In this article, we shall study the provisions of Section 8 of the Dowry Prohibition Act, 1961 and provisions for the appointment of Dowry Prohibition Officers.

Section 8: The Dowry Prohibition Act, 1961:

Offences to be congnizable for certain purposes and to be bailable and non-compoundable:

(1) The Code of Criminal Procedure, 1973 (2 of 1974) shall apply to offences under this Act as of they were cognizable offences-

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

(b) for the purpose of matters other than-

(i) matters referred to in Sec. 42 of that Code, and

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

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

Section 8 says that as the offences under this Act are cognizable offences, they should be tried under the Code of Criminal Procedure, 1973 (2 of 1974). Every offence under this Act shall be non-bailable and non-compoundable.

Burden of Proof on Accused:

Section 8 (A): The Dowry Prohibition Act, 1961:

Burden of proof in certain cases: 

Where any person is prosecuted for taking or abetting the taking of any dowry under Sec. 3, or the demanding of dowry under Sec.4, the burden of proving that he had not committed an offence under those sections shall be on him.

Section 8(A) lays down that the burden of proof, that he has not committed the offence lies on the accused. Sec 8 – A in its operation will have to be read down in the light of Sec 2 and 3 & 4 of the Act.  Where any person is prosecuted for taking or abetting any dowry u/s 3 or demanding dowry u/s 4, the burden of providing that he had not committed an offence under those sections shall be on him but the initial burden which is always on the prosecution to prove basic ingredients of the sections for bringing home the charges to the accused.

Following ingredients of the offence will have to be established before a competent criminal court before which the accused is prosecuted under Section 3 of the Act.

• Any property or valuable security must be proved to have been given or taken by the accused pursuant to an agreement or otherwise;
• The accused must be shown to have abetted such giving or taking of any property;
• Such giving or taking of any property or valuable security either directly or indirectly or its abetment must be done by any party to the marriage vis-a-vis the other party to the party;
• Such giving or taking of any property or valuable security either directly or indirectly or its abetment is done by the parents of either party to a marriage or any other person for the benefit of either party to a marriage or any other person for the benefit of either party to the marriage or any other person;
• Such property or valuable security is given or taken at or before or any time after the marriage;
• Such property or valuable security must be given in connection with the marriage of said parties

Following ingredients of the offence will have to be established before a competent criminal court before which the accused is prosecuted under Section 4 of the Act.

• The accused must be shown to have demanded directly or indirectly from the parents or other relatives or guardians of a bride or bridegroom as the case may be;
• Any property or valuable security to be given by one party to the marriage to the other party of the marriage; or
• Any property or valuable security to be given by parents of either party to the marriage or by any other person, to either party to the marriage or to any other person.
• Such demand should be made at or before or any time after the marriage.
• Such demand for any property or valuable security must be in connection with the marriage of the said parties.

Once these basic ingredients are established by the prosecution the burden of proof would shift on the accused to show that such demand if any by him was not in connection with the marriage of the said parties meaning thereby that he had not demanded any dowry from the parents or other relatives or guardian of a bride or bridegroom as the case may be. Thus burden will shift on him only to establish that the last ingredients of both the above lists is not proved.

Dowry Prohibition Officers:

Section 8 (B): The Dowry Prohibition Act, 1961:

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, of the demanding of, dowry;

(c) to collect such evidence as may be necessary for the prosecution of persons committing offences under the Act; and

to perform such additional functions as may be assigned to him by the State Government, or as may be specified in the rules made under this Act.

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.

Duties of Dowry Prohibition Officers:

1. to see that the provisions of this Act are complied with;
2. to prevent, as far as possible, the taking or abetting the taking of, of the demanding of, dowry;
3. to collect such evidence as may be necessary for the prosecution of persons committing offences under the Act; and
4. to perform such additional functions as may be assigned to him by the State Government, or as may be specified in the rules made under this Act.

Powers of Dowry Officers:

Section 8 (3): The Dowry Prohibition Act, 1961:

The State Government may, by notification in the Official Gazette, confer such powers of a police officer as may be specified in the notification, 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.

