ALIGARH MUSLIM UNIVERSITY

TOPIC : PRESUMPTION AS TO DOWRY DEATH (S-113B)

 SYNOPSIS

1. INTRODUCTION.

2. DEFINITION OF DOWRY.

3. NEED FOR THE AMENDMENT.

4. SECTION 113-B OF INDIAN EVIDENCE ACT, 1872.

5. ESSENTIALS OF THIS SECTION

6. SCOPE OF THE SECTION

7. NATURE OF THE SECTION

8. APPLICABILITY.

9. CONCLUSION.

10. BIBLIOGRAPHY
INTRODUCTION:
Dowry is an evil system, which has been plaguing the society for many decades and
centuries. Dowry death is an even bigger evil that exists today. It is a problem, which is so
deep rooted in the society that sometimes people do not see it as the evil it actually is. We
have to go to all lengths to solve this problem.
Presumption as to dowry death is dealt in section 113B of the Indian Evidence Act, 1872. The
article aims to explain the concept of presumption as to dowry death. The explanation to this
section says that for the purposes of this section, “dowry death” shall have the same meaning as
in section 304B of the Indian Penal Code, 1860.

The term "dowry death" and "dowry murder" first began to be used around 1977-78 when
investigations revealed that deaths of married women, which for years had been camouflaged by
the police as accidents or suicides, were actually murders or abetted suicides, preceded by
prolonged physical and mental torture by the husband and in-laws in connection with dowry
demand. Instead of describing them as "wife murders" or "abetted suicides" the women's
organizations began calling them "dowry deaths".

DEFINITION OF DOWRY:
Before going into the legislations in connection to the dowry prohibitions, we can first look into
what ‘dowry’ and ‘dowry death’ means. In simple language ‘dowry’ can be understood as
a payment, in cash or kind, given by the bride’s family to the groom while giving away the
bride. And ‘dowry death’ is the death of a woman as a result of abuse done to her by the groom
or his family in connection with demand for dowry. Gifts given without a
precondition is not considered dowry, and are legal.

Section 2 of THE DOWRY PROHIBITION ACT, 1961 defines dowry as:

`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 said parties but
does not include dower or mahr in the case of persons to whom the Muslim Personal Law
(Shariat) applies.

Section 304 B of the Indian Penal Code states that “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.

NEED FOR THE AMENDMENT:

To eradicate the evil of dowry, The Dowry Prohibition Act was enacted in 1961. It came
into force on July 1, 1961. This Act cannot be considered as a very successful one as the evil
of demand for dowry and dowry death exists in large numbers even today. For these very
reason certain new legislations have been introduced in order to make the Act more effective.
Section 304-B of Indian Penal Code and Section 113-B of the Indian Evidence Act was
inserted by the Dowry Prohibition (Amendment) Act, 1986. The need for insertion of section
113B in the IEA as also section 304B in the IPC has been stated in the 91st Report of the Law
Commission (1983) on ‘Dowry Death and Law Reform’.

SECTION 113-B OF INDIAN EVIDENCE ACT, 1872:

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”. It is a
presumption of law. The provisions of this section, although mandatory in nature, simply enjoin
upon the court to draw such presumption of dowry death on proof of circumstances mentioned
therein which amounts to shifting the onus on the accused to show that the married woman was
not treated with cruelty by her husband soon before her death.
This section was inserted by the Dowry Prohibition (Amendment Act 43 of 1986).
This section says that “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.1”
According to this section, two things are needed to be proved in case there is a question with
regard to the death of a woman. Firstly, she was subjected to cruelty or harassment soon before
her death and secondly that the cruelty or harassment was in relation to the demand for dowry.
Only cases satisfying these two conditions will come under this section. This was said in the case
of Bhoora Singh v. State.

