(This is a guest post by Shikhar Aggarwal)
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.
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.
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 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.
Clarity and a sound legislative policy would be the first step in this rather arduous journey.