Section 113 of the Indian Evidence Act, 1872

Proof of cession of territory: A notification in the Official Gazette

that any portion of British territory has before the commencement
of Part III of the Government of India Act, 1935 been ceded to any
Native State, Prince or Ruler, shall be conclusive proof that a valid
cession of such territory took place at the date mentioned in such
notification.

Comments:

Section 113 provides that if a notification in an official gazette that

a portion of British territory has been ceded to any native state
before commencement of Part III of the Government India Act, 1935
the notification is a conclusive proof and no court has any power to
make any enquiry about cession. This section now is obsolete. It is
hardly of any use in the present form
Section 113A

The term presumption in its large and most comprehensive sense,

may be defined as an inference affirmative or disaffermative of truth
or falsehood of a doubtful fact or proposition drawn by a process of
probable reasoning from something proved or taken to be granted.
The burden of proof deals with presumption. It is an inference that
the court is directed to draw from certain facts of certain cases. It
can also be said that the proof of certain facts, the law will
sometimes infer the existence of another fact that need to be
expressly proved.

There are four kinds of presumption.

They are:

1. Presumption of fact

2. Presumption of law

3. Irrebutable presumption

4. Rebbutable.

5. Presumption of

fact

Presumptions of fact are also known as natural presumption. These

are inferences that are naturally and logically drawn from
experiences and observation from the course of nature, the
constitution of human mind, the springs of human action and the
habits of the society.

Presumption of law

When law with the quality of a rule that directs them vests
presumption of fact how they must be drawn.

Irrebutable presumption

A pressumtion that cannot be overcome by any additional evidence

or argument. It is known as a conclusive presumption. An example
of this type of presumption is the child under the age of seven
years is not capable of committing felony.

Rebbutable presumption

These are certain presumption that are regarded as something

more that mere maxims. It is not easy to say to what extent. A
much familiar instance of this is that a person who is in
possession of stolen goods is either a thief or a receiver.

Matrimonial offences are those offences that take place in the

matrimonial house of a woman. The matrimonial home is the
household a woman shares with her husband; whether it is rented,
officially provided, or owned by the husband or his relatives. A
woman has the right to remain in the matrimonial home along with
her husband as long as she is married, though there is no definite
law regarding this right. There are different types of matrimonial
offences like dowry death, illegitimacy of the child, adultery. But
there are presumptions relating to only some of the offences.

Presumption is very necessary in matrimonial offences.

Presumptions are very essential in matrimonial offences because it
is difficult to get evidence. There are three main provisions
regarding the presumption in context of matrimonial offences.

1. Presumption as to abetment of suicide by a married woman

which is dealt in section 113A of Indian Evidence Act

2. Presumption as to dowry death which is dealt in 113B of Indian

Evidence Act

3. Birthduring marriage conclusive proof of legitimacy dealt in

section 112 of the Indian Evidence Act

Abetment of Suicide by a Married Woman

The Indian Evidence Act section 113A deals with the presumption
as to the abetment of suicide by a married woman. Section 113A
states that:

Presumption of 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 and such
relative of her husband had subjected her to cruelty, the curt may
presume, having regard to all other circumstances of the case, that
such suicide had been abetted by her husband or by any such
relative of her husband.

Explanation- For the purpose of this section, cruelty shall have

same meaning as in section 498A of the Indian Penal Code.

The term cruelty shall mean the same as defined in 498A section of
India Penal Code according to this

Cruelty means-
(a) Anywillful 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 such person related to her to meet such
demand.

The section 113A was inserted by Criminal Law (second

amendment) Act 46 of 1983. This was introduced because there
was increasing number of dowry death, which was in fact a matter
of serious concern. This evil was commented upon the Joint
Committee of the House to examine the work of Dowry Prohibition
Act, 1961. the cases of cruelty by the husband or relative of
husband which would result in suicide or murder only constituted
a small fraction. In order to move this difficulty it was proposed to
amend Indian Penal Code, Indian Evidence Act and Criminal
Procedure Code that could efficiently deal with the cases of dowry
death as well as cruelty to married woman by her husband or his
relatives.

Retrospective effect

The section 113A of the Indian Evidence Act has an retrospective

effect. It applies to all pending action irrespective of the fact that
when the offence was committed. This can apply to the offence
relating to the abetment of suicide even if the incident took place
before the act coming into force i.e. before 1983 by an married
woman.

In the case of Harikumar v State of Karnataka the court has said

that by a plain reading of the provision it permits to draw the
instances of cruelty even to prior to the date of concealment of this
provision. The legal provision provided that under this section
clearly concludes the past instances of cruelty spread over a period
of seven years from the date of marriage the victim. Therefore it is
permissible to the court to inquire into a case and look into the past
conduct prior to the commencement date of the amending
provision.

