Dowry Death: The law revisited

In a recent decision [Ashok Kumar v. State of Haryana], the Supreme Court had the occasion to examine the law relating to death of a wife related to dowry as provided for under Section 304-B of the Indian Penal Code. Upon a perusal of the earlier cases on the issue and the statutory provision, he Court inter alia observed as under to clarify the law;

10. The appellant was charged with an offence under Section 304-B of the Code. This penal section clearly spells out the basic ingredients as well as the matters which required to be construed strictly and with significance to the cases where death is caused by burns, bodily injury or the death occurring otherwise than under normal circumstances, in any manner, within 7 years of a marriage. It is the first criteria which the prosecution must prove. Secondly, that ‘soon before her death’ she had been subjected to cruelty or harassment by the husband or any of the relatives of the  husband for, or in connection with, any demand for dowry then such a death shall be called ‘dowry death’ and the husband or the relative, as the case may be, will be deemed to have caused such a death. Explanation to this section requires that the expression ‘dowry’ shall have the same meaning as in Section 2 of the Act. The definition of dowry under Section 2 of the Act reads as under : 

“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 parent 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 the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation II.--The expression "valuable security" has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).”

11. From the above definition it is clear that, ‘dowry’ means any property or valuable security given or agreed to be given either directly or indirectly by one party to another, by parents of either party to each other or any other person at, before, or at any time after the marriage and in connection with the marriage of the said parties but does not include dower or mahr under the Muslim Personal Law. All the expressions used under this Section are of a very wide magnitude. The expressions ‘or any time after marriage’ and ‘in connection with the marriage of the said parties’ were introduced by amending Act 63 of 1984 and Act 43 of 1986 with effect from 02.10.1985 and 19.11.1986 respectively. These amendments appear to have been made with the intention to cover all demands at the time, before and even after the marriage so far they were in connection with the marriage of the said parties. This clearly shows the intent of the legislature that these expressions are of wide meaning and scope. The expression ‘in connection with the marriage’ cannot be given a restricted or a narrower meaning. The expression ‘in connection with the marriage’ even in common parlance and on its plain language has to be understood generally. The object being that everything, which is offending at any time i.e. at, before or after the marriage, would be covered under this definition, but the demand of dowry has to be ‘in connection with the marriage’ and not so customary that it would not attract, on the face of it, the provisions of this section.

12. At this stage, it will be appropriate to refer to certain examples showing what has and has not been treated by the Courts as ‘dowry’. This Court, in the case of Ram Singh v. State of Haryana [(2008) 4 SCC 70], held that the payments which are customary payments, for example, given at the time of birth of a child or other ceremonies as are prevalent in the society or families to the marriage, would not be covered under the expression ‘dowry’. Again, in the case of Satbir Singh v. State of Punjab [AIR 2001 SC 2828], this Court held that the word ‘dowry’ should be any property or valuable given or agreed to be given in connection with the marriage. The customary payments in connection with birth of a child or other ceremonies are not covered within the ambit of the word ‘dowry’. This Court, in the case of Madhu Sudan  Malhotra v. K.C. Bhandari [(1988) Supp. 1 SCC 424], held that furnishing of a list of ornaments and other household articles such as refrigerator, furniture and electrical appliances etc., to the parents or guardians of the bride, at the time of settlement of the marriage, prima facie amounts to demand of dowry within the meaning of Section 2 of the Act. The definition of ‘dowry’ is not restricted to agreement or demand for payment of dowry before and at the time of marriage but even include subsequent demands, was the dictum of this Court in the case of State of Andhra Pradesh v. Raj Gopal Asawa [(2004) 4 SCC 470].

13. The Courts have also taken the view that where the husband had demanded a specific sum from his father-in-law and upon not being given, harassed and tortured the wife and after some days she died, such cases would clearly fall within the definition of ‘dowry’ under the Act. Section 4 of the Act is the penal Section and demanding a ‘dowry’, as defined under Section 2 of the Act, is punishable under this section. As already noticed, we need not deliberate on this aspect, as the accused before us has neither been charged nor punished for that offence. We have examined the provisions of Section 2 of the Act in a very limited sphere to deal with the contentions raised in regard to the applicability of the provisions of Section 304-B of the Code.

14. We have already referred to the provisions of Section 304-B of the Code and the most significant expression used in the Section is ‘soon before her death’. In our view, the expressions ‘soon before her death’ cannot be given a restricted or a narrower meaning. They must be understood in their plain language and with reference to their meaning in common parlance. These are the provisions relating to human behaviour and, therefore, cannot be given such a narrower meaning, which would defeat the very purpose of the provisions of the Act. Of course, these are penal provisions and must receive strict construction. But, even the rule of strict construction requires that the provisions have to be read in conjunction with other relevant provisions and scheme of the Act. Further, the interpretation given should be one which would avoid absurd results on the one hand and would further the object and cause of the law so enacted on the other. 