Section 8 Clause 3 of the Dowry Prohibition Act, lays down that by publishing in Official gazette State government may confer the Dowry Prohibition Officer powers of a police officer subject to such limitations and conditions as may be specified by rules made under this Act

Appointment of Advisory Board:

(4) The State Government may, for the purpose of advising and assisting the 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) from the area in respect of which such Dowry Prohibition Officer exercises jurisdiction under sub-section (1).

Power to Make Rules by Central Government:

Section 9: The Dowry Prohibition Act, 1961:

Power to make rules:

(1) The Central 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—

(a) the form and manner in which, and the persons by whom, any list of presents referred to in sub-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.

(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 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.

The Central Government may, by notification in the Official Gazette, make rules for carrying out the foregoing power, such rules may provide for.

• The form and manner in which, and the person by whom and list of present referred to in subsection (2) of Sec. 3 shall be maintained and all other matters connected therewith any;
• The better co-ordination of policy and action with respect to the administration of this Act.

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 in two successive sessions, and if before the expiry of the session or in two successive sessions, and if before the expiry of the session in which it is so laid or the session immediately following both Houses agree in making any modification in the rule of both Houses agree that the rule should not be made, the rule shall thereafter have 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.

Power to Make Rules by State Government:

Section 10: The Dowry Prohibition Act, 1961:

Power of the 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.

The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act. In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following mater, namely –

• The additional function to be performed by the Dowry Prohibition officers under sub-section (2) of Section 8 – B;
• Limitations and conditions subject to which Dowry prohibition officers may exercise his functions under subsection (3) of sec 8-B.

Every rule made by the State Government under this section shall be laid a soon as may be after it is made before the state legislature.

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Section 7 of the Dowry Prohibition Act, 1961 gives provision for the cognizance dowry offence

Section 7: the Dowry Prohibition Act, 1961:

Cognizance of Offences:

(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 any recognised 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 purposes of this sub-section, “recognised welfare institution or organisation” means a social welfare institution or organisation recognised 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.

(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.

Only a court of Metropolitan Magistrate or a judicial magistrate of the first class can try the dowry offences under the Act which can be initiated upon own knowledge of the court or on a police report or on the complaint can be lodged by any social welfare institution also.

In Peyare mahto V. State of Bihar 1979 BLJ 42 of 45: 1979 BLJR 73 case, the Court Opined that cognizance of an offence is the first step towards trial. And cognizance means knowledge or notice of an offence. And the judicial officer will have to take cognizance before he could proceed to conduct a trial. Cognizance of offence not to be taken until enquiry report is submitted and such a situation arises when magistrate doubt on the complaint which is lodged.

In Jhapsi Choudhary Vs. State of Bihar 1983 BB CJ 110 Pat. 1983 Pat LJR358 case, the Court held that police is competent to investigate the offence unless he is expressly excluded to do so and in case of non-cognizable offence police are required to take the permission of the magistrate u/s 155 (2) of the court. Any investigation is nothing but a collection of material. And any irregularity in collecting material is fatal to the case.

In A.S. Sanyal V. Khen Chand 1983 2 crimes 384/385/386 case, the Court opined that Sec 2 (d) of Cr.PC defines complaint as any allegation made orally or in writing to a magistrate, with a view to his taking action under this code, that some person, whether known or unknown has committed an offence, but does not include a police report. In the absence of sufficient ground, the complaint can be dismissed.

In Raj Kishor Mahapatra and Others v. State of Orissa and another 1996 Cri LJ 684 case, the Court held that the magistrate has the power to arrange persons not named in the charge sheet as accused and issue process at any stage after taking cognizance of offence on consideration of available material.

In Jatindra Pal Singh V. State 1989 1 Hindu LR 84 at 85 Delhi case, an application was moved by the wife who in fact, was the real aggrieved party before the metropolitan magistrate, for withdrawal of the complaint but the metropolitan magistrate declined to accede to the request on the ground that the prayer was not maintained in view of the provisions of law and since the complaint has been filed on a police report it can only be withdrawn by the Public prosecutor. The Court opined that normally in such circumstances, the state should have taken prompt action in withdrawing the case as otherwise, it would adversely, affect the matrimonial life of the parties.

