ARTICLE

DOWRY DEATH AND CRUELTY

 DISHA GUPTA  BASICS OF LAW  Tue, Jun 04, 2019, at ,12:16 PM    

WHAT IS DOWRY?

Dowry is an evil that still exists in India. The dowry system puts a great financial burden on the bride’s family. In some cases, the dowry system leads to crime
against women, ranging from emotional abuse and injury to even deaths. The Dowry Prohibition Act, 1961 defines ‘dowry’ as ‘any property or valuable
security is given or agreed to be given either directly or indirectly.’ It may be defined as a demand for valuable security having an inextricable nexus with the
marriage, that is, it is a consideration from the side of the bride’s parents or relatives to the groom or his parents and/or guardian for the agreement to wed the
bride-to-be. The word ‘valuable security’ is defined in section 30 of the Indian Penal Code. It denotes a document which is, or purports to be, a document
whereby any legal right is created, extended, transferred, restricted, extinguished or released, or who hereby any person acknowledges that he lies under legal
liability, or has not a certain legal right. For example, A writes his name on the back of a bill of exchange. As the effect of this endorsement is to transfer the
right to the bill to any person who may become the lawful holder of it, the endorsement is a “valuable security”.

WHEN PROPERTY IS NOT DOWRY?

1. In Arjun Dhondiba Kamble v. State of Maharashtra, the court held that where the demand for property or valuable security
has no connection with the consideration for the marriage, it will not amount to a demand for dowry.

2. In Satbir Singh v. State of Punjab, the court held that the customary payments in connection with the birth of a child or other
ceremonies are not involved within the ambit of dowry.

3. The Supreme Court in one of its judgments ruled that asking for the wife's share in the ancestral property from in-laws
would not come under the definition of ‘dowry’.

DOWRY IN MODERN ERA-


Although, we live in the 21st century, yet we are not completely rid of practices like dowry. Such practices still prevail in India. What differentiates it is that
now it can be in the form of a payment of cash or gifts from the bride's family to the bridegroom's family upon marriage. There are variations on dowry
prevalence based on geography and class. Dowry also varies by economic strata in India. Upper-class families are more likely to engage in the dowry system
than the lower class. This could be in part due to women's economic exclusion from the labour market in upper classes. When dowry evolved in the Vedic
period, it was essentially followed by the upper castes to benefit the bride, who was unable to inherit property under Hindu law. In the modern era, the concept
of dowry has evolved and Indian families no longer practice the traditional concept. In the modern era, the practice of dowry requires the bride's family to
transfer goods to the groom's family in consideration for the marriage. This may sometimes lead the groom's family to dictate the quantum of each gift along
with specific demands for dowry. In such circumstances, there is an element of exerting coercion on the bride's family and this is what has come to be
recognized as the menace of dowry in today's times. Thus, dowry is considered as a major contribution towards violence against women in India.

The predominant types of dowry crimes are cruelty (which includes torture and harassment), domestic violence (including physical, emotional and sexual
assault), abetment to suicide and dowry death (including, issues of bride burning and murder).

DOWRY DEATH-

In 1986, a new offense known as “Dowry Death” was inserted in the Indian Penal Code as section 304-B by the Dowry Prohibition (Amendment) Act, 1986
(43 of 1986) with effect from November 19, 1986. The offense is cognizable, non-bailable and triable by a Court of Session.

Section 304-B under Indian Penal Code 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.

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 essential components of Section 304-B are as follows:

1. Death of a woman occurring otherwise than under normal circumstances.

2. Death should have occurred within 7 years of marriage. In Mangat Ram vs. State of Haryana, it was held that the mere fact
that a married woman committed suicide within a period of 7 years of her marriage would not straightway attract the
presumption under Section 113A of the IEA.

3. Soon before her death, she should have been subject to cruelty and harassment in connection with any demand for dowry.
In the case of Shanti vs. State of Haryana, the court held that unnatural death whether homicidal or suicidal would
attract Section 304-B IPC.

The above ingredients of dowry death were identified in the case of Pawan Kumar vs. State of Haryana.

These ingredients were reframed in Kans Raj vs. State of Punjab. The reframed ingredients were as follows-

1. The death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances;

2. Such death should have occurred within 7 years of her marriage;

3. The deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;

4. Such cruelty or harassment should be for or in connection with the demand of dowry; and

5. To such cruelty or harassment the deceased should have been subjected to soon before her death.

RELATION BETWEEN SECTION 304-B OF IPC AND SEC 113-B OF INDIAN EVIDENCE ACT-

Section 113-B of Indian Evidence Act includes Presumption as to dowry death. This states that 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.

In Bhoom Singh v. State of Uttar Pradesh the Allahabad High Court took the view that section 113B of the Indian Evidence Act is procedural and therefore is
 of
retrospective in operation. Under section 113B of the Indian Evidence Act the presumption of dowry death arises if the death takes place within seven years
marriage and there is evidence to show that she was subjected to harassment and cruelty. The prosecution 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’.

It should be noticed that the words in section 113B of the Indian Evidence Act are that the married woman was subjected to cruelty or harassment soon before
her death. This implies that there has to be close proximity between the incidents of cruelty or harassment for the demand of dowry and the death of the
woman. If the two are apart, the presumption will not apply. In the case of Samir Samanta v. State of West Bengal, it was held that a proximity test is applied
for a determination whether the presumption under section 113B of the Indian Evidence Act could be invoked.

WHAT IS CRUELTY?

