Dowry Death & Indian Scenario SSRN-Id1180222

DOWRY IN INDIA- A SOCIO LEGAL STUDY

SHARDA CHANAKYA NATIONAL LAW UNIVERSITY GAINDHI MAIDAN PATNA.

MAY, 2008

[email protected] Ph. +91 9470018204, 0612- 2260870

Address- D/o Dr. Sanjay Kumar Mahesh Nagar Patna-24

Electronic copy available at: http://ssrn.com/abstract=1180222 http://ssrn.com/abstract=1180222

INTRODUCTION

Dowry is the amount payable during marriage as a consideration for marriage. As per S. 498 A of IPC dowry demand amounts to domestic violence. It is also a ground for divorce as it amount to cruelty. Dowry prohibition act has come into force on 1961 however it has failed to curtail dowry demand.

“Yatra naryastu pujayante, ramyante, tatra devta” (Gods live where woman is worshiped). Women’s position in ancient India was much better than what it is now. No religious ceremony was complete without the involvement of women. Instances can be taken from Ramayana where Ram has to create an idol of Sita as Ashwmegh yaga cannot be completed without a better half. During 4000-1000 BC women were treated relatively equitably and with a fair deal. It is said said that there were 32 women compilers of Rig Veda who expounded the Vedic literature.

Gradually however, Brahmins monopolized the religious sphere. As opposed to the prior times, now if any religious ceremony had to take place, the Brahmins alone had the right to conduct it. People accepted Brahmins as the only means that could have any direct contact with the Almighty. In the era of Brahmin supremacy patriarchy saw new heights. It is this period that witnessed the degradation in the position of women among many other evils. Untouchability, confining knowledge, domination of one group in interpreting texts etc forced women to spend more time in cooking and caring than in receiving education.

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Then came the laws- the Smritis and the Puranas- the laws that further gave a legal backing to the Brahmin’s supremacy and absolved all independent status of women. She was now either a daughter or a wife- never an individual! Education was not her forte any more. She was excluded even from the religious ceremonies.

In medieval India the status of women suffered a set back. With the advent of Muslim in 1010 A.D, Parda system became prevalent. Women were considered as an evil that incite men and so they are asked to cover themselves in hijab. Hindus became very protective of their religion and that rigidness was visible when freedom of woman was restrained.

During British rule, there was improvement in the status of women. Widow remarriage act,  prohibiting sati and female education educa tion was given importance. A public movement headed heade d by Raja Ram Mohan Roy, Abolition of Sati Act of 1829 was passed during William Bentick’s period. Keshav Chandra Sen was instrumental in getting Native Marriages Act, 1872, which abolished early marriages, polygamy and allowed widow remarriages inter caste marriages. Pandit Ishwara Chandra Vidya Sagar and Prof. Karve were instrumental in getting Hindu widow Remarriage Act, 1856 passed. Caste Disabilities Removal Act is passed in 1850. Long before India gained independence, the then provincial Government of Sind passed an enactment known as "Sind Deti Leti Act, 1939" with a view to deal effectively with the evils of dowry system but the enactment had neither any impact nor could create the desired effect.

After independence succession law was changed to give equal share to the females. The customary gift which father gave to daughter, with the passage of time took the shape of dowry. It was no more voluntary but was extortion. During the last few decades the evils of dowry

system has taken an acute form in almost all parts of the country and in almost all the sections of society. In a bid to eradicate this evil from the society, the State Governments of Bihar and Andhra Pradesh enacted "The Bihar Dowry Restraint Act, 1950" and "The Andhra Pradesh Dowry Prohibition Act, 1958" for the respective States, but both these enactments failed to achieve the objectives for which they were enacted.

The dowry is not peculiar to India alone. We find this concept in Roman law also. This is a contribution made generally by the father and bride herself or any other person on her behalf towards the upkeep of the joint household. It became almost the invariable practice for a “Dos’ 1

to be given to her fair share of expenses.  It can be compared with the concept of stridhana in Hindus which was in the form of ornaments, clothes, jewelry and cash. The stridhana provided her a sort if financial security. The two concepts of varadakshina and stridhana together assumed the form of dowry, which was unknown to ancient Hindu Law.

WHY DOWRY

Marriage is not a lottery .Dowry is demand by the groom’s family and is given by bride family, sometimes willingly and sometime unwillingly. Females are considered as depended able member of the family. So, bride fathers pay the dowry as an economic burden increases in the groom’s family. Love for money is the root cause of all the evil. Groom’s who who are in highly paid  job, are in demand, but their supply is less as compare to demand, so the dowry amount a mount increase as per the status of the groom.

1. Dowry: A Security for Standard Living : Mohammed Umar : Cochin University Law Review: June, 1990 pp.193194.

2

Two explanations for dowry inflation in India are put forward  : (i) the marriage squeeze hypothesis, and (ii) hyper gamy (increased demand for socio-economically more successful husbands). The marriage squeeze hypothesis maintains that due to population growth and the gender age gap at marriage, marriageable men are scarce relative to marriageable women. The 3

econometric evidence for India on this hypothesis is not conclusive.

The urban-rural ratio of per capita domestic product increased from 1.83 in 1950 to 2.56 in 4

1970 . Given the slow pace of urbanization, there is a large return for a rural bride to be able to marry an urban groom. As Caldwell, Reddy, and Caldwell emphasize, “Parents desire their daughters to marry educated men with urban jobs, because such men have higher and more certain incomes, which are not subject to climatic cycles and which are paid monthly, and  because the wives of such men will be freed from the drudgery of rural work and will usually 5

live apart from their parents-in-law.

