Dowry is a concept of giving and taking money or gifts from the bride’s family at the time of marriage as a token of love and acceptance which binds both families into one. Unfortunately, over the years the term has shifted from being an affectionate gesture to a horrifying nightmare. Though the practice of dowry emerged as a safeguard for the woman, it has assumed mammoth shape and magnitude. 7634 brides were burned to death in India in 2015 due to dowry disputes.[1] This approximates to one bride being burned every hour. 30.6% of total cases of dowry deaths were reported in Uttar Pradesh (2335 cases) alone, followed by Bihar (1154 cases).[2]
“Dowry death” can be seen as a result of a unique form of violence suffered by Indian women. It, in all ways, was always murder. In fact, during the early 1980s, most cities in India publicised murders of wives involved in dowry disputes.[3] It seemed that a plague was spreading and an increasing number of educated middle-class women were falling victim to it. In the wake of the campaign that was generated, it came to be accepted, both nationally and internationally, that a unique form of violence was being perpetrated on Indian women by their husbands and in-laws.[4] A logical extension of this recognition was the belief that a more stringent law against dowry would prevent marital murders. Accordingly, commission of “dowry death” was categorised as a separate offence.
After almost more than a decade of gaining Independence, a specific Act was introduced which tackled with the problem of dowry called the Dowry Prohibition Act, 1961. This Act prohibits the practice of giving or taking of dowry by either parties to a marriage. The Act also punishes demanding and advertising dowry.
It has been observed in Shanti v. State of Haryana[5] that the term “dowry” has not been defined anywhere except in Section 2 of the Dowry Prohibition Act, 1961. The definition of “dowry” provided by this section is: “any property or valuable security to be given directly or indirectly by one party to a marriage to the other party to marriage at or before or any time after the marriage in connection with the marriage of the said parties”. Payments which are customary payments, e.g., given at the time of birth of a child or other ceremonies as are prevalent in different societies are not covered by dowry. Hindu custom historically prohibited women from inheriting land, particularly when there were male heirs, but this appears to have no legal force. In India, social norms make it extremely rare that women would receive real (immovable) property.[6] The dowry (of movable property) is subsequently viewed as a sort of pre-mortem inheritance after which the daughters generally have no rights to the paternal estate. Therefore, it is not that laws in India prohibit a woman’s dowry from including land, but it is virtually unheard of because of social custom.
Demand for dowry, in the present day, can be understood as demand for any property or valuable security directly or indirectly which has a nexus with the marriage.[7] Thus, there are three occasions pertinent to understand the concept of dowry, one is before the marriage and the second is at the time of marriage and the third is anytime after marriage which may seem to be an unending period. But, the crucial words are “in connection with marriage of the said parties”. Therefore, the premise on which the concept of dowry thrives is that the valuable property, movable or immovable, must be given in relation to the conjugal union of two people.
The Act also provides the penalty for the giving or taking of dowry which may not be less than fifteen thousand rupees and up to five years of imprisonment or what the Court may deem fit[8]. If an individual makes a demand for dowry, he can be made liable to pay a fine of Rupees ten thousand and imprisonment for six months which may be extended to two years.[9]
The Dowry Prohibition Act is both a remedial and penal statute. As such, the courts are expected to construe the provisions in a way that the purpose is fulfilled through and within the limits of the language employed in the statute. Moreover, the courts, despite the obligation of making the legislative enactment a success have also to keep in mind that the charge must be made out. It is so because the cardinal principle of criminal law is that unless guilt is established, the accused should not be punished only because a lesson is to be taught to the person involved in a crime or because the Court is satisfied that the criminal has committed a moral transgression.[10] This has both positive as well as negative repercussions. While innocents are saved from being framed for charges of dowry harassment, guilty persons many a time get away with the crime because of paucity of direct evidence.
Despite the existence of Dowry Prohibition Act, 1961, and its two amendments in 1984 and 1986, none of them has been able to curb the social evil of dowry. The reasons why the enactment has singularly failed to achieve its objective are:
(i) Vague definition of “dowry” given by the Act — The definition of “dowry” contained in the Act is vague and ambiguous. The Act contains an explanation under Section 2 which weakens the law and nullifies its objective. It provides that presents in the form of cash, ornaments, clothes and other articles are not to be deemed as dowry unless they are made as consideration for the marriage of the said parties.
