The payment of a dowry gift, often financial, has a long history in many parts of the world. In India, the payment of a dowry was prohibited in 1961 under Indian civil law and subsequently by Sections 304B and 498a of the Indian Penal Code were enacted to make it easier for the wife to seek redress from potential harassment by the husband's family. Dowry laws have come under criticism as they have been misused by women and their families.
In India, there are civil laws, criminal laws and special legislative acts against the tradition of Dowry. Someone accused of taking dowry is therefore subject to a multiplicity of legal processes.
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Many judicial experts consider the definitions as vague and subject to misuse.[1]
As per section 2 of the Dowry Prohibition Act
... "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 parent 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 ...[2]
Stridhan is, generally speaking, what a woman can claim as her own property within a marital household. It may include her jewelry (gifted either by her family or by her in-laws), gifts presented to her during the wedding or later, and the dowry articles given by her family.
Gifts given by the parents of the bride are considered "stridhan", i.e. property of the woman, traditionally representing her share of her parent's wealth.[3]
Introduced and taken up by then Indian law minister Ashoke Kumar Sen, this Act[4] prohibits the request, payment or acceptance of a dowry, "as consideration for the marriage". where "dowry" is defined as a gift demanded or given as a precondition for a marriage. Gifts given without a precondition are not considered dowry, and are legal. Asking or giving of dowry can be punished by an imprisonment of up to six months, or a fine of up to Rs. 15000 or the amount of dowry whichever is higher and imprisonment up to 5 years. It replaced several pieces of anti-dowry legislation that had been enacted by various Indian states.
Section 4 of the said Act states:
4. Penalty for demanding dowry.- If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees. Provided that the Court may, for an adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.[5]
However, as per section 3 of the Act,[6] both the giver and the receiver are sought to be punished.
3. Penalty for giving or taking dowry.- [(Note: Section 3 re-numbered as sub-section (1) thereof by Act No.63 of 1984, sec.3) (1)] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than [(Note: Subs. by Act 43 of 1986, Sec.3) five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more:]Provided that the Court may, for a adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment of a term of less than [(Note: Subs. by Act 43 of 1986, Sec.3) five years.]
(2) [(Note: Ins. by Act 63 of 1984, sec.3) Nothing is sub section (1) shall apply to, or in relation to, -
(a) Presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf).
(b) Presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf).
Provided that such presents are entered in a list maintained in accordance with the rules made under this Act.
Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given.
This section, for offences related to Criminal Breach of Trust, is usually applied in investigation of Stridhan recovery from the husband and his family.
Offences under this section are bailable and cognizable.
Section 406.Punishment for criminal breach of trust
Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.[7]
This Section of the Indian Penal Code was inserted by a 1986 amendment. The wording of the law states:
Section 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 imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.[8]
Section 498A was inserted into the Indian Penal Code in 1983 via an amendment.
It reads:
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-
(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 demand for any property or valuable security or is on account of failure by her or any person related to her meet such demand.[9]
This section is non-bailable,non-compoundable (i.e. it cannot be privately resolved between the parties concerned) and cognizable.
Prosecution for a non-compoundable offense can only be quashed by a High Court of India under its powers under section 482 of Criminal Procedure Code of India. Usually, cases under 498A are quashed by mutual agreement when the husband and wife reconcile with each other, or agree to divorce by mutual consent.
After registration of an FIR for a cognizable, non-bailable offense, the police in India can arrest any and all of the accused named in the complaint.
Status of Second wife under Anti-Dowry Law- I [2008] DMC 279- Bombay High Court- Justice C.L. Pangarkar —Ranjana Gopalrao Thorat Vs. State of Maharashatra- Hindu Marriage Act,1955—Section 17—Bigamy—Second wife cannot assume a character as wife--- It is no marriage in eyes of law—[Pg.280 {Para6}]-- Indian Penal Code—Section 498A—cruelty—word “relative”—meaning of- “Person who is related to husband either by blood or marriage—Thus she does not fall within scope of Section 498A-- Indian Penal Code— Pg.280 {Para6}]
"Every Suicide After Marriage cannot be presumed to be Suicide due to Dowry Demand"- 2011[1] JCC Page No.668- In The High Court of Delhi- Hon’ble Mr. Justice Shiv Narayan Dhingra- Dated: - 2 December 2010- Rani Vs. State of NCT of Delhi- Criminal Appeal No. 93 of 2004- Indian Penal Code, 1860- Section 304B/ 498A Read With Section 34- Conviction- allegation of demanding of Rs.50,000/- and scooter were vague in nature- Whether it was done by husband, mother-in-law or father-in-law- Answers to all these questions are absent—Ingredients of Section 304B IPC were totally absent- Unnatural Death can be called a dowry death only if after making a demand made by accused is not fulfilled by perpetuation of cruelty upon the victim- The list of dowry show that both parties belonged to poor strata of society- No evidence, whatsoever was collected by police about the real facts- Every suicide after marriage cannot be presumed to be a suicide due to dowry demand- The tendency of the court should not be that since a young bride has died after marriage, now somebody must be held culprit and the noose must be made to fit some neck.
