dowry death & indian scenario ssrn-id1180222

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DOWRY IN INDIA- A SOCIO LEGAL STUDY

SHARDA

CHANAKYA NATIONAL LAW UNIVERSITY

GAINDHI MAIDAN

PATNA.

MAY, 2008

[email protected]

Ph. +91 9470018204, 0612- 2260870

Address- D/o Dr. Sanjay Kumar

Mahesh Nagar

Patna-24

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INTRODUCTION

Dowry is the amount payable during marriage as a consideration for marriage. As per S. 498 A

of IPC dowry demand amounts to domestic violence. It is also a ground for divorce as it amount

to cruelty. Dowry prohibition act has come into force on 1961 however it has failed to curtail

dowry demand.

Yatra naryastu pujayante, ramyante, tatra devta (Gods live where woman is worshiped).

Womens position in ancient India was much better than what it is now. No religious ceremony

was complete without the involvement of women. Instances can be taken from Ramayana where

Ram has to create an idol of Sita as Ashwmegh yaga cannot be completed without a better half.

During 4000-1000 BC women were treated relatively equitably and with a fair deal. It is said

that there were 32 women compilers of Rig Veda who expounded the Vedic literature.

Gradually however, Brahmins monopolized the religious sphere. As opposed to the prior times,

now if any religious ceremony had to take place, the Brahmins alone had the right to conduct it.

People accepted Brahmins as the only means that could have any direct contact with the

Almighty. In the era of Brahmin supremacy patriarchy saw new heights. It is this period that

witnessed the degradation in the position of women among many other evils. Untouchability,

confining knowledge, domination of one group in interpreting texts etc forced women to spend

more time in cooking and caring than in receiving education.

Then came the laws- the Smritis and the Puranas- the laws that further gave a legal backing to

the Brahmins supremacy and absolved all independent status of women. She was now either a

daughter or a wife- never an individual! Education was not her forte any more. She was excluded

even from the religious ceremonies.

In medieval India the status of women suffered a set back. With the advent of Muslim in 1010

A.D, Parda system became prevalent. Women were considered as an evil that incite men and so

they are asked to cover themselves in hijab. Hindus became very protective of their religion and

that rigidness was visible when freedom of woman was restrained.

During British rule, there was improvement in the status of women. Widow remarriage act,

prohibiting sati and female education was given importance. A public movement headed by Raja

Ram Mohan Roy, Abolition of Sati Act of 1829 was passed during William Benticks period.

Keshav Chandra Sen was instrumental in getting Native Marriages Act, 1872, which abolished

early marriages, polygamy and allowed widow remarriages inter caste marriages. Pandit Ishwara

Chandra Vidya Sagar and Prof. Karve were instrumental in getting Hindu widow Remarriage

Act, 1856 passed. Caste Disabilities Removal Act is passed in 1850. Long before India gained

independence, the then provincial Government of Sind passed an enactment known as "Sind Deti

Leti Act, 1939" with a view to deal effectively with the evils of dowry system but the enactment

had neither any impact nor could create the desired effect.

After independence succession law was changed to give equal share to the females. The

customary gift which father gave to daughter, with the passage of time took the shape of dowry.

It was no more voluntary but was extortion. During the last few decades the evils of dowry

system has taken an acute form in almost all parts of the country and in almost all the sections of

society. In a bid to eradicate this evil from the society, the State Governments of Bihar and

Andhra Pradesh enacted "The Bihar Dowry Restraint Act, 1950" and "The Andhra Pradesh

Dowry Prohibition Act, 1958" for the respective States, but both these enactments failed to

achieve the objectives for which they were enacted.

The dowry is not peculiar to India alone. We find this concept in Roman law also. This is a

contribution made generally by the father and bride herself or any other person on her behalf

towards the upkeep of the joint household. It became almost the invariable practice for a Dos

to be given to her fair share of expenses.1 It can be compared with the concept of stridhana in

Hindus which was in the form of ornaments, clothes, jewelry and cash. The stridhana provided

her a sort if financial security. The two concepts of varadakshina and stridhana together assumed

the form of dowry, which was unknown to ancient Hindu Law.

WHY DOWRY

Marriage is not a lottery .Dowry is demand by the grooms family and is given by bride family,

sometimes willingly and sometime unwillingly. Females are considered as depended able

member of the family. So, bride fathers pay the dowry as an economic burden increases in the

grooms family. Love for money is the root cause of all the evil. Grooms who are in highly paid

job, are in demand, but their supply is less as compare to demand, so the dowry amount increase

as per the status of the groom.

1. Dowry: A Security for Standard Living : Mohammed Umar : Cochin University Law Review: June, 1990 pp.193-194.

Two explanations for dowry inflation in India are put forward2: (i) the marriage squeeze

hypothesis, and (ii) hyper gamy (increased demand for socio-economically more successful

husbands). The marriage squeeze hypothesis maintains that due to population growth and the

gender age gap at marriage, marriageable men are scarce relative to marriageable women. The

econometric evidence for India on this hypothesis is not conclusive.3

The urban-rural ratio of per capita domestic product increased from 1.83 in 1950 to 2.56 in

19704. Given the slow pace of urbanization, there is a large return for a rural bride to be able to

marry an urban groom. As Caldwell, Reddy, and Caldwell emphasize, Parents desire their

daughters to marry educated men with urban jobs, because such men have higher and more

certain incomes, which are not subject to climatic cycles and which are paid monthly, and

because the wives of such men will be freed from the drudgery of rural work and will usually

live apart from their parents-in-law.5

In a sellers market, created by relative scarcity, there was no alternative but to offer a dowry

with ones daughter. Consistent with this explanation, one finds that in South India, especially

in Madras, in the 1930s the practice of dowry spread firstly among the Brahman community

