Woman Taking Regularly Worn Ornaments When Leaving Matrimonial Home After 29 Yrs Can’t Be Basis For Criminal Proceedings: Calcutta High Court

The Calcutta High Court recently quashed the criminal proceedings initiated against a woman by her husband, a practising advocate, for the alleged theft of certain gold ornaments and valuables from her matrimonial home.

A single-bench of Justice Shampa (Dutt) Paul opined that the items she was accused of stealing were “worn on a regular basis by traditional Bengali married women.” It said,

“From the materials on record, it appears that the petitioner allegedly left her matrimonial home after 29 years of marriage with:- i. One piece gold Bala (bangle) (marriage ornament), worn as a sign of a married woman. ii. One Loha covered with gold (marriage ornament), also worn as a sign of a married woman. iii. Two piece (one pair) (red) pola, covered with gold (marriage ornament), also worn as a sign of a married woman. iv. One pair Sankhabadhano churi covered with gold (marriage ornament). v. Two mobile phones. vi. One Gold chain (gents), she has taken her son with her. vii. One necklace.

These ornaments/accessories as described, are worn on regular basis by a traditional Bengali married woman, who chooses to wear them. The phones which might be for her own use and the ornaments as described, cannot be the basis of a criminal case between a married couple, that too, after 29 years of marriage. These allegations, clearly do not make out any case as alleged under the Indian Penal Code against the petitioner and thus, this is a fit case where the inherent powers of this court should be exercised"

The petitioner in the present case had been married to the complainant since 1999 and “due to tremendous torture since marriage" on 14th May, 2019 (after 29 years) she lodged a complaint with the Lake Police Station for commission of offences of domestic violence.

The petitioner submitted that as a counter blast to her complaint, her husband, who was a practising advocate at Alipore Police Court, filed a police case against her under Section 420 of the IPC for the offence of theft. The petitioner argued: She alleged that the husband initiated numerous ‘malicious’ criminal proceedings against her, and that he had even preferred an application under Section 125 CrPC for maintenance from the petitioner, which was later withdrawn.

The petitioner submitted that she had preferred an application for dissolution of her marriage with the complainant under Section 27 of the Special Marriage Act, which was still pending, and that due to the husband's status as a practising advocate, it became difficult for her to find legal representation for herself. It was alleged:

Counsel for the petitioner argued that, in pursuance of the investigation in one of the aforesaid cases, the Magistrate had issued a search warrant for recovery of articles belonging to the complainant.

It was argued that such an order was an “abuse of process” and suffered from “non-application of mind” as there was no allegation that the petitioner had custody of any article belonging to the husband and that the Magistrate's judicial discretion under Section 204 CrPC has to be exercised in a judicious manner.

It was submitted by the husband that there were sufficient materials on record against the petitioner, to proceed to trial.

Upon perusing the materials on record and the arguments of the parties, the Court allowed the instant revision application and noted that the allegations against the petitioner did not make out any case under the IPC, and thus the impugned proceedings were liable to be set aside.

In light of the difficulties faced by the petitioner in finding representation, the Court further apprised the petitioner of her right of representation in legal proceedings.

Case: Mithu Dash @ Bhuiya v State of West Bengal & Anr.

Coram: Justice Shampa (Dutt) Paul

Citation: 2023 LiveLaw (Cal) 210

Click Here To Read/Download Judgment