The section requires that a woman must have died within seven years of her marriage and she must have died of bums or bodily injury or otherwise than under normal circumstances. It must also be established that soon before her death her husband or any relative of her husband had subjected her to cruelty or harassment for or in connection with any demand for dowry. Such an offence has been named as dowry death and it will be presumed that the husband or his relative, as the case may be, had caused her death. A minimum mandatory sentence of seven years has been provided under this section which may extend to imprisonment for life. ‘Dowry’ under this section will have the same meaning as provided in section 2 of the Dowry Prohibition Act, 1961 according to which it means any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage, or 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 after the marriage as consideration for the marriage of the said parties.
This section was inserted by the Dowry Prohibition (Amendment) Act, 1986 with a view to deal with the increasing number of dowry deaths taking place in India. This Amendment Act has also amended the Indian Evidence Act, 1872 by inserting section 113-B therein with respect to raising a presumption of dowry death. According to this section 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. The explanation attached to the section says that for the purpose of this section ‘dowry death’ shall have the same meaning as in section 304-B of the Indian Penal Code. Another related provision is section 498-A of the Indian Penal Code which punishes with imprisonment for a term extending to three years and also fine a husband or his relative, as the case may be, for subjecting such woman to cruelty. ‘Cruelty’ has been defined under the explanation of this section as meaning 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 her harassment 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 Supreme Court has held in Soni Devrajbhai Babubhai v. State that in view of the protection granted by Article 20 (1) of the Constitution an act committed before section 304-B was enacted and enforced could not be tried and punished under section 304- B.
The Andhra Pradesh High Court is of the view that where a plot to engineer the death of a woman is hatched by her in-laws, it is not necessary for their conviction under this section that they must actually participate in it. On the facts of the case, however, the husband who had led his wife to her parental home to press for outstanding as well as fresh dowry demands but the wife’s parents had shown their inability to meet the demands, and on their return when the wife had slipped away from a bus stop, he and the wife’s parents had joined in joint operation to find her, and later on her floating body was recovered, was held not guilty under this section. In Bhoora Singh v. State there was harassment, ill-treatment and threat to the life of the deceased by her in-laws for nonsatisfaction of dowry demands. This was duly established by the letter written by the deceased to her father. The incident took place in the house of her in-laws.
The deceased was in hospital in a semi-conscious condition and was responding only to deep stimulation. The unwritten oral dying declaration of the deceased made to her mother implicating the accused could not be relied upon as her mother was an interested witness. However, on the basis of facts and circumstances of the case the accused was convicted under section 498-A but not under section 304-B because the incident of burning of the deceased took place before the offence under section 304-B came into existence and this being a substantive offence and not a procedural one retrospective operation could not be given to it. The burden of proof continues to lie on the prosecution all the time like any other criminal case. Where, therefore, a young wife had voluntarily committed suicide by consuming insecticide, this by itself does not prove a case against the husband under this section. Similarly, where there was evidence of only a slight harassment of the deceased by her in-laws as a result of which she burnt herself to death, this by itself is not enough to convict the husband or the in-laws. Where the body of the deceased married woman was cremated in undue haste without informing even her parents and there was no material whatsoever on record to show a natural death, a presumption against the accused under section 113-B, Evidence Act, 1872 can be drawn.
Similarly, where the post mortem report indicated kerosene smell from the body and hair of the deceased married woman the plea of accidental burning while preparing tea deserved to be negatived. The Supreme Court has observed in V. N. Pawar v. State that wife-burning tragedies are becoming too frequent for the country to be complacent. Police sensitisation mechanism which will prevent the commission of such crimes must be set up if these horrendous crimes are to be avoided. Likewise, special provisions facilitating easier proof of such special class of murders on establishing certain basic facts must be provided for by appropriate legistation.
In Prakash Chander v. State of Delhi a wife died within seven years of her marriage. Her body was found burnt in the house of her husband at midnight. Her parents’ and sister’s deposition that there was demand of dowry and the deceased was subjected to cruelty and harassment by her husband and in-laws were reliable.
It was held that the husband’s conviction under section 304-B was proper. The trial Court had convicted her mother-in-law under section 498-A which impliedly meant her acquittal for the more serious offence under section 304-B. The State did not appeal against her implied acquittal. It was held, the High Court in her appeal against conviction had no power to convict her under section 304-B of the Code.
