This article has been written by Shashwat Pratyush a student of Chanakya National Law University. In this article, he will be discussing Dowry Deaths in India.  

Abstract

When a woman enters into a union she has many salubrious expectations. She would like to a happy married life. She would expect to be a mother someday and then expect to be mother-in-law,grand-mother and so on. And deserve to be a dignified status in society. All these are worn out by the cruel hands of dowry-related deaths.

Dowry deaths is violence by the husband and his family with a motive of extortion of gifts and other demanded from time to time against a woman. The unnatural death of recently married woman vital to women’s moment in the Indian society through the meaning of dowry has changed over time but harassment and cruelty have remained the same to some extent. Protection of women from this social evil is the responsibility of the state. Government has enacted many laws regarding the prohibition of dowry like the Dowry Prohibition Act, 1961 and so on. On the recommendation of  21^st law commission report certain Penal provisions were inserted. Many educational and awareness programme was run by the government and non- governmental organisation with the intent to the lesser down the rate of dowry death. To deal with this brutal kind of social evil section 304 B Dowry death, Section 498A (Cruelty by Husband or in-laws i.e. domestic violence) 113 B (Presumption as to dowry death) was incorporated in Indian penal laws around 1986 to eradicate the nuisance of dowry death.

Introduction

Marriage as a social institution is recognised as a civilized social order where two individuals, capable of entering into the union, have pledged themselves to the institutional norms and values and promised to each other a very strong bond to sustain and maintain the marital obligation. It works as a root for the continuance of the human race. Despite all the promises made at different occasions of marriage ceremony that the individual incompatibilities and attitudinal differences for non-adjustment or refusal for adjustment may come to an end, but certain circumstances occurred where the husbands and his families demand i.e. Dowry which is not fulfilled and sometimes a perverted sense of revenge occurred.   

Dowry means the transfer of parental property at the marriage of a daughter. Dowry is a payment of cash or gifts from the bride’s family to the groom’s family upon marriage. It may include cash, jewellery, electrical appliances, furniture, crockery, utensils, car and other household items that help the newly married couple to start their life journey. Dowry is an ancient custom, and its existence may well anticipate records of it. Dowries continue to be expected in many parts of the world and are sometimes used as a condition of the contract that if not accepted then the wedlock came to an end, particularly in parts of Asia and North Africa. The custom of dowry is deep-rooted in Indian society over the years, it has turned into a social peril, too entrenched and devilish to be tackled by reformers and law-makers. Though the efforts for the eradication of the dowry practise go back to more than a century, it has perhaps become the most alarming social issue during the last two decades or so as manifested by the growing violence against women emerging from matters relating to dowry. It is generally understood that dowry, in its original form, was not based on greed and extortion as it quite often the case today but present a token of love and regard for the bridegroom. The term Varadakshina, mentioned in the Hindu Shastras, was a Dakshina of a purely voluntary nature without which the meritorious act of Kanyadaan would not be complete. The role of the bride’s parents was to provide security and compensation for inheritance rights to the daughter in order to enable her to lead a dignified and harmonious relationship with her husband and his family.

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Marriages are made in heaven indeed, but mother-in-law, sister-in-law, husband and other relatives are being actively involved in the dissolution of marriage for the lust of dowry. Dowry death, murder-suicide, and bride burning are burning symptoms of peculiar social ailment and are unfortunate development of our society. During last few decades India has witnessed the dark evils of the dowry system in a more acute form in almost all parts of the country since it is practised by almost every section of society; irrespective of religion, caste or creed to which they belong. It is almost a matter of day-to-day occurrence that not only married women are harassed humiliated, beaten and forced to commit suicide and ill-treated but thousands are even burnt to death because parents are unable to meet dowry demands.