2 John C.Cladwell;, Palli Hanumantha Reddy and Pat Cadwell , The Causes of Marriage Change in South India. Population Studies, November 1983, 37 (3), pp. 34361. 3 Rao, Vijayendra. The Rising Price of Husbands: A Hedonic Analysis of Dowry Increases in Rural India. Journal of Political Economy, June 1993, 101 (3), pp. 66677, Edlund, Lena. Dowry Inflation: A Comment. Journal of Political Economy, December 2000, 108 (6), pp. 132733, Dalmia, Sonia. A Hedonic Analysis of Marriage Transactions in India: Estimating Demand for Dowries and Grooms Characteristics in Marriage. Research in Economics (forthcoming). 4 Mohan, Rakesh. Urbanization in Indias Future. Population and Development Review, December 1985, 11 (4), pp. 61945. 5 Supra p.347.

where men gained early access to European education and salaried employment in the public

sector6. Moreover, all over India, new opportunities to earn cash wages in factories, government

jobs, and white collar occupations have been secured more by men than women.7 Therefore,

even in the urban context, brides potential contribution to family income has become relatively

smaller when compared to prospective grooms. The hyper gamy theory may explain the

expansion and intensification of the practice of dowry occurring in recent decades in India.8

Sometimes women themselves ask for dowry as one who brings more dowries is respected more

in comparison to womens who bring less dowry. Daughters did not have property right in her

fathers property so she received gifts during her wedding. It was only after 2005 that daughters

were made coparceners.9 But property right has nothing to do with dowry demand. There are

many instances were in marriage of single daughters too one has to give dowry. Usually parents

give daughters more than their capacity. They have to sell their property, take loan from people

to satisfy the want of groom family. At the time of marriage, women were given jewelries and

clothe. This was given out of love and affection. The groom family neither asked for it nor was

this gift a burden on the bride family. The property she held was her own and it constitute her

6 Lardinois, Roland. India: the Family, the State and Women. In A History of the Family. Volume II. The Impact of Modernity, edited by Andr Burguire, Christiane Klapisch-Zuber, Martine Segalen, Franoise Zonabend. Cambridge, MA: The Belknap Press of Harvard University Press, 1996, pp. 268300. 7 Sharma, Ursula. Dowry in North India: its Consequences for Women. In Family, Kinship and Marriage in India, edited by Patricia Uberoi. Delhi: Oxford University Press, 1993, pp. 34156. 8 Evidence from contemporary China provides further support to the hyper gamy theory. During the 1940s characterized by war and disorder, many tenant farmers in the villages managed to acquire land from their landlords and became rich. These newly wealthy households in the villages arranged marriages with elite families in towns; in doing so, they provided larger and larger dowries to their daughters. Siu, Helen F. The Revival of Brideprice and Dowry in Rural Guangdong. In Family Strategies in Post-Mao China, edited by Deborah Davis and Stevan Harrel, 1990, p. 16-17. 9 Hindu Succession amendment bill 2005;section 6.

stridhan. However there is much difference between stridhan and dowry. Stridhan does not

comprise of what a woman gets from her parents but it also included all that she received from

her husband and also in-laws. No body has a right over this property of women. She was the sole

owner and after her death it was distributed as she desired. Dowry is given as a consideration of

marriage. Bride has no right over it and it is used and spent in the manner as desired by grooms

family.

To understand the reason why dowry is given, it is important to find out, where the dowry

amount is spend. Mr. Ranjan Prasad10 has two sons. He said that in the marriage of his eldest

son, he received more dowry as compare to his younger son. So, his eldest daughter in law got

more jewelry from their side. Majority of amount which is given as dowry is spend by grooms

family in marriage ceremonies. The amount of jewelries, cloths or other gifts which bride family

receives depends on the amount they pay as dowry. However there are also many families who

take dowry to invest in other plans. There are chances that these families may exploit bride to get

more and more from their parents. These families marry their sons in such families who offer

maximum amount of dowry.

Dowry is a means or an instrument in the hands of grooms who uses it to harass the females. It is

a known fact that divorce is not very common in Indian society, so males exploit this fact by

asking women for more dowries. Social stigma never allows women to leave her husband house

and return to her fathers house. Here starts all form of torture and inhuman treatment which is

called domestic violence. Husband knew that it is travailing father still he will endeavor hard for

it. 10 Name changed.

Early marriage, illiteracy of girl, population problem all are directly linked to dowry demand.

Bride parents do not want to educate their girl child as the money which they have saved is for

their marriage and not for their education. So they want to marry their daughters as early as

possible and shift the burden of education on grooms family. After marriage bride has to

discharge the responsibility of being a daughter-in-law and a wife who is the carrier of family

culture and tradition. It is true that many families do respect the wishes of their daughter in law

and support her. But it can not be denied that she is not independent. She has to dependent on the

wishes of others. Right from Manu Smriti to present day India the same ideology is revolving;

i.e. women should not be independent. She has to adhere to her father than her husband and

finally her son. Hinduism is one of the few religions where we have female deities, but in reality

women are burnt, tortured and abetted to commit suicide, the reason being dowry.

LAWS CONCERNING DOWRY

The perspective of Government from Welfare to Development is seen only since 6th five-year

plan. By 7th plan Government of India focused on Socio-Economic Programmes for Women.

