INTRODUCTION
Dowry related violence is responsible for thousands of deaths every year and still exists more than 60 years after the Dowry Prohibition Act was passed in 1961. The National Crime Records Bureau (NCRB) also has its statistics to present. In one year alone, India registered 5,737 cases of dowry deaths, which translates to more than 16 deaths every day or one death every ninety minutes.[1] In addition, more than 1.2 lakh cases of cruelty by husbands or relatives were registered, indicating the continued prevalence of domestic abuse related to dowry demands.[2] The Supreme Court has time and again expressed anxiety over the continued existence of this social ill and the shocking number of deaths of women, who are being killed in the comfort of their conjugal homes for demanding a dowry.[3]
The problem with the law lies in the nature of the offence of dowry deaths. Harassment and acts of cruelty are usually committed in private domestic places where there are no independent witnesses. Therefore, it is very hard to establish responsibility using traditional criminal law criteria.
To meet this evidentiary challenge, Parliament has established a new structure that is different from the usual one in which the prosecution has the burden of proving guilt. Section 118 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), formerly Section 113B of the Indian Evidence Act, 1972, gives courts the authority to presume that the accused caused a dowry death if certain foundational facts can be established.[4]
This blog explores the arguments for this statutory presumption, considers the case law surrounding Section 118 BSA, and questions whether the provision reaches the correct balance between the aims of protecting victims and the right to a fair trial.
LEGAL FRAMEWORK
Dowry death, as an offence, is now regulated by Section 80 of the Bharatiya Nyaya Sanhita, 2023 (BNS). A Dowry Death is one where a woman suffers burns, bodily injury or dies in some way other than in normal circumstances within seven years of marriage and it is established that she was subjected to some act of cruelty or harassment in connection with a demand for dowry soon before her death. [5]
The corresponding provision is Section 118 BSA. It requires the court to presume that the accused caused the dowry death where it is shown that a woman was subjected to dowry related cruelty or harassment shortly before her death.[6]
The term “dowry” is defined in Section 2 of the Dowry Prohibition Act, 1961, and includes any property or valuable security given in conjunction with marriage.[7]
These measures put in place a special structure to address these evidentiary hurdles that are frequently faced in dowry death cases.
WHY IS BURDEN OF PROOF SHIFTED?
“Presumption of innocence” is a basic tenet of criminal jurisprudence. In a trial, the prosecution must prove the defendant’s guilt “beyond reasonable doubt,” and the defendant is under no obligation to prove innocence.
But dowry death cases have their own set of difficulties. The acts of cruelty are usually secretive, and the victim may be the only one to witness them. When the case comes to trial, the victim has already been deceased and can no longer be present to give evidence. So, rigid application of the normal rules of evidence would make prosecution very complex.
In light of these facts, Parliament enacted Section 304B IPC and Section 113B of the Evidence Act through the Dowry Prohibition (Amendment) Act, 1986.[8] The goal was to make sure that those committing the crimes did not escape punishment simply because the evidence was confined within the matrimonial household.[9]
In Kans Raj v State of Punjab, the Supreme Court considered this issue and stated that the traditional evidentiary principles could be insufficient for cases of prolonged domestic abuse with the resultant fatalities.[10]
WHERE DOES THE PRESUMPTION UNDER SECTION 118 ARISE?
While Section 118 BSA is a strong presumption, it is not automatic. Before the burden shifts, prosecution must prove foundational facts necessary pursuant to Section 80 BNS:
- The women passed away in an unusual manner
- Death happened within 7 years of marriage
- She was subjected to cruel and harsh treatment
- Such cruelty or harassment was linked to a demand for dowry; and
- The harassment occurred soon before her death. [11]
The term “soon before her death” has created a plethora of judicial interpretation.
In Rajinder Singh v State of Punjab, the Supreme Court had dismissed a narrow temporal interpretation and explained that the phrase “soon before” does not mean “immediately before”.[12] Instead, means a closer connection between the dowry-related harassment and the death would be considered.
This was reiterated in Satbir Singh v State of Haryana, where the Court states that the meaning of word “harassment” is relative and has to be judged on facts of each case.[13] The prosecution must establish a “proximate and live link” between the harassment and death, rather than prove that an incident happened immediately before the fatal event.[14]
These decisions safeguard the presumption whilst at the same time making sure that offenders can’t evade responsibility on a technicality of timeline.
PRESUMPTION: NOT A SHORTCUT TO CONVICTION
One of the most important judicial protections against the misuse of the clause can be seen in the case of Baijnath vs State of Madhya Pradesh.[15] Here, The Supreme Court set aside a conviction after determining that the prosecution failed to prove cruelty in connection to the dowry, just prior to the victim’s death. The Court stated that proof of such harassment is a sine qua non to invoke the statutory presumption.[16]
The Court made it clear that the presumption does not muddy the waters for a prosecution that fails to make up for its shortcomings. The burden must be placed on the accused after credible evidence is provided for the foundational facts.
