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

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In this article, we shall study penalty for giving, taking, abetting and demanding dowry

Penalty for Giving or Taking Dowry:

Section 3 : The Dowry Prohibition Act, 1961:

Penalty for giving or taking dowry:

If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than 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 adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years.

Nothing in 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):

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

(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.

Sec 3 of the Act says giving as well as taking dowry is an offence and its abetment is also punishable with imprisonment. Which shall not be less than 5 years and with fine which shall not be less them 15,000/- or the amount of value of such dowry whichever is more. The court is empowered to award a sentence of imprisonment for a term less than 5 years for adequate and special reasons to be recorded in the judgment. Note that Section 3 is applicable when the offence of dowry giving and taking has been committed.

Penalty for Demanding Dowry:

Section 4: The Dowry Prohibition Act, 1961:
Penalty for demanding dowry:

If any person demands, directly or indirectly, 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 adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months

The demanding of dowry is the most offensive aspect of the dowry
system; such demands when made after marriage place the wife in an
extremely vulnerable position. Section 4 provides for punishment of persons demanding directly or indirectly from the parents or guardian of a bride or bridegroom, payment of any dowry. Section 4 of the Act provides for penalty for demanding dowry.

Under this Section demanding dowry is also an offence when a person demands, directly or indirectly any dowry from parents, guardian or relatives of a bride or bridegroom, he is liable to punish with a minimum imprisonment of six months, which may extend to two years and with fine which may extend to ten thousand rupees. The court is empowered to award a sentence of imprisonment for a term less than six months for adequate and special reasons to be recorded in the judgment.

In L. V. Jadhav vs Shankarrao Abasaheb Pawar, 1983 AIR SC 1219, case, A got engaged to P, working in the U.S. when the marriage ceremony was in progress P and his father allegedly demanded a sum of Rs.50,000/- on the pretext of travel tickets of the parties. They further, stated that a marriage ceremony would not be completed unless the demand fulfilled. However, after pressure, the marriage formalities completed. P left for the U.S. Arrangements for procuring a passport and VISA for A were also made. In the meanwhile, she was residing with her father-in-law and the demand for money continued. the Court held, that in order to bring a case u/s 4 of the Act there must be a demand of dowry and dowry means the property which is agreed to be given as a consideration for marriage. A demand by one party from the other to pay a certain amount is not a dowry. On appeal, the Bombay High Court held that this did not come within the meaning of the word “Dowry”. The complainant not having made any allegation to bring the case in conformity with the requirement of Sec 2 & 4 of Dowry Prohibition Act the court quashed the proceeding. On appeal in the Supreme Court, the Court held that it is an offence under S. 4 of the Dowry Prohibition Act.

In Harbans Singh v. Smt. Guru Charan Kaur Alias Sharan Kaur, 1993 Rec Cr R 404 Del case, 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.

In Bhoora Singh V. state of U.P, 1992 Cri LJ (2) 294 case, 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 with dire consequences for non-satisfaction of demand of dowry. The Court held that an offence of demanding dowry under S. 4 of the Dowry Prohibition Act had been committed.

In Shankar Prasad Shaw V. State 1 1992 DMC 30 Cal case, there had been no agreement between either party to 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 T.V., freeze, Gas Connection, Cash of Rs.50,000/- and 15 tolas of gold will not amount to the demand of dowry but the demand of valuable security and the said offence does not attract sec 4 of the DP Act.

In Raksha Devi V. Arana Devi, 1991 DMC 46 (P &H) case, the Court held that furnishing list of ornaments other household articles at the time of settlement of marriage amounts to the demand of dowry and accused are liable to be convicted u/s 4 of DP Act.

In Kashi Prasad v. State of Bihar 1980 BBCJ 612,615 & 616 case, the Court held that demand made not in consideration of marriage as demand is only in relation to property or valuable security in connection to marriage but where there is demand of certain sum which is not agreed upon is not a demand at all hence, such allegation made in the petition don’t constitute any offence under sec 3 or 4 of the Act.

In Sobharani V. Madhukar Reddi AIR 1988 SC 121 case, the Court held that the demand for dowry amounts to cruelty and which is a ground for dissolution of marriage in case of women.

Penalty for Advertisement Related to Dowry:

Section 4A: The Dowry Prohibition Act, 1961:

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 for the marriage of his son or daughter or any other relative,

(b) prints or publishes or circulates any advertisement referred to Cl. (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.

any person who advertises through media that he is going to give his property which will be in cash or in-kind as consideration for a marriage of his daughter or any of his relative is punishable with a minimum of six-month imprisonment which may extend to five years or with fine. However, court may award lesser imprisonment for special reasons stated in tile judgment. So advertisement in any way is an offense which is punishable.

Agreement for Giving or Taking Dowry:

Section 5: the Dowry Prohibition Act, 1961:

Agreement for giving or taking dowry to be void:

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

Any agreement Regarding giving or taking dowry is void and Which is void ab-in-itio. So suit on such agreement never stand. And if in any case, cash has been given in advance then recovery of such cash is also impossible.

InRamekbal Singh v. Harihar Sigh AIR 1962 Pat 343,345 case, the Court held that where a certain sum was paid under a contract as tilak was in contravention of this law and the parties could be prosecuted u/s 3 & 4 of Dowry Protection Act for contravening the law. This contract was prohibited by law.

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Indian Legal System > Civil Laws > Family Laws > The Dowry Prohibition Act, 1961 > Penalty for Giving, Taking, Abetting and Demanding Dowry

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