Dowry Research Paper Sharanya Nair.docx

Project on Dowry Death

Submitted to:

Submitted by:

Prof. Smaraggi Chakraborty

Sharanya Nair URN No. 2016-B-01061998 BA.L.L.B (SEMV)

Table of contents

Abstract Dowry Death is one of the most hideous or gruesome and burning issues in India. There have been Laws and Acts that have been enacted and incorporated by the legal system of the country; also there have been campaigns and awareness programs initiated by the Governmental and NonGovernmental Organisations against the Dowry Deaths and Dowry System in India, but in-spite the presence of such initiatives the statistics on dowry-related deaths have only increased in the country. Practice of dowry poses heavy threat to the life of females. Dowry is an age old practice in Indian society referring to property or valuable security given by one party to another as a consideration for marriage. This custom of dowry was started in the medieval period. Women were gifted with wealth and jewel from their parents during her marriage and this served as a tool of financial independence for the bride even after marriage. This menace is the root cause of almost all violence against a married woman. In most cases after marriage the problem of dowry will arise. If the wife is not able to provide all, which her husband and in laws demand, her life in the groom’s house become miserable. She will be treated cruelly and in some cases she may lose her life. This research paper has made an effort to scrutinize and evaluate legal provisions which have been adapted and adopted by the Indian Legal System to minimize menace of Dowry Deaths, highlight loopholes and along-with its betterment in the legal system & the society and also to spotlight the available remedies.

INTRODUCTION

OBJECTIVES 1.

To study and critically analyze the dowry system in India.

2. To study the laws relating to Dowry death

METHODOLOGY The present study has adopted the doctrinal method of study. The study has been divided into three parts based on the objectives sought to be achieved by the present study. The study has firstly tried to present the background of the subject matter in brief and then the main part of the study has been dealt with. The study concludes with the analysis of developments in brief.

Historical background of Dowry system in India The root of dowry, with its broad dimensions today exists in India, can be traced back to antiquity. The Dowry System in India is linked with the Marriage establishment. But unlike the present time dowry was completely a voluntary gift in the ancient time to the daughter and her husband which in present scenario has become a conditional dowry. The ancient text and literature depicts and suggest that marriage ceremony was one of the important rituals and one of the main ceremonies in a person’s life, almost compulsory and binding for all the Hindu men in general and all women in particular, but there is no mention of Dowry System in those texts and literature. During the Vedic period, marriage was a holy bond which was blessed by the gods and goddesses themselves and this holy bond could not be broken by any sort of human actions. There were some very basic and simple rules that people followed for the consideration of the marriage but there is still no mention of Dowry. The parents of the daughter during the time of her marriage out of sheer love and affection used to gift some part of their money and jewellery to her, which apparently have started and triggered the Dowry System in the country. Nevertheless dowry as it now exists, includes the extraction of cash and material goods from the bride’s parents by the groom and his family. This social disease has spread through the range of society crossing religious and economic limitations. Furthermore, dowry demands are made not only prior to the marriage, but also for years afterward, for instance, at the time of ceremonies and the birth of children. The root of a host of social atrocities against women, the custom of presenting dowry is the crudest expression of the male-dominance in the society. Despite a lot being said and done against the custom, it is still prevalent in the 21st century, in both subtle and obvious ways.. It is most often the mandatory custom of a girl’s parents having to provide a considerable amount of cash, gold in the form of jewelry, electronic equipment, movable or immovable properties, to the groom and his family, at the time of marriage. The sum to be paid as dowry has no set standard, the yardstick greatly depends on the groom’s profession/social standing and is often perceived as the groom’s family as the compensation of efforts they have made to educate their boy. This ideal is so ingrained in the psyche of a large number of Indians, they either practically ruin themselves financially in order to pay for the appropriate price of the chosen groom, or make a bid to eradicate the prospect of this financial burden by selective gender-based abortion or female infanticide. This exploitative system that has turned the custom of giving gifts and well wishes into a compulsory demand for money, respect and subjugation, is the one of the major contributing factors hindering the growth of the Indian society where being a woman is still viewed synonymous to being a burden.