In a sellers’ market, created by relative scarcity, there was no alternative but to offer a dowry with one’s daughter.” Consistent with this explanation, one finds that in South India, especially in Madras, in the 1930s the practice of dowry spread firstly among the Brahman community

2

 John C.Cladwell;, Palli Hanumantha Reddy and Pat Cadwell , “The Causes of Marriage Change in South India.” Population Studies, November 1983, 37 (3), pp. 343—61.

3

 Rao, Vijayendra. “The Rising Price of Husbands: A Hedonic Analysis of Dowry Increases in Rural India.” Journal of Political Economy, June 1993, 101 (3), pp. 666—77, Edlund, Lena. “Dowry Inflation: A Comment.” Journal of Political Economy, December 2000, 108 (6), pp. 1327—33, Dalmia, Sonia. “A Hedonic Analysis of Marriage Transactions in India: Estimating Demand for Dowries and Groom’s Characteristics in Marriage.” Research in Economics (forthcoming).

4

 Mohan, Rakesh. “Urbanization in India’s Future.” Population and Development Review, December 1985, 11 (4),  pp. 619—45. 5

 Supra p.347.

where men gained early access to European education and salaried employment in the public 6

sector  . Moreover, all over India, new opportunities to earn cash wages in factories, government 7

 jobs, and white collar occupations have been secured more by men than women.   Therefore, even in the urban context, brides’ potential contribution to family income has become relatively smaller when compared to prospective grooms. The hyper gamy theory may explain the 8

expansion and intensification of the practice of dowry occurring in recent decades in India.

Sometimes women themselves ask for dowry as one who brings more dowries is respected more in comparison to women’s who bring less dowry. Daughters did not have property right in her father’s property so she received gifts during her wedding. It was only after 2005 that daughters 9

were made coparceners.   But property right has nothing to do with dowry demand. There are many instances were in marriage of single daughters too one has to give dowry. Usually parents give daughters more than their capacity. They have to sell their property, take loan from people to satisfy the want of groom family. At the time of marriage, women were given jewelries and clothe. This was given out of love and affection. The groom family neither asked for it nor was this gift a burden on the bride family. The property she held was her own and it constitute her

6

 Lardinois, Roland. “India: the Family, the State and Women.” In A History of the Family. Volume II. The Impact of Modernity, edited by André Burguière, Christiane Klapisch-Zuber, Martine Segalen, Françoise Zonabend. Cambridge, MA: The Belknap Press of Harvard University Press, 1996, pp. 268—300.

7

 Sharma, Ursula. “Dowry in North India: its Consequences for Women.” In Family, Kinship and Marriage in India, edited by Patricia Uberoi. Delhi: Oxford University Press, 1993, pp. 341—56.

8

  Evidence from contemporary China provides further support to the hyper gamy theory. During the 1940s characterized by war and disorder, many tenant farmers in the villages managed to acquire land from their landlords and became rich. These newly wealthy households in the villages arranged marriages with elite families in towns; in doing so, they provided larger and larger dowries to their daughters. Siu, Helen F. “The Revival of Brideprice and Dowry in Rural Guangdong.” In Family Strategies in Post-Mao China, edited by Deborah Davis and Stevan Harrel, 1990, p. 16-17. 9

 Hindu Succession amendment bill 2005;section 6.

stridhan. However there is much difference between stridhan and dowry. Stridhan does not comprise of what a woman gets from her parents but it also included all that she received from her husband and also in-laws. No body has a right over this property of women. She was the sole owner and after her death it was distributed as she desired. Dowry is given as a consideration of marriage. Bride has no right over it and it is used and spent in the manner as desired by groom’s family.

To understand the reason why dowry is given, it is important to find out, where the dowry 10

amount is spend. Mr. Ranjan Prasad    has two sons. He said that in the marriage of his eldest son, he received more dowry as compare to his younger son. So, his eldest daughter in law got more jewelry from their side. Majority of amount which is given as dowry is spend by groom’s family in marriage ceremonies. The amount of jewelries, cloths or other gifts which bride family receives depends on the amount they pay as dowry. However there are also many families who take dowry to invest in other plans. There are chances that these families may exploit bride to get more and more from their parents. These families marry their sons in such families who offer maximum amount of dowry.

Dowry is a means or an instrument in the hands of grooms who uses it to harass the females. It is a known fact that divorce is not very common in Indian society, so males exploit this fact by asking women for more dowries. Social stigma never allows women to leave her husband house and return to her father’s house. Here starts all form of torture and inhuman treatment which is called domestic violence. Husband knew that it is travailing father still he will endeavor hard for it. 10

 Name changed.

Early marriage, illiteracy of girl, population problem all are directly linked to dowry demand. Bride parents do not want to educate their girl child as the money which they have saved is for their marriage and not for their education. So they want to marry their daughters as early as  possible and shift the burden of education on groom’s family. After marriage bride has to discharge the responsibility of being a daughter-in-law and a wife who is the carrier of “family culture” and tradition. It is true that many families do respect the wishes of their daughter in law and support her. But it can not be denied that she is not independent. She has to dependent on the wishes of others. Right from Manu Smriti to present day India the same ideology is revolving; i.e. women should not be independent. She has to adhere to her father than her husband and finally her son. Hinduism is one of the few religions where we have female deities, but in reality women are burnt, tortured and abetted to commit suicide, the reason being dowry.

LAWS CONCERNING DOWRY

th

The perspective of Government from “Welfare to Development” is seen only since 6  five-year th

 plan. By 7  plan Government of India focused on “Socio-Economic Programmes for Women”. This not only inculcated confidence about their own potential but also made women realize their rights and privileges.

