DOWRY, DOWRY LAWS AND THE STILL EXISTING CONCERNS (Cyriac Joseph)
Authored By- Cyriac Joseph
Abstract
Dowry is one of the long-rooted cause
violence against women in India. There are various reasons why this practice
still exists in our country and one of the major reasons for the same is the
problem that exists within those laws that are supposed to protect women for
dory related issues. The vague, ambiguous nature of the laws made it so easy
for the culprits to escape and these flaws really made the life of women more
difficult. Even after various amendments and modifications it’s a sad reality
that the problems still exist. Apart from the problems with the laws, the
attitude of people towards dowry is another reason why this still exist. Many
people don’t realise the fact that this system of dowry is taking us backwards
and is only creating hardships to women and to healthy family relationships.
Through this paper we look at the history of dowry, laws related to dowry, the
problems existing with dowry laws and the ways to tackle the long existing
problems of dowry.
Introduction
Even in this 21st century
there is no way other than to accept the fact that Dowry is still practising in
Indiaand the number of Dowry Deaths are increasing without a halt even after
these tough days of Covid Pandemic. It is such an important topic to be
discussed taking the fact that this so-called custom is still taking the lives
of poor women and breaking the healthy relationship of thousands of families.
The principle legislation in India which deals with Dowry and all related
aspects is the Dowry Prohibition Act of 1961. As a part of increasing the
effectiveness of this legislation the government has introduced two amendments
to this act, one in 1984 and the other in 1986. Giving, taking or demanding of
dowry in any sort is punishable under this act. The ineffectiveness of this Act
can easily be identified by the earlier statement itself as even though this
act prohibits all sorts of giving, taking and demanding of dowry this practise
still continues to haunt. It can easily be stated that Dowry is the long-lasting
contingent disease that our society is facing. It is truly horrifying to
believe that even after all these sorts of trauma and tards this practise still
exists in most parts of our country without any hesitation.
The saddest part of this Dowry
practise is that, it is totally taking off the values of marriage and is
transforming the marriage concept itself into some sort of exchange between the
families. Here women are turning into a material and the main reason why many
marriages happen is because they are keener towards dowry and not about having
a stable relationship. When we look historically in India, we can understand
that the concept of Dowry itself is entirely different from the way in which it
is existing now a days. Dowry is also known as ‘Streedhan’ and this is the
combination of two words Stree and Dhan, Stree means women and Dhan means
wealth. It tries to explain the concept of Streedhan as women being the wealth
of families and this concept of Streedhan is as giving women things in form of
money, land, property or any sort of gifts during the time of her marriage from
her family for the welfare of this newly married women. It is so ironic that
this concept and tradition of something that used to be acting as safeguarding
the rights of women are now acting as the biggest burden for the entire women
community.
Basic
Understanding And History Regarding Dowry
The tradition and system of Dowry
have a huge history in India and this practice of Dowry can easily be defined
as the things including property, goods, money, jewellery etc that the bride’s
family gives to the family f the groom during the time of marriage or any time
associated with that and this Dowry mainly acts as a condition towards
marriage. Dowry is not just cash and property, anything including vehicles,
utensils, electrical appliance all comes under dowry. Many a times this system
of Dowry puts lots of pressure and burden on the heads of bride’s family. The
legal definition of Dowry is givien under the Dowry Prohibition Act of 1961 and
it says that, “dowry” 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.[1]
When we look into the Indian History
in search of dowry, we can understand that, there are arguments towards both
the ends regarding the existence of dowry. Many claims that there wasn’t
anything like dowry and there is another group as well which claim that this
dowry system has been there for a long period of time. Many documentary
evidences suggest that rather than this dowry system the system that existed
during the beginning of the 20th century was bride price. A famous
German-American historian and Professor at Harvard University. Michael Witzel
claims that as per the Ancient Indian Literatures, during the Vedic period, the
practice of dowry wasn’t significant. Many of the historians, philologists,
mythologist and Indologist agree with this claim and it shows that this
practice of providing things to the bride and grooms family were there but was
different from the way it exists now. Most of all these claims are based on the
interpretation of ancient Literatures, Smritis and Vedas.[2]
At the same the observations made by
the eyewitnesses regarding dowry will give us a different understanding. One of
the eyewitness records from Alexander the Great conquest (ca. 300 BC) as recorded by
Arrian and Megasthenes. The first book by Arrian explains a condition which was
of lack of dowry. Arrian in his first book states that “the people of Ancient
India took marriages in way with certain principles and they are not concerned
about dowry and fortune, and the only things they care about is the beauty of
the bride and also the advantages of the coming person and
nothing else.”[3]In
his second book Arrian states that, “Indians marry without giving or taking
dowry in any manner and the common way that exists is when a girl is at here
marriageable age she will be put forward by her father to the public to be
selected by the victor in any of the manly exercises including wrestling,
running and boxing.”[4]
Thus, from this we can understand that the claims of the practice of dowry in
India have two sides were one group believes that it was predominant whereas
the other believes that it wasn’t been that dominant.
