dowry deaths in india- legislative and judicial dictum

DOWRY DEATHS IN INDIA- LEGISLATIVE AND JUDICIAL DICTUM

DOWRY

“Acceptance of dowry is a disgrace for the young man who accepts it as well dishonour for the woman folk.” -Mahatma Gandhi

Dowry death (bride burning cases) is a burning problem of the present day. According to Hindu Dharma Shastra marriage is a sacrament, a holy union a permanent and indissoluble union between a man and a woman for the performance of religious duties. The two concepts of varadakshina and stridhana together assumed the form of dowry, which was unknown to ancient Hindu Law. Now, it became wide spread evil not only amongst Hindus but also among the communities which were non-dowry taking communities earlier.1

Origin

The origin of dowry can be traced to concept of ‘Kanyadan’ attached to the institution of marriage historically. The act of Kanyadan is performed by the parents of the bride. Due to the religious requirements along with the act of dana, parents are supposed to give something besides the bride such as jewels, gold, cows, and other valuables to complete the ritual of Kanyadan. These gifts, including jewellary and presents, were given voluntarily to bride for her comfort as well as better status in her in-laws’ house. These gifts took shape of dowry or Dahej.2

In its beginning dowry was voluntary and was not compulsory. Parents of bride use to give according to their status not according to demand by groom side, as there was no such demand. But gradually with due course of time and commencement of era of commercialization and emergence of middle class the money become the most important governing factor in all matters. Need and greed for money which has been present since the man came into existence further greatly accentuated. Dowry became a compulsion which needed to be satisfied under all circumstances. The value to be paid as dowry and demands for dowry both greatly increased.

DOWRY DEATH: the final culmination of dowry related crimes

1 Krishna Kumari, Areti,Violence from Cradle to Grave(March 12, 2007). Available at SSRN: http://ssrn.com/abstract=970171

2 Flavia Agnes, Women and Law in India (Oxford University Press, New Delhi, 2006)

1 Vidya Bhaskar Singh Nandiyal

In case of non fulfillment of demands, the bride was harassed mentally and physically, treated with inhumanly by the groom and his family members, which sometimes culminated into unnatural death of the bride. Death may either be because suicide by the married woman to free herself from the clutch of cruelty and daily ill treatments or she is brutally murdered by the groom or his relatives. In both cases, the man becomes free from the so called burden of his wife and this allows him again to re-enter in the market of marriage and entertaining the highest bidder.

Dowry has gradually become the most deadly enemy of the Bride. Its evil manifestations are very much on our face in form of female infanticide, derogation of women to a object of barter, and dowry deaths.

Dowry is one prominent example of economically motivated violence. "Dowry" violence does not refer directly only to marriage-related payments made at the time of the wedding, but to additional payments demanded after the marriage by the groom's family where the husband systematically abuses the wife in order to extract larger transfers.3

There are two main ideologies forwarded to support the origin of concept of dowry. The first being, any element of explicit bargaining was supposed to be discreet and covert, so that the dominant ideology was not violated. According to this ideology, the groom’s family could not explicitly demand gifts; but the reality was quite reversed in due course of time. Insofar as household goods and other gifts were concerned, the bride’s mother-in-law was supposed to be the highest authority to decide on these items. If any sum of cash was involved, it was likely to be under control of father-in-law.4

Another implied ideology governing dowry was that it was a means of pre-mortem inheritance for the girl from her parent’s wealth. As earlier according to Hindu laws (Mitakshara system), the girl was not allowed to inherit, own and transfer property. She was only allowed to enjoy the property during her lifetime. So the system of favouring the daughter with a handsome dowry during marriage seemed to have been introduced to overcome this restriction. However dowry does not represent a fixed share to a particular divisible estate. Even this ideology doesn’t stand before the rationality and common prudence, as the property acquired through dowry is not women’s wealth, rather it is wealth that goes with women. 5

For legal sense the dowry is defined in section 2 of The Dowry Prohibition Act, 1961, which reads

3 Francis Bloch and Vijayendra Rao, The American Economic Review, Vol. 92, No. 4, (Sep., 2002), pp. 1029-1043, www.jstor.org, visited on 8-18-2008.

4 Supra n.25 Supra n.2


"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 dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.


What is not considered as dowry?

When demand for money is made by groom a. to dealing with financial constrains faced by him,b. for starting any business,c. Demand for money on account of some financial stringency or for meeting some

urgent domestic expenses,6

d. in relation to any custom i.e., customary payments (which has the provision for gifting or giving sum of cash or anything that is habitual, practiced commonly and is rather customary, cannot be considered too criminal, but is probably worth only a slap on the wrist) and

e. Property arrangement, etc.

