In 1986, a new offence known as “Dowry Death” was inserted in the Indian Penal Code as section 304-B by the Dowry Prohibition (Amendment) Act, 1986 (43 of 1986) with effect from November 19, 1986. The provisions of section 304-B, IPC are more stringent than that provided under section 498-A of the Penal Code. The offence is cognizable, non-bailable and triable by a Court of Session.
Section 304-B in The 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 purpose 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.
The essential components of Section 304-B are:
- Death of a woman occurring otherwise than under normal circumstances.
- Death should have occurred within 7 years of marriage.
- Soon before her death, she should have been subject to cruelty and harassment in connection with any demand for dowry.
Soon before her death — The expression indicates that there must be a perceptible nexus between the infliction of dowry-related harassment and cruelty on the woman and death, Satvir Singh v. State of Punjab, (2001) 8 SCC 633.
Dowry death — The expression “otherwise than under normal circumstances” would mean death not in the usual course but apparently under suspicious circumstances, if not caused by burns or bodily injury. Kans Raj v. State of Punjab, (2000) 5 SCC 207
Words “shown” and “deemed” — “Shown” should be read as “proved” and “deemed” should be read as “presumed”. The initial burden is on the prosecution to prove by a preponderance of probabilities the ingredients of S. 304-B. Requiring prosecution to prove these ingredients beyond a reasonable doubt would defeat the purpose of S. 304-B. Once such initial burden is discharged by the prosecution, initial presumption of innocence of accused would get replaced by the deemed presumption of guilt of accused. The burden would then be shifted on accused to rebut that deemed presumption of guilt by proving beyond the reasonable doubt his innocence. Right to life and liberty of accused cannot be jeopardised without providing accused opportunity to prove his innocence, Sher Singh v. State of Haryana, (2015) 3 SCC 724
Presumption under S. 113-B
The presumption under S. 113-B of the Evidence Act is attracted only in case of suicidal or homicidal death and not in case of an accidental death. [Sultan Singh v. State of Haryana, (2014) 14 SCC 664]
Section 113-B in The Indian Evidence Act – Presumption as to dowry death.
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 for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation — For the purposes of this section, “dowry death” shall have the same meaning as in Section 304-B of Indian Penal Code (45 of 1860).
A burden to prove innocence is more on the accused under Section 113-B than under Section 113-A, which places a far lighter burden on the accused. In Section 113-A, which relates to Section 306 IPC, the court “may presume”, “having regard to all the other circumstances of the case”, but in Section 113-B, which is relatable to Section 304-B, the court “shall presume” and further there is no reference to the circumstances of the case, Anand Kumar v. State of M.P., (2009) 3 SCC 799.
Cruelty by Husband or Relatives of Husband
In 1983 to check cruelty to women by husbands and parents-in-law, rampant in an unprecedented scale in the country a new Chapter, XX-A entitled. Cruelty or harassment differs from the case of case. It relates to a mindset of people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be giving threats of injury to her or her near and dear ones.
It can be depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements. It can be not allowing her to talk to outside world. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Surinder Singh vs State of Haryana [Criminal Appeal No. 1791 of 2008]
Section 498-A in The Indian Penal Code – Husband or relative of husband of a woman subjecting her to cruelty
Whoever, being the husband or the 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.
Explanation —For the purposes of this section, “cruelty” means—
- 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, limb or health (whether mental or physical) of the woman; or
- 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 or is on account of failure by her or any person related to her to meet such demand.
To bring home the charge under Section 498-A, held, cruelty is the necessary ingredient which is needed to be proved, State of Maharashtra v. Ashok Narayan Dandalwar, (2000) 9 SCC 257
Section 498-A, IPC and section 4 of Dowry Prohibition Act do not attract double jeopardy
Section 498-A, IPC provision is distinguishable from section 4 of the Dowry Prohibition Act, because in the latter mere demand of dowry is punishable and the existence of an element of cruelty is not necessary, whereas section 498-A, IPC punishes an act of cruelty caused to a newly married woman. (Inder Raj Malik vs Sunita Malik (1986) Cr LJ 1510)
Section 498-A, IPC is not ultra vires to the Constitution
The Andhra Pradesh High Court in Vungarala Yedukodalu vs State of Andhra Pradesh, [1988 Cr LJ 1538 (AP)] while admitting that the expression ‘cruelty’ was not capable of precise definition, held that there was no vagueness in its meaning and as such it is not ultra vires of the Constitution. Each case has to be adjudged in the light of the facts of that particular case in the historical circumstances which necessitated the amendment.
Author – Mayank Shekhar
- K.D. Gaur, Textbook on Indian Penal Code, Fifth Edition 2014
- Ratanlal and Dhirajlal, Indian Penal Code, Thirty-Fifth Edition
- SCC Online