Open Access Research Article
THE PROBLEM WITH ANTI-DOWRY LAWS OF INDIA BY: SAHIL ARORA
Published Paper
Article Details
THE PROBLEM
WITH ANTI-DOWRY
LAWS OF
INDIA
Student: 8th Semester
B.A.LL.B.
Guru Nanak Dev University (GNDU),
Amritsar
Abstract
Marriages in India are considered a
highly revered union, which is believed to unite together not just two
individuals, but two families as well. But unfortunately, due to the rise of
materialistic mindsets among the people of today, this sacred bond is getting tarnished.
Just to fulfil their greed or take revenger or fulfil ulterior motives, some
people have fallen to such an extent that they do not hesitate even for a
moment to file any frivolous case against someone. Shockingly, a significant
chunk of this originates from those laws which were made for the protection of
the women who have to face unjust treatment or unreasonable demands from their
in-laws or even her husband as well. Although there is a pressing need for such
laws, but because of the presence of loopholes accompanied by several other
external factors, have raised doubts in the minds of general public as to
whether we should actually protect that section of society which is filing such
false cases. Due to the actions of a few people, many genuine victims still
continue to suffer. Therefore, it is crucial to understand and admit that there
exists a problem in our country dowry laws and they have to be amended as soon
as possible.
Keywords
1. Dowry
2. Cruelty
3. Domestic
violence
4. Marriage
customs
5. Bride price
Introduction
According to some news sources, in
the span of 5 years, i.e., from 2016 to 2021, around 22.8 lakh cases of crime
against women were recorded in India, out of which 30% of these cases were only
under Section 498A, which talks about “cruelty” against women by her husband or
his relatives[1]. But at
the same time, for the same section, the 243rd Law Commission Report
(which came in 2012) shows that the conviction rate in such cases is only
around 21.2%, as per the data of NCRB[2].
And now some sources even say that this rate has reduced to around 13% (in the
year 2018)[3].
Another interesting point to consider
is that, as per Article 20(2)[4] of
the Indian Constitution[5],
which talks about double jeopardy, which means that no individual shall be
arrested or punished twice for the same offence, but our Indian legal system
has itself provided a loophole by providing different provisions for the same
act. An example of this is can be taken for the act of cruelty, i.e., if a
woman is having some ulterior motives, she can fulfil them by filing different
complaints under different sections like Section 498A[6],
406[7],
507[8],
377[9],
384[10]
of the IPC[11], then
Section 125[12] of the
CrPC[13],
then under the Domestic Violence Act[14],
and in last divorce. And to aggravate all this, she can even choose to file
different cases in different courts of different jurisdictions.
So, the question which will be tried
to be resolved through this article is that, in spite of the existence of
various dowry prohibition laws, the cases related to dowry have not shown any
signs of reduction. Additionally, it has come to light that the laws, which
were originally made to protect and safeguard women’s rights, have been misused
as a means to cause misery to innocent individuals, specifically men.
Definition
and Laws in relation to Dowry
1. The Dowry
Prohibition Act, 1961
The most prevalent definition of the
word ‘dowry’ that is used in our legal justice system is of Section 2[15]
of the “Dowry Prohibition Act”[16],
which means ‘any property or valuable security given or agreed to be given
either directly or indirectly-
(a) by one party to a marriage to the
other party to the marriage; or
(b) by the parents of either party to
a marriage or by any other person, to either party to the marriage or to any
other person;
at or before or any time after the
marriage in connection with the marriage of the said parties, but does not
include dower or mahr in the case of persons to whom the Muslim Personal Law
(Shariat) applies’.
This Act prescribes penalties for various
things; for instance, the penalty for giving or taking dowry (as per Section 3[17])
is imprisonment for not less than 5 years, with a fine not less than Rs. 15,000
or the amount of value of dowry, whichever is more. Similarly, there is a
penalty for even demanding the dowry, either directly or indirectly (as per
Section 4[18]).
2. The Indian Penal
Code (IPC), 1860
Apart from this Act, if someone
(woman or her relatives) wants to file a case in relation to dowry harassment,
they can approach the courts under ‘Section 498A of the IPC’ also, as
explanation (b) of it deals with the same issue along with the essence of
cruelty in it. And the punishment prescribed under this provision is
imprisonment for a maximum of 3 years along with fine.
