There is a phenomenal rise in crime against women. Women’s protection under the Indian Constitution and other legislations will be significant only if those responsible for upholding the law are sensitized to women’s issues.

DOWRY:

Definition: The term dowry is not defined in the IPC, but rather in the Dowry Prohibition Act, 1961. According to the act, it is defined as any property or valuable security given or agreed to be given directly or indirectly:

  • By one party to a marriage to the other party to a marriage;
  • By the parents of either party to a marriage or by any other person to either party to a marriage or to any other person at or before or at any time after (on three occasions) the marriage in connection with the said parties’ marriage.

However, customary payments, such as those made at the time of a child’s birth, are popular in several civilizations.

GIVING & ACCEPTING DOWRY BOTH ARE OFFENCES:

In addition to the Dowry Prohibition Act, 1961, the following laws have been made more stringent namely,

  • Section 304B (dowry death)
  • Section 498A (cruelty by husband or his relatives)
  • Section 113 B (presumption as to dowry death)

DOWRY DEATH: GENESIS OF THE PROVISONS

The three ingredients for establishing the offence punishable under Section 304-B IPC are:

  • that there is demand of dowry and harassment by the accused;
  • that the deceased died
  • that the death is under unnatural circumstances

Once harassment for dowry payment occurs and an unnatural death occurs within seven years of the marriage, a presumption of dowry death exists. This Section will apply whenever a death occurs as a result of cruelty or harassment by the husband or in-laws for dowry and the death happens in an unnatural manner.

PROVISIONS OF SECTION 498A IPC:

Section 498-A IPC was introduced in the Penal Code by Criminal Law (Second Amendment) Act of 1983, which came into force with effect from 25th of December, 1983. This Section indicates the concern for the weaker spouse’s protection. Historically, in any community, a woman has been subjected to the whims and caprices of a man, particularly when it comes to the husband-wife relationship.

Ingredients of Section 498A of the Indian Penal Code are:

  • The woman must be married
  • She must be subjected to cruelty or harassment;
  • Such cruelty or harassment must have been shown either by the husband of the woman or by the relative of her husband.

Section 498-A IPC shows that whoever being the husband or relative of the husband of a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Clause (b) of the Explanation to that Section shows that the 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 property or valuable security or is on account of the failure by her or any person related to her to meet such demand would amount to cruelty for the purposes of Section 498-A IPC.

CRUELTY UNDER 498A & 306 IPC:

The basic difference that lies between  Sections 498-A IPC and 306 IPC is that of intention. Under Section 498-A IP.C cruelty committed by the husband or his relatives drag the woman to commit suicide, while under Section 306 1.P.C. suicide is abetted and intended.

The concept of cruelty under Section 498A IPC and its effect under Section 306 IPC varies from individual to individual which also depends upon the social and economic status to which such person belongs. Cruelty for the purpose of offence need not be physical, even mental torture or abnormal behavior may amount to cruelty and harassment in a given case. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence some may be unbearable and a weak person may think of ending one’s life.

SECTION 113A & 113B INDIAN EVIDENCE ACT

Presumption as to abetment of suicide by a married woman:

A bare reading of section 113A shows that to attract the applicability of this provision, it must be shown that-

  • the woman has committed suicide
  • such suicide has been committed within a period of seven years from the date of her marriage
  • the husband or his relatives who are charged had subjected her to cruelty

On the existence and availability of the above-said circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. The presumption under section 113A the Indian Evidence Act is not mandatory it is only permissive as the employment of expression ‘may presume to suggest. Secondly, the existence and availability of the abovesaid three circumstances shall not like a formula enable the presumption to be drawn. Before the presumption may be drawn the court shall have regard to all the other circumstances of the case,

Presumption as to dowry Death:

Section 113B of the Evidence Act enables the Court to draw presumption in such circumstances to the effect that, when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment or in connection with any demand for dowry, such person shall be deemed to have caused the dowry death.

Section 113B permits a presumption to be drawn against the accused in regard to dowry death provided the prosecution establishes that soon before her death the woman was subjected to cruelty or harassment. The explanation to said section says that the word ‘dowry death’ shall have the same meaning as in section 304B of the Indian Penal Code which means such death should be otherwise than in normal circumstances and within 7 years of marriage.

SECTION 304 B IPC and 113B IEA:

On a conjoint reading of Section 304B, the Indian Penal Code and Section 113B Evidence Act it is clear that for drawing a presumption under sections 113B of the Evidence Act firstly there should be death of a woman otherwise than in normal circumstances within 7 years of marriage and the prosecution having shown that soon before her death she was subjected to cruelty or harassment in connection with any demand for dowry by persons accused of having committed the offence Unless and until these preliminary facts are established by the prosecution it is not open to the Courts to draw a presumption against the accused invoking section 113B of the Evidence Act.

SUBJECTED TO CRUELTY

Section 113B of the Evidence Act lays that if soon before the death such woman has been subjected to cruelty or harassment for or in connection with any demand for dowry, the court shall presume that such person committed the death. The meaning of “cruelty for the purposes of these sections can be gatherd from the language as found in section 498A and as per that section, cruelty to any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, etc. any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” As per the definition of “dowry” any property or valuable security given or agreed to be given either at or before or any time after the marriage, comes within the meaning of “dowry”.

CONCLUSION:

Assault on a woman offends her dignity. It is one thing to say that every wear and tear of married life need not lead to suicide and it is another thing to put it so crudely and suggest that one or two assaults on a woman are an accepted social norm. Judges have to be sensitive to women’s problems. What effect it will have on a woman depends on the facts and circumstances of each case and there cannot be any generalization on this issue.

Consult our Legal Professionals