6 Appasaheb and Anr. v. State of Maharashtra, AIR 2007 SC 763 : 2007 (1) Crimes 110 (SC).


Dowry death: prevalence in society

The evil of dowry system has been a matter of serious concern to everyone in view of its ever-increasing and disturbing proportions. The framing of specific laws and amendments e.g., The Dowry Prohibition Act, 1961, inserting section 304B, 498A in IPC, 113A and 113B in Indian Evidence Act are not found substantially successful in containing the offence of dowry and dowry death. This can be inferred by the analyzing the Report: Crime in India-2006, National Crime Records Bureau, Ministry of Home Affairs7. The report provides following useful data and trends in Crime against women and Dowry deaths in particular.

A total of 1,64,765 incidents of crime against women (both under IPC and Special and Local Laws) were reported in the country during 2006 as compared to 1,55,553 during 2005 recording an increase of 5.9% during 2006.

Dowry Deaths (Sec. 302, 304B IPC)

Incidence- 7,618

Rate- 0.7

These cases have increased by 12.2% over the previous year (6,787). 23.6% of the total such cases reported in the country were reported from Uttar Pradesh (1,798) alone followed by Bihar (1,188) (15.6%). The highest rate of crime (1.3) was reported from Bihar as compared to the National average of 0.7.

Torture (Cruelty by Husband & Relatives) (Sec. 498A IPC)

Incidence- 63,128

Rate- 5.6

‘Torture’ cases in the country have increased by 8.2 per cent over the previous year (58,319). 14.5 per cent of these were reported from Andhra Pradesh (9,164). The highest rate at 13.7 was reported from Tripura as compared to the National rate at 5.6.

7 Government of India, Crime in India-2006: National Crime Records Bureau (Ministry of Home Affairs, 2006)


Trend Analysis

There is an overall increase in crime against women including the incidences of dowry deaths.

The crime head-wise details of reported crimes during 2002 to 2006 along with percentage

variation are presented in Table-1.

A clear gradual rise in incidents of dowry death along with other crimes committed against women is observable in above Table.


Table 2. Percentage Disposal of IPC Cases by Courts Crime-wise 2006

CRIME HEAD DISPOSAL PENDENCY

MURDER 15.9 84.1 ATTEMPT TO COMMIT MURDER

17.5 82.5

C.H. NOT AMOUNTING MURDER

18.2 81.8

RAPE 19.0 81.0 KIDNAPPING & ABDUCTION

15.2 84.8

DACOITY 13.2 86.8 PREPARATION & ASSEMBLY FOR DACOITY

17.2 82.8

ROBBERY 11.2 88.8 BURGLARY 12.2 87.8 THEFT 12.3 87.7 RIOTS 12.1 87.9 CRIMINAL BREACH OF TRUST

9.0 91.0

CHEATING 10.4 89.6 COUNTERFEITING

15.0 85.0

ARSON 16.0 84.0 HURT 18.3 81.7 DOWRY DEATHS 18.6 81.4 MOLESTATION 16.8 83.2 SEXUAL HARASSMENT

25.0 75.0

CRUELTY BY HUSBAND AND RELATIVES

15.2 84.8

IMPORTATION OF GIRLS

12.3 87.7

DEATH DUE TO NEGLIGENCE

16.0 84.0

OTHER IPC CRIMES

18.7 81.3

TOTAL COGNIZABLE CRIMES UNDER IPC 16.6 83.4


The growing greed for money, power and position among the masses is one of the reasons behind it. The desire of the groom’s family to realize the dreams of luxurious living among the lower and middle class, gives strength to it. The Institute for Development and Communication reveals that 85 per cent of dowry deaths and 80 per cent of dowry harassments occur in the lower and middle strata of the society. The existence and retention of caste system; religious orthodox undermining the women and making them vulnerable to socio-economic pressures also contribute to it. The hyper populated society against unmarried women and a political system run by pro status quo conservatives force women to be a part of this social institution. The use of indirect and sophisticated methods and the offenders trying to give an impression to be a suicidal or an accidental death make evidence recovery difficult.


Need For Legal Remedy

The inhuman crime of burning a woman just for sake of money, power and position among the masses and the desire of the groom’s family to realize the dreams of luxurious living is unavoidable and shame for any civilized society. Lack of social responsibility and firmly rooted customs assisted in flourishing of the evil of dowry.

National Crime Records Bureau, Ministry of Home Affairs, in its report “Crime in India - 2005” published in July, 2006 revealed that from 2001 to 2005 total number of dowry deaths were 34,294. Crime Clock of 2005” reported wherein one dowry death case is committed in every 77 minutes in India.