This not only inculcated confidence about their own potential but also made women realize their

rights and privileges.

Department of Women and Child Development (in the Ministry of Human Resource

Development) was set up in 1985. The Department has responsibility of coordinating and

monitoring programmes for development of women under different ministries. For Technical

Support the Government in 1986 setup National Institute of Public Co-operation and Child

Development. In Government of India we observe there are as many as 15 programmes for the

development of women, which have 30 schemes exclusively for women, the other 52 being for

men and women. Government spends 575 crores on these schemes which are for the economic

development, welfare, education, health, nutrition and awareness of women. However, we must

admit the reach of these programmes to rural, poor and tribal women is low. There is rarely a

spokesperson or advocate for the slain bride, and the legal system is often inaccessible for all but

the upper classes. Those citizens aware of the remedies under the law are usually reluctant to

pursue them. Overflowing dockets11 and unreliable police investigations make enforcement of

dowry-related legislation weak at best. 12

Theoretically, this gap between social ill and domestic legislation should be filled by the

international human rights regime, which aims to remedy serious human rights violations

when nations are unwilling or unable to do so using their sovereign powers.13Unfortunately,

the current international human rights mechanisms do not adequately address problems such as

dowry murder, where domestic efforts to combat the problem have already been attempted.

India is a party to several human rights instruments which provide theoretical remedies to the

dowry murder problem, including the International Covenant on Civil and Political Rights

11 Kalpana Sharma, Rooted Custom (Nov. 2002), at http://www.indiatogether.org/opinions/ kalpana/dowvict.htm.

12 Chowdhary, supra note 8, at 154-55; Laurel Remers Pardee, The Dilemma of Dowry Deaths: Domestic Disgrace or International Human Rights Catastrophe? 13 Ariz. J. Int'l & Comp. L. 491, 501 (1996).

13 See generally Louis Henkin, The Age of Rights (1990), reprinted in Human Rights, at 2 (Louis Henkin et al eds., 1999.

(ICCPR),14 the International Covenant on Economic, Social, and Cultural Rights (ICESCR),15

the Convention on the Elimination of All Forms of Discrimination Against Women

(CEDAW), 16and the Convention on the Rights of the Child (CRC).17

CEDAW codifies the rights most relevant to the discussion of dowry-related violence: the

rights of women. CEDAW was adopted by the United Nations in 1979, and is often referred to

as an international bill of rights for women. 18CEDAW marked a vital point in human rights

discourse, as women's rights were formally recognized as worthy of a special committee and

unique consideration.19 CEDAW defines discrimination against women and codifies

14 The International Covenant on Civil and Political Rights, G.A Res. 2200A(XXI), U.N. GAOR, Supp. No. 16, at 52, U.N Doc. A/6316 (1966), available at http://www.unhchr.ch/html/menu3/ b/a ccpr.htm (last visited September 12, 2003) [hereinafter ICCPR]. Manjaree Chowdhary, Miles to Go: An Assessment of the Enforcement Hurdles in the Implementation of the Anti-Dowry Law in India, in South Asians and the Dowry Problem 151, 151 (Werner Menski ed., 1998); see also Debasree Banerjee, Dowry Verdict: Half-Step Forward, The Hindustan Times, Aug. 11, 1996, at 2.

15 The International Covenant on Economic, Social and Cultural Rights, G.A Res. 2200A(XXI), U.N. GAOR, Supp. No. 16, at 49, U.N Doc. A/6316 (1966), available at http://www.unhchr.ch/html/menu3/b/a cescr.htm (last visited Sept. 12, 2003) [hereinafter ICESCR].

16 The Convention on the Elimination of All Forms of Discrimination Against Women, G.A Res. 34/180, U.N GAOR, Supp. No. 46, at 193, U.N Doc. A/34/46 (1979), available at http://www.un.org/womenwatch/daw/cedaw (last visited Sept. 21, 2003) [hereinafter CEDAW].

17 The Convention on the Rights of the Child, G.A. Res. 44/25, Annex 44, U.N GAOR, Supp. No. 49, at 167, U.N Doc. A / 4 4 / 4 9 ( 1 9 8 9 ) , a v a i l a b l e a t http://www1.umn.edu/humanrts/instree/k2crc. htm (last visited Oct. 15, 2003) [hereinafter CRC].

18 The Convention on the Rights of the Child, G.A. Res. 44/25, Annex 44, U.N GAOR, Supp. No. 49, at 167, U.N Doc. A / 4 4 / 4 9 ( 1 9 8 9 ) , a v a i l a b l e a t http://www1.umn.edu/humanrts/instree/k2crc. htm (last visited Oct. 15, 2003) [hereinafter CRC].

19 Following this initial phase of activism in the 1960s and 1970s, a second victory for the women's rights movement came in the 1980s, when women's rights were finally recognized as human rights. This victory was formalized at the Vienna Conference on Human Rights in the Declaration on the Elimination of Violence Against Women, G.A. Res. 48/104, U.N. GAOR, Supp. No. 49, at 217, U.N Doc. A/48/49(1993), available at http://www1.umn.edu/humanrts/instree/e4devw.htm (last visited May. 21, 2008).

responsibilities of state parties to combat such discrimination.20 CEDAW proposes that state

parties use legislation-oriented remedies to combat violence and discrimination against

women. Such provisions include the incorporation of gender equality clauses into their legal

systems, and the creation of special tribunals to enforce these clauses.

