Category: Arora Law Association

Domestic Relationships(Inference of domestic relationship)

What is a Domestic Relationship?

Section 2(f) of the DV Act defines “domestic relationship”, extending its ambit to “relationship in the nature of marriage” and thus extending its protection to women whose marriage are invalid or void under law, or who haven’t gone through a formal marriage with their partners (live-in relationships) but are otherwise as good as a married couple.

SA to bring in Clare's Law for partners to get access to domestic violence criminal history - ABC News

 

What is the Difference between Live-In relationships and Relationships in the Nature of Marriage?

It was cleared by the Supreme Court that merely spending weekends together or one-night stands, exchanging sexual favors in return for financial favors are not considered to be “relationship in nature of marriage”. In Indra Sarma v. V.K.V Sarma, the Supreme Court differentiated between a relationship in the nature of marriage and a live-in relationship. The Supreme Court gave eight factors that should be considered while deciding whether a relationship can be covered as one in the nature of marriage:

  1. Duration of a relationship: a reasonable period of time. It may vary from case to case and fact to fact.
  2. Shared Household
  3. Pooling resources and shared financial arrangements
  4. Domestic Arrangements
  5. Sexual Relationship
  6. Children
  7. Public Socialization
  8. Intention and conduct

Brief History of Domestic Relations Law

relationship

Terms:

Marriage:
The legal union of one man and one woman as husband and wife, united in law for life, or until divorced. The word also signifies the act, ceremony, or formal proceeding by which persons take each other for husband and wife.

Divorce:
The legal separation of husband and wife, effected by the judgment or decree of a court, and either totally dissolving the marriage relation, or suspending its effects so far as it concerns the cohabitation of the parties.

Miscegenation:
A term formerly applied to marriage between persons of different races. Statutes prohibiting marriage between persons of different races have been held to be invalid as contrary to the equal protection clause of the Constitution.

Polygamy:
The offense of having several wives or husbands at the same time, or more than one wife or husband at the same time. Polygamy is a crime in all states.

Family Law in Modern America

Domestic relations law is just another name for family law. Yet, this area of the law extends beyond merely the family. Rather, it deals with the laws governing the familial relationship, which has changed substantially over the years.

The traditional ideal of the “nuclear family,” made up of a married couple raising their 2.2 children, is fading, down from 40 percent of all households in 1970 to less than 25 percent in 2000. Even the U.S. Supreme Court has acknowledged that “demographic changes . . . make it difficult to speak of an average American family.” See Troxel v. Granville, 530 U.S. 57, 64 (2000).

Since this area of law touches on so many substantive subject areas, to be well versed in family law, one must consult various sources to determine the solution to some particularly vexing situations

relationships

Sources of Family Law

Family law emanates from five sources:

  1. Each state’s statutory and constitutional law.
  2. United States Constitution.
  3. Federal law directly addressing family-law matters, ranging from child support enforcement to interstate custody disputes.
  4. Tax and welfare laws, both federal and state, provide or withhold benefits on the basis of marital status, dependency, and family configuration.
  5. Regulation, such as zoning laws (e.g., restricting a large proportion of living space to “single-family” uses).

Yet, despite the variety of sources regulating family law subjects, family law remains overwhelmingly in the hands of the states, less because of constitutional barriers to federal intervention than because of longstanding wariness on the part of federal legislators and judges to enter the thicket of family regulation. Given that marriage involves an institution of public interest, states may regulate this type of conduct.

An example of state regulation involves the formalities involved in obtaining a marriage license. Historically, before couples were granted a marriage license, a blood test or other health examination of both parties (to screen for sexually transmitted diseases) was often required as a prerequisite. Today, the number of states requiring blood tests has declined.

Inference of domestic relationship – Domestic relationship can be inferred between the parties who have shared household and consensual sex.