In Pawan Kumar v. State of Haryana, the Supreme Court held that agreement for dowry is not always necessary and that persistent demands for television and scooter from the bride after marriage would be held to be in connection with marriage and the accused is guilty under section 304-B of the Code and section 2 of the Dowry Prohibition Act, 1961. In Surinder Kumar v. Slate a wife was deserted by her husband. The defence pleaded that the desertion was because of the fact that the wife was suffering from epilepsy and not for demand of dowry.
However, in her dying declaration and the suicide note the deceased had specifically named the accused making demand of colour television and scooter and that she was being abused and harassed for bringing insufficient dowry. Though she was staying with her parents when she committed suicide, there were meetings between the parties and attempts made to rehabilitate her. It was held that it was sufficient incitement and continuous harassment when she was not accepted unless dowry demands were met attracting rigour of section 304-B and thus the conviction was sustained. In D. S. Shishodia v. Ê. C.
Samdariya, a married woman died within seven years of her marriage. The Rajasthan High Court held that the date of marriage should be reckoned from the date of solemnisation and not from the date of ‘Muklava’ ceremony which took place subsequently, more so when ‘Muklava’ is not a necessary ingredient of marriage and it is not established that by custom ‘Muklava’ is the marriage. In Satvir Singh v. State of Punjab? the Supreme Court observed that there should be perceptible nexus between the death of the deceased and harassment or cruelty on her. In this case there was insufficient evidence to show that the wife was subjected to cruelty soon before attempting to commit suicide.
It was held that the accused could not be convicted under section 116 of the Code by linking it with section 306 or section 304- B. Conviction under section 116 was set aside and that under section 498-A was confirmed. The fine under section 498-A was modified to Rs. one lac each for all the three accused.
In State of Karnataka v. Ì. V. Manjunathegowda a wife died within six months of her marriage. There was demand and payment of dowry. Harassment and cruelty was caused to her. The testimony of the brother and father of the deceased proved that soon before her death the deceased was subjected to cruelty and harassment in connection with demand of dowry by the accused husband.
The Supreme Court held the accused guilty of committing dowry death under section 304-B but since the prosecution failed to establish complete and conclusive chain of circumstances to bring guilt of the accused beyond reasonable doubt, his acquittal for murder could not be interfered with. In Hira Lai v. State (Government of NCT) of Delhi, the Supreme Court observed that the expression ‘soon before’ in section 304-B of the Indian Penal Code and in section 113-B of the Indian Evidence Act, 1872 does not indicate any fixed period but the proximity test is applicable.
The existence of proximate and live link between the effect of cruelty and the death is necessary. An acquittal under section 304-B does not necessarily mean acquittal under section 498-A and also under section 306 of the Code though no charge to that effect is framed. In State of Andhra Pradesh v. Raj Gopal Asawar the Supreme Court ruled that no definite period is indicated in the expression ‘soon before’ used in section 304-B. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. Reema Agarwal v.
Anupam, is a very important case where the relevance of sections 304-B and 498-A of the Code and section 113-B of the Indian Evidence Act in cases where validity of the marriage itself was in question, was looked into by the Supreme Court. Justice Arijit Pasayat has stated that the concept of ‘dowry’ is intermittently linked with a marriage and the provisions of the Dowry Prohibition Act apply in relation to marriages. If the legality of the marriage itself is an issue further legalistic problems do arise. If the validity of the marriage is under legal scrutiny, the demand in respect of an invalid marriage would be legally not recognizable. Even then the purpose for which sections 498-A and 304-B of the Indian Penal Code and section 113-B of the Indian Evidence Act were introduced cannot be lost sight of.
Legislations enacted with some policy to curb and alleviate some public evil rampant in society and effectuate a definite public purpose or benefit positively, require to be interpreted with certain element of realism too and not merely pedantically or hyper technically. The obvious objective was to prevent harassment to a woman who enters into a marital relationship with a person and later on becomes a victim of the greed for money. Can a person who enters into a marital arrangement be allowed to take shelter behind a smoke screen to contend that since there was no valid marriage the question of dowry does not arise? Such legalistic niceties would destroy the purpose of the provision. Such hairsplitting legalistic approach would encourage harassment to a woman over demand of money. The nomenclature ‘dowry’ does not have any magic charm written over it. It is that a label given to demand of money in relation to marital relationship. The legislative intent is clear from the fact that it is not only the husband but also his relations who are covered by section 498-A. Legislature has taken care of children born from invalid marriages.
Section 16 of the Hindu Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that legislature which was conscious of the social stigma attached to children of void and voidable marriages closed eyes to plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship. If such restricted meaning is given, it would not further the legislative intent. On the contrary, it would be against the concern shown by the legislature for avoiding harassment to a woman over demand of money in relation to marriages. The first exception to section 494 has also some relevance.
