Section 8-A of the Dowry Prohibition Act, 1961, which places the burden of proof on the accused to prove that he did not commit an offence under Section 3 or Section 4 of the Act, is constitutionally and legally valid.

ORDER :

1. A Division Bench of this Court consisting of Hiremath and Sreenivasa Reddy, JJ. by the Order dated 13th April, 1993, has referred the following point of law for decision of the Full Bench as per Section 7 of the Karnataka High Court Act, 1961. The said point of law reads as under:

“Whether Section 8-A of the Dowry Prohibition Act, 1961 is constitutionally and legally valid.”

2. We have heard learned advocate appearing for the appellant-accused and the learned Advocate-General for respondent-State of Karnataka, as well as the learned Standing Counsel for the Central Government, who has waived service of notice issued to the Attorney-General as the constitutional validity of the provision of the Central Act, is under challenge.

3. Section 8-A of the Dowry Prohibition Act, 1961 (hereinafter referred to as the ‘Act’) reads as under:

“8-A. Burden of Proof in certain cases - Where any person is prosecuted for taking or abetting the taking of any dowry under Section 3 or the demanding of dowry under Section 4, the burden of proving that he had not committed an offence under those sections shall be on him.”

The learned advocate appearing for the appellant-accused vehemently contended that on a mere look at the said provision, it becomes clear that once a charge-sheet is filed against the concerned accused on the allegation that they have committed an offence under Section 3 or Section 4 of the Act, the entire burden to prove innocence rests on the accused and it may be that the prosecution may not lead any evidence and straightaway on the filing of such charge-sheet against the accused, the accused will be called upon to establish their innocence. That such a provision is highly arbitrary and unreasonable and it violates the fundamental rights of the accused guaranteed under Article 14, Article 20 (3) and Article 21 of the Constitution of India. Learned Advocate-General and the learned Standing Counsel for the Central Government on the other hand contended that the Section refers to burden of proof and is a rule of evidence. It is a procedural provision. It is well-known that in various acts dealing with criminal offences, burden to prove certain facts rests on the shoulders of the accused. But that does not make the provision unconstitutional and that once the prosecution proves basic facts for bringing home the offence with which the accused is charged, it is legally permissible for the Legislature to shift the burden for disproving remaining ingredients of the offence on the concerned accused. Consequently, the impugned provision is in no way unconstitutional. Learned advocates of respective parties have invited our attention to number of judgments and relevant provisions of other Acts dealing with criminal offences, for supporting their respective contentions.

4. For resolving the aforesaid controversy posed for our consideration, it will apposite in the first instance to look at the relevant provisions of the Act. The Act was enacted in 1961 by the Parliament. The Statement of Objects and Reasons underlying the said enactment, reads as under:

“The object of this Bill is to prohibit the evil practice of giving and taking of dowry. This question has been engaging the attention of the Government for some time past, and one of the methods by which this problem, which is essentially a social one, was sought to be tackled was by the conferment of improved property rights on women by the Hindu Succession Act, 1956. It is, however, felt that a law which makes the practice punishable and at the same time ensures that any dowry, if given does enure for the benefit of the wife will go a long way to educating public opinion and to the eradication of this evil. There has also been a persistent demand for such a law both in and outside Parliament. Hence, the present Bill. It, however, takes care to exclude presents in the form of clothes, ornaments, etc. which are customary at marriages provided the value thereof does not exceeds Rs. 2,000.