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This article is written by Somya Janki, from the Kalinga Institute of Industrial Technology. This is an exhaustive article which deals with the dowry laws in India and especially matters pertinent to dowry deaths.

Introduction

A news channel is constantly bloating out news for the consumption of its viewers in the warmth of their houses, but the irony is that the listeners seem to be perturbed. The news is displayed with a headline. “A woman burnt by her in-laws for dowry”.

But the thing to be noted is that the news does not seem to be astonishing. Marriage is considered a sacrosanct institution. As in India, it is considered a religious obligation and held with reverence. The matrimonial institution is not only complementary to the family institution but also the girl who is married off has a lot of expectations from her married life and wishes to have a blissful life with her family. But unfortunately, these expectations have been turning out to be surreal due to the dowry system in India. These days we often debate on women empowerment, equality before the law, but in the same instance, we see rising cases of dowry death. So, how come these dowry-related crimes took a toll on the existing legislation. But, before drawing up to these points we need to understand the concept of dowry and dowry death and even before that, we need to delve into the history of dowry.

Dowry death: an insight

Dowry refers to any kind of gift in the form of cash or goods which could be ornaments or some sort of commodities or household items that are required by the newlywed to start their married life which is given by the bride’s family to the bridegroom’s family.

According to Section 2 of the Dowry Prohibition Act, 1961, “Dowry is any kind of property or valuable security directly or indirectly agreed to be given by-

(i) One party to a marriage to the other party to the marriage; or

(ii) By the parent of either party to a marriage or by any other person, to either party to the marriage or any other person, at or before or any time after the marriage in connection with the marriage of the said parties.

The history of dowry in Asia is a bit ambiguous. According to some scholars, dowry was practised since time immemorial, but according to others, it does not exist in antiquity. Historical eyewitness reports suggest dowry in ancient India was of very little significance, and daughters of the family did have inheritance rights when they had no brothers, which by custom were exercised at the time of their marriage. And further evidence suggests that there existed a system of “bride price”, whereby the family of the groom had to give some gifts to the family of the women before marriage but in instances where the bride suffered from some sort of defect then the family had to bestow her to be in-laws with some gifts. However, this was not very much prevalent either. At that point of time, it was very prevalent that the girl had to be beautiful and virtuous but there was not any concern as such with the materialistic gifts she brought to her in-laws. The bride had to be adorned richly as ceremonial gifts which slowly took the form of dowry. As of today, this adornment has become the cause of abuse by the groom’s family to the bride.

For ages, we have seen the demand for dowry. To stop this practice, the demand for it should be understood properly by society so that it can prevent its practice. 

Factors behind the existence of the dowry system in recent times

Traditions and Customs 

It has been a preconceived notion of the people that the dowry system has been existing since centuries back and it is quintessential to be followed by the two families by giving out valuables by the bride’s family to the groom’s.

Dowry as a subject of reputation

Talking of the 21st century this is considered to be the most plausible reason pertinent to the existence of stealth-like dowry. It is a belief among people that dowry giving or receiving gives a lot of merit in reputation within the society and also the more lavish the presents are, the more honourable it is, which is making this system more persistent within our society.

Illiteracy

It is the major problem of our nation and is the penultimate factor behind the problem of dowry. In underdeveloped areas, where the literacy rate is quite low and people are unaware of the laws relating to dowry, has also contributed a lot to it. Although dowry is something which is even practised by the literates of our society, it becomes a lot difficult to make them understand the laws. Even if the laws turn out to be stringent they would not take effect for sure as long as the people are not aware of it.

So, the abuse for the demand for dowry can be in the form of verbal and the most serious can take the shape of death of the victim or dowry death.

A shift from Manusmriti to Groom price

From what we saw in the earlier days, there was a prevalence of bridal price ages back but now, there is a concept that the groom’s family ought to be paid off by gifts just for the sake of a plethora of petty reasons like the groom having a decent or a white-collar job.

Perceiving dowry death as the law speaks

Indian Penal Code,1860

Chapter XVI of the Indian Penal Code covers the offences affecting the human body. Under which Section 304B of the Indian Penal Code, “if a woman dies within the seven years of marriage by any burns or any other bodily injury or it was revealed that before her marriage she was exposed to cruelty or harassment by her husband or any other relative of the husband in connection to demand the dowry then the death of the woman will be considered as a dowry death.”

Punishment for dowry death ranges from a minimum sentence of imprisonment for seven years and a maximum sentence extending to imprisonment for life. There are certain pre-requisite for consideration of dowry death laid under Section 304B of the Indian Penal Code which are as follows:

  • Death should be caused either by burns or bodily injury or by any other circumstances for that matter.
  • Death must occur within or before seven years of marriage.
  • It must also be revealed that soon after the marriage of the bride, she was exposed to some sort of cruelty or harassment by her husband or any other relative.
  • And lastly, her cruelty or harassment of her should be connected with the demand for dowry.