According to it the offence of bigamy will not apply to “any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction.” It would be appropriate to construe the expression ‘husband’ to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerce her in any manner or for any of the purposes enumerated in the relevant provisions—sections 304-B/498-A, whatever be the legitimacy of the marriage itself for the limited purpose of section 498-A or section 304-B. Such an interpretation known and recognised as purposive construction has to come into play in a case of this nature. The absence of a definition of ‘husband’ to specifically include such persons who contract marriages ostensibly and cohabits with such woman in the purported exercise of his role and status as ‘husband’ is no ground to exclude them from the purview of section 304-B or section 498-A viewed in the context of the very object and aim of the legislations introducing these provisions. In Kunhiabdulla v. State of Kerala, the Supreme Court observed that the words ‘soon before’ used in section 304-B 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. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of dowry death as well as for raising a presumption under section 113-B of the Evidence Act. Facts and circumstances of each case would help interpreting the expression.
This 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 and live link between the offence of cruelty based on dowry demand and the concerned death. If the alleged incident of cruelty is remote in time and stale enough not to disturb mental equilibrium of the woman concerned; it would be of no consequence. The husband alone was held guilty by the Supreme Court and not the mother-in-law.
In Appasaheb v. State of Maharashtra, the accused husband demanded money from his wife or his relatives for meeting domestic expenses and for purchase of manure. On being charged for an offence under section 304-B, the Supreme Court held that demand for money on account of financial stringency or for meeting urgent domestic expenses are not demand for dowry and so the accused is not guilty under section 304-B. In Raja Lai Singh v. State of Jharkhand death of a wife was caused about seven months after her marriage. She was harrassed for dowry about ten to fifteen days before her death.
The Supreme Court held that the essential ingredients of section 304-B were satisfied even if death by suicide resulted and so section 304-B was attracted. In Deen Dayal v. State of Uttar Pradesh? the Supreme Court held that the words ‘soon before her death’ in section 304-B are to be understood in a relative and flexible sense and cannot be construed as laying down a rigid period of time to be mechanically applied in each case. The appellants, husband and the in-laws of the deceased, allegedly beat her to death for non-fulfilment of dowry demand. They had subjected her to cruelty in connection with the demand. The medical evidence fully corroborated the prosecution case that the deceased was thrown into a well, and not accidentally fell into it as alleged by the defence, when she was already dead or dying. The Court held the accused guilty of murder. In Prem Kanwar v.
State of Rajasthan the Supreme Court held that the words ‘soon before her death’ mean proximate and live-link must exist between effect of cruelty based on dowry demand and the concerned death. In the present case, the accused because of greed persistently taunted and harassed the deceased for not having brought sufficient dowry. The deceased victim allegedly died of burns. The post-mortem report, however, proved that her skull bones were broken.
Thus, she was killed and had not committed suicide. In Govindaraju v. State of Karnataka, the deceased was allegedly cruelly treated and was burnt alive within seven years of marriage by her appellant husband and in-laws for non-fulfilment of dowry demand. The victim’s parents spoke about dowry demand by the appellants at the time of marriage which they could not manage. Independent witnesses supported the prosecution’s case. The Supreme Court stated that there was no basis for the theory that the victim had a love affair and out of frustration she committed suicide. The fact that she had’ not eaten for two days prior to her death itself proves the mental torture she was in.
There was no explanation by the appellants for the victim’s death in her own bed room of burns in wee hours. Presumption under section, 113-B, Evidence Act was correctly drawn. The appellant’s conviction under section 304-B was held to be proper. In Koppisetti Subbarao v. State of Andhra Pradesh, with respect to crime against women under sections 304-B and 498-A of the Indian Penal Code the Supreme Court stated that the word ‘marriage’ in the Dowry Prohibition Act, 1961 includes proposed marriage since the word ‘dowry’ is defined as money, property or valuable security given as a consideration for marriage before, at or after’ marriage. Under section 4 of the Dowry Prohibition Act, 1961 mere demand of dowry, is sufficient to bring home the offence to an accused. The husband need not be legally wedded to the victim and includes any person ostensibly entering into marital relationship. The obvious of these provisions is to prevent harassment to women.
One who enters into marital arrangement cannot be allowed to take shelter behind the smoke screen to contend that since there was no valid marriage, the question of dowry does not arise. The offence under section 304-B is cognizable, non-bailable and non-compoundable, and is triable by Court of Session.