An Analysis on Dowry Deaths in India
Dowry is in commonly practiced custom in India. However, it is not legal and it is been prohibited under various Indian laws such as Indian Penal Code, Criminal Procedure Code, Indian Evidence Act. There is a complete whole law pertaining to the prohibition of dowry called Dowry Prohibition Act, 1961. However all the laws appear to be unsuccessful in fulfilling its objective as it is still practiced in our country. Behind every issue there is always some causes attached. It is the same with the Dowry system, various factors of the society and system lead to raise the demand of dowry and this ultimately results into Dowry Death. None can be blamed particularly for the continuance of this system because the lacunas are on the part of all, beginning from the statute itself to its enforcement. Also, it is not followed only by particular religion, instead it is practiced in more than one religion by one or the other name. The paper attempts to highlight the factors, causes, laws pertaining to the dowry system. Along with that it also discusses the stand of judiciary pertaining to the issue with the help of case laws.
I. Introduction
Marriage is an social institution where two people come together for the continuance of human race. The marriage under Hindu Law is considered sacred and under Muslim law it is a kind of a contract. Certain promises are made by both the person entering into the marital institution. The pious institution becomes dangerous when the husband and his family demands from the wife and her family i.e. Dowry and when the wife or her family fails in fulfilling the demand then the sense of revenge occurs against the wife or daughter in law.
The transfer of parental property of daughter or his family to the groom, at the time of the wedding or after it is called Dowry. This can also be paid in the form of cash, expensive gifts, jewellery, furniture, household appliances, car and other items which may be helpful in beginning a new married life.
Dowry is an ancient custom. Therefore, it is deep rooted in not only in other parts of the world but also into Indian customs. Efforts have been made to eradicate this system yet it is been practiced every day. This has become an alarming issue of last two decades. As mentioned in Hindu Shastra it was originally given by the bride's parents to provide security and compensation for inheritance rights to the daughter in order to enable her to lead a dignified and harmonious relationship with her husband and his family.2 The case pertaining to the dowry has increased throughout the nation irrespective of cast, class, religion. On daily basis women are abused, humiliated and harassed for the sake of dowry. This doesn't stop here, women are ill-treated, killed and forced to commit suicide if the parents of woman fulfill the dowry demands. The dowry system bring the bride's family into great financial burden. To prohibit the giving and taking of dowry the law makers enacted Dowry Prohibition Act,1961. It is also criminalized under other laws.
II. Factors and causes of dowry death
Economic Factors:
The Indian inheritance system can be considered as an pivotal economic factor of dowry because the rights of inheritance were reserved only with the sons and the daughters were not given the rights of inheritance in the family's estate. Therefore, for the economic security of the daughter, dowry was given. It was believed that once the daughter is given dowry upon her marriage, she loses the right in family's estate. The another reason of dowry was the financial security of the daughters. The form of dowry changed into the greed of the groom and his family and slowly it became tradition to give dowry. Initially it was given as per the wish of bride's family but later changed as per the demand of the groom's family. Daughters of Jain, Hindu and Sikh derived equal right as of men when Hindu Succession Act, 1956 was passed.
Social Factors:
The structure and kinship of marriage in parts of India contributes to dowry. In the north, marriage usually follows a patri-local (lives with husband's family) system, where the bride is a non-related member of the family.3 This system encourages dowry perhaps due to the exclusion of the bride's family after marriage as a form of pre-mortem inheritance for the bride.4 In the south, marriage is more often conducted within the bride's family, for example with close relatives or cross-cousins, and in a closer physical distance to her family and additionally, brides may have the ability to inherit land, which makes her more valuable in the marriage, decreasing the chance of dowry over the bride price system.5
Religious Factors:
The dowry system is not limited to any particular
religion, it is been found in many religion including Hindu religion. Indian Muslims uses Jahez word for Dowry. It is divide into two parts. The first part comprises of conjugal life and the bride's outfit. The later consist of clothes, jewellery, money, car and other items. Jahez is more expensive than other expense of marriage.
- Vague Language Of Statute:
Alike other laws the language of the statute regarding the Dowry is vague and that's why it becomes less effective to punish the culprits. Originally the scope of dowry demand was limited to money and property given upon wedding and the act prohibited the gifts after wedding. Therefore, the expansion it section 2 of the Dowry Prohibition Act is needed.
Discrimination Against Woman:
Woman faces various form of discrimination on regular basis. However, the strongest of all is the economic discrimination. Women throughout the life remain dependent on man in her life be it father, brother, husband or son. Above this the law also made discrimination against woman as the inheritance rights were in favor of men and not women. In Islamic the daughters are given only one third of the property because the son has responsibility to take care of the parents
Women are also discriminated at work place as there is no pertaining to equal pay to men and women working at same position. Both the society and the law expect the women to live in the married relation even if it is unhealthy.
