No agreement for giving or taking dowry is required to prove the offence of dowry death

The Supreme Court has ruled that no agreement for giving or taking dowry is required to prove the offence of dowry death.

While upholding the conviction and sentence of father-in-law for setting afire his daughter-in-law for dowry, a bench comprising Justices Arijit Pasayat and Mukundakam Sharma, in the judgement in Prem Kumar vs State of Rajasthan dated 7/01/2009, noted, 'While interpreting section 304B of the IPC (Dowry death), if courts insist on such agreements than virtually no offender can be booked.' The apex court further noted, 'Hardly, any offender would come under the clutches of law.' Prem Kumar, the father-in-law, was acquitted by the trial court.

In order to attract Section 304B IPC, the following ingredients are to be satisfied.

i) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances.

ii) Such death must have occurred within 7 years of the marriage.

iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband; and

iv) Such cruelty or harassment must be in connection with the demand of dowry.


Sections 304B and Section 498A read as follows:

"304-B. Dowry Death- (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.

Explanation - For the purpose of this sub-section `dowry' shall have same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."

"498-A: Husband or relative of husband of a woman
subjecting her to cruelty- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation - For the purpose of this section `cruelty' means -

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit sucide 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 term "dowry" has been defined in Section 2 of the Dowry

Prohibition Act, 1961 (in short `Dowry Act') as under:-


"Section 2. Definition of `dowry' - In this Act, `dowry'
means any property or valuable security given or agreed
to be given either directly or indirectly -


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

(b) by the parents 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, but does not
include dower or mehr in the case of persons to whom
the Muslim personal law (Shariat) applies.

Explanation I- For the removal of doubts, it is hereby
declared that any presents made at the time of a marriage
to either party to the marriage in the form of cash,
ornaments, clothes or other articles, shall not be deemed
to be dowry within the meaning of this section, unless
they are made as consideration for the marriage of the
said parties.

Explanation II- The expression `valuable security' has
the same meaning in Section 30 of the Indian Penal
Code (45 of 1860)."


Explanation to Section 304-B refers to dowry "as having the same meaning as in Section 2 of the Act", the question is : what is the periphery of the dowry as defined therein ? The argument is, there has to be an agreement at the time of the marriage in view of the words "agreed to be
given" occurring therein, and in the absence of any such evidence it would not constitute to be a dowry. It is noticeable, as this definition by amendment includes not only the period before and at the marriage but also the period subsequent to the marriage. This position was highlighted in Pawan Kumar and Ors. v. State of Haryana (1998 (3) SCC 309).

Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows:-

 "113-B: Presumption as to dowry death- When the
question is whether a person has committed the dowry
death of a woman and it is shown that soon before her
death such woman has been subjected by such person to
cruelty or harassment for, or in connection with, any
demand for dowry, the Court shall presume that such
person had caused the dowry death.
Explanation - For the purposes of this section `dowry
death' shall have the same meaning as in Section 304-B
of the Indian Penal Code (45 of 1860)."


The presumption shall be raised only on proof of the following essentials:
(1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC).

(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.

(4) Such cruelty or harassment was soon before her death.


A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the `death occurring otherwise than in normal circumstances'. The expression `soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates.
Evidence in that regard has to be led by prosecution. `Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the
proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression `soon before her death' used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression `soon before' is not defined. A reference to expression `soon before' used in Section 114. Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods `soon after' the theft, is either the thief or has received the goods knowing them to be stolen, unless he can
account for his possession. The determination of the period which can come within the term `soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression `soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.

Rajasthan High Court, however, reversed the order of the acquittal and held the appellant guilty of the killing of his daughter-in-law by setting her ablaze.

The apex court dismissed the appeal of the accused and held that as per section 3 and 4 of the Dowry Prohibition Act both giving and taking dowry is an offence.