Dowry Laws
The premier
legislation in India against Dowry is the Dowry prohibition Act of 1961. In
order to increase the effectiveness as well as the rage of this act it has been
amended twice, once in 1984 and the other in 1986. As per the amendments
happened in 1986 it makes the judicial magistrate as well as the police to
investigate every unnatural death of a women happened after less than 7 years
of the marriage. Currently as per this act, the giving and taking of dowry is
totally prohibited and violation of these laws mentioned are punishable with
imprisonment between 6 months and 2 years and also with a fine up to ten
thousand rupees or the value of the given or taken dowry, whichever is greater.
Dowry related violence against women is criminalised in India by the Indian
Parliament and as per the Indian Penal Code also the crimes against women by
her husband and relatives in relation to dowry is perishable. The Indian Penal
Code also says are dowry deaths are offences which are punishable up to 7 years
of imprisonment. In addition to the Indian Penal Code, now the Code of Criminal
Procedure and the Indian Evidence Act also talks about dowry related crimes. As
per the provisions of CrPC, it is mandated that a police investigation must be
done on the death of women happened under un-natural circumnutates within 7
years from the date of her marriage. And now as per the Indian Evidence Act a
presumption of dowry death is created whenever a woman is dead had suffered
cruelty and harassment relating to dowry soon before her death. Sad reality
even after all these laws is that the number of women who are subjected to
cruelty and other harassments in relation to dowry and even dowry deaths are
not decreasing but in fact is actually increasing these days.
The Dowry Prohibition
Act of 1961 has consolidated all those anti dowry laws that existed during the
time of the enactment of this legislation. Section 3(1) of this act prohibits
all sorts of giving, taking or abets in giving of dowry and is punishable for
imprisonment of a term with minimum 5
years and a fine
more than fifteen thousand or the value of the received dowry, whichever is
greater.[5]
Dowry is explained under Section 2 the Act and it says that dowry is property
or anything as security which is given or agreed to be given in relation to the
marriage. Section 3(2) of the act says that nothing mentioned previously in
this section in relation to giving, taking and all of dowry will be applicable
to ‘presents’ which are given or taken without any demand during the time of
the marriage.[6]
Demanding dowry directly or indirectly is punishable as per this act including
an imprisonment of not less than 6 months and a fine of ten thousand rupees.
The act also says that the agreements made for the dowry are void ab initio in
nature and all dowry that are received by persons other than the marrying women
must be transferred to the concerned women. It is mentioned under the act if at
all a person is charged with an offence under this act, the burden of proving
vests on the person itself and not on the women or her family.[7]
Dowry Under IPC, Crpc & Evidence Act
As mentioned earlier
criminal statutes including the Indian Penal Code of 1860, The Code of Criminal
Procedure, 1973 and the Indian Evidence Act of 1872 all mentions about the
dowry as a punishable offence. Section 304(B) of the IPC talks about Dowry
Death and this section says that whenever a women in dead as a result of bodily
injury or harm or burn or the death is caused under an unusual circumstance and
is happened within 7 years of her marriage and there’s sufficient evidence
which can prove that she was subjected to cruelty and harassment from her
husband or their family in demand of dowry, then that death will be called as
dowry death and the husband and his family will be considered as responsible
for the same. Adding on Section 113(B) of the Indian Evidence Act talks about
presumption as to dowry death. And Section 113(A) of the Indian Evidence Act
mentions about presumption as to abetment of suicide by a married women and
abetment of suicide is an offence as per Section 306 of IPC. Many who were
escaping from conviction under the Dowry Prohibition Act came into the lights
through these 304B IPC and 113B Evidence Act. Along with this, Section 498(A)
of IPC talks about husband or relative of husband of a women subjecting her to
cruelty.[8]
Another important
legislation that talks about the concerns of women and in relation to Dowry is
the Protection of Women from Domestic Violence Act of 2005. This Act was
enacted to provide a civil law remedy for the protection of women from domestic
violence. The act covers all forms of
physical, verbal,
emotional, financial, and sexual abuse, and is a component of anti-dowry
legislation to the extent that it is one of the causes of domestic violence.
