@ sundari,

what video conferencing DV case?

a domestic voilence captured through video conferencing or trough video conferencing you want to give your presence in court?

Judge has passed interim order u/s.14 rejecting our petition to do counselling via video conferencing facility since my son is staying in abroad, we have opted and pleaded for video conferencing facility.  Is there any option to go for appeal citing judgements for video conferencing.

The fact of the case are :

DV case filed in 2012, but both my son and in-law separately living from 2010 onwards.

DV case was filed to me (mother-in-law) and my husband and my son in July-2012

We are helpless running around city and village for this case, although she is working in city but filed case in her village which is more than 800 kms away from city.

we are also residing at city, but running behind the village for this case hearing. pls help us.

you can file petition to transfer case to city , citing her job as well as residence in city

Yes, I have appealed before high court in madurai to transfer this to chennai, but the judge rejected our appeal.

the decision has to be taken from session court only.  So we don't have choice running around tuticorin session court from chennai.

The judge also seems biased and don't know what to do on this. Now you are also a God for us to help in solving this issue.

technically yes , you have to get the appeal for change in session court first , only then high ccourt may adjuricate on relief .

There are plenty of judgements on net regarding change of location which you may leverage

Other is you can also file dv case against your dil

Sundari,

here is a judgement on video conferencing

https://mynation.net/docs/89-2001/

JUDGMENT : A. Lala, J.

1. This is an application under Article 227 of the Constitution of India challenging the order passed by the District Judge at Howrah on 8th September, 2003 in the Miscellaneous Case No. 89 of 2001 arising out of Matrimonial Suit No. 487 of 2000.

2. The fact reveals that the petitioner’s husband instituted the aforesaid Matrimonial Suit in the appropriate Court of District Howrah because according to him marriage was solemnized therein under the Hindu Marriage Act, 1955. Thereafter, they shifted along with the parents of the petitioner to New Delhi and consequently to the United States of America. However, the opposite party/wife stayed there for sometime due to passport and/or clearance of visa etc. Thereafter she also went there and stayed at the matrimonial house at Chicago, United States of America. According to the petitioner, due to various reasons which will be reflected from the statements in the plaint as well as application, she herself left the matrimonial house and came back to India.

3. Good, bad, indifferent I do not want to go to the controversy in respect of the matrimonial-relations because I have not been called upon to decide so. But the pious desire of the Court is that both the husband and the wife, for the sake of their child and/or their family members, should adjust in a manner with each other so that such type of disputes can be avoided. Unless and until it comes out from within themselves law cannot give protection very often as there is a well-known proverb that family law is no law. With my sincere expectation, now, I switch over myself to the real crux of the case. In the Matrimonial Suit an application was made by the opposite party under Section 24 of the Hindu Marriage Act for the purpose of grant of alimony and litigation cost. Such application was disposed of by the District Judge, Howrah by an order dated 3rd May, 2003 by granting Rs. 10,000/- per month towards maintenance pendente lite and a sum of Rs. 20,000/- as litigation cost with other incidental orders. A revisional application was made from such order in the High Court but in disposing of such revisional application being CO. No. 1681 of 2003 dated 11th August, 2003 the Court was pleased to set aside such order in view of the fact that income of the husband was ascertained but question of expenditure was not ascertained by the Court below to come to a finding as to alimony at the rate of Rs. 10,000/- per month. But in disposing of such revisional application Court below was directed to hear out the matter afresh on the basis of the evidence to be adduced by the parties and the same should be disposed of two months from date of communication of the order without granting any unnecessary adjournment. Thereafter the petitioner’s husband made an application before the Court below for examining him by way of video conference.
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According to him, he is permanently residing in United States of America and is an employee of a Company at New York. In course of employment he has to remain at the place of posting. According to him, it would be extremely prejudicial to come to India and depose in the instant case. It will involve an unnecessary amount of delay, expenditure and inconvenience which in the facts and circumstances of the case, will be patently unreasonable and extremely harsh upon him.
The attendance of the petitioner can be procured without delay, expenses and inconvenience if the Court allows him to be examined by way of video conferencing. There is no difficulty in examining him in that way because perjury, if any, is a punishable offence therein. His examination is utmost necessary and to avoid difficulties as mentioned above an order to Commission to record his examination by way of video conferencing can be granted.

4. Learned counsel, appearing on behalf of the petitioner, has relied upon two effective judgments on that score. One is (State of Maharashtra v. Dr. Praful B. Desai), and another is (Twentieth Century Fox Film Corporation and Anr. v. NRI Film Production Associates (P) Ltd.).

5. The ratio of the Supreme Court judgments is that “presence” does not necessarily mean actual physical presence in the Court.

6. Section 3 of the Indian Evidence Act, 1872 reads to a meaning of evidence which is as follows:

“Evidence – Evidence means and includes -

all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;

Such statements are called oral evidence.

