(This is a guest post by Shikhar Aggarwal)
The dowry-related ‘murder’ of Nikki Bhati, nine years after her marriage, sent shockwaves throughout society. More so because this incident broke the illusion of dowry harassment being a thing of the past. It also somewhat shattered the narrative surrounding an ever-increasing number of ‘false’ cases involving ‘misuse’ of provisions meant to safeguard women and to deter men and their families from indulging in such harassment.
Upon closer examination, I realised the inadequacy of these laws in tackling the menace, especially due to the inherent structural issues surrounding their application and interpretation. This post examines the substantive criminal law provisions attracted in such cases and the concerns therein. I argue that the need of the hour is to overhaul the criteria governing applicability of these provisions (i.e., the threshold of a woman’s death occurring within seven years of marriage).
Glaring loopholes surrounding these provisions ex facie
Section 304B, introduced in the Indian Penal Code (‘IPC’) in 1986, defined ‘dowry death’ as follows:
(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.
This deeming provision is pari materia with Section 80 of the Bharatiya Nyaya Sanhita, 2023 (‘BNS’). It holds husbands and/or their relatives liable for any unnatural death of a woman within seven years of marriage, if ‘soon before her death’, they subjected her to cruelty or harassment for/in connection with dowry-related demands. A gaping hole in this provision regarding what constitutes ‘cruelty’ was resolved judicially in Shanti v. State of Haryana, by importing the definition of ‘cruelty’ from Section 498A, which was introduced three years before Section 304B separately punished the specific act of causing bridal deaths within seven years of marriage for dowry.
The Explanation to Section 498A, however, defines cruelty specifically “for the purposes of this Section”. It reads as:
(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 (whether mental or physical) of the woman; or (b) 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.
The BNS has now split Section 498A IPC into Sections 85 and 86, the latter defining ‘cruelty’ “for the purposes of Section 85”. Hence, the term ‘cruelty’ in Section 80 BNS remains undefined, relying on judicial interpretation that seemingly contradicts the bare text of Section 498A IPC/86 BNS, which restricts the definition of this term “for the purposes of” just one Section.
It is unlikely that this omission of a definition in Section 80 BNS/304B IPC was mere oversight, given that Parliament was careful enough to explicitly define ‘dowry’ as under Section 2 of the Dowry Prohibition Act, 1961. In Shanti, the Court noted that Sections 304B and 498A are not mutually exclusive – yet, despite an opportunity to correct this obvious anomaly, the BNS continues to perpetuate this confusion apparent within the text of the law.
How this plays out practically
To understand the significance of this, take the case of Ms. Bhati, who's unfortunate demise took place more than seven years after her marriage. What offences would be attracted then? The settled position is that such dowry-related deaths occurring after seven years of marriage are not covered by Section 304B IPC/80 BNS (carrying a maximum punishment of life imprisonment), but rather by Section 498A IPC/85 BNS (carrying a maximum of three years’ imprisonment). This stark difference in the quantum of sentence occurs only because of one factor, i.e., the number of years since marriage.
It is worth mentioning here that the Criminal Law (Second Amendment) Act, 1983, had introduced Section 498A to the IPC as a solution for dowry deaths as well as other instances of cruelty inflicted on married women by their husbands and in-laws. However, it was specifically the inadequacy of this provision owing to which Section 304B was separately introduced in 1986, with a stricter punishment for dowry deaths as defined therein.
While dowry demands may be the most persistent during the first few years of marriage, that does not mean there can never be such scenarios after the first seven years. The fact remains that Section 304B IPC/80 BNS imposes an arbitrary and unreasonable criteria for classifying ‘dowry deaths’. There is no specific rationale for this threshold of seven years. After seven years of marriage, the evidence law presumptions that can reduce the burden of proof for establishing the factum of dowry death (and to thereby ensure ‘easier’ convictions) no longer apply.
The statute ends up creating even procedural distinctions. There is no discernible reason why the Police is required to conduct an inquest into every unnatural death of a married woman occurring within seven years of marriage, but not those after seven years of marriage. This came to fore in Vimala Devi’s case, where the husband is said to have intentionally waited for the seven years’ period to end before getting his wife killed.