The court had also take the stand for the men in the dowry death cases where the revenge was been taken by the name dowry demand and this was observed in the landmark judgment of Sunil Bajaj V. State Of Madhya Pradesh. The apex court set aside the lower court's judgment and acquitted the respondent Justice Shivraj V Patil highlighted that it was lower court's unfortunate mistake to misinterpret the section 304B of Indian Penal Code.
III. Laws pertaining to the dowry
The Dowry Prohibition Act, 1961:
It is the first act for the prohibition of dowry in any form. Even after including the preventive and punitive provisions, it fails to attain its objectives. This act has loopholes in all the form such as from in the law itself and also, on the part of government because the enforcement of the law was weak and government didn't concentrated on it when the cases were been registered and government official didn't took any actions against that. Also, it is government's duty to spread awareness regarding the law but it failed here too. The failure of the act cannot be totally given to either because the practice of dowry system is so deep-rooted in our society. Despite all, the judiciary supported in all the situation.
Essential provision of the act:
Section 2: “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 (1) or any time after the marriage (2) in connection with the marriage of the said parties, but does not include dower or Mehr in the case of persons to whom the Muslim Personal Law (Shariat) applies (3) Explanation II The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).6
Section 3: 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.7
Section 4: 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.8
Section 4A: If any person,
(a) offers, through any advertisement in any newspaper, periodical, journal or through any other media, any share in his property or of any money or both as a share in any business or other interest as consideration for the marriage of his son or daughter or any other relative;
(b) prints or publishes or circulates any advertisement referred to clause (a), he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to five years, or with fine which may extend to fifteen thousand rupees.9
Section 5: Agreement for giving or taking dowry to be void any agreement for the giving or taking of dowry shall be void.10
Section 6: Dowry to be for the benefit of the wife or heirs: Where any dowry is received by any persons other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman
a. If the dowry was received before marriage, within three month after the date of marriage or,
b. If the dowry was received at the time of or after the marriage within three months after the date of its receipt or,
c. if the dowry was received when the woman was a minor, within three months after she has attained the age of 18 years, and pending such transfer, shall hold it in trust for the benefit of the woman.11
If any person fails to transfer any property as required by sub-section (1) within the time limit specified therefore or as required by sub-section(3), he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend two years or with fine which shall not be less than five thousand rupees, but which may extend to ten thousand rupees or with both.12
where the woman entitled to any property under sub-section (1) dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it for the time being : if she has no children, be transferred to her parents, or if she has children, be transferred to such children and pending such transfer, be held in trust for such children.13
Section 8: It discusses regarding the appointment of Dowry Prohibition officers appointed by the state in specific area who hat to serve following duties:
a. to see that the provisions of this Act are complied with,
b. to prevent, as far as possible, the taking or abetting the taking of, of the demanding of dowry;
c. to collect such evidence as may be necessary for the prosecution of persons committing offences under the Act; and
d. to perform such additional functions as may be assigned to him by the state government, or as may be specified in the rules made under this Act.14
In the case of Inder Sain v. State, it was held that “consideration” was restricted to motive or reason, compensation or reward to marriage and would not, therefore, include any property demanded or given subsequent to marriage. The expression “any time after the marriage” has been brought to replace “after marriage” to eliminate a restricted interpretation of the statute.15
Satyanandam v/s Public Prosecutor, High Court of A.P.,2004 In this case court held that where the offence of dowry death is not proved the accused can still be convicted for dowry demand.16
State of Andhra Pradesh V. Ram Gopal Asawa & Another (AIR 2004 SCC 470): In this case court held that there must be proximate and live link between the effects of cruelty based on dowry demand and the concerned death.17
Code of Criminal Procedure, 1973
Section 174 and 176 of the code, empowers the police to investigate and enquire the causes of unnatural death. After the amendment of 1983 it is mandatory to send the woman's body for the post mortem if the doubtful death occurs within seven years of the marriage. The code also, empowers the magistrate to inquire into death case of woman in similar situations.
Indian Penal Code, 1860
Under this act following two provisions were added as a result of failure of Dowry Prohibition Act:
Section 304-B: 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.18
The punishment committing the offence shouldn't be less than seven years and it can be upto life imprisonment.
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—
(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 to meet such demand.19
In case of Satbir Singh v. State of Haryana the Apex Court held that the prosecution is able to establish the ingredients of section 304-B, IPC the burden of proof of innocence shifts on defence. The provisions under section 304B,IPC are more stringent than that provided under section 498A of the Penal Code . The offence is cognizable, non-bailable and triable by a court of Sessions.20
Supreme Court in the case of State of Punjab v. Iqbal Singh explained the period of seven years as it is considered to be turbulent one after which the legislature assumed that the couple would have settled down in life.21
Essentials of Dowry deaths under section 304-B Indian Penal Code:
a. First the death should have been occurred under seven years of marriage.
b. Death must have been caused due to bodily injury or burns or otherwise than under normal circumstances.
c. Dowry must abridged the cruelty or harassment soon before the death of the woman
d. The cruelty or harassment should be done either by the husband or his relatives.