Similarly, there’s another provision
in the law that specifically deals with dowry, which is ‘Section 304-B of the
IPC[19]’,
which deals with the death of a woman in connection with a demand for dowry.
The punishment under this provision is imprisonment for a term which shall not be
less than 7 years and which may be extended to life imprisonment.
3. The Indian
Evidence Act, 1872
Along with the above Section of 304-B
of the IPC, ‘Section 113-B[20]
of the Indian Evidence Act[21]’
provides that if a woman dies and any connection between her death and demand
for dowry is found, it shall be presumed that the person who subjected her to
cruelty for dowry had caused that dowry death.
4. The Protection of
Women from Domestic Violence Act, 2005
Another provision that directly deals
with this concept of dowry is the ‘Protection of Women from Domestic Violence
Act’ whose Section 3[22]
defines the term domestic violence and clause (b) of the same considers
harassing, injuring or endangering the aggrieved person so as to meet any
unlawful demand of dowry within its ambit.
Now there’s no debate on this point
that all of these laws and Acts along with similar other provisions were
brought to safeguard the women from the harassment or torture by her husband or
relatives of the husband. And there’s no doubt that there is still a need for such
laws to protect the women from such acts of cruelty. But the problem which
persists is that why even after having so many legal safeguards, the purpose
for which they were made is still not achieved. And moreover, has led to the
creation of new problems. Now if an answer is to be made in one line only,
which connects these laws and problems, it would be that these laws are not at
all gender-neutral. In order to protect one gender (women), the Indian legal
system has become somewhat biased, thus violating many of the fundamental
guarantees provided under other laws to the rest of its citizens. And what else
has led to reaching to such a situation will be discussed in detail in later
part of this article.
Thoughts of
Higher Bodies
·
POSITIVE THOUGHTS-
After the unfortunate
incidence of Nirbhaya gang rape in 2012, a committee was formed to bring some
stringent and necessary changes to the criminal law. Thus, the “Justice Verma
Committee” was the outcome of this incident, and this Committee provided a
report[23]
in which it accepted that out of several crimes that are committed, many of
them have a specific gender dimension in India, in regard to women, and
especially in relation to dowry, such as acid attacks on women for denying dowry
(page 146 of this report; point 4); or committing bride burning or
murder for the sake of extracting dowry again or to marry another woman (page
241; point 35(b)). And to deal with such instances, several changes are
talked about in the existing laws and processes only. In those changes
themselves, some were in regard to the dowry also specifically, such as:
a) as per two circulars of the Delhi
Police in 2011 and 2012, information is to be provided by the investigation
officer to the complainant or victim of dowry cases whenever the accused tries
to apply for a bail, so that the victim can oppose that bail application on
time (pages 306-307; point 29);
b) recommendations made by the Election
Commission of India to the Government in 1998 and 2004 that if any charges are
framed against any candidate for any offence whose punishment is imprisonment
for a term of 5 years or more, that candidate should be disqualified from
contesting the elections. Unfortunately, these proposals were ignored by the
Parliament at that time (pages 340-343; point 1-4);
c) recommended amendment by the Election
Commission to Section 8[24]
of the Representation of People Act, 1951[25], suggesting
disqualification on conviction for certain offences, including the provisions
of the Dowry Prohibition Act, from contesting elections if a charge sheet has
been filed and court has taken cognizance for the same (page 343-345; point
5) and same has been recommended by the Verma Committee also (page
454-456; point 5); and
d) recommendation has been made by the
Verma Committee itself that all marriages in India should be registered in the
presence of a magistrate who will ensure that both parties have full and free
consent for the marriage and that the marriage has been solemnised without any
demand for dowry having been made (page 415; point 2).
·
NEGATIVE THOUGHTS-
1. In the year 2000, “The Malimath
Committee” was formed with the aim of reforming India’s criminal justice
system, and in 2003, a report[26]
was provided by the said committee. This report has discussed a few instances
that communicate the shortcomings of some provisions of the law related to
offences against women and has also made some recommendations for the same,
such as in order to deal with the complaints regarding misuse of Section 498A
of the IPC by the wife, through which she can get the husband and his relatives
arrested immediately and then send them behind bars, which can even sometimes
result in losing his job, it was recommended that offences under this section
be made bailable and compoundable. But till date this step has not been taken
due to one or another reason (page 290-291; point 16).
