Dilip Kumar Tamrakar vs Nisha Tamrakar

In this appeal filed under Section 19 of the Family Courts Act, 1984, challenge is made to the judgment dated 30.6.2004 passed by the Presiding Officer, Family Court, Rewa in Civil Suit No. 43-A/2003 whereby power available to the Court under Section 6(3A) of the Dowry Prohibition Act, 1961 (in short "the Act") has been exercised and a decree has been granted directing the appellant to pay to the respondent-wife a sum of Rs. 1,07,000/- alongwith interest at the rate of 6% per annum and the cost of Rs. 1000/-.

The legal question raised in this appeal is as to whether an application in a suit under Section 6(3A) of the Act is maintainable even without there being any prosecution or conviction for the offence as specified in section 6(2) of the Act.

The facts in brief go to show that the marriage between the parties were solemnized in Baba Katra Mohalla, Rewa as per Hindu religious rites and customs on 13.12.2001 and it seems that after parties were living together, various disputes cropped up in the matter of their matrimonial life. In the meanwhile, on the allegation of cruelty, harassment and demand of dowry, the respondent-wife filed a complaint and the appellant has been prosecuted for offence under section 498-A of IPC. However, in the meanwhile, an application under section 6 of the Act has been filed by the respondent and the same having been allowed, this appeal by the appellant has been filed.

Shri Amit Verma, learned counsel for the appellant has raised two contentions before us at the time of hearing. His first contention was that the Family Court has no jurisdiction to deal with the application under section 6 of the Act and the second contention was that until and unless a person is convicted for an offence under section 6(2) of the Act, the application for return of the property as contemplated under section 6(3A) of the Act is not maintainable.

We have heard the learned counsel for the appellant and we have gone through the record. Keeping in view the nature of the dispute raised and after considering the submissions, we propose to deal with the aforesaid two questions. As far as question No. 1 is concerned, we have considered the provisions of section 7 of the Family Courts Act, 1984 and we find that under section 7 of the Family courts Act, the Court is conferred with the jurisdiction to be exercised by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation. As per Clause (c) of the Explanation to Section 7(1) of the Family Courts Act, "a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them" is included. Keeping in view the aforesaid provision, we are of the considered view that the subject matter of an application under section 6 of the Act comes within the purview of Explanation (c) of sub-section (1) of section 7 of the Family Courts Act. Therefore, the first contention that the Family Court has no jurisdiction is devoid of substance and accordingly, it is rejected.

As far as second contention is concerned, a perusal of section 6 of the Act indicated that where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person has to transfer all property and other material received, to the woman as is contemplated in sub-section (1) of section 6 of the Act. Therefore, Sub-section (2) to Section 6 of the Act provides that if any person fails to transfer any property as required by sub-section (1) within the time limit specified therefore, or as required by sub-section (3), he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend two years or with fine which shall not be less than five thousand rupees, but which may extend to ten thousand rupees or with both. Further, sub-section 3-A of section 6 of the Act contemplates that where a person convicted under sub-section (2) for failure to transfer any property as required by sub-section (1) or sub-section (3) has not, before his conviction under that sub-section, transferred such property to the women entitled thereto or, as the case may be, her heirs, parents or children, the Court shall, in addition to awarding punishment under that sub-section, direct, by order in writing, that such person shall transfer the property to such woman, or as the case may be, her heirs, parents or children within such period as may be specified in the order, and if such person fails to comply with the direction within the period so specified, an amount equal to the value of the property may be recovered from him as if it were a fine imposed by such Court and paid to such woman, as the case may be, her heirs, parents or children. A perusal of the aforesaid provision clearly indicates that where a person is convicted under section 6(2) of the Act and thereafter he fails to transfer the property as required under sub-section (1) and after the death of woman, to her legal heirs as required under sub-section (3), a proceeding may be initiated and an order may be passed for return of the property in accordance with sub-section (3-A) of Section 6 of the Act.

Accordingly a complete reading of this provision makes it clear that for the purpose of maintainability of an application seeking return of the dowry/property under section 6(3A) of the Act, the precondition is that the person should have been convicted for offence punishable under section 6(2) of the Act. In the present case, record indicates that the appellant was never prosecuted for offence under section 6(2) of the Act nor convicted. In the judgment passed by the learned Court below, there is no indication or findings recorded to show that the appellant has been convicted, inspite thereof he has not returned the property and therefore, the order has been passed for return of the property.

We have perused the original record of the proceedings and the pleadings in the application under section 6 of the Act. The application was filed in the Court at Rewa. A perusal of the application goes to show that except for making allegations of cruelty, payment of Rs. 3,72,969/- as dowry and return of various property total valued at Rs. 5,25,969/-, there is no averment anywhere in the application to show that the appellant husband has been prosecuted or convicted under section 6(2) of the Act. In view of aforesaid, we have found that the learned Family Court has exercised the jurisdiction allowing return of the property under section 6(3-A) of the Act without there being any conviction of the appellant for offence under section 6(2) of Act. As conviction of the person for offence under section 6(2) of the Act is a pre-condition for the maintainability of the application under section 6(3-A) of the Act, we find that exercising jurisdiction by the Family Court in the matter, the direction issued without there being any conviction for offence under section 6(2) of the Act is contrary to law and cannot be sustained. On this ground, this appeal has to be allowed as there is no prosecution or conviction of the appellant for offence under section 6(2) of the Act. Keeping in view of aforesaid, the impugned judgment and decree by which the direction has been given to the appellant to return the property to the respondent-wife is set aside.

In view of aforesaid, the appeal stands allowed and disposed off.