Authored By: Wasim Beg and Ridhima Chandani
I. INTRODUCTION: THE MENACE OF DOWRY IN INDIA
The concept of Dowry is one of the greatest social evils that our country is facing and has been deep-rooted in our society for a long time. Its origin can be traced to the notion that in medieval times, at the time of marriage, the brides were given gifts as a token of love and as a measure of security and financial stability. However, this briskly changed into a demand and even faster into a condition for accepting a bride. The practice, rather than being nipped in the bud was regularized and normalized into our social set up and took harsher forms by each passing day. Even though it was held illegal in the year 1961, the practice continues unabated.
Because of the demand for dowry, women have been and continue to be subjected to abuse, domestic violence, cruelty, sexual harassment and mental torture. Not only that, but the practice of dowry has resulted in a slew of social ills, including female feticide, an increase in divorce cases, gender discrimination, and a skewed sex ratio, to name a few.
The practice is widespread both in urban and rural areas, and continues in most places due to a lack of awareness, resources, illiteracy, and other socio-economic factors. The acceptance of this menace in a large part of the society is such that women are less likely to come forward and they bear their sufferings in silence, either due to fear of the social stigma attached with speaking against her family, financial insecurity, lack of education, social upbringing or to keep their families together.
II. EXISTING LEGISLATIONS AND FRAMEWORK FOR PROTECTING THE INTERESTS OF WOMEN FROM THE SOCIAL EVIL OF DOWRY
Since the colonial period, women have been seen to suffer in silence for a variety of reasons which makes it difficult to serve justice as such incidents usually occur within the four walls of the house. Further, such torture need not be physical, at times it is verbal and it is equally agonizing and in certain cases even drives the woman to such an extent that she commits suicide. Even though this practice was made illegal by way of introducing the Dowry Prohibition Act, 1961, it is still prevalent in society and is a matter of grave concern.
Taking such aforesaid difficulties and the increasing number of cases of dowry-related crimes into consideration, the need to formulate comprehensive provisions and legislations was felt by the legislators to:
- Provide for a substantive definition of ‘cruelty’ towards women by her husband and his relatives;
- Draw up a procedure that makes investigation in cases of suspicious deaths of women mandatory;
- Provide for provisions to make the conviction of the accused in such cases simpler.
The period of 1970s and 1980s is regarded as the time when women started fighting for their rights and the spotlight shifted towards bringing ‘cruelty against married women’ under the ambit of criminal law. During that time the cases of cruelty, abuse and harassment against married women and dowry deaths were also surging and the legislations in existence were proving to be futile. As a result of this, parliament felt the need to make amendments and this led to the enactment of Section 498Aof the IPC which made acts of cruelty towards a woman by her husband or his relatives a punishable offence.
Section 304B which made dowry death an exclusively defined punishable offence was also introduced based on the issue being vehemently taken-up by the Law Commission of India in its 91st report. Further, amendments were made to Section 174 of the Code of Criminal Procedure, making examination by Executive Magistrates mandatory in cases of suicides or unnatural deaths of women within the period of seven years from marriage. Section 113A and 113B were also added to the Indian Evidence Act, 1872 by way of Criminal (Amendment) Act, 1983 to draw up the principle of presumption in offences specified under Section 498A, inserted by Criminal (Amendment) Act, 1983 and 304B, inserted by Dowry Prohibition (Amendment) Act, 1986 of the Indian Penal Code respectively and make the conviction of the accused in such cases easier and shift the burden of proof accordingly. All this was done with a single motive – to lend teeth to the law to control the growing menace of dowry and punish the perpetrators by making clear that there would be zero tolerance towards such offences.