All documents Including electronic records produced for the inspection of the Court.

Such documents are called documentary evidence.”

7. Therefore, the interpretation of the Supreme Court on that score is
that in the Court physical presence of a person may not be required for
the purpose of adducing evidence. Evidence includes video conferencing.
Although the Supreme Court dealt with the criminal matter in delivering
the judgment but the necessary explanation given therein is that it is
applicable to all cases including criminal matter. Therefore, there
cannot be any embargo so far as the present matter is concerned. Video
conferencing is an advancement of science and technology which permits
one to see, hear and talk with someone far away with the same facility
and ease as if he is present herein. The only difference is that one
cannot touch the person concerned. Even then, it will not disentitle a
person to give evidence in such way because of various reasons which we
are now considering.

8. In agreeing with the judgment of the Supreme Court I can say that if
any incident is seen by an eye-witness through binocular or telescope
and if it is brought to the notice of the Court by such person can it
be said that he is not an eye-witness? More so, if we watch something
through the same can it be said that we have not watched it? The
essential requirement of advancement of technology and its application
is to make things easier and flexible. The Court is meant for the
people. So it is required for the Court to give reasonable and
appropriate facility to the people. Now-a-days several steps are taken
as a matter of policy to reach to the bottom level of the people. We
are making various types of Courts and Benches and offering justice to
facilitate the people. Video conferencing is one such facility. It is
to be remembered that by virtue of an amendment and insertion of
Sections 65A and 65B of the Evidence Act a special provision as to
evidence relating to electronic record and admissibility of electronic
records has been introduced with effect from 17th October, 2000.
Consequential amendments are also made therein. Therefore there is no
bar of examination of witness by way of Video Conferencing being
essential part of electronic method. Hence, such prayer cannot be
ignored as unnecessary. It is to be evaluated with the amount of delay,
expenses or inconvenience. If it appears that electronic video
conferencing is not only much cheaper but also facilitates the Court
and avoids delay of justice, a practical outlook is to be taken by the
Court. In such circumstances, Court may dispense with such attendance
and issue a Commission for examination of the witness. However, in
allowing such prayer Court will first of all consider whether linkage
of such facility will be available between two places or not.

9. In (supra) the High Court elaborately discussed
about the scope and ambit of Order 18 Rule 4(3) of the amended Code of
Civil Procedure. As per the ratio of such judgment presence in the
Court under Order 18 Rule 4(3) does not necessarily mean physical
presence. Rule 4(3) provides for recording evidence either by writing
or mechanically in presence of the Judge. I want to be little
explanatory on that score. Rule 4(3) of the Code of Civil Procedure
does not speak only about recording of evidence by the Court. It says
that the Court or the Commissioner, as the case may be, shall record
evidence either in writing or mechanically in the presence of the Judge
or Commissioner, as the case may be, and where such evidence is
recorded by the Commissioner he shall return such evidence together
with his report in writing signed by him to the Court appointing him
and the evidence taken under it shall form part of the record of the
suit. Therefore, the real import is when writing and mechanically both
process can be applicable disjunctively for the Court and Commissioner
by the amendment with effect from 1st July, 2002 much after the
amendment of the Evidence Act on that score, with effect from 17th
October, 2000 the mechanical process includes the electronic process
both for the Court and the Commissioner. Those are empowered to adopt
the mode of evidence as per the amended Evidence Act.
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10. In addition to the above I fully agree with Supreme Court and
Karnataka High Court at least to such extent that if the Law Courts do
not permit technology development in the Court proceedings it would be
bagging behind compared to other sectors. Technology is definitely a
tool. But the following safe guards are to be taken for purpose of
recording evidence through Audio-Video Link : (1) Before action of the
witness under Audio-Video Link starts the witness will have to file an
affidavit or an undertaking duly verified before a Judge or a
Magistrate or a Notary that the person who is shown as the witness is
the same person as who is going to depose on the screen with a copy of
such identification affidavit to the other side. (2) The person who
wishes to examine the witness on the screen will also file an affidavit
or an undertaking in the similar manner before examining the witness
with a copy of the other side with regard to identification before
hand. (3) As soon as identification part is complete, oath will be
administered through the media as per the Oaths Act, 1969 of India. (4)
The witness will be examined during working hours of Indian Courts.
Plea of any inconvenience on account of time difference between India
and other country will not be allowed. (5) The witness action, as far
as practicable, be proceeded without any interruption without granting
unnecessary adjournments. However, discretion of the Court or the
Commissioner will be respected. (6) Witness includes parties to the
proceedings. (7) In case of non-party witness, a set of plaint, written
statement and/or other papers relating to proceeding and disclosed
documents should be sent to the witness for his acquaintance and an
acknowledgement in this regard will be filed before the Court. (8)
Court or Commissioner must record any remark as is material regarding
the demur of the witness while on the screen and shall note the
objections raised during recording of witness either manually or
mechanically. (9) Depositions of the witness either in the question
answer form or in the narrative form will have to sign as early as
possible before a Magistrate or Notary Public and thereafter it will
form part of the record of the proceedings. (10) Mode of digital
signature, if can be adopted in this process, such signature will be
obtained immediately after day’s deposition. (11) The visual is to be
recorded at both the ends. The witness alone can be present at the time
of video conference, Magistrate and Notary is to certify to this
effect. (12) In case of perjury Court will be able to take cognizance
not only about the witness gave evidence but who induced to give such
evidence. (13) The expenses and the arrangements are to be borne by the
applicant who wants to this facility. (14) Court is empowered to put
condition/s necessary for the purpose.
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In the instant case, the petitioner wanted to pay expenses. In such circumstances, if the guidelines and/or safe guards are directed to be followed in examining the witness from the United States of America no prejudice will be suffered by the opposing party. The whole compass of the argument made by the opposite party is that the application for recording evidence by video conferencing is a dilatory tactics on the part of the petitioner. According to her, the approach of the petitioner herein is not a honest approach to the Court of law. Learned counsel, appearing for her, made submission that when the parties were residing in America what was the necessity of filing the suit in the District Court of Howrah, West Bengal, India is unknown to him. It could have been filed there. But for avoiding huge amount of alimony the suit was instituted in India and now he is showing the ground of expenses in coming to India and has applied for recording his evidence by video conferencing.