Violence affects 60% of teen relationships and 150 young people were killed by partners in 13 years | Daily Mail Online

Indra Sarma vs V.K.V.Sarma on 26 November, 2013

In order to examine as to whether there has been any act, omission, or commission or conduct so as to constitute domestic violence, it is necessary to examine some of the definition clauses under Section 2 of the DV Act. Section 2(a) of the DV Act defines the expression “aggrieved person” as follows:

“2(a). “Aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.” Section 2(f) defines the expression “domestic relationship” as follows:

“2(f). “Domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.” Section 2(q) defines the expression “respondent” as follows:

“2(q). “Respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

one couple man and woman domestic violence - De Rebus

b) Domestic relationship between an unmarried woman and a married adult male: Situations may arise when an unmarried adult women knowingly enters into a relationship with a married adult male. The question is whether such a relationship is a relationship “in the nature of marriage” so as to fall within the definition of Section 2(f) of the DV Act.

c) Domestic relationship between a married adult woman and an unmarried adult male: Situations may also arise where an adult married woman, knowingly enters into a relationship with an unmarried adult male, the question is whether such a relationship would fall within the expression relationship “in the nature of marriage”.

relationships

Hindu Marriage Act ,1955 (Divorce and Ground of Cruelty)

                                                                                       SECTION 13

                 Divorce and Ground of Cruelty

The conduct by either of the spouse should be of such a nature which should fall in the ambit of cruelty under the Matrimonial Law. The Court needs to look after all the background and circumstances because of which the couple wants to get separated. Basically, the Court has to investigate the reason for the deterioration of the marriage.

Section 13- Divorce on Ground Of Cruelty – Appeal filing of a complaint by the wife under the Domestic Violence Act itself can never be considered as an act of cruelty unless it is found by positive evidence that it was a false complaint No case made out for decree of divorce on the ground of cruelty – Appeal allowed.

Section 13- Divorce on the ground of cruelty – Appeal When it is not in dispute that husband used to come late at nights, that in her presence husband  himself admitted that the fact that said women to his friend and on basis of said circumstances if the wife has doubted the relationship, it can not be said that such doubt was without any basis case made out for decree of divorce on the ground of cruelty- Appeal allowed

Cruelty for the purpose of Divorce | Lexspeak Legal

What is cruelty?

Cruelty refers to violent acts. However, a mere quarrel, petty outrageous behavior, or differences between the spouses does not come in the ambit of cruelty because this is something that is common in day-to-day married life. Conducts that would amount to cruelty should be grave and severe in nature. Grave violence doesn’t always mean physical violence. Though physical violence is an essential factor that constitutes cruelty but apart from that a continuous process of ill-treatment or mental or physical torture to either of the spouse would also amount to cruelty.

Bombay HC Upholds Divorce On Grounds Of Cruelty Towards Husband Whose Wife Filed False 498A Case [Read Judgment]

Cruelty as a ground for Divorce 

The day to day situations in a matrimonial life creates an ambiguity within the couples to lead their life with each other peacefully. Although there is no such exhaustive definition to what all condition would lead to an offense of cruelty if we go through a case of marital abuse happening around us, then we can conclude of certain conditions such as:

  • The physical violence on the spouse.
  • Having affairs or committing adultery with not just the spouse’s knowledge but even publically accepting it.
  • And also in cases where either of the spouses is falsely accused of committing adultery.
  • The constant manifestation of agony, rage with the addition of yelling or abusing at the spouse.
  • Demoralizing and restricting the spouse by every means to be an independent individual and compelling the spouse to be in a marital relationship where the spouse is left with no other option but to depend on the other.
  • Not disclosing any fact or incident of an acquired sexually transmitted disease while they are already into marital life. And the list goes on.

The conduct by either of the spouse should be of such a nature which should fall in the ambit of cruelty under the Matrimonial Law. The Court needs to look after all the background and circumstances because of which the couple wants to get separated. Basically, the Court has to investigate the reason for the deterioration of the marriage.

Grounds of Divorce as per The Hindu Marriage Act

Adultery

The concept of Adultery may not be considered an offense in many countries. But as per the Hindu Marriage Act, in the matrimonial offense, adultery is considered as one of the most important grounds for seeking a divorce. Adultery means the consensual and voluntary intercourse between a married person with another person, married or unmarried, of the opposite sex. Even the intercourse between the husband and his second wife i.e. if their marriage is considered under bigamy, the person is liable for the Adultery.

