Role of legislation and judiciary in curbing dowry in India

Role of legislation and judiciary in curbing dowry in India

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Introduction to Dowry

“One bride dies every hour in India” citation/ source?)

Dowry is an obligation on the part of the bride’s father to fulfil all the demands of the husband’s family to see his daughter married, without any surety, that she in-laws will keep her happy throughout her lifetime. In fact, in many cases, the demand of the husband’s family keeps on increasing also after the marriage.

Usually, the word “dowry” refers to a demand for money or monetary benefits to ensure a marriage. It can often result in huge debts and even sometimes also results in physical and mental tortures to the bride and her family due to the pressure of payment of the amount. But still, more than often, this practice is seen as a regular social practice. And not only a mere practice, but more than that, people take the act of taking and giving dowry as a symbol of social status, to show-case the financial status of the bride’s family in front of everyone. Illiteracy, lack of awareness and lack of willingness to do or not to do the work lawfully are the reasons behind this crime. 

Many people think dowry is a one-time problem. Once, the marriage commits, everything sorts down. But no, this can often be an illusion. Actual tortures start after the marriage and end with the bride burning or suicides or becoming a never-ending story.

Role of the legislature in curbing dowry

The legislature has enacted laws against dowry from its every aspect. The Dowry Prohibition Act, 1961 and the Protection of Women from Domestic Violence Act, 2005 are protecting the rights of women. The Dowry Prohibition Act, 1961 exclusively deals with the cases related to the dowry system in India. But the legislature has also introduced many offences and did the amendments in different acts, as per the requirement with the time.

The Dowry Prohibition Act of 1961

Section 2 of the act gives the definition of the word “dowry”.   The word “dowry” refers to valuable security given or decided to be given by any one party to the other party of marriage for the purpose of commencement of the marriage.

Section 3 of the act made the act of giving and taking of dowry an offence and made it punishable for the term of minimum 5 years and also prescribed a minimum fine of INR 15,000 or the dowry amount, subject to the higher amount.

Under section 4, the demand for dowry is an offence and is also made punishable with an imprisonment of 6 months and a fine of INR 10,000.

Section 5 of this act makes any Agreement for the purpose of giving or taking dowry, void.

And the Burden of proof in case of dowry, under section 3 and 4 of this act lies on the persecuted person as stated under section 8A of the act. 

The Protection of Women from Domestic Violence Act, 2005

This act deals with every type of domestic violence, whether physical or mental, which takes place against women, because of male dominance.

Section 304-B of IPC

It says that if the death of a woman is caused due to any form of bodily injury within a period of seven years of marriage and it is proved she was subjected to cruelty or harassment by her husband or her in-laws, or husband’s relative because of any reason related to dowry, such death will be termed “dowry death”, and it shall be considered that such person has caused the dowry death and that person shall be punished with a minimum imprisonment of seven years extendable to life imprisonment. And such offence shall be cognizable, non-bailable and triable by the Court of Session under schedule 1 of the Code of Criminal Procedure.

Section 113B in the Indian Evidence Act, 1872

This act deals with the presumption to be made in the case of dowry death. If the woman is subjected to cruelty by any person, just before her death, the Court presumes that such person had caused the dowry death. And the term “dowry death” has the same meaning as explained under section 304B, of the Indian Penal Code.

Section 498A in IPC

Under this section, any woman subject to cruelty by her husband or by her in-laws is a serious offence and such person shall be pun­ished with imprisonment for a term extendable to three years and with fine. The term “cruelty”, under this section, means any act was done with the knowledge to cause gravy injury or can drive the woman to commit suicide or become a matter of life risk, mentally or physically and such harassment is related to the demand of any property or valuable security or related to the failure by the family to meet such demand. The meaning of the term “valuable security” in the context of dowry, is the same as explained under section 30 of IPC.

The important judicial decision regarding dowry laws

There are many aspects of every dowry case. The judges still need to interpret the law and the facts of the cases to give the proper judgement. Some important aspects are as follows:- 

Participation in the offence.

Direct participation in the commission of an offence is not mandatory to convict the accused for dowry death. Any such act, which is of such a nature that can force a woman to commit suicide or hurt her own self in any way, makes the person doing such act liable. In any case, if any person is creating such environment, which makes it nearly impossible for the victim to live- in and thus, commits suicide, then the person can be convicted under section 304-B of IPC.

In the case of The State Of Andhra Pradesh vs Raj Gopal Asawa and Anr[1], the victim had committed suicide within seven years of her marriage as she was subjected to cruelty in relation to the demand of dowry. The Court held that the direct participation in the commission of an offence is not required and hence convicted the accused under section 304-B of The Indian Penal Code.