Department of Women and Child Development (in the Ministry of Human Resource Development) was set up in 1985. The Department has responsibility of coordinating and monitoring programmes for development of women under different ministries. For Technical

Support the Government in 1986 setup National Institute of Public Co-operation and Child Development. In Government of India we observe there are as many as 15 programmes for the development of women, which have 30 schemes exclusively for women, the other 52 being for men and women. Government spends 575 crores on these schemes which are for the economic development, welfare, education, health, nutrition and awareness of women. However, we must admit the reach of these programmes to rural, poor and tribal women is low. There is rarely a spokesperson or advocate for the slain bride, and the legal system is often inaccessible for all but the upper classes. Those citizens aware of the remedies under the law are usually reluctant to 11

 pursue them. Overflowing dockets   and unreliable police investigations make enforcement of dowry-related legislation weak at best.

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Theoretically, this gap between social ill and domestic legislation should be filled by the international human rights regime, which aims to remedy serious human rights violations 13

when nations are unwilling or unable to do so using their sovereign powers. Unfortunately, the current international human rights mechanisms do not adequately address problems such as dowry murder, where domestic efforts to combat the problem have already been attempted. India is a party to several human rights instruments which provide theoretical remedies to the dowry murder problem, including the International Covenant on Civil and Political Rights

11

 Kalpana Sharma, Rooted Custom (Nov. 2002), at http://www.indiatogether.org/opinions/ http://www.indiatogether.org/opinions/kalpana/dowvict.ht kalpana/dowvict.htm. m.

12

  Chowdhary, supra note 8, at 154-55; Laurel Remers Pardee, The Dilemma of Dowry Deaths: Domestic Disgrace or International Human Rights Catastrophe? 13 Ariz. J. Int'l & Comp. L. 491, 501 (1996).

13

 See generally Louis Henkin, The Age of Rights (1990), reprinted in Human Rights, at 2 (Louis Henkin et al eds., 1999.

14

15

(ICCPR),  the International Covenant on Economic, Social, and Cultural Rights (ICESCR),

the Convention on the Elimination of All Forms of Discrimination Against Women 16

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(CEDAW), and the Convention on the Rights of the Child (CRC).

CEDAW codifies the rights most relevant to the discussion of dowry-related violence: the rights of women. CEDAW was adopted by the United Nations in 1979, and is often referred to as an international bill of rights for women.

18

CEDAW marked a vital point in human rights

discourse, as women's rights were formally recognized as worthy of a special committee and 19

unique consideration.   CEDAW defines discrimination against women and codifies

14

 The International Covenant on Civil and Political Rights, G.A Res. 2200A(XXI), U.N. GAOR, Supp. No. 16, at 52, U.N Doc. A/6316 (1966), available at http://www.unhchr.ch/html/menu3/ http://www.unhchr.ch/html/menu3/   b/a ccpr.htm (last visited September 12, 2003) [hereinafter ICCPR]. Manjaree Chowdhary, Miles to Go: An Assessment of the Enforcement Hurdles in the Implementation of the Anti-Dowry Law in India, in South Asians and the Dowry Problem 151, 151 (Werner Menski ed., 1998); see also Debasree Banerjee, Dowry Verdict: Half-Step Forward, The Hindustan Times, Aug. 11, 1996, at 2.

15

 The International Covenant on Economic, Social and Cultural Rights, G.A Res. 2200A(XXI), U.N. GAOR, Supp. No. 16, at 49, U.N Doc. A/6316 (1966), available at http://www.unhchr.ch/html/menu3/b/a http://www.unhchr.ch/html/menu3/b/a cescr.htm  cescr.htm (last visited Sept. 12, 2003) [hereinafter ICESCR]. ICESCR].

16

 The Convention on the Elimination of All Forms of Discrimination Against Women, G.A Res. 34/180, U.N GAOR, Supp. No. 46, at 193, U.N Doc. A/34/46 (1979), available at http://www.un.org/womenwatch/daw/cedaw (last visited Sept. 21, 2003) [hereinafter CEDAW]. 17

 The Convention on the Rights of the Child, G.A. Res. 44/25, Annex 44, U.N GAOR, Supp. No. 49, at 167, U.N Doc. A / 4 4 / 4 9 ( 1 9 8 9 ) , a v a i l a b l e a t http://www1.umn.edu/humanrts/instree/k2crc. htm (last visited Oct. 15, 2003) [hereinafter CRC]. 18

 The Convention on the Rights of the Child, G.A. Res. 44/25, Annex 44, U.N GAOR, Supp. No. 49, at 167, U.N Doc. A / 4 4 / 4 9 ( 1 9 8 9 ) , a v a i l a b l e a t http://www1.umn.edu/humanrts/instree/k2crc. htm (last visited Oct. 15, 2003) [hereinafter CRC]. 19

  Following this initial phase of activism in the 1960s and 1970s, a second victory for the women's rights movement came in the 1980s, when women's rights were finally recognized as human rights. This victory was formalized at the Vienna Conference on Human Rights in the Declaration on the Elimination of Violence Against Women, G.A. Res. 48/104, U.N. GAOR, Supp. No. 49, at 217, U.N Doc. A/48/49(1993), available at http://www1.umn.edu/humanrts/ http://www1. umn.edu/humanrts/instree/e4devw.ht instree/e4devw.htm m (last visited May. 21, 2 008).

