Mar 7

The Dowry Prohibition Act: A lawyer’s opinion

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’Dowry’ is a compendium term. A dowry, in common parlance, refers to a gift of money or valuables given by the bride’s family to the groom and the newly formed household at the time of their marriage. The original intent was to help with expenses in the creation of the new family, help bond the families of the new couple, and provide a support for the bride in case of future problems such as widowhood or divorce. The origin of the system of dowry is lost in antiquity. But, the purpose and practice is much more complex than it has been defined. The prevalent of such practices, in one way or another, were evident in other societies also.
In India, during the national freedom struggle, many social reformers, such as, Raja Rammohan Roy, Iswarchandra Vidyasagar, Swami Vivekananda, many others has felt the necessity to eradicate the practice of dowry along with various inhumane treatment meted out to women. After independence, as early as, in 1950 the Bihar Dowry Restraint Act was enacted in this regard. The first all-India legislative enactment relating to dowry to be put on the statute book was the Dowry Prohibition Act of 1961. This Act consists of only ten sections:-
Section 1 deals with the title and mentions the territorial extent of its application. The Act extends to the whole of India except the State of Jammu and Kashmir.
Section 2 defines the term “dowry” and also provides an explanation at the end of the section by which clarification is given regarding the “presents” that are made at the time of the marriage to either party to the marriage in the form of cash, ornaments, clothes, etc. in addition. This section also excludes “dower” and “mahar” recognized under the Muslim Personal Law out of the preview of the definition of dowry.
Section 3 prescribes the punishment for giving or taking dowry. If any person gives or takes or abets the giving or taking of dowry he shall be punishable with imprisonment which may extend to six months, or with fine which may extend to five thousand rupees, or with both.

Section 4 makes demanding dowry and offence and provides punishment for the same.

Section 5 makes an agreement of giving and taking dowry to null and void.

Section 6 prescribes that the dowry, if and when given (not being given as a consideration of the marriage) is to be treated as a trust in favour of the woman for whose benefit such a dowry is given. It is also a penal section which prescribes punishment for such persons who fail to transfer the dowry so received by them in favour of such a woman within the prescribed period.

Section 7 prescribes the status of the competent court which can try the offence under the Act and also prescribes the period of limitation of the offences.

Section 8 provides that offences under this Act are non-cognizable, bailable and non-compoundable. However, by amendments, Bihar, Himachal Pradesh and Punjab made the offence cognizable. Himachal Pradesh and Punjab prescribed that the investigation of cases under the Act can only be made by an officer of or above the rank of Deputy Superintendent of Police.

Section 9 provides the authority for the Central Government to make rules for carrying out the purposes of this Act.

Section 10 deals with the repeals.

