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UMESH VERMA, ADVOCATE versus UNION OF INDIA & ANOTHER

High Court of Judicature at Allahabad

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Umesh Verma, Advocate v. Union of India & Another - WRIT - C No. 3253 of 1995 [2004] RD-AH 78 (17 February 2004)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

COURT NO.3

"RESERVED"

CIVIL. MISC. WRIT PETITION NO.  3253  OF 1995

Umesh Verma, Advocate ...................... Petitioner

            Versus

Union of India & anr.   ...................... Respondents

Hon. Dr. B.S. Chauhan, J.

Hon. P.K.Chatterji, J.

(By Hon'ble Dr. B.S.Chauhan, J.)

This public interest litigation has been filed for issuing direction to the effect that under Section 3 (1) of the Dowry Prohibition Act, 1961 (hereinafter referred to as the Act 1961) the maximum sentence be Life imprisonment, or this Court may issue writ direction to the legislature to enact the law that provisions of Section 498-A, I.P.C. necessarily attracts the provisions of Sections 383-389 I.P.C., i.e. to amend the provisions providing life imprisonment as punishment under Section 3(1) of the Act 1961.

Shri H.S. Jain, learned counsel appearing for the petitioner submits that demand of dowry is a menace and rampant in the society. The women of the society have to face dire consequences for not meeting the demands of the greedy persons. The punishment so provided is inadequate considering the gravity of the offence, therefore, this Court either issue direction to the Legislature to amend the Act to substitute five years with life imprisonment or this Court should issue direction to read five years as life imprisonment. Therefore, very stringent law is required to prevent the same, and therefore, this Court should issue the direction that the trial Courts are competent to award life imprisonment instead of maximum punishment of 5 years of imprisonment as provided under Section 3 of the Act 1961.

Learned Standing Counsel has opposed it contending that the Court does not have the competence to issue the direction sought by the petitioner and petition is liable to be dismissed on this sole ground.

We have considered the submissions made by learned counsel for the parties and perused the record.

Dowry has been defined in Whartons Law Lexicon 1976 Reprint at page 350, as marriage goods which the wife brings the husband in marriage, otherwise called maritagium.

Dowry is that which the wife gives the husband on account of marriage, and is a sort of donation made with a view to his maintenance and the support of the marriage. (Vide Cutter Vs. Waddingham, 22 Mo.206, 254).

In Reema Aggarwal Vs. Anupam & Ors., JT 2004 (1) SC 177, the Hon'ble Supreme Court examined the issue observing that "dowry as a quid pro quo for marriage is prohibited and not the giving of traditional presents to the bride or bridegrooms by friends and relatives. Thus, voluntary presents given at a or before or after the marriage to the bride or the bridegroom, as the case may be, of a traditional nature, which are given not as a consideration for marriage but out of love, affection or regard, would not fall within the mischief of the expression ''dowry' made punishable under the Dowry Act. The Court further observed as under:-

".... Even then the purpose for which sections 398A and 304B-IPC and section 113B of the Indian Evidence Act, 1872 (for short the ''Evidence Act') were introduced cannot be lost sight of. Legislations enacted with some policy to curb and alleviate some public evil rampant in society and effectuate a definite  public purpose or benefit positively requires to be interpreted with certain element of realism too and not merely pedantically or hyper-technically. The obvious objective was to prevent harassment to a woman who enters into a marital relationship with a person and later on, becomes a victim of the greed for money.......The nomenclature ''dowry' does not have any magic charm written over it. It is just a label given to demand of money in relation to marital relationship. The legislative intent is clear from the fact that it is not only the husband but also his relations who are covered by section 498A. Legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that legislature which was conscious of the social stigma attached to children of void and voidable marriages closed eyes to plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship. If such restricted meaning is given, it would not further the legislative intent. On the contrary, it would be against the concern shown by the legislature for avoiding harassment to a woman over demand of money in relation to marriages."

Section 3 of the Act 1961 reads as under:-

"3. Penalty for giving or taking dowry.- (1) if any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more:

Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years."

Thus, it is evident that the maximum punishment provided under the said Act is only five years and lesser punishment can be awarded only by recording reasons.

