Legal RoundUpSupreme Court Roundups

“Merit is not solely of one‘s own making. The rhetoric surrounding merit obscures the way in which family, schooling, fortune and a gift of talents that the society currently values aids in one‘s advancement.”

Neil Aurelio Nunes v. Union of India, 2022 SCC OnLine SC 75


STORY OF THE MONTH


“Reservation is not at odds with merit”; Here’s why SC upheld OBC reservation in NEET PG and UG Admissions in AIQ quota

In a detailed judgment, the bench of Dr. DY Chandrachud and AS Bopanna, JJ has upheld the Constitutional validity of the reservation for OBC candidates in the AIQ seats for PG and UG  medical and dental courses and noticed that while an open competitive exam may ensure formal equality where everyone has an equal opportunity to participate, however, widespread inequalities in the availability of and access to educational facilities will result in the deprivation of certain classes of people who would be unable to effectively compete in such a system.

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UNMISSABLE STORIES


COVID-19/Omicron surge yet again forces Supreme Court to extend period of limitation for filing of cases

After the Supreme Court Advocates-on-Record Association approached the Court in light of the spread of Omicron, the new variant of the COVID-19 and the drastic surge in the number of COVID cases across the country, the 3-judge bench of NV Ramana, CJ and L. Nageswara Rao and Surya Kant, JJ restored the order dated 23.03.2020 and directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings.

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PM Modi Security Lapse: “War of words no solution”; SC appoints Committee headed by Justice Indu Malhotra to look into the matter

After a massive security lapse that left Prime Minister Narendra Modi stuck on a highway in Punjab for 20 minutes on January 5, 2022, the 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has formed a committee to be chaired by Justice Indu Malhotra, former Supreme Court Judge.

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NEET 2021-22: Supreme Court allows Counselling with 27% Quota for OBCs and 10% Quota for EWS in All India Quota

 Considering the urgent need to commence the process of Counselling, the bench of Dr. DY Chandrachud* and AS Bopanna, JJ, has directed that counselling on the basis of NEET-PG 2021 and NEET- UG 2021 shall be conducted by giving effect to the reservation as provided by the notice dated 29 July 2021, including the 27 per cent reservation for the OBC category and 10 per cent reservation for EWS category in the All India Quota seats.

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Suspension of 12 Maharashtra BJP MLAs for one year “grossly illegal”; worse than expulsion, disqualification or resignation

In a big relief to the 12 BJP MLAs who were suspended by the Maharashtra Legislative Assembly, by resolution dated 05.07.2021, for a period of 1 year due to “indisciplined and unbecoming behavior resulting in maligning the dignity of the House”, the 3-judge bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ has held that the said resolution is unconstitutional, grossly illegal and irrational to the extent of period of suspension beyond the remainder of the concerned (ongoing) Session.

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“Can’t allow Devas and its shareholders to reap the benefits of their fraudulent action”; SC upholds NCLAT’s order to wind up Devas  

“If the seeds of the commercial relationship between Antrix and Devas were a product of fraud perpetrated by Devas, every part of the plant that grew out of those seeds, such as the Agreement, the disputes, arbitral awards etc., are all infected with the poison of fraud.”

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Arcelor Mittal Nippon Steel India Limited to pay the purchase tax of Rs. 480 Crores as SC sets aside Gujarat HC verdict

In a major blow to Essar Steel Limited, now Arcelor Mittal Nippon Steel India Limited), the bench of MR Shah* and Sanjiv Khanna, JJ has set aside the Gujarat High Court verdict wherein it was held that Essar was entitled to the exemption from payment of purchase tax as per the Notification dated 05.03.1992, which was issued under Section 49(2) of the Gujarat Sales Tax Act, 1969. As a result Essar will now have to pay the purchase tax of Rs.480.99 crores.

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Dowry Death| Woman meting out cruelty to another woman deserves no leniency. Mother-in-law must protect daughter-in-law, not harass her: SC

“Being a lady, the appellant, who was the mother-in-law, ought to have been more sensitive vis-à-vis her daughter-in-law.”

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Can Demand of Money for Construction of a House be Treated as a Dowry Demand? SC answers in a 2002 case where a 5-months pregnant woman set herself on fire

“A push in the right direction is required to accomplish the task of eradicating this evil which has become deeply entrenched in our society.”