In another case, Gurubachan v Saptal Singh the Supreme Court

has held that s113A does not create any new offence, nor does it
create any substantial right, but it is merely a matter of procedure
and its retrospective operation will apply to the offence committed
prior to the insertion of s113A of the Indian Evidence Act.

The beauty of law is that if a person wants to get some remedy

done through the court he has to prove the existence of certain
factual situation. In the same way in order to attract the provision
of s113A of the Indian Evidence Act the burden of proving the fact
lies on the person
who affirms it. This principle of burden of proof is applicable to all
matrimonial offences. For attracting the provision of 113A the
following things has to be proved.

1. Suicide must be committed by a married woman

2. Suicide
must have been abetted by husband or any relative of her
husband

3. Suicide must be committed with in seven years of the marriage

4. Shemust have been subjected to cruelty (as defined in 498A of

Indian Penal Code) by her husband

Presumption under section 113A refers to one of the three

ingredients of abetment as defined in section 107 IPC i.e.
instigation, conspiracy and intentional aiding of the act. Where
conduct of the accused indicated that he did not want her to die
even though he might have treated her cruelly earlier, it cannot be
presumed that he abetted the suicide.

The first requisite for attracting this section is that it should be

proved that the wife was subjected to cruelty as defined in 498A of
Indian Penal Code. 'Cruelty' does not embrace acts of physical
torture alone. When the evidence shows that the scolding, which the
victim received from her mother-in-law, made her commit suicide, it
will have to be construed as a willful conduct of mother-in-law. It
should be assumed that such a nature as had driven the victim to
commit suicide. The case is covered by Explanation (a) to s 498A,
Indian Penal Code and presumption under s 113A of the Evidence
Act can be raised. Acts of cruelty are invariably committed within the
four walls of a house and naturally, eyewitnesses to such incidents
are not easily available. The meaning of 'cruelty' as assigned in s
498A of the Indian Penal Code has to be imported in s 113A of the
Indian Evidence Act while deciding whether he victim has been
subjected to any cruelty or not. In the under mentioned case , a
newly wedded girl died in burn injuries. Their in-laws accused the
deceased of carrying an illegitimate child. Besides, the sisters and
father of the deceased gave evidence that the she was tortured for
bringing insufficient dowry and there was delay in giving medical aid
to the deceased. Information about the incident was also conveyed to
the father after a delay. The Supreme Court held that the deceased
had committed suicide by he instigation of her husband and in-laws
and presumption under 113A can be raised.

In order to attract this provision the proof of all the four ingredients
must be there. The prosecution must prove that her husband or her
in-laws have meted out cruelty to the victim.

Section 113B: Presumption as to Dowry Death

The term "dowry death" and "dowry murder" first began to be used
around 1977-78 when investigations revealed that deaths of
married women, which for years had been camouflaged by the
police as accidents or suicides, were actually murders or abetted
suicides, preceded by
prolonged physical and mental torture by the husband and in-laws
in connection with dowry demand. Instead of describing them as
"wife murders" or "abetted suicides" the women's organizations
began calling them "dowry deaths".

The section 113B of the Indian Evidence Act deals with the dowry
death. Section 113B states that:

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 304-B of the Indian Penal Code
(45 of 1860)

This section and the section 304B of Indian Penal Code has been
added by the Dowry Prohibition (Amendment) Act No.43 of 1986
which was with effect from 19th November 1986. This was done in
order to solve the increasing problem of dowry death. The word
dowry death has been defined in 304B Indian Penal Code and the
term dowry has deen defined in section 2 of the Dowry Prohibition
Act 1961.

Section 304B of the Indian Penal Code states that

Dowry death - (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.

The definition of dowry as stated in s2 Dowry Prohibition Act 1961

is- '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) byparents of either party to a marriage or by any other to either

party to the marriage or to
any 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 person to whom the Muslim
Personal Law (Shariat) applies.

Explanation. I Omitted.

Explanation. II. The expression 'valuable security' has the same

meaning as in s 30 of Indian Penal Code 1860 (45 of 1860).

In the case of Keshab Chandra Pandey v State the presumption

under s 113B of the Indian Evidence Act shall be raised only on the
proof of the following essentials:

(i) Whether the accused has committed the dowry death of a

woman. So the presumption can be raised if the accused is being
tried for an offence under s 304B, Indian Penal Code.

(ii) The
woman was subjected to cruelty or harassment by her
husband or his relatives.

(iii) Such
cruelty or harassment was for or in connection with the any
demand for dowry.

(iv) Such cruelty or harassment was soon before her death.