In India, the dowry system puts a great financial burden on the bride’s family. The law-makers, taking the note of seriousness and consequence of the problem legislative measures to plug the loopholes in the law as well as to enact new provisions so as to make the law rational and effective. The Dowry Prohibition Act, the first national legislation to deal with the social evil of dowry, was passed in 1961. The object of this act is to prohibit giving and taking of dowry. The act lays down a number of preventive and punitive provisions but, as could be foreshadowing, the objectives have not been achieved.  Though the dowry problem as such may not be the appropriate target of criminal law, the violence connected with a dowry, sometimes fatal, is certainly within the functional domain of criminal law. As a result of speedy rate of dowry-related deaths and failure of dowry legislation, which results in certain substantial and procedural changes in law criminal law as Criminal Law Amendment Acts, 1983 and 1986. In Indian Penal Code, two new offences have been created under section 304-B and 498-A. The offence  under section 304-B called as the Dowry death whereas section 498-A called as Husband or relative of husband of a woman subjecting her to cruelty, Code of Criminal Procedure includes section 174 and 176 deals with the investigations and inquiries into the causes of unnatural deaths by police and magistrate respectively and in Indian Evidence act new section 113-B called as presumption in cases of dowry death that the person who is shown to have subjected the woman to cruelty or harassment soon before her death .  

Despite the changes in Indian Criminal law reflects serious efforts by legislators to put an end to dowry-related crimes, and although they have been in effect for many years now, they have been largely criticised as being ineffective. While the laws give great powers, they are not effectively enforced by the police or by courts[1]. It takes a lot of time for a case to get it listed in the court and the husband and families acquitted even for murder because women and their families cannot prove beyond a reasonable doubt. There is a criticism of dowry related provisions in India are often misused, particularly section 498-A of IPC  because of mechanical arrest by the police. In the case of Preeti gupta & anr. V. State of Jharkhand & anr.[2] Section 498-A was challenged and supreme court regrets about the possible misuse of anti-dowry laws and recommend a detail investigation.

Enactment of legislation related to dowry

The Dowry prohibition act, 1961

The first national legislation related to dowry was enacted as the Dowry Prohibition Act, 1961. The act lays down a certain number of preventive and punitive provisions but, as could be anticipated, the objectives have not been achieved. The failure is not primarily due to a few defects in law but on the part of government also regarding its enforcement but because of the fact that the dowry practise is too well-entrenched among all the cross-sections of the society. The lack of enforcement of government officials is that no action is taken on registered cases as well as people are not aware of the legislation. Though the legislation and judiciary provide continue support still the situation not changed.

In the year 1961 dowry prohibition act was amended twice to widen the meaning of term “dowry” and enhancement of punishment for the various violations of the provisions of the act. Section 2 of the act states that any property or valuable security from one side to another either given or agreed to be given in future directly or indirectly in connection of marriage amounts to dowry. The expression used in the original Act was “as consideration for the marriage of such parties” was interpreted by the court to give a narrow meaning of the term “dowry”. In Inder Sain v. State[3], it was held that “consideration” was restricted to motive or reason, compensation or reward to marriage and would not, therefore, include any property demanded or given subsequent to marriage. The expression “any time after the marriage” has been brought to replace “after marriage” to eliminate a restricted interpretation of the statute. The concepts of gift in Indian marriages are only allowed which are customary in nature, which does not create a financial burden on a family. A list of such presents, along with value and description, is to be prepared and must be signed by the bride and bridegroom. 

  In case of Sanjay Kumar Jain v. State of Delhi[4] it was said that “The dowry system is a big slur and curse on our society, democracy and the country. It is incomprehensible how such unfortunate and condemnable instances of dowry deaths are frequently occurring in our society. All efforts must be made to combat and curb the increasing menace of dowry death. The legislature was seriously concerned about this unfortunate reality of our society and to curb combat the increasing menace of dowry deaths with a firm hand the Dowry Prohibition Act, 1961 was enacted. 

Some stringent penal provisions have been enacted or amended from time to time to stop from taking and demanding dowry. Under section 3 of the act giving and taking of dowry is punishable with a minimum term of 5 years and a fine of Rs 15,000 or value of dowry whichever more. Similarly demanding of dowry is also punishable under section 4 for the term of six months to five years and fine up to Rs 15,000. After a couple of amendment the act tries to curb this social menace. Section 7 provides persons and agencies who may initiate the proceedings (a) police (b) aggrieved person (c) parents and relatives (d) any recognised welfare institution or organisation Section 8 tries to make act harsher by adding offences under the purview of non-bailable and cognizable. Further section 8-A states that burden of proof lies on person who denies offence. 

