The Calcutta High Court has ruled that voluntary gifts given by relatives and friends before or after the wedding to the bride or the bridegroom and which are not given as a consideration for marriage but out of love and affection, will not fall within the definition of 'dowry' under the Dowry Prohibition Act (Netai Ghosh v. State of West Bengal).

Justice Bibek Chaudhuri ruled that while dowry as a quid pro quo for marriage is prohibited, giving of traditional presents to the bride or the bride groom by friends and relatives is not.

"Thus, voluntary presents given at or before or after the marriage to the bride or the bridegroom, as the case may be, of a traditional nature, which are given not as a consideration for marriage but out of love, affection on regard, would not fall within the mischief of the expression 'dowry' made punishable under the Act," the Court said.

The Court, therefore, acquitted the husband of the deceased and his mother in the dowry death case against them.

The Court was hearing an appeal filed by the accused against a judgment Additional Sessions Judge at Barasat, North 24 Parganas convicting them for offences under Sections 498A (husband or relative of husband of a woman subjecting her to cruelty) and 304B (dowry death) of the Indian Penal Code

The case stemmed from a complaint of dowry death filed by one Nirmal Ghosh regarding the death of his daughter, Soma.

He stated in his complaint that Soma committed suicide due to physical and mental torture for dowry inflicted upon her by her husband Netai Ghosh, mother-in-law and one Shankar Ghosh who was the husband of Netai Ghosh's sister.

The complaint stated that at the time of marriage, Nirmal Ghosh had given bridal presents as per his financial capacity. It was decided before marriage that he would also give a gold chain to the accused within six months of the marriage.

However, immediately after marriage, the husband, his mother and sister of the husband started abusing her. It was also stated that she was subjected to physical assault. On August 4, 2011 the complainant came to know that Soma had died by consuming poison.

Based on the complaint, case was registered for offences under Sections 498A and 304B.

The trial court held the appellants guilty for committing offence under Section 498A and 304B of the Indian Penal Code mainly on the following grounds: first, the witnesses on behalf of the prosecution cannot be disbelieved only because they are closely related with deceased and all the witnesses stated that deceased Soma was tortured by the appellants both physically and mentally demanding the gold chain; second, the deceased had met with an unnatural death within 44 days of marriage; And third, the defence failed to prove its case.

In appeal before the High Court, it was pointed out by the counsel for the accused that the complainant never alleged about any demand for dowry by the accused.

Some bridal presents were given by the complainant and presents given by parents at the time of marriage do not come within the definition of dowry under the Dowry Prohibition Act, it was contended.

It was also pointed out that the witnesses who attested to torture of the deceased by the accused were all closely related to the deceased and very much interested to see the appellants convicted and sentenced.

"If a married lady is tortured both physically and mentally at her matrimonial home the neighbours residing around the house of the accused persons are natural witnesses who would know about the incident. The prosecution failed to bring any neighbour of the matrimonial home of the deceased," the counsel for the accused-appellants submitted.

The accused persons also took defence that the deceased Soma was very ill tempered and had illicit relation with the husband of Netai Ghosh's sister.

The State rebutted the submissions arguing that in cases of torture arising from matrimonial relations, harassment generally happens in the secrecy of the house and it becomes very difficult for the prosecution to lead the evidence.

"No other member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours whose evidence may be of some assistance, are generally reluctant to depose in Court as they do not want to antagonize a neighbourhood family," the State counsel submitted.

He further submitted that if a woman, after her marriage is tortured, humiliated and harassed for dowry, the lady will naturally narrate such incident to her parents and other close relations.

He further argued that considering the small time gap of 44 days between solemnization of marriage and date of death, the trial court rightly applied the presumption of law contained in Section 113B of the Indian Evidence Act.

After examining rival contentions, the Court proceeded to examine the scope of the term "dowry" contained in Section 2 of the Dowry Prohibition Act.

"The legislature has in its wisdom while providing for the definition of 'dowry' emphasized that any money, property or valuable security given, as a consideration for marriage, before, at or after the marriage would be covered by the expression dowry,” the Court noted in its order.

The definition cannot be applied merely to the “demand” of money, property or valuable security made at or after the performance of marriage, the Court said.

"Thus, any demand of money, property or valuable security made from the bride or her parents or other relatives by the bridegroom or his parents or other relatives or vice versa would fail within the mischief of “dowry” under the Act where such demand is not properly referable to any legally recognized claim and is relatable only to the consideration of marriage," the Court underscored.

The Court also said that voluntary presents given at or before or after the marriage to the bride or the bridegroom cannot be considered dowry.

In this regard, reliance was placed on the Supreme Court judgment in S Gopal Reddy v. State of Andhra Pradesh (AIR 1996 SC 2084).

In the instant case, the Court noted that the complainant had himself said that he voluntarily gave bridal presents according to his capacity.

It was decided that he would give a gold chain after six months of marriage. The said six months had not expired and within 44 days after her marriage the deceased met with unnatural death, the Court observed.

"Under the facts and circumstances of the case it is absolutely natural and probable that if a married lady is tortured at her matrimonial home immediately after marriage, the near relatives of the lady would intervene and try to settle the dispute. There is absolutely no evidence that prior to her death the witnesses and others tried to settle the alleged dispute between the parties during the life time of Soma," the Court noted.

The Court further said that there was evidence that Soma was ill tempered.

"Therefore if at all any incident of quarrel broke out between the appellants and Soma here the nature of Soma was not such that she would silently digest the allegations made against her," the judgment said.

Further, the Court noted that the report of the autopsy surgeon showed that he was not in a position to give his final opinion as to the cause of death before receiving the chemical examiner’s report of the viscera of the deceased.

Based on the above grounds, the Court set aside the order of the trial court and acquitted the accused.

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