Nature of Presumption

Section 113B uses the word "shall" and not 'may' so it is a

presumption of law .On proof of the essentials mentioned above, it
becomes obligatory on the court to raise a presumption that the
accused caused the "dowry death". The court has no discretion to
draw the presumption under this section if the essential ingredients
are proved then they are bound to draw this presumption under
s113B of the Indian Evidence Act. The legislature has made this
presumption a mandatory presumption of law, of course,
rebuttable, Though this may sound to be a violent departure from
the accepted norms of criminal law. The legislature thought that the
presumption under Section 113B should be a mandatory
presumption if the evil of dowry deaths is to be eradicated from the
roots of our society.

If it is proved that soon before her death, the victim was subjected to
cruelty or harassment in connection of a dowry demand, then the
presumption under s 113B can be raised. If the prosecution has
failed to prove the case under s 304B, IPC, even then, no
presumption can be raised under 113B of the Indian Evidence Act.
So 304B is an integral part of 113B of the Indian
Evidence Act. Cruelty need not be physical. Even mental torture in
a given case would be a case of cruelty or harassment under 304B
and 498A.

In Nem Chand v State of Harayana the parties were married on 24-

5-1962. After staying at the matrimonial home for two months, she
returned to her parents' house and told them that her husband
wanted a television set and a fridge. Her father gave her a sum of
Rs. 6,000 and she left for her matrimonial home. Her husband
again demanded a sum of Rs. 25,000 for purchasing a plot. There
after the husband took his wife to her parents' home saying that he
would not take her back unless a sum of Rs. 25,000 was paid to
him. After one year he took her back but he did not give up his
demand for Rs. 25,000. Soon thereafter she left for her parents
home and came back with a sum of Rs. 15,000 with a promised
that the rest of the amount would be would be paid later on. She
died of strangulation in her husband's home. The trial court found
accused guilty. Supreme Court held that accused should be
convicted.

In a Shanti v State of Harayana , where the death took place within

seven years of marriage, the in-laws of the deceased did not inform
deceased's parents about the death but hurriedly cremated the
deceased. The prosecution succeeded in establishing cruel
treatment towards the victim. The death could not be said to be
natural death and the presumption under s 113B of the Evidence
Act was attracted.

The cruelty or harassment should be meet to the victim soon before

the victim's death to bring under this presumption. In a case , there
was dispute between parties regarding dowry and that wife, was
sent back to her parent's home and was again taken back to her
matrimonial home after a 'panchayat' which was held to resolve the
dispute. This event happened 10-15 days prior to the occurrence of
the incident as the death of the deceased. However, there was no
evidence, which indicate that she was treated with cruelty or
harassed with the demand for dowry during the period of between
her taken back home to and her tragic end. In these circumstances,
the presumption for dowry death cannot be raised. The court held
that the, presumption of 113B could not be brought in.

In another case Mangal Ram & Anor v State of Madhya Pradesh,

the wife committed suicide within five years of her marriage. She
was living with her parents for about two-three years. Within one
month of returning to her matrimonial home, she jumped in to a
well, and committed suicide. Harassment by husband and her in-
laws during this month has not been proved beyond reasonable
doubt. In these circumstances, the presumption cannot be raised
against the husband.

In another example Prem Singh v State of Harayana, there was,

unnatural death of married
woman in her husband's house within seven years of her marriage.
Evidence showed that the husband had harassed her for not
bringing sufficient dowry. Further, the medical evidence showed that
the deceased died due to asphyxia as a result of smothering which is
an unnatural death. No explanation offered by the husband as to
how the deceased sustained several injuries on her body. The Court
held, in the circumstances, the presumption of dowry death could be
raised against the husband. As a result the High Court was justified
in reversing his acquittal.

In Pawan Kumar v State of Harayana the deceased and the

appellant were married in 1985. After a few days of the marriage
there was demand of scooter and fridge. On account of not
satisfying the demand, she was repeatedly taunted, maltreated and
mentally tortured. In April 1987 when deceased's maternal uncle
died, she along with her husband visited Delhi to offer condolences.
And by evening on the same day instead of returning to her
husband's place came to her sister's house. She remained there for
a few days. When her husband came to take her back she was
reluctant but her sister brought her down and sent her with her
husband. She went with the husband but with the last painful
words that' it would be difficult now to see her face in the future'.
On the very next day, she committed suicide.

While examining the constituents of dowry death the court held that:

(a) whenthe 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 seven years of girl's
marriage;

(c) and soon before her death, she was subjected to cruelty or
harassment by her husband or his relative.
 Hem Chand vs. State of Haryana Victim was married to accused ,
a police officer, on 1982. She was sent back to her maternal home
whenever the persistent dowry demands were not met. On 1984,
accused left victim with her parents to get some money. 1997,
victim died of strangulation in her matrimonial home. The husband
took her body to -his village. Victim father alleged that his daughter
had been murdered for dowry. The police sent the highly
decomposed Since the husband had subjected the wife to cruelty
before her death, the presumption that he had caused her death,
offered by section 113 B of the Indian Evidence Act, could be made.