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Pension is not a bounty; Lack of financial resources no excuse for taking away vested rights by way of retrospective amendments

The bench of Ajay Rastogi and Abhay S. Oka, JJ has held that an amendment having retrospective operation which has the effect of taking away the benefit already available to the employee under the existing rule indeed would divest the employee from his vested or accrued rights and that being so, it would be held to be violative of the rights guaranteed under Articles 14 and 16 of the Constitution.

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Cal HC had no jurisdiction to quash CAT Principle Bench’s transfer order in Alapan Bandhopadhyay Case, holds SC, based on this Constitution Bench Law holding ground since 1997

The 2-judge bench of AM Khanwilkar and CT Ravikumar, JJ has reiterated the position laid down by the Constitution Bench in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, that any decision of such a Tribunal, including the one passed under Section 25 of the Administrative Tribunals Act, 1985 could be subjected to scrutiny only before a Division Bench of a High Court within whose jurisdiction the Tribunal concerned falls.

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EXPLAINERS



MORE STORIES


“Not a case of lack of promotional opportunities”; No financial upgradation to employee refusing regular promotion for personal reasons

The bench of R. Subhash Reddy and Hrishikesh Roy*, JJ has held that if a regular promotion is offered but is refused by the employee before becoming entitled to a financial upgradation, she/he shall not be entitled to financial upgradation only because she/he has suffered stagnation.

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Life cannot be breathed into the stillborn charge memorandum; SC holds where prior approval is the rule the defect cannot be cured by post-facto approval

“What is non-existent in the eye of the law cannot be revived retrospectively.”

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Cheque gets deposited to the account of account holder with strikingly similar name. Bank blames customer. Read why SC was “surprised” at NCDRC’s ruling

In an interesting case where one SBI account holder was left with a balance of Rs. 59/- only in his account due to the existence of another bank account with strikingly similar name in the same branch, the bench of Sanjiv Khanna and Bela M. Trivedi*, JJ has set aside the “highly erroneous” impugned order passed by the National Consumer Disputes Redressal Commission solely relying upon the suo-moto report called for from SBI during the pendency of the revision application.

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Reservation in promotion: The 6 issues settled by Supreme Court on collection of quantifiable data on inadequacy of representation

The 3-judge bench of L. Nageswara Rao*, Sanjiv Khanna and BR Gavai has answered 6 crucial questions in relation to quantifiable data showing inadequacy of representation in promotional posts.

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Delinquent employee doesn’t have an absolute right to be represented in departmental proceedings by the agent of his choice

In a case where the Rajasthan High Court had permitted the respondent employee who is facing disciplinary proceedings to represent through ex-employee of the Bank, the bench of MR Shah* and Sanjiv Khanna, JJ has interpreted Regulation 44 of the Rajasthan Marudhara Gramin Bank (Officers and Employees) Service Regulation, 2010 read with clause 8.2 of the Handbook Procedure to hold that the delinquent employee has no absolute right to avail the services by ex-employee of the Bank as his DR in the departmental proceedings.

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COVID-19| A Biological Weapon? Most misconceived! SC rules it is for the elected Government to take necessary action if any

While addressing a petition making bizarre claim that virgin Coconut Oil can dissolve Covid-19 virus, the Division Bench of Sanjay Kishan Kaul and M.M. Sundresh, JJ., held that it cannot let every person who believes that he has some solution to the virus, to come up in a petition under Article 32 of the Constitution.

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High Court’s Revisional jurisdiction under Section 401 Cr.P.C re power to reverse acquittal. SC answers important questions

“Though the High Court has revisional power to examine whether there is manifest error of law or procedure etc., however, after giving its own findings on the findings recorded by the court acquitting the accused and after setting aside the order of acquittal, the High Court has to remit the matter to the trial Court and/or the first appellate Court, as the case may be.”

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P&H HC directs State to provide sports quota of 3% in Government Medical/Dental Colleges instead of 1% provided in policy decision. Such mandamus impermissible, holds SC

Explaining the scope of writ jurisdiction, the bench of MR Shah* and BV Nagarathna, JJ has held that the State Government’s action taking a policy decision to prescribe a particular percentage of reservation/quota for a particular category of persons, cannot be interfered with by issuance of a writ of mandamus, directing the State Government to provide for a particular percentage of reservation for a particular category of persons other than what has been provided in the policy decision taken by the State Government.