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responsibilities of state parties to combat such discrimination.  CEDAW proposes that state  parties use legislation-oriented remedies to combat violence and discrimination against women. Such provisions include the incorporation of gender equality clauses into their legal systems, and the creation of special tribunals to enforce these clauses. Since anticipation of a high dowry demand frequently results in the abortion of female fetuses and the murder or abandonment of female infants and children, the CRC is another international human rights treaty critical to the discussion of dowry- related violence. The CRC, as its name suggests, encodes the specific rights of children deemed necessary for children to live full and productive lives. The CRC defines a child as any individual under the age of eighteen.

21

The following rights encoded in the CRC are relevant to the discussion of

dowry-related violence: the right of each child to be afforded the rights contained in the CRC without discrimination;

22

the right to life; the right to form his or her own views; freedom of

expression, thought, conscience and religion; protection from mental and physical violence; the right to education; and the right to be protected from economic exploitation. CEDAW has effectively recognized the status of women as a vital element of human rights discourse, and most importantly, an element deserving of its own monitoring mechanism. However, CEDAW, with its heavy emphasis on legislative mechanisms, holds India to standards that are not meaningful given the current status of dowry-related legislation. Other

20

 CEDAW defines discrimination against women as "any distinction, exclusion, or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment, or exercise by women irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field." CEDAW, supra note 71, at Art. 1. 21

 Article 1 of CRC.

22

 Article 2 of CRC.

CEDAW provisions are plainly unrealistic in a developing nation. Clearly, CEDAW seems designed largely for nations who have yet to enact particular legislation, and less for those whose problems cannot be solved by law alone. If CEDAW could adequately address the complexity of gender problems like dowry murder, the result would be a more meaningful set of rules to which developing nations could c ould realistically adhere. Besides recommending that India adhere more closely to CEDAW's provisions, the CEDAW 23

Committee has also urged India   to sign and ratify CEDAW's Optional Protocol ("the Optional Protocol"),

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which allows women to appeal individually to the CEDAW Committee

for violations committed against them.

25

The Optional Protocol to CEDAW, similar to the

well-known Optional Protocol under the ICCPR, allows the CEDAW Committee to hear  petitions from individual women, as well as groups of women, who feel that their rights under 26

CEDAW have not been respected and enforced. In addition, under the Optional Protocol, the CEDAW Committee conducts investigations of "grave and systematic" violations of the CEDAW Convention at its discretion. Only states that are parties to CEDAW are able to join

23

 See, e.g., CEDAW Concluding Observations on India, CEDAW/C/SR.452, CEDAW/C/SR.452, 453 and 462, January 2000, Cmt. 88, available e at http://sim.l http://sim.law.uu.nl/SIM/ aw.uu.nl/SIM/CaseLaw/uncom CaseLaw/uncom.nsf/0/f1e04b43b6059 .nsf/0/f1e04b43b6059  b32c12568c0003992b9?OpenDocument.  b32c12568c0003992b9?OpenD ocument. 24

 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, GA Res. 4, U.N. GAOR, 54 Sess., Supp. No. 49 (Vol. 1), at 4, U.N. Doc. A/RES/54/4 (1999) [hereinafter CEDAW Optional Protocol]. 25

 For an explanation of the CEDAW Optional Protocol, see Disabled Women's Network Ontario, Interview with Alison Symington: How Can Women Use the Optional Protocol of CEDAW?, at http://dawn.thot.net/cedaw.html (last visited Sept. 11, 2003).

26

 CEDAW Optional Protocol, supra note 110. Fifty- five states have ratified the CEDAW Optional Protocol as of August 25, 2003, including other South Asian nations such as Bangladesh and Sri Lanka; Nepal is a signatory, though it has not yet ratified the Protocol. See United Nations Division for the Advancement of Women, Signatures to and Ratifications of the O p t i o n a l P r o t o c o l , a t http://www.un.org/womenwat http://www. un.org/womenwatch/daw/cedaw/s ch/daw/cedaw/sigop.htm igop.htm (last  (last visited Sept. 11, 2003).

the Optional Protocol.

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Though India is a party to CEDAW, it has not joined the Optional

28

Protocol.

The Dowry Prohibition Bill was passed in the Joint Sittings of both the Houses of Parliament and it became an Act - The Dowry Prohibition Act, 1961 (28 of 1961) and it received the assent of th

the President on 20   May, 1961. Dowry Prohibition Act, 1961 was amended twice once in th

1984 and second time in 1986 – and the second amendment came into existence on 19

 November 1989 - whereby the offence is made cognizable and the punishment is enhanced. Any 29

agreement for giving or taking dowry is void.   But there is no answer to the question that if marriage is commenced based on void agreement than will the marriage also is void?

DOWRY AS DEFINED IN DOWRY PROHIBITION ACT

Dowry means any property or valuable assets given by one party in marriage to another party in marriage. However there hardly exists a case where dowry is given by bridegroom to the bride. So, one can easily make out that dowry is given by bride family to groom family. Dowry does not include anything given as a custom but such gifts must be entered in a list maintained in accordance with rule made under this Act. If any dispute arose as to whether a particular item given during or before or after marriage by one part to another party to marriage is a gift or dowry, court will consider the financial status of the person giving gift. If it appears that it is

27

 See Disabled Women's Network Ontario, supra note 23.

28

  S e e http://www. http://www.un.org/womenwat un.org/womenwatch/daw/cedaw/si ch/daw/cedaw/sigop.htm gop.htm   for a list of countries that have ratified the CEDAW Optional Protocol.