But even after twenty years it was remained ineffective. One of the main reasons of the ineffectiveness of the Act was the limitation of the definition of dowry, as it has been discussed in the context of marriage only. The continuing and consistent demands of the husband and her in-laws were neglected, in turn led to the rise of cases of dowry related atrocities, violence and death even after marriage. To substantiate and assist the Dowry Prohibition Act, 1961 in preventing the increasing dowry related violence, Section 498A was thus introduced in the IPC in 1983 closely followed by Section 304B which defined the special offence of dowry-related death of a woman in 1986. Section 304B addresses the particular offence of dowry death but section 498A, however, not meant to deal specifically with dowry— it is commonly considered to be a ’dowry law’ because domestic violence against a wife related to dowry demands is considered to be within the scope of ’cruelty’ envisage by the Section. The term ’cruelty’ embedded in this Section 498A signifies:
(a) Any willful 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
(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demands for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Under such condition, whoever being the husband or the relative of the husband of a woman, subjects her to cruelty shall be punished with imprisonment for a term, which may extend to three years and shall also be liable to a fine.
The police, civil society, politicians and even judges of the High Courts and Supreme Court have offered these arguments of the “misuse’ of laws vehemently. Domestic violence and abuse by the spouse and family members are complex behaviours and the social organization of courts, the police and legal cultures systematically tend to devalue domestic violence cases. Police often file charges against the husband, his parents and other relatives (whoever being named on the complaint by the wife or her close relatives) and put them in jail. There is no penalty (even a fine) for filing a false case. Many individuals have claimed this is being abused by the wife or her close relatives. And, even there were connivances between the police and the complainants in misusing of the particular law. Unfortunate there were no data for this ’misuse.’ This is odd, given that earlier the N.K. Shinghal Report (2003) notes, “[n]either the Central Crime against Women Cell nor any of the Districts (of Delhi) reported having found any complaint to be totally false. No action for lodging a false complaint was accordingly initiated in any case during the 5 year period (1995 -99).” (Page 22) Elsewhere the Report claims, “The general view is that making totally false or baseless complaints may not be very common (though not unknown).” The 2003 Malimath Committee report on reforms in the criminal justice system also notes, significantly, that there is a “general complaint” that Sec 498A of the IPC is subject to gross misuse; it uses this as justification to suggest an amendment to the provision, but provides no data to indicate how frequently the section is being misused. It is important therefore that such “arguments” are responded to, so as to put forth a clearer picture of the present factual status of the effect of several criminal laws enacted to protect women. The Malimath committee in 2003 proposed making amendments to this section. The Committee recommends that the section be made bailable and compoundable to give a chance to the spouses to come together. The Committee goes as far as to suggest that that the amendment might be beneficial for women as they would be able to get better maintenance due to the husband not losing the job. The fact the most of the accused are released on bail anyway by Magistrates is completely ignored by the Committee. Thus, the committee has been opposed by women’s groups and radical feminists. The Centre for Social Research India has released a research report opposing amendments to section 498A. According to this report, in the studied cases there were no convictions based solely on section 498A. Although the report states that 60.5 percent of the studied cases were falsified. They also state that many people believe the law has been abused by “educated and independent minded women.”
However, on December 17, 2003, the then Minister of State for Home Affairs, Mr. I.D Swami said: “There is no information available with the Government to come to the conclusion that many families in India are suffering due to exaggerated allegations of harassment and dowry cases made by women against their husbands and other family members involving them in criminal misappropriation and cruelty.”
The Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985, G.S.R. 664 (E), dated 19th August, 1985.- In exercise of the powers conferred by Sec.9 of the Dowry Prohibition Act, 1961 (28 of 1961), the Central Government hereby makes the following rules, namely:
1. Short title and commencement.-
(1) These rules may be called the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985. (2) They shall come into force on the 2nd day of October, 1985, being the date appointed for the coming into force of the Dowry Prohibition (Amendment) Act, 1984 (63 of 1984). 2. Rules in accordance with which lists of presents are to be maintained.-
(1) The list of presents which are given at the time of the marriage to the bride shall be maintained by the bride. (2) The list of present which are given at the time of the marriage to the bridegroom shall be maintained by the bridegroom.
Every list of presents referred to in sub-rule (1) or sub-rule (2),-
(a) shall be prepared at the time of the marriage or as soon as possible after the marriage:
(b) shall be in writing;
(c) shall contain,-
(i) a brief description of each present;
(ii) the approximate value of the present;
(iii) the name of the person who has given the present; and
(iv) where the person giving the present is related to the bride or bridegroom, a description of such relationship; (d) Shall be signed by both the bride and the bridegroom.
Explanation. 1.- Where the bride is unable to sign, she may affix her thumb impression in lieu of her signature after having the list read out to her and obtaining the signature on the list, of the person who has so read out the particulars contained in the list.
