversy is no longer Res

Integra and the position in law has been settled by a long line of


decisions. Mr. Desai invited the attention of the Court to a decision

of Andhra Pradesh High Court in the case of Nannepuneni

Seetharamaiah and Ors. vs. Nannepuneni Ramakrishnaiah

1

; a

decision of learned single judge of this Court, in the case of Minoti

vs. Sushil Mohansingh Malik and Anr.

2

; a decision of Karnataka

High Court, in the case of G.S. Sadashiva and Anr. vs. M.C.

Srinivasan and Ors.3

. Reliance was also place on the decision of the

Supreme Court in the case of Vellikannu vs. R. Singaperumal and

Anr.

4

.

13. In the case of Nannepuneni Seetharamaiah (supra), a learned

single judge of Andhra Pradesh High Court in the backdrop of the

accusation that the plaintiff therein had committed murder of his

father and parental uncle enunciated that, the fact that the plaintiff

therein was convicted for the offence punishable under section 326

read with 34 of the Penal Code while acquitting him of the charge

for the offence punishable under section 302 read with 34 of the

Penal Code, did not make any significant difference in the matter of

disqualification. The observations in paragraphs 13, 14 and 16 are

material and hence extracted below:

1 AIR 1970 AP 407.

2 AIR 1982 Bom 68.

3 ILR 2001 KAR 4574.

4 (2005) 6 Supreme Court Cases 622.


13] It is in that view that the plaintiff, who was the 1st

accused in that case, was convicted along with

another (A-3) under Section 324 read with Section

34, I. p. c. Basing on these findings, it is contended by

Mr. Madhavarao for the plaintiff that as the plaintiff

was not convicted for the murder of his father, the

disqualification prescribed by Section 25 and 27 of the

Hindu Succession Act cannot be made applicable to

him. In this connection, it may be pertinent to notice

 thatSection 25 only ways that a person who commits

murder or abets the commission of murder shall be

disqualified form inheriting the property of the person

murdered, but not that a person must be convicted of

murder or of abetment of murder, to be disqualified

form inheriting the property of the person murdered.

The principal charge, against the plaintiff and three of

his associates, was that all of them, in furtherance of

the common intention of all, attack the two deceased

and inflicted injures which proved fatal. The learned

Judges held that murder was clearly committed

within the meaning of Section 300, I. P. C. having

regard to the injuries found by the Medical Officer who

conducted the autopsies on the two deceased persons.

if the learned Judges did not convict the plaintiff and

another under Section 302 read with Section 34, I. P.

C. it was for the reason that t he was given the benefit

of doubt arising from the difference between the

evidence of P. Ws. 1 and 2 and that of P. Ws. 3 and 4 as

to what he intended initially when the attack was

launched on his father and another. It is for that

reason that this Court held that the plaintiff and

another only intended causing hurt to the deceased

and their men and that the other two accused, by

reason of their overt acts, rendered themselves liable

to punishment under Section 302, I. P. C.

14] In order to apply the disqualification under

Section 25 of the Hindu Succession, Act, it is not

necessary in may opinion that a person who

committed the murder or abetted the commission of

murder must also have been convicted of the offence

of murder or of abetment of murder under Section

302, Indian Penal Code. That the plaintiff had

participated in the murderous attack on his father

 along with A-2 and A-4 in that case, who were

convicted of murder, is not in dispute. It is because of

the nature of injures inflicted by him on his father and

the variations found in the version of the direct


witnesses that this court found it safe to convict him

 under Section 324, I. p. C. Section 25 of the Hindu

Succession Act does not contemplate punishment for

murder not display the murderer from inheriting the

property of the murdered. the application of this

provision ought not to be approached from the point of

view of punishment for murder. This court has held

that murder was clearly committed within the

meaning of Section 300 I. P. C. The fact that he was

given the benefit o doubt arising out of the conflicting

versions of two witnesses and convicted under Section

324, I.P. C. does not in any way absolve him from the

heinous crime to which he had made his own infamy

contribution. Section 25 is introduced in the Hindu

Succession act as a matter of high public policy based

on principles of justice, equity and good conscience to

make it absolutely impossible for a murderer who

deserves to be handed or to be shut behind the prison

bars for life, to derive advantage or beneficial interest

from the very heinous act committed by him.

