Friday, 25 May 2018

Short notes on Dowry Death And S 498A of IPC

In 1986, a new section,S 304B was inserted into IPC to provide for stringent punishment in respect of dowry death.

Ingredients of S 304B
It is clear that before this offence is said to have been committed, the following conditions must be satisfied:
1) The wife should have died because of burns or any bodily injury;
2) Her death should have occurred otherwise than under normal circumstances.
3)Such death should have taken place within seven years from the date of her marriage.
4)Soon before her death, she should have been subjected to cruelty or harassment by her husband or any of his relatives.
5) Such cruelty or harassment should be for, or in connection with any demand for dowry.

Read important judgments on Dowry death:

What is dowry?
For the purpose of S 304B, the word dowry has the same meaning as S 2 of Dowry prohibition Act,which defines the word as follows:
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 parents of either party to a marriage or by any other person,to either party to the marriage or to any other person-
at, before or any time after the marriage in connection with the marriage of said parties.

Following are not dowry
A) Dower or mahr in case of muslim person.
B) Customary gifts without demand provided such presents are entered in a list in accordance with Rule 2 of dowry prohibition(maintenance of lists of presents to the bride and bridegroom) Rules 1985.

Presumption under the Indian Evidence Act

A new section has also been added to Indian evidence Act( S 113B), and it is now provided that when the question before the court 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.

Whether S 304B is retrospective?

S 304B is a substantive provision creating a new offence and not merely a provision effecting a change in procedure for trial of a pre-existing offence. The section is therefore not retrospective in nature.
S 304B applies not only when death is caused by the husband or in-laws but also when death occurs unnaturally whoever might have caused
it. This section will apply whenever the occurrence of death is preceded by cruelty or harassment by husband or in-laws for dowry and death occurs in unnatural circumstances. Thus intention behind this section is to fasten death on the husband or in-laws though they did not in fact caused the death.

S 498A of IPC

S 498A of IPC was introduced by 1983 amendment to combat the ever increasing menace of dowry deaths in India.
Under S 498A ,if a husband or a relative of husband of a woman subjects the woman to cruelty, he becomes liable for offence punishable with imprisonment for 3 years or fine or both.
For the purpose of this section, Cruelty means:
a) 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(mental or physical) of the woman;or
b) harassment of the woman whether 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 her failure to meet such demand.

Read important judgments on S 498A of IPC:

S 498A compared to S 304B of IPC
The Supreme court has observed that S 498A and S 304B of IPC are not mutually exclusive, as they deal with two distinct offences. Even though cruelty as defined in S 498A may have same connotation in S 304B, it is significant to note that under S 498A 'cruelty' by itself is punishable. However under S 304B,it is dowry death that is punishable provided death occurred within seven years of marriage. Interestingly no such period is specified in S 498A.

       Moreover, a person who is charged under S 304B can be convicted under S 498A,even without a separate charge being framed against him, provided a case is made out under the said section. However from a practical point of view and to avoid technical defects,it is always better to framed charged under both these sections.(Shanti v State of Hayana,AIR 1991 SC 1226)

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