DOWRY DEATH: Presumption in Dowry Death to be backed by Cruelty BHAVNI SAHAI BASICS OF LAW Sat, Jun 29, 2019, at ,01:01 PM Introduction 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, but with the time dowry has become an evil in India. This system puts a great financial burden on the bride’s family. In some cases, the dowry system leads to crime against women, ranging from emotional abuse and injury to even deaths. Section 2 of the Dowry Prohibition Act 1961, the legislature introduced the following definition of dowry: In this act, `dowry’ means any property or valuable security given or agreed to be given either directly or indirectly- (a) by one party to a marriage to the other party to the marriage; or (b) 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 any time after the marriage in connection with the marriage of said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies In some circumstances, there is an element of exerting coercion on the bride's family and this is what has come to be recognized as the menace of dowry. Today, dowry is considered as a major reason towards violence against women in India. The predominant types of dowry crimes are cruelty (which includes torture and harassment), domestic violence (including physical, emotional and sexual assault), abetment to suicide and dowry death (including, issues of bride burning and murder). Cruelty under Section 498A of IPC In view of increased instances of cruelty against women by husband and his relatives, Section 498A was incorporated in the Indian Penal Code in the year 1983. In addition, a consequential amendment was also made in the Indian Evidence Act, whereby the burden of proof of innocence was shifted on the accused under Section 498A of IPC. Section 498A prescribes the punishment of three years imprisonment and also fine on husband and relatives of the husband who inflict cruelty against women. Section 498A deals with husband or relative of husband of the subjecting her to cruelty Whoever being the husband or the relative of the husband or in law of a woman, subjects such women to cruelty or harassment or torture shall be tarred-and-feathered with imprisonment for a term which can extend up to 3 years and pay fine. The cruelty is either mental or physical torture that drives the ladies to kill or to cause serious injury, or danger to life or health. Cr.P.C Section 176(1) provides inquiry by govt official and Cr.P.C section 174(3) provides as follows When (1) The case involves suicide by a woman inside seven years of her wedding (ii) The case relates to the death of {a women } inside seven years of her wedding in associate degree circumstances raising an inexpensive suspicion that another person committed an offense in relevancy such woman, or (iii) The case relates to the death of a woman inside seven years of her wedding and any relative of the women has created asking during this behalf, the officer can forward the body for autopsy to the closest medical officer for opinion. In Shobha Rani v. Madhukar Reddi– The Supreme Court remarked that under Section 498A of IPC a new dimension has been given to the concept of cruelty. Explanation to Section 498 A of IPC provides that any willful conduct which is of such a nature as is likely to drive a woman to commit suicide or likely to cause grave injury or danger to life, limb or health (whether mental or physical of the woman), and harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security would constitute cruelty. In this case, it was held that evidence as to harassment to the wife to meet any unlawful demand for money is necessary to constitute cruelty in criminal law. This is the requirement of the offense of cruelty defined under Section 498 A of IPC. It was further held that the cruelty need not be only intentional, willful or deliberate. It is not necessary to prove the intention in the matrimonial offense. From the context and the set up in which the words `cruelty’ has been used in Section 13(1)(i-a) of Hindu Marriage Act, 1955 intention is not a necessary element in cruelty. In Noorjahan v. State The Supreme Court, in this case, attempted to explain the expression “cruelty” in the following words: “Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical, of the woman is required to be established in order to bring home the application of Section 498 A of IPC.” The Court also elaborates on the legislative intent behind the insertion of Section 498 A of IPC i.e. As clearly stated therein the increase in the number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, the cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, Code of Criminal Procedure, 1973 and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-laws and, relatives. The avowed object is to combat the menace of dowry death and cruelty. Dowry leading to death Dowry system and as an outcome of it is the inhuman practice of Dowry death. Each year thousands of young brides are burnt or killed by their in-laws because they fail to fulfill their ever-increasing demand of money or property. In 1986, a new offense known as “Dowry Death” was inserted in the Indian Penal Code as section 304-B by the Dowry Prohibition (Amendment) Act, 1986 (43 of 1986) with effect from November 19, 1986. The provisions of section 304-B, IPC are more stringent than that provided under section 498-A of the Penal Code. The offense is cognizable, non-bailable and triable by a Court of Session. Initially, at the time of the wedding, cash is given by bride’s family as per the demand of the in-laws, however presently hunger of dowry is increasing extraordinarily high that is followed by the torture of bride and finally ends up in her death. 7634 brides were burned to death in India in 2015 due to dowry disputes. 