… ……

16] The Privy Council, in Kenchava v. Girimallappa

Channappa, 51 Ind App 368 = (AIR 1924 PC 209) also

held that even if the Hindu Law did not disqualify the

murderer form succeeding to the estate he was so

disqualified upon the principles of justice, equity and

good conscience, Statutory effect has been given to

the aforesaid view by introducing the two Ss. 25 and

27 in the Hindu Succession Act on grounds of public

policy and principles of justice and morality.

Therefore, the disqualification's prescribed by Section

25 and 27 come into play and operate against the

plaintiff inheriting or deriving any beneficial interest

in the property possessed or held by this father. I

therefore find no merits in the cross-objections and

accordingly dismiss them. In the result, judgment and

preliminary decree passed by Court below are set

aside & appeal allowed and suit dismissed, with costs.

14. In the case of Minoti (supra), a learned single judge of this

Court was confronted with the question as to whether the husband

(defendant No. 1 therein) who was convicted for an offence

punishable under section 304 Part-I of the Penal Code for having

committed the death of his wife, was not disqualified under section

25 of the Hindu Succession Act, 1956. Answering the question in

the negative, this Court held that, in the facts of the said case, it

could be safely inferred that defendant therein had committed

murder of his wife within the meaning of said expression as used in

section 25 of the Hindu Succession Act, 1956 and therefore

disqualified from inheriting the property of the deceased. In the

said case, it was, inter alia, observed that the definition of murder

under section 299 of the Penal Code was not required to be

imported to construe the expression ‘murderer’ under section 25 of

the Hindu Succession Act, 1956. The observations in paragraphs 7

to 11 are material and hence extracted below:-

7] It is an admitted position that the word "murder" is

not defined in the Hindu succession Act, It appears

that S. 25 was introduced in the Hindu succession Act

practically to give statutory sanction to the view

expressed by the privy council in kanchawa v.

Girimallappa, AIR 1924 PC. 209 while dealing with

such a contention the privy Council; observed that

there is much to be said in support of the principles of

jurisprudence which can be traced in Hindu Law,

which would warrant in inference that a man cannot

take advantage of his own wrong. The privy council

further observed that this principle is the principle of

equity, justice and good conscience, which disqualifies

and excludes the murderer from inheriting any

interest in the property of the person murdered. The

privy council also held that the murderer in such case

should be treated as non-existent and not as one who

forms the stock for fresh line of descent. Thus, it

appears that S.s 25 and 27 were enacted by the

legislature to give statutory approval to the principles

of equity, justice and good conscience which

disqualifies murder from inheriting the property of


the person murdered . Therefore, the words and

phrases used in S. 25 will have to be construed in the

light of these principles viz. The principles of equity,

justice and good conscience. This is also the well

established principle of public policy.

8] As observed by the privy council in Lawrence

Arthus Adamson v. Melbourne and Metropolitan

Board of Works, AIR 1929 PC 181 :

 "It is always unsatisfactory and generally unsafe to seek

the meaning of words used in an Act in the definition

clauses of another statute dealing with matters more or less

cognate even when enacted by the same legislature.”

The supreme court has also expressed the similar

view in the Board of Muslim Wakfs, Rajasthan v.

Radha Krishan, and has observed that (at p. 295):

"It is not a sound principle of construction to interpret

expressions used in one Act with reference to their use

in another Act and decisions rendered with reference to

construction of one Act cannot apply with reference to

the provisions of another Act, unless the two Acts are in

pari materia."

It is an admitted position that two enactments are

neither cognate nor pari materia and cover different

fields . Therefore, in my opinion words and pharases

used in S. 25 of the Hidu succession Act will have to be

construed and interpreted harmoniously keeping in

view the object of the legislation, and not in technical

sense as defined in I.P.C.