Due to the deeper roots and prevalence of evil of dowry in society, we needed stringent and deterrent laws to stop the practice of dowry and hence the dowry death. The law and law enforcement agencies both needed to be made more sensitive to this issue and more legally equipped to curb the menace. An instant check could be applied only passing an act rather waiting for the change in society to take place on its own or by social initiatives. The social initiatives may produce the desirable effect but will going to take a long time in achieving so.

Demand for the legal remedy was raised from all quarters of society and also in parliament and our legislature duly responded to the demands.

This deep-rooted social evil requires to be controlled not only by effective implementation of the Dowry Prohibition Act, 1961, but also by the Society. The Society has to find out ways and means of controlling and combating this menace of receipt and payment of dowry. It appears that instead of controlling payment and receipt of dowry in one or other form, it is increasing even in educated class. May be that, it is increasing because of accumulation of unaccounted wealth with few and others having less means follow the same out of compulsion.8

8 Vikas v. State of Rajasthan, AIR 2002 SC 2830 : 2002 CriLJ 3760 : (2002) 6 SCC 728


Legislative Provisions to Handle the Dreadful Incidents of Dowry Deaths

THE DOWRY PROHIBITION ACT, 1961[Act, No. 28 of 1961]

w.e.f. [20th May, 1961]

This was the first direct legal provision enacted to deal with the evil of dowry. This Act had specifically and clearly defined dowry and made demanding and giving dowry both an offence and also provisioned for compliance of this Act a separate Dowry Prohibition Officers.

Statements of Objects and Reasons.-

“The object of this bill is to prohibit the evil practice of giving and taking of dowry. This question has been engaging the attention of the government for some time past, and one of the methods by which this problem, which is essentially a social one, was sought to be tackled was by the conferment of improved property rights on women by the Hindu Succession Act, 1956. It is, however, felt that a law which makes the practice punishable and at the same time ensures that any dowry, if given does ensure for the benefit of the wife will go a long way to educating public opinion and to the eradication of this evil. There has also been a persistent demand for such a law both in and outside parliament. It, however, takes care to exclude presents in the form of clothes, ornaments, etc., which are customary at marriages, provided the value thereof does not exceed Rs. 2000. Such a provision appears to be necessary to make the law workable.”9

This Act was duly amended in 1984 and 1986 to make it better useful in practice and to make it better equipped to achieve the objects sought by the Act.

Important sections of the Act are:-

Section 2 - 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,

9 Statement of Objects and Reasons, Gazette of India, 1959, Extraordinary, Part II, section 2, p. 397


at or before1[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.

3[***]

Explanation II.--The expression "valuable security" has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).

________________________

1. Substituted by Act 43 of 1986, Section 2, for "or after the marriage" (w.e.f. 19-11-1986).

2. Substituted by Act 63 of 1984, Section 2, for certain words (w.e.f. 2-10-1985).

3. Explanation I omitted by Act 63 of 1984, Section 2 (w.e.f. 2-10-1985).

Section 3 - Penalty for giving or taking dowry

1[(1)] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry he shall be punishable2[with imprisonment for a term which shall not be less than3[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 than4[five years].]

5[(2) Nothing in sub-section (1) shall apply to, or in relation to,--

(a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf):

Provided that such presents arc entered in a list maintained in accordance with the rules made under this Act;

(b) presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf):

Provided that such presents are entered in a list maintained in accordance with the rules made under this Act:

Provided further that where such presents are made by or on behalf of (he bride or any person related to the bride, such presents arc of a customary nature and the


http://www.manupatra.co.in/Search/dispsearch.aspx?nActCompID=27050&iPage=1#f5








value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents arc given.]

________________________

1. Section 3 re-numbered as sub-section (1) thereof by Act 63 of 1984, Section 3 (w.e.f. 2-10-1985).



4. Substituted by Act 43 of 1986, Section 3, for "six months" (w.e.f. 19-11-1986).

5. Inserted by Act 63 of 1984, Section 3 (w.e.f. 2-10-1985).

Section 4 - Penalty for demanding dowry

1[4. Penalty for demanding dowry

If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.]

________________________

1. Substituted by Act 63 of 1984, Section 4. for section 4 (w.e.f. 2-10-1985).

Section 5 - Agreement for giving or taking dowry to be void

Any agreement for the giving or taking of dowry shall be void.

Section 8A - Burden of proof in certain cases

1[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 these sections shall be on him.]

________________________

1. Inserted by Act 43 of 1986, section 8 (w.e.f. 19-11-1986).

1[8B. Dowry Prohibition Officers

(1) The State Government may appointed many Dowry Prohibition Officers as it thinks fit and specify the areas in respect of which they shall exercise their jurisdiction and powers under this Act.