Section 113B Penal Code has been added by the Dowry Prohibition (Amendment) Act No.43 of
1986 which was with effect from 19th November 1986. This was done in order to solve the
increasing problem of dowry death. The word dowry death has been defined in 304B Indian
Penal Code and the term dowry has been defined in Section 2 of the Dowry Prohibition Act
1961.
The law, both substantive and procedural, appears to have gone to the farthest limits to facilitate
the punishment of guilty and create terror in minds which are criminally inclined.
Thus, the legislature has done all it could but the problem remains and perhaps assumes
alarming proportions. The law may be adequate but the enforcement is below expectations with
a marginal impact in society. A custom consistently followed and increasingly glamourized
cannot be wished away by criminal sanctions and legislative contrivances. Law can be ahead of
public opinion but, if the gulf is too wide, there is every likelihood of its non observance and
violation.
Thus, a publicity drive should be mounted to inform people about the level of the deleterious
consequences of this practice and the enforcement scheme should be made preventive.
Exemplary punishment including deprivation of social and political rights, a change in the
definition of dowry to include customary gifts, and enforcement through its agencies may be
some of the areas to be stressed and focused on.

1
Indian Evidence Act 1872, s 113B
ESSENTIAL CONDITIONS OF THIS SECTION:
In the case of Kaliyaperumal v. State of T.N.2, four essentials were given based on which this
section can be applied:

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 304B, I.P.C.).
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.”
In the case of Rajinder Kumar vs. State of Haryana.3
The presumption under Section 113B. But the presumption under this section is a presumption
of law, on satisfying of the essential conditions of this section the court is obliged to take the
presumption that the accused has caused the dowry death. 
In the case of Public Prosecutor, A.P. High Court v. T. Basava Punnaiah4, the death was
caused by asphyxia due to hanging within three years of marriage and it is not under normal
circumstances. The court held that it would come under the purview of section 304-B of the
Indian evidence act when cruelty or harassment by the husband or any of his relative is proved. 
The actual participation of the husband or any of his relative is not required to be proved.
NATURE OF PRESUMPTION
Section 113B uses the word "shall" and not 'may' so it is a presumption of law. On proof of the
essentials mentioned above, it becomes obligatory on the court to raise a presumption that the
accused caused the "dowry death". The court has no discretion to draw the presumption under
this Section if the essential ingredients are proved then they are bound to draw this presumption
under Sec. The legislature has made this presumption a mandatory presumption of law, of
course, rebuttable, though this may sound to be a violent departure from the accepted norms of
criminal law. The legislature thought that the presumption under Section 113 B should be a
mandatory presumption if the evil of dowry deaths is to be eradicated from the roots of our
society. If it is proved that soon before her death, the victim was subjected to cruelty or
harassment in connection of a dowry demand, then the presumption under s 113B can be raised.
2
AIR 2003 SC 3828
3
AIR (2015) 4 SCC 215
4
1989 CrLJ 2330 (AP).
If the prosecution has failed to prove the case under Sec304B, IPC, even then, no presumption
can be raised under Sec. 113B of the15 Indian Evidence Act. So 304Bis an integral part of Sec
113B of the Indian Evidence Act Cruelty need not be physical. Even mental torture in a given
case would be a case of cruelty or harassment under 304B and 498A.
SCOPE OF 113-B OF INDIAN EVIDENCE ACT:
Section 113-B creates a presumption of dowry death. In such cases, under this section, the
“Court will take for granted that the accused has committed dowry death.” The prosecution has
to prove that the death of a married woman was caused by any burns, bodily injury or occurs
otherwise than by natural death within seven years of marriage. There is no straight jacket
formula; only live link between the cruelty because of dowry demand and death must appear to
exist. When the death of a victim was due to burn injuries in matrimonial home, circumstantial
evidence showing drenched in kerosene and mouth gagged with a piece of cloth ruling out
suicide or accidental death, presumption under this section arose.

The presumption of dowry death arises only in cases when the prosecution proves that before
death the victim was subjected to cruelty or maltreatment or harassment for dowry demand.
Hence, under this section when prosecution proves the case, it shall be presumed by the court
that the death is a dowry death. Sections 113B which is relatable to dowry death places heavier
onus on the accused than onus places under Section 113A. Husband being the direct beneficiary
can be inferred to have caused life of wife so miserable that she was compelled to commit
suicide.