The above being criminal remedies, a civil remedy was brought into the picture in 2005 (amended in 2006). This was called the "Protection of Women from Domestic Violence Act".
For the purpose of this act, Domestic Violence includes the demand for dowry:
For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it -(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.[10]
This Act empowered the lower courts to issue "protection orders" on the complaint of a woman against her male relatives. The protection orders could include restraining orders on the husband and others, monetary compensation, and residence orders.
Though it is a Civil remedy, violation of protection orders result in Criminal penalties (including imprisonment).
The Supreme Court of India and various High Courts have noted the gross misuse of IPC 498A in various judgments:
Several reports of the abuse of Section 498A have involved couples based outside India especially in the US & Canada. The United States Department of State has published the following travel warning:
A number of US men who have come to India to marry Indian nationals have been arrested and charged with crimes related to dowry extraction. Many of the charges stem from the US citizen's inability to provide an immigrant visa for his prospective spouse to travel immediately to the United States. [1]
The courts sometimes order the US citizen to pay large sums of money to his spouse in exchange for the dismissal of charges. The courts normally confiscate the American's passport, and he must remain in India until the case has been settled.[2]
It is stated that since the police may arrest anyone who is accused of committing a crime (even if the allegation is frivolous in nature), the Indian criminal justice system is often used to escalate personal disagreements into criminal charges. This practice has been increasingly exploited by dissatisfied business partners, contractors, estranged spouses, or other persons with whom the US citizen has a disagreement, occasionally resulting in the jailing of US citizens pending resolution of their disputes.
At the very least, such circumstances can delay the US citizen's timely departure from India and may result in an unintended long-term stay in the country. Corruption in India, especially at local levels, is a concern, as evidenced by Transparency International's Corruption Perception Index of 3.5, ranking India in 72nd place of the world’s countries.[11]
In a well publicized case, Balamurali Ambati, who earned his MD at age 17 and his family were detained in India for over three years in a suit related to alleged dowry demands by the family for his brother's wife Archana, which delayed Dr. Ambati's entry to the ophthalmology program for two years, leaving him to begin his residency in 1998. All of the charges against him were dismissed in October 1996, and all of his family members were acquitted in June 1999.[12]
During the course of the trial, the Ambatis produced a tape in which the father of Archana demanded US $500,000 to drop all the charges although the details of this particular case are still debated in India.
According to the men's rights movements in India, the laws suffer from the following shortcomings:
The Ministry of Home Affairs, as well as various State governments, have issued notifications and circulars which limit the arbitrary arrests made by police during investigation of dowry-related offences.[13]
The Malimath committee in 2003 proposed making amendments to this section although such amendments were opposed by Women's groups.
The Centre for Social Research released a research report [3] opposing amendments to section 498A. According to this report, in the studied cases there were no convictions based solely on section 498A. The report however states that 6.5 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". A police official asserted that in his district one-third of dowry murder cases were found totally false by the police. [4].
However, on December 17, 2003, the then Minister of State for Home Affairs, 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." [5]
On 20 July 2005, Justices Arijit Pasayat and H.K. Seema of the Indian Supreme Court declared Section 498A to be constitutional."The object is to strike at the root of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not an assassin's weapon. If [the] cry of "wolf" is made too often as a prank, assistance and protection may not be available when the actual wolf appears," the Bench said.[6].
In August 2010, the Supreme Court asked the Government of India to amend the Dowry Laws to prevent their misuse.[14]
In February 2011, the Law Commission of India is considering grounds to recommend amendments to IPC 498A.[15]
In urban India, the majority of families have inadequate knowledge regarding Section 498A of the Indian Penal Code, 1860.
Even temporary imprisonment, followed by acquittal, leads to a loss of social standing.
A women who files a false case against the husband or husbands relatives finds it difficult to get remarried, as the other person fears that he might also be in the same position if he marries her.
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