Dowry law in India

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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 has been prohibited since 1961 under Indian civil law. Subsequently, Sections 304B and 498A of the Indian Penal Code were enacted, making it easier for the wife to seek redress from harassment by the husband's family. Anti-dowry laws have been criticized by men's rights groups and Supreme Court of India, who accuse women and their families of misusing the laws.[1]

Definitions

Dowry

Section 2. Dowry Prohibition Act, 1961
Definition of “dowry”.—In this 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 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. Explanation I.— 3[***] Explanation II.—The expression “valuable security” has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860).

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.[2]

The Dowry Prohibition (DP) Act

Introduced and taken up by then Indian minister Ashoke Kumar Sen, this Act[3] 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, 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.[4]

However, as per section 3 of the Act,[5] 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.

IPC Section 406

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 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.[6]

IPC Section 304B

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.[7]

IPC Section 498A

Section 498A[8] was inserted into the Indian Penal Code in 1983 via an amendment. 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.[9]

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.[10][11] 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."[12] In 2010, Indian Parliament set up a committee (headed by Shri. Bhagat Singh Koshyari) to investigate misuse of this law.

Domestic Violence Act (2005/2006)

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.[13]

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).

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.[14]

Criticism by Supreme Court

“The simplest way to harass is to get the husband and his relatives arrested,”[15] the two-judge bench of the Supreme Court, headed by Justice Chandramauli Kumar Prasad, in a 21-page order said.In some cases, “bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested,” the order noted.[16]

Criticism by men's rights movements

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

  • Gender Bias: The laws do not recognize cruelty and domestic violence against men. 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 woman is the aggrieved party) is widespread.[17]
  • 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."[18]
  • 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.

Circulars

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.[19]

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.[20]

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.[21]

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."[22]

In August 2010, the Supreme Court asked the Government of India to amend the Dowry Laws to prevent their misuse.[23]

In January 2012, the Law Commission of India, after a review,[24] recommended dilution of anti-dowry law (Section 498-A).[25]

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.[25] The commission said the offence should be allowed to be made compoundable provided the women is facing no external pressure.[25] This means that those who would be booked in cases under this section would find it easier to get bail.

See also

References

  1. ^ blogs.wsj.com/indiarealtime/2014/07/03/women-misusing-indias-anti-dowry-law-says-supreme-court/
  2. ^ Hindu Woman's Right to Property (Past and Present), Review author[s]: Ludwik Sternbach, Journal of the American Oriental Society, 1962, p.94 American Oriental Society
  3. ^ "aaa". Indiacode.nic.in. Retrieved 2013-02-18. 
  4. ^ "Section 4- The Dowry Prohibition Act, 1961". Vakilno1.com. Retrieved 2013-02-18. 
  5. ^ "Section 3- The Dowry Prohibition Act, 1961". Vakilno1.com. 1986-11-19. Retrieved 2013-02-18. 
  6. ^ [1][dead link]
  7. ^ http://web.archive.org/web/20130120115113/http://www.vakilno1.com/bareacts/IndianPenalCode/S304B.htm
  8. ^ Court, Allahabad District. NIC http://districtcourtallahabad.up.nic.in/articles/IPC.pdf. Retrieved 29 March 2014.  Missing or empty |title= (help)
  9. ^ [2][dead link]
  10. ^ "Sushil Kumar Sharma vs Union Of India And Ors on 19 July, 2005". Indiankanoon.org. Retrieved 2013-02-18. 
  11. ^ Venkatesan, J. (July 22, 2005). "Dowry law is a shield, not an assassin's weapon: court", The Hindu.
  12. ^ Venkataraman, R. (July 22, 2005). "Dowry law no licence to settle scores: SC", The Telegraph.
  13. ^ "THE CODE OF CRIMINAL PROCEDURE, 1973". Pwdvhyd.ap.nic.in. 2005-09-13. Retrieved 2013-02-18. 
  14. ^ blogs.wsj.com/indiarealtime/2014/07/03/women-misusing-indias-anti-dowry-law-says-supreme-court/
  15. ^ http://judis.nic.in/supremecourt/imgs1.aspx?filename=41736
  16. ^ blogs.wsj.com/indiarealtime/2014/07/03/women-misusing-indias-anti-dowry-law-says-supreme-court/
  17. ^ "Shonee Kapoor rebutts Pinky Anand". FirstPost. Retrieved 29 May 2014. 
  18. ^ "The Dowry Prohibition Act". Wcd.nic.in. Retrieved 2013-02-18. 
  19. ^ [3][dead link]
  20. ^ Stiffer dowry law may lead to more abuse
  21. ^ A Research study on the use and misuse of Section 498A of the Indian Penal Code
  22. ^ http://164.100.24.219/annex/200/AS230.htm
  23. ^ "Amend dowry law to stop its misuse, SC tells govt". The Times Of India. 17 August 2010. 
  24. ^ "Misuse forces a review of dowry law". Hindustan Times. 2011-02-28. Retrieved 2013-02-18. 
  25. ^ a b c http://www.firstpost.com/fwire/law-commission-recommends-dilution-of-anti-dowry-law-188059.html

External links