 A common rehearse in marriages are that articles and ornaments of bride are immediately taken into possession by husband or his family can transferred to woman or her heirs by virtue of section 6 with period of three months failing of such act will amount to imprisonment from six months to two years and fine from five to ten thousand rupees. Supreme Court in case of Pratibha Rani v. Suraj Kumar[5] held that taking possession of bride articles will amount to criminal breach of trust punishable under section 405 of penal code.

A joint parliamentary committee examining the working of the act in 1982 and gave two reasons for abject failure of act is defective definition of dowry and lack of enforcement instrumentality. Though, definition of dowry has been amended and enforcement provision has been actively worked after the committee’s report of 1982.  

Indian Penal Code, 1860

The appropriate target of criminal law not only limited to dowry problems but the violence connected with dowry also comes under the purview of criminal law. Failure of dowry legislation and increase in rate of dowry death led to the Criminal amendment in the year 1983 and 1986 by adding section 304-B and 498-A. In brief, we can say that there are four situations where married woman is subjected to cruelty and harassment leading to the commission of an offence. Firstly, Dowry Death-Section 304-B IPC:- The offence under section 304-B defines “Dowry Death” is the death caused to woman by burns or bodily injury, or under unnatural circumstances within seven years of her marriage ,where it is shown that she was harassed or put to cruelty by husband or his relatives in relation of dowry the punishable with a term of seven years to life imprisonment. The period of seven years would be considered as cut period for reason that seven steps taken by bride and bride groom of the sacred nuptial fire for completion of marriage where one step is considered as one year. Supreme Court in the case of state of Punjab v. Iqbal  Singh[6]  explained the period of seven  years as it is considered to be turbulent one after which the legislature assumed that the couple would have settled down in life.  

The term dowry has not been defined in the Indian Penal Code, whereas section 304-B explanation affirmed that dowry shall have the same meaning as defined in section 2(1) oof the Dowry Prohibition Act, 1961.

Essentials of Dowry deaths under section 304-B

1. Death was caused by burns or bodily injury or otherwise than under normal circumstances.
2. Death should have occurred within seven years of her marriage.
3. Woman must have subjected to cruelty or harassment by husband or his relatives.
4. Cruelty or harassment should be in connection with demand of dowry and soon before death.

In case of Satbir Singh v. State of Haryana[7]  the Apex Court held that the prosecution is able to establish the ingredients of section 304-B, IPC the burden of proof of innocence shifts on defence. The provisions under section 304B,IPC are more stringent than that provided under section 498A of the Penal Code . The offence is cognizable, non-bailable and triable by a court of Sessions.

In case of Mustafa Shahadal Shaikh v. State of Maharashtra states that the language used under section 304-B “Soon before death” means no definite period has been mentioned under the Penal Code as well as under section 113-B of Indian Evidence Act. Accordingly, term “Soon before death” determined by Courts depending upon the facts & circumstances of case. However it would imply that interval should not be much between the cruelty or harassment concerned and death in question. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.

To curb the practice of dowry death there is an urgent need to take punitive and preventive measures with iron hands. At the same time law must be made more effective and police should be more watchful with respect to these offences. Supreme Court always try to take a note of dowry abuse which results in dowry death. So, in the case of Rajbir v. State of Haryana[8] apex court directed to registrar generals of all high courts to circulate to all trial courts add section 302, IPC to charge of section 304B IPC so that death sentences could be imposed on heinous and barbaric crimes and stated that dowry death cases to be charged both under section 302 and 304B of IPC. After the Apex Court decision, a person convicted of dowry death would be charged under section 302 as well as section 304-B of IPC.

Secondly, Cruelty on woman by Husband or Relatives-Section 498A, IPC: – When her husband or his family member subjects the woman to cruelty or harassment. Cruelty by his husband or relatives has been made punishable with imprisonment up to three years and fine u/s 498-A. The word cruelty means both mental and physical torture. It consists of any wilful conduct likely to drive the woman to commit suicide or to cause danger to her life, limb or health, mental or physical or harassment to coerce her or any other person by making an unlawful demand for dowries such as property or any goods.

In case of Vijeta Gajra v. State of NCT Delhi[9]  it was held that foster sister is not “Relative” within the meaning of section 498A, IPC to fix liability for causing cruelty against the complainant. 

