For more than a century, inspite of tall words of respect for women, there has been an onslaught on their liberties through `bride burning’ and `dowry deaths’. This has caused anxiety to the legislators, judiciary and law enforcing agencies, who have attempted to resurrect them from this social choke.
There have been series of legislations in this regard, without much effect. This led to the passing of Dowry Prohibition Act in 1961. Inspite of this, large number of `brides burning’ and dowry deaths continued. To meet this, stringent measures were brought in the Indian Penal Code and the Evidence Act through amendments.
MEANING OF DOWRY
Section 2 of the Dowry Prohibition Act, 1961 defines `dowry‘ as under “-
“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 parents 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 or any time after the marriage in connection with the marriage of the said parties, but does not include dowry or mehr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Thus, dowry may be property or any valuable security and it can be given either party or parents of either party to another party at the time of marriage or before or after the marriage, but it should be given to the connection of marriage. Dowry does not include only already given property or valuable secutiry but if either pary agreed to give property or valuable security then also it will be considered as dowry.
This definition excludes ‘Mehr’ from the wall of dowry which is given in Muslim marriage to Muslim women by bridegroom.
MEANING OF DOWRY DEATH
Meaning of Dowry death is defined in Section 304-B (1) of Indian Penal Code. It provides that-
[i] 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 or 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.
To prove a dowry death, there should be following essentials-
[i] death of woman may be caused by burns or bodily injury or otherwise than under normal circumstances,
[ii] within seven years,
[iii] and before death, she was subjected to the cruelty or harassment by her husband and other relative of her husband,
[iv] this cruelty was in connection with any demand of dowry.
If all these essentials proved, it will be considered that husband or relative are responsible for the bride death.
MEANING OF CRUELTY
Definition of dowry death include the word ‘cruelty’. In dowry death case, cruelty section generally imposed on the bridegroom. So, it is relevant here to know the meaning of cruelty also.
Section 498-A of IPC defines cruelty as-
‘Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation – For the purposes of this section, “cruelty” means-
[a] any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
[b] harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
According to above definition, Cruelty includes –
- Wilful conduct of husband or relative of the husband,
- Of such of nature
- which abets the woman
- to commit suicide or
- To cause grave injury or
- Danger to life, limb or health, (mental or physical)
- Harassment by husband or relative of the husband
- To coerce her or any person related to her
- To meet any demand of dowry
HOW DOWRY LAWS WAS ENACTED?
The Dowry Prohibition Act, 1961 was enacted to provide an effective check to dowry deaths which were continuing despite the then prevailing laws. The object of the Bill was to prohibit the evil practice of giving and taking of dowry. This objective was not achieved hence drastic amendments were brought in by amending various provisions of the said Act and the related provisions under the Indian Penal Code and the Evidence Act.
Earlier, the definition of `dowry’ which was limited to the time at or before the marriage was extended to the period even after the marriage by means of Act 43 of 1986 w.e.f. November 19,1986.
Similarly, Section 304-B was introduced by means of the same amending Act and Section 498-A was introduced by Criminal Law (Second Amendment) Act, 1983 (Act 46 of 1983). Various other amendments were brought in bringing more stringent provisions in the aforesaid 1961 Act in order to stem the onslaught on the life of a married woman.
HOW ‘BENEFIT OF DOUBT’ WORK IN DOWRY CASES?
The concept of benefit of doubt has an important role to play but within the confines of the stringency of laws. Since the cause of death to a married woman was to occur not in normal circumstances but as a `dowry death’, for which the evidence was not to easily available, as it is mostly confined to within four walls of a house, namely husband’s house, where all likely accused reside.
Hence the aforesaid amendments brought in the concept of deemed `dowry death’ by the husband or the relatives, as the case may be. This deeming clause has a role to play and cannot be taken lightly and ignored to shield an accused, otherwise the very purpose of the amendment will be lost. Of course, the prosecution has to prove the ultimate essential ingredients beyond all reasonable doubt after raising the initial presumption of `deemed dowry death’.
But, benefit of doubt to the accused would be available provided there is supportive evidence on the record. Hence, for creating doubt or granting benefit of doubt, the evidence was to be such which may lead to such doubt.
MEANING OF ‘AGREED TO BE GIVEN’
It is noticeable, that in dowry definition by amendment includes not only the period before and at the marriage but also a period subsequent to the marriage.
Demand neither conceives nor would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved, hardly any offenders would come under the clutches of law.
In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence. That could be either direct or indirect. It is significant that Section 4 of the 1961 Act, was also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride.
The word `agreement’ referred to in Section 2 has to be inferred on the facts and circumstances of each case. The Interpretation that the appellant seeks, that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act.
WHAT AMOUNTS TO CURUELTY
Cruelty nor harassment need not be physical. Even mental torture in a given case would be a case of cruelty and harassment within the meaning of Section 304-B and 498-A IPC.
Explanation (a) to Section 498-A itself refers to both mental and physical cruelty.
In view of Explanation (a) the argument is, before it constitutes to be a cruelty there has to be wilful conduct.
Again wilful conduct means, conduct wilfully done may be inferred by direct or indirect evidence which could be construed to be such.
If a woman repeatedly taunted, maltreated and mentally tortured by calling her ugly etc. A girl dreams of great days ahead with hope and aspiration when entering into a marriage, and if from the very next day the husband starts taunting for not bringing dowry and calling her ugly, there cannot be greater mental torture, harassment or cruelty for any bride. And quarrel before her death with husband would constitute to be a wilful act to be a cruelty both within the meaning of Section 498-A and Section 304-B IPC. (Pawan kumar v. State of Haryana, 1998)
BURDEN OF PROOF
Section 8-A of the aforesaid 1961 Act which came into force w.e.f. 2nd October, 1985 for taking or abetting any dowry, the burden to explain is placed on such person against whom the allegation of committing an offence is made.
8A. Burden of proof in certain cases. —Where any person is prosecuted for taking or abetting the taking of any dowry under section 3, or the demanding of dowry under section 4, the burden of proving that he had not committed an offence under those sections shall be on him.
Similarly, under Explanation to Section 113-B of the Indian Evidence Act, which was also brought in by the aforesaid Act No. 43 of 1986, there is presumption that such death is on account of dowry death. Thus the burden, if at all, was on the accused to prove otherwise.
113B. 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 has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Pawan Kumar & Ors vs State Of Haryana, 1998 (3) SCC. 309