9] In this context a reference could also be made to

the following observation in Halsburry's Laws of

England, Third Edition, vol.39 para. 1315, p.869:-

"Murder or manslaughter. It is contrary to public policy

that a man should be allowed to claim a benefit resulting

from his own crime. Accordingly a donee who is proved

to be guilty of the murder or manslaughter of the

testator cannot take any benefit under his will."

It is this principle of public policy that a person cannot

be allowed to claim benefit resulting from his own

crime which is approved by the privy council in

Kanchava's case AIR 1924 PC 209. When the Hindu

succession Act, 1956 was enacted, the legislature had

before it the decision of the privy council in

Kanchawa's case and it appears that it is this well

established principle of public policy which legislature

thought fit to incorporate in S.25 of the Act , so that

the person will not be tempted to commit murder to

inherit the property of the person murdered.

10] It is well settled that the word not defined in the

Act but a word of every day use must be construed in

popular sense as understood in common parlance . and

not in a technical sense. In popular sense the word

"murder " means unlawful homicide or unlawful killing

of human being. In popular parlance the word

"murder" is not used or understood in the technical

sense as defined in S. 300 of the I.P.C. will result in

defeating the very object of the legislation. It will also

run counter to the well established principles of equity,

justice and good conscience, or the paramount

principle of public policy enshrined in S. 25 of Hindu

succession Act. I am fortified in this view by t he

decision of the Madras High Court in Sarvanabhava v.

Sallemmal the Madras High court has observed as

under :

" Almost all systems of law have recognised that a

person guilty of homicide cannot succeed to the

property of his victim. Section 25 of the Hindu

succession Act gives statutory recognition to the above

proposition."

11] In the present case defendant No.1 is convicted of

the offence punishable under S. 304 part of I.P.C. viz.

For the offence of culpable homicide. From the findings

recorded by the learned sessions Judge it is clear that

as many as eleven incised injuries were inflicted by

defendant No.1 with a sharp edged knife on the person

of deceased Revathi. He chose vital part of the body for

inflicting these injuries and had used considerable

force. He assaulted Revathi with the intention of

causing her death. Therefore it can safely be held that

he has committed murder of Revathi within the

meaning of the said expression as used in S. 25 of the

Hindy succession Act, 1956 and therefore is

disqualified from inheriting the property of deceased

Revathi, the person murdered. Similar view is taken by

Andhra Pradesh High court in Nannepuneni

Seetaramaiah v. Nannepueni Ramakrishnaniah, ,

wherein it is observed by the Andhra pradesh High

court that to apply the disqualification under S.25 of

Hindu Succession Act it is not necessary that the

person who committed murder or abetted commission

of murder must also have been convicted of the offence

of murder or of abatment of murder under S. 302 of the

I.P.C. The said section application of the section should

not be approached from the point of view of

punishment for murder.

15. In the case of G.S. Sadashiva (supra), the Karnataka High

Court went a step ahead and held that even if the person who is

alleged to be disqualified from inheriting the property of the person

allegedly murdered by the former, is acquitted by the Criminal

Court, where the party alleging the disqualification is able to satisfy

the Court that such person was acquitted either on any technical

ground or by extending the benefit of doubt and that the deceased

was actually murdered by such person or the crime was abetted by

such person, he would be disqualified to inherit or succeed to the

property of the deceased.

16. In the case of Vellikannu (supra), the Supreme Court, inter

alia, enunciated that even prior to the amendment of Hindu

Succession Act, 1956 by incorporating sections 25 and 27, the

murderer of his own father was disqualified on the principle of

justice, equity and good conscience and as a measure of public

policy. It was further postulated that the effect of sections 25 and

27 of Hindu Succession Act, 1956 was that a murderer was totally

disqualified to succeed to the estate of the deceased and that the

murderer is not regarded as a stock of fresh line of descent but

should be regarded as non-existent.

17. A useful reference can also be made to a Division Bench

judgment of this Court in the case of Jaya Talakshi Chheda vs.