The rule of interpretation requires to give a literal interpretation to the statute where the language is plain and clear as it does not require any interpretation whatsoever. Adding or subtracting of any word or re-writing of the provisions could itself amount to an amendment to the Act, which is not permissible. (Vide Union of India Vs. Mohindra Supply Company, AIR 1962 SC 256; Madanlal Fakir Chandra Dudhediya Vs. Shri Changdeo Sugar Mills Ltd., AIR 1962 SC 1543; Mangi Lal Vs. Sugamchand Rathi, AIR 1965 SC 101; Union of India Vs. Sankal Chand Himmat Lal Seth, AIR 1977 SC 328; Commissioner of Sales-Tax, U.P. Vs. Auriya Chambers of Commerce, Allahabad, AIR 1986 SC 1556; P.K.Unni Vs. Nirmala Industries, AIR 1990 SC 933; and Union of India Vs. Deokinandan Agarwal, AIR 1992 SC 96).

Proviso of Section 3 is required to be read as under:-

"Provided that the Court may for adequate and special reasons be recorded in the judgment, impose a sentence of imprisonment for a term of less or more than 5 years. Such an interpretation is not permissible as it would amount to legislation."

Such an interpretation is not permissible as it would amount to legislation.

A Constitution Bench of the Hon'ble Apex Court in S. Narayana Swami Vs. G. Panneerselwam & Ors., AIR 1972 SC 2284, considered the issue of interpretation of law where it is averred that there has been omission on the part of the Legislature while enacting the Statute. The Court held that  "it could not possibly be said that the question to be dealt with was not known to the legislators, therefore, there can be no presumption that the framers of the Statute were not knowing the subject they had to deal with the gravity of the menace created by dowry and for which they failed to consider  what should be the proper and adequate punishment. The Court further held that the Stature requires to be interpreted giving plain meaning of literal construction, and modification of words used in statutory provisions is not permissible. While deciding the said case, the Hon'ble Court placed reliance upon large number of judgments, particularly Hira Devi Vs. District Boartd, Shahjahanpur, AIR 1952 SC 362; Ram Ram Narain Medhi Vs. State of Bombay, AIR 1959 SC 459; British India General Insurance Co. Ltd. Vs. Captain Itbar Singh, AIR 1959 SC 1331; and R.G. Jacob Vs. Union of India, AIR 1963 SC 550).

In Union of India Vs. Sankal Chand Himmatlal Sheth & Anr., AIR 1977 SC 2328, the Apex Court considered the same issue and held that unless provision is semantically ambiguous, it does not require any interpretation whatsoever and unless if a provision read literally is patently incompatible with the other provisions of that instrument, the Court would be justified in construing the words in a manner which will make a particular provision purposeful. The Court placed reliance on its earlier judgments in M. Pantiah Vs. V. Veeramallappa, AIR 1961 SC 1107, wherein the Court had emphasised on literal interpretation and putting a complete embargo on the power of the Court to modify the meaning of the words, wherein the Court had placed reliance upon a judgment in Seaford Court Estates Ltd. Vs. Asher, (1949) 2 All ER 155, wherein the Court held that "a Judge must not alter the material of which the Act is woven, but he can and should iron out the creases."

In P.K. Unni Vs. Nirmala Industries, AIR 1990 SC 933, the Hon'ble Supreme Court held as under:-

"The Court must indeed proceed on the assumption that the legislature did not make a mistake and that it intended to say what it said. Assuming  there is a defect or an omission in the words used by the legislature, the Court would not go to its aid to correct or make up the deficiency. The Court cannot add words to a statute or read words in to it which are not there, especially when the literal reading produces  an intelligible result. No case can be found to authorise any Court to alter a word so as to produce a casus omissus. We cannot aid the legislature's defective phrasing of an Act, we cannot add and mend, and, by construction, make up deficiencies which are left there. Where the language of the statute leads to manifest contradiction of the apparent purpose of the enactment, the Court can, of course, adopt a construction which will carry out the obvious intention of the legislature. In doing so, a Judge must not alter the material  the material of which the Act is woven, but he can and should iron out the creases."

In Union of India Vs. Dseoki Nandan Aggarwal, AIR 1992 SC 96, the Hon'ble Apex Court held as under:-

"It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid  to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities."