Essentials of Adultery

  1. One of the spouses involved in the intercourse with another person, married or unmarried, of the opposite sex.
  2. Intercourse should be voluntary and consensual.
  3. At the time of the act, the marriage was subsisting.
  4. There must be sufficient circumstantial evidence to prove the liability of another spouse.

Cruelty

The concept of cruelty includes mental as well as physical cruelty. Physical cruelty means when one spouse beats or causes any bodily injury to the other spouse. But the concept of mental cruelty was added as the spouse can also be mentally tortured by the other spouse. Mental Cruelty is a lack of kindness that adversely affects the health of the person. Well it is easy to determine the nature of physical cruelty but difficult to say about mental cruelty

  1. What is considered as Mental Cruelty against Husband by wife:
  2. Humiliating the husband in front of his family and friends.
  3. Undertaking the termination of pregnancy without husband consent.
  4. Making false allegations against him.
  5. Denial for Martial Physical Relationship without a valid reason.
  6. Wife having affair.
  7. Wife living an immoral life.
  8. The constant demand for money.
  9. Aggressive and uncontrollable behavior of Wife.
  10. Ill-treatment to the husband’s parents and family.Cruelty to Women [S. 498-A IPC and allied sections] | SCC Blog

What considered as Mental Cruelty against wife by Husband

  1. False accusation of adultery.
  2. The demand for dowry.
  3. Impotency of Husband.
  4. Force to abort the child.
  5. The problem of drunkenness of husband.
  6. Husband having affairs.
  7. The husband lives an immoral life.
  8. Aggressive and uncontrollable behavior of the husband.

Protection of women from (Domestic Violence)

                                                           Domestic Violence

For the purpose of this Act, any act, omission or omission or conduct of the respondent shall constitute domestic violence’s in case it-:

a) harms of injuries or endangers the health safety, life, limb or well being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse; or

b) harasses, harms, injuries or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or any other property or valuable security; or

c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

d) otherwise injuries or cause harm, whether physical or mental, to the aggrieved person.

#protect girlsDomestic violence spikes during lockdown; cops set up special cell- The New Indian Express

For the purpose of this Section,-

(I) ” physical abuse ” means any act or conduct which is of such a nature as to casual bodily pain, harm. or danger, to life, limb, or health or impair the health or development of the aggrieved person and includes sexual assault, criminal intimidation, and criminal force ;

(II) ” sexual abuse ” includes any conduct of sexual nature that abuses, humiliates, degrades, or otherwise violates the dignity of a woman;

(III) ” verbal and emotional abuse ” includes-

a) insults, ridicule, humiliations, name-calling, and insults or ridicule specially with regard to not having a child or male child; and

b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested

(IV).” economical abuse ” includes –

a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a Court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and children, if any, stridhan , property, jointly or separately owned by the aggrieved person, payment of rental related to the shard household and maintenance;

b) disposal, of house, hold effects any alienation of assets whether moveable or immovable valuables, shares, securities, bond and the like or the other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property   jointly or separately held by the aggrieved person; and

c) prohibition or restriction to continued access to resources or facilities with the aggrieved person is entitled to use or enjoy by virtue of domestic relationship-building access to the shared household.

For the purpose of determining whether any act, omission, commission, or conduct of the respondent constitutes ”domestic violence ” under this section, the overall fact and circumstances of the case shall be taken into consideration

Domestic relationship- Requirement of immediate residence is not necessary -No specification in Section 3 that the applicants had been conducted only at the time when the complaint was reading in the home of her husband or partner.

Home isn't a safe space for victims of domestic violence - Comment - Images

Domestic Violence -Continuing offense – Acts of Violence’s continuing before the commencement of the Act and after commencement -Assault by husband and not providing medical treatment after getting legal notice -Threating my husband over the telephone with dire consequence and also denial in taking back wife and her daughter and not providing maintenance -Domestic Violence not only include the mental harassments through verbal or emotional abuse also includes the economic abuse -Action was continuing once, hence application under the Act Maintenance in Law.

