INTRODUCTION

The problem of Dowry has always been persistent in India and is also rising at a rapid rate and so
are the offences related to dowry demand. Dowry demands can go on for years together. The
birth of children and a number of customary and religious ceremonies often tend to become the
occasions for dowry demands. The inability of the brides family to comply with these demands
often leads to the daughter-in-law being treated as a pariah and subject to abuse. In the worst
cases, wives are simply killed to make way for a new financial transactionthat is, another
marriage. The Section 304-B, IPC has been inserted by the Dowry Prohibition Amendment Act,
1986 with a view of combating increased menace of dowry deaths. The Supreme Court in the
case State of Himachal Pradesh v. Nikku Ram. 1 interestingly started off the judgment with the
words Dowry, dowry and dowry. The Supreme Court went on to explain why it has
mentioned the words dowry thrice. This is because demand for dowry is made on three
occasions:

(i) Before marriage;

(ii) At the time of marriage; and

(iii) After the marriage.

The term dowry is defined in the Dowry Prohibition 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 the said parties, but
does not include dower or mahr in the case of persons to whom the Muslim Personal Law
(Shariat) applies.
1 (1995)Cri LJ 4184 (SC).
Greed being limitless, the demands become insatiable in many cases, followed by torture of the
girl leading to either suicide in some cases or murder in some. The Supreme Court has explained
in this case that though the definition of dowry is stated as property or valuable security given
or agreed to be given demands made after marriage could also be a part of the consideration
because an implied agreement has to be read to give property or valuable securities, even if
asked after the marriage as a part of consideration for the marriage when the Dowry Prohibition
Act 1961 was enacted, the legislature was well aware of the fact that demands for dowry are
made and indeed very often even after the marriage has been solemnized and this demand is
founded on the factum of marriage alone. Such demands, therefore, would also be in
consideration for marriage.

Section 304b Indian penal code Dowry Death

(1) 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.

Explanation.-For the purposes of this sub-section, "dowry" shall have the same meaning as in
section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) 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.

Classification of Offence

Cognizable,

Non-bailable,

Non-compoundable

Trial- Court of Session

Punishment

Imprisonment of not less than 7 years but which may extend to imprisonment for life,

Applicability

Section 304B of the Indian Penal Code would be applicable if cruelty or harassment was
inflicted by the husband on any of his relative for, or in connection with demand for dowry,
immediately preceding the death by bodily injury or by burning (abnormal circumstances)
within seven years of the marriage. In such circumstances the husband or the relative, as the
case may be, will be deemed to have caused her death and will be liable to punishment

Case - Vadde Rama Rao v. State of Andhra Pradesh.2

Burden of Proof

The prosecution under section 304B of Indian Penal Code cannot escape from the burden of
proof that the harassment to cruelty was related to the demand for dowry and such was caused
soon before her death.

Dowry

The word dowry has to be understood as it is defined in section 2 of the Dowry Prohibition
Act, 1961. Thus, there are three occasions related to dowry, i.e., before marriage, at the time of
marriage and at an unending period. The customary payment in connection with the birth of child
or other ceremonies, are not involved within ambit of dowry;

Case - Satvir Singh v. State of Punjab,3

2 , 1990 Cr LJ 1666

3 AIR 2001 SC 2828: (2001) 8 SCC 633

Essential ingredients

To attract the provisions of section 304B, one of the main ingredients of the offence which is
required to be established is that soon before her death she was subjected to cruelty and
harassment in connection with the demand of dowry.

Case - Prema S. Rao v. Yadla Srinivasa Rao.4

Expression soon before her death: meaning

The expression soon before her death used in the substantive section 304B, I.P.C. and section
113B of the Evidence Act is present with the idea of proximity text. No definite period has been
indicated and the expression soon before her death is not defined. The determination of the
period which can come within the term soon before is left to be determined by the courts,
depending upon facts and circumstances of each case. Suffice, however, to indicate that the
expression soon before 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 effects of cruelty based on dowry demand and the concerned
death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb
mental equilibrium of the woman concerned, it would be of no consequence.