In Union of India Vs. Hansoli Devi, (2002) 7 SCC 273, the Hon'ble Apex Court held as under:-

"Before we embark upon an inquiry as to what would be the correct interpretation of Section 28-A, we think it appropriate to bear in mind certain basic principles of interpretation of a statute. The rule stated by Tindal, C.J. in Sussex Peerage case [8 (1844) 11 Cl & Fin 85], still holds the field. The aforesaid rule is to the effect: (ER p.1057)

"If the words of the statute are in themselves precise and unambiguous, then  no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves along do, in such case, best declare the intention of the lawgivers."

It is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act.  In Kirkness Vs. John Hudson & CO. Ltd., (1955) 2 All ER 345, Lord Reid pointed out as to what is the meaning of "ambiguous" and held that "A provision is not ambiguous merely because it contains a word which in different contexts is capable of different meanings. It would be hard to find anywhere a sentence of any length which does not contain such a word. A provision is, in my judgment, ambiguous only if it contains a word or phrase which in that particular context is capable or having more than one meaning."  It is no doubt true that if on going through the plain meaning of the language of statutes, it leads to anomalies, injustices and absurdities, then the court may look into the purpose for which the statute has been brought and would try to give a meaning, which would adhere to the purpose of the statute. ......It is not a sound princi8ple of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably  within the contemplation of the statute. ...The legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. Similarly, it is not permissible to add words to a statute which are not there unless on a literal construction being given a part of the statute becomes meaningless.  But before any words are read to repair an omission in the Act, it should be possible to state with certainty that these words would have been inserted by the draftsman and approved by the legislature had their attention been drawn to the omission before the Bill had passed into  a law. At times, the intention of the legislature is found to be clear but the unskilfulness of the draftsman in introducing certain words in the statute results in apparent ineffectiveness of the language....."

Thus, it is not permissible to the Court to read the language in such a manner that it may amount to amendment of the Statute  itself and the relief suggested by Shri Jain cannot be granted by the Court.

It is also settled legal proposition that neither the  Court can legislate nor it can issue direction  to the State Government to legislate a law in a  particular manner.  At the most, if the Court comes  to the conclusion that a  particular provision  is ultra-vires or unconstitutional, it can simply   struck  down  the   same,  or  in  a particular  case, write down a particular law  to meet a particular  situation.  But these cases do not fall in that category.

In  Union  of  India  Vs.   Deoki  Nandan Aggarwal,  AIR  1992 SC 96, the  Hon'ble  Supreme Court observed as under:-

"It is not the duty of the Court  either to  enlarge  the scope of legislation  or the intention of the legislature when the nature  of  the  provision is  plain  and unambiguous. The Court cannot re-write, re-cast  or re-frame the legislation  for the very good reason that it has no power to legislate.  The power to legislate has not been conferred on the courts."

Moreso, the Court does not have the power to issue  a direction to the legislature to enact in a particular manner.

In  Mullikarjuna  Rao & ors.  etc.   etc. Vs. State  of Andhra Pradesh & ors., AIR  1990  SC 1251,  the  Hon'ble Apex Court has  held  that Writ Court,  in  exercise  of its  power under Article 226,  has no  power even  indirectly   require the  Executive to exercise its law-making power.  The  Court  observed that it  is  neither legal nor proper for the High Court to issue direction or advisory sermons to the Executive in respect of the sphere which is exclusively within the domain   of the Executive under the Constitution. The power under Article 309 of the Constitution  to  frame rules is the  legislative power.  This  power under the Constitution has to be exercised  by the President or the Governor of a State,  as the case may be.  The Courts  cannot usurp the  functions  assigned to  the  Executive under the Constitution and cannot even indirectly require the  Executive to exercise its law-making power in any manner.  The Courts cannot assume to itself a supervisory role over the rule-making power of  the Executive under Article 309 of  the Constitution.

While deciding the said case, the Hon'ble Court placed reliance  on  a  large  number  of judgments,  particularly  Narender Chand Hem  Raj Vs. Lt.   Governor, Union Territory,  Himachal Pradesh,  AIR  1971 SC 2399;  State  of  Himachal Pradesh Vs. the Parent of a Student of Medical College,  Shimla, AIR 1985 SC 910.  