Tanuja Jayantilal Bhagat and Others5

, wherein it was enunciated

that it is well settled that an issue of person having committed

murder or abetted the commission of murder to attract Section 25

of the Act is to be decided independently by a Civil Court and that

mere reliance on the finding of the Sessions Court is considered

insufficient. The decision of the Sessions Court can only be relevant

to show that there was a trial resulting in conviction and sentence.

18. This Court relied upon a judgment of the Supreme Court Anil

Behari Ghosh vs. Smt. Latika Bala Dassi and Ors.6

, wherein the

following observations were made :-

14] ….. … The learned counsel for the contesting

respondent suggested that it had not been found by the

lower Appellate Court as a fact upon the evidence

adduced in this case, that Girish was the nearest agnate

of the testator or that Charu had murdered his adoptive

father, though these matters had been assumed as facts.

The courts below have referred to good and reliable

evidence in support of the finding that Girish was the

nearest reversioner to the estate of the testator. If the

will is a valid and genuine will, there is intestacy in

respect of the interest created in favour of Charu, if he

was the murderer of the testator. On this question the

courts below have assumed on the basis of the judgment

5 (2019) 1 Bom CR 629.

6 1955 SCC OnLine SC 61.


of conviction and sentence passed by the High Court in

the sessions trial that Charu was the murderer. Though

that judgment is relevant only to show that there was

such a trial resulting in the conviction and sentence of

Charu to transportation for life, it is not evidence of the

fact that Charu was the murderer. That question has to

 be decided on evidence. …...

(emphasis supplied)

19. The position in law which thus emerges is that, the

disqualification incorporated in section 25 of the Hindu Succession

Act, 1956, is based on public policy that a person who causes death

of the person whose property he seeks to inherit, cannot be

permitted to take advantage of his own felonious act. The

disqualification of the murderer to inherit the property of the

person he murdered, even before statutory recognition, was

premised on the principles of justice, equity and good conscience.

The avowed object to disqualify such a person was to disallow a

person to accelerate his inheritance by causing death of the person

whose property he seeks to inherit.

20. Secondly, the expression, “a person who commits the murder

or abets the commission of murder,” is required to be so construed

as to advance the aforesaid object. The term, “murder” has not been

defined in the Hindu Succession Act, 1956. The definition of the

offence of murder under section 300 of the Penal Code which is a

technical definition for imposing punishment prescribed under

section 302 of the Penal Code cannot be readily imported to

construe the term, “murder” under section 25 of the Hindu

Succession Act, 1956. It is not the correct approach to interpret the

term used in one enactment dealing with inheritance and

succession by importing the definition of a similar term used in a

Penal Statute. Plainly Hindu Succession Act, 1956 and the Penal

Code, 1860 do not operate in the same field. Therefore, the term,

“murder” ought to receive its ordinary and common parlance

connotation. If so construed, it implies causing the death of the

person or abetting the causing of death of the person, whose

property is sought to be inherited, by the person who is alleged to

have incurred the disqualification.


21. Thirdly, the particular section of the Penal Code under which

the person accused of causing death is convicted, is not of decisive

significance. Nor the factum of conviction, as such, is peremptory.

Conversely, even if a person is convicted for an offence punishable

under sec.302 of the Penal Code that, by itself, may not sustain the

disqualification by a Civil Court under sec.25 of Hindu Succession

Act, 1956. The factum of the person, who has allegedly incurred

disqualification, having committed the murder of the deceased has

to be decided independently on evidence before the Civil Court.

22. In the light of the aforesaid principles, reverting to the

controversy at hand, in my considered view, the Department is not

justified in questioning the competence of the petitioner on the sole

ground that the husband of the deceased has been convicted for the

offence punishable under section 304-B and not 302 of the Penal

Code. In the context of the disqualification under section 25 of the

Hindu Succession Act, 1956, there does not appear much

qualitative difference in the offences punishable under section 302

and 304-B.

23. The essential ingredients of the offence under section 304-B

of the Penal Code are -

(a) Death of a woman by burns or bodily injury or otherwise

than under normal circumstances.