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Person with 54% disability pinned to the ground, throttled by neck and consequently killed by strangulation; SC cancels HC order granting bail to the accused

Finding the order of the High Court cryptic and casual, de hors coherent reasoning, the Bench invoked the latin maxim “cessante ratione legis cessat ipsa lex” to hold that “reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself”.

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Civil Court has no jurisdiction in dispute relating to property governed by the Haryana (Control of Rent & Eviction) Act, 1973: SC

The Court was deciding the dispute relating to suit property situated within the municipal limits of Kaithal which is governed by the Haryana (Control of Rent & Eviction) Act, 1973.

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Traffic blockage due to agitation, failure to deliver consignment within validity period of e-way bill; SC imposes cost of Rs. 59000 on Sales Tax Officer for illegally imposing penalty

“When the undeniable facts, including the traffic blockage due to agitation, are taken into consideration, the State alone remains responsible for not providing smooth passage of traffic.”

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Whether adoption of parent Government Resolution by an undertaking leads to automatic adoption of subsequent modifying resolutions?

“There are limitations or qualifications to the applicability of the doctrine of ‘equal pay for equal work’.”

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State ‘exclusivity’ for disallowance of certain fee, charge, etc. is to be viewed from the nature, not the number of undertakings on which the levy is imposed

The Division Bench of R. Subhash Reddy* and Hrishikesh Roy, JJ., held that to determine State Monopoly for disallowance of certain fee, charge, etc. in the case of State Government Undertakings the aspect of ‘exclusivity’ has to be viewed from the nature of undertaking on which levy is imposed and not on the number of undertakings on which the levy is imposed.

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Failure to provide occupancy certificate a deficiency in service under the Consumer Protection Act and also a continuing wrong

The bench of Dr. DY Chandrachud* and AS Bopanna, JJ has held that failure on the part of the builder to provide occupancy certificate is a continuing breach under the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act 1963 and amounts to a continuing wrong.

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Whether charitable education institutions exempted from levy of electricity duty under Maharashtra Electricity Act, 2016? Supreme Court interprets

The Division Bench comprising of M. R. Shah* and Sanjiv Khanna, JJ., reversed the impugned order of the High Court whereby the High Court had held that education institutions run by charitable societies are exempted from payment of electricity duty.

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Non-consideration for subsequent preference post after being declared ineligible for first post preference: Is it unjust? Supreme Court answers

While addressing the issue as to whether a candidate is entitled to claim appointment on a subsequent post in his preference list after having being considered for his first preference and being declared not suitable for the said post due to non-fulfilment of physical requirements, the Division Bench of Dr Dhananjaya Y Chandrachud and A.S. Bopanna*, JJ., replied in negative.

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“Democratic interests cannot be judicially aborted to preserve unfettered freedom to conduct business, of the few”; Govt. decision to ban MTTs in PPE products ensures adequate PPE in India: SC

“This Court must be circumspect that the rights and freedoms guaranteed under the Constitution do not become a weapon in the arsenal of private businesses to disable regulation enacted in the public interest.”

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Order de hors reasoning cannot result in grant of bail! SC holds informant has a right to assail bail orders bereft of reasons before a higher forum

“It would be only a non speaking order which is an instance of violation of principles of natural justice. In such a case the prosecution or the informant has a right to assail the order before a higher forum.”

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Scrap picker beaten to death; incident recorded in CCTV: State failed to protect victim’s rights by not challenging Guj HC’s order releasing accused on bail; SC cancels bail

In a case where a scrap picker was beaten to death and the Gujarat High Court had released one of the accused on bail despite the entire incident been recorded in the CCTV footages and the mobile phone, the bench of MR Shah and BV Nagarathna, JJ has cancelled the bail and has observed that by not filing the appeals by the State against the impugned judgments and orders releasing the accused on bail in such a serious matter, the State has failed to protect the rights of the victim.

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Gift deed by an old illiterate woman: SC approves not legalistic but holistic approach by lower courts to determine validity of deed. HC’s verdict set aside

In an issue relating to the alleged gift deed by an old illiterate woman, the bench of MR Shah and Sanjiv Khanna*, JJ has held that when a person obtains any benefit from another, the court would call upon the person who wishes to maintain the right to gift to discharge the burden of proving that he exerted no influence for the purpose of obtaining the document.

