This article is written by Vishalakshi, a student of ll.b (Hons.) at Banaras Hindu University.
What is Dowry
“Dowry” is a word that every Indian is used to hearing at some point of life and no Indian is untouched to this word. Dowry refers to any type of goods, cash, jewellery, property (movable or immovable) which is given by the bride’s family to the groom and his family as the essential condition of marriage. In India it is considered that these assistance in the form of Dowry which is often called as Dahez will help the newly wed setup their home and the bride will not face any ill-treatment by the groom’s family. But over the time after marriage the demand keeps growing and the refusal and non-fulfillment takes the form of crime against that women. Dowry demands not only put excessive financial burden on brides’ family but also are often followed by various forms of violence and crime against women ranging from mental abuse and emotional abuse to injury to bride’s body or threat to cause injury to bride’s father, mother or any other relative and thousands of women are succumbed to deaths every year due to the ill-treatment and violence done by their husband or in-laws due to failure of non-fulfillment of their dowry demands. Indian community is divided into two parts when it comes to the question that whether taking or giving dowry is justified or not? And this battle seems to be inevitable and long running in Indian society. However, the governments over the time have come up with different legislations and have amended the existing rules as and when it was required yet they have not been successful in effectively curbing the practice of dowry completely from the society.
Indian Laws Dealing with Dowry
The Indian legislations dealing with dowry and dowry-related offences are contained in the Dowry Prohibition Act, 1961 and section 304B and 498A of the Indian Penal Code. The first national legislation dealing with dowry was the Dowry Prohibition Act which came into force on 1 July 1961. The purpose of this act was to prohibit the giving and receiving of dowry. Though this act was enacted to prohibit the dowry provisions in the Indian community the objective was not achieved not because of the defects in the act or the failure of government regarding its enforcement but also because the dowry system is very deeply rooted in our community and thus its failure was highly condemned. However, over time the said act went through certain amendments and new laws were added such as the addition of minimum and maximum punishment etc.
The Indian Penal Code, the Evidence Act and the Code of Civil Procedure have also been modified to ensure the accused gets maximum punishment which may help to reduce the cases.
Section 2 of Dowry Prohibition Act,1961 defines the term dowry as
Definition of ‘dowry’. —In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly—
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person,
at or before 1 [or any time after the marriage] 2 [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Explanation II.— The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).
One of the essential elements under this section of Dowry prohibition act is to give or agreed to be given which shows that there lies an agreement between the parties in relation to marriage and not otherwise and hence courts in various cases have stated that in order to constitute charges for dowry death, there must be an agreement present between deceased family and family of the accused in relation to marriage.
In Nunna Venkateswarlu vs State of Andhra Pradesh[1], the court observed that the basic and essential fact as to demand of dowry has to be proved by prosecution in terms of dowry given or agreed to be given and the prosecution has failed to prove such agreement between the fathers of accused and deceased and hence the court refused to accept the charges under section 304B. When the matter went into the higher court of Andhra Pradesh, there the accused was charged under sec 498 A and 306 of IPC and held liable under these sections and not under section 304B due to absence of agreement to give dowry.
In State of Himachal Pradesh v. Nikku Ram[2] the court observed the term dowry to be in relation to marriage and not for any other cause and it was explicitly mentioned in the definition of dowry under section 2 of Dowry Prohibition Act, 1961. The Court after examining all the evidences held persons charged under Section 304-B, 306 and 498-A free from these criminal charges as the prosecution failed to produce the evidence against them and only mother-in-law was held guilty under Section 324 of the Indian Penal Code as voluntarily causing hurt to her daughter-in-law. And imposed a fine of Rs. 3,000, failing to pay the fine will attract simple imprisonment for 1 month.
In Appasahab & Anr. V. State of Maharashta[3] the court stated in the light of the same demand for money for meeting domestic needs or due to financial instability cannot be termed as a demand for or want of dowry.
Dowry Death
Dowry is the system which not only is considered morally wrong but also considered as an offence according to Indian Penal Code. Every year thousands of innocent women lose their lives due the cruelty done on them by their in-laws and the reason behind that is demand for dowry. The Indian Penal Code strictly prohibits such act and criminalizes death caused due to dowry demand in a separate provision under chapter XVI of the Indian Penal Code which covers the offences affecting the human body and Section 304B under the said Chapter deals with ‘Dowry Death’.
Section 304 B of IPC states that
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.
Explanation.—For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
Essential Ingredients
To make a person liable under this section the prosecution needs to prove all these ingredients:
- Death must be caused in any circumstances other than normal and by any burn or any bodily injury
- Death must have occurred within 7 years of marriage
- It must be shown that the woman was subject to cruelty or harassment soon before her death for or in connection with demand for dowry
- By her husband or any relative of her husband
If all these ingredients are satisfied then the death shall be called as Dowry Death.
This section provides punishment for deaths occurred withing 7 years of marriage. So, the question arises that Are the deaths caused after 7 years due to Dowry demand not an offence?
And, is the provision of death within 7 years mandatory?
The answer to first question is no. The Indian Penal Code is one of the most carefully drafted provisions and it leaves no scope for any offender to abscond be it a small crime or a big. Crime is always a crime. And the answer to second question is Yes. In order to constitute a death of a woman specifically as dowry death the prosecution is supposed to prove that the death was caused within 7 years of marriage as one of the essential elements of this section.
So, what happens when the death is caused due to cruelty done on woman for dowry after seven years? This case will be treated under section 498A of IPC and if the woman commits suicide due to constant dowry demands then this case will be treated under section 306.
