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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