(2) Every Dowry Prohibition Officer shall exercise and perform the following powers and functions, namely:--

(a) to see that the provisions of this Act are complied with;

(b) to prevent, as far as possible, the taking or abetting the taking of, or the demanding of, dowry;

(c) to collect such evidence as may be necessary for the prosecution of persons committing offences under the Act; and

(d) to perform such additional functions as may be assigned to him by the State Government, or as may be specified in the rules made under this Act.]

________________________

1. Inserted by Act 43 of 1986, Section 8 (w.e.f. 19-11-1986).



NEED FOR THE AMENDMENTS

The legislation on the subject enacted by Parliament, i.e., the Dowry Prohibition Act, 1961 and the far-reaching amendments which have been made to the Act by a number of States during the seventies have not succeeded in containing the evil. As pointed out by the Committee on the Status of Women in India, the educated youth is grossly insensitive to the evil of dowry and unashamedly contributes to its perpetuation. Difficulties arised in having proof of directly incriminating facts in the peculiarities of the situation in cases of dowry related deaths. These difficulties have been sought to be redressed by amending the substantive as well as procedural

laws. Hence, the further amendments were needed and were later duly legislated as following-

Dowry Prohibition (Amendment) Act, 1984 (Act 63 of 1984)

Statement of Objects and Reasons.-

The evil of dowry system has been a matter of serious concern to everyone in view of its ever-increasing and disturbing proportions. Government has been making various efforts to deal with the problem. In addition to issuing instructions to the State Governments and Union territory administrations with regard to the making of thorough and compulsory investigations into cases of dowry deaths and stepping up antidowry publicity. Government referred the whole matter for consideration by a Joint committee of both the Houses of Parliament. The Committee went into the whole matter in great depth and its proceedings have helped in no small measure in focussing the attention of the public and rousing the consciousness of the public against this evil.

Amendment in section 2:

Substitution of the words “in connection with the marriage” for the words “as consideration for the marriage”

The Joint committee has recommended that the definition of “dowry” contained in section 2 of the 1961 Act should be modified by omitting the expression “as consideration for the marriage” used therein on the ground that it is well nigh impossible to prove that anything given were a consideration for the marriage for the obvious and simple reason that the giver i.e., the parents who are usually the victims would be reluctant and unwilling to set the law in motion. The omission of the words “as consideration for the marriage” would make the definition not only wide but also unworkable, for, if these words are omitted, anything given, whether before or after or at the time of marriage by any one, may amount to dowry. The Supreme Court has also placed a liberal construction on the word “dowry” as used in section 4 of the Dowry Prohibition Act, 1961, relating to demanding dowry. In the circumstances, it is proposed to substitute the words “in connection with the marriage” for the words “as consideration for the marriage” instead of omitting those words.


Amendments in section 3:

Amended in accordance with the recommendations of the joint committee to make the punishment for the offence more stringent. All presents given at the time of marriage to the bride and certain types of presents given at the time of marriage to the bridegroom are proposed to be excluded from the purview of the offences under the section. However, the recommendations of the committee for exempting the giver of dowry from punishment is not being given effect to as such exemption may only prove to be counter-productive.

Amendment in Section 4

Penalty for demanding dowry was amended to make the punishment there under more stringent on the lines recommended by the joint committee.

Amendments in Section 6

a. Reduced the time limit within which dowry received in connection with the marriage of a woman by any other person should be restored to the woman from one year to three months.

b. Likewise, the punishment for failure to restore such dowry within the said time limit was made more stringent on the lines recommended by the committee.

c. Under a special provision which was included in section 6 where a person is convicted for failure to restore the dowry to the woman concerned within the period specified in the section, the Court may, in addition to awarding punishment, issue a direction requiring him to restore the property to the woman within the period specified in the direction.

Amendment Act 43 of 1986- made changes in the following:-

(1) The Dowry Prohibition Act, 1961

Statement of Objects and Reasons.-

To make the provisions of the Act more stringent and effective. Although the Dowry Prohibition (Amendment) Act, 1984 was an improvement on the existing legislation, opinions have been expressed by representatives from women’s voluntary organizations and others to the effect that the amendments made are still inadequate and the Act needs to be further amended.

Amendment in Section 2:the phrase “any time after the marriage” was inserted to expand the scope of “dowry”.


Amendment in Section 3:

Minimum punishment for taking or abetting the taking of dowry under section 3 of the Act raised to five years and a fine of rupees fifteen thousand.

Section 8A was inserted:

The burden of proving that there was no demand for dowry will be on the person who takes or abets the taking of dowry.

Section 8B was inserted:

Provisioned for the appointment of Dowry Prohibition Officers by the State Governments for the effective implementation of the Act. The Dowry Prohibition Officers will be assisted by the Advisory Board consisting of not more than five social welfare workers (out of whom at least two shall be women).