Provision of sec 6 and 7 (b) Held Anomalous:

In Tara Singh V. Balbir Singh (1985) Hindu LR 114 at 115 (Punjab) case, the Court held that the provision of sec 6 and 7 (b) of the Act are manifestly anomalous. Sec 6 lays down that where any dowry is received by any person other than the bride, then the person has to transfer the same to the bride within three months of the marriage and if he fails to do so within the prescribed period he shall be punishable for violation of the section. In other words the offence is committed only after expiry of three months from marriage if the person receiving the dowry fails to transfer the same to the bride within the period sec 7 (b) provides that no court shall take cognizance of any such offence except a complaint made by the bride or her parents or brother or a gazetted officer specially authorized by the state government on the behalf, within a period of three months from the date of marriage. It is not understandable as to how a complaint under sec 6 can be made within a period of one year from the date of marriage if the commission of the offence matures one year after the marriage.

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Section 6 provides for the return of dowry within the prescribed time as given in the Act if it is already taken

Section 6: the Dowry Prohibition Act, 1961:

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 three months after the date of marriage; or

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

(c) if the dowry was received when the woman was a minor, within 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) If any person fails to transfer any property as required by sub-section (1) within the time limit specified therefor 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 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:

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.

3A) Where a person convicted under sub-section (2) for failure to transfer any property as required by sub-section (1) 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, 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, 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, her heirs, parents or children.

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

Section 6 of the Dowry Prohibition Act enumerated that when the dowry received before marriage it should be returned within three months after the date of marriage. When the same is received at the time or after the marriage, it should be returned within three months after the date of its receipt. When it is received when the women was a minor than it must be returned to her within three months after she attains her majority. (18 yrs.)

For offence u/s 6 the punishment is not less than six months and which may extend to 2 years or with fine which shall not be less than five thousand rupees, but which may extend to ten thousand rupees or with both. if the receiver of dowry fails to transfer to the women concern.

In M. Abbas v. M. Kunipathu, AIR 1975 Ker. 129 (130)  case, the Court held that when the dowry is received by any person other than the women that person is obliged to return the dowry to the women within 3 months from receipt of that property or valuable security or marriage. The receiver is the only trustee for that property or valuable security and the women is the ultimate beneficiary and he hold it for the benefit of women. 

In Ajit Singh v. State, 1983 Hind LR 433 (P & H) case, the Court held that retention of dowry proceeds by the husband followed by their non-return gives rise to a cause of action which is of civil nature.

In P.T.S. Saibaba V. Mangayara 1978 Cr LJ 1362 case, the Court held that the recipient of the dowry proceeds is required in law to transfer the same to the wife within the prescribed period failing which he is liable to be prosecuted on a complaint by her at a place where she resides.

In Rajeev V. Ram Kishan Jaishal, (1993) (1) Crimes 504 (All) the Court held that if the woman who is entitled to any property under sub-sec (1) dies before receiving it, the property in question shall be transferred to her parents in case she has not left behind any
children.

In Prithichand Y. Des Raj Bensal, 11 (1990) DMC 368 P & H case, the wife died within less than 3 months of her marriage, therefore not leaving behind any issue and the contention of the husband that he was the heir of the dowry articles was negative and dowry articles were
transferred to the parents of the wife.

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Indian Legal System > Civil Laws > Family Laws > The Dowry Prohibition Act, 1961 > Beneficiary of Dowry

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Objects of Dowry prohibition Act, 1961:

The Dowry Prohibition Act, 1961 was enacted by the Parliament in 1961  with an objective to prohibit presenting, obtaining or demanding dowry by any means from either of the party to the marriage.

In Soni Devraj Bhai Baber Bhai v. State of Gujrat, 1991 (4) SC 2988 case, explaining the purpose of the dowry prohibition Act, the Supreme Court cited the observation of Pt. Jawahar Lal Nehru to show the role of legislation in dealing with the dowry as a social evil as follows: “Legislation cannot by itself normally solve this deep-rooted social problem. One has to approach in other ways too, but legislation is necessary and essential, so that it may give that push and have that educative factor as well as the legal sanctions behind it, which helps public opinion to be given a certain shape.”