15. We are of the considered view that the concept of reasonable time is the best criteria to be applied for appreciation and examination of such cases. This Court in the case of Tarsem Singh v. State of Punjab [AIR 2009 SC 1454], held that the legislative object in providing such a radius of time by employing the words ‘soon before her death’ is to emphasize the idea that her death should, in all probabilities, has been the aftermath of such cruelty or harassment. In other words, there should be a reasonable, if not direct, nexus between her death and the dowry related cruelty or harassment inflicted on her. Similar view was expressed by this Court in the case of Yashoda v. State of Madhya Pradesh [(2004) 3 SCC 98], where this Court stated that determination of the period would depend on the facts and circumstances of a given case. However, the expression would normally imply that there has to be reasonable time gap between the cruelty inflicted and the death in question. If this is so, the legislature in its wisdom would have specified any period which would attract the provisions of this Section. However, there must be existence of proximate link between the acts of cruelty along with the demand of dowry and the death of the victim. For want of any specific period, the concept of reasonable period would be applicable. Thus, the cruelty, harassment and demand of dowry should not be so ancient whereafter, the couple and the family members have lived happily and that it would result in abuse of the said protection. Such demand or harassment may not strictly and squarely fall within the scope of these provisions unless definite evidence was led to show to the contrary. These matters, of course, will have to be examined on the facts and circumstances of a given case. 

16. The cruelty and harassment by the husband or any relative could be directly relatable to or in connection with, any demand for dowry. The expression ‘demand for dowry’ will have to be construed ejusdem generis to the word immediately preceding this expression. Similarly, ‘in connection with the marriage’ is an expression which has to be given a wider connotation. It is of some significance that these expressions should be given appropriate meaning to avoid undue harassment or advantage to either of the parties. These are penal provisions but ultimately these are the social legislations, intended to control offences relating to the society as a whole. Dowry is something which existed in our country for a considerable time and the legislature in its wisdom considered it appropriate to enact the law relating to dowry prohibition so as to ensure that any party to the marriage is not harassed or treated with cruelty for satisfaction of demands  in consideration and for subsistence of the marriage.

17. The Court cannot ignore one of the cardinal principles of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of Article 20 of the Constitution of India as well as has a presumption of innocence in his favour. In other words, the rule of law requires a person to be innocent till proved guilty. The concept of deeming fiction is hardly applicable to the criminal jurisprudence. In contradistinction to this aspect, the legislature has applied the concept of deeming fiction to the provisions of Section 304-B. Where other ingredients of Section 304-B are satisfied, in that event, the husband or all relatives shall be deemed to have caused her death. In other words, the offence shall be deemed to have been committed by fiction of law. Once the prosecution proves its case with regard to the basic ingredients of Section 304-B, the Court will presume by deemed fiction of law that the husband or the relatives complained of, has caused her death. Such a presumption can be drawn by the Court keeping in view the evidence produced by the prosecution in support of the substantive charge under Section 304-B of the Code. 

18. Of course, deemed fiction would introduce a rebuttable presumption and the husband and his relatives may, by leading their defence and proving that the ingredients of Section 304-B were not satisfied, rebut the same. While referring to raising of presumption under Section 304-B of the Code, this Court, in the case of Kaliyaperumal v. State of Tamil Nadu [AIR 2003 SC 3828], stated the following ingredients which should be satisfied :

“4 ... 1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B, IPC).  2) The woman was subjected to cruelty or harassment by her husband or his relatives. 3) Such cruelty or harassment was for, or in connection with, any demand for dowry. 4) Such cruelty or harassment was soon before her death.” 

19. In light of the above essential ingredients, for constituting an offence under Section 304-B of the Code, the Court has to attach specific significance to the time of alleged cruelty and harassment to which the victim was subjected to and the time of her death, as well as whether the alleged demand of dowry was in connection with the marriage. Once these ingredients are satisfied, it would be called the ‘dowry death’ and then, by deemed fiction of law, the husband or the relatives would be deemed to have committed that offence. The learned counsel appearing for the appellant, while relying upon the case of Tarsem Singh (supra), contended that the concept of ‘soon before the death’ is not attracted in relation to the alleged harassment or cruelty inflicted upon the deceased, in the facts of the present case. The oral and documentary evidence produced by the prosecution does not suggest and satisfy the essential ingredients of the offence. 

20. Similarly, reference was also made to the judgment of this Court in the case of Appasaheb v. State of Maharashtra [(2007) 9 SCC 721], to substantiate the contention that there was no co-relation between giving or taking of the property with the marriage of the parties and, as such, the essential ingredients of Section 2 of the Act were missing. Accordingly, it is argued that there was no demand of dowry by the appellant but it was merely an understanding that for his better business, at best, the amounts could be given voluntarily by the father of the deceased. This fact was further sought to be substantiated while referring to the following abstracts of the judgment in the case of Appasaheb (supra):

“6.…….The learned trial Judge then sought clarification from the witnesses by putting the following question: 

“Question: What do you mean by ‘domestic cause’?