Section 304-B read with Section 113B in the Indian Evidence Act.

Section 113B of the Indian Evidence Act creates a presumption, wherever sec 304-B is considered proved in any case.

In the case of Ram Badan Sharma vs. State of Bihar[2], The Supreme Court of India stated that wherever, in any case, the section 304-B of the Indian Penal Code is established and proven with evidence, the presumption of section 113B stands up and applies automatically and so, the burden of proof is on the defendant to provide evidence to prove himself, not guilty.

Presence of Dying declaration.

“A person on the death bed, taking his last breath is presumed to have no such reason left with him to speak lies.”

The dying declaration is given great importance in every case. The last words from the mouth of any person have the ability to oppose several witnesses and judgements. And especially in the unavailability of evidence, the dying declaration had been seen to be considered by the Apex Court of India to do proper justice. Insufficient evidence cannot compromise justice to the bride, who died after giving her part of the statement.

In the case of Om Parkash vs The State of Punjab [3], the victim was the wife of the appellant and died out of injuries in the hospital. She made an FIR after reaching the hospital. In this case, the Supreme Court approved the FIR filed by her as her dying declaration, as those were the only words, said by her before her death. This case was dismissed by the Court and the appellant was held liable.

Again, in Muthu Kutty and Anr vs State by Inspector of Police[4], the victim was set on fire by her husband’s parents. Here, the Supreme Court added in its judgement that an accused can be convicted only on the basis of the dying declaration of the victim in the absence of other evidence or witness.

There were many discussions based on the approval of the dying declaration in many different cases of “dowry death”. But lastly, the Apex Court said that minor inconsistencies in the dying declaration of a victim cannot compromise the justice served to her as long as the basic facts of the case are consistent, in the statements delivered by the victim, in the case of State of UP vs. Santosh Kumar[5], and the same was again confirmed in Keesari Madhav Reddy vs. State of Andhra Pradesh[6].

Judicial suggestions to impose the Death penalty.

There are a bunch of cases, where the judiciary believed to impose the charge of murder under sec 302 of the Indian Penal Code to deliver the justice. Judiciary believes that the punishment of death penalty under sec 302 of IPC should be added in sec 304-B of IPC, so that, the death punishment can be imposed in the rarest of the rare case of “dowry death”.

In Satya Narayan Tiwari @Jolly and Anr. Vs. The state of U.P.[7], the Supreme Court, after observing the intensity of the case said that the said case is categorically a case under section 302 of IPC and death sentence should be imposed in the rarest case like this.

In the case of Rajbir @ Raju & Anr vs The State Of Haryana[8], the supreme court, in its judgement directed all the trial Courts in India to ordinarily add Section 302 of the Indian Penal Code to the charge of section 304-B of the same act, so that death penalty can be executed in such monstrous and brutal cases against women.

Conclusion

“Every coin has two faces.” Likewise, these laws are being used as well as misused by the people. But it is important to have these laws so that justice cannot be compromised or denied to the real victims, to those, who have really suffered.

The Apex Court had tried and suggested in many judgements for the inclusion of death sentence in dowry death cases, where the case is the rarest of the rare and I hope that the legislature would make some laws to filter out the cases so that the justice can be done properly and also punishment can be imposed to those, whoever would try to misuse the laws, made for the purpose of their safeguard.

Endnotes

  1. The State Of Andhra Pradesh vs Raj Gopal Asawa and Anr, (2004) 4 SCC 470.
  2. Ram Badan Sharma vs. the State of Bihar, (2006) 10 SCC 115.
  3.  Om Parkash vs The State of Punjab, (1992) 4 SCC 212.
  4.  Muthu Kutty and Anr vs State by Inspector of Police, Tamil Nadu, (2005) 9 SCC 113.
  5. The state of UP vs. Santosh Kumar, (2009) 9 SCC 626.
  6.  Kesari Madhav Reddy vs. State of Andhra Pradesh. (2011) 2 SCC 790.
  7. Satya Narayan Tiwari @Jolly and Anr. Vs. State of U.P., 2010 (11) SCALE 481.
  8.  Rajbir @ Raju & Anr vs State Of Haryana, (2010) 12 SCALE 319.

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Monika Mukherjee

Author

Monika hails from IFCAI University, Dehradun and she spends most of her time in painting and sketching. Her Interest area lies in laws for women and their protection. For any clarifications, feedback, and advice, you can reach her at monikamukherjee2307@gmail.com

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