While ruling on a very significant legal topic pertaining to dowry, the Kerala High Court has in a most learned, laudable, logical, landmark and latest judgment titled Kiran Kumar S vs State of Kerala & Anr in CRL.M. Appl. No. 1/2022 in CRL.A No. 694 of 2022 SC 1231/2021 of Additional Sessions Court-I, Kollam and cited in 2022 LiveLaw (Ker) 649 while dismissing the application that was filed by Kiran Kumar who is the convict in the Vismaya dowry death case seeking an interim order for suspension of his 10 years sentence minced just no words to hold in no uncertain terms that even if there was no demand for dowry before or at the time of marriage, the subsequent demand made is sufficient to attract the definition of dowry under Section 2 of the Dowry Prohibition Act, 1961. Very rightly so! The appellant/accused (husband) has demanded dowry from Vismaya who was a 23-year-old Ayurveda medical student and had abetted and instigated her to commit suicide.
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Ms Justice Sophy Tomas for a Division Bench of Kerala High Court comprising of herself and Hon’ble Mr Justice Alexander Thomas sets the ball rolling by first and foremost putting forth in para 1 that, “This is an application filed by the appellant/accused in S.C.No1231 of 2021 on the file of Additional District and Sessions Judge-I, Kollam under Section 389(1) of Cr.P.C., for suspension of sentence and to release him on bail.”
To put things in perspective, the Division Bench then envisages in para 3 that, “The prosecution case is that a 23 year old girl named Vismaya, who was the wife of the appellant/accused, committed suicide at her matrimonial home, at the wee hours of 21.06.2021, by hanging inside the bathroom, unable to bear the matrimonial cruelties and ill-treatment from the appellant/husband, both physical and mental, in connection with demand for dowry. The appellant/accused abetted and instigated her to commit suicide, subjecting her to severe mental and physical cruelties. The appellant/accused demanded dowry from the deceased and her parents, in contravention of the provisions of the Dowry Prohibition Act, 1961.”
It would be instructive to note that the Bench mentions in para 18 that, “Now let us go to Section 2 definition of ‘Dowry’, in the Dowry Prohibition Act 1961, which reads as follows:
“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 mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. [***]
Explanation II.— The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).””
Be it noted, the Division Bench then notes in para 19 that, “The definition itself shows that any property or valuable security, given or agreed to be given either directly or indirectly, by one party to the marriage to the other party to the marriage or by parents of either parties to the 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 is dowry. So even if there was no property or valuable security given or agreed to be given at or before the marriage, it can be even at any time after the marriage also.”
Most significantly, the Division Bench then minces no words in para 20 to expound what forms the cornerstone of this notable judgment wherein it is stated that, “There need not be any agreement for giving the dowry as laid down by the Apex Court in State of A.P. v. Raj Gopal Asawa and Another [(2004) 4 SCC 470]. The argument that there has to be an agreement at the time of marriage, in view of the words, “agreed to be given” occurring in Section 2 of the Dowry Prohibition Act, and in the absence of any such evidence, it would not constitute a dowry is not tenable since the amended definition of dowry in Section 2 of the Act, includes not only the period, before and at the time of marriage, but also the period subsequent to the marriage. In the case on hand, even if there was no demand for dowry before or at the time of marriage, as pleaded by the applicant/appellant, the subsequent demand made by him is sufficient to attract the definition of dowry under Section 2 of the Dowry Prohibition Act, 1961.”
Needless to say, the Division Bench then states in para 21 that, “There is no dispute with respect to the fact that Smt. Vismaya, the wife of the applicant/appellant, died otherwise than under normal circumstances and the death occurred within a period of seven years of her marriage.”
Further, the Division Bench then hastens to add in para 22 that, “The third limb that, Smt.Vismaya was subjected to cruelty or harassment at the hands of her husband also is prima facie proved through the oral and documentary evidence relied on by prosecution. PW11 – the father of the applicant/appellant is admitting that he had given warning to his son, regarding his quarrel with the deceased, and he is even admitting the physical assault, made by his son towards the deceased. But, according to him, those incidents have no proximity with the date of incident. According to him, after Smt. Vismaya came back to her matrimonial home on 17.03.2021, there was no quarrel between herself and the applicant/appellant. But, Ext.P87(r), Ext.P87(v), Ext.P87(w), Ext.P87(x), Ext.P87(aa), Ext.P87(ac), Ext.P87(ad), Ext.P87(ag), Ext.P87(aj) to Ext.P87(al), Ext.P87(a) to Ext.P87(f), Ext.P87(aq), Ext.P10 to Ext.P12 and Ext.P90(a) are all after 17.03.2021 i.e., after she came back to her matrimonial home. So that contention is not tenable.”