Explanation 2.- Where the bridegroom is unable to sign he may affix his thumb-impression in lieu of his signature after having the list read out to him and obtaining the signature on the list of the person who has so read out the particulars contained in the list. (4) The bride or the bridegroom may, if she or he so desires, obtain on either or both of the lists referred to in sub-rule (1) or sub-rule (2) the signature or signatures of any relations of the bride or the bridegroom or of any other person or persons present at the time of the marriage.
The Dowry Prohibition Act of 1961 has been amended in 1984 to make it more stringent and effective. Some of the amendments are:
The inclusion of for ’or after the marriage’ in the section 2 has broadened the term ’dowry.’ The Section 3 provides the Minimum punishment for taking or abetting the taking of dowry has been sixth months can extend up to five years and a fine of rupees fifteen thousand. Section 4 is also amended to enhance punishment for demanding dowry, providing for a minimum of six months’ imprisonment but it may go up to two years and with a fine of up to ten thousand rupees. Section 6 has been amended to reduce the time-limit from one year to three months within which dowry received for marriage of a woman by any other person should be restored to the woman. In case of non-restoration of property to the woman, the man is punishable with imprisonment for a term not less than six months can extend to two years or with fine not be less than five thousand rupees can extend to ten thousand rupees or with both.
According to National Crime Records Bureau, crime against women in general in the country has been increasing every year. In 2003, there were 1, 40,601 cases, in 2004, 1, 54,333 cases, in 2005 1, 55,553 cases and in 2006 there were 1, 64,765 cases, in 2007 1, 85,312 cases. 7,026 cases of dowry death were recorded in 2004; of this 2,585 were female suicide, 6,787 cases were registered in 2005 in this regard; of this 2,305 were female suicide, and 7,618 such cases were registered in 2006; of this 2,276 were female suicide (National Crime Records Bureau). The statistics shows the failure of abetment of suicide law which punish the person with 10 years of imprisonment. This increasing incidences shows the very fact that women are still vulnerable to dowry related violence.
The one-dimensional nature of the Act has been widely discussed and condemned from many individuals and organizations. Beginning year 2000, Save India Family Foundation (SIFF), an NGO, has been incessantly working to spread awareness regarding the growing misuse of draconian anti-dowry laws like IPC Section 498 A against Indian Husband and their families. Citing the report of NCB of 2005, SIFF retorted that in the year 2005 alone, nearly twice as many married men (52,483), compared to married women (28,186), committed suicide, unable to withstand verbal, emotional, economic and physical abuse and legal harassment. SIFF asserted that “while every death of a young married woman is converted into a case of dowry death leading to immediate arrest of the husband and in-laws, accompanied by media-hype, male bashing and breast beating, large scale suicides of men do not cause any outrage in the society. Media finds no incentive in highlighting the truth about abused men. People in power find no financial or political mileage to be gained from helping battered men.” It seems that the legal protection provided to the women in India posed another threat to the male folk. Misuse of this law mostly by women in the urban India and several instances of extortion of money from the husband by the wife and her family have come to light. On this flip side, Swarup Sarkar, an activist with Save India Family Foundation, said men are subjected to severe discrimination under law and their basic human rights violated every day in the name more legal provisions that claim to empower and protect women. He added “Thousands of men are becoming victims of ’legal terrorism’ unleashed through the misuse of the Indian Penal Code section 498 A, the Protection of Women from Domestic Violence Act, adultery laws, laws against rape and sexual harassment, and even laws pertaining to divorce, maintenance and child custody.” “In case of complaints, a preliminary investigation must be conducted by the police and if necessary, counselling done to save the marriage,” NCW chairperson Girija Vyas said. SIFF demanded that preliminary enquiry required to register the dowry related immediately put Stay in all the more than 5, 00,000 cases 498A, which had been registered and re-investigations immediately and establish the creditability. They also urge the Government of India to make the following amendments to the law and ensure that ordinary citizens of India are spared from needless harassment:
Section 498A of IPC should be made bailable. Section 498A of IPC should be made non-cognizable. IPC 498A and Domestic Violence Law should be made gender neutral. Persons who misuse IPC 498A and Domestic Violence Law should be penalized.
Violence and atrocities related to dowry are invariably committed against women within the safe precincts of home by the family members. It is very difficult for the law enforcement agencies to frame charges and convict the accused because of lack of evidence. Women are particularly socializes in such a way that they could not even speak out their own problem out of shame and to save family prestige.
Regarding the above controversies and contradictions the following measures were framed:
(a) The dowry related laws need not to be rejected, but needed reformation to equip the laws enough to identify any fundamental truth regarding the practices and liability.
(b) Credibility and accountability should be emphasized while handling dowry related cases.
(c) The law should not be made at the expense of one gender only; it should concern both the sexes.
(d) Many in-depth and extensive studies should be conducted from time to time to evaluate the diverse effects of the legal sanction and ground realities of dowry related violence.
(e) Government and NGOs should initiate various programs at the grass root level to sensitize people especially women about the legal framework of dowry violence in relation to other gender related issues.

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