In Asif Hamid Vs. State  of  Jammu  & Kashmir, AIR  1989  SC 1899, the Hon'ble Apex Court observed as under:-  

"While doing so, the Court must  remain within  its  self-imposed   limits.   The Court sits in judgment on the action of a coordinate branch of the  Government. While exercising power of judicial review of administrative action, the Court is not an   Appellate Authority. The Constitution does not permit the Court to direct or advise the Executive in matter of policy or to sermonize qua any matter which  under the Constitution lies within the sphere of Legislature or Executive."  

A Constitution Bench of the Supreme Court in Afzal  Ullah  Vs. State of Uttar Pradesh  & Anr., AIR  1964 SC 264, observed that validity of a subordinate  legislation  must  be  tested   by reference  to  the  question as  to  whether  the Authority  had  the power to provide for  such  a legislation.   Thus,  if  the Authority  has  the power of  fixing  the  eligibility  criteria,  no fault can   be  found  with   the  entry  in  the Schedule.

It is for the Government to decide as what would be the adequate punishment for the particular offence. The Court cannot examine the wisdom, merit or efficacy of the policy of the legislature  to see whether  it  effectuates the purpose  of  the Act.  (Vide Maharastra State Board of Secondary & Higher Education  Vs.  Paritosh B. Sheth, AIR 1984 SC 1543).

In  V.K.   Sood Vs.  Secretary,  Civil Aviation  &  ors., AIR 1993 SC 2285, the  Hon'ble Supreme Court observed as under:-

"Thus,  it  would  be   clear  that,   in exercise  of the rule-making power, the President or  authorised person is entitled to prescribe method of recruitment, qualifications, both educational  as  well as technical, for appointment  or conditions of service  to an office or a post under the State.  The Rules, thus, having been made in exercise of  the  powers  under proviso  (2)  to Article  309  of the Constitution,  being statutory, cannot  be impeached on  the ground  that authorities have prescribed tailor-made  qualifications  to suit  the stated  individual.....Suffice  to  state that  it  is settled law that no  motives can  be attributed to the legislature  in making   law.    The Rules   prescribe qualifications  for  eligibility and  the suitability  of appellant would be tested by    the     Union Public Service Commission......  Moreover, it is for the rule-making   autholrity  or for the legislature  to  regulate the method  of recruitment,  prescribe    qualifications etc. It is open to the President or the authorised  person to undertake such exercise and that necessary test  should be  conducted  by  the  U.P.S.C.   before giving  certificates to them.  It is not the  province of the Court to trench into and prescribe qualifications    in particular  when matters are of technical nature."

In District Mining Officers & ors. Vs. Tata Iron & Steel Co. & anr.,  (2001) 7 SCC 358, the Hon'ble Supreme Court held that function of the Court is only to expound the law and not to legislate.

Similarly in Employees Welfare Association Vs. Union of India, (1989) 4 SCC 187 the Hon'ble Supreme Court held that Court cannot direct the legislature to enact a particular law for the reason that under the constitutional scheme the Parliament exercises sovereign power to enact law and no outside power or authority can issue a particular piece of legislation.

Similar view has been reiterated in State of Jammu & Kashmir Vs. A.R. Zakai & ors., AIR 1992 SC 1546; and A.K.Roy Vs. Union of India, 1982 SC 710.

In Union of India Vs. P. Hinduja & anr., JT (2003)5 SC 300 the Hon'ble Supreme Court held that if the Court issues a direction which amounts to legislation and is not complied with by the State, it cannot be held that the State has committed the Contempt of Court for the reason that the order passed by the Court was without jurisdiction and it has no competence to issue a direction amounting to legislation.

Thus in view of the above, the Court has a very limited role and in exercise of that, it is not open to have judicial scrutiny. Neither the Court can legislate, nor it has any competence to issue directions to the legislature to enact the law in a particular manner. Therefore, in view of the above, no such direction can be issued.

Thus, in view of the above, neither it is permissible for the Court  to substitute the "five years" imprisonment with "life imprisonment" nor issue a direction to the Legislature to amend the provisions of Section 3 (1) of the Act 1961, providing the life imprisonment as punishment for demand of dowry. It is for the Legislature to consider as what would be considered to be offence and what is the adequate punishment for it. The Court cannot act on the belief that it knows better than the Legislature, and it would be unjustifiable  to issue such direction. More so, judicial humility should prevail over judicial activism in such matters.

Thus, in view of the above, petition lacks merit and accordingly dismissed.

17.02.2004

AKSI/AHA


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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