Answer: What I meant was that there was a demand for money for defraying expenses of manure, etc. and that was the cause."

In the very next paragraph she stated as under:

“It is not true to suggest that in my statement before the police I never said that ill-treatment was as a result of demand for money from us and its fulfilment. I cannot assign any reason why police did not write about it in my statement.” xxx xxx xxx xxx

9. Two essential ingredients of Section 304-B IPC, apart from others, are (i) death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) woman is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for “dowry”. The explanation appended to sub-section (1) of Section 304-B IPC says that “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. xxx xxx xxx xxx

11. In view of the aforesaid definition of the word “dowry” any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well-known social custom or practice in India. It is well-settled principle of interpretation of statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India v. Garware Nylons Ltd. and Chemical and Fibres of India Ltd. v. Union of India[(1997) 2 SCC 664].) A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for “dowry” as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained.”

Have a look at the decision.

Post Script Rejoinder

After writing this post, we came across a recent decision of the Supreme Court in Sanjay Kumar Jain v. State of Delhi [later reported as AIR 2011 SC 362] wherein the Court has made critical observations relevant for understanding the concept. Therefore we are publishing the relevant observations herein under;

44. This dowry system is a big slur and curse on our society, democracy and the country. It is incomprehensible how such unfortunate and condemnable instances of dowry deaths are frequently occurring in our society. All efforts must be made to combat and curb the increasing menace of dowry death. 

45. This court in Ashok Kumar v. State of Rajasthan (1991) 1 SCC 166 has laid down as under:

“… … …Bride burning is a shame of our society. Poor never resort to it. Rich do not need it. Obviously because it is basically an economic problem of a class which suffers both from ego and complex. Unfortunately, the high price rise and ever increasing cost of living coupled with enormous growth of consumer goods effacing difference between luxury and essential goods appear to be luring even the new generation of youth, of the best service, to be as much part of the dowry menace as their parents and the resultant evils flowing out of it. How to curb and control this evil? Dowry killing is a crime of its own kind where elimination of daughter-in-law becomes immediate necessity if she or her parents are no more able to satiate the greed and avarice of her husband and their family members, to make the boy available, once again in the marriage market. Eliminate it and much may stand resolved automatically. … … …”

46. The legislature was seriously concerned about this unfortunate reality of our society and to curb and combat increasing menace of dowry deaths with a firm hand the Dowry Prohibition Act, 1961 was enacted with the following objects and reasons:

“The object of this bill is to prohibit the evil practice of giving and taking of dowry. This question has been engaging the attention of the government for some time past, and one of the methods by which this problem, which is essentially a social one, was sought to be tackled was by the conferment of improved property rights on women by the Hindu Succession Act, 1956. It is, however, felt that a law which makes the practice punishable and at the same time ensures that any dowry, if given does ensure for the benefit of the wife will go a long way to educating public opinion and to the eradication of this evil. There has also been a persistent demand for such a law both in and outside parliament. Hence, the present Bill. It, however, takes care to exclude presents in the form of clothes, ornaments, etc., which are customary at marriages, provided the value thereof does not exceed Rs. 2000. Such a provision appears to be necessary to make the law workable.”

47. In The State of Punjab v. Iqbal Singh and Others (1991) 3 SCC 1 this Court observed that crimes are generally committed in the privacy of residential homes and in secrecy and it is difficult to get independent direct evidence in such cases. That is why the legislature has, by introducing Sections 113A and 113B in the Evidence Act, tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established that the unfortunate event has taken place within seven years of the marriage.

48. On proper analysis of Section 304B of the Indian Penal Code and Section 113B of the Evidence Act, it shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution is under an obligation to rule out any possibility of natural or accidental death. Where the ingredients of Section 304B of the Indian Penal Code are satisfied, the section would apply. If death is unnatural, either homicidal or suicidal, it would be death which can be said to have taken place in unnatural circumstances and the provisions of Section 304B would be applicable.

49. The death, otherwise than under normal circumstances, under Section 304B of the Indian Penal Code would mean the death not in usual course either natural or accidental death. Section 304B creates a substantive offence. The necessity for insertion of the two provisions has been amply enumerated by the Law Commission of India in its 21st Report, dated 10.08.1988 on ‘Dowry Deaths and Law Reform’. This has been primarily done because of the pre-existing law in securing evidence to prove dowry related deaths. 

50. In order to bring home the guilty under Section 304B of  Indian Penal Code the following ingredients are necessary: 

1) The victim was subjected to cruelty or harassment by her husband or his relatives. 
2) Such cruelty or harassment was for, or in connection with any demand for dowry. 
3) Such cruelty or harassment was done within seven years of the marriage.