In Kamesh Panjiyar Vs State of Bihar[i], the Hon’ble Supreme Court stated that “Marriages are made in heaven, is an adage. A bride leaves the parental home for a matrimonial home leaving behind sweet memories there with the hope that she will see a new world full of love in her groom’s house. She leaves behind not only her memories but also her surname, gotra and maidenhood. She expects not only to be a daughter in law but a daughter in fact. Alas! The alarming rise in the number of cases involving harassment of the newlywed girl for dowry shatters the dreams. In-laws are characterized to be outlaws for perpetrating terrorism which destroys the matrimonial home. The terrorist is dowry, and it is spreading tentacles in every possible direction”.
Further, in Kundula Bale Subrahmanyam Vs State of A.P[ii], the Hon’ble Supreme Court observed that “Of late there has been an alarming increase in cases relating to harassment, torture, abetted suicides and dowry deaths of young innocent brides. This growing cult of violence and exploitation of the young brides, though keeps on sending shock waves to the civilized society whenever it happens, continues unabated. There is a constant erosion of the basic human values of tolerance and the spirit of “live and let live”. Lack of education and economic dependence of women have encouraged the greedy perpetrators of the crime. It is more disturbing and sadder that in most of such reported cases it is the woman who plays a pivotal role in this crime against the younger woman, as in this case with the husband either acting as a mute spectator or even an active participant in the crime, in utter disregard of his matrimonial obligations. In many cases, it has been noticed that husband, even after marriage continues to be ‘Mamma’s baby’ and the umbilical cord appears not to have been cut even at that stage.”
Such observations highlight the gravity of the situation and the brutality and severity of such offences. Although, changes as aforesaid have been made and they have definitely helped bring a change and have made laws more efficient and stringent i.e., to a considerable extent and strives to safeguard the rights of women. But no matter how many changes are brought by the Parliament, the need of the hour is to curb this menace by way of effective implementation of the existing provisions and adoption of a practical, transformative and rational approach.
A. SECTION 304B& SECTION 498A, INDIAN PENAL CODE, 1860
- SECTION 304B
Section 304B of the Indian Penal Code[iii], 1860 provides for ‘Dowry Death’. It states that:
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.
Explanation. – For the purpose of this sub-Section “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
The provision was inserted by virtue of the Dowry Prohibition (Amendment) Act 1986. The objective behind this provision is to safeguard the interests of the women and protect them from various offences that are committed against them. Many women succumb to death because of the atrocities they have faced due to failure to fulfil the demand of dowry by their husband and his relatives. This provision strives to curb the menace of this social evil from our society.
- SECTION 498A[iv]
It was inserted by way of the Criminal Law (Second Amendment) Act, 1983 and makes cruelty to a wife by the husband or his relatives a punishable offence. It states that Whoever, being the husband or the relative of the husband of a woman, subjects such own 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 property or valuable security or is on account of failure by her or any person related to her to meet such demand.
It was inserted as a measure to prevent cruelty and harassment to a woman by her husband or by his relatives to make her fulfil their demands of dowry. Before this, such acts of cruelty were dealt with by way of the general provisions provided in the Indian Penal Code, 1860 but seeing the increase in the number of such incidents of violence, the need to have more efficient and stringent provisions was felt to deal in an effective way with such atrocities against women.
B. DOWRY PROHIBITION ACT, 1961
The Dowry Prohibition Act, 1961 has a noble vision but it is of utmost importance to take into consideration the observation of Jawahar Lal Nehru “Legislation cannot be itself normally solve deep-rooted social problems. One has to approach them in other ways 14too, but legislation is necessary and essential, so that it may give that push and have those educative factors as well as the legal sanctions behind it which help opinion to be given a certain shape.”
It came into existence to curb the practice of giving or taking of dowry and has gone through several amendments since then, it was amended in the year 1986, 1987 and 2019 respectively. It defines the term dowry under Section 2[v] and states that 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.
Explanation II. The expression valuable security has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).
The act further makes the act of giving or taking or abetting the giving or taking of dowry punishable and any such person who does this will be punished with imprisonment for a term which shall not be less than five years subject to the proviso and with fine which shall not be less than fifteen thousand rupees or the amount of value of dowry, whichever is more. It excludes the presents given to the bride at the time of marriage and the presents given to the bridegroom without him demanding any of them at the time of marriage[vi]. Further, it provides for provisions in respect of demand of dowry, the validity of agreements made for giving or taking dowry, for taking cognizance in such cases, and other provisions to safeguard the interests of the women and curb this social evil.