Growth of Dowry Death in India

Dowry Death can be defined as an unnatural death of the wife due to demand for dowry by the husband and/or his family. Dowry can include anything from money to assets like Jewellery, movable and immovable property and etc. Women are either killed by the husband or his family, if their demand and greed for dowry are not fulfilled or the woman commits suicide because she could not face the harassments anymore over the fulfillment of the dowry. It is also another way to start or push the husband’s career or to fulfill the family’s demands to the developing social materialistic requirements. It is a plain greed of the husband and his family to demand dowry otherwise this heinous practice would have stopped long back. With passing years cases related to dowry deaths in India are gradually increasing. Also, cases of cruelty towards the wife by a husband or his relatives are increasing which is prominently caused by the demand for dowry and wife’s inability to fulfill it. According to the statistics given in the NCRB Report, 20162, total number of reported cases related to Dowry Deaths in the year 2016 were 7,621 and total number of reported cases related to cruelty by the husband or his relatives to the wife in the year 20161 were 1, 10,378 India holds the highest number of Dowry Death cases in the World. It is also another way to start or push the husband’s career or to fulfill the family’s demands to the developing social materialistic requirements. It is a plain greed of the husband and his family to demand dowry otherwise this heinous practice would have stopped long back. Another glaring issue that comes up with the laws laid down to protect women from this cruel act is that misuse of the very same laws by the wife or her family to harass and blackmail the husband or his family, which is also needed to be dealt with in a swift manner.

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Crime in India, 2016 - National Crime Records Bureau, Ministry of Home Affairs, New Delhi, India.

PART II Laws relating to dowry death With the increasing number of dowry death cases in India, the Government has laid some guidelines to deal with such cases and the laws have also been amended for strengthening the legal system to protect and support the victims who come under the cases of dowry deaths or cruelty. We have The Indian Penal Code (I.P.C.), The Indian Evidence Act (I.E.A.), and Criminal Procedure Code (Cr.P.C.) and The Dowry Prohibition Act (D.P.A.) 1961, to protect the women from being subjected to Dowry Deaths or Cruelty arising out of disputes related to dowry. They are as follows: IPC SECTION 304B2: (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. Section 304B is a substantive provision creating a new offence. In Soni Devrajbhai Bahubali vs. State of Gujarat3, it was heldSection 304B and the cognate provisions are meant for eradication of the social evil of dowry which has been the bane of Indian society and continues unabated in spite of emancipation of women and the women’s liberation movement.

Ingredients of Section 304 – B of I.P.C. are as follows: 1. When the death of the woman is caused under abnormal and suspicious circumstances caused by burns or any other bodily injuries. 2. within 7 years of the marriage. 3. The death is caused in relation to demand for dowry. 4. The expression of “Soon before her Death”. It is a Cognizable, Non – Bailable, Non – Compoundable offence.

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IPC bare act 1860

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Soni Devrajbhai Bahubali vs. State of Gujarat AIR 1991 SC 2173

In the case of Satvir Singh and others v. State of Punjab and another 4apex court held that the harassment or cruelty to which the woman is subjected should not be at some time with the demand to dowry rather it should be “soon before her death”. Further, in the case of Raja Lal Singh v. State of Jharkhand4 it was said by the apex court that the term “soon before her death” that is given in Section 304 – B of the I.P.C. is a very flexible expression, it can be interpreted as instantly before her death or within a reasonable time before her death. The thing that is significant over here is that there should be an appreciable connection between the death of the woman and the harassment she faced related to dowry demand. If the wife dies within 7 years of the marriage and if there is no demand for dowry and there was no ill-treatment as well from the side of husband and his family, then the husband and his family cannot be held liable and charged under section 304 – B of the I.P.C., held by the Hon’ble Supreme Court in the case of Meka Ramaswamy v. Dasari Mohan and others. However, it was held in the case of Bhagwan Das v. Kartar Singh and others6 that if the woman is killed or commits suicide in relation to demand of dowry and it happens soon before her death then Section 304 – B of the I.P.C. may be invoked. In Prahallad Budek v. State of Orissa7 it was held that there should be a live link between the death of the woman and the harassment and cruelty faced by her in relation to demand of dowry, and if there is no such link then the offence of Section 304 – B of I.P.C. cannot be established against the husband or husband’s relatives. Also, it was the same that was stated in the case of Baldev Singh v. State of Punjab8 plus it was also said that the time gap should not be much between the cruelty and harassment and the death of the woman. State of Rajasthan v. Jaggu Ram9 held that, as there is no specification of time period for the expression “soon before her death” in any of the statutes or acts, so it is directed that as the facts and circumstances of each case may differ so on the basis of that it is required by the court to decide that if the time period between the death of the woman and the cruelty she suffered is immediate or not. INDIAN EVIDENCE ACT, 1872, states 113B. 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 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. Explanation.—For the purposes of this section, “dowry death” shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860). In Kamesh Panjiyar alias Kamlesh Panjiyar v. State of Bihar13 the court said that if there is a conjoint reading of section 113 – B of the I.E.A. and section 304 – B of the I.P.C. then there have to be some evidences submitted before the court stating that there have been cruelty and harassment to the wife from the side of husband or husband’s relatives in order to punish the accused in the matter of dowry death. However, in the case of Sham Lal v. State of Haryana14 it was said that the husband cannot be convicted under section 304 – B of the I.P.C. and also section 113 – B of the I.E.A. cannot be raised if there is no evidence of the harassment and cruelty “soon before her death”. Similarly in Harjit Singh v. State of Punjab15 the court held that there was no evidence showing that the poison consumed by the wife was the result of some

