Guest Post: A Sorry State of Affairs, which is the Law Governing 'Dowry Deaths' in India

(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.

'Crimes Against Women' in India

The National Criminal Records Bureau in India maintains a separate chapter on 'Crime against Women' in its annual report, publishing statistics for crimes that are "specifically against women". It shows us that not only does the Indian Penal Code contain various female-specific crimes, but that it is supplemented by various other statutes creating offences with only female victims. These are only union laws, mind. 'Crime against Women' today has become a sad caricature unfortunately. Various outfits represent most of these laws as nothing but mechanisms at the hands of scheming wives to oppress a husband and his family members. I do not wish to enter that debate here, but would only say that such a view ignores the obviously empowering ends achieved by such legislation in a country with largely paternalistic social mores [See this recent piece by Flavia Agnes on the debate]. I am concerned with a different problem: legislative excess. I argue that there are significant overlaps between the many offences created under the variety of statutes at the federal level. This is undesirable, for it effectively criminalises the same acts with different labels and ultimately clogs the courts with different cases seeking similar reliefs. A more efficient setup is attainable and could go a long way in resolving what have become systemic problems in this area of law.

498A IPC vs. Domestic Violence Act vs. Dowry Prohibition Act
Historically, we had the Dowry Prohibition Act come in force in 1961, followed by the insertion of Section 498-A in the IPC in 1983, and lastly the Protection of Women from Domestic Violence Act [DV Act] came in 2005. The statutes/amendments were passed in differing legislative climates; the latter two being passed in an India of post-Congress domination. What all these laws ended up doing is treading over the same ground with different ploughs. The 1961 Act criminalised giving and/or demanding dowry. This was subsumed within the definition of 'cruelty' afforded by Section 498-A ("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 ..."). All of this was then subsumed under the wide umbrella of the DV Act in 2005. This took in dowry demands as well as all forms of 'cruelty' under Section 498-A as forming grounds of either physical or economic violence. The DV Act does not simply label the violence as an 'offence' but uses it to confer rights on the aggrieved woman who may then seek physical and/or economic protection. The DV Act mechanism has been lauded for providing quick reliefs. But, nonetheless, it propels litigation between the same parties under both the traditional criminal justice system for prosecuting Dowry and IPC offences, as well as under the DV Act for seeking immediate economic reliefs. The tendency of courts to hear matters together also dents the initial momentum gathered in the DV Act case.

Before moving on, a short comment is warranted on Section 498-A IPC. The provision is unhappily worded and literally invites abuse. By defining 'cruelty' as any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury (whether mental or physical), the legislature imported traditionally civil grounds for damages into a criminal provision. The text itself seems to suggest that causation is not an element of consideration - X caused Y is not an inquiry, but X did Y which caused Z to feel A might be.  This, together with the largely subjective understanding of the actus reus requirements gravely diminishes the certainty with which courts might apply the provision. All in all, this furthers its potential use as a tool of oppression and, in a way, justifies the bad publicity it garners.

IPC Trafficking vs. Immoral Trafficking 

The issues here are less straightforward as compared to the matrimonial offences. Reading provisions on 'Trafficking' in the IPC - Sections 370-373 - together with the provisions of the Immoral Traffic (Prevention) Act 1956 [ITP Act] throws up similar troubles. The latter statute is completely unique insofar as it criminalises living off the earnings of prostitution and running of brothels. But the parts on trafficking in the ITP Act curiously fail to reference the IPC provisions that were existing from the start. The ITP Act ignores how the IPC defines 'trafficking' in Section 370. The IPC offences of selling and buying minors for prostitution are not referred to, but the statute creates new offences on substantially similar grounds. None of the provisions refer to Section 366 IPC, the offence of kidnapping a woman to inter alia seduce her to illicit intercourse. This is curious since seducing persons to illicit intercourse is perhaps the crux of the ITP Act.

Obscenity vs. Indecent Representation of Women
The offence under Section 292 IPC criminalising publication of obscene material has been there from the start. In 1951 it was supplemented by the Indecent Representation of Women (Prohibition) Act. The legislation defines 'indecent representation' of women in broad strokes [Gautam Bhatia in his recent book offers a scathing criticism of this] to mean the "depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to, or denigrating, women, or is likely to deprave, corrupt or injure the public morality or morals." 

It is safe to say that the first part of the definition is akin to the saying that beauty (read indecency, derogatory and denigrating) lies in the eyes of the beholder. Logically, it also subsumes all women to be one class and imagines a set of possible acts that offend them collectively. The second part pushes this idea further on a more general level. It incorporates elements from Section 292 IPC - the requirements of depraving and corrupting influences - and adds these elements with the notoriously problematic idea of 'public morality or morals'. As Bhatia argues at one place, restraining free speech on the ground of public morality does not have the sanction of Article 19(2), rendering this provision without any constitutional protection. Speaking from the perspective of criminal theory, it is quite inexplicable to blatantly impose the public morality upon autonomous individuals through the tool of the criminal law. The offence can be criticised in any number of ways - constitutionally unsound, no foundation in criminal theory, supporting gender stereotypes - but here I'll refocus the lens to the context of this post. The offence could easily be reduced to a sub-clause in Section 292 and save persons from having to fear additional prosecution. This is important, as the Indecent Representation of Women Act allows for employees of publishing houses to be held vicariously liable (without them having the mens rea to commit an offence). This stretches the potential net of liability much wider than the IPC, which does not have a vicarious liability provision.

