Last updated July 2013
In partnership with UN Women, The Advocates for Human Rights created the following sections for UN Women's Virtual Knowledge Centre to End Violence against Women and Girls. This section, along with sections addressing other forms of violence against women and girls, may be found under Legislation at www.endvawnow.org.
CASE STUDY: Although India’s Penal Code includes a presumption of dowry death (Article 304(B)) providing certain elements are met, mere suspicion does not suffice for proof. Faulty investigation can fail to trigger this presumption. In Ashok Kumar Rath v. State, 1993 (2) Crimes 940 (Orissa), poor prosecutorial investigation resulted in no proof of dowry death, despite the fact that her death by burning occurred within two years of her marriage. The prosecution’s investigation was faulty in establishing cruelty in connection to dowry demands prior to her death and, for example, failed to interview any villagers about the crime. InMadhubehn v. State of Gujurat, 1993, a complaint issued by the victim’s sister against the prosecution for a similarly deficient investigation led the Court to order the investigation be handled by the Central Bureau of Investigation. (See: V.K. Dewan, Law Relating to Offences against Women, 2nd ed., Orient Law House: 2000, p. 147)
Promising practice: The law of Spain creates the position of “Public Prosecutor for cases of Violence against Women,” who must supervise, coordinate, and report on matters and prosecutions in the Violence against Women Courts. Article 70 The legislation also requires prosecutors to notify complainant/survivor of the release of a violent offender from jail and requires prosecutors who dismiss cases of violence against women to tell the complainant/survivor why the case was dismissed.
Legislation should include a pro-prosecution policy in cases where there is probable cause that domestic violence occurred. This will ensure that the violence is treated seriously by prosecutors and allow complainant/survivors to retain some agency about the decision. (See: UN Handbook, 3.8.3)
CASE STUDY: Laws should ensure that advocates are available to assist persons file a complaint before the magistrate in cases where police do not file a report. India’s Code of Criminal Procedure states that a court shall not take cognizance of an offence under Article 498A “Physical and mental cruelty to woman by husband and in-laws,” of the Penal Code except “upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father's or mother's brother or sister or, with the leave of the Court, by any other person related to her by blood, marriage or adoption” (Article 198A). See: Section on Absent Victim Prosecution.
Also, India’s Penal Code carries a presumption that the husband or relative committed the dowry death wherever: a woman dies by burns, bodily injury or other extraordinary circumstances, within seven years of her marriage, and evidence shows that shortly prior to her death her husband or his relative subjected her to harassment or cruelty, “for, in connection with, any demand for dowry” (Article 304(B)). Dowry death is a non-bailable and cognizable crime. India’s Evidence Act carries accompanying legislation, and Article 113(B) addresses presumption as to dowry death: “When the question is whether a person has committed the dowry death of a women 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.” In Smt. Shanti v. State of Haryana, AIR 1991 SC 1226, a wife was sent to live with her mother- and sister-in-laws. The in-laws harassed the bride by demanding dowry and cruelty was established. The bride died within seven years of her marriage, and her body was quickly cremated without informing her parents and thus precluding opportunity for a post-mortem examination to determine cause of death. The Supreme Court ruled that this was an unnatural death, whether murder or suicidal. Even if a suicide, this still constitutes an unnatural death for purpose of Article 304(B). The requirement that the death occur within seven years of marriage is overly restrictive, however, as dowry demands and violence can continue to occur after seven years of marriage; in these cases, Article 302 “Punishment for Murder” apply. Laws should not impose a time restriction by which dowry deaths must occur after the marriage.
Drafters must balance the accused’s right to be presumed innocent until proved guilty according to law with the need to hold perpetrators accountable. Lawmakers should use character evidence laws to prove a defendant’s conduct and promote accountability. Legislation should allow the prosecutor to introduce evidence of prior acts by the defendant, including domestic violence, dowry demands, prior burnings or other stove-related accidents, and threats, to prove guilt, motive, preparation, planning, intent, and/or to acknowledge the absence of mistake or accident.
Absent victim prosecution
When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. (Article 32).
Promising Practice: In Pushpawati v. State, (1986) 2 Cr LJ 1532, the victim of a dowry death made three dying declarations at her brother’s home, to a police officer in the hospital and to the sub-divisional magistrate. Although the second declaration failed to name the accused, the Delhi High Court found sufficient prima facie evidence that a homicide took place to deny the accused bail.
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