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(2001) 8 SCC 633; 2002 SCC (Cri) 48; AIR 2001 SC 2828; (2001) 8 SCC 633; 2002 SCC (Cri) 48; AIR 2001 SC 2828

cruelty or harassment by the husband, so the husband was acquitted under section 304 – B of the I.P.C. and the provisions of section 113 – B of the I.E.A. could not be inflicted against him.

Principles relating to S.304B IPC and 113B Evidence Act summarised by Supreme Court5 a) To attract the position of Section 304B IPC the main ingredient of the offence to be established is that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of the dowry. b) The death of the deceased woman was caused by any burn or bodily injury or some other circumstances which was not normal. c) Such death occurs within seven years from the date of her marriage. d) That the victim was subjected to cruelty or harassment by her husband or any relative of her husband. e) Such cruelty or harassment should be for or in connection with the demand of dowry. f) It should be established that such cruelty and harassment was made soon before her death. g) The expression (soon before) is a relative term and it would depend upon circumstances of each case and no straight jacket formula can be laid down as to what would constitute a period of soon before the occurrence. h) It would be hazardous to indicate any fixed period and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under S.11B of the Evidence Act. i) Therefore, the expression “soon before” would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate or life , link between the effect of cruelty based on dowry demand and thye concerned death. In other words, it should not be remote in point of time and thereby make it a stale one. 5

Kashmir kaur v. State of Punjab, AIR 2013 SC 1039: 2013 689

j) However the expression “soon before” should not be given a narrow meaning which would otherwise defeat the very purpose of the provisions of the Act and should not lead to absurd results. k) S.304B is an exception to the cardinal principles of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of Art.20 of the Constitution, as well as, a presumption of innocence in his favour. The concept of deeming fiction is hardly applicable to criminal jurisprudence but in contradistinction to this aspect of criminal law, the legislature applied the concept of deeming fiction to the provisions of Section 304B. l) Such deeming fiction resulting in a presumption is, however, a rebuttable presumption and the husband and his relatives, can, by leading their defence prove that the ingredients of S.304B were not satisfied. m) The specific significance to be attached is to the time of the alleged cruelty and harassment to which the victim was subjected to, time of her death and whether the alleged demand dowry was in collection with the marriage. Once the said ingredients were satisfied it will be called dowry death and by deemed fiction of law the husband or the relatives will be deemed to have committed that offence.

SECTION 498A INDIAN penal code6:

498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation7- For the purpose of this section, “cruelty” means— (a) any willful 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. The term cruelty of section 498-A, IPC, has been explained in the explanation to section 498-A which consist of two clauses namely Clause (a) and (b). Cruelty or harassment to wife was to force her to cause grave bodily injury to herself or to commit suicide, or the harassment was to compel her to fulfill illegal demand for dowry. Every type of harassment or cruelty that would not attract section 498-A, IPC[ 14].Cruelty can either be mental or physical. It is difficult to straitjacket the term cruelty by means of a definition, because cruelty is a relative term. Ingredients of Section 498 – A of I.P.C. are as follows: 1. The woman should be a married woman. 2. The married woman should be the subject of the cruelty or harassment. 3. The harassment or cruelty should be done by the husband or by husband’s relatives. 4. There should be a Mens Rea on the part of husband or husband’s relatives.10 It is a Cognizable, Non – Bailable, Non – Compoundable offence. Section 304B and Section 498A:- Expression ‘otherwise than under normal circumstances’ in Section 304B means death not in normal circumstances, if not caused by burns or bodily injury8. Sections 304B and 498A are not mutually exclusive. Also in the case of Balwant Singh and others v. State of Himachal Pradesh11 the 2 judge’s bench said that the person who is acquitted under section 304 – B of the I.P.C. can also be convicted under section 498A of the IPC. As both the sections of the I.P.C cannot be held as mutually inclusive. In Atmaram v. State of Maharashtra [17], woman was subjected to harassment by her husband and his relatives, purposely. The Supreme Court held that, Clause (a) of section 498-A, deals with aggravated forms of cruelty which cause grave injury, and convicted her husband for cruelty.

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IPC bare act https://indiankanoon.org/doc/538436/ visited on 26th Oct 2018 at 2;30 pm 8 Kans Raj vs. State of Punjab and others, 2000(3) Supreme 554 7

DOWRY PROHIBITION ACT, 1961 The whole of the Dowry Prohibition Act, 1961 is prepared, equipped and developed in order to provide relief to the victims of the dowry cases in the country. The entire act solely fulfils the purpose to protect woman’s sufferings from the dowry harassment and cruelty. As it can be seen that this Act is drafted, keeping in mind the interest of all areas of society and law in order to protect and enhance the status of dowry victims which may be leading them to death, suicide, harassment or cruelty. It is understood that the word “Dowry” is a social evil, but as it can be seen in section 6 of the D.P. Act which says “Dowry to be for the benefit of the wife or her heirs”, here we should understand that Dowry is simply a sum of property (whether it is money or any other property) given by her parents or her parents’ family out of sheer love and affection to protect the social and financial interest of a woman and which is not social evil. In-fact the social evil is the “demand” of dowry by the husband or his family, faced by the wife and her family. In the case of Sabitri Dei and others v. Sarat Chandra Rout and others16 the apex court quashed the order given by the competent Sessions Court and convicted the husband and his relative under section 498–A/section 304–B of the I.P.C. and under section 4 of the D.P. Act. Similarly, in the case of Premananda Sahoo v. State of Orissa17 the criminal appeal was directed against the judgement given by competent Sessions Court. In the landmark judgement of Suresh Kumar Singh v. State of U.P.18 the apex court held that the proof of demand of dowry as shown by the prosecution should not be too old from the death of the woman. The propinquity of dowry demand and the death of the victim should be established to evoke the expression of “soon before her death” and charge the accused under the D.P. Act as well. Though these laws are present or made to prevent and to punish the wrongdoers but the other side of the story seems to be more depressing that is the Misuse of these provisions. There have been a good number of cases of false acquisitions and gross misuse of these rights. In many cases where demands of the Wife are not being fulfilled, and in order to harass the husband and his family, or if the marriage is strained because of any other extraneous reasons, they lodge false complaint with the nearest police station and the husband and/or his family are instantly arrested without investigations. According to the statistics given in the NCRB Report, 201619 the total number of reported False Cases related to Dowry Deaths in the year 2016 were 254 and the total number of reported False Cases related to cruelty by the husband or his relatives towards the wife in the year 2016 were 6,745. It is rightly said by the Hon’ble Supreme Court in the case of Sushil Kumar Sharma v. Union of India20 that section 498 – A of the I.P.C. was incorporated for the protection of women which is being maliciously misused and stated this section as a “Legal Terrorism”.

CONCLUSION Though law has provided strict measures to control this danger will be continued; unless the whole society believes that dowry is an evil, unless there is a strong awareness in the minds of the public. Too, society and anyone as a member of the society can do lots to prevent offences of harassment, dowry death, etc. by considering the following steps; Start practicing dowry prohibition in the family, educate the members of family with the provisions of law that demanding and accepting or giving dowry is an offence. If in any family there is a growing conflict among the in-laws and the wife, try to interfere to sort out the differences and educate them about the evils of dowry system. Because a woman is a significant member of family and is entitled to all the rights and privileges a man enjoys.