12. According to me, sitting in the Court of Superintendence under
Article 227 of the Constitution of India I cannot adjudge the merit. It is open for the Court where the suit and/or the proceeding is pending. The only question before this Court is whether the application for recording evidence by way of video conferencing is illegal and whether the learned District Judge rightly refused such application or not. In spite of the interesting arguments having been made by the parties in the Court below a surprising order was passed by the learned District Judge, Howrah that as because two months period has been granted by the Court such application could not be entertained. The Court said that the order was brought to notice of the Court on 1st September, 2003 and thereafter the case was fixed without giving particulars of the date. Thereafter it was observed that it goes without saying that if application is allowed it will take a long time to dispose of the application and the same would be against the direction of the Hon’ble High Court. A submission of the opposite party/wife was recorded therein that to avoid warrant of arrest as against a complaint filed under Section 498A of the Indian Penal Code the petitioner/husband is avoiding the Court and wants to give evidence. Although no such point has been agitated herein since the application was dismissed only on account of time given by the Hon’ble High Court I do not want to propose to go into such part in detail. But it is to be remembered that a stray comment in respect of a criminal proceeding cannot be an appropriate basis of a decision of an independent proceedings.

13. Therefore, coming back to the operative part of the order impugned I can say that giving two months time from the date of communication of the order without granting any unnecessary adjournment in hearing such application as given by this Hon’le High Court in the earlier occasion is a pious desire of the Court. Neither it can be said to be a compelling circumstances nor it is reflected from the order. Whenever the part “………. without granting any unnecessary adjournment” is added with a time given it means that the Court should not be casual in hearing the matter and should allow a time-bound programme to go on without a genuine cause. Can it not be said that allowing such type of application is a genuine cause.? Even if there is a doubt the Court could have directed the parties to mention this matter to the High Court for extension of time period on account of exigency. But avoidance of such application is definitely a vital cause for refusal of justice which the Learned Judge failed to appreciate. Moreover, it is a wrong appreciation of fact that process of video conferencing will cause delay. As and when the question of delay is a substantial question before the Court either to grant relief or not to grant relief intention of the party is to be adjudged carefully. The order of the High Court was communicated to the Court below on 1st September, 2003 admittedly and the order impugned was passed on 18th September, 2003. Therefore, such application should have been presented before the Court immediately after the communication of this order. This is not the case that just before the expiry of two months period given by the High Court such application was made. Had there been so it could have been established that the petitioner is inclined to delay the proceeding. But that inference can not be drawn which even as per the order of the High Court about one and half months approximately is left. When the order of the High Court will be construed as mandate by the Court below then it is desirable that the Court will take the task as an emergency. For an example when a time period is fixed by the High Court to dispose of the matter within a specified time day to day hearing is obvious. Instead of doing so if periodical posting of matter has been made in the diary as per suitability and/or convenience of the administration of the Court below then the case of delay can not be attributed upon the shoulder of the petitioner.

14. Therefore, in all, such order cannot be sustained. Therefore, the order impugned stands set aside. The application will be considered in merit and the matter expedited, if necessary, by giving day-to-day hearing preferably within a period of three months from the date of communication of this order. Under an interim order, the petitioner was directed to pay alimony pendente lite at the rate of Rs.5000/- per month which is hereby increased to Rs.7500/- and the same will be paid regularly until and unless further order or orders will be passed by the appropriate Court to that extent. However, such direction of payment is strictly without prejudice to the rights and contentions of the parties. No order is passed as to costs of this application.

