VERMA - (1.) PETITIONER's daughter Chhaya was married to respondent No. 2 Satish on 5-12-1984 and they started living together in their marital home at Bagasara. On 13-8-1986, Chhaya died at Bagasara. The petitioner and his wife got some vague information, about their daughter Chhaya and went to Bagasara, the same day but were unable to meet or see their daughter who had died. The petitioner suspected that their daughter's death was unnatural resulting from torture by her husband and his relatives. The petitioner filed a criminal complaint against respondents Nos. 2 to 5, who are the husband, his parents and sister which was transferred to the Court of Judicial Magistrate, First Class at Dhari and registered as Criminal Case No. 382 of 1988 for an offence under Section 498-A read with S. 34, Indian Penal Code The petitioner filed an application for committing the case to the Court of Session for trial for an offence punishable under Section 304-B, Indian Penal Code which was inserted in the Indian Penal Code by Act No. 43 of 1986 w.e.f. 19-11-1986. On 29-11-1988, the learned Magistrate dismissed the petitioner's application holding that this amendment being prospective was inapplicable to a death which occurred on 13-8-1986, prior to the amendment. Aggrieved by this order, the petitioner moved an application (Misc. Criminal Application No. 32 of 1989) in the High Court of Gujarat for a direction to commit this case of dowry death to the Court of Session since an offence punishable under S. 304-B is triable by the Court of Session. By the impugned order dated 10/01/1989, the High Court has dismissed that application. Hence this special leave petition.
(2.) LEAVE is granted. The point arising for our decision is the applicability of Section 304-B of the Indian Penal Code to the present case where the death alleged to be a dowry death occurred prior to insertion of Section 304-B in the Penal Code. This is the only ground on which the appellant claims trial of the case in the Court of Session. The reason given by the High Court to support its view is that the offence was committed prior to the date of insertion of Section 304-B in the Penal Code on account of which the section can have no application to the present case. None of the Courts below has examined the applicability of,any other preexisting more stringent provision even if Section 304-B does not apply. As such affirmation of the view that Section 304-B does not apply, will not preclude the appellant from contending that any other more stringent provision is attracted on the accusation made. If that point is raised, the Courts below will have to decide the same on merits on the basis of accusation made. It is in this background that the point raised by the appellant regarding applicability of Section 304-B is decided by us.
(3.) SECTION 304-B and the cognate provisions are meant for eradication of the social evil of dowry which has been the bane of Indian society and continues unabated in spite of emancipation of women and the women's liberation movement. This all pervading malady in our society has only a few lucky exceptions in spite of equal treatment and opportunity to boys and girls for education and career. Society continues to perpetuate the difference between them for the purpose of marriage and it is this distinction which makes the dowry system thrive. Even though for eradication of this social evil, effective steps can be taken by the society itself and the social sanctions of the community can be more deterrent, yet legal sanctions in the form of its prohibition and punishment are some steps in that direction. The Dowry Prohibition Act, 1961 was enacted for this purpose. The Report of the Joint Committee of Parliament quoted the observations of Jawaharlal Nehru to indicate the role of legislation in dealing with the social evil as under:- "Legislation cannot by itself normally solve deep-rooted social problems. One has to approach them 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 help public opinion to be given a certain shape." The enactment of Dowry Prohibition Act, 1961 in its original form was found inadequate. Experience shows that the demand of dowry and the mode of its recovery takes different forms to achieve the same result and various indirect and sophisticated methods are being used to avoid-leaving any evidence of the offence. Similarly, the consequences of non-fulfilment of the demand of dowry meted out to the unfortunate bride takes different forms to avoid any apparent causal connection between the demand of dowry and its prejudicial effect on the bride. This experience has led to several other legislative measures in the continuing battle to combat with this evil.;