(b) Such death should have occurred within 7 years of her

marriage.

(c) The deceased was subjected to cruelty or harassment by

her husband or by any relative of her husband.

(d) Such cruelty or harassment should be for or in connection

with the demand of dowry; and

(e) To such cruelty or harassment the deceased should have

been subjected to, soon before her death.


24. It is not an essential ingredient for an offence under section

304-B that the death must be homicidal. It would suffice if the death

has occurred otherwise than under normal circumstances meaning

thereby the death not in the usual course but under suspicious

circumstances, even if it is not caused by burns or bodily injury.

What is of pivotal significance is the death of a woman, under the

circumstances, indicated by section 304-B of Penal Code.

25. At this juncture, it may be apposite to note the legislative

intendment in providing for a separate offence of dowry death. To

curb the menace of dowry death, the Parliament considered it

necessary to carve out a separate offence under section 304-B and

also incorporate a presumption under section 113B of the Indian

Evidence Act.

26. A profitable reference in this context can be made to a decision of the Supreme Court in the case of Soni Devrajbhai Babubhai vs. State of Gujrat and Ors. (1991) 4 Supreme Court Cases 298.  wherein the legislative object behind the offence of dowry death was expounded.

5] Section 304-B and the cognate provisions are

meant for eradication of the social evil of dowry

which has been the bane of Indian society 'and

continues unabated in spite of emancipation of

women and the women's liberation movement. This

all pervading malady in our society has only a few

lucky exception in spite of equal treatment and

opportunity to boys and girls for education and

career. Society continues to perpetuate the difference

between them for the purpose of marriage and it is

this distinction which makes the dowry system

thrive. Even though for eradication of this social evil,

effective steps can be taken by the society itself and

the social sanctions of the community can be more

deterrent, yet legal sanctions in the form of its

prohibition and punishment are some steps in that

direction.

27. It is also necessary to note that the offence of dowry death

punishable under section 304-B of the Penal Code can not be said to

be a minor offence viz a viz the offence of murder punishable under

section 302 of the Penal code. A useful reference in this context can

be made to a three Judge Bench decision in the case of Shamnsaheb

M. Multtani vs. State of Karnataka  (2001) 2 Supreme Court Cases 577.  wherein it was enunciated that the composition of the offence under Section 304-B is vastly different from the formation of the offence of murder under Section 302 and hence the former cannot be regarded as minor offence visà-vis the latter.

28. The conspectus of the aforesaid consideration is that a person who has caused the dowry death of a woman, falls within the dragnet of disqualification prescribed under section 25 of the Hindu Succession Act, 1956, if the said factum is proved to the satisfaction of the Civil Court. Therefore, the Department was not justified in questioning the competence of the petitioner on the count that the husband of the deceased has not been convicted for the offence punishable under section 302 but under section 304-B of the Penal Code. The Department’s requisition thus stands dispensed with.

29. At this juncture, it is necessary to note that though the

citation has been served through paper publication yet, as it is

specifically averred in the petition that the husband and in-laws of

the deceased, are lodged in District Jail, Village- Kasna Luksar,

Gautam Buddha Nagar, Uttar Pradesh, the citations were required

to be served in accordance with the provisions contained in Order V

Rule 24 of the Code of Civil Procedure, 1908 by sending the

citations to the Officer in-charge of the Prison for service on the

heirs mentioned at serial Nos. 1 to 3.

30. Before parting, the Court appreciates the invaluable

assistance rendered by Mr. Anuj Desai, the learned Amicus Curiae,

in deciding the legal issue

 Hence, the following order.


ORDER

1. The Department’s requisition questioning the competence

of the petitioner to file the petition stands dispensed with.

2. Citations be issued and served on the heirs mentioned at

Serial Nos. 1 to 3 through the Superintendent/Officer Incharge of the District Prison, Village- Kasna Luksar, Gautam

Buddha Nagar, Uttar Pradesh returnable 27th August, 2024.

3. Petition to, thereafter, proceed in accordance with law and

rules.

(N. J. JAMADAR, J.)



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