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No more uncertainty over fixation of percentage of reservation for OBC and SC/ST candidates; SC interprets Section 3 Second Proviso of CEI Act, 2006

The bench of L. Nageswara Rao and Hima Kohli, JJ has held that the formulae for fixing the percentage of reservation for the SC and ST candidates and for determining the percentage of seats to be reserved for OBC candidates under the second proviso of Section 3 of the Central Educational Institutions (Reservation in Admission) Act, 2006, ought to be gathered from the same source and any other interpretation would lead to uncertainty.

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3-year old raped and strangulated to death; Read why Supreme Court commuted Death Sentence to life imprisonment

The Fast Track Court, Raigarh had convicted the appellant for the offences punishable under Sections 363, 366, 376(2)(i), 377, 201, 302 read with Section 376A of the Penal Code, 1860 and Section 6 of the POCSO Act, 2012 and vide the same judgment and order, the appellant was sentenced to death for the offence punishable under Section 302 of the IPC. Subsequently, vide the impugned judgment and order, the High Court had confirmed the death penalty.

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Mere recommendation of the SP at the initial stage not sufficient to claim a right for promotion: SC explains Punjab Police Rules, 1934

In a case where a Constable’s name was recommended by the Superintendent of Police but the same was dropped down by the Inspector General of Police for promotion under the 10% quota of outstanding performance for inclusion in the B-I List for promotion to the post of Head Constable in the year 2004, the bench of KM Joseph and PS Narsimha, JJ has held that mere recommendation of the SP at the initial stage is not sufficient to claim a right for promotion.

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No scaling down of sentence to 10 years as per NDPS Act for man sentenced to 26 years in prison by Mauritius SC for being in possession of over 150 gms of heroin

In a case where a man was arrested in Mauritius after being found to be in possession of 152.8 grams of heroin and was sentenced to 26 years in prison by the Supreme Court of Mauritius, the bench of L. Nageswara Rao and BR Gavai has upheld the Central Government’s decision rejecting the request for scaling down the sentence from 26 years to 10 years and has found it to be in accordance with the provisions of the Repatriation of Prisoners Act, 2003 and the agreement entered into between India and Mauritius.

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No Pensionary Benefits To WALMI Employees; Employees Of Autonomous Bodies Can’t Claim Benefits On A Par With Government Employees As Matter Of Right

“… the employees of the autonomous bodies cannot claim, as a matter of right, the same service benefits on par with the Government employees.”

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Whether the term “school children” includes university students while interpreting Government Memo exempting buses carrying school children from Passengers Tax? SC clarifies

While holding that the term “school children” will include college and university as well while interpreting government memo exempting passengers tax in respect of Stage Carriage (buses) owned by educational institution and used for the transportation of children to and from such institutions, the Division Bench of Dinesh Maheshwari and Vikram Nath, JJ., remarked,

“It gets perforce reiterated that the broad expression “children”, obviously, refers to the students taking instructions in educational institutions, irrespective of their class or standard or level.”

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CASES REPORTED IN SCC


2021 SCC Vol. 9 Part 1

Ranging from Arbitration, Service Law to Family Law, this Volume 9 Part 1 brings in some very carefully and expertly analysed Judgments

2021 SCC Vol. 9 Part 2

In this part read a very interesting decision expertly analysed by our editors. Supreme Court ruled that the trustees are required to

SCC Snippets

Are Clients Or Courts Bound By Lawyer’s Statements Or Admissions As To Matters Of Law Or Legal Conclusions?


Op EdsOP. ED.

Dowry is a concept of giving and taking money or gifts from the bride’s family at the time of marriage as a token of love and acceptance which binds both families into one. Unfortunately, over the years the term has shifted from being an affectionate gesture to a horrifying nightmare. Though the practice of dowry emerged as a safeguard for the woman, it has assumed mammoth shape and magnitude. 7634 brides were burned to death in India in 2015 due to dowry disputes.[1] This approximates to one bride being burned every hour. 30.6% of total cases of dowry deaths were reported in Uttar Pradesh (2335 cases) alone, followed by Bihar (1154 cases).[2]

“Dowry death” can be seen as a result of a unique form of violence suffered by Indian women. It, in all ways, was always murder. In fact, during the early 1980s, most cities in India publicised murders of wives involved in dowry disputes.[3] It seemed that a plague was spreading and an increasing number of educated middle-class women were falling victim to it. In the wake of the campaign that was generated, it came to be accepted, both nationally and internationally, that a unique form of violence was being perpetrated on Indian women by their husbands and in-laws.[4] A logical extension of this recognition was the belief that a more stringent law against dowry would prevent marital murders. Accordingly, commission of “dowry death” was categorised as a separate offence.