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 Sec. 5 of prohibition act 1961; here in after DPA.

more than what a person can afford court may very well presume that it is a dowry and not a 30

gift.  A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry- as the 31

said word is normally understood.   So the term dowry must be interpreted in a striker sense. Broad meaning to the word dowry will result in miscarriage of justice. Dowry is a criminal offence, so strict interpretation should be given to the terms used in the act.

The difference between dowry and gift as per Sec. 2 of DPA is that anything which is given without demand and the person giving it or on behalf of bride or any person related to bride, such  presents are of customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf presents are given is a gift. Dowry means anything given in consideration of marriage and it affects the financial status of the 32

 party . If one alleges dowry demand than one has to prove that the things demanded were in consideration of marriage, and the defense to it lies in proving that the things were not demanded and whatever was received was a gift which is of customarily nature. All such gift must be mentioned in the list in accordance with the act. It is very hard to prove that there exist a nexus  between things given and marriage. Customary pay ments i.e., given at the time of birth of a child or other ceremonies as are prevalent in different societies are not covered by the expression 33

dowry .

30

 Sec. 2 (b) of DPA.

31

 Appasaheb and ans. v. State of Maharastra 2007 1 MLJ 1142 SC.  Sec 3 of DPA.

32

33

 Ram Singh and ans. v. St of Haryana & ans. 2008 1 MLJ 1365 SC

What is required is that there must be a reform as indirectly taking of dowry is allowed. In India wedding is not confined to bride and groom only. Everybody including the neighbor takes part in it. So it is a cause to be celebrated with great pomp and show. Given this, celebrations, which are a time of intense public scrutiny, become arenas where reputations are managed and enhanced. Lifecycle events become theaters where public reputations are maintained, and stadiums where people compete in games of status competition, going beyond their role as milestones. The rules of the game are determined by kinship systems, ritual calendars, the distribution of wealth and caste, and other structural endowments that are slow to change and therefore can be considered as exogenous constraints in the short term. Because these structures provide rules for what is considered appropriate behavior, they determine the criteria by which people are judged. Some willingly spend spend all those they they have saved and for some it is hard to spend much as they have so many daughters to marry. There is a need for a law which banns spending on marriage ceremonies including exchange of gifts which exceed more than a certain percentage of the annual income of thee parents. People would have to understand that marriage is also a ceremony like other ceremonies, so spending must not exceed more than what people can afford.

Every wedding requires a minimum level of expenditure that depends upon norms in the community. A basic celebration may help maintain one's status within the village, but a lavish wedding represents something else. Spending more than what is expected provides people in the village with new information that helps them update their perception of one's social status. In particular, if the bride is marrying a prestigious groom--prestigious because he is either rich or well educated--then this marriage alliance has status benefits for the wife's family.

However, a lavish wedding without some real change in status may simply give people the impression that the spender is extravagant.

PENALITY FOR DOWRY DEMAND

Judges have discretion in giving punishments. It is so because no hard and fast rule can be applied in each and every case. Likewise the punishment for dowry taking is 5 years and fine 34

amounting to the value of dowry or 15000 rs/. Whichever is more ? Judges can give lesser or graver punishment than this depending on the facts and circumstances of the case. The principal of res judicata is not applied in criminal case. But judges need to record in writing about the 35

reason for sentencing the person. Punishment for demanding dowry is six month imprisonment.

Sec. 4A empowers court to punish a person who prints or publishes or circulate any advertisement relating to dowry demand for an imprisonment of 6 month and fine of Rs 15,000.

Where a complaint is filed under sec. 4 of the dowry prohibition act and also under sec. 498A I.P.C for cruelty of wife by harassment of demand for dowry, this is an offence punishable under I.P.C and is required to be investigated only by the police and not by the Dowry Prohibition 36

Officer.

Sec. 6 of the act states that any dowry received will be used for the benefit of the wife or her heirs. If dowry taking is a crime then anything which is received as a dowry is also illegal. So, 34

 Sec. 3 of DPA.

35

 Sec. 4 of DPA.

36

  S.V Ramanurthy v. Secretary to Govt. of Tamil Nadu, Home department, chennai-9 and oths. 2007 2 MLJ 1899(Mad)

the proper procedure would be that government should seize such things. There is hardly a complaint against a person who offers to give dowry. When some illegal transaction takes place the objects which form part of such transaction must be seized by the government. Since dowry revert back to the bride, so there is no resistance from bride side in giving dowry. Also many false cases are filed by bride or her family claiming more than what they have given. Also this act provides a protection to the person who has offered dowry by not subjecting the person to 37

 prosecution under un der this act . This is done to secure the true and fearless statement by the victim of dowry harassment.

Any law abiding citizen can not file complain. A magistrate will take cognizance only on a  police report or when things come in his notice or if the aggrieved person files complain or if 38

complain is filed by a recognized organization.

There is a departure from general rule and the burden of proof is on the person who is accused of taking dowry.

DOWRY UNDER EVIDENCE ACT AND IPC

In India Penal Code two new sections are added viz., S.304-B which presumes if the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of marriage and if it is shown that soon before her death she was subjected to cruelty or harassment by her husband or the relatives of the husband for or in connection with any demand for dowry, such death shall be called dowry death and such 37

 Sec. 7 proviso of DPA.

38

 Sec. 7 of DPA.

husband or relative shall be deemed to have caused her death. Sub-section (2)  of the same section envisages that whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend ex tend to imprisonment for life. The essential ingredient to attract application of section 304B are that (i) the death of a women should be caused by burns or bodily injuries or otherwise than under normal circumstances; ii) such death should have occurred within seven years of marriage ; iii) she must must have been subjected to cruelty or harassment by her husband or any relative of her husband; iv) such cruelty or harassment should be shown to have been for demand of dowry and v) such cruelty or harassment is shown to have been meted out to the woman soon before her death. On proof of these essentials it becomes obligatory on the courts to raise a presumption that the accused caused dowry death in view of sec. 113B of the evidence act. A joint reading of the section states that victim must be subject to immediate harassment before death.

