In India marriage is considered to be a sacrament relation between the two-person. When the woman enters into a union, she has some expectation with the new bonds and perhaps wanted to be the same comfort, love and caring as she received in her own house. However, the one custom which persists to degrade the sanctity of marriage is dowry. The demand born out by the in-laws, husband and his relatives created so much mental pressure on the wife, her family, that for them only two options are left either to fulfil that demand or to just bear the harassment reluctantly and pacify the situation. soon the life of the wife becomes miserable and pathetic and this will lead to an insidious state resulting in dowry death.
(1) where the death of the woman caused by any burns or bodily injury or occurs otherwise than under the normal circumstances within seven years of her marriage and it is shown that soon before her marriage she was subject to mental cruelty or harassment by her husband or any relatives of her husband for, or in connection with any demand for dowry, such death shall be called “dowry death”, and such husband and relative shall be deemed to have caused her death.
(2) whoever commits dowry death shall be punished with the imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
Here, dowry shall have the same meaning as in Section 2. Of Dowry Prohibition Act, 1961[1}, above provision inserted by Act 43 of 1986 and come into force on 19 November 1986, the necessity was observed by Law Commission of India in its 21st report under ‘dowry death and law reform’. Keeping the view of pre-existing laws securing evidence to prove dowry death, the legislature intended to insert the provision related to the presumption of dowry death under section 113-B of Indian Evidence Act on proof of certain essentials.
The object behind the insertion of section 304-B in Indian Penal Code and section 113-B in the Indian Evidence Act, is to tackle with the problem of dowry killings and to encounters difficulties of proof by creating a presumption.
Dowry Prohibition Act, 1961
Section 2 Definition of Dowry-
1. In this act, dowry means any property or valuable security given or agreed to be given either directly or indirectly
2. By one party to the marriage to the other party to the marriage, or by the parents of either party to the marriage or by any other person
3. Either party to the marriage, or the any other person to the marriage before or anytime offer the marriage in connection with the marriage of said parties, not include mahr and the persons on whom the Muslim personal law appilcable.
The Honorable Supreme Court in the leading case of Shanti v. State of Haryana, explain the ingredients of S. 304B
(1) death must be caused by burns or bodily injury or it must occur otherwise than in normal circumstances
(2) death must occur within the seven years of marriage
(3) it must be shown that soon before her death, the woman was subject to cruelty or harassment by her husband or any relative of her husband
(4) such cruelty or harassment must be for or in connection with any demand for dowry.
In case of Satbir singh v. state of Haryana, supreme Court held that it is incumbent on the prosecution to establish ingredients of 304-B, once its established, the onus is shifted towards the defence to prove his case beyond reasonable doubt. Provision under 304-B draw with more strict construction, the offence is cognizable, non bailable and triable by session courts.
To eliminate the practice of dowry death it is essential to made preventive had punitive measures, keeping in mind the pre-existing laws, apex court send the circular to all the Registrar General of High Courts to add section 302 of IPC read with 304-B , so that murder charged can also be imposed on the person who commits such barbaric or inhuman act.
Relation between Section 113-B of Indian Evidence Act and 304-B of Indian Penal Code
Prosecution can discharge initial charges merely on the preponderance of probability, once the natural phenomena established or the link of chain attracted even by the possibilities, the presumption of innocence is replaced by the assumption of the guilt of the accused.
This will shift the onus of proof towards the defence, and to bring the contrary evidence to rebuttal the assumptions.
Meaning of Husband and Relative of husband
It would be worthy to construe the expression ‘husband’ to cover a such person, who enters into matrimonial relationship or color of such proclaimed or feigned status of husband subject the woman concerned to the cruelty in any manner or for any purpose enumerated under section 304-B/498A. It is immaterial, if the status of the marriage or its legitimacy are in doubt, in that case it is recognized as purposive construction has come into play in case of this nature. The code does not define the term Husband, because law intended to include such persons who contract marriage ostensibly and cohabitate with such women, in that purpose one can not absolve from liability merely on the question of legitimacy of marriage.
The word “relative of husband” in s 304-B IPC means Such persons, who are related by blood, marriage or adoption. The brother of the aunt of the husband is not a relative.
Soon before Death
In order to attract the provision of 304-B, one of the main ingredients of the offence which is required to be proved that ”soon before her death” she was subject to cruelty and harassment, in connection with demand of dowry. The provision does not tender the term ‘at any time before’ or ‘immediately before’ and it should be construed to its true sense.