After almost more than a decade of gaining Independence, a specific Act was introduced which tackled with the problem of dowry called the Dowry Prohibition Act, 1961. This Act prohibits the practice of giving or taking of dowry by either parties to a marriage. The Act also punishes demanding and advertising dowry.

It has been observed in Shanti v. State of Haryana[5] that the term “dowry” has not been defined anywhere except in Section 2 of the Dowry Prohibition Act, 1961. The definition of “dowry” provided by this section is: “any property or valuable security to be given directly or indirectly by one party to a marriage to the other party to marriage at or before or any time after the marriage in connection with the marriage of the said parties”. Payments which are customary payments, e.g., given at the time of birth of a child or other ceremonies as are prevalent in different societies are not covered by dowry. Hindu custom historically prohibited women from inheriting land, particularly when there were male heirs, but this appears to have no legal force. In India, social norms make it extremely rare that women would receive real (immovable) property.[6] The dowry (of movable property) is subsequently viewed as a sort of pre-mortem inheritance after which the daughters generally have no rights to the paternal estate. Therefore, it is not that laws in India prohibit a woman’s dowry from including land, but it is virtually unheard of because of social custom.

Demand for dowry, in the present day, can be understood as demand for any property or valuable security directly or indirectly which has a nexus with the marriage.[7] Thus, there are three occasions pertinent to understand the concept of dowry, one is before the marriage and the second is at the time of marriage and the third is anytime after marriage which may seem to be an unending period. But, the crucial words are “in connection with marriage of the said parties”. Therefore, the premise on which the concept of dowry thrives is that the valuable property, movable or immovable, must be given in relation to the conjugal union of two people.

The Act also provides the penalty for the giving or taking of dowry which may not be less than fifteen thousand rupees and up to five years of imprisonment or what the Court may deem fit[8]. If an individual makes a demand for dowry, he can be made liable to pay a fine of Rupees ten thousand and imprisonment for six months which may be extended to two years.[9]

The Dowry Prohibition Act is both a remedial and penal statute. As such, the courts are expected to construe the provisions in a way that the purpose is fulfilled through and within the limits of the language employed in the statute. Moreover, the courts, despite the obligation of making the legislative enactment a success have also to keep in mind that the charge must be made out. It is so because the cardinal principle of criminal law is that unless guilt is established, the accused should not be punished only because a lesson is to be taught to the person involved in a crime or because the Court is satisfied that the criminal has committed a moral transgression.[10] This has both positive as well as negative repercussions. While innocents are saved from being framed for charges of dowry harassment, guilty persons many a time get away with the crime because of paucity of direct evidence.

Despite the existence of Dowry Prohibition Act, 1961, and its two amendments in 1984 and 1986, none of them has been able to curb the social evil of dowry. The reasons why the enactment has singularly failed to achieve its objective are:

(i) Vague definition of “dowry” given by the Act — The definition of “dowry” contained in the Act is vague and ambiguous. The Act contains an explanation under Section 2 which weakens the law and nullifies its objective. It provides that presents in the form of cash, ornaments, clothes and other articles are not to be deemed as dowry unless they are made as consideration for the marriage of the said parties.

(ii) Section 3 of the Act makes both the giver and taker of dowry punishable for the offence. This is unique as the victim is made equally punishable for the offence.

(iii) The punishment for demanding dowry is quite inadequate and hence ineffective. The element of deterrence is lacking.

(iv) The most important reason for failure of the Act is that it virtually lacks enforcement. A lot is lacking in investigative and enforcement machinery for the proper enforcement of its provisions or for providing necessary help to the dowry victims to prosecute their cases. If some machinery, which can intervene whenever necessary, is available, it may help in averting a number of dowry tragedies and also in rendering necessary help to the victim.[11] Moreover, the Court which is competent to try offence under the Act by virtue of Section 7(a), cannot take cognizance of any offence except on a complaint made within one year from the date of the offence.