2. In the year 2005, in a landmark case
named Sushil Kumar Sharma vs Union of India and Ors.[27],
the Supreme Court of India observed the misuse of Section 498A of the IPC as a
‘legal terrorism’. It was said that “by misuse of the provision (Section 498A),
a new legal terrorism can be unleashed. The provision is intended to be used as
a shield and not an assassin’s weapon”.
3. In the year 2015, the then Minister
of State for Home, Kiren Rijiju, said in the Rajya Sabha that “Section 498A is
very stringent, so stringent that it is being misused”[28]. He makes this statement while favouring the
stand that this section should be made a compoundable, which is still
non-bailable and non-compoundable as of now. Although he assured that there
would be no compromise in the protection of women who are harassed, when some
women MPs protested against that point.
4. In the year 2023, the Calcutta High
Court in the case of Swapan Kumar Das @ Swapan Das vs State of West Bengal[29],
made a similar observation regarding Section 498A that misuse of it unleashed a
new legal terrorism.
Problems or
Loopholes in our laws
Before going into the problematic
parts of these anti-dowry laws, one thing that needs to be admitted is that
there is actually a problem. And that problem is actually leading to severe
consequences. It is true that no law is perfect in itself, but here, the points
(problems) which will be discussed are the ones that can be understood and
accepted by a common man also with a basic understanding and knowledge of law.
Some of these points are admitted by the judiciary itself to be loopholes which
are often misused, but because of having limited power in bringing about
changes in the laws, they have to be dependent on the mercy of the legislature
for the changes.
Following are some of the problems or
loopholes which have transformed the tool originally designed for a shield into
a weapon, which is now being misused for harassing the innocent ones:
1. Not
Gender Neutrality in Laws
Specifically considering
the laws which were made for the protection of women, for example, rape or
dowry, they were and till date, because of their wording, affected the other
genders adversely. No doubt Article 15(3)[30]
of the Indian Constitution allows the State to make special provisions for
women, but making special provisions does not in any way mean that the other
genders (men and LGBTQ+) are to be neglected. The laws should be made in such a
manner that, on one hand, they provide protection to all their citizens, and on
the other hand, they prevent its misuse by and upon any other citizen. The
initial step to deal with it can be to replace the words ‘women’ and ‘men’ with
“people” and ‘wife’ and ‘husband’ with “spouse”, wherever possible, through
which some of the problems of even the LGBTQ+ community can be sort out.
2. No
Strict Implementation
The biggest example of
this can be seen in the violation of anti-dowry laws itself. According to some researches,
the cases of dowry demand have increased over the year, where before the year
1940, dowry was given in 35-40% of the marriages; this number grew to nearly
90% by the year 1999[31][32].
These numbers clearly show that the give and take of dowry is being conducted
without any fear of law or by using loopholes, like in the form of “presents”
(last proviso of Section 3 of the Dowry Prohibition Act).
3. No
Time Frame to Complete Trial
This point acts as a
double-edged sword in legal battles. For instance, due to the long dates given
by the judges in cases and the over-burden of other cases as well, these types
of cases get stretched over a long period of time, and the phrase ‘justice
delayed is justice denied’ becomes the reality for many women. But on the
other hand, this same long process of trial completion is used as a tool by
many women to harass the opposite party so as to meet their unlawful demands. Thus,
a particular time frame needs to be fixed not only for this but for every case,
which can be extended only when it is required.
4. Ineffective
Follow-up of Procedure
In 2003, the state of
Andhra Pradesh made Section 498A compoundable, which is a major legal provision
to deal with dowry related cases, but whenever the same change is demanded at
the central level, the foremost argument which is raised is that this will lessen
the fear among the culprits and they might force the victim to take back their
complaint. This happens because unfortunately, today, a common man does not
feel himself safe in front of the police, and many times it is seen that the
victim (usually woman’s and/or their family) bribes the police to insert those
legal provisions in their chargesheet, which are not at all true, just to
harass the opposite party, and on the other side the accused party (usually
husband’s and/or their family) bribes the police to delay the process of law. This
can be corrected a bit by having a strict check on the working of the police
officials.