(2) IPC , IEA and CrPC:

New offence of “dowry death” was included in the Indian Penal Code and the necessary consequential amendments in the Indian Evidence Act, 1872 have also been done.

Amendment in IPC:

Insertion of section 304B, which reads as

Dowry death.—(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than 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 relatives of her husband for, or in connection with, any demands for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.(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.

Amendment in Indian Evidence Act

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.

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)

Act No. 46 of 1983

(1) Indian Penal Code - Section 498AIntroduced in the Penal Code by Criminal Law (Second Amendment) Act of 1983

For dealing with cruelty to a married woman by the husband or the relatives of the husband on the ground of non receipt of dowry or insufficient dowry had given effect to by the Criminal Law (Second Amendment) Act, 1983.

Section 498A, reads as-

Husband or relative of husband of a woman subjecting her to cruelty

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 purpose 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 properly or valuable security or is on account of failure by her or any person related to her to meet such demand.

(2) Indian Evidence Act - Section 113A

Presumption as to abetment of suicide by a married woman


When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation.-For the purposes of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860)

(3) Code of Criminal Procedure, 1973Section 174 Cr.PC was also amended to secure Post Mortem in case of suicide or death of a woman within seven years of her marriage. Subsection (3) was inserted, which reads as

( 3 )When -

(i) the case involves suicide by a woman within seven years of her marriage; or

(ii) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman; or

(iii) the case relates to the death of a woman within seven years of her marriage and any relative of the woman has made a request in this behalf; or

(iv) there is any doubt regarding the cause of death; or

(v) the police officer for any other reason considers it expedient so to do.


JUDICIAL DICTUM

The Judiciary has delivered the decisions related to the dowry death cases under section 304B of IPC only when all the following ingredients are present (not a single ingredient missing):-

(a) when the death of a woman is caused by any burns or bodily injury, or

(b) occurs otherwise than under normal circumstances.

(c) and the aforesaid two facts spring within 7 years of girl's marriage.

(d) and soon before her death, she was subjected to cruelty or harassment by her husband or his relative.

(e) this is in connection with the demand of dowry.

If these conditions exist, it would constitute a dowry death; and the husband and/or his relatives shall be deemed to have caused her death.10

Ss. 3 and 4 of the Dowry Prohibition Act make out independent offences, but in the instant case it was the demand for dowry coupled with harassment which constitutes the basis of the prosecution case. Once the main part of the charge under S. 304-B was not found established, it was not possible to record conviction under Ss. 3 and 4 of the Dowry Prohibition Act.11

A conjoint reading of s. 113B of the Indian Evidence Act and s. 304B of IPC shows that there must be material to show that soon before her death, she was subjected to cruelty or harassment.12

Leaving aside the cases of statutory presumptions, the onus is upon the prosecution to prove the different ingredients of the offence and unless it discharges that onus, the prosecution cannot succeed.

The traditional criminal law dictum that an accused is presumed to be innocent unless proved guilty of the offence he is charged with, is not applicable on account of the legal fiction embodied in the provisions of Section 304B whereby he is deemed to have caused the death and the onus shifts on him to prove otherwise.

10 Pawan Kumar & Ors. v State of Haryana, AIR 1998 SC 958 : 1998 Cri.L.J. 1144 (SC) : 1998 (1) Crimes 164 (SC) : JT 1998 (1) SC 565 : (1998) 3 SCC 309

11 Sakhi Mandalani v. State of Bihar, (1999) 5 SCC 705 : 1999 SCC(Cr) 103912 Kamesh Panjiyar @ Kamlesh Panjiyar v. State of Bihar, AIR 2005 SC 785 : 2005 Cri LJ 1418 (SC) : JT 2005 (2)

SC 218 : (2005) 2 SCC 388


The judicial decisions discussed under the described ingredients for an offence to be dealt under 304B of IPC

1. Death in unnatural circumstancesProsecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the ‘death occurring otherwise than in normal circumstances’.

2. Death within 7 yrs of marriageBalram Prasad Agrawal v. State of Bihar and ors.13

In this case, the death occurred after the prescribed seven years of time after the marriage hence the 304B was not applied.

Facts:o Deceased was subjected to cruelty by her mother-in-law, her husband and his

elder brother which forced her to commit suicide by jumping into well. o They persisted in demanding dowry and as the deceased did not fulfill their

demands, the accused started beating her physically and used to torture her causing danger to her life.

o She had earlier attempted to commit suicide but was saved by neighbours.

o She had left the house of her husband and started living with her parents.