Though the Act enables any person who is aware of the commission of the offence to come forward to lodge a complaint, it is worthless to expect even the aggrieved party to set the law in motion since the bride’s parents who are usually the victims would be reluctant and unwilling to make a complaint because of the fear of their daughters being victimised. Therefore, the Act did not have the desired effect of even curbing the evil not to speak of its eradication.

The word dowry in Section 304-B IPC has to be understood as it is defined in Section 2(1) of the Dowry Prohibition Act, 1961. Section 304-B IPC defines “dowry death” as—

304-B. Dowry death.—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.

This section makes the offence punishable with imprison­ment for a term which shall not be less than seven years but which may extend to imprisonment for life.

In Pawan Kumar v. State of Haryana[12], the Hon’ble Supreme Court has laid down that the ingredients necessary to attract Section 304-B IPC are:

(1) death of a woman is either by burns or by bodily injury or otherwise than under normal circumstances;

(2) it should be within seven years of marriage;

(3) it should also be shown that soon before her death she was subjected to cruelty or harassment by husband or any relative of husband;

(4) such harassment or cruelty should pertain to demand for dowry.

Another significant aspect of the definition provided under Section 304-B is that the death should be caused “otherwise than under normal circumstances”. In Kamesh Panjiyar v. State of Bihar[13], the Court gave a practical dimension to this. The body of the victim was found by her brother, lying in the verandah of the appellant’s house with blood oozing from her mouth and evident marks of violence on her neck. It appeared that the victim had been murdered by strangulation in the previous night. The Court relied on the opinion of the doctor, the evidences recovered and the testimony of the witnesses to hold that the death of the woman had been caused otherwise than under normal circumstances as expressed in Section 304-B, and hence it was a case of “dowry death”.

Under Section 498-A IPC, cruelty to a wife by her husband, or any of his relatives, is punishable with imprisonment for up to three years and also a fine. “Cruelty” here is defined as any wilful misconduct, either mental or physical, which drives the woman to commit suicide or causes grave injury or danger to her life, limb or health. Any offence under this section is non?bailable and non-compoundable. By virtue of this section, dowry harassment is covered under the definition of “cruelty”.

However, all types of cruelty may not amount to dowry harassment. The courts too, have to draw a line to constrict the scope of dowry harassment and outline the definite parameters required to constitute the offence. In this regard, it was emphasised in Satvir Singh v. State of Punjab[14] that there should be a perceptible nexus between the death of the woman and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the Court would be in a position to gauge that in all probability that would not have the immediate case of her death.

Now, what amounts to cruelty, is again a subjective question. The judiciary has pondered over the proposition of cruelty in a plethora of cases. The relation between demand for dowry and cruelty has been explained by the Supreme Court in Gurbachan Singh v. Satpal Singh[15]. In this case, the victim, a newly-wed woman, who had committed suicide within a year of her marriage, was subjected to utmost cruelty. The cruelty assumed such magnitudes that insinuations were made that the woman had an illegitimate child. The Court held that the cruelty inflicted upon the woman was not just physical but also mental. Taunts on carrying of an illegitimate child led the victim to take her life. The Court held that death in cases of dowry, may not be caused by the husband or his family directly, but as long as the death results from the cruelty inflicted by them, the case will be that of a dowry death.

This does not imply that the Courts have adopted a prodigal approach at categorising dowry deaths. In order to prove cruelty, it is to be established by the party complaining of cruelty that the conduct of the spouse has been of such a character so as to cause danger to life, limb or health, so as to give rise to a reasonable apprehension of such a danger.[16] The Court also laid safeguards against the misuse of law by expressing that in marital life, it cannot be said that there is total harmony and it is not uncommon between the wife and husband to have some petty quarrels. Such petty quarrels cannot be termed as cruelty to attract the provisions of Section 498 IPC.[17] The Supreme Court in the landmark case of Samar Ghosh v. Jaya Ghosh[18] has held that the concept of cruelty differs from person to person. It depends upon the upbringing, level of sensitivity, educational, family, cultural background, financial position, social status, customs, traditions, religious beliefs, human values and value system. Therefore, for conviction in cases of dowry death, it is mandatory to prove cruelty first.[19]

