Nilanjana
Dowry Cruelty and Dowry Death
Nilanjana Ganguly 5 Mar 2020

Dowry Cruelty and Dowry Death

“DOWRY CRUELTY AND DOWRY DEATH”

 

Introduction

In India, marriage is steeped in rituals, and deep-rooted cultural values are conveyed by word of mouth, and in some cases, with changing times. There is one tradition, however, that stubbornly opposes changing the dowry system in India, it has origins in medieval times when her family gave a gift in case or kind to a pride in preserving her freedom after marriage. It became the only legal way to get married during the colonial period, with the British making the custom of dowry compulsory.

A dowry is transfer of parental property, gifts or money in the case of a daughter's marriage. Dowry is in contrast to the associated bride price and dower definitions. Although bride price or bride service is a contribution to the bride's parent's dowry by the groom or his family, it is the wealth transferred from the bride's family to the room or his family, ostensibly for the bride. Likewise, dower is the property that was settled on the bride herself by the groom at the time of marriage and remains under her ownership and control. Dowry Prohibition Act, 1961, was enacted to outlaw dowry and related offences

Enactment of Legislation related to Dowry –

The Dowry Prohibition Act, 1961.

The first national dowry-related law was enacted as the Dowry Prohibition Act, 1961. The act sets out a range of preventive and corrective measures but, as could be expected, the objectives were not met. The failure is not primarily due to a few law flaws, but also due to the government's compliance, but due to the fact that the custom of dowry is too well etched among all the cross-sections of society. The lack of government compliance is that no action is taken on reported incidents as well as people are not aware of the regulations. Although the law and the courts continue to provide assistance, the situation has not improved.

In the year 1961, the dowry prohibition act was revised twice to extend the meaning of the term "dowry" and to intensify punishment for the various breaches of the act's provisions. Section 2 of the Act states that any property or valuable protection provided or agreed to be given directly or indirectly in connection with marriage in the future amounts to dowry from one hand to another. The phrase used in the original Act was translated by the court as "as consideration for the marriage of such parties" to give a specific sense to the word "dowry. ' In Inder Sain v. State, it was held that "consideration" was limited to intent or intention, compensation or reward for marriage and would therefore not include any property sought or rendered after marriage. The expression “any time after the marriage” has been brought to replace “after marriage” to eliminate a restricted interpretation of the statute. Gift concepts are only allowed in Indian marriages which are customary in nature, which does not create a financial burden on a family. A list of such presents is to be prepared along with the value and description and must be signed by the bride and bridegroom.

In the case of Sanjay Kumar Jain v. Delhi State it was said that "The practice of dowry is a great slur and curse on our culture, democracy and land. It is unbelievable how often in our culture these tragic and condemnable instances of death by dowry occur. Every effort has to be made to tackle and curb the growing threat of dowry death. The legislature was seriously concerned with this unfortunate reality of our society and the Dowry Prohibition Act, 1961, was enacted to curb the increasing threat of dowry deaths with a firm hand.

Some strict penal laws were passed or amended from time to time to stop taking dowry and demanding it. Under section 3 of the act giving and receiving dowry is punishable with a minimum term of 5 years and a fine of Rs 15,000 or dowry amount, whichever is greater. Similarly, dowry demands are also punishable under section 4 for the period of six months to five years, and fine up to Rs 15,000. After a few changes the act aims to curb this social threat. Section 7 includes persons and organizations that may initiate the proceedings :

·         Police

·         Aggrieved person

·         Family, Relatives and Friends

·         Any recognised welfare institution or organization

Section 8 attempts to make act harder by incorporating crimes that are not non-bailable and cognizable. Section 8(a) further notes that the burden of proof lies with the individual denying the offence.

A traditional practice in marriages is that bride's articles and ornaments are immediately taken into possession by the husband or his family may be transferred to the wife or her heirs by virtue of section 6, with a period of three months breaching such an act amounting to imprisonment from six months to two years and a fine of five to ten thousand rupees. In the case of Pratibha Rani v. Suraj Kumar, the Supreme Court held that taking possession of bride articles would lead to a criminal breach of confidence punishable under section 405 of the penal code.

The faulty definition of dowry and lack of compliance instrumentality is a joint parliamentary committee that investigated the workings of the act in 1982 and provided two reasons for abject failure of act. While, the definition of dowry was updated and the compliance provision was actively worked out after the 1982 committee report.