5. No
Proper Remedy Once Released Innocent
The belief of people in
our legal system is still prevalent even after many problems, but one thing of
which very little is talked about is that whenever any false or frivolous case
is filed against anyone, and after years when it comes out that the case was
filed with ill motives, our courts most of the time only declare the accused
party as “innocent” and/or “not guilty”. It is considered that freedom itself
is a big remedy, but unfortunately, the time, money and energy spent in those
years fighting for their rights cannot be compensated just by these few words.
Although the falsely accused party can file counter-cases like those of
defamation and presentation of false evidences, but the court should themselves
also try to give a proper remedy to the innocent party by at least punishing
the party who filed false cases.
6. Publication
of Identity Needs to be Regulated
Section 228-A[33]
of the IPC is a legal provision that deals with the disclosure of identity of
the “victim” of certain offences. This section prevents disclosing the identity
of the victim in certain cases, but unfortunately, this provision nowhere talks
about the one who is accused, because of which many times it is seen that in
many cases the name of the victim (who alleged a false case) is kept secret
initially, but the person who is falsely accused by her, his name is openly circulated
everywhere. News portals and social media do not wait for the completion of the
trial, and as soon as they get any updates, they keep on publishing them. And
many times, when it comes out that the person who was accused is actually
innocent, he had already suffered a lot, and a few times it is reported that
they have committed suicide as they were not able to handle the false
allegations and comments[34][35][36].
And a report also states that due to the alleged misuse of Section 498A of IPC,
every nine minutes a married man commits suicide in India, resulting in around
64,000 suicides every year[37].
Conclusion
The Justice Verma Committee Report
has mentioned a UN study called the “In-depth Study on all forms of Violence
against Women,” which finds that ‘non-implementation or ineffective
implementation of existing domestic laws in most countries was the single most
important reason for continued immunity to perpetrators of violence against
women particularly in intimate relationship’ (page 67-68; point 30).
Although this point was provided only with respect to women, but today the condition
of society shows that it is applicable equally to both men and women. Effective
implementation is not just to punish the wrongdoer correctly; it must first be
to identify who’s the real wrongdoer. There must be no straight-jacket rule or
preconceived notion to consider any specific gender guilty right from the
beginning of the trial.
The advocates prime duty is to
protect the interests of their clients, but this should not be stretched to
such an extent that the advocates, just for greed of more money, willingly
fight a false case or assist their clients in making their case strong by
putting those legal provisions which are in reality not required. And most
importantly, no law or court decision or strict implementation will work to
solve these societal issues until and unless the people themselves don’t
understand that their moral values should be above anything else, and this is
because, even today, people sometimes tend to follow either their inner voice
or the voice of society, forgetting what is actually right for them and their
loved ones.
[1] Nikhil Rampal, Cruelty by
husbands and their relatives makes up one-third of crimes against women in
India: MoSPI, THEPRINT (Jan. 15, 2024, 1:07 PM)), https://theprint.in/india/cruelty-by-husbands-and-their-relatives-makes-up-one-third-of-crimes-against-women-in-india-mospi/1470481/.
[3] Conviction Ratio in 498A Case,
MAHESH TIWARI & ASSOCIATES https://www.maheshtiwarilegal.com/498a/conviction-ratio-in-498a-case (last visited Jan. 15, 2024).
[4] INDIA CONST. art. 20, cl. 2.
[5] INDIA CONST. 1950.
[6] The Indian Penal Code, 1860, §
498A, No. 45, Acts of Parliament, 1860 (India).
[7] The Indian Penal Code, 1860, §
406, No. 45, Acts of Parliament, 1860 (India).
[8] The Indian Penal Code, 1860, §
507, No. 45, Acts of Parliament, 1860 (India).
[9] The Indian Penal Code, 1860, §
377, No. 45, Acts of Parliament, 1860 (India).
[10] The Indian Penal Code, 1860, §
384, No. 45, Acts of Parliament, 1860 (India).
[11] The Indian Penal Code, 1860, No.
45, Acts of Parliament, 1860 (India).
[12] The Code of Criminal Procedure,
1973, § 125, No. 2, Acts of Parliament, 1973 (India).