The proximity between time of alleging ill-treatment and the time of death is another highly crucial factor that is an essential and necessary evidence for proof of dowry death.[20]

Determinately, the emerging facet is that just demanding dowry cannot result into a case of cruelty and hence, of dowry harassment.[21] A Bench of Justices R.M. Lodha and A.K. Patnaik in Amar Singh v. State of Rajasthan[22] stated that the prosecution has to establish by convincing evidence that the accused had subjected the victim to torture soon before her death in connection with the demand of dowry. For this purpose, even the legislature has taken proactive steps and amended Sections 174 and 176 CrPC to make post-mortem of the victim mandatory. Hence, though dowry death is an alarming menace, constricting the scope of legal provisions to prevent misuse of law is a societal necessity.

Moreover, admittedly the deceased committed suicide within a period of seven years from the date of her marriage. Section 113-A of the Evidence Act, 1872 is, therefore, clearly attracted to this case. Presumption contemplated therein must spring in action. This provision was introduced by the Criminal Law (Second Amendment) Act, 1983 to resolve the difficulty of proof where married women are forced to commit suicide but incriminating evidence is difficult to get as it is usually available within the four walls of the matrimonial home.[23]

When the deceased committed suicide within a period of seven years from the date of her marriage in Ramesh Vithal Patil v. State of Karnataka[24], Section 113-A of the Evidence Act was attracted to the case. Presumption contemplated therein, as to abetment of suicide by a married woman, sprang into action. This provision (Section 113-A) was introduced by the Criminal Law (Second Amendment) Act, 1983 to resolve the difficulty of proof where married women are forced to commit suicide but incriminating evidence is difficult to get as it is usually available within the four walls of the matrimonial home.

Another such provision that deals with dowry death is Section 113-B of the Evidence Act. It states—

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 had 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.[25]

The necessity for insertion of this provision was analysed by the Law Commission of India in its 91st Report of 1983 on Dowry Deaths and Land Reform[26]. It was clarified by the Supreme Court in State of Punjab v. Iqbal Singh[27] that by introducing this section, the legislature has tried to strengthen the prosecution’s hands by permitting a presumption to be raised if certain foundation facts are established and the unfortunate event has taken place within seven years of marriage. The prosecution has to rule out the possibility of a natural or accidental death to bring the death within the purview of death occurring otherwise than in normal circumstances. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium, it would be of no help to the prosecution. In such a case, the possibility of an accidental death will be ruled out.[28] However, it is incumbent upon the prosecution to establish the commission of offence under Section 498-A IPC before such presumption can be drawn. Moreover, failure of accused to rebut the presumption makes the conviction proper.[29]

As laid down in Bansi Lal v. State of Haryana[30], in each case the Court has to analyse the facts and circumstances leading to the death of the victim and decide if there is any proximate connection between the demand of dowry and act of cruelty or harassment and the death or not.

India is a land of traditions and cultures followed across its length and breadth. It comprises of many traditions accepted and practiced widely. One such is that of dowry deaths. Numerous legal provisions have been set up for curbing this problem yet it is being practiced openly. Dowry deaths or as popularly known as bride burning has become extensively common in many parts of the country and unfortunately accepted by persons who have no interest in changing the state of affairs. Fortunately increasing demands by feminists and demand for women empowerment as a matter of right have led to various amendments of provisions in the criminal law on the country in order to achieve the goal of curbing the problem of dowry deaths.

Over the years many legislative steps have been initiated towards bringing equality and fair treatment towards women. These legal provisions have helped families of the victims to get justice and find comfort in the arms of law. Married women have suffered and continue to suffer even to this date by being tortured by their husband and his family members. Due to such provisions culprits can no longer hide behind obsolete traditions which violate right to live of a person, e.g. wife. Although such provisions have their cons as well since sometimes cunning women use such tactics to frame their in-laws and husband for petty fights and conflicts. Thankfully our Indian legal system is strong enough to differentiate frivolous cases from those of genuine nature and would continue to do so in the future as well.