Indian Penal Code, 1860.

Not only dowry problems are the appropriate target of criminal law, but dowry-related violence often falls under the purview of criminal law. Failure to dowry legislation and rise in dowry death rates contributed to the 1983 and 1986 Statutory Amendment by introducing section 304(b) and section 498(a). In short, we may assume there are four cases in which married woman is exposed to violence and abuse leading to an offense being committed.

 First, Dowry Death-Section 304(b) IPC:- The crime referred to in section 304(b) describes "Dowry Death" as the death of a woman caused by burns or physical injury, or under unnatural circumstances within seven years of her marriage, where it is shown that she has been raped or abused by a husband or his family in relation to dowry who is punishable by a term of seven years imprisonment for life. The seven-year period would be considered to be a cut-off date due to seven steps taken by the bride and bride groom of the holy nuptial fire for marriage completion where one step is considered to be one year. In Punjab v. Iqbal Singh case, the Supreme Court clarified the seven-year period as it is called tumultuous one after which the legislature believed the couple would have settled in life.

The term dowry was not specified in the Indian Penal Code, whereas the clarification in section 304(b) stated that dowry is to have the same significance as that defined in section 2(1) of the Dowry Prohibition Act, 1961.

Essential of Dowry Death under section 304(b) of IPC :

·         Death was caused by burns or damage to the body, or other than in normal circumstances.

·         Death was to have taken place within seven years of her marriage.

·         Woman must have been exposed to husband or his family being brutalized or abused.

·         Cruelty or abuse should be linked to dowry demand, and soon before death.

In Satbir Singh v. State of Haryana, the Apex Court held that the prosecution is in a position to define the ingredients of section304(b), IPC as the burden of proof of innocence shifts on defence. The rules laid down in section304(b), IPC are stricter than those laid down in section498(a) of the Penal Code. The crime is clear, unassailable, and triable by a Sessions judge.

Second, Cruelty on woman by Husband or Relatives-Section 498(a), IPC:- When the woman is exposed to abuse or violence by her husband or family member. His husband's or relatives ' cruelty has been punishable by imprisonment for up to three years and 498(a) has been fined. The term cruelty is both mental and physical torture. It consists of any wilful conduct likely to drive the woman to commit suicide or to cause danger to her life, limb or health, mental or physical or harassment to coerce her or any other person by making an unlawful demand for dowries such as property or any goods.

In the case of Vijeta Gajra v. State of NCT Delhi, it was held that, within the context of section 498(a), IPC, the foster sister is not "relative" to attach liability for causing cruelty against the applicant.

In the case of Arnesh Kumar v. State of Bihar the petitioner approached the Supreme Court by way of a special request for leave to issue an anticipatory bail in which he had previously been unsuccessful. Section 498(a) of the IPC was enacted with an avowed purpose to counter the danger of husband and his close relatives harassing a woman. Supreme Court said it is a fact that section 498(a) is a cognizable and non-bailable offense that has earned it a dubious position of prestige in the law used as a weapon rather than shields by disgruntled women, the simple way to harass is to arrest the husband and his relatives under this provision.

In a quiet number of cases, old and bedridden fathers and mothers of husbands, their sisters living abroad who have never met each other will also be arrested so the Apex Court gave the following instructions before arrest under section 498(a) of the IPC:

·         Government of the State to instruct the Police not to arrest without a warrant unless they feel the need to comply with all the parameters set out in section 41 of the Cr. P.C.

·         All police officers shall provide a check list containing the sub-clauses referred to in paragraph 41(1)(b)(ii) and shall file and provide the reason and material for the arrest.

·         The magistrate, while authorizing the detention of the accused, shall examine the report provided by the police and, after recording his satisfaction, may authorize the detention.

·         The decision not to be arrested was forwarded to the magistrate within two weeks from the date of the institution of the case with a copy that the arrests were not made on the basis of the offense referred to.

·         If the person fails, at any time, to comply with the terms of the notice or refuses to identify himself, the police may arrest him for the offense referred to in the notice.

Third, Intentional Death of women-Section 302 IPC:- If the person intentionally causes the death of a woman, it is punishable under section 302 of the IPC.

Fourth, Abetment of Suicide of Woman-Section 306 IPC:- If the husband and his relatives create a situation that led to the suicide of a woman within seven years of marriage, they fall within the scope of section 306.

