This article has been authored by Fatema Lokhandwala, a first year student at NMIMS School of Law, Bangalore.
“Ayesha Banu, a 24-year-old Ahmedabad resident, recorded a video message before jumping into the Sabarmati River and ending her life on February 25. Ayesha claimed she was being harassed by her husband over dowry. Rashika Agarwal, 25, had died a week before at her in-laws' home in a posh Kolkata neighbourhood. Her family claimed that her husband and others tortured her and that they paid a dowry of Rs 7 crore”.
Also as mentioned in Kamlesh Singh vs Vishwa raj Singh it was stated that her death was not normal and she was tortured for dowry soon before her death.
As incidents of dowry-related violence such as the ones described above are increasing every year in modern India, a lingering question arises as to why current Indian laws have not successfully deterred the cultural perpetuation of this practice. In fact, since the Dowry Prohibition Act was passed, the number of dowry-related murders has increased. According to National Crime Bureau data, the rate of increase is frightening. The statistics show that 91,202 dowry deaths were reported in the country from January 1, 2001 to December 31 2012. Out of that 84,013 were charged and sent for trial.
What is Dowry?
Marriage in India is steeped in traditions and deep-rooted cultural beliefs. One such practice is the dowry system. Dowry is like a serpent in the roots of Indian culture that is used to satisfy the raw greed of the husband’s family in a patriarchal society. It is one of the burning issues in India but laws and acts have been enacted by the legal system to prevent the gruesome crime.
The Dowry Prohibition Act of 1961 was enacted and the existing laws were made stringent by adding Sections 304B (dowry death) and 498A (cruelty by husband or his relatives) to the Indian Penal Code and Section 113B (presumption as to dowry death) to the Indian Evidence Act. Section 304 of IPC deals with murder which can be proved by Section 113B of the Indian Evidence Act which comes with some base level investigation.
The Parliament enacted the Dowry Prohibition Act, 1961 as a first step to eradicate this but the prevalence of dowry murders years after the Act's inception shows its ineffectiveness in countering this crime. This makes it clear that the law has some major loopholes that should be rectified. Dowry death being a non-bailable and cognizable offence in some cases puts the innocent’s life at stake and does not give the option of applying for anticipatory bail. In view of this, another issue is whether capital punishment is necessary in dowry death cases. The antagonism between patriarchal tradition and the laws attempting to change the societal treatment of women is illustrated in the backlash to dowry laws and the lack of their enforcement.
What is the role of section 304 B in Dowry Death Cases?
Section 304B deals with both homicidal and suicidal fatalities. According to the law, if a woman dies as a result of burns or bodily injury, or otherwise than under normal circumstances, within seven years of her marriage, and it is proven that 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. The presumptive nature of Section 304B makes it easier for the prosecution to secure a conviction in cases where the above ingredients are present, because Section 113B of the Indian Evidence Act clarifies that when the question is whether a person has committed the dowry death of a woman and it is shown that such woman was subjected to cruelty or harassment by such person shortly before her death, such person shall be presumed to have committed the dowry death of such woman.
Is Anticipatory Bail Provided in Dowry Death Cases?
Under section 304B, the accused is commonly denied anticipatory or even regular bail in the case of a 'dowry death', where charges of dowry demand or non-return of dowry are made. Though it is the courts’ discretion to grant anticipatory bail, the judge's judgment shall not be construed as being in the accused’s favour. Moreover, in every case of a married woman's death, lawyers prefer to urge the woman's family to establish a case of dowry demands, even if the murder or suicide was caused due to other factors.
Is Capital punishment a Necessity?
With the law having major loopholes in its bail provisions, another question arises as to whether capital punishment should be an option given the presumptive nature of the offence. Section 302 of IPC already provides for the death penalty in case of murder. It is not necessary to impose capital punishment for an offence under Section 304B which deals with dowry death. The Indian Penal Code makes a distinction between Sections 302 (murder), 304B (dowry death), and 306 (abetment to suicide). If a charge is framed under section 304B but the case falls under section 302 after recording and appreciating evidence, the charge can be changed and the accused can be punished under section 302. In light of the foregoing, it is not suggested that Section 304B of IPC be amended to make the death penalty the highest punishment for dowry murder. The time limit for presumption may also be expanded because seven years is a fairly short period of time and many crimes are committed in advance.
Legal Problems with the Act
The Act has loopholes with relation to its bail provisions but some other considerable areas that should be amended are:
a) Inordinate delays in the resolution of dowry death cases which can be avoided by establishing Special courts for this purpose.
b) The presumption that cruelty/harassment is the sole cause of dowry death, and overlooking other factors that may be responsible. And a lack of legal definition for the term Cruelty which may lead to varying interpretations.
c) The ambiguity in the definition of dowry in the Act and the loophole in the definition of "dowry" which allows expected gifts counteracts the goals of this Act. A narrow definition should be given by listing down everything that is included within the ambit of dowry.
d) The Act makes no provision for the complainant's protection. The victim or complainant faces insecurity from the people she has filed a complaint against.
e) Section 304B of IPC and sections 113A and 113B of the Indian Evidence Act impose an arbitrary seven-year marriage limit within which the presumption that the victim's husband or relatives caused the dowry death can be inferred. Unfortunately, families who strategically plan dowry deaths to avoid criminal liability can take advantage of this seven-year limit.
What are the Effects of the Loopholes in the Act?
Due to the shortcomings in the Act, the victim has to suffer, one of the major issues being that the Act imposes liability for givers as well as takers of dowry. This counteracts the Act's purpose of eradicating dowry exchange because it discourages the wife and her family from reporting dowry harassment, since by reporting that dowry harassment is taking place, the woman and her family may be subject to criminal liability themselves. The requirement that dowry be defined as "in connection with marriage" ignores the fact that most marriage negotiations take place behind closed doors and defendants can easily be acquitted by arguing that gifts given over the course of a marriage were given voluntarily and out of love. Also, The Dowry Prohibition Act prohibits dowry demands made after a marriage, with an exception for "voluntary" gifts made by "custom". This allows fulfilling the evil malice of the dowry takers without any illegality being imposed.
What are the Possible Amendments that can be made?
Dowry laws, which include both substantive and procedural laws, are limited in scope. The law's broad scope is necessary to the point where it cannot be abused. After a thorough examination of every aspect of the law pertaining to dowry, proper guidelines must be established. The term “gifts” is also very vaguely mentioned in the Act, therefore the judiciary should make updated guidelines on the expenditures at weddings and ensure that no dowry is been given/taken in the form of “gift” and there is an effective implementation of the Act. The Act's prohibition on demanding dowry "directly or indirectly" creates a problem of ambiguity. Leaving the term “indirectly” undefined places the burden of proof on dowry victims and their families to show that dowry was demanded in an "indirect" manner. Therefore, this term needs to be clearly defined.
The Dowry Prohibition Act of 1961 was enacted solely to prohibit the offering and taking of dowry. The fact that the word or material dowry was never the issue is noteworthy. Instead, it was excessive demands and the ensuing violence that emerged as a result of those demands not being met which eventually led to a worsening of the problem. These anti-dowry laws must be re-examined immediately with special care paid to the demands of our community. The non-bailable and non-compoundable nature of these offences is critical issues that must be addressed. The lawmakers should also enact strong laws, such as a five-year prison sentence and a fine for damage to a husband's reputation caused by a woman who files false cases and after the trial is proven guilty by the court.
 Kamlesh singh vs Vishwa raj singh, 2017 SCC Online All 854: (2017) 4 All LJ 499