Dowry Death - Section 80 defines dowry death and provides punishment for it. Following are the essential elements of dowry death:-
1. The death of a woman should be caused by burns or fatal injury or otherwise than under normal circumstances.
2. Death should have occured within seven years of her marrige.
3. She must have been subjected to cruelty or harassment by her husband or any relative of her husband soon before her death.
4. Such cruelty or harassment should be for in connection with demand for dowry.
Punishment for dowry death is the imprisonment for a term which is not less than seven years but which may extend to imprisonment for life.
In Ajhola Devi & Anr v. State of Jharkhand (2022), Supreme Court held that the legislative intent of incorporating Section 304B [Section 80 of BNS] was to curb the menace of dowry death with a firm hand. In dealing with cases under Section 304B[Section 80 of BNS], such legilative intent has to be kept in mind. The offence under Section 304B [Section 80 of BNS] i.e. offence of dowry death is the offence against society. Such offence have serious impact upon society. Keeping in mind the aforesaid aspects, imposition of sentence for the offence of dowry death is required to be considered. A strong message must go in the society that a person who commits such an offence of dowry death and/ or the offences under the Dowry Prohibition Act shall be dealt with an iron hand.
In Maya Devi v. State of Haryana, (2015) 17 SCC 405 Supreme Court observed that Section 304B [Section 80 of BNS] does not classify death as homicidal, accidental or suicidal. Death caused by burns or other fatal injury can be homicidal, accidental or suicidal. However, if all other ingredients of Section 304B [Section 80 of BNS] are met and the death happens under 'otherwise than normal circumstances' then it will be called 'dowry death' irrespective of the fact that it was homicidal, accidental or suicidal.
This provision has to be read with Section 118 of BSA, 2023. It provides for 'prsumption of dowry death'. It provides 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 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.
In Satbir Singh v. State of Haryana, AIR 2005 SC 3546, Supreme Court held that once the prosecution is able to establish the ingredients of dowry death under Section 304B [Section 80 of BNS], the burden of proof of innocence shifts to accused in light of presumption under Section 113B [Now section 118 of BSA] and the expression 'shall be deemed to have caused her death' in Section 304B [Section 80 of BNS].
With respect to the presumption under Section 304B of IPC [Section 80 of BNS] the Supreme Court in Kaliyaperumal v. State of Tamil Nadu, AIR 2003 SC 3828 held that following ingredients must be satisfied:-
1. Whether the accused has committed the dowry death of a woman.
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 the death'.
Dowry
The term 'Dowry' has not been defined in BNS. Explanation appended to Seciton 80 provides that for the purpose of this section the term 'dowry' shall have the same meaning as defined in the Dowry Prohibition Act, 1961. Section 2(1) of the Dowry Prohibition Act, 1961 states that 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;
b. By the parent of either party to a marriage or by any other person, to the 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 mohar in the case of persons to whom the Muslim personal law (Shariat) applies.
Cruelty
The meaning of cruelty has not been defined in Section 80. The Meaning of cruelty has to be gathered from Section 86 of BNS. Supreme Court in Shanti v. State of Haryana, AIR 1991 SC 1226 held that Section 304B [Section 80 of BNS] and 498A [Section 86 of BNS] are not mutually exclusive.
Meaning of cruelty given under Section 86 can be applied to Section 80. In nutshell, the Explanation appended to Section 86 of BNS provides that cruelty means any willful conduct which is of such nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life etc., or harassment to coerce her or any other person related to her meed demand of dowry.
Soon before death
In Mustafa Shahdal Shaikh v. state of Maharashtra, AIR 2013 SC 851, Supreme Court interpreted the expression 'soon before death' and held that there must be existence of proximate and live link between the effect of cruelty based on dowry demand and the concerned death.
In Maya Devi v. State of Haryana, AIR 2016 SC 125 Supreme Court held that the expression 'soon before death' in Section 304B of IPC and Section 113B of IEA [Now Section 80 of BNS and Section 18 of BSA] incorporates the idea of proximity test. The expression implies that the interval should not be much between the cruelty or harassment concerned and the death in question.
In Girish Singh v. State of Uttrakhand (2019), Supreme Court held that conviction under Section 304B [Now Section 80 of BNS] can be made only if the woman was subjected to cruelty or harassment by her husband or his relatives which must be for or in connection with any demand for dowry, soon before her death. Cruelty must be in connection with, demand for dowry. In Ashok Kumar v. State of Haryana, AIR 2010 SC 2839 Supreme Court held that concept of reasonable time is the best criteria to be applied.
Section 81 to 84 deal with offences related to marriage. Following are the classification of offences which dealt in this chapter:-
i. Section 81 and 83 - Deception in marriage or mock marriage.
ii. Section 82 - Bigamy.
iii. Section 84 - Criminal Elopment.
Cohabitation caused by a man deceitfully inducing a belief of lawful marriage
Section 81 provides that every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment for a term which may extend to ten years, and shall also be liable to fine.