However, a compromise was made with her husband and in-laws and she was brought to the house of her in-laws in the year 1988 where she started to reside till the date of her tragic death.

o She had filed report before the concerned police station against her husband and

in-laws.o Finally deceased had committed suicide by jumping in the well.

o The marriage had taken place in year 1977 and the death took place in year 1988.o After the death deceased father went to see her was informed by the neighbours that on

the previous night of the date of the occurrence there was quarrel in the house of the accused and they had heard the crying and weeping of Kiran Devi and she was being assaulted by her in-laws.

Decision:Here all the conditions were satisfied except the ‘within seven’ year provision of s. 304B of IPC. Thus more than seven years had elapsed, the presumption that deceased might have been killed for the sake of dowry cannot be raised. SC convicted the accused for offences punishable under 498A.

13 AIR 1997 SC 1830 : 1997 CriLJ 1640 : 1997(1) Crimes 10 (SC) : JT 1996(11) SC 60 : (1997) 9 SCC 338


3. “Soon before death”State of Andhra Pradesh v. Raj Gopal Asawa and Anr.14

If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.

The expression 'soon before' is very relevant where Section 113B of the Evidence Act and Section 304B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence.

It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304B IPC and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to expression 'soon before' used in Section 114. Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods 'soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession.

The determination of the period which can come within the term 'soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death.

Interpretation of soon in various casesa. State of Orissa v. Niranjan Mohapatra15

Where there is no evidence to suggest that soon before the occurrence, the deceased was subjected to torture and harassment, the ingredients under s.304B were not established.

14 AIR 2004 SC 1933 : 2004 (1) ALD (Cri) 642 : 2004 CriLJ 1791 : JT2004(3)SC560 : (2004) 4 SCC 47015 AIR 2005 SC 970 : 2005 Cri LJ 1427 (SC) : JT 2005(2) SC 599 : (2005) 9 SCC 578


b. Dhain Singh and Anr. v. State of Punjab16

This is case in which the soon before was liberally interpreted.Death having occurred within a period of two months of the return of deceased from her paternal home to her husband’s home. Accused was held guilty for causing dowry death

c. Surinder Kaur and Anr. v. State of Haryana17

In this all ingredients of dowry death were present but soon before death cruelty.Where soon after the marriage, i.e., about two and a half years prior to death of the deceased, there were some alleged harassment for lack of dowry but no soon harassment evident, it could not be sufficient ground to hold the accused liable. Allegations not in proximity to the death of the deceased.

4. Subjected to cruelty and harassment

a. Case when direct evidence of cruelty of harassment is absent: There must be proximate connection between the alleged cruelty and the death of the deceaseda) Dhain Singh and Anr. v. State of Punjab18

304B and Indian Evidence Act - Section 113B were invoked. Facts: Death of deceased by burn injuries within two and a half years of date of

marriage. Allegations of demand of dowry and maltreatment and cruelty meted out

to deceased by appellant. Evidence presented:

o To show demand of Television set and deceased being sent back to parental home.

o To show settlement of dispute by Panchayat. As evidence to show demand of dowry by appellant and deceased being taken back in appellant’s home only after meditation

o death having occurred within a period of two monthso Cremation of the body of deceased without giving any info to

police and to father of the deceased in clandestine manner. Arguments advanced:

o It is true that the prosecution has to establish that there must be nexus between the cruelty and the suicide and the cruelty meted out must have induced the victim to commit suicide.

o The appellant has no case that there was any other reason for her to commit suicide. The evidence shows that the first appellant had

16 JT 2004 (7) SC 212 : (2004) 7 SCC 75917 AIR 2004 SC 1747 : 2004 Cri LJ 1765 : JT 2004 (3) SC 61:(2004) 4 SCC 10918 JT 2004 (7) SC 212 : (2004) 7 SCC 759


demanded dowry and he had sent her away from his house and only after the mediation she was taken back to appellant's house and death happened within a period of two months thereafter. The clandestine cremation of deceased.

Decision o These facts clearly show that the suicide was the result of the

harassment or cruelty meted out to the deceased. The presumption under Section 113B of the Indian Evidence Act could be invoked against the appellant and he Sessions Court rightly found the appellant guilty of the offence punishable under Section 304B IPC and Section 201 IPC.

b) Taiyab Khan and Ors. v. State of Bihar (now Jharkhand)19

Present is a case of death of a woman having taken place within three years of her marriage. It is a case of an unnatural death, that is, death which occurs otherwise than under normal circumstances. The first three ingredients are clearly established. The only other ingredient which needs to be considered is the harassment of the woman by the husband or his relatives in connection with demand for dowry. PW 1 to PW 5 (PW1 and PW2 were the brothers of the deceased) have spoken about the dowry demands made by the appellants and the harassment of the deceased on account of such demands by the appellants. Decision:

It is a case of unnatural death. The absence of viscera report to confirm the death by poisoning does not make any difference to the fate of the case. The fact remains that it is a case of unnatural death. Section 304B IPC refers to death which occurs otherwise than under normal circumstances. It cannot be said to be a case of normal death. Held the appellants (accused who had appealed against the HC decision here) guilty of the offence under Section 304B.

