12 Dowry law

Radhika Gupta

epgp books

 

Introduction

Dowry is commonly practiced in various communities even in modern India, although some progress has been made in the eradication of this practice. The continuation of dowry practice not only signified the existence of gender inequality in our society but also leads to other crimes and human rights violation against women, such as domestic violence and dowry deaths. This chapter addresses the issue of dowry and examines the Indian legislative framework to deal with this practice. The chapter will first give an overview of the meaning and prevalence of dowry. Second, it will examine some of the social and economic factors behind the prevalence of this practice. Third, it will look at some related practices that have grown as an offshoot or consequence of the practice of dowry. Fourth, it will give an overview of the Indian legislative framework to deal with this issue.

Learning Outcomes

At the end of this module, students will:

  • Have an understanding of the meaning of dowry, as per Indian law and otherwise.
  • Have an understanding of some of the economic and social factors that have contributed towards the prevalence of the practice of dowry.
  • Understand how the practice of dowry further leads to crimes such as domestic violence, female feticides and dowry deaths.
  • Get an overview of the laws that have been enacted in India to check dowry practice, including the Dowry Prohibition Act, 1961, Section 498A of the IPC and Section 304B of the IPC.
  • Be able to critically examine how far Indian legal efforts have been able to address the problem of dowry in India.

Meaning and Prevalence of Dowry

Dowry can broadly be understood as the property, in the form of gifts, valuables and money, which a man receives from his wife or her family at the time of his marriage. While it may be commonly believed that dowry is a Hindu practice, it is practiced across regions and religions in India.

It is believed that traditionally dowry was given as a symbol of love by the bride’s parents at the time of her marriage to her or her in-laws for her. These gifts varied from money to real estate and sought to ensure some sort of financial independence of the woman in her marital home. In the absence of inheritance rights for women in those times, it was also seen as a substitute for inheritance and offered some financial security to the woman. However, a combination of factors, including the advent of colonial rule, the introduction of the cash economy (including land taxes and land reservation laws), and change in social dynamics, resulted in dowry turning into an oppressive institution, becoming a source of income for men’s families and a social status symbol for both the parties. A husband’s family could use the money as they sought fit and the wife’s family proved their economic stability and well-being by giving a huge dowry.

 

The practice of dowry is not confined to India. The practice dates back to the late Middle Ages. In medieval Western Europe and later, the dowry was commonly practiced among most, if not all, social and economic groups. In accordance with Roman law, the dowry was practiced in many parts of the Byzantine Empire until its fall to the Ottomans in the fifteenth century. Dowry payments were prevalent in seventeenth and eighteenth century Mexico and Brazil, where Spanish and Portuguese family law governed colonial marriages until those countries gained their independence. In Victorian England, dowries were viewed by the upper class as an early payment of the daughter’s inheritance. Only daughters who had not received their dowries were entitled to a part of the estate when their parents died. It has been found that dowry is being practiced among many Asian families in Britain. In one case, a woman named Dwinderjit Kaur faced dowry demands from her husband and in-laws at the time of her marriage and later, in their hope to use the dowry money for their business and to move into a bigger house. Inability to pay adequate dowry resulted in her being kept in slave-like conditions. Due to the absence of anti-dowry laws, the police were unable to arrest the accused when she complained. Awareness around the widespread nature of the problem of dowry in Britain has now initiated police and government departments to work towards tackling this issue.

Factors behind Perpetuation of Dowry

This section examines some social and economic determinants that have led to the perpetuation of dowry as an oppressive practice against women. While dowry may be a symbol of love and affection towards the daughter, it is also a symbol of social status. The practice also involves using economic capabilities of bride’s parents to ensure the safe future of their daughter in her marital house. The following are some of the factors that explain the prevalence of the practice of dowry in India:

Patriarchal Determinants

In a patrilineal system where women did not enjoy inheritance rights, the dowry was seen as a way to compensate for this absence of property rights. It became a means to transfer property from the father to the daughter and an independent source of income for her in her marital home. A good dowry is also given to the husband and in-laws to please them and to thus ensure a safe and happy life for the daughter in her marital home.

Dowry is also an acknowledgement of the superior caste/class/economic status of the groom in case of hypergamy (marrying a superior class or caste member). This is where families from lower castes usually tried to get their daughter “married up”, and discouraged girls from “marrying down” to lower caste or class boys. To offset this difference in status, the bride’s family had to pay dowry and constantly meet the economic expectations of the groom and his family, which if not met was considered an insult. The cost and nature of the gifts affect the pride and status of the groom’s family. Dowry became a price that a women’s parents paid to get their daughter married to a man with good qualifications, a reputed job, or a high socio-economic background. Due to the high importance is given to the education and job qualifications of the groom, not much importance is given to the bride’s education in deciding dowry. The inequality in status and the need to pay huge dowries gets compounded in an unequal society that treats sons as assets and daughters as liabilities.