This section does not criminalize mere sexual intercourse or cohabitaiton with a woman who is not lawfully married to the person. It envisages the following:-
1. Deceitfully inducing a woman to believe that she is lawfully married to him.
2. Cohabitation with that woman under that belief.
The gist of the section is the description caused by man on a woman in consequence of which she is led to believe that she is lawfully married to him. In order to prove deception it must be proved that person has dishonestly or fraudulently concealed certain facts or made certain statements knowing it to be false.
Marrying again during lifetime of husband or wife/Bigamy
Section 82(1) provides that whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
The scope of this section is wide enough to include both male and female within its fold. It is equally applicable to all religions except Muslim males. In case of Muslim males distinction is drawn between males and females because under Muslim personal law polygamy for males, upto 4 wives, is allowed. However it must be noted that this exception available to Muslim male is only applicable if he marries within the ambit of personal laws. If the marriage is contracted under the Special Marriage Act, 1954, then the offence of bigamy will be attracted.
The first condition for the application of this section is that the first husband or wife must be alive at the time of second marriage and the first marriage must be valid. If the first marriage is not valid then the offence of bigamy in case of second marriage will not be attracted.
Supreme Court in Gopal Lal v. State of Rajasthan, AIR 1979 SC 713 held that second marriage should also be properly solemnized. Therefore, both the first and second marriage should be valid marriage in the eyes of law.
In Bhaurao Shankar Lokhande v. State of Maharashtra, AIR 1965 SC 1564 Supreme Court held that in order to constitute an offence of bigamy, marriage must be celebrated with proper ceremonies and in due form. Merely going through ceremonies with the intention that the parties be taken to be married will not affect the marriage.
Change of religion: Supreme Court in Sarla Mudgal v. Union of India, AIR 1995 SC 1531 held that the change of religion cannot defeat the provisions of law. It does not give the license to permit bigamy. Where one spouse changes the religion in order to marry again during the lifetime of former spouse then the provisions of Section 494 [Section 82(1) of BNS] are attracted. The Court held that marriage solemnized under one personal law cannot be automatically dissolved on conversion to another religion. Supreme Court reiterated its stand in Lily Thomas v. Union of India, AIR 2000 SC 1650 and held that change of religion does not automatically dissolve the marriage. The court also upheld the judgment is Sarla Mudgal' case.
Exception: This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction.
It also does not extend to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall also have been heard by such person as being alive within that time. Under Section 111 of BSA when it is proved that a person has not been heard of for more than seven years by those who would naturally have heard of him if he had been alive, there is a presumption that he is dead. The burden of proving that he is alive is on the person who wants to establish the same. Second part of exception to Section 82(1) is a recognition to this principle.
Concealment of former marriage
Section 82(2) provides that whoever commits the offence under Section 82(1) having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Marriage ceremony fraudulently gone through without lawful marriage
Section 83 provides that whoever dishonestly or with fraudulent intention goes through the ceremony of being married knowing that he is not thereby legally married shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
This section punishes mock marriage. It must be proved that accused knew that there is no valid marriage but still goes on to show that the marriage is legally conducted with an ulterior motive.
Criminal elopment
Section 84 provides that whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 84 provides for the offence of criminal elopment. This section is intended to protect the rights of the husband and not that of wife. The offence under this section prevents the deprivation of the husband of his custody and control over his wife with the object of the accused having illicit sexual intercourse with any person. [Alamgir v. State of Bihar, AIR 1959 SC 436]. It follows that if the woman cannot be deemed to be under the protection of her husband or of any person on his behalf, the accused cannot be held guilty under this section. It is also necessary that the marriage of the woman must be proved i.e. proved to be solemnized according to the requirements of law.
Cruelty
Section 85 provides that whoever, being the husband or the relative of the husband of a woman, subjects 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.
Object
The object of this provision in Bharatiya Nyaya Sanhita is to punish husband and his relatives who torture and harass the wife with a view to coerce her or any person related to her to meet any unlawful demand or drive her to commit suicide.
Meaning of cruelty
Section 86 provides that for the purpose of this section, 'cruelty' means:-
a. Any wilful 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 of 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 maeet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her meet such demand.
The offence under Section 85 is continuing offence and on each occasion on which the respondent which was subjected to cruelty, she would have a new starting point of limitation. Supreme Court in Satpal v. State of Haryana, (1998) 5 SCC 687 held that cruelty includes both physical as well as mental cruelty. It depends upon various facts such as social background, education background, senstivity of individual etc. Supreme Court in Arun Vyas v. Anita Vyas, AIR 1999 SC 2071 held that cruelty is a continuing offence. Every act of cruelty is a new starting point of limitation under CrPC [Now BNSS].