5. For or in “connection” with any “demand for dowry”

i. Demand for dowry

19 AIR 2006 SC 673: 2006 CriLJ 544: JT 2005 (10) SC 192 : (2005)13 SCC 455


a. Appasaheb and Anr. v. State of Maharashtra20

Ratio Decidendi: Demand for money on account of some financial stringency or for meeting some urgent domestic expenses cannot be termed as a demand for dowry as the said word is normally understood

Appellants convicted for committing offence of harassing the deceased for not fulfilling dowry demands. Charges framed and on the basis of evidences recorded, appellants convicted under Section 304B of IPC. Appeal filed before High Court dismissed. Hence, appealed in Supreme Court . Postmortem examination report showed no sign of external or internal injury on deceased’s body and cause of death opined to be by insecticide poisoning. Evidence on record neither shows alleged demand of dowry nor establishes it. Held, no evidence either direct or circumstantial to show that deceased committed suicide due to harassment or any demand for "dowry" was made by the appellants. Essential ingredient of Section 304B of IPC i.e. demand for dowry, not established.SC held that conviction of appellants not sustainable due to the lack evidence to show any demand for dowry.

b. "Demand of dowry" itself punishable:

The State of Andhra Pradesh v. Raj Gopal Asawa and Anr.21

"Dowry" definition is to be interpreted with the other provisions of the Dowry Prohibition Act, 1961 including Section 3, which refers to giving or taking dowry and Section 4 which deals with a penalty for demanding dowry, under the Act and the IPC. This would be contrary to the mandate and object of the Act. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry.

The offence alleged against the respondents is under Section 304B IPC which makes "demand of dowry" itself punishable. 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. When Section 304B refers to "demand of dowry", it refers to the demand of property or valuable security as referred to in the definition of "dowry" under the Act . The argument that there is no demand of dowry, in the present case, has no force. 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

20 AIR 2007 SC 76321 AIR 2004 SC 1933 : 2004 CriLJ 1791 : JT 2004 (3) SC 560 : (2004) 4 SCC 470


either direct or indirect. It is significant that Section 4 of the Dowry Prohibition Act, 1961, 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 respondents seek, that conviction can only be if there is agreement for dowry, is misconceived.

ii. Impact of “dowry demand” in various cases

a) Noorjahan v. State rep. by D.S.P.22

The evidence is inadequate to show that present appellant was party to any demand for dowry. In fact, PW-1(mother of the deceased) stated that when she went to the place of her daughter appellant was present alongwith A-1(husband) and A-2. The said A-1 demanded jewels and presentation of Rs. 5,000/- for Ramzan. She accepted that she told A-1 and A-2 that she will send the same within a week. The next statement of this witness is very significant. She (appellant) told that two months' time will be sufficient for offering the presentation. In other words, she did not make any demand for dowry. That aspect has been accepted by PW-1. She has categorically admitted that while she went to the house of her daughter, she (appellant) was not present. Therefore, there is no evidence to show that appellant was either present when the demand was made or she herself made any demand.

Supreme Court held that above being the position, the prosecution failed to establish the accusations against the appellant. Therefore, her conviction can not be maintained and is set aside.

b) Pawan Kumar v. State of Haryana23

In this case, the sections 30624 and 498A of IPC were invoked as there was no direct evidence for dowry demand but cruel treatment and unnatural death was found to be present and further the deceased was abetted to commit suicide.Facts:o After four months of the marriage, A1(Pawan, the husband) asked for

Rs10,000 and was sent back to her paternal home.

22 AIR 2008 SC 2113 : JT 2008 (6) SC 220 23 AIR2001SC132424 Section 306 - Abetment of suicide

If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.


o After about one year, deceased again came to the house of Sudarshan(deceased brother) with a definite grievance about being pestered for money by her husband and parents-in-law.

o She stayed at the house of Sudarshan for eight months and never wanted to go back by reason of consistent harassment with beating.

o Later when she returned back, appellants continued harassing deceased for dowry. Sudarshan came to know of this fact whenever he visited deceased

o About two months prior to the occurrence, Pawan demanded for a Maruti Van, which was not accepted by Sudarshan.

o On 17.9.1985, Sudarshan received a telephonic message that deceased was burnt.

