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Pro-prosecution policy

Legislation should include a pro-prosecution policy in cases where there is probable cause that domestic violence occurred. This will ensure that the violence is treated seriously by prosecutors and allow complainant/survivors to retain some agency about the decision. (See: UN Handbook, 3.8.3)

CASE STUDY: Laws should ensure that advocates are available to assist persons file a complaint before the magistrate in cases where police do not file a report. India’s Code of Criminal Procedure states that a court shall not take cognizance of an offence under Article 498A “Physical and mental cruelty to woman by husband and in-laws,” of the Penal Code except “upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father's or mother's brother or sister or, with the leave of the Court, by any other person related to her by blood, marriage or adoption” (Article 198A). See: Section on Absent Victim Prosecution.

Also, India’s Penal Code carries a presumption that the husband or relative committed the dowry death wherever: a woman dies by burns, bodily injury or other extraordinary circumstances, within seven years of her marriage, and evidence shows that shortly prior to her death her husband or his relative subjected her to harassment or cruelty, “for, in connection with, any demand for dowry” (Article 304(B)). Dowry death is a non-bailable and cognizable crime. India’s Evidence Act carries accompanying legislation, and Article 113(B) addresses presumption as to dowry death: “When the question is whether a person has committed the dowry death of a women and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry; the court shall presume that such person had caused the dowry death.” In Smt. Shanti v. State of Haryana, AIR 1991 SC 1226, a wife was sent to live with her mother- and sister-in-laws. The in-laws harassed the bride by demanding dowry and cruelty was established. The bride died within seven years of her marriage, and her body was quickly cremated without informing her parents and thus precluding opportunity for a post-mortem examination to determine cause of death. The Supreme Court ruled that this was an unnatural death, whether murder or suicidal. Even if a suicide, this still constitutes an unnatural death for purpose of Article 304(B). The requirement that the death occur within seven years of marriage is overly restrictive, however, as dowry demands and violence can continue to occur after seven years of marriage; in these cases, Article 302 “Punishment for Murder” apply. Laws should not impose a time restriction by which dowry deaths must occur after the marriage.

Drafters must balance the accused’s right to be presumed innocent until proved guilty according to law with the need to hold perpetrators accountable. Lawmakers should use character evidence laws to prove a defendant’s conduct and promote accountability. Legislation should allow the prosecutor to introduce evidence of prior acts by the defendant, including domestic violence, dowry demands, prior burnings or other stove-related accidents, and threats, to prove guilt, motive, preparation, planning, intent, and/or to acknowledge the absence of mistake or accident.

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