In cases such as those of Bhati, some have advocated for the State to invoke murder charges against the accused under Section 302 IPC/103(1) BNS, which is also punishable with death. It should be noted that doing so would mean that the evidence law presumptions applicable to dowry-related provisions would no longer be available, and would instead carry the thresholds (of evidence and causation) as applicable to a regular murder trial.
What is the point of these provisions?
Three pertinent questions arise, in my opinion, from this discussion:
1. Why does Section 304B IPC/80 BNS carry an artificial threshold of criminalising only those deaths which occur within ‘seven’ years of marriage?2. What is the point of having a separate provision criminalising dowry deaths, when there is no option other than charging the accused with murder if the said death occurs after seven years of marriage?3. Does Section 498A IPC/85 BNS present an adequate remedy, if the ingredients of Section 302 IPC/103 BNS are not met in such cases?
This predicament raises questions about the very utility of these provisions in combating the menace they had sought to address, especially when they were introduced with a gap of three years (in the years 1983 and 1986, and finally re-promulgated in 2023 in the BNS). Clearly, the solution to this problem does not lie in having an artificial numerical threshold with universal applicability. Rather, it is better to determine such dowry-related harassment as a question of fact having relevance to the death of a wife/bride caused by either suicide or homicide, whether culpable as murder or otherwise. The 243rd Report of the Law Commission of India did not delve into these issues affecting the very structure of the law, keeping itself limited to managing the ‘misuse’ of Section 498A. In this context, even the introduction of the BNS seems to have only continued the extant problems without really reforming the situation at hand.
In this light, the 2022 statistics of the National Crime Records Bureau reveal a gruelling tale too. India loses nearly 18 of its women to ‘dowry deaths’ (as defined in Section 304B IPC/80 BNS) every day, with the actual numbers for subsequent years likely to be higher. Table 2A.2 within these statistics reveals that beyond these numbers, 951 murder cases were additionally motivated by dowry: whether these murders occurred within or after seven years of marriage is anyone’s guess. Further, Table 3A.5, showcasing how the Police dealt with a total of 10261 cases of dowry deaths (those from 2022 as well as those carried forward from previous years), shows how the final reports in 239 of them showed that the case therein was ‘false’. It is difficult to explain how a case involving the passing away of a woman can be called ‘false’ in any official statistics. 253 final reports showcased either a civil dispute or a ‘mistake of fact’. In 359 cases, despite the case being true, evidence therein was insufficient or untraced, or that the Police simply had ‘no clue’ thereof (owing to which a closure report had to be filed).
This alarming picture arises out of a multiplicity of factors, including the difficulty in meeting evidentiary standards (despite the presumptions in evidence law), as well as the inherently poor and overly patriarchal state of Police machinery in our country. Nonetheless, the attention which Section 498A/85-86 BNS gets in our country, for all the right and wrong reasons, is a pale shadow of what Section 304B IPC/80 BNS deserves to get.
The need of the hour is to do away with this arbitrary threshold of ‘seven years’ as a universally tumultuous period for married women – rather, the law should firstly recognise that tumult is a natural part of married women’s lives in India, for reasons connected with dowry or otherwise. To this end, the deeming provision contained in Section 80 BNS should be effectuated by inquiring into acts of cruelty and dowry leading to the death of a woman, whether in the form of suicide or otherwise, regardless of the time-period for which a woman has been married.
Concluding remarks: on society’s attitude towards dowry and crime
The current state of criminal law keeps the meaning of ‘cruelty’ contingent on the social standing and socio-economic background of the parties in a case. While it laudably covers both physical and mental aspects, its effects are dependent on a number of subjective factors. This essentially keeps these provisions strangulated within a realm of subjectivity, which partly explains the brouhaha over the ‘misuse’ of Section 498A.
At the same time, the State’s efforts at safeguarding the sanctity of a marriage, as even the Supreme Court encouraged/endorsed in Preeti Gupta and Rajesh Sharma, place an onerous burden on an affected woman to treat her husband like a 'Pati Parmeshwa'r (as per a Bombay High Court judgment concerning a movie so named). These, instead, ought to be redirected towards equipping the criminal justice system with the requisite means to ensure speedy investigation and trial into such cases: strengthening ‘Crimes Against Women’ cells across States, ensuring access to proper legal aid, and proper awareness campaigns on women’s rights are the barest minimum required herein.
Clarity and a sound legislative policy would be the first step in this rather arduous journey.
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