Quite rightly, the Division Bench then points out in para 27 that, “The nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence and its social impact are all to be looked into, while considering an application for suspension of sentence and to release the accused on bail. The appellate court is only to examine if there is patent infirmity in the order of conviction, which renders the order of conviction prima facie erroneous, while considering an application for sentence suspension.”
Frankly speaking, the Division Bench then concedes in para 28 that, “The atrocities against women in their matrimonial homes are on the rise, and women committing suicide unable to bear the cruelty and harassment on demand of dowry are also rampant.”
Most forthrightly, the Division Bench then also concedes in para 29 that, “In the case on hand, a young lady, aged 23, had to commit suicide because of the continuous harassment and ill-treatment extended to her, by her husband, on account of demand for a car of his choice and the gold ornaments, which was found in deficit than stated to be given from her family. She was very much intending to become a Doctor by completing her BAMS course and also to have a baby from her husband. The story put forward by the applicant/appellant that her father did not respond to her messages, menstruation against her expectation of pregnancy etc. are not sufficient enough, in normal human parlance, for a 23 year old girl, to end her life, if she was living happily with her husband. The appreciation of evidence by the trial court in the light of available facts and circumstances will not show any patent infirmity in the order of conviction to make it prima facie erroneous.”
In the fitness of things, the Division Bench then postulates in para 30 that, “While enacting Section 304B of the IPC, the Legislature strongly intended to curb the social evil of dowry demand. Section 2 of the Dowry Prohibition Act was amended with effect from 19.11.1986, and Section 304B dowry death was introduced in the Indian Penal Code with effect from the very same day, i.e., on 19.11.1986. Section 113 B presumption as to dowry death was also introduced in the Indian Evidence Act, 1872, on the same day i.e., 19.11.1986. So the Legislative intent in bringing out these amendments in all the three statues simultaneously will show the strong desire to eradicate the social evil of dowry death from the society using the iron hands of law.”
Most remarkably, we see that the Division Bench then minces just no words to hold unequivocally in para 31 that, “Taking into account the nature of accusation, seriousness of the offence and also its social impact, this is not a fit case warranting suspension of sentence. Moreover, the presumption of innocence goes with the conviction and sentence. There is no patent infirmity in the order of conviction to render it prima facie erroneous. Crl.A.No.1016 of 2022 filed by the prosecution, and Crl.A.(V) No.30 of 2022 filed by the father of the victim for enhancement of the sentence and compensation are pending consideration of this Court. Pending appeal, if the sentence is suspended so as to release the applicant/appellant on bail, it will send a wrong message to the society. For all these reasons, we are not inclined to allow this application.”
Finally, the Division Bench then clarifies and concludes in para 32 holding that, “It is made clear that the observations and findings in this order are for the limited purpose of this application only, and it will not in any way affect the contentions to be taken by the applicant/appellant in the above appeals. In the result, Crl.M.A.No.1 of 2022 stands dismissed. Hand over to both sides.”
All told, we thus see that the Kerala High Court has been most forthright in taking the commendable stand that even if dowry is not demanded before or at the time of marriage, the subsequent demand alone is also sufficient to attract Dowry Prohibition Act. The most relevant case laws cited in this learned judgment which me must keep in mind are as follows: –
1. State of Madhya Pradesh v. Jogendra (2022) 5 SCC 401;
2. State of A.P. v. Raj Gopal Asawa and Another (2004) 4 SCC 470;
3. Surinder Singh v. State of Haryana (2014) 4 SCC 129;
4. Kans Raj v. State of Punjab (2000) 5 SCC;
5. Preet Pal Singh v. State of Uttar Pradesh and Another (2020) 8 SCC 645
It thus certainly merits no reiteration that all Judges must definitely without fail pay heed always in similar such cases to what has been held so clearly, commendably cogently and convincingly by the Kerala High Court! No denying it!
Sanjeev Sirohi