Code of Criminal Procedure, 1973

Dowry death is a non-bailable offence, that is, offences under which statements by the court is required to arrest a person and the person cannot be acquitted without court’s order and cognizable that is that the police do have the authority to arrest any person without issuing of any warrant along with the authority to carry out the investigation with or without the permission of magistrate of a court. According to Section 41 of the Code Of Criminal Procedure, 1973  the police officer, while arresting any person without a warrant, be satisfied with the complaint registered against a person and fulfil all the provisions of Section 41 of CrPC.

The Dowry Prohibition Act, 1961

In the year 1961, the first national legislation pertinent to dowry prohibition and to deal with the prevalent dowry system was enacted as the Dowry Prohibition Act of 1961. The Act lays down a certain set of preventive and punitive measures against the existing peril but, as the matter of fact being much celebrated, the objectives have not been achieved. The failure was not primarily due to certain defects in the laws but on the part of enforcement by the government. This failure also owes to the fact that the dowry system is very much rooted within our society and the dearth of proper action which had to be taken by the government officials. In addition to it, there is also a lack of awareness among the general mass. Although the act was supported by the public (primarily literates), the situation has not changed because many sections of society are not even aware of its presence. What is the use of stringent laws if people are not even aware of them?

It was in 1961 that the Dowry Prohibition Act was re-amended twice to widen the meaning or the scope of the term “dowry” and enhancement of punishment for the various sorts of violations of the provisions under this Act. Section 2 of this Act states that “any property or valuable security from one side to another either given or agreed to be given in future directly or indirectly in connection with marriage amounts to dowry.”

Originally the expression incorporated in the Act was “as consideration for the marriage of such parties which gave quite a narrower scope to the term dowry. 

It was in the case of Inder Sain v/s State of Punjab (1973), it was held that-

The term “consideration” was restricted to motive or reason, compensation or reward to marriage and therefore did not include the goods or any property demanded or given after marriage. 

The expression “any time after the marriage” has been brought to replace “after marriage” to eliminate a restricted interpretation of the statute. The concepts of presents in the Indian marriages are only restricted to the possessions which are customary, and not of the sort of which creates a financial burden on a family and a list of such presents, along with value and description, is to be prepared and must be signed by both the bride and the bridegroom. 

Changes made in the prevailing Act-

Under Section 3 of this Act, giving or taking of dowry is punishable with a minimum term of 5 years and a fine up to Rs 15,000 or to the extent of the value of dowry whichever is more.

Similarly, under Section 4 of this Act, it is laid down that demanding dowry is also punishable by the term ranging from six months to five years and a fine limit up to Rs 15,000. After a couple of amendments, the act tries to curb this social menace.

Section 7 provides the persons and the agencies who/which may initiate the proceedings: (a) police (b) aggrieved person (c) parents and relatives (d) any recognised welfare institution or organisation.

Section 8 makes it more stringent by adding these offences under the ambit of non-bailable and cognizable. Further Section 8-A goes on to state that the onus probandi lies on the person who is the offender or the one who denies offence. 

Landmark judgments 

Although it has been difficult to get the whole thing and laws pertinent to dowry death to be properly implemented, yet there were some of the causes which brought a breakthrough in the backdrop of existing faults. In the case of Satbir Singh vs The State of Haryana (2021), it was held by the Apex Court that if the prosecution can establish the ingredients of Section 304-B of IPC the burden of proof of innocence completely lies on the defence. Further, the provisions under Section 304B of the Indian Penal Code are far more stringent as in comparison to those in Section 498A of the Indian Penal Code in the sense that offences under it are cognizable, non-bailable and can be tried by the court of Session.

While in case of Mustafa Shahadal Shaikh v. the State of Maharashtra (2012), the ratio decidendi of the court was states that the language used under Section 304-B, “soon before death” does not ascribe any definite time frame as such under both the Indian Penal Code as well as under Section 113-B of Indian Evidence Act. Accordingly, the term “Soon before death” could be determined by Courts depending upon the facts & circumstances of the case. However, it would imply that the interval should not be much between the cruelty or harassment concerned and the death in question. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would have no consequence.

Loopholes in the existing law that causes a misconception

Yet, that is not all where these laws are lagging beyond the facts of proper government implementation and functioning, lack of proper coordination, there lies another peculiar issue that these laws are many times used in a wrong way. There have been many instances where these laws have been used to defame or slander one’s name. Sometimes there is a failure on the part of the judiciary too because there are times the cause of death of the person is not the dowry but some other case as was in the case of Balbir Singh v/s state of Punjab (1956) and the cause of the death could be ranging from mental illness to other. So, we also need to ponder upon the setbacks for the successful implementation of it.

Conclusion 

Women are considered to be the backbone of society, and killing or burning them just for dowry is a shameful act in itself. All said and done and to obliterate such heinous crimes some certain provisions and measures need to be undertaken by the government with the most prominent one of keeping women on par with men so they are not dependent on them and also taking women reservation as a source of women empowerment. Small changes make a big difference so to remove this peril we ought to create awareness among the people against dowry. Isn’t it quite paradoxical, a land where marriage is considered sacred, women are burned in the hands of people themselves for the matter of a few pence. Dowry should be prohibited.

References 


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