In case of Vijeta Gajra V. State of NCT Delhi it was held that foster sister is not “Relative” within the meaning of section 498A, IPC to fix liability for causing cruelty against the complainant.22
Lastly, Section 302 and 306 of IPC has relation with the dowry death as the first states that if the person intentionally causes the death of the woman than the person will be tried under section 302. The later states that, if the husband or his relatives within the seven years of marriage created the situation for the woman to commit suicide than they will be tried under 306 of the code.
Indian Evidence Act, 1872
Section 113B was inserted for the presumption of dowry death which read as; When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation.—For the purposes of this section, “dowry death” shall have the same meaning as in section 304B, of the Indian Penal Code.23
The another reason for this insertion was that the crimes against the woman pertaining to the dowry are committed within the four walls of the residential premises and the same makes more difficult to collect the direct evidences and in most case it becomes impossible to collect the evidence. The insertion allows the prosecution to link and presume certain possible situation when the death occurs within the seven years of marriage. During trial if by the presumption and acceptance by the respondent if it proved that the women was harassed and subjected to cruelty soon before the death for the dowry than the respondent will be booked under section 304B of Indian Penal Code.
In the case of State of W.B v. Orilal Jaiswal it states that in spite of presumption the standards of proof and defence will remain the same.24
IV. Judiciary's stand in dowry death cases
The Supreme Court has taken unusual stand in the cases pertaining to dowry deaths. Apex court once stated that if it proved that the reason behind the woman was demand of dowry than strictest action should be taken against the person. This stand was taken by the court because it was concerned about the acquittal of the culprits and the state couldn't approach it. The court has also, take a strong stand for not granting anticipatory bail in the cases of bride burning (death).
The court showed dissatisfaction when the person with 100% burn was not considered to be fit for the dying declaration. Not only this there is another major lacuna in the legal system that when the person other than the victim reports the matter than the same is not considered.
V. Conclusion
Dowry system started in ancient time for the security of the daughter but it has now become the curse in the society for the bride’s parents because, it creates Financial burden on them. The same is not the case with groom and his family because they are the who receive the expensive items upon the marriage. In most cases, the dowry demands doesn't stop just upon a marriage as it continues even after that. When the bride’s family is unable to fulfill the demand the in-laws and the husband begin torture her in both the forms mentally and physically and due to this many bride choose to commit suicide and in the worst case the dowry murder takes place. Therefore, for the protection of women every organization of the society such as police, public servant, judiciary and government has to make sure that letter and punishment is given to the culprits of dowry death. This can be started by educating the women and making them independent economically. Along with this the society needs the commitment of public to shun away dowry demands.
It is high time to change certain things in the system such as more female police officers should be recruited especially in the region where the cases of dowry death are higher. Another necessary change should be made is that no person below the rank of assistant commissioner can investigate the matter pertaining to dowry death. Lastly, the punishment for the abetment to suicide must be raised to minimum seven years in the dowry death cases.
