The rumpus over the dowry death law

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The rumpus over the dowry death law

December 26, 2007

The Telegraph

Calcutta, India

 

The Law Commission has concluded that Section 304-B on

dowry death needs no amendment, excepting for an

increased tenure of punishment. The legal fraternity,

however, is divided on this. Shabina Akhtar reports

 

All that Urmila Devi wanted was a happy married life. She

left her paternal home with dreams of lifelong

companionship with her husband Pritam. Hailing from a

society that often refers to a girl as Lakshmi (the harbinger

of wealth), she was expected to do exactly that - Urmila's

parents were asked to give a certain amount of cash and a

motorbike as dowry. When they failed to amass the money,

both her in-laws and her husband began torturing her

physically and mentally. Eventually, within a year-and-a-

half, the young bride was burnt to death.

 

Urmila's is not the only dowry case in India. Every day sees

at least 18 dowry deaths in the country. Nevertheless, this

case is of immense importance as it highlights the fact that

the existing law on dowry death - Section 304-B of the

Indian Penal Code (IPC) - needs amendment.

 

According to Section 304-B, a death can be categorised as a

" dowry death " and a woman's husband and in-laws deemed

to have caused her death only if certain conditions are met.

First, if the death of a woman is caused by any burns or

bodily injury or occurs unnaturally. Secondly, if the death

occurs within seven years of her marriage. Thirdly, the

woman is subjected to cruelty or harassment by her husband

or in-laws just before her death. And fourthly, cruelty or

harassment has been for, or in connection with, any demand

for dowry. The section further states that the offence is a

non-bailable one and that the guilty would get not less than

seven years of rigorous imprisonment, which could be

extended to life imprisonment or death penalty, depending

on the nature of the case.

 

Noting the brutality of Urmila's murder, Allahabad High

Court judge M. Katju J. sent a copy of his statement along

with the case details to the law minister and the home

minister of India, seeking an amendment to the law. He said

in his forwarding letter, " In my opinion dowry death is

worse than murder but surprisingly there is no death penalty

for it whereas death penalty can be given for murder. In my

opinion the time has come to amend the law and death

sentences should also be permitted in cases of dowry

deaths. " The National Commission for Women (NCW), too,

backed this demand. Following this, in 2003, the Law

Commission of India was assigned the task of drafting a

recommendation to initiate an amendment.

 

The commission had two options before it. First, to examine

the subject of dowry death and frame new laws related to it.

Second, to confine its consideration only to the point that

was referred to it - the amendment of Section 304-B of the

IPC.

 

" We chose the second as the issue was of making death

penalty compulsory. Had we chosen the first, the issue

would have lost its importance, " explains D.P. Sharma,

member secretary, Law Commission of India, New Delhi.

The commission finally concluded that Section 304-B of the

IPC didn't need to be amended. However, it raised the

tenure of punishment from seven to 10 years of rigorous

imprisonment. This judgement has left the legal fraternity

divided and sparked off a debate.

 

" Section 304-B was created to deal with cases where a bride

met an unnatural death within seven years of marriage. It's

an exhaustive section taking all details into account and

offers apt punishment, with proper consideration being

given to the facts available, " says Sharma. However, if a

case of dowry death falls in the ambit of murder, the death

penalty is legally permissible, as per the guidelines laid

down by the Supreme Court, he explains.

 

Calcutta High Court advocate Joymalya Bagchi is of the

same opinion. " If the Law Commission says no to the

amendment, it must have valid reasons for saying so. The

existing section (304-B) is good enough to tackle the

menace and requires no amendment, " he says.

 

Asha Gaurisaria, advocate, Calcutta High Court, also seems

content with the report. She says, " I am relieved that no

amendment has been made to Section 304-B of the IPC. "

However, she didn't seem to be pleased with the report in

totality. " The tenure of punishment shouldn't have been

raised. We shouldn't forget the fact that these laws are often

misused to harass in-laws, " she complained. But has Section

304-B of the IPC ever been misused? " As a law enforcer, I

have never come across a single case where Section 304-B

of IPC has been misused, " confirms a senior police official.

 

The Law Commission has also been criticised for its

conclusion. Some prosecutors seem a bit ruffled by it.

" Section 304-B of the IPC is a comprehensive law and

many would say that it need not be amended. But I, as a

prosecutor, would have definitely liked it had the

punishment been extended to life imprisonment, " says Taj

Mohammad, deputy director, public prosecution, South 24-

Parganas.

 

" If the death penalty or life imprisonment is the punishment

for murder cases, why not the same for a dowry death? How

can a person get away with only 10 years of punishment for

a dowry death, " asks a senior police official.

 

But people like Gaurisaria beg to differ. " Section 304-B is a

dangerous law, because one doesn't need to prove one's

crime. It's presumed that the accused is guilty. So if an

innocent is framed, any extension of imprisonment would

mean more injustice, " she argues.

 

A number of laws like the Dowry Prohibition Act of 1961

(often touted as toothless) and Section 113-A and Section

113-B in the Evidence Act exist to tackle the problem of

dowry. But none of them is good enough. For proof, look at

National Crimes Record Bureau (NCRB) statistics.

According to the NCRB's annual report, there were 6,787

dowry death cases in 2005, a number large enough to make

any civilised society hang its head in shame. While Bihar

and Madhya Pradesh topped the list, the State Crimes

Record Bureau, West Bengal, recorded at least 445 dowry

deaths in 2006.

 

" Yes, it's true that the accused has to prove his innocence.

One needs to remember that these crimes are generally

committed in the privacy of residential homes. So getting

independent or direct evidence is not an easy task. Often this

lack of evidence is used by the defence to bail out the

accused with less punishment, " explains Taj. " Don't you

think that the lack of any direct link between the husband

and the woman's death indicates that the act is a more

planned and calculated one? Even the motive is clear -

demand for dowry. So why not a more rigorous

punishment, " he asks.

 

So does this mean that 10 years of imprisonment isn't fine?

" Perhaps not, " argues Amitava Ganguly, special prosecutor,

Government of India. He says, " Only stringent

implementation of the existing laws can restrain people

from committing such crimes. I agree that there are parents

who seek financial compensation to withdraw a case, but for

the sake of those seeking justice I guess the punishment

needs to be increased to a life sentence. "

 

Whatever the debate may be - in favour or against the

decision of the commission - perhaps it's only fair that the

state shouldn't be entrusted with taking the life of an

accused, though the law of the land approves of it in certain

cases. Nevertheless, those found guilty need to be punished

in such a way that others learn a lesson and are forced to

think a thousand times before striking a matchstick to set

ablaze another Urmila.

 

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