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“PRESUMPTION AS TO DOWRY DEATH”

NATIONAL LAW UNIVERSITY ODISHA

EVIDENCE PROJECT

“PRESUMPTION AS TO DOWRY DEATH”

SUBMITTED TO:

NANDITTA BATRA

RASHMI REKHA BAUG

SUBMITTED BY:

RATNESH MUKHRAIYA

(2017BALLB073)

WORD COUNT: 4951.

“PRESUMPTION AS TO DOWRY DEATH”

TABLE OF AUTHORITIES

• TABLE OF CONTENTS TABLE OF CONTENTS
• TABLE OF AUTHORITIES
• RESEARCH QUESTIONS
• METHODOLOGY
• RESEARCH OBJECTIVES
• INTRODUCTION
  • I. CHAPTER 1: PRESUMPTION AS TO DOWRY DEATH.......................................
    • A. Dowry Death and Suicide
    • B. Cruelty Relating to Dowry
  • II. CHAPTER
    • A. Presumption as to Dowry Death
    • B. Nature of Presumption
  • III. 113B OF THE INDIAN EVIDENCE ACT...........................................................
• CONCLUSION
• ANNOTATED BIBLIOGRAPHY
• Atmaram v State of Maharashtra , 2013 12 SCC 286. INDIAN CASES
• Hem Chand v State of Haryana , (1993) 105 PLR 192.
• Kunju Moideen v Sayed Mohammed , AIR 1986 Ker 48 (40).
• Mangal Ram v State of Madhya Pradesh , 1999 CriLJ 4342.
• Nem Chand Jain v State Of Haryana , Cr Misc No 18391 of 2012.
• Pawan Kumar v State of Harayana , 1996 SCC (4) 17.
• Prem Kumar v State of Rajasthan , AIR 2009 SCC 1242.
• S Gopal Reddy v State Andhra pradesh , 1996 4 SCC 596.
• Shobha Rani v MadhukarReddi , AIR 1988 SC 121.
• Smt Shanti v State Of Haryana , 1991 AIR 1226.
• Soni Devrajbhai Babubhai v State Of Gujarat And Ors , 1991 AIR 2173.
• VijetaGajra v State of NCT of Delhi , 2010 11 SCC 618.
• M.C. Sarkar, Law on Evidence, (16th ed, Wadhwa and Company) 1991. BOOKS

“PRESUMPTION AS TO DOWRY DEATH”

STATUTE

Indian Evidence Act 1872, s 11B. 7 Indian Penal Code 1872, s 304B. 14 ONLINE SOURCES ‘Dowry Death: Ingredients Shall Be Proved By Prosecution Beyond Reasonable Doubt To Invoke Presumption’ LiveLaw (18 November

2016. <https://www.livelaw.in/dowry-death-ingredients-shall-proved- prosecution-beyond-reasonable-doubt-invoke-presumption-sc/ http://www.livelaw.in/dowry-death-ingredients-shall-proved- prosecution-beyond-reasonable-doubt-invokepresumption-sc/> accessed 21 August 2019.

Ankita Vashisht, ‘A Marriage Be It Valid Or Invalid: A Dowry Is A Dowry’ <https://www.manupatrafast.in/articles/ArticleSearch.aspx?sub=Women %20And%20Child%20Rights> accessed 18 August 2019.

Asamanya Roy, ‘Presumption as to dowry deaths under Section 113-B of Indian Evidence Act’, (Share your Essays, 1 May 2018) <http://www.shareyouressays.com/knowledge/presumption-as-to- dowry-deaths-under-section-113-b-of-indian-evidence-act/119152> accessed 29 August 2019.

Divyansh-Hanu, ‘Presumption as to dowry dearth’ <https://smhttp-ssl- 70271.nexcesscdn.net/wp-content/uploads/2018/02/Presumption-as-to- Dowry-Death-ByDivyansh-Hanu.pdf> accessed 15 August 2019.