Section 3(b) of this Act says that any person who harasses, harms or injures a
woman with a view to coerce her or any other person in relation to her to ger
any demand for dowry which is unlawful will be considered as committed domestic
violence.[9]
Issues Existing Withdowry Laws
While we are looking
at the loopholes and issues that are existing with these Dowry Laws and its
implementation, we can understand that the major reasons why these Indian
statutes are so ineffective in preventing dowry related issues and they are
mainly due to the vague statutory language of these laws, the flaws that
happened resulting in the non-enforcement of these existing laws, the
traditional and cultural attitude that are existing even these days towards the
women and also mainly the economic discrimination that exists against women.
Vague statutory
language being one of the major problems with the dowry laws is for real. The
definition of dowry in the Dowry Prohibition Act itself is vague when they
exclude gifts and presents from the purview of dowry which made it so easy to
continue practising dowry. Even the punishments prescribed under this act is of
minimal nature which reduces the seriousness of this issue. The main purpose of
this act was itself to prohibit the practise of dowry but the provisions in
this act itself made the major purpose into a dead lock situation. Section 6 of
the Act says that dowry will be for the benefit of the wife or her heirs,
doesn’t it same as the promoting the practice of dowry? Another ineffectiveness
that can been seen in this legislation is that as per Section 8B of this Act,
there must be Dowry Prohibition
Officers(DPO), but now we can see that it is only few states which have taken
the initiative to appoint this DPO’s and many states haven’t. the general
public is not aware about these sorts of posts and even the officers are
clueless about their functions and duties because of the vague nature in which
their appointments are mentioned under the act.[10]
Even
though Section 498A and Section 304-B were inserted long before into the IPC,
till The Protection of women against Domestic Violence Act have come into
picture in 2005, none properly mentioned about the relief to the victim.
Another important issue is regarding the non-enforcement of existing laws. Many
a times the police and other responsible authority to look into the matter of
dowry doesn’t care much and because of their lack of care and effectiveness
majority number of dowry
crimes
are not getting reported and recent studies also suggest that the actual number
of dowry deaths in India twice the number of reported dowry deaths. Another
major reason why our statutory laws are ineffective is because of the cultural
attitudes towards women. This is one of the major reasons why it is getting so
difficult to implement dowry laws in a better manner in India. Due the early
days of a girl child itself she will be taught in such a way that one day she
will have to start living in the life of her husband and he person who is going
to marry her will be selected by her parents and family. Religion in India
teaches in such a way that wife must always be devoted to their husbands and
they are not supposed to talk against them. Even many families consider women
having divorce as something of shame and all these makes it so difficult for
women to come out of their tough situation. As this results in many cases of
domestic violence and dowry harassments under cover, it is difficult to serve
justice in a fuller manner even if the implementation of these laws is done
properly. [11]
Ineffectiveness As An Issue
One
of the major reasons why this curse of dowry death stills haunt India is
because of the ineffectiveness of Dowry Laws in India. Even after huge
awareness and campaigns conducted by various political and social forums the
trend that we can witness is that the cases of dowry harassments and dowry
deaths are increasing and never shown a dip. Sad reality is that in many parts
of India dowry deaths are unchecked.[12] Social stigma, still
existing economic discrimination against women all leads to these
ineffectiveness of dowry laws. Even though the laws have great powers still the
problem happens when the concerned authorities including the police and courts
doesn’tperform to the mark which they are actually supposed to do. The misuse
that’s happening with these dowry laws itself can show how ineffective these
laws. It is because of this ineffectiveness these laws are prone to misuse. The
wide range of allegations regarding the misuse of 498A of IPC is just an
example.[13]
Ambiguity As An Issue
The
ambiguity created under this Dowry Prohibition Act can be seen from the
definition of dowry provided in the act itself. The act defines dowry in such a
vague manner “a demand
for property of valuable security having an inextricable nexus with marriage.” There are various instances in which the cases were
dismissed because the court found that the said case doesn’t fit into the
definition provided by the act. The definition of dowry gets even complicated
through the existence of gifts and presents as an excluding factor from the
purview of dowry. Another major loophole that is created by this act is the
time requirements mentioned under this Act. As per the act, a murder to
constitute into a dowry death then the death must have happened within the
first 7 years of the marriage. That itself is vague and ambiguous in nature as
what kind of a certainty can we provide that the conflict for dowry will be
happening only in the first 7 years and not after? These sorts of loopholes
actually helped many from escaping conviction. Statistics of dowry murders in
India shows that this assumption of 7 years is such a blunder and actually a
pretty dangerous one to make.[14]
The second timing
requirement made under this Act is that the death must have happened in some
time ‘soon’after the demand or harassment for dowry has occurred. This
provision and timings are also vague in nature and had also created huge
confusions in courts as well. In the case of Kans Raj v. State of Punjab,[15]
the Supreme Court held that one month in between the harm or threat in relation
to dowry and the death will be coming under the ‘soon’ aspect. But in the case
of Sham Lal v. State of Haryana,[16]
the court held that 2-week gap between the harm or threat in relation to dowry
and the death is too long to be included under the ‘soon’ aspect. The
reasonable way in which this issue of timing requirement can be resolved is
only through striking down those timings. Here from these instances itself we
can understand how confusing and ambiguous these laws are and these flaws
itself is the major reason why we are struggling to tackle this huge social
issue of dowry.