Parties are entitled to take down the gist of the order and to communicate the same who will act upon such communication.

Let an urgent Xeroxed certified copy of this judgment, if applied for, be given to the learned Advocate for the parties within two weeks from the date of putting the requisites.
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The Dowry Prohibition Act, 1961

1. Short tile, extent and commencement -

(1) This Act may be called the Dowry Prohibition Act, 1961.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force on such date ¹as the Central Government may, by notification in the Official Gazette, appoint.

——————————-

1.   Came into force on 1-7-1961 vide S.O. 1410, dated 20-6-1961.

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 parent 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 ¹[or any time after the marriage] ²[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.

³[***]

Explanation II.—The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).

Comments

(i) The word ‘dowry’ should be any property or valuable given or agreed to be given in connection with the marriage. The customary payments in connection with birth of child or other ceremonies are not involved within ambit of dowry; Satbir Singh v. State of Punjab, AIR 2001 SC 2828.

(ii) “Dowry” in the sense of the expression contemplated by Dowry Prohibition Act is a demand for property of valuable security having an inextricable nexus with the marriage, i.e., it is a consideration from the side of the bride’s parents or relatives to the groom or his parents and/or guardian for the agreement to wed the bride-to-be. But where the demand for property or valuable security has no connection with the consideration for the marriage, it will not amount to a demand for dowry; Arjun Dhondiba Kamble v. State of Maharashtra, 1995 AIHC 273.

(iii) Any property given by parents of the bride need not be in consideration of the marriage, it can even be in connection with the marriage and would constitute dowry; Rajeev v. Ram Kishan Jaiswal, 1994 Cri LJ NOC 255 (All).

(iv) The definition of dowry is wide enough to include all sorts of properties, valuable securities, etc., given or agreed to be given directly or indirectly; Vemuri Venkateswara Rao v. State of Andhra Pradesh, 1992 Cri LJ 563 AP HC.

(v) There had been no agreement between either parties to give any property or valuable security to the other party at or before or after the marriage. The demand of T.V., refrigerator, gas connection, cash of Rs. 50,000 and 15 tolas of gold are not demand of dowry but demand of valuable security in view of section 2; Shankar Prasad Shaw v. State, I (1992) DMC 30 Cal.

(vi) While dowry signifies presents given in connection with marriage to the bridal couple as well as others, Stridhan is confined to property given to or meant for the bride; Hakam Singh v. State of Punjab, (1990) 1 DMC 343.

(vii) Dowry, means, any property given or agreed to be given by the parents of a party to the marriage at the time of the marriage or before marriage or at any time after the marriage in connection with the marriage. So, where the husband had demanded a sum of Rs. 50,000 some days after the marriage from his father-in-law and on not being given became angry, tortured the wife and threatened to go for another marriage, it was held that the amount was being demanded in connection with the marriage and it was a demand for dowry though it was demanded after the marriage; Y.K. Bansal v. Anju, All LJ 914.

 (viii) The furnishing of a list of ornaments and other household articles such as refrigerator, furniture, electrical appliances, etc., at the time of the settlement of the marriage amounts to demand of dowry within the meaning of section 2 of the Dowry Prohibition Act, 1961; Madhu Sudan Malhotra v. K.C. Bhandari, 1988 BLJR 360 (SC).

 (ix) A sum of money paid by a Mohemmadan in connection with his daughter’s marriage to prospective bridegroom for the purchase of a piece of land in the joint name of his daughter and would-be son-in-law is not ‘dowry’ within the meaning of the Act; Kunju Moideen v. Syed Mohamed, AIR 1986 Ker 48.

(x) Where the demand was made after the marriage for the purchase of a car, it was held that it did not fall within the definition; Nirdosh Kumar v. Padma Rani, 1984 (2) Rec Cr R 239.

(xi) Where the demand was made at the time when marriage ceremony was in progress and was repeated after the marriage, it was held that it fell within the definition of dowry; L.V. Jadhav v. Shankar Rao, (1983) 2 Crimes 470.

 (xii) Definition of ’dowry’ is not restricted to agreement or demand for payment of dowry before and at the marriage but also includes demands made subsequent to marriage; State of Andhra Pradesh v. Raj Gopal Asawa, AIR 2004 SCW 1566.

 (xiii) Demand of dowry in respect of invalid marriage would not be legally recognisable; Reena Aggarwal v. Anupam, AIR 2004 SC 1418.