The Tribune, ‘Presumption in dowry death should be backed by proof of cruelty: SC’ <http://www.tribuneindia.com/news/nation/presumption-in-

“PRESUMPTION AS TO DOWRY DEATH”

RESEARCH QUESTIONS:

1. Why women are affected by dowry system?
2. What is the connection between dowry demands and suicides committed by women?
3. How presumption is taken in the cases of dowry death?
4. What is the ‘nature of presumption’ in dowry cases?
5. What are the judicially evolved principles/concepts through the cases over the years? METHODOLOGY The study is doctrinal in nature as a result of the researcher's descriptive and analytical methodology, and the pertinent information and data required for its completion have been gathered from both primary and secondary sources available in books, publications, legal cases, research papers, and websites. RESEARCH OBJECTIVES
6. To analyse the laws relating to dowry
7. To compare the Indian evidence act before and after 2005
8. To study about the dowry system in india
9. To study all the preventive measures available for dowry cases

“PRESUMPTION AS TO DOWRY DEATH”

INTRODUCTION

Practice of dowry poses heavy danger to the life of women. Dowry is an oldcustom in Indian society referring to property or valuable security given toanother party by one party as a consideration for marriage. The origin of dowry primarily was the contribution from wife’s family or by herself with the intention to help the husband. This custom of dowry was started in the medieval period. Women were gifted with wealth and jewel from their guardians during her marriage and this served as a tool of financial independence for the bride even after marriage. This menace is the root cause of almost all violence against a married woman. In most cases after marriage the problem of dowry will arise. If the wife is not able to provide all, which her husband and in laws demand, her life in the groom’s house becomes miserable. She will be treated with cruelty and in some cases she even may lose her life. The problem which Indian society still suffers is cruelty against women is based onDowry , domestic violence against women in India has its root at the demand of dowry. Dowry may happen in any family there is no difference between rich, middle class, poor, educated or uneducated .when a marriage is fixed no one is worry as to how clever, intellectual, and homely the girl is, but all that matters is, how much money and luxuries will she get to husband’s home. With the passage of time dowry became a customary part in Indian society and became demanding dowry as their right in order to marry a woman, and gradually the dowry became violence to women when the groom’s family didn’t get enough dowry, resulting in harassment or cruelty of brides and also dowry deaths, especially in certain parts of India.^1 Dowry demands affect the lives of women socially, economically and culturally.According to the definition of dowry under section 2 of the Dowry Prohibition Act,1961 it isclear that dowry is a property which woman brings to her husband at marriage and includesthe land, all sorts of properties, valuable securities given or agreed to be given directly orindirectly at the time of marriage. The term dowry does not include repayment of marriageexpenses. The term dowry does not include Mahr. Dowry or Kanyadanam is an important part of Hindu marital rites. Kanya meansdaughter and danna means gift. The custom of Kanyadaan (giving daughter in marriage)followed by Varadakshina (gift to the bridegroom at the time of marriage) may have givenincrease to (^1) Indian Evidence Act 1872, s 11B.

“PRESUMPTION AS TO DOWRY DEATH”

I. CHAPTER 1: PRESUMPTION AS TO DOWRY DEATH

The first national legislation to deal with the problem of dowry is the dowryprohibition Act, 1961 with the main motive to prohibit the heavy demand in dowry;government introduced the Dowry Prohibition Act on 1st July 1961. Unfortunately, thedowry system is still widespread in India despite the provision in the Dowry Prohibition Act1961. According to section 3 of the dowry prohibition Act 1961, the Act prohibits theDemand , payment or acceptance of a dowry, as consideration for the marriage, where dowrydefined as a gift demanded or given as a precondition for a marriage. So asking or giving ofdowry is punishable by an imprisonment of up to six months, a fine of up to fifteen thousandrupees or the amount of dowry, whichever is more, or imprisonment up to five year. Itreplaced several parts of anti-dowry legislation which had been enacted by various Indianstates.