Section 498A, IPC and Section 4 of the Dowry Prohibition Act do not attract double jeopardy. In case of Inder Raj Malik v. Sunita Malik[10], the Delhi High Court held that a person convicted both under section 4 of Dowry Prohibition Act and section 498A of Indian Penal code does not come under the ambit of double jeopardy under article 20(2) of Indian Constitution. The prohibition of Dowry Prohibition act and Indian Penal Code distinguishes from each other as in earlier enactment on demand of dowry is punishable, cruelty is not necessary where in later enactment presence of cruelty is a necessary element for section 498A of Indian Penal Code. The Delhi High Court has taken a pragmatic approach in the impugned case and said that the word ‘cruelty’ is well defined.

In the case of Arnesh Kumar v. State of Bihar[11] the petitioner approached the Supreme Court by way of special leave petition for grant of anticipatory bail in which he was unsuccessful earlier. Section 498A of IPC was enacted with avowed object to combat the menace of harassment to a woman by husband and his near relatives. Supreme Court said that it is a fact that section 498A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provision that is used as a weapon rather than shields by disgruntled wives, the simple way to harass is to get the husband and his relatives arrested under this provision. In a quiet number of cases old and bed-ridden fathers and mothers of husband, their sister living abroad who never meet with each other will also get arrested so the Apex Court gave following directions before arresting under section 498A of IPC:-

1. State government to instruct Police not to arrest without a warrant unless feels necessity and fulfilments of all parameters laid under section 41 of Cr.PC
2. All Police officer shall provide with a check list containing specified sub-clauses under section 41(1)(b)(ii) and must be filed and furnish the reason and material which necessitated the arrest.
3. The magistrate while authorising the detention of the accused shall peruse the report furnished by the police and after recording its satisfaction may authorize detention.
4. The decision not to arrest was forwarded to magistrate within two weeks from the date of institution of the case with a copy that arrests not made under offence referred.
5. When, such person, at any time, fails to comply with terms of notice or unwilling to identify himself then the police may arrest for offence mentioned in the notice.

Thirdly, Intentional Death of women –Section 302 IPC: – If a person intentionally causes woman death then punishable under section 302 IPC.

Fourthly, Abetment of Suicide of Woman- Section 306 IPC:- If husband and his relatives create a situation which led to the suicide of woman within seven years of marriage fall within the ambit of section 306.

Code of Criminal Procedure, 1973

Section 174 and 176 deals with the investigation and enquiries related to the causes of unnatural deaths by police and magistrate respectively. The amendment act of 1983 makes mandatory for police to send the body for post-mortem examination if the death of woman occurred within seven years of marriage in a matter of suicide or any dubious matter. It also empowers executive magistrate to inquiry into the death of a woman in similar circumstances.

Indian Evidence Act, 1872

A new provision, section 113B has been created regarding the burden of proof in dowry death according to which court has to presume that a dowry death was caused by the person who is shown to have subjected the woman to cruelty or harassment soon before her death.

In view of the nature of the dowry offences that are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence necessary for conviction is not easy to get. Accordingly, amendment act 43 of 1986 has inserted section 113B in the evidence act, 1872 to strengthen the prosecution hands by permitting a certain presumption to be raised if certain fundamental facts are established and the unfortunate incident of death has taken place within seven years of marriage.

Section 113B of Indian Evidence act states that if it is shown that soon before the death of a woman such woman subjected to cruelty or harassment for, or in connection with any demand for dowry death under section 304B IPC.

In the case of State of W.B v. Orilal Jaiswal[12] it states that in spite of presumption the standards of proof and defence will remain the same.

Impediments in implementation of the law

 Once again the rich Indian legal system has failed to make any appreciable repair in the unfortunate situation in which dowry victims are placed. The fault and infirmities are detectable in almost all the factors involved in the implementation of laws: Social aspects, Police perceptions and attitude and infirmities inherent in the functioning of the medico-legal and judicial system. 

Social Factors 

Administration of justice in criminal cases is itself a challenging job and it becomes more difficult when minimum social support is not there in society. Generally, there are no witnesses to transaction leading to domestic cruelty or harassment and unnatural death except the family members, some of whom might accomplice and some might not support due to family pressure. More often than not, the neighbours, who might be having some clues or evidence against culprits and unwilling to testify something because of the fear of spoiling the neighbourly relation. They hassles apprehend regarding the police and court proceedings. Worse than the indifferent attitude is the partisan attitude of neighbours favouring the culprits.