(ii) Section 3 of the Act makes both the giver and taker of dowry punishable for the offence. This is unique as the victim is made equally punishable for the offence.
(iii) The punishment for demanding dowry is quite inadequate and hence ineffective. The element of deterrence is lacking.
(iv) The most important reason for failure of the Act is that it virtually lacks enforcement. A lot is lacking in investigative and enforcement machinery for the proper enforcement of its provisions or for providing necessary help to the dowry victims to prosecute their cases. If some machinery, which can intervene whenever necessary, is available, it may help in averting a number of dowry tragedies and also in rendering necessary help to the victim.[11] Moreover, the Court which is competent to try offence under the Act by virtue of Section 7(a), cannot take cognizance of any offence except on a complaint made within one year from the date of the offence.
Though the Act enables any person who is aware of the commission of the offence to come forward to lodge a complaint, it is worthless to expect even the aggrieved party to set the law in motion since the bride’s parents who are usually the victims would be reluctant and unwilling to make a complaint because of the fear of their daughters being victimised. Therefore, the Act did not have the desired effect of even curbing the evil not to speak of its eradication.
The word dowry in Section 304-B IPC has to be understood as it is defined in Section 2(1) of the Dowry Prohibition Act, 1961. Section 304-B IPC defines “dowry death” as—
304-B. Dowry death.—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.
This section makes the offence punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
In Pawan Kumar v. State of Haryana[12], the Hon’ble Supreme Court has laid down that the ingredients necessary to attract Section 304-B IPC are:
(1) death of a woman is either by burns or by bodily injury or otherwise than under normal circumstances;
(2) it should be within seven years of marriage;
(3) it should also be shown that soon before her death she was subjected to cruelty or harassment by husband or any relative of husband;
(4) such harassment or cruelty should pertain to demand for dowry.
Another significant aspect of the definition provided under Section 304-B is that the death should be caused “otherwise than under normal circumstances”. In Kamesh Panjiyar v. State of Bihar[13], the Court gave a practical dimension to this. The body of the victim was found by her brother, lying in the verandah of the appellant’s house with blood oozing from her mouth and evident marks of violence on her neck. It appeared that the victim had been murdered by strangulation in the previous night. The Court relied on the opinion of the doctor, the evidences recovered and the testimony of the witnesses to hold that the death of the woman had been caused otherwise than under normal circumstances as expressed in Section 304-B, and hence it was a case of “dowry death”.
Under Section 498-A IPC, cruelty to a wife by her husband, or any of his relatives, is punishable with imprisonment for up to three years and also a fine. “Cruelty” here is defined as any wilful misconduct, either mental or physical, which drives the woman to commit suicide or causes grave injury or danger to her life, limb or health. Any offence under this section is non?bailable and non-compoundable. By virtue of this section, dowry harassment is covered under the definition of “cruelty”.
However, all types of cruelty may not amount to dowry harassment. The courts too, have to draw a line to constrict the scope of dowry harassment and outline the definite parameters required to constitute the offence. In this regard, it was emphasised in Satvir Singh v. State of Punjab[14] that there should be a perceptible nexus between the death of the woman and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the Court would be in a position to gauge that in all probability that would not have the immediate case of her death.
Now, what amounts to cruelty, is again a subjective question. The judiciary has pondered over the proposition of cruelty in a plethora of cases. The relation between demand for dowry and cruelty has been explained by the Supreme Court in Gurbachan Singh v. Satpal Singh[15]. In this case, the victim, a newly-wed woman, who had committed suicide within a year of her marriage, was subjected to utmost cruelty. 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 take her life. 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 a dowry death.
