Jammu and Kashmir High Court: In a case alleging dowry death, Rajnesh Oswal, J., clarified the scope and applicability of Jammu and Kashmir Dowry Restraint Act 1960. Observing that the Trial Court had conducted mini trial at the stage of framing of charge, the Bench expressed,
“The trial court was considering issue with regard to framing of charge under section 304-B RPC but the trial court got swayed by the definition of dowry as defined under the Act of 1960 forgetting the legislative intent behind making the amendment, more when the definition was elastic even for the purpose of Act of 1960 by the use of expression “In this Act unless the context otherwise requires”.
The instant petition had been filed by the mother of the deceased against the impugned order of the Trial Court by which the respondents were discharged of offence under section 304-B RPC and instead charges were framed for offences under sections 306 and 498-A/34 RPC.
The allegations against the respondents were that they used to demand dowry and a car from the deceased and although the amount of two lakhs was paid by the petitioner, neither the atrocities against the deceased came to an end nor the demand for dowry. The allegation was levelled that the husband, father in law, mother in law and brother in law had started beating the deceased and they also snatched her phone which had compelled the deceased to take her own life and she committed suicide.
The grievance of the petitioner was that the Trial Court had altered the charge from 304-B RPC to 306 and 498-A/34 RPC despite the fact that there was abundant evidence on record for framing of charge under section 304-B RPC.
Question of Law
Whether the definition of the dowry as defined under the J&K Dowry Restraint Act 1960 is entirely different vis-a-vis dowry as defined under the Dowry Prohibition Act, 1961 that is applicable to the whole of the India excluding the then State of Jammu and Kashmir?
The controversy had arisen because the definition of the dowry as contained in the Dowry Restraint Act, 1960 as was applicable in the erstwhile State of J&K, was very restrictive in its application whereas the definition of a dowry as contained in the Dowry Prohibition Act, 1961 as applicable in rest of the India except the erstwhile State of Jammu and Kashmir was of wider amplitude.
Observations of the Trial Court
As per definition of dowry as defined under the Dowry Restraint Act, 1960, dowry means any property transferred or agreed to be transferred as a part of any betrothal, marriage, pre-betrothal, post-marriage ceremony and other ceremonies such as Thaka, Rophera, Duphera, Phirsal, Phersuzen and like ceremonies.
The section contemplates the transfer of a property or agreement for transfer of a property as a part of contract in connection with the ceremonies. The Trial Court discharged the respondents on the premise that there was no such contract between the parties as such offence under section 304-B RPC was not made out and further that there was no evidence that the deceased was subjected to cruelty by the accused in relation to the demand of the dowry or a car soon before her death.
Analysis and Findings
Opining that the reasons furnished by the Trial Court for non-applicability of section 304-B RPC just because there was no contract within the meaning of section 2 of Dowry Restraint Act, 1960 were not convincing, the Bench clarified, the section 2 of the Dowry Restraint Act, 1960 begins with expression “In this Act unless the context otherwise requires” meaning thereby that the definition of “Dowry” used in the Act 1960, cannot be put in to straight jacket formula and if the Act of 1960 necessitates or requires, then the word “dowry” can contemplate other situations/persons as well.
If the interpretation of the trial court is accepted, then none other than the husband, his father and mother can be proceeded against under section 304-B RPC and it would do violence not only to the statue but also the legislative intent behind it.
Section 304-B RPC contemplates the death of woman with in the period of 7 years and also the persons who can be proceeded against under section 304-B i.e. husband and his relatives where as the section 2 of the Act 1960 contemplates persons to be proceeded against as party to the marriage or betrothal and father, mother and guardian of the party. The Bench expressed,
“Section 2 of the Dowry Restraint Act, 1960 begins with expression “In this Act unless the context otherwise requires” meaning thereby that the definition of “Dowry” used in the Act 1960, cannot be put in to straight jacket formula and if the Act of 1960 necessitates or requires, then the word ‘dowry’ can contemplate other situations/persons as well.”
Therefore, the Bench concluded that the definition of dowry under the Act, 1960 cannot be given stricter meaning so as to defeat the very purpose of the statute. On the issue, whether there was any evidence on record to justify framing of charge under section 304-B RPC with regard to the demand of dowry, the Bench cautioned that the court is not supposed to hold mini trial at this stage (framing of charges).
Considering that the deceased died because of suicide within the seven years of marriage and the presumption of dowry death was wrongly rejected by the Trial Court on the ground that there was no evidence that the deceased was subjected to cruelty by the accused in relation to the demand of the dowry or a car “soon before her death”, the Bench cited Satbir Singh v. State of Haryana, (2021) 6 SCC 1, to remind the Court that when the legislature used the words, “soon before” they did not mean “immediately before”.
In the light of above, the petition was allowed and the impugned order was set aside with the direction to the Trial Court to frame the charges for commission of offences under Section 304-B, 498-A/34 RPC against the respondent 2 to 4. [Shakuntla Devi v. Union Territory of J&K, 2021 SCC OnLine J&K 1002, decided on 10-12-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
For the Petitioner: Ajay Bakshi, Advocate
For the UT of J&K: Aseem Sawhney, AAG
For Respondents: Satinder Gupta, Advocate