Conclusion &
Suggestions
The history of Dowry as a custom,
issue, social problem all takes us hundreds of years back and now even in this
21st century we are discussing about the ways in which we can curb
this system. This itself can show how rooted dowry as a system is existing here
in our country. Be it tradition, custom or whatever but we all can agree to one
fact that everything must be existing for the welfare and betterment of the
society and not for the degradation or for the burden of anybody. Even though
we can point out some positive missions like using for the benefits of women
and all, Dowry never acted as somethings which made the women stood up. It
always restricted them and only acted as a burden towards the family of the
women. Many a times this practise had come to an extent were the marriage had
turned to a property transfer were women is the property. The demand for dowry
and the cruelty that women facing in demand and in relation to dowry is just
something common in India. The seriousness of this rises when we realise the fact
that we have a legal mechanism for the curbing of dowry and even made dowry a
prohibited practise. Just think how disastrous this legal mechanism must be to
have this dowry system still existing and dowry deaths happening. The fact that
dowry deaths haven’t even reduced during these pandemic days must make us
ashamed more than anything. We are people who talks about progress and equality
and we must realise one fact that progress doesn’t happen when women are
suffering. It will only happen when everyone is having equal rights an equal
protection. Thus, in order to achieve welfare and progress we all must realise
the amount of burden this dowry as a social issue creates and must come forward
and say no to dowry.
[1] The Dowry
Prohibition Act, 1961
[2]Muni
Buddhmal, TerapanthkeDrudhdharmiShravakArjunlaljiPorwal, KesrimaljiSuranaAbhinandaGranth,
1982, p95
[5]Section 3(1) of
Dowry Prohibition Act of 1961
[6]Section 3(2) of
Dowry Prohibition Act of 1961
[7]Agrahari, Gunjan (2011). Law Relating to Dowry
Prohibition, Cruelty, and Harassment: An up-to-Date, Lucid, and Exhaustive
Commentary with Case Law on the Dowry Prohibition Act, 1961. Delhi: India
Law House. pp. 36–55.
[8]Nangia, Anshu (1997). "The Tragedy of Bride Burning in
India: How Should the Law Address It?". Brook. J. Int'l L. 22:
637, 676.
[9]Suman. Nalwa and Hari Dev. Kohli (2011). Law Relating
to Dowry, Dowry Death, Cruelty to Women & Domestic Violence. New Delhi:
Universal Law Pub. Co. pp. 362–364.
[10]Dowry Prohibition Act- Attempting legal solution to a social
problem Times of India Blog, https://timesofindia.indiatimes.com/blogs/legally-speaking/dowry-prohibition-act-attempting-legal-solution-to-a-social-problem/
(last visited Apr 28, 2022)
[11]Dowry laws: Loopholes and Possibilities of misuse
Legalservicesindia.com, http://www.legalservicesindia.com/article/2034/Dowry-laws:-Loopholes-and-Possibilities-of-misuse.html#:~:text=Currently%2C%20the%20Act%20prohibits%20the,term%20of%20imprisonment%20of%20between
(last visited Apr 28, 2022)
[12]Manchandia, Purna (2005). "Practical Steps towards Eliminating
Dowry and Bride-Burning in India". Tul. J. Int'l & Comp.
[13]Bumiller, Elisabeth (1991). May You Be the Mother of
a Hundred Sons: A Journey Among the Women of India. Ballantine Books.
p. 59.
[14] DOWRY-MURDERS IN
INDIA: THE LAW & ITS ROLE IN THE CONTINUANCE OF THE WIFE BURNING
PHENOMENON- Sainabou Musa-pg- 238
[15] Id. at 816
(citing Kans v. State of Punjab, 556 LRI 3 (2000)
[16] Id. at 817
(discussing Sham Lal v. State of Haryana, 1997 Cr. L.J. 1927)