Case - Kaliyaperumal v. State of Tamil Nadu.5

113B. Presumption as to Dowry Death

When the question is whether a person has committed the dowry death of a women and it is
shown that soon before her death such woman had been subjected by such person to cruelty or
4 AIR 2003 SC 11

5 AIR 2003 SC 3828

harassment for, or in connection with, any demand for dowry; the court shall presume that such
person had caused the dowry death.

In the case of State of Punjab v. Iqbal Singh.6 The Supreme Court clarified the position as to why
the necessity to introduce Section 113-B in the Indian Evidence Act was felt

The legislative intent is clear to curb the menace of dowry deaths, etc. with a firm hand. It must
be remembered that since crimes are generally committed in privacy of residential houses and in
secrecy, independent and direct evidence is not easy to get. That is why the legislature has by
introducing Section 113-B in the Evidence Act tried to strengthen the prosecution hands by
permitting a presumption to be raised if certain foundation facts are established and the
unfortunate event has taken place within seven years of marriage. This period of seven years is
considered to be the turbulent one after which the legislature assumes that the couple would have
settled down in life. When the question at issue is whether a person is guilty of dowry death of a
woman and the evidence discloses that immediately before her death she was subjected by such
person to cruelty and/or harassment for, or in connection with, any demand for dowry. Section
113-B, Evidence Act provides that the court shall presume that such person had caused the
dowry death.

A conjoint reading of Section 113-B of the Act and 304-B I.P.C. shows that there must be
material to show that soon before her death the victim was subjected to cruelty or harassment.
Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within
the purview of the death occurring otherwise than in normal circumstances. Soon before is a
relative term and it would depend upon circumstances of each case and no straitjacket formula
can be laid down as to what would constitute a period soon before the occurrence. There must be
existence of a proximate and live link between the effect of cruelty based on dowry demand and
the concerned death.

Case - Ratan Lal v. State of Madhya Pradesh.7

6 AIR 1991 SC 1532

7 1994 Cri LJ 1684

Cruelty in Marriage

Cruelty is enumerated under Section 498-A in the Indian Penal Code.8

As mentioned in the 243rd Law Commission Report, the criticism of over-implication observed
by the Courts is justified by the statistical data of the cases under Section 498-A.This misuse of
the Section 498-A is evident from the high number of cases pending in various courts across the
country. Based on data provided by High Courts during 2011, 3.4 lakh cases under Section 498-
A of the IPC were pending trial in various courts by the end of 2010. There have been as many
as 9.38 lakh accused implicated in these cases.

There has been an evident unnecessary accusation of more than one person within cases. 9 This
may be due to the fact that the definition allows for wide interpretation and can be seen as an
easy opportunity. A burden of requirement of proof needs to be imposed on the party that allows
for only certain cases to be accepted. Since the number of cases being accepted into courts is the
reason for ineffectiveness, it may be suggested to permit allowance for bailable, cognizable cases
that are compoundable with permission of courts. There should also be punishment for parties in
case of proven misuse of this section.

In the 237th Law Commission Report, proposed to add sub-section (2A) to Section 320 CrPC.
The proposed provision will ensure that the offer to compound the offence is voluntary and free
from pressures and the wife has not been subjected to ill-treatment after the offer of

8 Section 498-A, Indian Penal Code

9 243rd Law Commission Report: Section 498A IPC, (2012)

compounding. Incidentally, it underscores the need for the Court playing an active role while
dealing with the application for compounding the offence under Section 498-A.10

Intersection of Cruelty and Dowry Death

It was held by the Honorable Apex Court in Shanti Vs State of Haryana,11 that Section 304B and
498A are not mutually exclusive. Two distinct offences are observed and dealt with. A person
that is charged and acquitted under Section 304B can be convicted under Section 498A without
a charge being framed if such a case is made. However, from the perspective of practice and
procedure and to avoid technical shortcomings, it is sensible in such cases to frame charges
under both the Sections. If the case is established against the accused he can be convicted under
both the Sections but no separate sentence need be awarded under Section 498A in view of a
substantive sentence being awarded for a major offence under Section 304B.12