A. Dowry Death and Suicide

Where the death of a woman is caused by any burns or bodily injury or happensotherwise than under normal circumstances within seven years of her marriage and it isshown that soon before her death she was subjected to cruelty by her husband or any relativeof her husband for or in connection with the demand for dowry, such death shall be called Dowry death and such husband or relative shall be deemed to have caused her death. The Dowry Prohibition Act goes to the utmost limit of creating criminal offence to prescribe the giving or taking of dowry as a consideration for marriage or demanding or abetting the same .The statute intended to eradicate the kind of corruption and commercialization of the concept of dowry. mention in the oldest of Hindu scriptures and is continued today with a greater zeal. In the case of KunjuMoideen v. Sayed Mohammedan^3 , amount paid by Mohammedan in connection with daughter’s marriage, to future bridegroom for buying of property in joint names of daughter and son-in-law is not dowry within the meaning of section^4 2. Therefore, the giving or taking of property or valuable security must have some connection with the (^3) Kunju Moideen v Sayed Mohammed , AIR 1986 Ker 48 (40). (^4) Prem Kumar v State of Rajasthan , AIR 2009 SCC 1242.

“PRESUMPTION AS TO DOWRY DEATH”

marriage of the parties and a relation between the giving and taking of property or valuable security with the marriage of the parties is essential.^5 Definition of dowry can be understood with the other sections of the DowryProhibition Act such as section 3 which, mentions to giving or taking dowry and section 4 Which , deals with a penalty for demanding dowry. This makes it clear that even demand ofdowry on other ingredient being satisfied is punishable. In Prem Kumar v. State of Rajasthan , the Supreme Court says that it is not alwaysessential that there be any agreement for dowry because section 3 prohibits the demand,acceptance or payment of a dowry, as consideration for the marriage, where dowry defined asa gift demanded or given as a precondition for a marriage. Taking or giving of dowry ispunishable by an imprisonment up to six months, a fine of up to fifteen thousand rupees orthe amount of dowry, whichever is more, or imprisonment up to five year. However inaccordance with section 3 of the Act, both the giver and receiver are pursued to be punished.Demanding of dowry also is punishable under section 4 of this Act.^6 In S. Gopal Reddy v. state Andhra Pradesh ,^7 the Supreme Court stated that thedemand, though it was made prior to the marriage has to be considered as offence undersection 4 of the Dowry Prohibition Act. In this case the court stated that, mere demand ofdowry is enough to bring home the offence to an accused and that any demand of property ormoney made from the bride or her relatives by the bridegroom or his parents or vice versawould fall in the troubles of dowry under section 4 of Dowry Prohibition Act. The considerable point stated by the Supreme Court is that marriage in this situation would contain a future marriage also more special where the non-fulfillment of the demand of dowry leads to the bad result of the marriage not happening at all. (^5) PTI, ‘Presumption in dowry death to be backed by cruelty proof: Supreme Court’ The Indian Express ( November 2016). (^6) The Tribune, ‘Presumption in dowry death should be backed by proof of cruelty: SC’ <http://www.tribuneindia.com/news/nation/presumption-in-dowry-death-should-be-backed-by-proof-ofcruelty- sc/325870.html> accessed 21 August 2019. (^7) S Gopal Reddy v State Andhra pradesh , 1996 4 SCC 596.

“PRESUMPTION AS TO DOWRY DEATH”

To invoke section 498-A, IPC one has to be a “relative” of the husband by blood, marriage oradoption. So by no stretch of imagination would a girlfriend or even a concubine in anetymological sense be a relative.^9 In Vijeta Gajra v. State of NCT of Delhi it was held that the word relative in section498-A IPC, would be limited only to the blood relations and relations by marriage. The termcruelty of section 498-A, IPC, has been explained in the explanation to section 498-A whichconsist of two clauses namely Clause (a) and (b). Cruelty or harassment to wife was to forceher to cause grave bodily injury to herself or to commit suicide, or the harassment was tocompel her to fulfill illegal demand for dowry. Every type of harassment or cruelty thatwould not attract section 498-A IPC.^10 Cruelty can either be mental or physical. It is difficult to straitjacket the termcruelty by means of a definition, because cruelty is a relative term. What constitutes crueltyfor one may not constitute cruelty for another person. Cruelty, Clause (b) to section 498-AIPC, contemplates harassment of the woman to coerce her or any relation of her to meet anyunlawful demand for any property or valuable security. A complainant if wants to comeunder the ambit of Clause (b) of Explanation of section 498-A, she can succeed if it can beproved that there was an “unlawful demand” by the husband or any of her relations in respectof money or some valuable security. Section 304-B and section 498-A are not mutually exclusive .these provisions deal with twodistinct offences. It is true that “cruelty” is a common essential to both the sections and thathas to be proved. In the case of Atmaram v. State of Maharashtra^11 , woman was subjected to harassment by her husband and his relatives, purposely. The Supreme Court held that, Clause (a) of section 498-A, deals with aggravated forms of cruelty which cause grave injury, and convicted herhusband for cruelty. (^9) Divyansh-Hanu, ‘Presumption as to dowry dearth’ <https://smhttp-ssl-70271.nexcesscdn.net/wp- content/uploads/2018/02/Presumption-as-to-Dowry-Death-ByDivyansh-Hanu.pdf> accessed 15 August 2019. 10 VijetaGajra v State of NCT of Delhi , 2010 11 SCC 618.