 ——————————–

1. Subs. by Act 43 of 1986, sec. 2, for “or after the marriage” (w.e.f. 19-11-1986).

 2. Subs. by Act 63 of 1984, sec. 2, for certain words (w.e.f. 2-10-1985).

 3. Explanation I omitted by Act 63 of 1984, sec. 2 (w.e.f. 2-10-1985).

3. Penalty for giving or taking dowry.-

¹(1)] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable ² with imprisonment for a term which shall not be less than ³ five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more:]

 Provided that the Court may, for a adequate and special reasons to be recorded in he judgment, impose a sentence of imprisonment of a term of less than ⁴ five years.]

 ⁵(2) Nothing is sub section (1) shall apply to, or in relation to, -

 (a) Presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf).

 (b) Presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf).

Provided that such presents are entered in a list maintained in accordance with the rules made under this Act.

Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given .

COMMENTS

(i) Section 3 does not contravene articles 14, 19, 21 and 22 of the Constitution and therefore this section is not ultra vires of the said articles; Indrawati v. Union of India, I (1991) DMC 117 (All).

 (ii) The offence is founded in the relationship of the property demanded as abettor with the nature of demand. It should not bear a mere connection with marriage; Madan Lal v. Amar Nath, (1984) 2 Rec Cr. 581.

(iii) Abetment is a preparatory act and connotes active complicity on the part of the abettor at a point of time prior to the actual commission of the offence; Muthummal v.Maruthal, 1981 Cr. LJ 833 (Mad).

—————————————

1.   Section 3 re-numbered as sub-section (1) thereof by Act 63 of 1984, sec. 3 (w.e.f. 2-10-1985).

2.   Subs. by Act 63 of 1984, sec. 3, for certain words (w.e.f. 2-10-1985).

 3.   Subs. by Act 43 of 1986, sec. 3, for certain words  (w.e.f. 19-11-1986).

 4.   Subs. by Act 43 of 1986, sec. 3, for “six months” (w.e.f. 19-11-1986).

 5.   Ins. by Act 63 of 1984, sec. 3 (w.e.f. 2-10-1985).

4. Penalty for demanding dowry.-

¹ Penalty for demanding dowry.- If any person demands, directly orindirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees.

 Provided that the Court may, for a adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.]

 Comments

 (i) The mere demand of dowry before marriage is an offence; Pandurang Shivram Kawathkar v. State of Maharashtra, 2001 Cr LJ 2792 (SC).

 (ii) The offence of demanding dowry stood committed even before the marriage was performed and also when the demand was repeated again and again after the performance of marriage in respect of the same items of dowry; Harbans Singh v. Smt. Gurcharan Kaur alias Sharan Kaur, 1993 Rec Cr R 404 (Del).

 (iii) The deceased had before being set on fire by her in-laws written a letter to her father that she was being ill-treated, harassed and threatened of dire consequences for non-satisfaction of demand of dowry. Thereby proving that an offence of demanding dowry under section 4 had been committed; Bhoora Singh v. State of Uttar Pradesh, 1993 Cri LJ 2636 All.

 (iv) There had been no agreement between either parties to the marriage nor their relations to give any property or valuable security to the other party at or before or after the marriage. Held that the demand of TV, refrigerator, gas connection, cash of Rs. 50,000 and 15 tolas of gold will not amount to demand of dowry but demand of valuable security and the said offence does not attract section 4 of the Dowry Prohibition Act; Shankar Prasad Shaw v. State, I (1992) DMC 30 Cal.

 (v) Furnishing of a list of ornaments and other household articles at the time of settlement of marriage amounts to demand of dowry and accused are liable to be convicted under section 4; Raksha Devi v. Aruna Devi, I (1991) DMC 46 (P&H).

 (vi) Section 4 of Dowry Prohibition Act is not ultra vires nor does it contravene articles 14, 19, 21, 22 of the Constitution; Indrawati v. Union of India, 1 (1991) DMC 117 All.

 ——————————————

1. Subs. by Act 63 of 1984, sec. 4, for section 4 (w.e.f. 2-10-1985).

4A. Ban on advertisement .- If any person -

(a) Offers through any advertisement in any newspaper, periodical, journal or through any other media, any share in his property or of any money or both as a share in any business or other interest as consideration fore the marriage of his son or daughter or any other relatives.

(b) Prints or published or circulates any advertisement referred to in clause (a),

 he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to five years, or with fine which may extend to fifteen thousand rupees.

Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than six months.

 ———————————-

1.   Ins. by Act 43 of 1986, sec. 4 (w.e.f. 19-11-1986).

5. Agreement for giving or taking dowry to be void -

Any agreement for the giving or taking of dowry shall be void.

6. Dowry to be for the benefit of the wife or her heirs –

(1) Where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman-

 (a) if the dowry was received before marriage, within ¹[three months] after the date of marriage; or

 (b) if the dowry was received at the time of or after the marriage, within ¹[three months] after the date of its receipt; or

(c) if the dowry was received when the woman was a minor, within ¹[three months] after she has attained the age of eighteen years,

and pending such transfer, shall hold it in trust for the benefit of the woman.

