Dowry law in India

Dowry law in India deals with the payment in India of dowries. As expectations for dowries soared during the 20th century, dowry-related harassment, violence, torture and even murder became a widespread problem, especially among India's lower classes, who refused or could not afford the sums demanded.

The payment of dowries was prohibited in Indian in 1961. Subsequently, the Indian Penal Code was amended to make it easier for a wife to seek redress from harassment by the husband's family. The anti-dowry laws have been criticized by men's rights groups, who accuse women and their families of misusing the laws.^[1] However, despite these laws, dowry harassment and other related abuses continue and dowry deaths are common. In 2010, 8,391 dowry-related murders or suicides were reported across India.^[2]

Definitions

Dowry

Section 2 of the Dowry Prohibition Act 1961 defines “dowry” as any property or valuable security given or agreed to be given either directly or indirectly:

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before 1 [or any time after the marriage] 2 [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Stridhan

Stridhan is, generally speaking, what a woman can claim as her own property within a marital household. It may include her jewelry, 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.^[3]

Dowry Prohibition Act 1961

The Dowry Prohibition Act 1961^[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, per section 3(2). Asking for or giving of dowry can be punished by imprisonment of up to six months, a fine of up to Rs. 15000 or the amount of dowry (whichever is higher), or 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 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]

Section 3 of the Act^[6] penalises both the giver and the receiver:

3. Penalty for giving or taking dowry - 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 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 five years.

(2) 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.

Indian Penal Code

Section 406

Section 406 of IPC, 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 non-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]

Section 304B

Section 304B of IPC was inserted by a 1986 amendment, and 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

Section 498A of IPC^[9] was inserted in 1983. It protects the wife from harassment by the husband or the husband's family in cases where an illegal dowry is sought. The section 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.^[10]

In 2005, the Supreme Court of India upheld the constitutionality of section 498A in response to a public interest petition asserting that the law could easily be abused with frivolous complaints.^[11][12] The court cautioned, however, that the law was not a licence to settle scores: "Merely because the provisions are constitutional that does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment."^[13] In 2010, Indian Parliament set up a committee (headed by Shri. Bhagat Singh Koshyari) to investigate misuse of this law, as recommended by the Supreme Court of India in their judgement for Preeti Gupta & Another vs State of Jharkhand & Another.^[14]

A two-judge bench of the Supreme Court of India reviewed enforcement of Section 498A in 2014. The court found that the law was commonly misused and often resulted in unwarranted arrests. The court directed all state governments in India to instruct police officers in the proper enforcement of Section 498A. In particular, officers should not make arrests automatically, but only when an arrest is actually necessary, as specified in Section 41A of the Code of Criminal Procedure.^[15] But the delay in sending these guidelines to all police stations is hampering proper enforcement of the guidelines issued by Supreme Court of India.^[16]

Protection of Women from Domestic Violence Act 2005

The Indian Penal Code impose criminal remedies, and the "Protection of Women from Domestic Violence Act 2005" added a civil remedy. For the purpose of the 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.^[17]

The Act empowered 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).

Criticism

According to the National Crime Records Bureau statistics, nearly 200,000 people, including 47,951 women, were arrested in regard to dowry offences in 2012, but only 15% of the accused were convicted. Arrest in dowry offences in 2012 is 9.4% more than in 2011 and it is continuously increasing. ^[18]

Criticism by men's rights movements

According to the men's rights movements in India, the laws suffer from the following shortcomings:

• In Indian society, till date the main criteria at the time of marriage on behalf of bride and her family is financial capacity of groom and his family. In the marriage market rich but dowry demand based groom is highly attractive groom than a progressive groom with low or moderate income. So, indirectly bride & her family encourage dowry system.
• Gender bias: The laws do not recognize cruelty and domestic violence against men & other women family members of husband. The police in India almost never register complaints of extortion or violence against men in a domestic relationship, but registering a complaint under 498A (where a bride is the aggrieved party) is widespread.^[19]
• Vague definitions of dowry and stridhan.
• Presumption of guilt. The Dowry Prohibition Act (section 8-A) states, "Where any person is prosecuted for taking or abetting the taking of any dowry under Sec. 3, or the demanding of dowry under Sec. 4, the burden of proving that he had not committed an offence under those sections shall be on him."^[20]
• Duplication of existing laws. Laws already exist to deal with offences against intimidation, violence, extortion and murder. A "dowry death" can be considered a murder, and a demand for dowry can be considered extortion under existing laws. The additional laws, instead of reforming the police, mostly serve to shift the burden of proof onto the accused.
• Human rights violations: in most cases involving non-resident Indians, their passports are impounded and they are restricted from traveling outside the country.
• No penalties for false complaints or perjury.
• As per Section 13(1)(1a)of the Hindu Marriage Act,1955, Section 27(1)(d) of the Special Marriage Act,1954, section 32(dd)of the Parsi Marriage and Divorce Act, 1936, Section 10(1)(x)of the Divorce Act,1869, Section 125(4&5) of the Criminal Procedure Code,1973 and Section 18(2) of the Hindu Adoption & Maintenance Act, 1956 clearly recognize that bride can commit cruelty towards her husband and his family and she can also raise false claim, as cruelty in the above-mentioned laws are gender neutral but hypocrisy lies that Section 498A of the IPC and/or Domestic Violence Act, 2005 did not at all recognize that bride can commit cruelty towards her husband and other women family members of her husband. Even women family members have no right to lodge any complain against bride in any legal forum in India. As the Section 498A of the IPC and Domestic Violence Act, 2005 are criminal law but other mentioned laws are civil law, so threatening and taking any action by the bride and her family towards her husband and other family members including women and old aged family members are very easy job. Moreover, inherent lacuna in Section 161 and 162 of Criminal Procedure Code, 1973 help the corrupt nexus between investigating officer of the concerned police station and the de facto complainant for issuance of prompt charge sheet. For this reasons issuance of charge sheet just by way of sitting in the concerned police station is an extremely easy job for the I.O. but in reality conviction is extremely low in comparison to other crimes in India. Section 498A of the IPC is also a weapon for the ill-motivated bride to extract heavy alimony from husband and want to get rid of the husband easily.

Proposals for amending the law

The Malimath committee in 2003 proposed that Section 498A be made bailable and compoundable. These amendments were opposed by women's groups.^[21]

The Centre for Social Research released a research report opposing amendments to section 498A. According to this report, out of 30 cases studied, there were no convictions based solely on section 498A. In addition, a majority of the women in the studied cases had suffered physical and mental abuse for at least 3 years before filing a complaint. However, the report states that 6.5 percent of the studied cases were found to be false complaints.^[22]

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."^[23]

In August 2010, the Supreme Court asked the Government of India to amend the Dowry Laws to prevent their misuse.^[24]

In January 2012, the Law Commission of India, after a review,^[25] recommended dilution of anti-dowry law (Section 498-A).^[26]

In its latest recommendation to the law ministry, the commission headed by Justice PV Reddi, has recommended to the government to make Section 498-A of the Indian Penal Code (IPC), which deals with harassment for dowry and cruelty to a woman in her matrimonial home, a compoundable offence.^[26] The commission said the offence should be allowed to be made compoundable provided the women is facing no external pressure.^[26] This means that those who would be booked in cases under this section would find it easier to get bail.

See also

• Dowry system in India
• Gender discrimination in India
• Uniform civil code of India
• Women's Rights
• Suhaib Ilyasi
• Anticipatory bail
• Bride price
• Bride burning
• Domestic Violence in India

References

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