Code of Criminal Procedure, 1973

Sections 174 and 176 deal with investigations and investigations concerning the causes of unnatural police and magistrate deaths. The 1983 amendment makes it mandatory for the police to send the body for a post-mortem examination if the death of a woman occurred within seven years of marriage in a case of suicide or any question of doubt.

 

Indian Evidence Act, 1872

A new rule, section 113(b), on the burden of proof in the event of a dowry death has been established, according to which the court must conclude that a dowry death has been caused by a person who has been shown to have subjected a woman to cruelty or abuse shortly before her death.

In view of the essence of the dowry offenses that are usually committed in the privacy and secrecy of residential homes, it is not easy to obtain the clear and direct evidence required for the prosecution. Accordingly, amendment Act 43 of 1986 introduced section 113(b) in the evidence act of 1872 in order to strengthen the hands of the prosecutor by enabling a certain assumption to be raised if certain basic facts are identified and the unfortunate incident of death occurred within seven years of marriage.

Section 113(b) of the Indian Evidence Act provides that if it is determined that, shortly before the death of a woman, such a woman has been subjected to cruelty or abuse for, or in connection with, any request for the death of a woman under section 304(b) of the IPC.

In the case of State W.B. v. Orilal Jaiswal, it is argued that, given the assumption, the standards of proof and protection will remain the same.

Police and Law Enforcement

Throughout culture, the role of the police is to serve as a protection for the general masses, but in fact, by functioning as a police force, they create fear in the minds of the general public. Police are also accused of actions, behaviors and beliefs that reduce the likelihood of the legislation being applied effectively in the present context. The typical allegations made by the public to the police are: arriving too late on the scene of the crime, distorting the facts in the First Information Report, always choosing to equate dowry deaths to suicide, and carrying out the investigation in a less appropriate manner and in a more leisurely manner. The police treat violence against women as a family affair, and they are always unable to report the case themselves. Several police lacunas can be seen in several Supreme Court cases, such as Bhagwant Singh v. Commr. Police Delhi The Apex Court claims that the rate of accidental deaths is much higher than that suggested by the police. Police diaries are not adequately kept and produced before a magistrate. The investigating officer has sometimes changed, which has a serious effect on the investigation. Corruption is due to the shortcomings of the police.

The police have their own justification that the case is unsatisfactory. Next, insufficient evidence on the basis of independent witnesses. A dying declaration, which is a significant piece of evidence, often contradicts the declaration of the related individuals. Forensic evidence is also generally helpful, and it would be better if experts were brought to the victim at the sight of the occurrence. Inordinately pause in medical reports.

The Judiciary

Normally, on a number of occasions, the Supreme Court expressed sorrow and disturbing view of the deaths of young brides. In Virbhan Singh v. State of U.P, the apex Court claimed that, in view of the that deaths of the brides, these lethal crimes must be enforced whenever they have been discovered and then proven to be merciless and dissuasive. The Supreme Court is concerned about the acquittement of some of the supposed guilty parties, but the State cannot bring an appeal to the apex Court. In Samunder Singh v. State of Rajasthan the court held that anticipatory bail could not be given in cases of bride burning and dowry deaths. There was some frustration at the level of the trial itself with the conclusion by the courts that a person with a 100 percent burn was not eligible for a dying declaration. If there is any other matter stated on behalf of the victim of abuse, the matter does not emerge which creates a lacuna in the Indian legal system.

Conclusion

Dowry Death is a social curse that is a burning issue in Indian society. Organized strategy by women's welfare groups, the military, public servants and the judiciary through the use of dissuasive penalties for dowry deaths. It can be noted that the Government of India, along with the Indian judiciary, has introduced cooperative and compassionate legislation to safeguard the life rights and dignity of women and to provide more justice for victims of abuse or violence by their husbands and relatives. The reform in the education system has led to an increase in the educational status of women, and the door-to-door job service would reduce dowry deaths. However, some corrective measures need to be taken to eliminate or at least reduce this social danger of dowry death, but most importantly, it requires the public will and determination to avoid the materialistic greed of dowry demands. In cases involving a decrease in the incidence of dowry deaths, abuse or brutality, more female police workers should be held in such a way as to be eligible in situations involving unexplained deaths of women. In the interests of proper investigation and justice, the inquiry can not be carried out below the level of Assistant Commissioner. Punishment for suicide alleviation must be increased to a maximum of seven years. It will certainly be helpful to have a logical and practical approach to the above-mentioned problem.

 

 

 

 

 

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