Taking your breath away - why strangulation in domestic violence is a huge red flag | MobileODT

Juvenile Justice by Arora Law Association

                             Juvenile Justice ( Care and Protection of Children )

                                                                       Juvenile Justice

An Act to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation.

Juvenile Justice Act – An Overview and New Challenges to it

#justice #juvenile #careandprotect

Whereas the Constitution has, in several provisions, including Clause (5) of Article 15, Clauses  (e) and (f) of Article 39, Articles 45 and 47 imposes on the State a primary responsibility of ensuring that all need of children are met and their basic human rights are fully protected :

And whereas, the General Assembly of the United Nations has adopted the convention on the rights of the child on the 2oth November 1989;

And whereas, The Convention on the Rights of the Child has prescribed a set of child victims, to the extent possible, without resorting to judicial proceedings;

And whereas, The Government of India has ratified the Convention on the 11th December 1992;

And whereas, it is expedient to re-enact the existing law relating to juveniles bearing in mind the standards prescribed in the Convention on The Rights of the Child, the United Nations Standard

Minimum Rules of the Administration of Juvenile Justice,1985 the united nations rules for the protection of juveniles deprived of their liberty and all other relevant international instruments

Be it enacted by Parliament the Fifty-First  Year of the Republic of India as follows:-
juvenile justice

In the context, the following further proposals have been made-

(i) to lay down the basics principles for administering justice to a juvenile or the child in the Bill;

(ii) to make the Juvenile  system meant for a Juvenile or child more appreciative of the development needed in comparison to the criminal justice system as applicable to adults:

(iii) to bring the Juvenile law in conformity with  the United Convention on the Rights of the Child ;

(iv) to prescribe a uniform age of eighteen years for both boys and girls ;

(v) to ensure speedy disposal of cases by the authorities envisaged under the Bill regarding Juvenile or the Child Bills regarding Juvenile or the Child within a time limit of four months ;

(vi) to spell out the role of the State  as a facilitator rather than doer by involving voluntary organizations and local bodies in the implementation of the prposed legislation.

(vii) to create special juvenile police units with a humane approach through sensations and training of police personnel:

(viii) to enable increased accessibility to a juvenile or the child by establishing Juveniles Justice Boards and Child Welfare Committees and homes in  each district or group of districts;

(ix) to minister the stigma and in keeping with the development needs of the Juvenile or the child, to separate the Bill into two parts – one for the juveniles in conflict with the law and the other for the Juveniles or the Child in need to care and protection ;

(x) to provide for effective provisions and various alternatives for rehabilitation and social reintegration such as adoption, foster care, sponsorship, and aftercare of abandoned , destitute , neglected, and delinquent juvenile and child.

The Bills seeks to repeat and re-enact the Juvenile Justice Act, 1986 (53of 1986) with a view to achieving the above objects.

Short Title, extent, (commencement and application) –

(1) This Act may be called the Juvenile Justice (care and protection of children ) Act 2000,

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force o such date as the Central Government may, by notification in the Official Gazette, appoint.

(4) Notwithstanding anything contained  in any other law for the time being in force, the provisions of this Act shall apply to all classes involving detention, prosecution, penalty, or sentence of imprisonment of juveniles in conflict with law under such other laws.

Continuation of inquiry in respect of juvenile who has ceased to be a Juvenile.

Where an inquiry has been initiated against Juvenile in conflict with Law or a child in need of care and protection and during the course of such inquiry the Juvenile or the child ceases to be such, then,  notwithstanding anything contained in this Act or in any such other Law for the time being in force, the inquiry may be continued and orders may be made in respect of such person as if such person had continued to be a Juvenile or a child .Juvenile In Conflict With Law

Juvenile Justice Board – Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) the commencement of the Juvenile Justice  ( Care and Protection of Children)Amendment Act, 2006, by notification in the Official Gazette, constitute for every district one or more Juvenile Justice Board for exercising the powers and discharging the duties conferred or imposed on such Boards in relation to juveniles in conflict with law under this Act.