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Supreme court in Hira Lal v. State (Govt. of Nct), Delhi  “soon before her death” is a relevant term and no straight jacket formula can be laid as to what would constitute a period “soon  before” the occurrence. Whether length of time between dowry demand and death can give the  benefit of doubt, passage of time between dowry d emand and death should not be too stale or too 40

wide. Court is to decide this based on facts of each case .

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 2003 8 SCC 80.

40

 Mahendra and ans. V. State represented by inspector of Police, Gudimangalam Police Station, Coimbatore District

It is recommended that the period of seven year should be increased from seven year till death. Women commission (NWC) recommends this change in view that that many women’s who are mothers of elders children’s are also forced to bring dowry even after 7 years of their marriage.

S.498-A of Indian Penal Code envisages that 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 and sections 304-B was added to the IPC by Criminal Law Amendment Act, passed in 1986 which provides that where the death of a woman is caused by any burns or bodily or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that immediately before her death she was harassed and put to cruelty by her husband or any relative of the husband in connection with demand for dowry, such death shall be called as dowry death; and sub-section (2) provides punishment with a minimum of seven years which may extend to imprisonment for life. Section 174 and 176 of CrPC, deals with the investigations and inquires into the causes of unnatural deaths, by the police and magistrate respectively.

The Amendment Act 1983 makes it mandatory for the police officer to send the body for postmortem examination if the death of the woman occurred with in seven years of marriage as a result of suicide or under other suspicious circumstances. A new section 113-B was added in the Indian Evidence Act which deals with the burden of proof in dowry deaths according to which the Court has to presume that a dowry death was caused by the person who is shown to have subjected the woman to cruelty or harassment soon before her death.

JUDICIARY AND DOWRY PROHIBITION ACT

The legal and judicial efforts e fforts to eradicate the evil system of dowry failed to make any remarkable  break in alarming rise of this dowry system. The National Crime Records statistics show that there have been over 58,000 incidents of dowry harassment and over 6, 7000 dowry murders in the year 2005, and as per national crime Bureau, in the year 1994- there were 4,935 dowry deaths and 25,946 cases of dowry harassment, this shows that in the sort span of ten years dowry related crimes accelerated at a very high speed. It may be said that approximately 56,000 dowry deaths and more than 40,000 cases of dowry harassment takes place every where. Moreover, cases which occur in privacy of husband's house are much more and go unreported.

At the time of the wedding the groom and his parents demanded Rs, 50,000 from the bride’s 41

father which he promised to pay latter  . His inability to pay this amount led to the torture of his daughter who after being kept without food and water and assaulted returned to her fathers place. It is father who promises to pay dowry and it is the daughter who has to suffer harassment. Every time there was assurance of good behavior by the husband to the father of the wife send her back at the matrimonial home but the torture continued and she returned again to her natal home. Father can not keep her married daughter in his house because of the fear of society. Males understand this fact and try to take advantage of it. Husband repeated his assurance a second time but only did she meet with the some fate but he also threatened to kill her. She managed to escape from his house subsequently to which a panchyat was held but rather than reaching an amicable settlement the parents of the husband threatened to get their son remarried. Society can accept the remarriage of a male but there is still exists unwillingliness to accept the second marriage of a female. The court held that no offence under DP act was made out but matrimonial 41

 Bnasanti Devi v. State of Bihar 2000 Cri Lj 161 (pat).

cruelty. However, the court noted that the wife herself was obstinate to some extent in resolving the dispute between the parties and therefore, the sentence of three years was reduced to rigorous imprisonment to six months. The husband has absconded and had not faced trial. The approach of the court that the wife was now hesitant to go back and therefore, the husband deserve leniency is not surprising and is in conformity with the typical patriarchal attitude whereby even after facing threats to her life following repeated assaults by a violent and dowry hungry husband the court still expect wife be eager to join him. Hesitant on her part to attempt reconciliation for the fourth time should not have been used by the court to show clemency to the husband. The conduct of the husband weighted in compassion to the conduct of the wife was enough to prove his guilt. The wife was sent thrice to the husband’s residence but had to come  back all the three times in order to save her life.

42

In yet another case gruesome case the wife died of 98% burn . Parents alleged they were made to pay the dowry of cash and ornaments. In the dying declaration the wife has implicated the husband as the main culprit and the doctor attending on her also certified that it was recorded in his presence. The court observed; We are pained at the fact that the percentage of acquittal in dowry death and wife burning cases is still hovering in the high nineties in the state and it will be very necessary to ensure that the lacunae that are contributable to this unsatisfactory state if affairs will have to be rectified.  Noting that the girl is alive her parents are hesitant to take any action for fear of spoiling the relations and hope for the situation to improve the judge conceded that delicate family disputes if

42

 State of Karnataka v. Neelawwa, 2002 Cri LJ 3981.