In my view such legislations have carved out a way in furthering the status for equality in our country between the two sexes. Section 498-A IPC has paved the way for cruelty/domestic violence to be recognised as a criminal offence. Prior to insertion of Section 498-A IPC, cruelty was only a ground for divorce as a matrimonial wrong, leaving women vulnerable. Another important provision that impresses me is Section 304-B IPC which for the first time recognised dowry death as a specific crime. It further condemned dowry death as a social evil by its enactment. Insertion of this provision by the legislature has proved to be a boon to its women citizens. Section 113-B of the Evidence Act, by shifting the onus on the accused in dowry death cases, is a very important tool in aid of penalising dowry deaths. Today, the social evil of dowry death has been put into perspective. Although I honestly feel that the Indian legal system has come a long way from where it had started, yet there is much more to achieve. Unfortunately in cases related to dowry deaths, sometimes there are mala fide and frivolous cases made by the victim’s family. In such instances the whole family of the husband is put behind bars even when they are not a part of it. I am aware that it is tough to make provisions to make sure that the entire family or innocent members of the family are not unnecessarily punished for acts not done by them. But, I think, judicial jurisprudence has developed ensuring some protection for the innocent. There are loopholes in all systems and India is not immune to it. However, these laws serve an important social function and misuse, if any, should be dealt with by appropriate measures, not undermining its inherent need. Therefore, I as a citizen of India overall feel the need for the existing legal provisions and hope for further advancement to curb this menace. With progressive legislation, judicial progressive interpretations and social awareness, the time will come soon when such evils will be history.

 

*  BA Hons. (Psychology), Delhi University and 3rd year student, LLB, Amity University, India.

[1] National Crime Records Bureau, Crime in India 2015: Compendium, <http://ncrb.nic.in/StatPublications/CII/CII2015/FILES/Compendium-15.11.16.pdf>.

[2] National Crime Records Bureau, Crime in India 2015: Compendium, <http://ncrb.nic.in/StatPublications/CII/CII2015/FILES/Compendium-15.11.16.pdf>.

[3] Achar, M.R. and Venkanna, T. (1962), Dowry Prohibition Act, Allahabad, Law Book Company.

[4] Kapadia, K.M. (1955), Marriage and Family in India, Geoffrey Cumberledge, Bombay, Oxford University Press.

[5] (1991) 1 SCC 371.

[6] Wanda Teays, The Burning Bride: The Dowry Problem in India, Journal of Feminist Studies in Religion, Vol. 7, No. 2 (Fall, 1991), pp. 29-52.

[7] Raminder Singh v. State of Punjab, (2014) 12 SCC 582.

[8] S. 3, Dowry Prohibition Act, 1961.

[9] S. 4, Dowry Prohibition Act, 1961.

[10] Gurditta Singh v. State of Rajasthan, 1991 SCC OnLine Raj 315 : 1992 Cri LJ 309.

[11] Causes of Ineffectiveness of Dowry Prohibition Act in Assam, <http://shodhganga.inflibnet.ac.in/bitstream/10603/114294/16/16_chapter%206.pdf>.

[12] (1998) 3 SCC 309.

[13] (2005) 2 SCC 388.

[14] (2001) 8 SCC 633 : 2001 Cri LJ 4625.

[15] (1990) 1 SCC 445 : 1990 SCC (Cri) 151.

[16] Harjit Kaur v. Roop Lal, 2003 SCC OnLine P&H 152 : AIR 2004 P&H 22.

[17] Vadala Vinay Kumar v. State of A.P., 2006 SCC OnLine AP 5 : 2006 Cri LJ 1710.

[18] (2007) 4 SCC 511.

[19] Vipin Jaiswal v. State of A.P., (2013) 3 SCC 684.

[20] Niranjan Mohapatra v. State of Orissa, 1997 SCC OnLine Ori 252 : 1998 Cri LJ 630.

[21] A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22.

[22] (2010) 9 SCC 64.

[23] Ramesh Vithal Patil v. State of Karnataka, (2014) 11 SCC 516.

[24] (2014) 11 SCC 516.

[25] Section 113-B, Evidence Act, 1872.

[26] Law Commission of India, 91st Report on Dowry Deaths and Land Reform, 1983.

[27] (1991) 3 SCC 1 : AIR 1991 SC 1532.

[28] Bakshish Ram v. State of Punjab, (2013) 4 SCC 131 : AIR 2013 SC 1484.

[29] Maya Devi v. State of Haryana, (2015) 17 SCC 405 : AIR 2016 SC 125.

[30] (2011) 11 SCC 359.