Evidence Law: Indian Evidence Act, 1872 / Bharatiya Sakshya Adhiniyam, 2023 (BSA)
Presumption as to Abetment of Suicide by a Married Woman under Section 117 of the Bharatiya Sakshya Adhiniyam, 2023
Section 117 is a discretionary presumption dressed in language that is frequently read as mandatory. It permits a court, where a married woman has taken her own life within seven years and cruelty is established, to presume that the suicide was abetted. It does not require the court to do so, and the words 'having regard to all the other circumstances of the case' are a real limitation rather than a formula. The difference between this section and the dowry-death presumption that follows it is deliberate, and it decides cases.
1. The Provision
Section 117, BSA — Presumption as to abetment of suicide by a married woman When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation. — For the purposes of this section, 'cruelty' shall have the same meaning as in the corresponding provision of the Bharatiya Nyaya Sanhita, 2023. |
Section 117 corresponds to Section 113A of the Indian Evidence Act, which was inserted by the Criminal Law (Second Amendment) Act, 1983 alongside the offence of cruelty by a husband or his relatives. The two were introduced together as a legislative response to a pattern the ordinary law was failing to reach.
2. The Ingredients
Four elements must be established before the section operates, and the section does nothing until all four are present.
- The question must be whether the suicide was abetted by the husband or a relative of the husband. The section is a presumption in aid of a charge of abetment; it does not create an offence.
- Suicide. It must be established that the death was suicide and not homicide or accident. Where the manner of death is in doubt, the section has no application, and the prosecution must establish suicide by evidence.
- Within seven years of the marriage. The period runs from the date of the marriage, and a death after seven years is outside the section entirely.
- Cruelty by the husband or such relative, within the meaning the Explanation adopts from the Bharatiya Nyaya Sanhita, 2023.
Only when all four are shown does the court reach the question the section actually poses — whether, having regard to all the other circumstances of the case, it should presume abetment.
⚠ The presumption is not the offence Section 117 permits a court to presume abetment. The offence itself is abetment of suicide under the Bharatiya Nyaya Sanhita, 2023, and the ingredients of abetment must be satisfied. A presumption that the suicide was abetted does not dispense with the requirement that abetment, as the substantive law defines it, be made out — and the decisions on what abetment requires are as important to a case under this section as the section itself. |
3. The Presumption Is Discretionary
This is the most important proposition about the section and the one most often stated wrongly.
Section 2(1)(h), BSA — 'May presume' Whenever it is provided by this Adhiniyam that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. |
The second limb is regularly omitted from summaries and is decisive here. A court faced with Section 117 may draw the inference of abetment, or it may call for proof of it — which puts the prosecution back to establishing abetment by ordinary evidence, as though the section were not there.
📖 Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 Held: The presumption corresponding to Section 117 is discretionary, not mandatory. The words 'may presume' leave it to the court to decide, having regard to all the other circumstances of the case, whether to draw the inference. The presumption does not arise merely because the two conditions — suicide within seven years and cruelty — are established; the court must be satisfied on the whole of the material that the suicide was abetted. On what constitutes instigation, the Court held that instigation is to goad, urge forward, provoke, incite or encourage the doing of an act. A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. Where the accused had used abusive language and told the deceased to go and die, that by itself was not instigation. Ratio: Section 117 is a may-presume provision, the qualifying words are a real limitation, and words spoken in anger without intending the consequence are not instigation. |
The consequence for practice is direct. A prosecution that proves the four ingredients and stops has not made out its case; it has only opened the door to a presumption the court may decline to draw. What the qualifying words require is that the court examine the whole of the circumstances — the nature and gravity of the cruelty, its proximity to the death, the state of the relationship, the deceased's own circumstances, and anything else bearing on whether the suicide was in truth abetted.
4. What the Court Weighs
The phrase 'having regard to all the other circumstances of the case' is the operative direction, and the matters courts examine under it are recognisable.