Dowry is a non-bailable and cognizable offence and police can arrest the person booked under section 304B without warrant.
Cruelty or Harassment Soon Before Death
Cruelty is per se not defined in IPC but courts in various cases has interpreted the term and given the decision based on such interpretations.
The court in Shanti v. State of Haryana[4] stated that sec 498A and sec 304B are supportive to each other and the same meaning can be applied to both whenever required as to what can be meant as cruelty.
Cruelty and harassment are two different things and shall be dealt accordingly.
And the proximity test for cruelty soon before the death shall be applied when court is to be satisfied that the following case falls withing the ambit of section 304B.
In case of Keshab Chandra Pande v. State[5] where the accused had assaulted his wife due to non-fulfillment of dowry once and after one year of that incident the wife died. The court held that there was no proximate link between the incident of act of assault and the death of the victim. Hence the case failed to satisfy the rule of “soon before death”.
In Kans Raj v. State of Punjab[6] the court stated the time must be reasonable depending upon the facts and circumstances of each case. Thus, the proximate and live link “between the effect of cruelty based on dowry demand and the consequential death” is required to be proved by the prosecution.
In Rajinder Amar Singh v. State of Haryana[7] the wife was subjected to cruelty by her husband two years before her marriage for demand of dowery and later died. The court held that this was not a case under sec 304B as there was no proximity between both the incidents and the essential element of soon after the death is not fulfilled and person cannot be booked under this section merely because the victim died due to unnatural circumstances.
In another case of Heera Singh v. State of Uttranchal[8] itt was observed by the court that “word soon before death does not imply to be immediately before death, it requires a link to be present between the cruelty and death and also it must be proximate, not remote. So, the cruelty subjected should not be too remote to have enough time to repair the mental equilibrium of the victim. Further, the soon before death period should not even be too immediately before her death.”
In The State Of Punjab vs Gurmit Singh[9] on 2 July 2014 the term ‘relative’ was analysed. The respondent was charged under section 304B but it was held that he cannot be charged under Section 304B as he was not the relative either by blood, adoption or by marriage of the deceased’s husband.
Section 498A in its definition talks about relative and by this case, and it can that the word “relative” means any person who is related by blood, adoption or by marriage. If someone falls in this category then only he can be booked under section 304B otherwise can be held guilty under other sections if they have committed any offence.
In case of section 304B the first and initial burden of proof lies on the shoulders of prosecution. When the prosecution proves all the fundamental elements of this section i.e., cruelty soon before the death (proximity test to be held), within seven years of marriage, demand for dowry in connection to marriage and not otherwise and all these subject to satisfaction of court. The burden of proof then shifts to the defense to prove the accused not guilty.
Meaning of Presumption
Section 113B of Indian Evidence Act was inserted in the penal code by the Dowry Prohibition (Amendment Act 43 of 1986) and says:
Presumption as to dowry death— When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by any person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused such dowry death.
Explanation—For the purposes of this section, “dowry death” shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)”
The court in Kaliyaperumal v. State of T.N[10]., propounded four essential ingredients on the basis of which this section can be applied.
- Whether the accused has committed dowry death under sec 304B or not?
- Woman was subjected to cruelty or harassment
- That cruelty was done either by her husband or by any relative of husband
- Soon before her death
In Gurdeep Singh v. State of Punjab[11] the court stated that if anyone of the essentials of the section is not made out, the onus does not shift to the defense. For the presumption to take place all of the essential ingredients will have to be satisfied.
So, the burden of proof with be transferred to the accuse only when all the questions regarding the fundamental and essential elements have been proved by the prosecution.
Conclusion
Despite many strict legislation dowry is prevalent in India and it is such a crime that is done openly and is acceptable by the members of the society in the name of so-called traditions. And no matter how many provisions government comes with this crime will always be prevalent in the society. But by making strict laws and adding all the possible scopes a deterrence can be created in order to reduce the crime rate. Increasing the amount of punishment such as punishment for abetment of suicide must be raised to up to seven years and hearing of such cases if done in fast-track courts to ensure that the accused gets punished as soon as possible will create an apprehension in the mind of accused. Organized approach by members of the society, the governmental bodies such as the police, public servants, the judiciary and non-governmental bodies such as women welfare organizations to help women who are victims of dowry demands and such violence and help them get protection and justice is one very important step that needs immediate attention. Apart from this awareness camps in every district at block levels and in school and colleges can help young minds understands the ill-effect of dowry and the legislations that make dowry, a criminal offence. Active female members have to come forward to raise their voice against this social menace and take some corrective measures which will encourage other women in the society to take a step against the violence.
However, the most important of all is the public will and commitment to come together to curb this evil practice of greed for materials and certain property in the name of happy married life of bride and groom and the need for understanding that materialistic things do not make marriage long lasting but the respect does.
[1] (1996) Cr LJ 108 (AP)
[2] (1995) Cr LJ 41 84 (SC)
[3] (2007) 9 SCC 721
[4] (1991) 1 SCC 371
[5] (1995) Cr LJ 174 (Ori)
[6] AIR2000 SC 2324
[7] (2000) Cr LJ 2494 (P&H)
[8] 2005 Cr LJ 2062(Uttaranchal)
[10] 2004 9 SCC (157)
[11] (2011) 12 SCC 408
https://indiankanoon.org/doc/653797/
https://www.britannica.com/event/Dowry-Prohibition-Act