Since anticipation of a high dowry demand frequently results in the abortion of female fetuses

and the murder or abandonment of female infants and children, the CRC is another

international human rights treaty critical to the discussion of dowry- related violence. The

CRC, as its name suggests, encodes the specific rights of children deemed necessary for

children to live full and productive lives. The CRC defines a child as any individual under the

age of eighteen. 21The following rights encoded in the CRC are relevant to the discussion of

dowry-related violence: the right of each child to be afforded the rights contained in the CRC

without discrimination; 22the right to life; the right to form his or her own views; freedom of

expression, thought, conscience and religion; protection from mental and physical violence;

the right to education; and the right to be protected from economic exploitation.

CEDAW has effectively recognized the status of women as a vital element of human rights

discourse, and most importantly, an element deserving of its own monitoring mechanism.

However, CEDAW, with its heavy emphasis on legislative mechanisms, holds India to

standards that are not meaningful given the current status of dowry-related legislation. Other

20 CEDAW defines discrimination against women as "any distinction, exclusion, or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment, or exercise by women irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field." CEDAW, supra note 71, at Art. 1. 21 Article 1 of CRC. 22 Article 2 of CRC.

CEDAW provisions are plainly unrealistic in a developing nation. Clearly, CEDAW seems

designed largely for nations who have yet to enact particular legislation, and less for those

whose problems cannot be solved by law alone. If CEDAW could adequately address the

complexity of gender problems like dowry murder, the result would be a more meaningful set

of rules to which developing nations could realistically adhere.

Besides recommending that India adhere more closely to CEDAW's provisions, the CEDAW

Committee has also urged India23 to sign and ratify CEDAW's Optional Protocol ("the

Optional Protocol"), 24which allows women to appeal individually to the CEDAW Committee

for violations committed against them. 25The Optional Protocol to CEDAW, similar to the

well-known Optional Protocol under the ICCPR, allows the CEDAW Committee to hear

petitions from individual women, as well as groups of women, who feel that their rights under

CEDAW have not been respected and enforced.26In addition, under the Optional Protocol, the

CEDAW Committee conducts investigations of "grave and systematic" violations of the

CEDAW Convention at its discretion. Only states that are parties to CEDAW are able to join

23 See, e.g., CEDAW Concluding Observations on India, CEDAW/C/SR.452, 453 and 462, January 2000, Cmt. 88, available e at http://sim.law.uu.nl/SIM/CaseLaw/uncom.nsf/0/f1e04b43b6059 b32c12568c0003992b9?OpenDocument.

24 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, GA Res. 4, U.N. GAOR, 54 Sess., Supp. No. 49 (Vol. 1), at 4, U.N. Doc. A/RES/54/4 (1999) [hereinafter CEDAW Optional Protocol].

25 For an explanation of the CEDAW Optional Protocol, see Disabled Women's Network Ontario, Interview with Alison Symington: How Can Women Use the Optional Protocol of CEDAW?, at http://dawn.thot.net/cedaw.html (last visited Sept. 11, 2003).

26 CEDAW Optional Protocol, supra note 110. Fifty- five states have ratified the CEDAW Optional Protocol as of August 25, 2003, including other South Asian nations such as Bangladesh and Sri Lanka; Nepal is a signatory, though it has not yet ratified the Protocol. See United Nations Division for the Advancement of Women, Signatures to and Ratifications of the O p t i o n a l P r o t o c o l , a t http://www.un.org/womenwatch/daw/cedaw/sigop.htm (last visited Sept. 11, 2003).

the Optional Protocol. 27Though India is a party to CEDAW, it has not joined the Optional

Protocol.28

The Dowry Prohibition Bill was passed in the Joint Sittings of both the Houses of Parliament and

it became an Act - The Dowry Prohibition Act, 1961 (28 of 1961) and it received the assent of

the President on 20th May, 1961. Dowry Prohibition Act, 1961 was amended twice once in

1984 and second time in 1986 and the second amendment came into existence on 19th

November 1989 - whereby the offence is made cognizable and the punishment is enhanced. Any

agreement for giving or taking dowry is void.29 But there is no answer to the question that if

marriage is commenced based on void agreement than will the marriage also is void?

DOWRY AS DEFINED IN DOWRY PROHIBITION ACT

Dowry means any property or valuable assets given by one party in marriage to another party in

marriage. However there hardly exists a case where dowry is given by bridegroom to the bride.

So, one can easily make out that dowry is given by bride family to groom family. Dowry does

not include anything given as a custom but such gifts must be entered in a list maintained in

accordance with rule made under this Act. If any dispute arose as to whether a particular item

given during or before or after marriage by one part to another party to marriage is a gift or

dowry, court will consider the financial status of the person giving gift. If it appears that it is

27 See Disabled Women's Network Ontario, supra note 23.

28 S e e http://www.un.org/womenwatch/daw/cedaw/sigop.htm for a list of countries that have ratified the CEDAW Optional Protocol. 29 Sec. 5 of prohibition act 1961; here in after DPA.

more than what a person can afford court may very well presume that it is a dowry and not a

gift.30 A demand for money on account of some financial stringency or for meeting some urgent

domestic expenses or for purchasing manure cannot be termed as a demand for dowry- as the

said word is normally understood.31 So the term dowry must be interpreted in a striker sense.

Broad meaning to the word dowry will result in miscarriage of justice. Dowry is a criminal

offence, so strict interpretation should be given to the terms used in the act.