Consideration | Why it matters |
|---|---|
Gravity of the cruelty | Cruelty sufficient to constitute the offence is not necessarily cruelty of a kind likely to drive a person to suicide. The two questions are distinct |
Proximity in time | Cruelty long before the death, with nothing in the interval, supports the inference far less than conduct shortly before it |
Nature of the conduct | Sustained harassment differs from an isolated quarrel; a demand for dowry differs from a domestic argument |
The deceased's circumstances | Other causes of distress — illness, debt, an unrelated dispute — bear on whether the cruelty caused the suicide |
Immediate trigger | What happened on the day, and whether anything connects it to the accused |
Conduct of the accused | Before the death, at the time and afterwards, as conduct under Section 6(2) |
Any communication left by the deceased | A note may be relevant under Section 26(a) as a dying declaration, or as conduct, or as showing a state of mind under Section 12 |
The first row is the distinction that decides most contested cases. A finding that the accused subjected the deceased to cruelty is a finding on the fourth ingredient; it is not a finding that the cruelty was of a character likely to lead to suicide. Where the cruelty established is at the lower end of what the definition covers, a court may properly decline to draw the presumption.
5. Abetment Must Still Be Made Out
The presumption operates on the question of abetment, and abetment has a meaning supplied by the substantive law. Three decisions govern what it requires, and they set a demanding standard.
Instigation requires goading, urging forward, provoking, inciting or encouraging the doing of the act. Ramesh Kumar holds that a word uttered in anger or emotion, without intending the consequence to follow, is not instigation.
📖 Sanju alias Sanjay Singh Sengar v. State of Madhya Pradesh, (2002) 5 SCC 371 Held: Where the accused, in the course of a quarrel, had told the deceased 'go and die', and the deceased committed suicide two days later, the Court held that this did not amount to instigation. Words uttered in a quarrel or in a spur of the moment, such as 'to go and die', do not constitute instigation within the meaning of abetment. The deceased was found to have been under the influence of liquor and the utterance was not shown to have been made with the intention that he should act upon it. Ratio: Words spoken in the heat of a quarrel are not instigation, and the interval between the words and the act is material. |
📖 M. Mohan v. State represented by the Deputy Superintendent of Police, (2011) 3 SCC 626 Held: Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. There must be a clear mens rea to commit the offence, and an active or direct act which led the deceased to commit suicide, seeing no option, and that act must have been intended to push the deceased into such a position that he committed suicide. Ratio: Abetment requires a positive act, proximate to the suicide, accompanied by the intention that the deceased should take that course. |
The three decisions together establish that the substantive requirement is a real one and is not satisfied by proof of an unhappy marriage. What must appear is conduct amounting to instigation or intentional aid, accompanied by the necessary mental element, and proximate enough to the death for a connection to be drawn.
⚠ The presumption and the offence are separate enquiries A court applying Section 117 asks two questions. Should the presumption be drawn, having regard to all the circumstances? And, if drawn, is the offence of abetment made out on the material as a whole, including the mental element the substantive law requires? A conviction that recites the four ingredients, applies the presumption and stops has not addressed the second question — and the decisions on abetment show that it is where such cases most often fail. |
6. Section 117 and Section 118 Compared
The two sections sit side by side and differ in a way that is plainly intentional. The contrast is examinable and is also the most useful thing to know about either.
Section 117 — abetment of suicide | Section 118 — dowry death | |
|---|---|---|
Grade | May presume — discretionary | Shall presume — mandatory |
Manner of death | Suicide specifically | Death otherwise than in normal circumstances — suicide or homicide or accident |
Time limit | Within seven years of marriage | Within seven years of marriage |
Foundational conduct | Cruelty, of any kind within the definition | Cruelty or harassment for, or in connection with, a demand for dowry |
Proximity requirement | None expressed; proximity goes to the exercise of the discretion | 'Soon before her death' — an express element |
Qualifying words | 'Having regard to all the other circumstances of the case' | None |
Standard for the foundation | Shown | 'Shown' — deliberately not 'proved' |
Presumed fact | That the suicide was abetted | That the person caused the dowry death |
Court's choice | May draw the inference or decline | None, once the foundation is shown |
📖 Sher Singh alias Partapa v. State of Haryana, (2015) 3 SCC 724 Held: The word used in the provision corresponding to Section 118 is 'shown' and not 'proved', and the distinction is deliberate. The prosecution must show the foundational facts, after which the presumption operates and the onus shifts to the accused to disprove the presumed fact. The accused discharges that onus on a preponderance of probabilities, not beyond reasonable doubt. Relationship to Section 117: The contrast in drafting between the two provisions is significant. Where the legislature intended a mandatory presumption it said 'shall presume'; where it intended a discretionary one it said 'may presume' and added a direction to consider all the other circumstances. |
Two practical consequences follow from the contrast.