*****
Footnotes
1. Author is a student at GLS Law College, Ahmedabad, India.
2. Shashwat Pratyush, Dowry Deaths In India : A Legal Study, Blog iPleaders (Aug. 16, 2019) https://blog.ipleaders.in/dowry-deaths-india-legal-study/ ↩
3. Dalmia, Sonia; Pareena G. Lawrence (2005). "The Institution of Dowry in India: Why It Continues to Prevail". The Journal of Developing Areas. 38 (2): 71–93. doi:10.1353/jda.2005.0018.S2CID 154992591. ↩
4. Dalmia, Sonia; Pareena G. Lawrence (2005). "The Institution of Dowry in India: Why It Continues to Prevail". The Journal of Developing Areas. 38 (2): 71–93. doi:10.1353/jda.2005.0018. S2CID 154992591. ↩
5. Dalmia, Sonia; Pareena G. Lawrence (2005). "The Institution of Dowry in India: Why It Continues to Prevail". The Journal of Developing Areas. 38 (2): 71–93. doi:10.1353/jda.2005.0018. S2CID 154992591. ↩
6. https://indiankanoon.org/doc/1249134/ ↩
7. https://www.latestlaws.com/bare-acts/central-acts-rules/family-laws/the-dowry-prohibition-act-1961#3_Penalty_for_giving_or_taking_dowry ↩
8. https://www.latestlaws.com/bare-acts/central-acts-rules/family-laws/the-dowry-prohibition-act-1961#3_Penalty_for_giving_or_taking_dowry ↩
9. https://www.latestlaws.com/bare-acts/central-acts-rules/family-laws/the-dowry-prohibition-act-1961#3_Penalty_for_giving_or_taking_dowry ↩
10. Monika Soni, Dowry And Dowry Death, Legal Service India https://www.legalserviceindia.com /legal/article-1245-dowry-and-dowry-death.html ↩
11. “Dowry Prohibition Act,1961.” Latest Laws, https://www.latestlaws.com/bare-acts/central-acts-rul es/family-laws/the-dowry-prohibition-act-1961#3_Pe nalty_for_giving_or_taking_dowry. ↩
12. “Dowry Prohibition Act,1961.” Latest Laws, https://www.latestlaws.com/bare-acts/central-acts-rules/family-laws/the-dowry-prohibition-act-1961#3_Penalty_for_giving_or_taking_dowry. ↩
13. “Dowry Prohibition Act,1961.” Latest Laws, https://www.latestlaws.com/bare-acts/central-acts-rules/family-laws/the-dowry-prohibition-act-1961#3_Penalty_for_giving_or_taking_dowry. ↩
14. Monika Soni, Dowry And Dowry Death, Legal Service India https://www.legalserviceindia.com/leg al/article-1245-dowry-and-dowry-death.html ↩
16. Monika Soni, Dowry And Dowry Death, Legal Service India https://www.legalserviceindia.com/le gal/article-1245-dowry-and-dowry-death.html ↩
17. Monika Soni, Dowry And Dowry Death, Legal Service India https://www.legalserviceindia.com/leg al/article-1245-dowry-and-dowry-death.html ↩
18. https://indiankanoon.org/doc/653797/ ↩
19. https://indiankanoon.org/doc/538436/ ↩
- Shashwat Pratyush, Dowry Deaths In India : A Legal Study, Blog iPleaders (Aug. 16, 2019) https://blog.ipleaders.in/dowry-deaths-india-legal-study/
- Dalmia, Sonia; Pareena G. Lawrence (2005). "The Institution of Dowry in India: Why It Continues to Prevail". The Journal of Developing Areas. 38 (2): 71–93. doi:10.1353/jda.2005.0018.S2CID 154992591.
- Dalmia, Sonia; Pareena G. Lawrence (2005). "The Institution of Dowry in India: Why It Continues to Prevail". The Journal of Developing Areas. 38 (2): 71–93. doi:10.1353/jda.2005.0018. S2CID 154992591.
- Dalmia, Sonia; Pareena G. Lawrence (2005). "The Institution of Dowry in India: Why It Continues to Prevail". The Journal of Developing Areas. 38 (2): 71–93. doi:10.1353/jda.2005.0018. S2CID 154992591.
- https://indiankanoon.org/doc/1249134/
- https://www.latestlaws.com/bare-acts/central-acts-rules/family-laws/the-dowry-prohibition-act-1961#3_Penalty_for_giving_or_taking_dowry
- https://www.latestlaws.com/bare-acts/central-acts-rules/family-laws/the-dowry-prohibition-act-1961#3_Penalty_for_giving_or_taking_dowry
- https://www.latestlaws.com/bare-acts/central-acts-rules/family-laws/the-dowry-prohibition-act-1961#3_Penalty_for_giving_or_taking_dowry
- Monika Soni, Dowry And Dowry Death, Legal Service India https://www.legalserviceindia.com /legal/article-1245-dowry-and-dowry-death.html
- “Dowry Prohibition Act,1961.” Latest Laws, https://www.latestlaws.com/bare-acts/central-acts-rul es/family-laws/the-dowry-prohibition-act-1961#3_Pe nalty_for_giving_or_taking_dowry.
- “Dowry Prohibition Act,1961.” Latest Laws, https://www.latestlaws.com/bare-acts/central-acts-rules/family-laws/the-dowry-prohibition-act-1961#3_Penalty_for_giving_or_taking_dowry.
- “Dowry Prohibition Act,1961.” Latest Laws, https://www.latestlaws.com/bare-acts/central-acts-rules/family-laws/the-dowry-prohibition-act-1961#3_Penalty_for_giving_or_taking_dowry.
- Monika Soni, Dowry And Dowry Death, Legal Service India https://www.legalserviceindia.com/leg al/article-1245-dowry-and-dowry-death.html
- Monika Soni, Dowry And Dowry Death, Legal Service India https://www.legalserviceindia.com/le gal/article-1245-dowry-and-dowry-death.html
- Monika Soni, Dowry And Dowry Death, Legal Service India https://www.legalserviceindia.com/leg al/article-1245-dowry-and-dowry-death.html
- https://indiankanoon.org/doc/653797/
- https://indiankanoon.org/doc/538436/
- https://indiankanoon.org/doc/1906/