The difference between dowry and gift as per Sec. 2 of DPA is that anything which is given

without demand and the person giving it or on behalf of bride or any person related to bride, such

presents are of customary nature and the value thereof is not excessive having regard to the

financial status of the person by whom, or on whose behalf presents are given is a gift. Dowry

means anything given in consideration of marriage and it affects the financial status of the

party32. If one alleges dowry demand than one has to prove that the things demanded were in

consideration of marriage, and the defense to it lies in proving that the things were not demanded

and whatever was received was a gift which is of customarily nature. All such gift must be

mentioned in the list in accordance with the act. It is very hard to prove that there exist a nexus

between things given and marriage. Customary payments i.e., given at the time of birth of a child

or other ceremonies as are prevalent in different societies are not covered by the expression

dowry33.

30 Sec. 2 (b) of DPA. 31 Appasaheb and ans. v. State of Maharastra 2007 1 MLJ 1142 SC. 32 Sec 3 of DPA. 33 Ram Singh and ans. v. St of Haryana & ans. 2008 1 MLJ 1365 SC

What is required is that there must be a reform as indirectly taking of dowry is allowed. In

India wedding is not confined to bride and groom only. Everybody including the neighbor

takes part in it. So it is a cause to be celebrated with great pomp and show. Given this,

celebrations, which are a time of intense public scrutiny, become arenas where reputations are

managed and enhanced. Lifecycle events become theaters where public reputations are

maintained, and stadiums where people compete in games of status competition, going beyond

their role as milestones. The rules of the game are determined by kinship systems, ritual

calendars, the distribution of wealth and caste, and other structural endowments that are slow

to change and therefore can be considered as exogenous constraints in the short term. Because

these structures provide rules for what is considered appropriate behavior, they determine the

criteria by which people are judged. Some willingly spend all those they have saved and for

some it is hard to spend much as they have so many daughters to marry. There is a need for a

law which banns spending on marriage ceremonies including exchange of gifts which exceed

more than a certain percentage of the annual income of thee parents. People would have to

understand that marriage is also a ceremony like other ceremonies, so spending must not

exceed more than what people can afford.

Every wedding requires a minimum level of expenditure that depends upon norms in the

community. A basic celebration may help maintain one's status within the village, but a lavish

wedding represents something else. Spending more than what is expected provides people in

the village with new information that helps them update their perception of one's social status.

In particular, if the bride is marrying a prestigious groom--prestigious because he is either rich

or well educated--then this marriage alliance has status benefits for the wife's family.

However, a lavish wedding without some real change in status may simply give people the

impression that the spender is extravagant.

PENALITY FOR DOWRY DEMAND

Judges have discretion in giving punishments. It is so because no hard and fast rule can be

applied in each and every case. Likewise the punishment for dowry taking is 5 years and fine

amounting to the value of dowry or 15000 rs/. Whichever is more34? Judges can give lesser or

graver punishment than this depending on the facts and circumstances of the case. The principal

of res judicata is not applied in criminal case. But judges need to record in writing about the

reason for sentencing the person. Punishment for demanding dowry is six month imprisonment.35

Sec. 4A empowers court to punish a person who prints or publishes or circulate any

advertisement relating to dowry demand for an imprisonment of 6 month and fine of Rs 15,000.

Where a complaint is filed under sec. 4 of the dowry prohibition act and also under sec. 498A

I.P.C for cruelty of wife by harassment of demand for dowry, this is an offence punishable under

I.P.C and is required to be investigated only by the police and not by the Dowry Prohibition

Officer.36

Sec. 6 of the act states that any dowry received will be used for the benefit of the wife or her

heirs. If dowry taking is a crime then anything which is received as a dowry is also illegal. So, 34 Sec. 3 of DPA. 35 Sec. 4 of DPA. 36 S.V Ramanurthy v. Secretary to Govt. of Tamil Nadu, Home department, chennai-9 and oths. 2007 2 MLJ 1899(Mad)

the proper procedure would be that government should seize such things. There is hardly a

complaint against a person who offers to give dowry. When some illegal transaction takes place

the objects which form part of such transaction must be seized by the government. Since dowry

revert back to the bride, so there is no resistance from bride side in giving dowry. Also many

false cases are filed by bride or her family claiming more than what they have given. Also this

act provides a protection to the person who has offered dowry by not subjecting the person to

prosecution under this act37. This is done to secure the true and fearless statement by the victim

of dowry harassment.

Any law abiding citizen can not file complain. A magistrate will take cognizance only on a

police report or when things come in his notice or if the aggrieved person files complain or if

complain is filed by a recognized organization.38

There is a departure from general rule and the burden of proof is on the person who is accused of

taking dowry.

DOWRY UNDER EVIDENCE ACT AND IPC

In India Penal Code two new sections are added viz., S.304-B which presumes if the death of a

woman is caused by any burns or bodily injury or occurs otherwise than under normal

circumstances within seven years of marriage and if it is shown that soon before her death she

was subjected to cruelty or harassment by her husband or the relatives of the husband for or in

connection with any demand for dowry, such death shall be called dowry death and such

37 Sec. 7 proviso of DPA. 38 Sec. 7 of DPA.

husband or relative shall be deemed to have caused her death. Sub-section (2) of the same

section envisages that whoever commits dowry death shall be punished with imprisonment for a

term which shall not be less than seven years but which may extend to imprisonment for life.

The essential ingredient to attract application of section 304B are that (i) the death of a women

should be caused by burns or bodily injuries or otherwise than under normal circumstances; ii)

such death should have occurred within seven years of marriage ; iii) she must have been

subjected to cruelty or harassment by her husband or any relative of her husband; iv) such cruelty

or harassment should be shown to have been for demand of dowry and v) such cruelty or

harassment is shown to have been meted out to the woman soon before her death. On proof of

these essentials it becomes obligatory on the courts to raise a presumption that the accused

caused dowry death in view of sec. 113B of the evidence act. A joint reading of the section states

that victim must be subject to immediate harassment before death.