This reasoning maintains an important facet of criminal integrity. While Section 118 changes the general rule of proof, it does not remove from the prosecution’s obligation to prove the ingredients of the offence beyond reasonable doubt. It is therefore not to be interpreted as amounting to a departure from the principle of presumption of innocence from the beginning. Instead, it establishes a “conditional” evidentiary process that only comes into play after a prosecutor has discharged its preliminary burden.
WHERE DOES THE PRESUMPTION BECOME TOO STRONG?
The judgment in Sher Singh alias Partapa v State of Haryana has been criticized for shifting the evidentiary burden towards the accused after the statutory presumption is raised, thus disrupting the established prosecutor-defendant paradigm. [17] But critics argue that a broad reading of the presumption threatens to erode the presumption of innocence and could lead to an unfair burden on the accused to prove their innocence.
But subsequent decisions have allayed these fears to a considerable degree. In the case of Baijnath and Satbir Singh, the courts have been wary of imposing the presumption and remain adamant about the need for strong evidence of basic facts.[18]
Moreover, in Satbir Singh, the Court called for a careful recording of statements made by the accused under Section 313 of the Code of Criminal Procedure and ensuring a meaningful opportunity for the accused to explain incriminating circumstances against him.[19] These procedural safeguards further reflect the principle that the battle against the issue of dowry deaths should not be fought at the expense of basic guarantees of criminal justice.
THE BHARATIYA SAKSHYA ADHINIYAM, 2023: CHANGE OR CONTINUITY?
The BSA, 2023 has not significantly affected the law pertaining to dowry death presumptions. Section 118 BSA largely reproduces the framework that previously existed under Section 113B of the Evidence Act.
There have been some recent judicial developments that seem to be continuity rather than change. In Ram Pyarey v State of Uttar Pradesh, the Supreme Court reiterated the importance of evidentiary safeguards while considering presumptions relating to matrimonial offences. [20] On the other hand, there are also consistent judicial pronouncements that presumptions are strong weapons of the court but cannot take the place of evidence.
Thus, the shift from the Evidence Act to the BSA is a continuity in both the structure and interpretation of the legislation.
CONCLUSION
Section 118 of Bharatiya Sakshya Adhiniyam, 2023 is one of the most major amendments to the traditional criminal law maxim that the burden of proof of guilt lies on the prosecution. However, this shift arose out of a practical consideration. Meanwhile, Supreme Court opinions make clear that the presumption is not automatic and it is rebuttable. The court has time and again tried to uphold the constitution’s promise to equally before the law with the goal of protecting women from dowry violence.
So, the real challenge for courts is not choosing between victim protection and fair trial rights but ensuring that neither objective is fulfilled at the cost of another.
Author(s) Name: Sharvi Goyal (O.P. Jindal Global University)
References:
[1] National Crime Records Bureau, ‘Crime in India 2024’ (Ministry of Home Affairs 2026).
[2] ibid
[3] Amisha Shrivastava, ‘Dowry Deaths: How Supreme Court Has Repeatedly Raised Concerns Over Continuing Dowry Menace’ (LiveLaw, 2026) <https://www.livelaw.in/top-stories/dowry-deaths-how-supreme-court-has-repeatedly-raised-concerns-over-continuing-dowry-menace-538381> accessed 23 June 2026.
[4] Bharatiya Sakshya Adhiniyam 2023, s 118.
[5] Bharatiya Nyaya Sanhita 2023, s 80.
[6] Bharatiya Sakshya Adhiniyam 2023, s 118.
[7] Dowry Prohibition Act 1961, s 2.
[8] Dowry Prohibition (Amendment) Act 1986.
[9] Dowry Prohibition (Amendment) Bill 1986, Statement of Objects and Reasons; Kans Raj v State of Punjab (2000) 5 SCC 207.
[10]Kans Raj v. State of Punjab (2000) 5 SCC 207.
[11] Bharatiya Nyaya Sanhita 2023, s 80.
[12] Rajinder Singh v. State of Punjab (2015) 6 SCC 477.
[13] Satbir Singh v. State of Haryana (2021) 6 SCC 1.
[14] ibid
[15] Baijnath v. State of Madhya Pradesh (2017) 1 SCC 101.
[16] Baijnath v. State of Madhya Pradesh (2017) 1 SCC 101.
[17] Sher Singh alias Partapa v State of Haryana (2015) 3 SCC 724.
[18] Baijnath (n 15); Satbir Singh (n 13).
[19] Satbir Singh (n 13).
[20] Ram Pyarey v. State of Uttar Pradesh [2025] 1 SCR 484.