Atmaram v State of Maharashtra , 2013 12 SCC 286. INDIAN CASES

“PRESUMPTION AS TO DOWRY DEATH”

In Shobha Rani v. Madhukar Reddi^12 , the court defined concept of cruelty and a new dimension has been given, cruelty while granting a divorce to the woman on the context of demand for dowry. Explanation to section 498-A provides that any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide would constitute cruelty. Such willful conduct which is likely to cause grave injury or danger to life, limb or health (whether mental or physical of the woman) would also amount to cruelty. Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security would also constitutecruelty.^13 (^12) Shobha Rani v MadhukarReddi , AIR 1988 SC 121. (^13) Soni Devrajbhai Babubhai v State Of Gujarat And Ors , 1991 AIR 2173.

“PRESUMPTION AS TO DOWRY DEATH”

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.^17

B. Nature of Presumption

Section 113B uses the word "shall" and not 'may' so it is a presumption of law .On proof of the essentials mentioned above, it becomes obligatory on the court to raise a presumption that the accused caused the "dowry death". The court has no discretion to draw the presumption under this section if the essential ingredients are proved then they are bound to draw this presumption under S.113B of the Indian Evidence Act. The legislature has made this presumption a mandatory presumption of law, of course, rebuttable, Though this may sound to be a violent departure from the accepted norms of criminal law. The legislature thought that the presumption under Section 113B should be a mandatory presumption if the evil of dowry deaths is to be eradicated from the roots of our society. If it is proved that soon before her death, the victim was subjected to cruelty or harassment in connection of a dowry demand, then the presumption under s 113B can be raised. If the prosecution has failed to prove the case under s 304B, IPC, even then, no presumption can be raised under 113B of the Indian Evidence Act. So 304B is an integral part of 113B of the Indian Evidence Act. Cruelty need not be physical. Even mental torture in a given case would be a case of cruelty or harassment under 304B and 498A. In Nem Chand v State of Harayana^18 the parties were married on 24-5-1962. After staying at the matrimonial home for two months, she returned to her parents' house and told them that her husband wanted a television set and a fridge. Her father gave her a sum of Rs. 6,000 and she left for her matrimonial home. Her husband again demanded a sum of Rs. 25,000 for purchasing a plot. There after the husband took his wife to her parents' home saying that he would not take her back unless a sum of Rs. 25,000 was paid to him. After one year he took her back but he did not give up his demand for Rs. 25,000. Soon thereafter she left for her parents home and came back with a sum of Rs. 15,000 with a promised that the rest of the amount would be would be paid later on. She died of strangulation in her husband's home. The trial court found accused guilty. Supreme Court held that accused should be convicted. (^17) ‘Dowry death cases: Presumption of guilt has to be backed by cogent evidence, says Supreme Court’ Scroll.in (20 November 2016).

Nem Chand Jain v State Of Haryana , Cr Misc No 18391 of 2012.