Conclusions
The various special laws designed to address 'Crime Against Women' seem to be uniformly afflicted by problems of bad drafting and a lack of clear purpose. In attempting to differentiate the special law from the general IPC offences, the legislature creates new terms without defining them appropriately. This promotes vexatious litigation, or litigation that would otherwise not have been attempted but for the vagaries in the law. The overly moralistic tenor of the statutes seeking to safeguard the interests of women render their application more difficult from the criminal trial perspective and increases the possibility of bad decisions at any stage of the proceedings. This promotes the perversity with which the regime is then viewed in the public [where the possible offenders (men) significantly outnumber the victims (women)]. Moreover, in the case of matrimonial offences the overlaps bring about multiple litigation between the same parties and increases administrative costs for the system. All of this clogs the docket and reduces the judicial time possibly allocated to deciding each dispute.

There are easy answers to this problem. A relook of the statutes would prompt amendments and a narrowing down of their obtusely wide scopes. The area of physical and economic violence against women could be consolidated into a general code and taken out of the IPC altogether. The emphasis on immediate reliefs (akin to the DV Act) should be at the heart of that imagine code. A similar point can be made about the trafficking offences. A more drastic solution is required for the last of my categories: there is no place for the Indecent Representation of Women Act and it must be repealed. The legislature must reconsider its overall approach to addressing crimes against women. Inflating the statute book with new offences only makes it unwieldy and difficult to implement. A leaner code would be more helpful to all stakeholders in the system.

[Special thanks to Mansi Binjrajka for her valuable feedback on an initial draft of this post]

304B IPC and Judicially Created Punishments

I recently came across two decisions of the Supreme Court in the context of Section 304-B IPC - Rajbir & Ors v. State of Haryana [the relevant interim order being reported as AIR 2011 SC 568] and Jasvinder Saini v. State [AIR 2014 SC 841]. Not only do these decisions present an interesting and important question of law, but also raise important questions of how the Supreme Court chooses to exercise its vast powers in our hierarchical judicial system. 

The Cases

In Rajbir, Petitioner No. 1 was convicted inter alia under Section 304-B, and High Court had reduced a sentence of life imprisonment to rigorous imprisonment for ten years. While issuing notice to the First Petitioner for why his sentence ought not to be enhanced to life imprisonment, a Division Bench of the Supreme Court passed some very interesting observations in the interim order: "We further direct all trial courts in India to ordinarily add Section 302 to the charge of Section 304B [IPC], so that death sentences can be imposed in such heinous and barbaric crimes against women".

Not surprisingly, trial courts adhered to these observations and begun to add charges under Section 302 IPC when faced with cases under Section 304B. It was against one such order of additional charges that the Petitioner moved the Supreme Court in Jasvinder Saini. The Supreme Court clarified that there could be no mechanical application of the observations in Rajbir. The observations merely warranted trial courts to investigate the material carefully to discern whether charges under Section 302 could be framed. 

The Legal Issue

The dictum in Rajbir brought forth a difficult situation because of the different ingredients required for proving an offence under Section 302 and Section 304-B IPC. The latter significantly reduces the burden on the prosecution to prove its case; shifting the burden on an accused when the prosecution establishes the facts made relevant by the provision. No such reverse burden is placed by Section 302. But following Rajbir, the prosecution can establish a case under Section 304-B, to actually secure a conviction for both Section 304-B and 302 IPC and possibly merit a death sentence. 

Thankfully, the Court in Jasvinder Saini was aware of this problem and specifically addressed it:

"If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 Indian Penal Code the trial Court can and indeed ought to frame a charge of murder punishable under Section 302 Indian Penal Code, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial, the Court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304B is established".

Thus, the Prosecution was disabled from taking undue advantage of the reverse burden imposed purely to serve the peculiar cases of dowry deaths.

The Policy Conundrum

A larger issue came to the fore in this exchange: the Supreme Court's displeasure at the supposedly lenient penalties carried by Section 304-B. This was not the first occasion where the Court expressed its hesitation, nor will it be the last. Unlike most of us, the Apex Court can do something when it doesn't like the law through Article 141. It doesn't require much argument to convince someone that criminal law and possible deprivation of liberty should not be open to judicial legislation. But history points to the contrary for India, with the Court having to step in to cover legislative lethargy far too often. Elected representatives took 15 years to replace the judicial laws of Vishaka, and have never bothered to incorporate the amendments initially sought by the bench in Velliappa Textiles [its later overruling notwithstanding]. 

With the boundaries of criminal law ever-expanding, one can only wait and see how active a mantle the legislature assumes in settling the disputes raised before the courts.