However, soon before her death, can not be given a restricted view and must be understood in the plain language with reference to their meaning in the common parlance. If we do so the very first purpose of the act would be defeated, nevertheless the construction of penal laws will be strict construction requiring that the provision have to be read in conjunction with other relevant provisions and schemes of the act.
The legislation object is to provide such a radius of time by employing the word soon before her death, to emphasis on the idea that her death should, in all possibilities, have been the aftermath of such cruelty and harassment.
There should be a reasonable span of time, nexus between her death and connection for demand for dowry will be prima facie. Where the death occurred after five days of demand of dowry, it was considered to be soon before death.
The expression soon before her death is a relative term, no specific time allotted, it should be construed in the context of specific nature and circumstance of the case, no hard and fast universal rule of application prescribed, these words are to be understood in a relative and flexible form.
The doctrine of Reverse Burden
The rule of law requires a person to be innocent till proven guilty, on contrary the concept of deeming fiction applied to the section 304-B of IPC. the offence shall be deemed to be committed by fiction of law, once the prosecution proves its case with regards to the basic ingredients of s. 304-B the court will presume by deemed fiction of law that the husband or the relatives complained of, has caused her death. Such presumption made while keeping in view the evidence produced by the prosecution in support of substantive charges u/s 304-B of the code. However, the husband and his relative can introduce the rebuttable presumption, by leading the defence and proving that the ingredients of s. 304-B were not satisfied.
Demand neither formed nor would be formed through any agreement if this will be applicable, then no conviction made under section 304-b held, as hardly any criminal comes under the clutches of this law and this will lead to defeat the very provision of this Act. in section 304-B ‘ demand for dowry’ means any valuable security or demand of property referred under this definition, however not necessary that there should be demand for any particular item to make it a dowry demand. Where demand for money was for paying society loan and not for dowry, offence u/s 304-B, not invoked.
Gurbachan Singh v. Satpal Singh, In this case, the victim, a newly married woman, who had committed suicide within a span of one year of her marriage, was subjected to cruelty and harassment. The cruelty assumed such magnitudes that insinuations were made that the woman had an illegitimate child. The Court held that the cruelty inflicted upon the woman was not just physical but also mental. Taunts on carrying of an illegitimate child led the victim to commit suicide. The Court held that death in cases of dowry, may not be caused by the husband or his family directly, but as long as the death results from the cruelty inflicted by them, the case will be that of dowry death.
Another case of, Bansi Lal v. State of Haryana, in every case the Court has to analyse the facts and circumstances which resulted into the death of the victim and decide if there is any proximate connection between the demand of dowry and act of cruelty or harassment and the death or not.
India is land numerous conventions and societies followed over its generally and ordinarily. It contains numerous customs acknowledged and rehearsed generally. One such is that of Dowry death, bride burning has become extensively common in many parts of the country and unfortunately accepted by persons who have no interest in changing the state of affairs. Various legislation arrangements have been set ready for controlling this issue yet it is being rehearsed straightforwardly. Luckily expanding requests by women’s activists and interest for ladies strengthening as an issue of right have prompted different alterations of arrangements in the criminal law on the nation so as to accomplish the objective of controlling the issue of Dowry death.
Section 113-B of the Evidence Act, by moving the onus of blame on the accused, is a significant apparatus in help of punishment in dowry death cases. Today, the social malevolence of dowry demand has been placed into perspective. In spite of the fact that I sincerely feel that the Indian legal system framework has made considerable progress from where it had begun, yet there is significantly more to be accomplished.
1. Ratanlal & Dhiraj Lal, the Indian Penal Code, 35th edition, p. 699, LexisNexis publication.
3. Dhan Singh v. the State of U.P
4.Kunhiabdulla v. State of Kerala, 2004 SCC 13
5.AIR 1991 SC 1226
6.AIR 2005 SC 3546
7.Rajbir v. state of Haryana AIR 2011 SC 568
8.Koppisetti subbarao v. State of A.P, AIR 2009 SC2684
9.Sukhwinder singh v. State of Punjab
10.Ashok Kumar v. state of Haryana 2010 (12) SCC 350
11.1990 1 SCC 445
12. 2011 (11) SCC 359
BY- Akash Goswami |Aligarh Muslim University