43

taken to police authorities would lead to a total blast up of marriage , and observed that there are many other channels such as village panchyat, elders of the family of both sides and others well wishers who can attempt reconciliation. But if there is total inaction on part of the matrimonial home on account of lack of dowry or dowry demand and dies, dowry allegations appear to be an after thought on part of the victim. However, the judiciary has failed to note that in many cases matrimonial dispute of the daughter in the family is not openly talked about even amongst close friends and neighbors as the parents still hope for the possibility of any other local body is making public family grievances that many families would shy away from. Totally ignoring this practical reality and noting that there was a total inaction on part of the parents coupled with the fact that the court found a controversy in the name of the police officer who had recorded the dying declaration despite the wife implicating the husband in her last statement the courts disbelieved the parents and let off the accused. Even though the doctor had certified that it was recorded in his presence the court still wanted a categorical statement from the doctor that she was in a fit condition to make a 44

statement despite the supreme courts   prouncement that mere absence of certification of the doctor as to fitness of mind of declarant would not render dying declaration not acceptable. Court here looked for loopholes and determined to find one, came to the conclusion that since she had 98% burns and died the same evening the dying declaration could not be relied upon through in the same breath admitted that there was no occasion for any torture her against the in-laws or the husband.

MISUSE OF THE ACT 43

 Id at p. 3938.  Laxman v. State of Maharastra, 2002 Cri LJ 4095 SC.

44

In 1983, sec.498A was added in IPC. It is a cognizable offence namely, ‘cruelty by husband or relatives of husband’. The definition of cruelty is not just confine to causing grievous injury,  bodily harm or danger dan ger to life, limb or physical health, but also include mental health, harassment and emotional torture through verbal abuse.

During the same period, two amendments to the dowry prohibition at of 1961, enacted in 1984 and 1986, made dowry giving and taking punishable. The burden of proof was on the accused. Justice J.D Kapoor, Justice of Delhi High Court said that DPA is misused by many women. He was hearing the petition of Savitri Devi v. Ramesh Chandra, in which Savitri Devi challenged the judgment of lower court alleging that her in-laws should be arrested because they refused to take the customary gifts. It was held that merely refusing to accept the gift will not amount to harassment or cruelty under the act. He also said that sometimes women tried to rope up school 45

going children’s. Police must not arrest children’s under this act.  An act must evolve according to needs of evolving society otherwise it looses the prime purpose of making the society  progressive. It is not to suggest that the above school of thought tho ught is correct but given the fact that it has found expression at such a high level it is worthwhile of being into consideration. At the same time it should be taken care of that it doesn’t become a classic case of throwing the baby out with water.

The reason why these laws are put to misuse is that no punitive provisions were added for those making false charges. Law against perjury is hardly been invoked in India.

45

 Check dowry law misuse by women, Times of India, 22 nd  May 2003, www. times of India.html

There are also many numbers of cases coming to light where these new laws are used as an instrument of blackmail. They lend themselves easily this way as a tool for wreaking vengeance on entire families, since it makes it possible to have Police arrest anyone a married woman names as a tormentor in her complaint. All she has to do is state that there is cruelty in marriage and someone goes to jail without the possibility of bail.

There are cases where the problem is of mutual maladjustment of couple, rather than abuse by entire family. Further complicating matters, lawyers have cited several cases where judges have refused bail unless the accused family deposited a certain sum of money in the complainants name as a precondition to the grant of bail. There are many cases in which lawyers themselves suggest women’s to ask for more than what they have given under an assurance that they will be able to get all that. We need to sift the grains from the chaff and check out whether the allegations of abuse are genuine, exaggerated or altogether mala fide.

It is true that these laws are heavily weighted in favor of women. But it is because of the fact that majority of cases reported is of women harassment and not of men being harassed by women. Law is response of the social changes. So, if there will be cases concerning men harassment law will definitely be a gender just law. But this is not a time for it. If a gender just law comes as far as domestic violence is concerned than it will be more misused. Men are in dominating position and they can tamper with the evidences so, under these circumstances a law tilted towards women side is not bad.

METHODS TO CURB DOWRY

Dowry was not known in early Vedic period. Things changed when women accepted the rules or laws made by particular persons. The solution of any problem whether it is dowry or any social  problem, it is to challenge the system. When there was interference of Brahmin and certain freedoms of women were taken away, that was a time to question and fight for their rights. The tendency of Indian women is to accept things as it is. They are told by others as what is good for them also as to how they should feel about themselves.

Girls do not participate in their marriage discussions. It is elders who chose their groom, it is they who decide their marriage age, and it is they who decide their family. She enjoys no decision making.

A three-Judge Bench, comprising Chief Justice R.C. Lahoti, Justice G.P. Mathur and Justice P.K. Balasubramanyan, passing the order on a public interest litigation petition directed the Centre and the States to consider framing of rules to compel men seeking government employment to furnish information whether they had taken dowry; if so, whether the dowry had been made over to the wife as contemplated under the Act. The rules could also seek such information from those 46

already in government service.   The Bench faulted both the Centre and the States for their failure to put serious effort in the implementation of the Dowry Prohibition Act.

46

 The Hindu, wed, may 04, 2005, www.thehindu.com

"It is not as if the menace posed by dowry has in any way lessened. One can take judicial notice of the fact that cases of dowry harassment are splashed in newspapers almost everyday. When there is failure on the part of the Executive to strictly implement a law like the one in question, enacted to tackle a social problem which has assumed menacing proportions, the court has a duty to step in to give a mandamus," the Bench said.

The court asked the State Governments to give wide publicity to Sections 3 and 4 of the Rules  providing for the maintenance of lists of presents or gifts to the bride and bridegroom and to appoint a sufficient number of dowry prohibition officers with independent charge in each district of the State concerned; to take steps to step up anti-dowry literacy among the people through lok adalats, radio, television and newspapers.