Large declines seen in teen substance abuse, delinquency – Washington University School of Medicine in St. Louis

{2} A Board shall consists of a Metropolitan Magistrate or a Judicial Magistrate of the first class, as the case may be, and two social workers of the first class, as the case may be, and two social workers of whom at least one shall be a woman, forming a Bench, and every such Bench shall have the powers conferred by the Code of Criminal Procedure, 1973 (2 of 1974), on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate on the Board shall be designated as the principal Magistrate.

{3} No Magistrate shall be approved as a member of the Board unless he has special knowledge or training in child psychology or chile welfare and no social worker shall be appointed as a member of the Board unless he has been actively involved in health, education, or welfare activities pertaining to children for at least seven years.

{4} The terms of Office of the members of the Board and the manner in which such member may resign shall be such as may be prescribed.

{5} The appointment of any member of the Board may be terminated after holding an inquiry, by the State Government,

{i} he has been found guilty of misuse of power vested under this Act,

{ii} he has been convicted of an offense involving moral turpitude and such conviction has not been reversed or he has not been granted a full pardon in respect of such offense

{iii} he fails to attend the proceedings of the Board for consecutive three months without any valid reason or he fails to attend less than three – a fourth of the sitting in a year.Why Indias juvenile justice system is fractured - Firstpost

Dowry Death

                                                                                                 Dowry Death

Awaking of this collective consciousness is the need of the day. Change of heart and attitude is needed. If men were to regain their harmony with others and replaced hatred, greed, selfishness, and anger by mutual love, affection, belief, and understanding, and if women were to receive education and become economically independent of this pernicious social evil dying a natural death may not remain a dream only.

Whereas in the General sense dowry death means dory+ death a death due to or in nexus of the dowry.

Here is the statement of Pandit Jawahar Lal Nehru ( on Dowry Prohibition Bill, 1961 ) on 6th May 1961:

” Legislation can’t be by itself solve the deep-rooted social problem. One has to approach them in another way too, but legislation is necessary and essential…………………………..”

Mahatma Gandhi once said:

” As a bride the queen of the household. the Ardhangi, the Sadharmini, the barye and the equal partner with her husband has become the worst target of social and economic exploitation in demands of dowry.’

” Dowry Death is a deep-rooted social evil. It is an offence, brutal and barbaric murder, it is generally committed in the house wall from Satiprathan to the bride burning the Indian Society has witnessed a drastic and dynamic cultural change in family relationships.

Dowry death case analysis HARSWAROOP AND OTHERS VS. STATE OF RAJASTHAN

Death of A Woman For Dowry - Odisha News Insight

During these long years to modern civilization, human generations have travelled from inequality. Alas ! in the long period of development none has been able to control the bargain or dowry or dowry mince.”

The government has come forward with legislation from time to time to protect women.

In 1961, the Dowry prohibition Act (Act 28 of 1961) was passed, in which talking and giving dowry was prohibited, by the Criminal Law ( Amendment Second ), Act 1983 (Act 46 of 1983) Chapter xx, was introduced. In the Indian Penal Code with Section 498 A

A new offense and also Amended Section 174 of Criminal procedure Code (Act 46 of 1983) Section 3), to secure post-mortem in case of suicided or death of women within seven years of the marriage keeping in view the legislation has also amended and inserted Section 113- A and 113-B in Indian Evidence Act for raising the presumption of dowry judicial death and dowry death. Apart from the legislation the dowry death cases have increased with fast speed.

Even though for the eradication of this social evil, effective steps can be taken by society itself. Our society is the witness of differences between the boys and girls for the purpose of marriage. It makes the dowry system thrive. Lack of education and economically dependent women and our social structure have encouraged greedy criminals. It has also been seen that when the daughter complains of harassment and expresses fear of her life the parents pressurize her to remain within volant marriage, knowing that it may result in her death. The parents do not take the pain of a married daughter and they send her back to the matrimonial home without taking any precautions.

Unsuitable match between the party in respect of education, personality, physical figure and structure, social standard and the very important financial standard is the main factors of the abnormal death of women
The courts must also display greater sensitivity to criminality ad avoid all accounts of” soft justice” as there is so much chance or implication of an innocent person.
It was observed by Orissa High Court.