This does not imply that the Courts have adopted a prodigal approach at categorising dowry deaths. In order to prove cruelty, it is to be established by the party complaining of cruelty that the conduct of the spouse has been of such a character so as to cause danger to life, limb or health, so as to give rise to a reasonable apprehension of such a danger.[16] The Court also laid safeguards against the misuse of law by expressing that in marital life, it cannot be said that there is total harmony and it is not uncommon between the wife and husband to have some petty quarrels. Such petty quarrels cannot be termed as cruelty to attract the provisions of Section 498 IPC.[17] The Supreme Court in the landmark case of Samar Ghosh v. Jaya Ghosh[18] has held that the concept of cruelty differs from person to person. It depends upon the upbringing, level of sensitivity, educational, family, cultural background, financial position, social status, customs, traditions, religious beliefs, human values and value system. Therefore, for conviction in cases of dowry death, it is mandatory to prove cruelty first.[19]
The proximity between time of alleging ill-treatment and the time of death is another highly crucial factor that is an essential and necessary evidence for proof of dowry death.[20]
Determinately, the emerging facet is that just demanding dowry cannot result into a case of cruelty and hence, of dowry harassment.[21] A Bench of Justices R.M. Lodha and A.K. Patnaik in Amar Singh v. State of Rajasthan[22] stated that the prosecution has to establish by convincing evidence that the accused had subjected the victim to torture soon before her death in connection with the demand of dowry. For this purpose, even the legislature has taken proactive steps and amended Sections 174 and 176 CrPC to make post-mortem of the victim mandatory. Hence, though dowry death is an alarming menace, constricting the scope of legal provisions to prevent misuse of law is a societal necessity.
Moreover, admittedly the deceased committed suicide within a period of seven years from the date of her marriage. Section 113-A of the Evidence Act, 1872 is, therefore, clearly attracted to this case. Presumption contemplated therein must spring in action. This provision was introduced by the Criminal Law (Second Amendment) Act, 1983 to resolve the difficulty of proof where married women are forced to commit suicide but incriminating evidence is difficult to get as it is usually available within the four walls of the matrimonial home.[23]
When the deceased committed suicide within a period of seven years from the date of her marriage in Ramesh Vithal Patil v. State of Karnataka[24], Section 113-A of the Evidence Act was attracted to the case. Presumption contemplated therein, as to abetment of suicide by a married woman, sprang into action. This provision (Section 113-A) was introduced by the Criminal Law (Second Amendment) Act, 1983 to resolve the difficulty of proof where married women are forced to commit suicide but incriminating evidence is difficult to get as it is usually available within the four walls of the matrimonial home.
Another such provision that deals with dowry death is Section 113-B of the Evidence Act. It states—
113-B. 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 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.[25]
The necessity for insertion of this provision was analysed by the Law Commission of India in its 91st Report of 1983 on Dowry Deaths and Land Reform[26]. It was clarified by the Supreme Court in State of Punjab v. Iqbal Singh[27] that by introducing this section, the legislature has tried to strengthen the prosecution’s hands by permitting a presumption to be raised if certain foundation facts are established and the unfortunate event has taken place within seven years of marriage. The prosecution has to rule out the possibility of a natural or accidental death to bring the death within the purview of death occurring otherwise than in normal circumstances. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium, it would be of no help to the prosecution. In such a case, the possibility of an accidental death will be ruled out.[28] However, it is incumbent upon the prosecution to establish the commission of offence under Section 498-A IPC before such presumption can be drawn. Moreover, failure of accused to rebut the presumption makes the conviction proper.[29]
As laid down in Bansi Lal v. State of Haryana[30], in each case the Court has to analyse the facts and circumstances leading to 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 a land of traditions and cultures followed across its length and breadth. It comprises of many traditions accepted and practiced widely. One such is that of dowry deaths. Numerous legal provisions have been set up for curbing this problem yet it is being practiced openly. Dowry deaths or as popularly known as 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. Fortunately increasing demands by feminists and demand for women empowerment as a matter of right have led to various amendments of provisions in the criminal law on the country in order to achieve the goal of curbing the problem of dowry deaths.
Over the years many legislative steps have been initiated towards bringing equality and fair treatment towards women. These legal provisions have helped families of the victims to get justice and find comfort in the arms of law. Married women have suffered and continue to suffer even to this date by being tortured by their husband and his family members. Due to such provisions culprits can no longer hide behind obsolete traditions which violate right to live of a person, e.g. wife. Although such provisions have their cons as well since sometimes cunning women use such tactics to frame their in-laws and husband for petty fights and conflicts. Thankfully our Indian legal system is strong enough to differentiate frivolous cases from those of genuine nature and would continue to do so in the future as well.