Many young women can be saved from cruelty, harassment and unnatural deaths if they are insulated from the source of violence in proper time. Such recourse cannot be done or not possible due to traditional constraints. Despite the ill-treatment, some parents advice their daughters to keep staying with husband and his relatives which sometimes result to the avoidable tragedy.

Police and Law Enforcement  

In society, the work of the police is to act as a shield for general mass but in reality, they create fear in mind of the public at large by an act of police. The police are also accused of attitudes, practices and perception which reduces the likelihood of the successful implementation of laws in the present context. The usual allegations which public made at police are: reaches too late on a crime scene, distorting the events in recording the First Information Report, always try to prefer dowry deaths as suicide and carrying the investigation in less proper manner and leisurely fashion. The police treat violence against women as a family affair and always unwilling to register case itself. Some of the lacunas of police can be seen in some Supreme Court Cases like in case of Bhagwant Singh v. Commr. of Police Delhi[13] it is supported by Apex Court that incidence of unnatural deaths is much higher than indicated by police. Police diaries are not kept properly and produced before a magistrate. The investigating officer changed frequently which badly affect the investigation. Se of the shortcomings of the police is attributed to corruption.

Police have their own explanation that there is an unsatisfactory state of affairs. Firstly, inadequate evidence due to independent witnesses. The dying declaration which is a substantial piece of evidence always contradicts with a statement of connected persons. Forensic evidence is also generally helpful it would be better if experts are brought to the victim at sight of occurrence. Inordinate delay in medical reports.

The Judiciary

Usually, on a number of occasions, the Supreme Court expressed anguish and shocking view regarding deaths of young brides. In Virbhan Singh v. State of U.P[14]  apex Court said in view of increasing deaths of brides, such dastardly crimes whenever detected and proved then ruthless action and deterrent punishment must be imposed. Supreme Court concern about the acquittal of some alleged culprits but the state cannot approach apex Court in appeal. In Samunder Singh v. State of Rajasthan[15] the court opined that anticipatory bail cannot be given in cases of bride burning and dowry deaths. Some dissatisfaction occurred at trial level itself by the certain assumption of courts like a person with 100% burn not fit for dying declaration. If on behalf of harassment victim some other reported matter the matter not reported which creates a lacuna in Indian legal system.   

Conclusion

Dowry death is a social curse which is a burning issue in Indian society. Organized approach by women welfare organizations, police, public servants and judiciary by applying deterrent punishment for dowry deaths culprit. It can be observed that government of India along with Indian judiciary makes co-operative and supportive law to safeguard the life interest and dignity of women and provide further justice to the victim of harassment or cruelty by husband and his relatives. Change in education system led to an improvement in the education status of female and door to door employment service will lesser down dowry deaths. Still, certain corrective measures need to adopt to eradicate or at least curb this social menace of dowry death, but most importantly it needs a public will and commitment to shun away materialistic greed of dowry demands.

In cases to curb the rate of dowry deaths, harassment or cruelty more female police personnel should be inducted so available in a situation relating to unnatural deaths of women. In the interest of proper investigation and justice, the investigation cannot be done below the rank of assistant commissioner. Punishment for abetment of suicide must be raised to up to seven years. A rational and practical approach to the above-mentioned matter will certainly be helpful.

Endnotes

[1] Syed M. Afzal Qadri, Lotika Sarkar & Ahmad Siddique, Ahmad Siddiques criminology & penology (2009).

[2] (2010) 7 SCC 667

[3] 1981CriLJ 1116(Del)

[4] (2011) 11 SCC 733

[5] (1985) 2 SCC 370

[6] (1991) 3 SCC 1

[7] AIR 2005 SC 3546

[8] AIR 2011 SC 568

[9] AIR 2010 SC 2712

[10] (1986) Cr LJ 1510

[11] (2014) 8 SCC 273

[12] (1994) 1 SCC 73

[13] (1983) 3 SCC 344

[14] (1983) 4 SCC 197

[15] (1987) 1 SCC 466

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