A prosecution frequently proceeds on both. Where a married woman dies within seven years in circumstances suggesting suicide and there is evidence of dowry demands, both sections may be available, and the mandatory presumption under Section 118 is much the stronger. A case argued only under Section 117 has given up an advantage.
The proximity requirements differ. Section 118 requires the cruelty or harassment to have occurred 'soon before' the death; Section 117 contains no such words, but proximity is among the circumstances the court weighs in deciding whether to presume. The practical effect is similar, but the burden differs — under Section 118 remoteness defeats the foundational fact, while under Section 117 it defeats the exercise of the discretion.
7. Where an Acquittal on Cruelty Leaves the Presumption
A question arises constantly in practice. Where the accused is charged both with cruelty and with abetment of suicide, and is acquitted of the cruelty charge, may the presumption under Section 117 nevertheless be applied?
The answer follows from the structure of the section. Cruelty is a foundational fact: the section operates only where it is shown that the husband or relative had subjected her to cruelty. An acquittal on the cruelty charge means the prosecution failed to establish that conduct to the criminal standard, and the foundation therefore fails.
The Supreme Court has so held, observing also that harassment is of a lesser degree than cruelty, and that a finding of harassment does not by itself lead to the conclusion that there was abetment of suicide. The two are distinct enquiries, and a finding at the lower level does not supply the foundation the section requires.
The practical consequence is that the cruelty charge is where such a prosecution is won or lost. Where it fails, the presumption is unavailable and abetment must be established by ordinary evidence — which, on the standard set by M. Mohan, is a demanding exercise.
8. Rebuttal
Where the court does draw the presumption, the accused must displace it, and the ordinary rules about reverse burdens apply.
The standard is a preponderance of probabilities. He need not disprove abetment beyond reasonable doubt; it is enough to render the presumed fact improbable or doubtful.
He may rely on the prosecution's own material. A probable answer may emerge entirely from cross-examination, and he need not enter the witness box.
The third question must still be asked. Even where the rebuttal fails, the court must consider whether the material nevertheless raises a reasonable doubt about the ingredients of abetment which the prosecution had independently to establish. A presumption displaces the presumption of innocence only so far as the presumed fact goes.
The material ordinarily relied upon in rebuttal includes evidence of another cause for the suicide, of the absence of proximity between the cruelty and the death, of the deceased's own circumstances, of the conduct of the accused at and after the time, and of the state of the relationship as a whole.
9. The Position Stated Shortly
- Four ingredients — the question of abetment, suicide, within seven years of marriage, and cruelty by the husband or his relative.
- The presumption is discretionary, and the court may instead call for proof of abetment — Ramesh Kumar.
- 'Having regard to all the other circumstances of the case' is a real limitation, not a formula, and directs the court to weigh gravity, proximity, other causes and the whole relationship.
- Cruelty sufficient for the offence is not necessarily cruelty likely to drive a person to suicide, and the two findings are distinct.
- Abetment must still be made out — a positive act, proximate to the suicide, with the necessary mental element — M. Mohan.
- Words spoken in anger are not instigation — Ramesh Kumar and Sanju — and the interval between the words and the act is material.
- Section 118 is mandatory where Section 117 is discretionary, and the contrast in drafting is deliberate.
- An acquittal on the cruelty charge removes the foundation, and the presumption is then unavailable.
10. Related Topics and Provisions
Topic or provision | Connection |
|---|---|
Reverse Burden of Proof | The framework within which this presumption operates |
Presumptions under the Bharatiya Sakshya Adhiniyam | The three grades, and the second limb of 'may presume' |
Burden of Proof — Sections 104 to 120 | The chapter as a whole, including Section 118 |
Shifting of the Burden of Proof | Express statutory reversal as a mechanism |
Dying Declaration — Section 26(a) | Where the deceased left a statement about the cause of her death |
Motive, Preparation and Conduct — Section 6 | Conduct of the accused before, at and after the death |
Section 12, BSA | Facts showing the state of mind of the deceased or the accused |
Bharatiya Nyaya Sanhita, 2023 | The definition of cruelty adopted by the Explanation, and the offence of abetment |