Definition of Dowry:

Section 2 of the Dowry Prohibition Act, 1961:

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).

Under Section 30 of I.P.C.: “The words “valuable security” denote a document which is, or purports to be, a document where by any legal right is created, extended, transferred, restricted, extinguished or released, or where by any person acknowledges that he lies under legal liability or has not a certain legal right. ”

It should be noticed that the Act uses the word “dowry” not merely in the sense of what the bride’s parents give to the bride and bridegroom but also the other way round. In other words, if the property or valuable security is given by the bridegroom to the bride or bride’s father in connection with the marriage of the parties, it would also be covered in the definition of dowry.

It should also be noted that wedding presents, whatever be their value, are excluded from the purview of dowry.  Such presents may be justified as the Act allows only those presents which are given without any demand and they are required to be entered in a list maintained in accordance with the rules made under the Act.

This section does not apply in respect of Muslims where ‘Dower’ or ‘Mehr’ is given to the wife by the husband. The fact is that ‘Mehr’ is neither consideration not dowry, it has a unique position of its own.

Judicial Interpretation of the Term Dowry:

In Pawan Kumar v. State of Haryana, AIR 1998 SC 958 case, the Court held that agreement is not always necessary. Persistent demand for T.V. and scooter were held to be demand in connection with marriage, hence such demand would fall within the definition of dowry.

In Kamdeo Mehto v. State of Bihar, (Now Jharkhand), 2006(1) RCR (Criminal) 495 case, accused demanding service from in-laws. The Court held, that service is a property and would come within the definition of dowry.

In Reema Aggarwal v. Anupam, (2004) 3 SCC 199 case, the Court observed that the definition of the term “dowry” under Section 2 of the Dowry Prohibition Act 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 “at or before or after the marriage” as a “consideration for the marriage of the said parties” would become “dowry” punishable under the Dowry Act the property or valuable security so as to constitute “dowry” within the meaning of the Dowry Act must, therefore, be given or demanded “as consideration for the marriage.”

In Venuri Venkateswar Rao v. State of A. P., 1992 (1) crimes 287 AP. case, it has been held that the lands to be given come within the definition of dowry. The Andhra Pradesh High Court observed that the definition of dowry was wide enough to include all sort of properties, valuable securities, etc. given or agreed to be given directly or indirectly. Therefore, the amount of Rs. 20,000 and 1-1/2 acres of land agreed to be given at the time of marriage was nothing but dowry.

In Hakam Singh v. State of Punjab, 1990 (1) DMC 343 P & H. case, the Punjab and Haryana High Court observed that the expression “dowry” as defined under Section 2 of the Dowry Prohibition Act, 1961 is wider than the expression “Stridhana” while the expression “dowry” denotes presents given in connection with marriage to the bridal couple as well as others, ‘Stridhana’ was confined to property given to or meant for the bride.

In Shyam M Sachdev v. State, 1990 (2) CC cases 425 Del case, the Court held that dowry signifies presents given in marriage to bride couple as well as to others while “Stridhana” is property given to or meant for the bride only.

Cases When the Demand is Not Dowry:

In Sushil Kumar and others v. State of Haryana, 2005(3) RCR (Criminal) 129 case, the Court observed that there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third “at any time” after the marriage. The third occasion may appear to be unending period. But the crucial words are “in connection with the marriage of the said parties.” And hence held that Any payment, which is a customary payment i.e. given at the time of the birth of a child or other ceremonies as are prevalent in different societies are not covered by the expression dowry.

In Sidram Narayan Batane v. State of Maharastra, 1993 1 DMC 204 (Bom) case, the Court held that the term “dowry” does not include reimbursement of marriage expenses.

In Mohammad Usman Warsi v. Mahammad Farooq, 1990 (27) ACC 376 case, the Court held that the term ‘dowry’ does not include the amount of ‘Mehr’ in accordance with the definition provided in Section 2 of the said Act.

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Indian Legal System > Civil Laws > Family Laws > The Dowry Prohibition Act, 1961 > Definition of Dowry Under the Act

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