Supreme court in Hira Lal v. State (Govt. of Nct), Delhi39 soon before her death is a relevant

term and no straight jacket formula can be laid as to what would constitute a period soon

before the occurrence. Whether length of time between dowry demand and death can give the

benefit of doubt, passage of time between dowry demand and death should not be too stale or too

wide. Court is to decide this based on facts of each case40.

39 2003 8 SCC 80. 40 Mahendra and ans. V. State represented by inspector of Police, Gudimangalam Police Station, Coimbatore District

It is recommended that the period of seven year should be increased from seven year till death.

Women commission (NWC) recommends this change in view that many womens who are

mothers of elders childrens are also forced to bring dowry even after 7 years of their marriage.

S.498-A of Indian Penal Code envisages that whoever, being the husband or the relative of the

husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a

term which may extend to three years and shall also be liable to fine and sections 304-B was

added to the IPC by Criminal Law Amendment Act, passed in 1986 which provides that where

the death of a woman is caused by any burns or bodily or occurs otherwise than under normal

circumstances within seven years of her marriage and it is shown that immediately before her

death she was harassed and put to cruelty by her husband or any relative of the husband in

connection with demand for dowry, such death shall be called as dowry death; and sub-section

(2) provides punishment with a minimum of seven years which may extend to imprisonment for

life. Section 174 and 176 of CrPC, deals with the investigations and inquires into the causes of

unnatural deaths, by the police and magistrate respectively.

The Amendment Act 1983 makes it mandatory for the police officer to send the body for post-

mortem examination if the death of the woman occurred with in seven years of marriage as a

result of suicide or under other suspicious circumstances. A new section 113-B was added in the

Indian Evidence Act which deals with the burden of proof in dowry deaths according to which

the Court has to presume that a dowry death was caused by the person who is shown to have

subjected the woman to cruelty or harassment soon before her death.

JUDICIARY AND DOWRY PROHIBITION ACT

The legal and judicial efforts to eradicate the evil system of dowry failed to make any remarkable

break in alarming rise of this dowry system. The National Crime Records statistics show that

there have been over 58,000 incidents of dowry harassment and over 6, 7000 dowry murders in

the year 2005, and as per national crime Bureau, in the year 1994- there were 4,935 dowry deaths

and 25,946 cases of dowry harassment, this shows that in the sort span of ten years dowry related

crimes accelerated at a very high speed. It may be said that approximately 56,000 dowry deaths

and more than 40,000 cases of dowry harassment takes place every where. Moreover, cases

which occur in privacy of husband's house are much more and go unreported.

At the time of the wedding the groom and his parents demanded Rs, 50,000 from the brides

father which he promised to pay latter41. His inability to pay this amount led to the torture of his

daughter who after being kept without food and water and assaulted returned to her fathers place.

It is father who promises to pay dowry and it is the daughter who has to suffer harassment. Every

time there was assurance of good behavior by the husband to the father of the wife send her back

at the matrimonial home but the torture continued and she returned again to her natal home.

Father can not keep her married daughter in his house because of the fear of society. Males

understand this fact and try to take advantage of it. Husband repeated his assurance a second

time but only did she meet with the some fate but he also threatened to kill her. She managed to

escape from his house subsequently to which a panchyat was held but rather than reaching an

amicable settlement the parents of the husband threatened to get their son remarried. Society can

accept the remarriage of a male but there is still exists unwillingliness to accept the second

marriage of a female. The court held that no offence under DP act was made out but matrimonial 41 Bnasanti Devi v. State of Bihar 2000 Cri Lj 161 (pat).

cruelty. However, the court noted that the wife herself was obstinate to some extent in resolving

the dispute between the parties and therefore, the sentence of three years was reduced to rigorous

imprisonment to six months. The husband has absconded and had not faced trial.

The approach of the court that the wife was now hesitant to go back and therefore, the husband

deserve leniency is not surprising and is in conformity with the typical patriarchal attitude

whereby even after facing threats to her life following repeated assaults by a violent and dowry

hungry husband the court still expect wife be eager to join him. Hesitant on her part to attempt

reconciliation for the fourth time should not have been used by the court to show clemency to the

husband. The conduct of the husband weighted in compassion to the conduct of the wife was

enough to prove his guilt. The wife was sent thrice to the husbands residence but had to come

back all the three times in order to save her life.

In yet another case gruesome case the wife died of 98% burn42. Parents alleged they were made

to pay the dowry of cash and ornaments. In the dying declaration the wife has implicated the

husband as the main culprit and the doctor attending on her also certified that it was recorded in

his presence. The court observed;

We are pained at the fact that the percentage of acquittal in dowry death and wife burning cases

is still hovering in the high nineties in the state and it will be very necessary to ensure that the

lacunae that are contributable to this unsatisfactory state if affairs will have to be rectified.

Noting that the girl is alive her parents are hesitant to take any action for fear of spoiling the

relations and hope for the situation to improve the judge conceded that delicate family disputes if

42 State of Karnataka v. Neelawwa, 2002 Cri LJ 3981.

taken to police authorities would lead to a total blast up of marriage43, and observed that there are

many other channels such as village panchyat, elders of the family of both sides and others well

wishers who can attempt reconciliation. But if there is total inaction on part of the matrimonial

home on account of lack of dowry or dowry demand and dies, dowry allegations appear to be an

after thought on part of the victim.