²[(2) If any person fails to transfer any property as required by sub-section (1) within the time limit specified therefor, ³[or as required by sub-section (3),] he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years or with fine

⁴[which shall not be less than five thousand rupees, but which may extend to ten thousand rupees] or with both.]

(3) Where the woman entitled to any property under sub-section (1) dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it for the time being:

 ³[Provided that where such woman dies within seven years of her marriage, otherwise than due to natural causes, such property shall,—

(a)if she has no children, be transferred to her parents; or

(b) if she has children, be transferred to such children and pending such transfer, be held in trust for such children.]

 ²[(3A) Where a person convicted under sub-section (2) for failure to transfer any property as required by sub-section (1) ³[or sub-section (3)] has not, before his conviction under that sub-section, transferred such property to the woman entitled thereto or, as the case may be, ⁶[her heirs, parents or children] the Court shall, in addition to awarding punishment under that sub-section, direct, by order in writing, that such person shall transfer the property to such woman or, as the case may be, ⁶[her heirs, parents or children] within such period as may be specified in the order, and if such person fails to comply with the direction within the period so specified, an amount equal to the value of the property may be recovered from him as if it were a fine imposed by such Court and paid to such woman or, as the case may be,⁶[her heirs, parents or children].

 (4) Nothing contained in this section shall affect the provisions of section 3 or section 4.

————————————

1. Subs. by Act 63 of 1984, sec. 5, for “one year” (w.e.f. 2-10-1985).

 2. Subs. by Act 63 of 1984, sec. 5, for sub-section (2) (w.e.f. 2-10-1985).

 3.Ins. by Act 43 of 1986, sec. 5 (w.e.f. 19-11-1986).

 4. Subs. by Act 43 of 1986, sec. 5, for certain words (w.e.f. 19-11-1986).

 5. Ins. by Act 63 of 1984, sec. 5 (w.e.f. 2-10-1985).

 6. Subs. by Act 63 of 1986, sec. 5, for “her heirs” (w.e.f. 19-11-1986).

7. Cognizance of offences –

¹(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-

(a) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act.

 (b) No court shall take cognizance of an offence under this Act except upon-

 (i) Its own knowledge or a police report of the facts which constitute such offence, or

 (ii) A complaint by the person aggrieved by the offence or a parent or other relative of such person, or by nay recognized welfare institution or organisation.

 (c) It shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the first class to pass any sentence authorised by this Act on any person convicted of an offence under this Act.

Explanation – For the purpose of this sub section, “recognized welfare institution or organisation” means a social welfare institution or organisation recognized in this behalf by the Central or State Government.

(2) Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply to any offence punishable under this Act.

 ²(3)Notwithstanding anything contained in any law for the time being in force, a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act.]

COMMENTS

(i) The point of time at which the legality of cognizance is to be judged is the time when cognizance is actually taken; M.L. Sethi v. R.P. Kapur, AIR 1967 SC 528.

 (ii) The expression ‘to take cognizance’ has not been defined in this Act nor in the Criminal Procedure Code The word ‘Cognizance’ is however, used in the Code to indicate the point when the Magistrate takes judicial notice of an offence. It is a word of indefinite import and is perhaps not always used in exactly the same sense; Darshan Singh v. State of Maharashtra, AIR 1971 SC 2372.

(iii) Taking cognizance is a judicial action taken with a view eventually to prosecution and preliminary to the commencement of the inquiry or trail; Food Inspector v. Laxmi Narayan, 1969 Cut LT 863.

(iv) If a Magistrate has no jurisdiction to try an offence, he is not barred from taking cognizance of the offence; Jaddu v. State, AIR 1952 All 873.

 ——————————————-

1.   Subs. by Act 63 of 1984, sec. 6, for section 7 (w.e.f. 2-10-1985).

2.   Ins. by Act 43 of 1986, sec. 6 (w.e.f. 19-11-1986).

8. Offence to be cognizable for certain purpose and to be non bailable and non-compoundable-

¹[8. Offences to be cognizable for certain purposes and to be ²[non-bailable] and non-compoundable.—(1) The Code of Criminal Procedure, 1973 (2 of 1974), shall apply to offences under this Act as if they were cognizable offences—

 (a) for the purposes of investigation of such offences; and

 (b) for the purposes of matters other than—

 (i) matters referred to in section 42 of that Code; and

 (ii) the arrest of a person without a warrant or without an order of a Magistrate.

 (2) Every offence under this Act shall be ³[non-bailable] and non-compoundable.]