Dowry And Dowry Death

” Court is called upon to adjudicate the complex question whether in-laws have become ” outlaws” and have directly or indirectly contributed to snuff out the life of a woman. The greedy perpetrators of crime must be punished.

As ” dowry death ” are the result of the disgraceful act but the courts have to be careful in shifting the evidence to see whether the accusation are true or are aimed at the false implication .”

In the series of offenses the dowry death inserted as after  Section 304- B in the Indian penal Code. The legislature realizing the gravity of the situation has amended laws and provided for stringent punishment in such cases and even permitted the raising of presumption in such cases and even permitted the raising of a presumption against an accused in cases of unnatural death of brides within the first seven years of marriage and Section 304- B was inserted in Indian Penal Code 1860.

Is Dowry’s death a bailable and a cognizable offense?

Bailable Offences- Offences in which permission from the court to release the arrested person is not required. The arrested person by fulfilling the necessary requirements can be released and the police cannot refuse the person.

Cognizable Offences- Offence in which the police have the authority to arrest any person without any warrant and also have the authority to start an investigation with or without any permission of the magistrate by filing FIR.

Misuse of the provision and its Constitutionality

Many fake cases have been filed in misusing the provision for its own motive or in order to give torture to the husband’s family. The woman should not misuse the very own Section which is made to protect her. However, a mere possibility to misuse the provision should not invalidate the provision. Hence Section 498A is Constitutional.

Presumption as to Dowry Death

Section 113B of the Indian Evidence Act, 1872 states about the Presumption as to Dowry Death. If a woman dies in relation to any demand for dowry and it was shown that soon before her death she was subjected to harassment or cruelty by any person. Then the court will assume such a person responsible for her death.

Conclusion

Practicing in the name of a so-called tradition that is dowry is seen existing in every place in India whether rural or urban. The menace of dowry custom has reached far down in society. Despite making so many provisions practicing demand for dowry still not stopped. No matter how many laws the government makes it still can’t eradicate it fully from society. To fully eliminate it the people of society have to understand that it is wrong.

By enacting strict laws in society it can be controlled but can’t put an end to it because of the unawareness of the laws in the society and also no support from the families. Even if the girl complains to her parents about the torture she faces by the husband’s family the parents of the girl opt to compromise instead of bringing it to the light. The laws and support from society together can solve the issue.

State Of Himachal Pradesh vs Nikku Ram And Ors on 30 August 1995

In this case, the couple was married and after 5-6 months of their marriage husband, sister-in-law and mother-in-law started taunting the wife of the husband for bringing less dowry. They started demanding several things from her which was not fulfilled by her. The prosecutor filed a case for torturing the deceased and subjected her to cruelty in order to make her bring more dowry.

Gradually the torture on her increased so much that the mother-in-law hit her with a sharp blade on her forehead causing a deep cut over there.

She was unable to tolerate the ill-treatment by her husband and by her in-laws on her, as a result, she committed suicide by consuming naphthalene balls and died.

During the investigation, the sharp-edged blade was recovered and after the completion of the investigation husband, sister-in-law and mother-in-law were charged under Section 304-B, 306, and 498-A of the Indian Penal Code. And the case against them was registered.

The Court after examining all the evidence, was held that persons who are charged under Section 304-B, 306, and 498-A will be free from these criminal charges as the prosecution failed to produce the evidence against them and only mother-in-law will be held guilty under Section 324 of the Indian Penal Code as voluntarily causing hurt to her daughter-in-law. And imposed a fine of Rs. 3,000, failing to pay the fine will attract simple imprisonment for 1 month.

Issue 

Whether she was subjected to any cruelty or harassment soon before her death and the same was in connection with the demand for dowry.

Whether the demand asked for a refrigerator, scooter, etc is a desire to acquire or a dowry demand.

Judgment

The learned counsel of the appellant argued that the mere desire to acquire a refrigerator, scooter, etc. should not come within the ambit of demanding dowry and cannot be held as an offense as this would not come under the definition of dowry under Section 2 of Dowry Prohibition Act, 1961 with Section 304B and Section 498A of Indian Penal Code.