C. PRINCIPLE OF PRESUMPTIONS IN CASES OF S. 498A AND S. 304B (S. 113A& S. 113B respectively, INDIAN EVIDENCE ACT, 1872)
- SECTION 113A
Section 113A was inserted in the Indian Evidence Act by the Criminal Law (Second Amendment) Act, 1983 and lays down[vii] presumption as to the fact that if it is shown that the woman had committed suicide within a period of seven years from the date of her marriage and she was subjected to cruelty by her husband or his relatives, the court may presume taking into consideration other circumstances of the case that such suicide had been abetted by her husband or by such relatives of his husband. The presumption laid down is discretionary and rebuttable.
But the mere fact that a woman had committed suicide and had been subjected to cruelty by her husband or his relatives within seven years of her marriage does not ipso facto gives rise to the presumption that such suicide has been abetted by her husband or relatives of his husband.
The purpose of enacting this provision was to strengthen the process of prosecuting the accused and make conviction easier because the crime was committed within the confines of the house and it is difficult to obtain independent witnesses.
- SECTION 113B
Based on the introduction of this provision, few other amendments were also made in the Code of Criminal Procedure, 1973 and in the Indian Evidence Act, 1872. Section 113B was inserted in the Indian Evidence Act[viii]and 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 had 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 purpose of this section, “dowry death” shall have the same meaning as in Section 304-B of Indian Penal Code (45 of 1860). The presumption is mandatory and rebuttable but the onus to prove lies on the person accused.
But in order to attract the presumption provided under this Section, it is first required to ensure that there is nexus and a proximate live-link between Demand for dowry or in relation to that; cruelty or harassment based on such demand; and the time of death. In order to ascertain the presence of such nexus, the test of proximity is applied; it is based on the facts and circumstances of the case and requires the application of a practical and rational approach.
The expression ‘soon before her death’ used in the provision is a flexible term and plays a significant role and denotes the idea of the test of proximity. It differs from case to case and is based on the facts and circumstances of the case. It is not defined and there are no specific means to determine that what constitutes ‘soon before her death’ which brings into picture the role of proximity test so as to raise a presumption and prove the offence the dowry death. In Mahesh Kumar v. State of Haryana[ix] it was held by the Hon’ble Supreme Court that once the prosecution fails to prove the presumption under Section 113B of the Indian Evidence Act then the accused becomes entitled to the benefit of the doubt.
The underlying of the Legislation behind the introduction of this provision and making it a mandatory presumption was to eliminate this social evil from our society while also strengthening the process of prosecuting the accused and making conviction easier because such offence is committed within confined spaces and it is difficult to obtain independent witnesses.
D. 174 OF THE CODE OF CRIMINAL PROCEDURE, 1973
In cases of suicide or unnatural deaths of women within seven years of their marriage, Section 174 of the Code of Criminal Procedure, 1973[x] was amended by way of Criminal Law (Amendment) Act, 1983 and clause (3) was inserted, making examination by Executive Magistrates in such cases mandatory. The intent behind this amendment was to figure out what caused suspicious deaths and come to a conclusion about the cause of death and whether or not she had been subjected to cruelty.
III. DEMAND FOR DOWRY AND ITS CAUSES
An essential ingredient of Section 304B is that the death of the women and the cruelty or harassment to which she is subjected is the outcome of or in connection with the demand for dowry. ‘Dowry’ is defined under Section 2 of the Dowry Prohibition Act, 1961 as aforementioned. In State of Himachal Pradesh v. Nikku Ram[xi], the Hon’ble Supreme Court has discussed about the three situations where the demand for dowry is made i.e., before marriage; at the time of marriage; or after the marriage. It also stated that demands made after the marriage fall under the definition of the term “dowry,” as an implied agreement must be read to give property or valuable securities even if asked after the marriage as part of the consideration for the marriage.