 ——————————————–

1. Subs. by Act 63 of 1984, sec. 7, for section 8 (w.e.f. 2-10-1985).

 2. Subs. by Act 43 of 1986, sec. 7, for “bailable” (w.e.f. 19-11-1986).

 3. Subs. by Act 43 of 1986, sec. 7, for “bailable” (w.e.f. 19-11-1986).

8A. Burden of proof in certain cases -

¹[8A. Burden of proof in certain cases.—Where any person is prosecuted for taking or abetting the taking of any dowry under section 3, or the demanding of dowry under section 4, the burden of proving that he had not committed an offence under these sections shall be on him.]

 comments

 (i) Where no specific suggestions given to any of the prosecutions witnesses regarding plea of alibi, the plea is not maintainable; Pandurang Shivram Kawathkar v. State of Maharashtra, 2001 Cr LJ 2792.

 (ii) If death of wife is within 4 years of marriage in abnormal circumstances and demand of dowry and cruelty is established, the onus to rebut the presumption of dowry death shifts to defence vide Cr. Appeal No. 431 of 1997, decided on 4-2-2004.

 ——————————————–

 1. Ins. by Act 43 of 1986, sec. 8 (w.e.f. 19-11-1986).

8B. Dowry Prohibition Officers -

 ¹ Dowry Prohibition Officers -

(1) The State Government may appoint as many Dowry Prohibition Officers as it thinks fit and specify the areas in respect of which they shall exercise their jurisdiction and powers under this Act.

 (2) Every Dowry Prohibition Officer shall exercise and perform the

following powers and functions, namely:-

 (a) To see that the provisions of this Act are complied with,

 (b) To prevent, as far as possible, the taking or abetting the taking of, or the demanding of, dowry,

 (c) To collect such evidences as may be necessary for the prosecution of persons committing offences under the Act, and

 (d) To perform such additional functions as may be assigned to him by the State Government, or as may be specified in the rule made under this Act.

 (3) The State Government may, by notification in the Official Gazette, confer such powers of a police officer as may be specified in the notification on the Dowry Prohibition Officer who shall exercise such powers subject to such limitations and conditions as may be specified by rules made under this Act.

 (4) The State Government may, for the purpose of advising and assisting Dowry Prohibition Officers in the efficient performance of their functions under this Act, appoint an Advisory Board consisting of not more than five social welfare workers (out of whom at least two shall be women) form the area in respect of which such Dowry Prohibition Officer exercise jurisdiction under sub section (1).

 ——————————————–

1.   Ins. by Act 43 of 1986, sec. 8 (w.e.f. 19-11-1986).

9. Power to make rules -

 (1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purpose of this Act.

 ¹(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for -

 (a) The form and manner in which, and the person by whom, any list of presents referred to in such section (2) of section 3 shall be maintained and all other matters connected therewith, and

 (b) The better co-ordination of policy and action with respect to the administration of this Act.

 ²[(3)] Every rule made under this section shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or ³[in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid], both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

 comments

 The Supreme Court directed to States and Union Territories for awareness regarding provision of the Act and Rules in the public; In Re: E & I of Dowry Prohibition Act, 1961 v. Union of India, AIR 1999 SC 1538.

 ——————————————–

1. Ins. by Act 63 of 1984, sec. 8 (w.e.f. 2-10-1985).

2. Sub-section (2) renumbered as sub-section (3) thereof by Act 63 of 1984, sec. 8 (w.e.f. 2-10-1985).

 3. Subs. by Act 20 of 1983, sec. 2 and Sch., for certain words (w.e.f. 15-3-1984).

10. Power of State Government to make rules -

 (1) The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

 (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :-

 (a) The additional functions to be performed by the Dowry Prohibition Officers under sub section (2) of Section 8B.

 (b) Limitations and conditions subject to which a Dowry Prohibition Officer may exercise his functions under sub section (3) of section 8B.

 (3) Every rule made by the State Government under this section shall be laid as soon as may be after it is made before the State Legislature.

 ———————————–

1.   Subs. by Act 43 of 1986, sec. 9, for section 10 (w.e.f. 19-11-1986).

Appendix I

 RELEVANT PROVISIONS OF INDIAN PENAL CODE, 1860 AND INDIAN EVIDENCE ACT, 1872

Indian Penal Code, 1860

 304B. 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 relatives shall be deemed to have caused her death.

 Explanation – For the purposes of this sub section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961.

 (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

COMMENTS

(i) After the marriage demand for valuable presents by the husband from the wife’s parents and the suicide of the wife by the constant harassment does not amount to dowry death; Arjun Dhondiba Kamble v. State of Maharashtra, 1995 AIHC 273.

 (ii) Section 304-B is creating a substantive offence and is not merely a provision effecting a change in the procedure for the trail of a pre-existing substantive offence. Section 304-B is prospective in nature, death taking place before section 304-B came into force; Bhoora Singh v. State, 1993 Cri. LJ 2636 All.