It was held by the Court that Demand for dowry itself is an offense under Section 304B and to be an offense under this it does not requires that an agreement for it should be necessarily present.

The court also held him guilty under Section 498A subjecting her to cruelty or harassment by passing comments on her looks and also taunting her to bring more dowry.

Pawan Kumar appellant No.1 under Section 304B was sentenced to 7 years of rigorous imprisonment and liable to pay a fine of Rs 500 and in default of paying the fine 6 months will be added to his imprisonment.

And under 306 IPC was sentenced to 4 years of rigorous imprisonment and a fine of Rs 200 and in default of the payment 3 months will be added to his imprisonment and also held him guilty under Section 498A sentenced him for 2 years rigorous imprisonment and Rs 200 fine in default more 3 months to his imprisonment will be added.

All the sentences should run simultaneously.

Appellant No.2 and appellant No. 3 the court here gave them the benefit of doubt and acquitted them.

Cruelty

Section 498A of the Indian Penal Code defines cruelty.

If a husband or any relative of him causes mental or physical harm to a woman then they will be held punishable under this section.

Punishment will be imprisonment for three years and also will be liable to pay the fine.

Essentials 

  • Any willful conduct on a woman to cause her injury or to instigate her to commit suicide.
  • Harassing a woman or any of her relatives in order to make them fulfill their unlawful demands.

The State Of Punjab vs Gurmit Singh on 2 July 2014

In this case, the term ‘relative’ was analyzed.

The respondent Gurmit Singh was charged under Section 304B of IPC that he is the reason for the death caused to Guruji Kaur wife of Paramjit Singh. The respondent argued that he could not be charged with the offense of Section 304B as he is not the relative of the deceased.

The respondent was the brother of Paramjit’s aunt and cannot be said that he is the relative of the deceased’s husband.

It was held by the court that he cannot be charged under Section 304B as he is not the relative either by blood, adoption, or by the marriage of the deceased’s husband. But the court said that he can be tried under another Section for the offense.

Section 498A in its definition talks about relative and by this case, it has analyzed the word ‘relative’ and it means a person who is a relative by blood, adoption, or by marriage others will not fall under the category of relatives and cannot be held guilty under Section 304B but can be held guilty under other section if they have committed any other offense.

Since time immemorial we have seen so many offenses against women, where they are tortured and one such offense is dowry death. We all must have heard many cases related to the death caused to a woman for the demand for dowry. It’s very disgraceful for a society where a woman dies for not being able to give dowry and also very shameful where dowry is still being practiced.

Dowry’s death is defined in Section 304B of the Indian Penal Code, 1860. Also Section 113B of the Indian Evidence Act,1872 states the presumption as to dowry death.

Essential Ingredients

  • Death should be caused by burns or bodily injury or by any other circumstances.
  • Death must occur within seven years of marriage.
  • It must be revealed that soon before her marriage she was exposed to cruelty or harassment by her husband or any other relative.
  • The cruelty or harassment of her should be in connection with the demand for dowry.

Demand for Dowry

As per Section 2 of the Dowry Prohibition Act,1961 which says that dowry is any property or valuable security directly or indirectly agreed to be given by-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties.

Various Causes to demand dowry

From the ages, we have seen the demand for dowry but to stop dowry the demand for it should be understood properly by society so that it can prevent its practice.

The various causes are-

In the name of tradition

We must have seen people calling it a tradition or a custom to be followed in marriages taking place. In the name of tradition which has to be followed by the bride’s family give valuables to the groom’s family.

The groom’s family ask for a dowry

The groom’s family voluntarily asks for dowry by giving reasons that their son is placed in a good job and they have a lot of reputation etc.

Thinking that it will build a reputation in society

Earlier people had a preconceived notion that giving dowry will build up a good reputation in society. With time it became a show-off concept in society and people started comparing it with others.

Illiteracy

In underdeveloped areas, the literacy rate is very less and people are unaware of the laws relating to dowry, which led to the increased demand for dowry by the others.

Though dowry is also practiced by the literates in an underdeveloped area, it becomes a bit more difficult to make them understand the laws.