CRUELTY OR HARASSMENT

Cruelty or harassment differs from case to case. It depends on the mindset so it differs from
person to person. Cruelty can be of two types of physical cruelty and mental cruelty. Mental
cruelty includes humiliating or ridiculing a woman, putting restraint in her movement, not
allowing her to talk to the outside world, giving threats to her or her near and dear ones etc.
Physical cruelty means actual beating or harming the body of the woman.
Every instance of physical or mental cruelty can put a lasting impact on the woman’s mind. if
there is any instance where her dignity is harmed those memories can cause a grave impact on
the person’s mind. However, in this section cruelty and harassment is not meant to be a single
instance of cruelty or harassment it generally refers to a course of action stretched over a period
of time5.
SOON BEFORE

The term ‘soon before’ is not defined anywhere. The section says that the cruelty or harassment
will have to happen soon before the death of the deceased in question only then we can presume
that the death was caused due to dowry. The term is relative and it is left in the court’s discretion
how soon is equivalent to ‘soon before’.
In the case of Keshab Chandra Panda v. State6, it was said that the term would normally imply
that the interval should not be much between the concerned cruelty or harassment and the death
in question.
In the case of Sham Lal v. State of Haryana7, there was a dispute between the husband and the
wife after which the wife went away to her father’s house. She returned after the panchayats
resolved the dispute. The death of the lady occurred 10-15 days after the dispute was resolved
and there was no evidence she was treated with cruelty or harassment soon before the death. the
court held that in this case the presumption of dowry death could not be taken.
APPLICABILITY:

(i) The presumption shall be raised only on proof of the following essentials:

(a) The question before the court must be whether the accused has committed the dowry death of
a woman.
(b) The woman was subjected to cruelty or harassment by her husband or his relatives.
(c) Such cruelty or harassment was soon before her death.

(ii) In dowry death cases and in most of such offences direct evidence is hardly available and
such cases are usually proved by circumstantial evidence. This section as well as section
113B of the IEA enact a rule of presumption, i.e., if death occurs within seven years of marriage
in suspicious circumstances. Thus, may be caused by burns or any other bodily injury. Thus, it is
obligatory on the part of the prosecution to show the death occurred within seven years of

5
Ratanlal and Dhirajlal p.587 ed.24
6
1995 CrLJ 174 (para 6) (Ori)
7
AIR 1997 SC 1873
marriage. If the prosecution would fail to establish the death did not occur within seven years of
marriage, this section will not apply.
In the case of Naresh Kumar v. State of Haryana8, it was written in the suicide note that no
one was responsible for her that and also, she wrote that all doors were closed on her and she had
no other way. The court held that when all the available evidence categorically shows that there
was a demand for dowry and ill-treatment by the husband and his relatives than just because it is
written in the suicide note that no one was responsible cannot be taken as a conclusive proof that
there was, in fact, no one responsible. 
CONCLUSION:
The legislative intent is clear to curb the menace of dowry deaths, etc. with a firm hand. It must
be remembered that since crimes are generally committed in privacy of residential houses and in
secrecy, independent and direct evidence is not easy to get. That is why the legislature has by
introducing Section 113-B in the Evidence Act tried to strengthen the prosecution 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. This period of seven years is
considered to be the turbulent one after which the legislature assumes that the couple would have
settled down in life. When the question at issue is whether a person is guilty of dowry death of a
woman and the evidence discloses that immediately before her death she was subjected by such
person to cruelty and/or harassment for, or in connection with, any demand for dowry. Section
113-B, Evidence Act provides that the court shall presume that such person had caused the
dowry death.

Under S. 113-B, when the question is whether a person has committed the dowry death of a
woman, and it is shown that, soon before her death she had been subjected by that person to
cruelty or harassment in connection with any demand for dowry, the Court shall presume that
such a person had caused the dowry death. (The term “dowry death” has the same meaning as in
S. 504-B of the Indian Penal Code.)

S. 113-B raises a presumption of guilt against any person who has been proved to have subjected
the deceased woman, soon before her death, to cruelty or harassment, in connection with dowry.
Needless to state, it is a presumption intended to be raised against the husband and his relatives.

BIBLIOGRAPHY

8
(2015) 1 SCC 797
1. Singh Avtar, Central Law Publication, Allahabad, 23 Edition, 2018.
rd

2. https://www.legalbites.in/presumption-as-to-dowry-death/
3. https://www.shareyouressays.com/knowledge/section-113-of-the-indian-evidence-act-
1872/120501/