There are various causes pointed out even by the Hon’ble courts due to which dowry for demand is still prevalent in our society. In Shanti Ram v. State of Haryana[xii], the Hon’ble Supreme Court observed that the prevalent practice of dowry in the past era has created such an adversarial impact on the society and has made a vicious circle under which the bride’s family seems to be trapped and due to the circumstances, they belief that daughter is a liability and the dowry is a means to discharge such liability when she is to get married. The past evil experiences and the social circumstances which once gave birth to dowry are now the reason for its practice. Further, in Sheikh Abdul Hamid &Anr[xiii]. V. State of M.P, the Hon’ble Court observed that the greed to obtain the property of the girl is also a motive as well as a reason to demand dowry and subject her to cruelty and torture for the same.
IV. ANALYSING THE ‘7-YEAR LIMIT’ IN S. 304B
It is imperative to understand the rationale behind the bar of seven-year which is mentioned under 304B of the IPC before placing reliance upon the jurisprudential reasoning behind the same.
It must be remembered that the Law Commission of India in its celebrated 91st report examined various factors before recommending legal provision through which the state may be able to curb the crime rate of dowry death. The eight factors upon which the emphasis was laid upon and findings made in the 91st report of Law Commission of India are:
- Sex- The person who dies in such cases is always a woman
- Age- She is mostly in her twenties
- Status- In the vast majority of cases wife is totally dependent upon the husband and has already become a mother or about to become a mother.
- Mode of Death- Burns sustained or poisoning or brutal injuries
- Condition- The woman is extremely unhappy due to persistent dowry demands.
- Nature of the Act- The dowry death is presented as accidental or suicidal.
- Locate- Within the four corners of the house.
- Reporting- When reported by husband and in-laws it is in the form of suicide but when reported by parents of deceased on the woman it is homicidal in nature.
After placing reliance upon all the factor, the commission recommended that where a married woman dies within five (05) years due to burns or injuries sustained in the house where she was residing with her husband immediately before death and death takes place behind closed doors it must be presumed that death is not accidental.
However, the legislature in its wisdom, keeping in mind the constitutional principles under Article 15(3) which confers the state with the power to make special provisions for women and children and taking into consideration the various factors at play extended the time duration from 5 to 7 years. The provision instead of using the expression ‘immediately before’ used the phrase ‘soon before’ as the term ‘immediately before’ the death would give a very narrow interpretation, the legislation may not be able to redeem itself in soul and spirit and it would defeat its very objective. The soon before the death is of wider connotation which enables the court to consider the continuing stigma faced by the married women at her husband’s house which leads to dowry death as per the ingredients of the section 304B.
Further, when the provision was introduced, the underlying intent of the legislators behind specifying such a limit was that within seven years of marriage the relationship between the husband and wife would be settled as it is a reasonable time for the matrimonial relations to settle down and normalize. Therefore, the intent was to empower women for such certain period of time to secure her living and dignity at her husband’s house and upon successful establishment of relationship for 7 years neutralizing its effect would ensure that the relationship between husband and wife is not of fear or insecurity on the part of husband.
Section 304 B bears a unique character as it is a special provision within a general law. The former statement can be proved on the basis that no other offence under IPC is operational for a limited period of time whereas 304B is only operational till 7 years of marriage.
Section 304B is only operational for the period of 7 years and in consonance to which special rule of evidence is crafted under 113B to relax the rule of evidence and tilt the presumption against the husband (or relatives as the case may be) if the ingredients u/s 304B are fulfilled whereas there is no such time limit u/s 302 and accused is always presumed to be innocent. Further as per section 304B the essential ingredient of ‘soon before’ i.e., the proximity test must be established which is not in case of 302.If the soon before i.e. proximity test will not be applied the husband may be always presumed to be guilty even when the there exists no proximate cause and effect relationship. In Kans Raj v. State of Punjab[xiv], the Hon’ble Supreme Court stated that the expression ‘Soon Before’ is pregnant with the idea of proximity test.