In my view such legislations have carved out a way in furthering the status for equality in our country between the two sexes. Section 498-A IPC has paved the way for cruelty/domestic violence to be recognised as a criminal offence. Prior to insertion of Section 498-A IPC, cruelty was only a ground for divorce as a matrimonial wrong, leaving women vulnerable. Another important provision that impresses me is Section 304-B IPC which for the first time recognised dowry death as a specific crime. It further condemned dowry death as a social evil by its enactment. Insertion of this provision by the legislature has proved to be a boon to its women citizens. Section 113-B of the Evidence Act, by shifting the onus on the accused in dowry death cases, is a very important tool in aid of penalising dowry deaths. Today, the social evil of dowry death has been put into perspective. Although I honestly feel that the Indian legal system has come a long way from where it had started, yet there is much more to achieve. Unfortunately in cases related to dowry deaths, sometimes there are mala fide and frivolous cases made by the victim’s family. In such instances the whole family of the husband is put behind bars even when they are not a part of it. I am aware that it is tough to make provisions to make sure that the entire family or innocent members of the family are not unnecessarily punished for acts not done by them. But, I think, judicial jurisprudence has developed ensuring some protection for the innocent. There are loopholes in all systems and India is not immune to it. However, these laws serve an important social function and misuse, if any, should be dealt with by appropriate measures, not undermining its inherent need. Therefore, I as a citizen of India overall feel the need for the existing legal provisions and hope for further advancement to curb this menace. With progressive legislation, judicial progressive interpretations and social awareness, the time will come soon when such evils will be history.
* BA Hons. (Psychology), Delhi University and 3rd year student, LLB, Amity University, India.
[1] National Crime Records Bureau, Crime in India 2015: Compendium, <http://ncrb.nic.in/StatPublications/CII/CII2015/FILES/Compendium-15.11.16.pdf>.
[2] National Crime Records Bureau, Crime in India 2015: Compendium, <http://ncrb.nic.in/StatPublications/CII/CII2015/FILES/Compendium-15.11.16.pdf>.
[3] Achar, M.R. and Venkanna, T. (1962), Dowry Prohibition Act, Allahabad, Law Book Company.
[4] Kapadia, K.M. (1955), Marriage and Family in India, Geoffrey Cumberledge, Bombay, Oxford University Press.
[6] Wanda Teays, The Burning Bride: The Dowry Problem in India, Journal of Feminist Studies in Religion, Vol. 7, No. 2 (Fall, 1991), pp. 29-52.
[7] Raminder Singh v. State of Punjab, (2014) 12 SCC 582.
[8] S. 3, Dowry Prohibition Act, 1961.
[9] S. 4, Dowry Prohibition Act, 1961.
[10] Gurditta Singh v. State of Rajasthan, 1991 SCC OnLine Raj 315 : 1992 Cri LJ 309.
[11] Causes of Ineffectiveness of Dowry Prohibition Act in Assam, <http://shodhganga.inflibnet.ac.in/bitstream/10603/114294/16/16_chapter%206.pdf>.
[14] (2001) 8 SCC 633 : 2001 Cri LJ 4625.
[15] (1990) 1 SCC 445 : 1990 SCC (Cri) 151.
[16] Harjit Kaur v. Roop Lal, 2003 SCC OnLine P&H 152 : AIR 2004 P&H 22.
[17] Vadala Vinay Kumar v. State of A.P., 2006 SCC OnLine AP 5 : 2006 Cri LJ 1710.
[19] Vipin Jaiswal v. State of A.P., (2013) 3 SCC 684.
[20] Niranjan Mohapatra v. State of Orissa, 1997 SCC OnLine Ori 252 : 1998 Cri LJ 630.
[21] A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22.
[23] Ramesh Vithal Patil v. State of Karnataka, (2014) 11 SCC 516.
[25] Section 113-B, Evidence Act, 1872.
[26] Law Commission of India, 91st Report on Dowry Deaths and Land Reform, 1983.
[27] (1991) 3 SCC 1 : AIR 1991 SC 1532.
[28] Bakshish Ram v. State of Punjab, (2013) 4 SCC 131 : AIR 2013 SC 1484.
[29] Maya Devi v. State of Haryana, (2015) 17 SCC 405 : AIR 2016 SC 125.