[13] The Code of Criminal Procedure,
1973, No. 2, Acts of Parliament, 1973 (India).
[14] The Protection of Women from
Domestic Violence Act, 2005, No. 43, Acts of Parliament, 2005 (India).
[15] The Dowry Prohibition Act, 1961, §
2, No. 28, Acts of Parliament, 1961 (India).
[16] The Dowry Prohibition Act, 1961,
No. 28, Acts of Parliament, 1961 (India).
[17] The Dowry Prohibition Act, 1961, §
3, No. 28, Acts of Parliament, 1961 (India).
[19] The Indian Penal Code, 1860, §
304B, No. 45, Acts of Parliament, 1860 (India).
[20] The Indian Evidence Act, 1872, §
113B, No. 1, Acts of Parliament, 1872 (India).
[21] The Indian Evidence Act, 1872, No.
1, Acts of Parliament, 1872 (India).
[22] The Protection of Women from
Domestic Violence Act, 2005, § 3, No. 43, Acts of Parliament, 2005 (India).
[23] REPORT OF THE COMMITTEE ON
AMENDMENTS TO CRIMINAL LAW, SPUWAC 1, (2013), https://spuwac.in/pdf/jsvermacommittereport.pdf.
[24] The Representation of the People
Act, 1951, § 8, No. 43, Acts of Parliament, 1951 (India).
[26] Committee on Reforms of
Criminal Justice System, 1 Ministry of Home Affairs 1, (2003), https://www.mha.gov.in/sites/default/files/criminal_justice_system.pdf.
[27] Sushil Kumar Sharma v. Union of
India and Ors., AIR 2005 SUPREME COURT 3100.
[28] Deeptiman Tiwary, Anti-dowry
law to be amended, will allow room for compromise, THE TIMES OF INDIA (Jan.
15, 2024, 1:58 PM), https://m.timesofindia.com/india/anti-dowry-law-to-be-amended-will-allow-room-for-compromise/articleshow/47276715.cms.
[29] Swapan Kumar Das v. State of West
Bengal & Ors., (2023) SCC Online Cal 2427.
[31] Gaurav Chiplunkar and Jeffrey
Weaver, Dowry in India: evolution, prevalence, and policy responses,
GLOBALDEV BLOG (Jan. 15, 2024, 2:18 PM), https://globaldev.blog/dowry-india-evolution-prevalence-and-policy-responses/#:~:text=Dowry%20was%20paid%20only%20in,of%20dowry%20payments%20also%20increased.
[32] Soutik Biswas, How prosperity
fuels dowry demand in India, BBC NEWS (Jan. 15, 2024, 2:22 PM), https://www.bbc.com/news/world-asia-india-65682796.amp.
[33] The Indian Penal Code, 1860, §
228A, No. 45, Acts of Parliament, 1860 (India).
[34] Sneha Agarwal, Man commits
suicide, wife flies dowry harassment case against him, INDIA TODAY (Jan.
15, 2024, 2:26 PM), https://www.indiatoday.in/mail-today/story/man-commits-suicide-wife-files-dowry-harassment-case-against-him-325137-2016-05-24.
[35] Team VFMI, Sonipat Man, His
Parents, Die By Suicide After Getting Bail In Alleged False Dowry Harassment
Case, VOICE FOR MEN (Jan. 15, 2024, 2:33 PM), https://voiceformenindia.com/sonipat-man-his-parents-die-by-suicide-after-getting-bail-in-alleged-false-dowry-harassment-case/.
[36] Bharat Khanna, Punjab: Man
facing dowry charges commits suicide, THE TIMES OF INDIA (Jan. 15, 2024,
2:39 PM) https://timesofindia.indiatimes.com/city/chandigarh/man-facing-dowry-charges-commits-suicide/articleshow/74052004.cms.
[37] PTI, Cases of married men
committing suicide on the rise: Report, DECCAN HERALD (Jan. 15, 2024, 2:45
PM), https://www.deccanherald.com/india/cases-married-men-committing-suicide-2286341.
Article Information
THE PROBLEM WITH ANTI-DOWRY LAWS OF INDIA BY: SAHIL ARORA
Authors: SAHIL ARORA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/23
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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