It is also argued that among Hindus, the dowry was more prevalent among the upper castes, while bride-price, that involves giving consideration to the bride’s family in return for the bride, was more widely prevalent among the lower castes and tribals. Dowry spread among the other castes through emulation. Among the lower castes, the coming of a bride into the family meant an increase in the number of working and earning members. A bride-price was paid to the bride’s parents to compensate for the loss of an earning member of their household. On the other hand, the two upper castes, Brahmins and Kshatriyas, had only priestly and martial duties to be performed by men. In the absence of manual work which could be performed by women, the reverse logic applied, and dowry was practiced. Through emulation, the practice of dowry then spread among non-Brahminical castes, who imitated the upper caste’s norms and performed marriage rites in a Brahminical fashion in order to gain social mobility, through the process of Sanskritisation (the process by which castes placed lower in the caste hierarchy seek upward mobility by emulating the rituals and practices of the upper or dominant castes).

Economic Determinants

Dowry has now largely acquired an economic significance and has become an easy way to fulfil their economic needs and wants. Dowry is often used as financial assistance for men and their families to set up new businesses, pay off previous debts, buy luxuries or construct new houses or office buildings. It is sometimes also used to further give as dowry when girls in their own family get married. The ever-increasing monetary demands of people lead to excessive and never-ending demands for dowry.

Dowry symbolizes the social and economic status of both of the families. A display of gifts exchanged during the marriage is done to establish their high social and economic standards. Even though giving and taking dowry are criminal offences, the practice continues as a means to prove economic status in society.

Dowry-Related Practices

As stated above, the practice of dowry itself has patriarchal meanings and connotations. In addition, this practice has given roots to various other consequences that seriously violate the human rights of women and further promote gender inequality in society. Some of these are discussed below:

Female foeticide and infanticide

The burden of paying dowry for their daughters’ wedding leads parents to treat their daughters as a burden contrary to their sons being considered as financial assets. The societal pressure of getting their daughters married and the huge financial burden of dowry has even led parents to kill their daughters through acts such as female foeticide and infanticide. This has affected the overall sex ratio of the country; as per the 2011 Census, the sex ratio of India is 933 females per 1000 males.

Domestic violence

 

Even after marriage, a woman’s husband and in-laws may demand dowry on various occasions like festivals or child birth. Inability to meet the demands, whether those made during or after marriage, is often met with verbal taunts, physical abuse, violence or even abandonment of the woman. There have also been instances of men marrying for the second time with another woman capable of bringing in a greater amount of dowry.

Dowry death

Harassment over dowry has led to and continues to lead to, murders and suicides. The woman may commit suicide, to get rid of the mental and physical torture and also to save her parents from insults and expensive demands. Many times the in-laws burn or otherwise kill the bride, and portray it as an accident or suicide. In a 2014 judgment, a husband and his parents were found guilty of dowry death by the Sessions Court in Faridkot. India’s National Crime Bureau reported that there were approximately 8,233 dowry murders in 2012. Many such crimes take place within the four walls of a house and are unreported. Survivors often hesitate to make a statement before a magistrate due to threats, fear or a lack of alternative support.

 

Indian Legislative Framework

This section presents an overview of the legislative framework in India to address dowry and related practices.

Dowry Prohibition Act

In 1961, Indian Parliament enacted the Dowry Prohibition Act (DPA), which was later amended in 1984 and 1986, making the dowry practice a criminal offence.

Section 2 of the Act defines “dowry” as any property or valuable security is given or agreed to be given either directly or indirectly—

  • By one party to a marriage to the other party to the marriage; or
  • By the persons 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 marriages in connection with the marriage of said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Prior to the 1984 amendment, “dowry” was confined to cases where money or gifts were given in “consideration” to the marriage. Further, Section 2 contained an Explanation that provided that “any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties.” This provision acted as an impediment to ensure a wide amplitude of the Act and check both direct and indirect forms of dowry. For example, the Bombay High Court in Shankar Rao v. L V. Jadhav held, in 1983, that demand for Rs 50,000 from the girl’s parents to send the couple abroad did not constitute dowry. The judgment held that since the girl’s parents had not agreed to give the amount demanded at the time of marriage, it would not be deemed as ‘consideration for marriage’. Anything given after the marriage would be dowry if only it was agreed or promised to be given as consideration for the marriage. The provision was later amended in 1984 and 1986 to widen the ambit of the word “dowry.”

Section 3 of the Act punishes both giving and taking of dowry with imprisonment for a term of not less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of value of such dowry, whichever is more. However, giving presents to the bride or the groom at the time of marriage, without there being any such demand made in this respect, is not punishable. Section 5 of the Act says that agreements for the giving or taking of dowry shall be void and the amount given as dowry cannot be decreed. Section 6 states that where dowry is received by any person other than the woman, it must be transferred to the woman within the time limits prescribed in the Act.