The fact that the operation of 304B is only for a period of 7 years from the date of marriage stands to be a reasonable classification while relaxing the rule of evidence in favour of the prosecution.
However, a counter view to the same can be presented that due to uncertain family situation there is a high probability that even after seven years of marriage there can be demand for dowry which may lead to cruelty and harassment against the wife and due to the bar of seven years the victim will be deprived on this noble provision meant to eradicate the menace of dowry in our nation. Further, reliance may also be placed on the aforementioned causes of demand for dowry, there is no link between such causes and the bar on the operation of Section 304B and there is no substantial reason to justify that the greed for her property would be satisfied or the family having belief in the practice of such social custom would after a certain period of time would stop demanding for dowry. In fact, such limit defeats the intent of the legislature behind the introduction of the law. Therefore, there may be a case for relaxing the ‘7-year rule’ as most of the dowry demand cases are greed driven and it is not possible to put a time limit on the same. A case study would also show that in most cases the woman is under an imminent fear and does not bring these issues to light. With various governmental and non-governmental players working towards spreading awareness and consciousness in the society, there is no telling how many cases where the marriages may have lasted well over 7 years could come to light. There are and will always be other legal avenues available, however, the intent behind enactment of laws like 498A and 304B must be given its full effect. Putting a time limit to greed does not seem tenable and a demand for dowry and the subsequent harassment could depend on ‘ever changing’ factors like the financial condition of the husband and his family and the ups and downs in the personal relations between them, the need to take care of ageing parents/other family members, medical needs or the need for greater financial stability as the children grow-up etc. While the ‘likelihood’ of such events may go down after a long period like seven years, it would not be right to assume that the same ‘cannot happen’ after seven years. Those in favour of extending or not putting any limit to the operation of provisions like 304B and the connected rules of evidence would argue that the protection under the law in such cases cannot be time bound and certainly cannot assume a particular crime could take place only within the first 7 years of marriage.
Therefore, it may be noted that no matter how clear and unambiguous the law may be laid down there will remain certain grey area which can only be tackled through social reforms and progressive ideologies.
In light of the foregoing, the National Commission of Women has also recommended that a period of seven years may be extended to ten years as often the offence is executed in a pre-planned manner. The Law Commission of India has also concurred with this view in its 202nd report[xv] however, made no further remarks and left the matter at the discretion of the government for consideration. The statement in the 91st Law Commission of India report says “while detection, investigation and punishment are certainly matters of importance, there is a greater need for preventive legislation. To remove unhappiness in the family is beyond province and capacity of law”.[xvi]
Hence in order to curb the dowry death cases and the practice of dowry, it is super imperative that the spirit behind the legislation must be imbibed within the citizens rather than trying to impose punitive laws which is never a sign of progressive jurisprudence.
[i](2005)2 SCC 388.
[ii](1993) 2 SCC 684.
[iii]The Indian Penal Code, 1860, Section 304B
[iv]The Indian Penal Code, 1860, Section 498A
[v]The Dowry Prohibition Act, 1961, Section 2.
[vi]The Dowry Prohibition Act, 1961, Section 3.
[vii]The Indian Evidence Act, 1872, Section 113-A
[viii]The Indian Evidence Act, 1872, Section 113-B
[ix]AIR 2019 SC 4225 P. 4230.
[x]The Code of Criminal Procedure, 1974, Section 174.
[xi](1995) Cr LJ 41 84(SC).
[xii]1991 (1) SCC 371.
[xiii](1998) 3 SCC 188,
[xiv](2000) 5 SCC 207
[xv]202nd Law Commission of India Report.
[xvi]91st Law Commission of India Report, para 1.7
Mr. Wasim Beg is Partner at L&L Partners, New Delhi and Ms. Ridhima is an undergraduate student at Manipal University, Jaipur.