However, the judiciary has failed to note that in many cases matrimonial dispute of the daughter

in the family is not openly talked about even amongst close friends and neighbors as the parents

still hope for the possibility of any other local body is making public family grievances that

many families would shy away from. Totally ignoring this practical reality and noting that there

was a total inaction on part of the parents coupled with the fact that the court found a controversy

in the name of the police officer who had recorded the dying declaration despite the wife

implicating the husband in her last statement the courts disbelieved the parents and let off the

accused. Even though the doctor had certified that it was recorded in his presence the court still

wanted a categorical statement from the doctor that she was in a fit condition to make a

statement despite the supreme courts44 prouncement that mere absence of certification of the

doctor as to fitness of mind of declarant would not render dying declaration not acceptable. Court

here looked for loopholes and determined to find one, came to the conclusion that since she had

98% burns and died the same evening the dying declaration could not be relied upon through in

the same breath admitted that there was no occasion for any torture her against the in-laws or the

husband.

MISUSE OF THE ACT

43 Id at p. 3938. 44 Laxman v. State of Maharastra, 2002 Cri LJ 4095 SC.

In 1983, sec.498A was added in IPC. It is a cognizable offence namely, cruelty by husband or

relatives of husband. The definition of cruelty is not just confine to causing grievous injury,

bodily harm or danger to life, limb or physical health, but also include mental health, harassment

and emotional torture through verbal abuse.

During the same period, two amendments to the dowry prohibition at of 1961, enacted in 1984

and 1986, made dowry giving and taking punishable. The burden of proof was on the accused.

Justice J.D Kapoor, Justice of Delhi High Court said that DPA is misused by many women. He

was hearing the petition of Savitri Devi v. Ramesh Chandra, in which Savitri Devi challenged

the judgment of lower court alleging that her in-laws should be arrested because they refused to

take the customary gifts. It was held that merely refusing to accept the gift will not amount to

harassment or cruelty under the act. He also said that sometimes women tried to rope up school

going childrens. Police must not arrest childrens under this act.45 An act must evolve according

to needs of evolving society otherwise it looses the prime purpose of making the society

progressive. It is not to suggest that the above school of thought is correct but given the fact that

it has found expression at such a high level it is worthwhile of being into consideration. At the

same time it should be taken care of that it doesnt become a classic case of throwing the baby

out with water.

The reason why these laws are put to misuse is that no punitive provisions were added for those

making false charges. Law against perjury is hardly been invoked in India.

45 Check dowry law misuse by women, Times of India, 22nd May 2003, www. times of India.html

There are also many numbers of cases coming to light where these new laws are used as an

instrument of blackmail. They lend themselves easily this way as a tool for wreaking vengeance

on entire families, since it makes it possible to have Police arrest anyone a married woman

names as a tormentor in her complaint. All she has to do is state that there is cruelty in marriage

and someone goes to jail without the possibility of bail.

There are cases where the problem is of mutual maladjustment of couple, rather than abuse by

entire family. Further complicating matters, lawyers have cited several cases where judges have

refused bail unless the accused family deposited a certain sum of money in the complainants

name as a precondition to the grant of bail. There are many cases in which lawyers themselves

suggest womens to ask for more than what they have given under an assurance that they will be

able to get all that. We need to sift the grains from the chaff and check out whether the

allegations of abuse are genuine, exaggerated or altogether mala fide.

It is true that these laws are heavily weighted in favor of women. But it is because of the fact that

majority of cases reported is of women harassment and not of men being harassed by women.

Law is response of the social changes. So, if there will be cases concerning men harassment law

will definitely be a gender just law. But this is not a time for it. If a gender just law comes as far

as domestic violence is concerned than it will be more misused. Men are in dominating position

and they can tamper with the evidences so, under these circumstances a law tilted towards

women side is not bad.

METHODS TO CURB DOWRY

Dowry was not known in early Vedic period. Things changed when women accepted the rules or

laws made by particular persons. The solution of any problem whether it is dowry or any social

problem, it is to challenge the system. When there was interference of Brahmin and certain

freedoms of women were taken away, that was a time to question and fight for their rights. The

tendency of Indian women is to accept things as it is. They are told by others as what is good for

them also as to how they should feel about themselves.

Girls do not participate in their marriage discussions. It is elders who chose their groom, it is

they who decide their marriage age, and it is they who decide their family. She enjoys no

decision making.

A three-Judge Bench, comprising Chief Justice R.C. Lahoti, Justice G.P. Mathur and Justice P.K.

Balasubramanyan, passing the order on a public interest litigation petition directed the Centre

and the States to consider framing of rules to compel men seeking government employment to

furnish information whether they had taken dowry; if so, whether the dowry had been made over

to the wife as contemplated under the Act. The rules could also seek such information from those

already in government service.46 The Bench faulted both the Centre and the States for their

failure to put serious effort in the implementation of the Dowry Prohibition Act.

46 The Hindu, wed, may 04, 2005, www.thehindu.com

"It is not as if the menace posed by dowry has in any way lessened. One can take judicial notice

of the fact that cases of dowry harassment are splashed in newspapers almost everyday. When

there is failure on the part of the Executive to strictly implement a law like the one in question,

enacted to tackle a social problem which has assumed menacing proportions, the court has a duty

to step in to give a mandamus," the Bench said.