 No law or ordinance is as powerful as understanding, said Plato. So, there is need of public awareness. This law has at least compelled the husbands to negotiate with their wife. Earlier the husbands left no options to their wife than to succumb to the cruelty. Many women do not want to approach the court because these laws are criminal in nature. The number of causality is much more than what is reported in police stations or in NGOs. In India, women who consider their husband an ultimate protector will not seek to bring a criminal charge against him. Instead, they would prefer to approach organizations that can mediate on their behalf and work out a better solution for them. In some cases where crime against women cell personnel is sensitive enough, successful mediation is provided. But this is the exception rather than a rule. In most instances, this time by squeezing the husband’s family in return for the women’s withdrawing her opposition to grant bail.

In 2001 census report the male female ratio was 933 per 1000 men. Many people are refusing to have girl child. One who has preserve money for her marriage than spending on her studies. This makes women dependable and than the circle of vicissitude goes on. This problem can only  be solved when women will have a say in economy. The United Nation's Report in 1980  presented that: "Women constitute half the world's population, perform nearly two-thirds of its hours, and receive one-tenth of the world's income and less than one hundredth of the property."

TH

CASES REGISTERED IN HELPLINE FROM 11

  OF JANUARY TO MAY 2007 IN

BIHAR

1999 CASES REGISTERED

NO. OF CASES

DOMESTIC VIOLANCE

5

DOWRY DEATH

3

DOWRY HARRASMENT

1

SECOUND MARRIAGE

3

2000 CASES REGISTERED

NO. OF CASES

DOMESTIC VIOLANCE

38

DOWRY DEATH

10

DOWRY HARRASMENT

17

SECOUND MARRIAGE

8

2001

CASES REGISTERED

NO. OF CASES

DOMESTIC VIOLANCE

23

DOWRY DEATH

5

DOWRY HARRASMENT

20

SECOUND MARRIAGE

6

2002 CASES REGISTERED

NO. OF CASES

DOMESTIC VIOLANCE

37

DOWRY DEATH

3

DOWRY HARRASMENT

18

SECOUND MARRIAGE

5

2003 CASES REGISTERED

NO. OF CASES

DOMESTIC VIOLANCE

38

DOWRY DEATH

4

DOWRY HARRASMENT

17

SECOUND MARRIAGE

8

2004 CASES REGISTERED

NO. OF CASES

DOMESTIC VIOLANCE

109*

DOWRY DEATH

11

DOWRY HARRASMENT

18

SECOUND MARRIAGE

11

2005 CASES REGISTERED

NO. OF CASES

DOMESTIC VIOLANCE

78*

DOWRY DEATH

6

DOWRY HARRASMENT

13

SECOUND MARRIAGE

4

2006 CASES REGISTERED

NO. OF CASES

DOMESTIC VIOLANCE

132*

DOWRY DEATH

3

DOWRY HARRASMENT

15

SECOUND MARRIAGE

4

2007 (TILL MAY) CASES REGISTERED

NO. OF CASES

DOMESTIC VIOLANCE

50*

DOWRY DEATH

20

DOWRY HARRASMENT

19

SECOUND MARRIAGE

11

*- INCLUDES THE CASES OF WITCH HUNTING AND SOME OTHER CASES OF VIOLANCE

CONCLUSION

The practice of dowry-giving lies at the root of most women's human rights violations on the subcontinent. Indeed, female infanticide, feticide, and domestic violence are all linked to the  practice of giving dowry. Moving one step closer to abolishing the institution of dowry

altogether could significantly improve the social conditions of Indian women. The Indian government, having implemented legislative initiatives similar to those suggested by the United Nations, finds itself no closer to abolishing the problem of dowry violence. The failure of current international human rights instruments to fully address the dowry murder problem suggests that a different approach is necessary.

Time has come when people should understand that women do not need a male to support her. It is better to live single than to marry a guy who is selling himself for marriage. Divorce is much cheaper than succumbing domestic violence.

If government can check spending in marriage ceremonies, half of the problem can be solved. Marriage transactions must be brought within the net of income and wealth tax as it applied to gifts. Because, none of these provisions was contemplated, it is hardly surprising that the law has  proved to be inefficient. The law is strict but it lack in implementation. What the law ought to be is to check the causes which give rise to dowry demand. So, first thing would be to check over spending in marriage ceremonies. Secondly, seize the dowry amount rather than making female as its owner. Steps should be taken to ensure that the amount spend on marriage is not more than a particular percentage of the income of the male family. This act has emphasized on dowry demand and not on dowry giving. Only if we can check dowry giving, dowry demand will reduce. Also, government should make certain rules for its employee like making it mandatory rule that any person who would be found guilty of dowry demand or receiving it will be dismissed. The higher is the post, more is the dowry demand. So, certain laws which prevent the

demand of dowry by the government employee should be there. Also to check the false charges,  punitive provisions must be added.

Dowry problem can be curtailed only when females understand their rights. For, this education is very necessary. Initiative from the government side is required to spread education amongst female. Certain provisions like giving education loans to females on lower interest or scholarships to female’s student can help them receive education. Reserving seats for females in education institute is not a solution to raise the level of literacy. Most of the girls do not receive education because of financial reason. Parents fear that if they will spend their money in educating girls than there will occur a problem in getting their daughters married. So, they save money for the marriage of their daughters and in this way the female child so not receive high education. It is rarely a case in village where girls are being sent out of their village to receive higher education. Also a myth work that educating females is of no use as they can not get employment. Government should try to break such myths; only then the status of women can be improved. It is a welcomed step from the Bihar government which has reserved seats for females in teaching jobs. Government should try to launch such programmes which can employ females. If economic freedom will come to females, their status will improve.