Section 7(b) of the Act of 1961 barred a court from taking cognizance of an offence except on a complaint made within one year from the date of the offence. Further, Section 4 required the previous sanction of the State Government in order to take cognizance of an offence under the Act. However, 1984 amendments removed both these restrictions. Further, the amendment Act added Section 8A, which shifts the burden of proof on the person accused of abetting, taking or demanding dowry.

Section 498A, IPC: Cruelty

The DPA has proved largely ineffective in eradicating the practice of dowry. Further, it did not contain any provisions to address the issue of cruelty and harassment on the ground of dowry. Therefore, in the year 1983, Section 498A was added to the Indian Penal Code (IPC) to punish husbands and his family members who subject the woman to cruelty, including for dowry-related reasons. It states as follows:

Section 498A. Husband or relative of husband of a woman subjecting her to cruelty

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.

Explanation

For the purpose of this section, “cruelty” means—

  • any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
  • harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Section 498A has been widely used by women. According to the National Crime Records Bureau (NCRB) about two lakh people, including 50,000 women, were arrested under Section 498A in 2012. While the rate of charge sheeting the accused was as high as 93.6 per cent, only 15 per cent of the cases resulted in convictions. The NCRB noted that about 3.72 lakh cases of dowry harassment are currently pending, of which 3.17 lakh are likely to result in acquittals.

The provision is wide enough to cover not only cases related to dowry but also of domestic violence in general. However, initially, the police refused to register cases under this section unless specific allegations of dowry harassment were made. Vague allegations of dowry demands are added on to genuine complaints of wife beating which tend to cast aspersions on the credibility of the whole complaint. It is often alleged that since most 498A cases end up being settled on making some payment to the complainant, women file false cases under this provision to harass and extract money from the husband and the in-laws. This allegation fails to take note of the complex socio-legal realities. This is a criminal law provision and does not provide any other remedy to the woman such as residence, maintenance of financial security. Further, women are often advised to settle such cases by various parties. Even the courts encourage such settlement. In the recent case of Arnesh Kumar v. State of Bihar and others, the Supreme Court, in 2014, also noted that a number of dowry harassment cases are false. The Court cautioned against “automatic arrests” in dowry harassment cases, and asked state governments to direct their police departments against such mechanical arrests and to guide them to arrest only on reasonable grounds, to be verified by the Magistrates.

Thus, even after the enactment of this provision and its wide use, it has failed to adequately check and punish domestic violence, including dowry-related violence. It should be noted that in the year 2005, Indian Parliament enacted the Protection of Women from Domestic Violence Act. The Act provides civil remedies to women who are victims of domestic violence, such as the right to residence, compensation and other monetary reliefs.

Section 304B, IPC: Dowry Deaths

In the year 1986, Section 304B was introduced in the IPC to make “dowry death” a separate criminal offence. It reads as follows:

304B. Dowry death.

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage, and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

Explanation

For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprison-ment for a term which shall not be less than seven years but which may extend to imprisonment for life.

Thus, where the prosecution is able to establish that:

  • Death of a woman took place in unordinary circumstances
  • The death was caused within seven years of her marriage
  • Soon before the death, the woman was subjected to cruelty of harassment by her husband or his relatives
  • The cruelty or harassment was in connection with demand for dowry,

then the husband and/or his relatives are presumed to have caused the death of the woman, and the burden of proof shifts to them to prove their innocence. It can be seen that due to the shift in the burden of proof, it is easier to establish the offence of dowry death as opposed to murder. In case of Nathu v. State of U.P. Justice Katju stated that dowry death is worse than murder, but unlike murder, it does not attract the death penalty.

 

Conclusion

Dowry is one of the major social evils against women. Laws have been enacted and amended time and again to check this practice and punish its perpetrators. These laws have enabled women, victims, to seek protections and remedies. However, the practice of giving and taking dowry, harassment over dowry and dowry deaths continue to take place even in modern India. A consolidated approach to criminal and civil laws and efforts to bring attitudinal change is required to eradicate this practice completely.

Summary

  • Dowry refers to gifts, property and money given by the bride’s family to the groom and his family.
  • Both economic and social factors have contributed towards the prevalence of this practice.
  • The practice of dowry further leads to crimes such as domestic violence, female feticides and dowry deaths.
  • The Dowry Prohibition Act was enacted in 1961 to make giving and taking dowry a punishable offence.
  • Section 498A was inserted in the IPC in the year 1983 to make it a criminal offence for a husband and his relatives to subject a woman to cruelty, including for reasons related to demand for dowry.
  • S. 304 B was introduced in IPC in 1986. It defines and punishes the offence of dowry deaths.
  • Despite some progress, a number of implementation problems plague anti-dowry laws, and the practice continues to take place in modern India.
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Reference

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