The court asked the State Governments to give wide publicity to Sections 3 and 4 of the Rules

providing for the maintenance of lists of presents or gifts to the bride and bridegroom and to

appoint a sufficient number of dowry prohibition officers with independent charge in each

district of the State concerned; to take steps to step up anti-dowry literacy among the people

through lok adalats, radio, television and newspapers.

No law or ordinance is as powerful as understanding, said Plato. So, there is need of public

awareness. This law has at least compelled the husbands to negotiate with their wife. Earlier the

husbands left no options to their wife than to succumb to the cruelty. Many women do not want

to approach the court because these laws are criminal in nature. The number of causality is much

more than what is reported in police stations or in NGOs. In India, women who consider their

husband an ultimate protector will not seek to bring a criminal charge against him. Instead, they

would prefer to approach organizations that can mediate on their behalf and work out a better

solution for them. In some cases where crime against women cell personnel is sensitive enough,

successful mediation is provided. But this is the exception rather than a rule. In most instances,

this time by squeezing the husbands family in return for the womens withdrawing her

opposition to grant bail.

In 2001 census report the male female ratio was 933 per 1000 men. Many people are refusing to

have girl child. One who has preserve money for her marriage than spending on her studies.

This makes women dependable and than the circle of vicissitude goes on. This problem can only

be solved when women will have a say in economy. The United Nation's Report in 1980

presented that: "Women constitute half the world's population, perform nearly two-thirds of its

hours, and receive one-tenth of the world's income and less than one hundredth of the property."

CASES REGISTERED IN HELPLINE FROM 11TH OF JANUARY TO MAY 2007 IN

BIHAR

1999

CASES REGISTERED NO. OF CASES

DOMESTIC VIOLANCE 5

DOWRY DEATH 3

DOWRY HARRASMENT 1

SECOUND MARRIAGE 3

2000


DOMESTIC VIOLANCE 38

DOWRY DEATH 10

DOWRY HARRASMENT 17

SECOUND MARRIAGE 8

2001



DOWRY DEATH 5

DOWRY HARRASMENT 20

SECOUND MARRIAGE 6

2002



DOWRY DEATH 3

DOWRY HARRASMENT 18

SECOUND MARRIAGE 5

2003



DOWRY DEATH 4

DOWRY HARRASMENT 17

SECOUND MARRIAGE 8

2004


DOMESTIC VIOLANCE 109*

DOWRY DEATH 11

DOWRY HARRASMENT 18

SECOUND MARRIAGE 11

2005



DOWRY DEATH 6

DOWRY HARRASMENT 13

SECOUND MARRIAGE 4

2006



DOWRY DEATH 3

DOWRY HARRASMENT 15

SECOUND MARRIAGE 4

2007 (TILL MAY)



DOWRY DEATH 20

DOWRY HARRASMENT 19

SECOUND MARRIAGE 11

*- INCLUDES THE CASES OF WITCH HUNTING AND SOME OTHER CASES OF VIOLANCE

CONCLUSION

The practice of dowry-giving lies at the root of most women's human rights violations on the

subcontinent. Indeed, female infanticide, feticide, and domestic violence are all linked to the

practice of giving dowry. Moving one step closer to abolishing the institution of dowry

altogether could significantly improve the social conditions of Indian women. The Indian

government, having implemented legislative initiatives similar to those suggested by the

United Nations, finds itself no closer to abolishing the problem of dowry violence. The failure

of current international human rights instruments to fully address the dowry murder problem

suggests that a different approach is necessary.

Time has come when people should understand that women do not need a male to support her. It

is better to live single than to marry a guy who is selling himself for marriage. Divorce is much

cheaper than succumbing domestic violence.

If government can check spending in marriage ceremonies, half of the problem can be solved.

Marriage transactions must be brought within the net of income and wealth tax as it applied to

gifts. Because, none of these provisions was contemplated, it is hardly surprising that the law has

proved to be inefficient. The law is strict but it lack in implementation. What the law ought to be

is to check the causes which give rise to dowry demand. So, first thing would be to check over

spending in marriage ceremonies. Secondly, seize the dowry amount rather than making female

as its owner. Steps should be taken to ensure that the amount spend on marriage is not more than

a particular percentage of the income of the male family. This act has emphasized on dowry

demand and not on dowry giving. Only if we can check dowry giving, dowry demand will

reduce. Also, government should make certain rules for its employee like making it mandatory

rule that any person who would be found guilty of dowry demand or receiving it will be

dismissed. The higher is the post, more is the dowry demand. So, certain laws which prevent the

demand of dowry by the government employee should be there. Also to check the false charges,

punitive provisions must be added.

Dowry problem can be curtailed only when females understand their rights. For, this education is

very necessary. Initiative from the government side is required to spread education amongst

female. Certain provisions like giving education loans to females on lower interest or

scholarships to females student can help them receive education. Reserving seats for females in

education institute is not a solution to raise the level of literacy. Most of the girls do not receive

education because of financial reason. Parents fear that if they will spend their money in

educating girls than there will occur a problem in getting their daughters married. So, they save

money for the marriage of their daughters and in this way the female child so not receive high

education. It is rarely a case in village where girls are being sent out of their village to receive

higher education. Also a myth work that educating females is of no use as they can not get

employment. Government should try to break such myths; only then the status of women can be

improved. It is a welcomed step from the Bihar government which has reserved seats for females

in teaching jobs. Government should try to launch such programmes which can employ females.

If economic freedom will come to females, their status will improve.

dowry death & indian scenario ssrn-id1180222

Documents

electronic copy available

position of women

involvement of women

bc women

independent status of

dowry prohibition act

introduction dowry

brahmins supremacy