In Ranjana Gopal Thorat v. State of Maharashtra, Supreme Court held that a person can become a relative only by blood or marriage. In Nitika v. Yadwinder Singh (2019), Supreme Court reiterated that the Courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on accounts of acts of cruelty also have jurisdiciton to entertain a complaint alleging commission of offences under Section 498A of IPC [now Section 85 of BNS].
In Rashmi Chopra v. State of U.P. (2019), Supreme Court held that Section 498A [Now Section 85 of BNS] does not contemplate that complaint for offence under Section 498A [Now Section 85 of BNS] should be filed only by women, who is subjected to cruelty by husband or his relative.
Section 87 provides that whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Explanation to Section 88 provides that a woman who causes herself to miscarry, is within the meaning of this section.
Causing miscarriage without woman's consent
Section 89 provides that whoever commits the offence under Section 88 without the consent of the woman, whether the woman is quick with child or not, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Death cause by act done with intent to causing miscarriage
Section 90(1) provides that whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Seciton 90(2) provides that where the act referred to in Section 90(1) is done without the consent of the woman, shall be punishable either with imprisonment for life, or with the punishment specified in said sub-section.
Explanation to Section 90 provides that it is not essential to this offence that the offender should know that the act is likely to cause death.
Act done with intent to prevent child being born alive or to cause to die after birth.
Section 91 provides that whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.
Causing death of quick unborn child by act amounting to culpable homicide
Section 92 provides that whoever does any act under such circumstances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Offences against child
Exposure and abandonment of child under twelve years of age by parent or person having care of it
Section 93 provides that whoever being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Explanation to Section 93 provides that this section is not intended to prevent the trial of the offender for murder or culpable homicide, as the case may be, if the child die in consequence of the exposure.
Concealment of birth by secret disposal of dead body
Section 94 provides that whoever, by secretaly burying or otherwise disposing of the dead body of a child whether such child die before or after or during its birth, intentionally conceals or endeavours to conceal the birth of such child, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Hiring, employing or engaging a child to commit an offence
Section 95 is a newly introduced provision. Section 95 provides that whoever hires, employs or engages any child to commit an offence shall be punished with imprisonment of either description which shall not be less than three years but which may extend to ten years, and with fine; and if the offence be committed shall also be punished with the punishment provided for that offence as if the offence has been committed by such person himself.
Explanation to Section 95 provides that hiring, employing, engaging or using a child for sexual exploitation or pornography is covered within the meaning of this section.
Procuration of child
Section 96 provides that whoever, by any means whatsoever, induces any child to go from any place or to do any act with intent that such child may be, or knowing that it is likely that such child will be, forced or seduced to illicit intercourse with another person shall be punished with imprisonment which may extend to ten years, and shall also be liable to fine.
Kidnapping or abducting a child under ten years of age with intent to steal from its person
Section 97 provides that whoever kidnaps or abducts any child under the age of ten years with the intention of taking dishonestly any movable property from the person of such child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Selling child for purpose of prostitution
Section 98 provides that whoever sells, lets to hire, or otherwise disposes of any child with intent that such child shall at any age be employed or used for the purpose of prostitution or illicits intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such purpose, shall be punished with imprisonment of either description for a term may extend to ten years, and shall also be liable to fine.
Explanation 1 to Section 98 provides that when a female under the age of eighteen years is sold, let for hire, or otherwise disposed of to a prostitute or to any person who keepts or manages a brothel, the person so disposing of such female shall, until the contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution.
Explanation 2 to Section 98 provides that for the purposes of this section "illicit intercourse" means sexual intercourse between persons not united by marriage or by any union or tie which, though not amounting to a marriage, is recognized by the personal law or custom of the community to which they belong or, where they belong to different communities, of both such communities, as constituting between them a quasi - marital relation.
Buying child for purpose of prostitution etc.
Section 99 provides that whoever buys, hires or otherwise obtains possession of any child with intent that such child shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such child will at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to fourteen years, and shall also be liable to fine.
Explanation 1 to Section 99 provides that any prostitute or any person keeping or managing a brothel, who buys, hires or otherwise obtains possession of a female under the age of eighteen years shall, until the contrary is proved, be presumed to have obtained of such female with the intent that she shall be used for the purpose of prostitution.
Explanation 2 to Section 99 provides the "illicit intercourse" has the same meaning as in Section 98.
Section 95 of BNS, 2023 is a new provision. It provides punishment for hiring, employing or engaging a child to commit an offence. Section 96 of BNS, 2023 corresponds to Section 366A IPC. New law has made the provision gender neutral. Section 98 of BNS, 2023 corresponds to section 372 IPC. The word 'any person under the age of eighteen years' used in Section 372 IPC has been substituted for the word 'child' in Section 98 BNS. Section 99 of BNS, 2023 corresponds to section 373 IPC. The word 'any person under the age of eighteen years' used in Section 373 IPC has been substituted for the word 'child' in Section 99 BNS. In earlier law, the punishment was upto ten years but in present law, the imprisonment prescribed is not less than seven years but which may extend to fourteeh years.
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