Decision:In the facts of the matter under consideration, the circumstances pointedly point out the accused as a guilty person as abettors and on the wake of the aforesaid the order of conviction (of High court) cannot be interfered with.

c) K. Prema S. Rao and Anr. v. Yadla Srinivasa Rao and Ors.25

No evidence against the husband that at the time of marriage there was any demand or settlement for giving dowry in cash or by way of transfer of property. After 2-3 months of marriage husband started harassing the wife to force her to transfer the land to him. Cruel conduct of the husband led the wife to commit suicide.Decision:

The harassment or cruelty meted out to the deceased by the husband after the marriage to force her to transfer the land in his name was 'not in connection with any demand for dowry'. One of the main ingredients of the offence of "demand of dowry" being absent in this case, the High Court cannot be said to have committed any error in acquitting accused No. 1 for offence under Section 304B, IPC. Sentenced the accused No. 1 of offence of abetment of suicide under Section 306 of IPC along with or instead of Section 498A of IPC.

Recommendations and Suggestions:

25 AIR 2003 SC 11


Regarding the number and the manner of dowry deaths, there are widespread public demands for

stringent legal measures to effectively curb this social evil. But, at the same time, the cardinal

principles of penology, especially those relating to sentencing, have to be duly adhered to. It is

important that legal sanctions must be appropriate, pragmatic and effective. Sentence must not be

too less or too harsh and more than what is necessary. Both will be counter-productive. That is

why there is need to supplement the punitive measures by appropriate preventive measures.

Following are important suggestion and recommendation given by important commissions:

A. National Commission for Women

The issue relating to the deep-rooted evil of dowry was also taken up in the convention

organized by the National Commission for Women on 22nd November, 2005 at Symposia Hall

of NSC, Pusa, New Delhi. The Commission proposed an amendment to enhance the punishment

for dowry deaths under Section 304-B, IPC for the following reasons.

(a) To keep this offence at par with murder and by no stretch of imagination it is less

grave an offence than the murder;

(b) To create deterrence in the minds of the people indulging in such heinous crimes

by now it is more than clear that neither the Dowry Prohibition Act nor the

amended provisions of IPC could deter the people and could not register the

success. The Committee found that because of the above said discrepancies in the

provision the law has failed in its objective. By incorporating the above changes

law can be made effective.

(c) Also the time limit of presumption may be increased because seven years is very

short a time and often the offence is executed in a preplanned manner.

(d) The minimum punishment should be increased from seven to ten years.

B. 18th Law Commission of India


The Law Commission had presented 202 Report on : Proposal To Amend Section 304-B Of Indian Penal Code, October, 200726

The Commission examined Section 304-B IPC in the light of various judicial pronouncements and critically dealt with the substantive as well as procedural aspects of the subject. a) Dowry death is not murder, hence no capital punishment:

Notwithstanding the aforesaid legal amendments the incidents of dowry deaths have not shown any sign of significant decline. This gave rise to demands for capital punishment/death sentence for the offence of dowry death in order to imbibe necessary deterrence in the law.

1. The offence of dowry death in Section 304B, IPC does not fall into the categories

of the offences for which death penalty has been provided in the Penal Code.

2. Dowry death is different from the offence of murder. Death of a bride may fall

under both the categories of offences, namely, murder and dowry death, in which

case, death sentence may be awarded for committing the offence of murder in

appropriate cases depending upon the facts and circumstances of each case.

3. Dowry death per se does not involve the direct connection between the accused

and the offence because of its presumptive character. Where the evidence in a

given case clearly shows that the accused willfully put human life to peril, the

case will attract the provisions of Sections 300 r/w 302 and it will no longer be a

case of dowry death simpliciter.

In view of the aforesaid, there is no justification for amending Section 304B to

provide for death penalty. Such penalty will also not be in conformity with the principle

of proportionality.

b) Increase in quantum of punishment

The minimum imprisonment of seven years under the section should be raised to ten years. This

has been also one of the recommendations of the National Commission for Women. The reason

ascribed for this is that a victim of dowry death is generally forced to undergo long and persistent

torture before being killed. There seems to be much substance in this recommendation and we

26 Government of India, Report 202: The Law Commission (Ministry of Law & Justice, October, 2007)


http://lawmin.nic.in/

concur in it. The recommendations of the National Commission for Women are already before

the Government. It is for the Government to take an appropriate view on the above

recommendation.

c) Do not recommend amendment of Section 304-B of the Indian Penal Code, 1860 to provide

for death sentence as the maximum punishment in the case of a dowry death.

d) The enforcement agencies too will have to be more sensitive and responsive to the needs of

the situation arising from the incidents of dowry death.

Dowry deaths are manifestation of socio-economic malady prevailing in the society. This has

to be addressed at different levels so as to curb the menace of dowry deaths and not at the

legal redressal level only.


dowry deaths in india- legislative and judicial dictum

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