 (iii) Three essential ingredients are to be established before the offences under section 304-B can be made punishable. They are -

 (a) That there is a demand of dowry and harassment by the accused,

 (b) That the deceased had died,

 (c) That the death is under unnatural circumstances. Since there was demand for dowry and harassment and death within 7 years of marriage, the other things automatically follow and offence under section 304-B is proved; Vemuri Venkateshwara Rao v. State of Andhra Pradesh, 1992 Cri. LJ. 563 A.P. See also Shanti v. State of Haryana, 1 (1991) DMC 187 SC.

 (iv) Though the death of the deceased within 7 years of marriage tool place by burns, section 304-B was held not attracted as there was nothing to show that the deceased before her death was subjected to cruelty or harassment for dowry by her husband or relative; Rameshwar v. State of Madhya Pradesh, II (1992) DMC 486 M.P.

 498A. Husband or relative of husband of a woman subjecting her to cruelty- Whoever, being the husband or the relatives of the husband of a woman, subject such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

 Explanation – For the purpose of this section “cruelty” means –

 (a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman, or

 (b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

COMMENTS

 In the absence of any specific allegations of cruelty against the petitioners there is no offence under section 498-A. the complainant had also started living with the petitioner thereby condoning the acts of cruelty; Sukhbir Jain v. State, 1994 (1) CC cases 609 (HC) Del.

 (ii) The husband and in-laws subjected the wife the cruelty for bringing insufficient dowry and finally burnt her down, thereby inviting a sentence of three years rigorous imprisonment and a fine of Rs.500/- for an offence committed under section 498-A of Indian Penal Code; Bhoora Singh v. State, 1993 Cri. LJ 2636 All.

(iii) Section 498-a contemplates the offence of subjecting a woman to cruelty by the husband or relatives of the husband. As the applicants are not relatives of the husband rather they are co-villagers consequently summoning them for offence under section 498-A of Indian Penal Code amounts to abuse of process of court; Dukhi Ram v. State of Uttar Pradesh, 1993 Cri. LJ 2539 (All).

(iv) Section 498-A of Indian Penal Code is not ultra vires of articles 14, 19, 21, 22 of constitution and do not contravene these provisions; Indrawati v. Union of India, I (1991) DMC 117 (DB) (All).

(v) The newly wed daughter-in-law was abused by her mother-in-law of ill-luck when the daughter-in-law had an abortion, the husband assaulted her on various occasions that bridal presents brought by her were of inferior quality, thereby treating her with cruelty as defined in section 498-A of Indian Penal Code driving her to commit suicide; State of West Bengal v. Orilal Jaiswal, 1994 Cri. LJ 2104 SC.

 Indian Evidence Act, 1872

113B. Presumption as to dowry death- When the question is whether a person has committed by 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.

 Explanation – For the purpose of this section “dowry death” shall have the same meaning as in section, 304B of the Indian Penal Code (45 of 1860).

Rule

THE DOWRY PROHIBITION (MAINTENANCE OF LIST OF PRESENTS TO THE BRIDE AND BRIDEGROOM ) RULES, 1985

In exercise of the powers conferred by section 9 of the Dowry Prohibition Act, 1961 (28 of 1961), the Central Government hereby makes the following rules, namely :-

 1. Short title and commencement – (1) These rules may be called the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985.

 (2) They shall come into force on the 2nd day of October, 1985 being the date appointed for the coming into force of the Dowry Prohibition (Amendment) Act, 1984 (63 of 1984).

2. Rules in accordance with which lists of presents are to be maintained – (1) The list of presents which are given at the time of the marriage to the bride shall be maintained by the bride.

(2) The list of presents which are given at the time of marriage to the bridegroom shall be maintained by the bridegroom.

(3) Every list of presents referred to in sub rule (1) or sub rule (2):

 (a) Shall be prepared at the time of the marriage or as soon as possible after the marriage,

(b) Shall be in writing,

(c) Shall contain,-

(i) A brief descripttion of each present,

(ii) The approximate value of the present

(iii) The name of the person who has given the present, and

(iv) Where the person giving the present is related to the bride or bridegroom, a descripttion of such relationship.

 (d) Shall be signed by both the bride and the bridegroom.

Explanation 1- Where the bride is unable to sign, she may affix her thumb impression in lieu of her signature after having the list read out to her and obtaining the signature, on the list, of the person who has so read out the particulars contained in the list.

 Explanation 2- Where the bridegroom is unable to sign, he may affix his thumb impression in lieu of his signature after having the list read out to him and obtaining the signature, on the list of the person who has so read out the particulars contained in the list.

 (4) The bride or the bridegroom may, if she or he so desires obtain on either or both of the lists referred to in sub-rule (1) or sub rule 92) the signature or signatures of any other person or persons present at the time of the marriage.

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