Cruelty or harassment differs from the case of a case. It relates to a mindset of people which varies from person to person. Cruelty may be of two kinds-
Mental or Physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. In the case of
Surinder Singh vs. State of Haryana, it was held that cruelty can be depriving a woman of economic resources or essential amenities of life. The list is not at
all exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman.

In State of Maharashtra v. Ashok Narayan Dandalwar, it was held that in order to bring a charge under Section 498, cruelty is the necessary ingredient which
is needed to be proved.

One of the latest judgments of Supreme Court restored an immediate arrest provision in the dreaded Section 498A of IPC that those arrested for cruelty to a
married woman over dowry can approach the courts for bail to prevent the alleged misuse of the law.
The offense is both non-cognisable and non-bailable, which implies that bail can only be granted at the discretion of a magistrate. A bench led by CJI Dipak
Misra clarified that those arrested under the law can move the magistrate for bail, and the bail petitions will be heard the same day as far as possible.

The CJI undid an earlier judgment of Justice Adarsh Kumar Goel (now retired) which created a mechanism to prevent arbitrary arrests of every member of
the husband’s family, including relatives living outside the city, in which the marital home of the woman is situated.
WHY DO WE NEED 498-A?

In the case of Sushil Kumar Sharma vs. Union of India, the Apex Court remarked that the object of the provision is the prevention of the dowry menace. But
as has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique
motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media
coverage adds to the misery.

HOW LAW DEALS WITH PERSONS RESIDING OUTSIDE INDIA AND ARE CHARGED UNDER SECTION 498A?

In the recent case of Rajesh Sharma vs. State of Uttar Pradesh, the Court has directed that in such cases impounding of passports or issuance of Red Corner
Notice should not be mandatorily adhered to. Red corner Notices are issued for individuals sought for prosecution or to serve a sentence. This notice alert the
international police to arrest an accused person. There are 8 types of notices are issued by the Central Secretariat of Interpol, on the request of the National
Central Bureau (NCB) and other authorized agencies. It is to be acknowledged that red Corner notice is not an international arrest warrant.

CAN A WOMEN IN A LIVE-IN RELATIONSHIP FILE A COMPLAINT UNDER SECTION 498-A?

In the case of Unnikrishnan vs. State of Kerela, the Kerela High Court after considering various Supreme Court judgments held that for an offense under
Section 498-A to be committed, the parties must have undergone some sort of ceremonies with the object of getting married. In that case, the parties did not
perform any ceremony and just started living together. It was held that a woman in a live-in relationship was not entitled to file a complaint under the section.

LANDMARK JUDGEMENTS-

1. State vs. Sanjay Singh- FACTS: On 26th April 1995, Suman (the complainant) was married to the accused. Her in-laws were
not satisfied with the dowry so she was ill-treated. The ill-treatment increased after she delivered a baby girl. She went to
stay with her parents from two months (in the month of May and June). Later, the co-accused (father of respondent)
brought her back to her matrimonial home. At night, she had coitus with her husband. In the early hours of 27th June 1997,
Suman and her daughter Sweta were found dead. She was pregnant at that time.

Suman’s father lodged a report with Sub-Divisional Magistrate, Seelampur in which he stated that his daughter was subject to cruelty and torture by the
accused and her in-laws wanted her to abort the child but Suman did not agree to them. The FIR was registered under Section 302/304B/498A of IPC. Also,
according to her father, Satbir (co-accused) and the respondent had made an extra-judicial confession over the telephone that they had killed his daughter but
they have denied the same in front of the officials.

Extrajudicial Confession is a confession made out of court, and not as a part of a judicial examination or investigation. Such a confession must be
corroborated by some other proof of the corpus delicti (the facts and circumstances constituting a crime), or else it is insufficient to warrant a conviction.

Judgment: The trial Court misdirected itself by presuming that only because there was coitus between the Respondent and the deceased, there was no
question of the Respondent subjecting her to mental cruelty. In light of Section 113 B IEA, there was no occasion to draw a negative presumption 
on this
crucial aspect. The Court sentenced the Respondent for the offense under Section 304B IPC to imprisonment for a period of 7 years, inclusive of the remission
already earned, with the further direction that the said sentence would be concurrent with the sentence for the offense under Section 498-A IPC. In effect,
since the Respondent has already served out the sentence awarded to him for the offenses under Section 304B and Section 498-A IPC, inclusive of the
remission, he need not surrender to serve out any remaining period of sentence. The bail bonds and surety bonds, if any, of the Respondent, stand discharged.

REFERRED CASES:

Shamnsaheb M.Multtani vs. State Of Karnataka- Learned Judges after reaching a cul de sac, swerved over to a different offense i.e. dowry death and
convicted one of them (the husband) under section 304B of the Indian Penal Code and awarded the maximum sentence of life imprisonment prescribed
thereunder on him besides Section 498A IPC. However, the High court found helpless to bring the other two accused to the dragnet of any offense.

Hira Lal vs. State (NCT of Delhi)- The apex court held that a conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that
there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution 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'. The expression 'soon
before' is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service.

Sher Singh vs. State of Haryana- Supreme Court observed that the word 'soon' finds place in Section 304B but we would prefer to interpret its use, not in
terms of days or months or years, but as necessarily indicating that the demand for dowry should not be stale or an aberration of the past, but should be the
continuing cause for the death under Section 304B or the suicide under Section 306 of the IPC. Once the presence of these concomitants are established or
shown or proved by the prosecution, even by predominance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the
accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt.

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