In Panakanti Sampath Rao Vs State of A.P 13 Accused was charged with the commission of
offences under Sections 498A, 302 and 304B of the IPC and Sections 3 and 4 of the Dowry
Prohibition Act. He was acquitted of the offence of murder under Section 302 but was convicted
on the other counts. Life imprisonment was awarded under Section 304 Bother than the
punishment awarded under other charges. On appeal, the High Court found the accused guilty of
the offence under , which the Supreme Court affirmed.14

10 237th Law Commission Report: Compounding of (IPC) Offences, (2011).

11 AIR 1991 SC 1226

12 Shanti Vs State of Haryana 1991(1) SCC 371

13 Appeal (crl.) 946 of 2004

It is thus demanded a law that takes into regard the following findings: offences under Sections
498A, 302 and 304B of the IPC and Sections 3 and 4 of the Dowry Prohibition Act. He was
acquitted of the offence of murder under Section 302 but was convicted on the other counts. Life
imprisonment was awarded under Section 302 of the IPC 304Bother than the punishment
awarded under other charges. On appeal, the High Court found the accused guilty of the offence
under Section 302 of the IPC, which the Supreme Court affirmed.15

The offence of dowry death in Section 304B, IPC does not fall into the categories of the
offences for which death penalty has been provided in the Penal Code. Dowry death is different
from the offence of murder. The death of a bride may fall under both the categories of offences,
namely, murder and dowry death, in which case, a death sentence may be awarded for
committing the offence of murder in appropriate cases depending upon the facts and
circumstances of each case.16

With the argument against offences under Section 498-B being compoundable that state that it
may lead to an increase in dowry deaths, it is important to consider the outcome when
both Section 498-A and 304-B are amended. Broadly speaking, it would serve a dual purpose in
curbing the menace of cruelty, as well as deaths caused because of dowry. Categorizing the
offence, changing the requirement of proof, and adopting presumption methods would bring
clarity as to how it should be dealt with. Bailable, compoundable offences would contribute in
making courts more efficient, and categorizing offences of dowry deaths along with a method of
presumption would yield better results of punishments.

Why there is a need for Amendment?

The issues that stand today with these laws are owed to the lack of clarity and lack of distinction
and classification within the laws concerning interrelated areas of Dowry, Cruelty and Dowry
Death.
14 Panakanti Sampath Rao Vs State of A.P., (2006) 9 SCC 658

15 Panakanti Sampath Rao Vs State of A.P., (2006) 9 SCC 658

16 202nd Law Commission Report: Proposal to Amend Section 304-B of Indian Penal Code.
This ambiguity, though it may have had its advantages at one point in time in bringing the
victims to justice, is in recent years causing many counter-productive results. On the other hand,
in some cases, the facts may not meet certain conditions and may not fall into pigeon-holes of
known offences. Peculiarities of the case may cause it to avoid falling under a certain offence,
and proper procedure may not be taken as a result. Cruelty, as dealt with in Section 498-A of
IPC, may be present in numerous forms, but may not be recognised in peculiar cases if the facts
do not satisfy the required legal ingredients. Proof required for certain offences causes a burden
on the victim, and lack of evidence should not be the reason for denial of justice.

Measures ought to be taken to ensure that in cases of dowry death, there are different possibilities
as to how the death of the wife could have occurred, and whether it would necessarily be
classified as dowry death. Section 304-B of IPC should be amended to include and specify the
distinction between murder and suicide that cause the death in the case of dowry death. It is a
vital fact that should significantly affect the case and the suitable punishment given. Because it is
currently treated as murder, one would have to ponder if the same degree of punishment is
applicable in all the cases. Since it is considered as murder, the death sentence, if awarded, would
be acceptable legally though the dictum of rarest of rare case, may have to be adhered to.