“PRESUMPTION AS TO DOWRY DEATH”

In a Shanti v State of Harayana^19 , where the death took place within seven years of marriage, the in-laws of the deceased did not inform deceased's parents about the death but hurriedly cremated the deceased. The prosecution succeeded in establishing cruel treatment towards the victim. The death could not be said to be natural death and the presumption under s 113B of the Evidence Act was attracted. The cruelty or harassment should be meet to the victim soon before the victim's death to bring under this presumption. In a case , there was dispute between parties regarding dowry and that wife, was sent back to her parent's home and was again taken back to her matrimonial home after a 'panchayat' which was held to resolve the dispute. This event happened 10-15 days prior to the occurrence of the incident as the death of the deceased. However, there was no evidence, which indicate that she was treated with cruelty or harassed with the demand for dowry during the period of between her taken back home to and her tragic end. In these circumstances, the presumption for dowry death cannot be raised. The court held that the, presumption of 113B could not be brought in. In another case Mangal Ram &Anor v State of Madhya Pradesh ,^20 the wife committed suicide within five years of her marriage. She was living with her parents for about two-three years. Within one month of returning to her matrimonial home, she jumped in to a well, and committed suicide. Harassment by husband and her in-laws during this month has not been proved beyond reasonable doubt. In these circumstances, the presumption cannot be raised against the husband. In another example Prem Singh v State of Harayana , there was, unnatural death of married woman in her husband's house within seven years of her marriage. Evidence showed that the husband had harassed her for not bringing sufficient dowry. Further, the medical evidence showed that the deceased died due to asphyxia as a result of smothering which is an unnatural death. No explanation offered by the husband as to how the deceased sustained several injuries on her body. The Court held, in the circumstances, the presumption of dowry death could be raised against the husband. As a result the High Court was justified in reversing his acquittal.

Smt Shanti v State Of Haryana , 1991 AIR 1226.

Mangal Ram v State of Madhya Pradesh , 1999 CriLJ 4342.

“PRESUMPTION AS TO DOWRY DEATH”

III. 113B of the Indian Evidence Act

The legislature has made this presumption a mandatory presumption of law, ofcourse, rebuttable, though this may sound to be a violent departure from the accepted normsof criminal law. The legislature thought that the presumption under Section 113 B should be amandatory presumption if the evil of dowry deaths is to be eradicated from the roots of oursociety. If it is proved that soon before her death, the victim was subjected to cruelty orharassment in connection of a dowry demand, then the presumption under s 113B can beraised. If the prosecution has failed to prove the case under Sec304B, IPC, even then, nopresumption can be raised under Sec. 113B of the Indian Evidence Act. So 304 B is anintegral part of Sec 113B of the Indian Evidence Act Cruelty need not be physical. Evenmental torture in a given case would be a case of cruelty or harassment under 304B and 498A. In a landmark case , parties were married on 24-5-1962.^23 After staying at thematrimonial home for two months, she returned to her parents' house and told them that herhusband wanted a television set and a fridge. Her father gave her a sum of Rs. 6,000 and sheleft for her matrimonial home. Her husband again demanded a sum of Rs. 25,000 forpurchasing a plot. 17 There after the husband took his wife to her parents' home saying that hewould not take her back unless a sum of Rs. 25,000 was paid to him. After one year he tookher back but he did not give up his demand for Rs. 25000. Soon thereafter she left for her parents home and came back with a sum of Rs. 15,000 with a promised that the rest of the amount would be would be paid later on. She died of strangulation in her husband's home. The trial court found accused guilty. Supreme Court held that accused should be convicted. (^23) PTI, ‘Presumption In Deaths Related To Dowry Must Be Backed By Proof Of Cruelty: SC’ Huffpost ( November 2018).

“PRESUMPTION AS TO DOWRY DEATH”

In the case of Keshab Chandra Pandey v State^24 the presumption under s 113B of the Indian Evidence Act shall be raised only on the proof of the following essentials: (i) Whether the accused has committed the dowry death of a woman. So the presumption can be raised if the accused is being tried for an offence under s 304B, Indian Penal Code. (ii) The woman was subjected to cruelty or harassment by her husband or his relatives. (iii) Such cruelty or harassment was for or in connection with the any demand for dowry. (iv) Such cruelty or harassment was soon before her death.

M.C. Sarkar, Law on Evidence, (16th ed, Wadhwa and Company) 1991. BOOKS