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). Laws in relation to dowry death In view of the increasing range of dowry deaths, tips are ordered down by the govt of the Republic of India for the examination of such cases, and also the law in respect therefrom has been appropriately amended. The Indian panel code (I.P.C.), Criminal Procedure Code (Cr.P.C.) and Indian proof Act (I.E.A.) square measure amended as per the panel code (Second Amendment) Act, 1983 and was approved by President of Republic of India to deal effectively with cases of dowry deaths and conjointly the cases of cruelty to married women’s by their in-laws. Section 304-B in The Indian Penal Code – 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. 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. Essential components of 304-B The Supreme Court in Ram Badan Sharma v. State of Bihar, has explained the essential ingredients of dowry death as: Deceased died due to burn or bodily injury or otherwise than under normal circumstances. She died within seven years of marriage. Soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband. Finally, torture or cruelty related with any demand for dowry. If all of the above conditions are present, then there is a presumption that the accused has committed the crime of dowry death. Death of woman should be caused by burns or bodily injury or otherwise than under normal circumstances. In the case of Kans Raj vs. State of Punjab, the Supreme Court held that the term normal circumstances apparently mean not a natural death. Who can file a complaint about cruelty resulting in dowry death? The Supreme Court has held that the Section 498A of the Indian Penal Code does not contemplate that complaint about the offence under Section 498A should be filed only by women, who are subjected to cruelty by husband or his relative. In Rashmi Chopra vs. State of Uttar Pradesh & anr., the bench comprising Justice Ashok Bhushan and Justice KM Joseph was considering the submission that since the complaint is not made by the woman, but filed by her father, it is not maintainable. However, the Supreme Court dismissed the aforesaid contention and noted that even though the victim under Section 498A of IPC was not in India at the time when statements were recorded in a complaint of the complainant, it was still maintainable. Thus, the Apex Court allowed the complaint even if filed by the victim’s father. IEA Section 113 – A deals with presumption on encouragement of suicide by a woman When the question is whether or not the commission of suicide by women had been abetted by her husband or any relative her husband and it's shown that she had committed suicide inside an amount of seven years from the date of her manager and her husband or such relative of her husband had subjected to cruelty, the court could presume, having relevance all the opposite circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. IEA section 113 – B deals with presumption on dowry death When the question is whether or not someone has committed the dowry death of a women and it's shown that shortly before her death, such women had been subjected by such person to cruelty or harassment for, or in reference to, any demand for dowry, the court shall presume that such person had caused the dowry death LANDMARK JUDGEMENTS- State vs. Sanjay Singh- FACTS: On 26th April 1995, Suman (the complainant) was married to the accused. Her in-laws were not satisfied with the dowry so she was ill-treated. The ill-treatment increased after she delivered a baby girl. She went to stay with her parents from two months (in the month of May and June). Later, the co-accused (father of respondent) brought her back to her matrimonial home. At night, she had coitus with her husband. In the early hours of 27th June 1997, Suman and her daughter Sweta were found dead. She was pregnant at that time. Suman’s father lodged a report with Sub-Divisional Magistrate, Seelampur in which he stated that his daughter was subject to cruelty and torture by the accused and her in-laws wanted her to abort the child but Suman did not agree to them. The FIR was registered under Section 302/304B/498A of IPC. Also, according to her father, Satbir (co-accused) and the respondent had made an extra-judicial confession over the telephone that they had killed his daughter but they have denied the same in front of the officials. Extrajudicial Confession is a confession made out of court, and not as a part of a judicial examination or investigation. Such a confession must be corroborated by some other proof of the corpus delicti (the facts and circumstances constituting a crime), or else it is insufficient to warrant a conviction. Judgment The trial Court misdirected itself by presuming that only because there was coitus between the Respondent and the deceased, there was no question of the Respondent subjecting her to mental cruelty. In light of Section 113 B IEA, there was no occasion to draw a negative presumption on this crucial aspect. The Court sentenced the Respondent for the offense under Section 304B IPC to imprisonment for a period of 7 years, inclusive of the remission already earned, with the further direction that the said sentence would be concurrent with the sentence for the offense under Section 498-A IPC. In effect, since the Respondent has already served out the sentence awarded to him for the offenses under Section 304B and Section 498-A IPC, inclusive of the remission, he need not surrender to serve out any remaining period of sentence. The bail bonds and surety bonds, if any, of the Respondent, stand discharged. REFERRED CASES: Shamnsaheb M.Multtani vs State Of Karnataka- Learned Judges after reaching a cul de sac, swerved over to a different offense i.e. dowry death and convicted one of them (the husband) under section 304B of the Indian Penal Code and awarded the maximum sentence of life imprisonment prescribed thereunder on him besides Section 498A IPC. However, the High court found helpless to bring the other two accused to the dragnet of any offense.