MIS-USING DOWRY LAWS

MIS-USING DOWRY LAWS

                        The practice of giving a "dowry" or a gift to a woman at marriage is said to have its origins in the system of "streedhan" (women's share of parental wealth given to her at the time of her marriage).   As a woman had no right to inherit a share of the ancestral property streedhan was seen as a way by which the family ensured that she had access to some of its wealth. There is no clear proof as to when this practice was first started in India.   What began as gifts of land to a woman as her inheritance in an essentially agricultural economy today has degenerated into gifts of gold, clothes, consumer durables and large sums of cash, which has sometimes entailed the impoverishment and heavy indebtedness of poor families. The dowry is often used by the receiving families for business purposes, family member's education, or the dowry to be given for the husband's sister. The transaction of dowry often does not end with the actual wedding ceremony as the family is expected to continue to give gifts.              

                         In the course of time dowry has become a widespread evil and it has now assumed menacing proportions. Surprisingly it has spread to other communities, which were traditionally non-dowry taking communities. With the increasing greed for the easy inflow of money on account of a bride the chilling stories of bride burning started coming to light.   With a view to eradicate the rampant social evil of dowry from the Indian society, Parliament in 1961 passed the Dowry Prohibition Act which applies not merely to Hindus but all people, Muslims, Christians, Parsees and Jews. It extends to the whole of India except the State of Jammu and Kashmir Dowry generally means property, money given to, with, a daughter whom she marries or say a dowry is the money, goods, or estate that a woman brings to her husband in marriage. It is described in the oldest records, such as the Code of Hammurabi as a pre-existing custom, prescribing only regulations for how it was to be handled and also included regulations for a bride price. If a woman died without sons, her husband had to refund the dowry but could deduct the value of the bride price; the dowry would normally have been the larger of the sums. It marks the first record of long-lasting customs, such as the wife being entitled to her dowry at her husband's death as part of her dower, her dowry being inheritable only by her own children, not by her husband's children by other women, and a woman not being entitled to a (subsequent) inheritance if her father had provided her dowry in marriage. In Homeric times, the usual Greek practice was to give a brideprice, and dowries were also exchanged in the later classical time (5th century BC). Ancient Romans also practiced dowry, though Tacitus notes that the Germanic tribes practiced the reverse custom of the dower. Dowry was widely practiced in Europe at all times. In Victorian England, it was seen as an early payment of her inheritance, such that only daughters who had not received their dowry were entitled to part of the estate when their parents died, and if the couple died without children, the dowry was returned to the bride's family. 

                        William Shakespeare made use of the practice of ‘call off the marriage’ for the failure to provide a customary, or agreed-upon, dowry, in King Lear: one of Cordelia's wooers ceases to woo her on hearing that King Lear will give her no dowry. And in Measure for Measure, Claudio and Juliet's premarital sex was brought about by their families' wrangling over dowry after the betrothal, and Angelo's motive for forswearing his betrothal with Mariana is the loss of her dowry at sea. Folklorists often interpret the fairy tale Cinderella as the competition between the stepmother and the stepdaughter for resources, which may include the need to provide a dowry. Gioacchino Rossini's opera La Cenerentola makes this economic basis explicit: Don Magnifico wishes to make his own daughters' dowry larger, to attract a grander match, which is impossible if he must provide a third dowry. One common penalty for the kidnapping and rape of an unmarried woman was that the abductor or rapist had to provide the woman's dowry, which was until the late 20th century the wreath money, or the breach of promise.

                        Providing dowries for poor women was regarded as a form of charity. The custom of Christmas stockings springs from a legend of St. Nicholas, in which he threw gold in the stockings of three poor sisters, thus providing for their dowries. St. Elizabeth of Portugal and St. Martin de Porres were particularly noted for providing such dowries, and the Archconfraternity of the Annunciation, a Roman charity dedicated to providing dowries, received the entire estate of Pope Urban VII.

                        In some parts of Europe, land dowries were common. In Grafschaft Bentheim, for instance, it was not uncommon for people who had no sons to give a land dowry to their new son-in-law with the condition that the groom would take the surname of his bride. The Indian city of Mumbai (Bombay), which is one of the biggest cities in the world, and the city of Tangiers, in Morrocco, were given as a dowry by the Portuguese crown to the British when King Charles II of England, Scotland and Ireland married Catherine of Braganza, a princess of Portugal in 1661. In some cases, nuns would be required to bring a dowry when joining a convent.

                        In India, the practice is still very common, in arranged marriages and it is widely recognized as a Traditional Ritual of Marriage. Demanding dowry is prohibited by law as of 1961 but these laws are highly misused, including mothers and sisters being arrested without investigation. More information can be found by searching for the phrase "IPC 498a."

                        The payment of a dowry was prohibited in 1961 under Indian civil law and subsequently by Sections 304B and 498a of the Indian Penal Code were enacted to make it easier for the wife to seek redress from potential harassment by the husband's family. Commonly known as ‘Stri-Dhan’ is considered as  property of the woman, traditionally representing her share of her parent's wealth

                        The Dowry Prohibition Act, 1961 (No.26 of 1961) came into effect on the 20^th day of may 1961. This Act prohibits the giving or taking of dowry.

                        Sec. 1 of the Act gives effect the Act to the whole of India except the State of Jammu and Kashmir.

                        Sec. 2 defines that "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  or any time after the marriage 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 II- The expression "valuable security" has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).

                        Section 3 of the Act deals with Penalty for giving or taking dowry. (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  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 adequate and special reasons to be recorded in the judgement, impose a sentence of imprisonment for a term of less than five years.                                                                                              Nothing in sub-section (1) shall apply to, or in relation to, -

1. presents which are given at the time of a marriage to the bride (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;
2. presents which are given at the time of a marriage to the bridegroom (without any demand having been made in the 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].

                        Sec. 4 makes the demand of bribery an offence. It says : 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 adequate and special reasons to be mentioned in the judgement impose a sentence of imprisonment for a term of less than six months.

                        An advertisement for marriage shall not contain any consideration for the marriage in the form of any share in his property or of any money or both as a share in any business or other interest vide Sec. 4 A of the Act. Violation of this section attracts punishment 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. Provided that the Court may, for adequate and special reasons to be recorded in the judgement impose a sentence of imprisonment for a team of less than six months.]

                        In the same manner Sec.5 bans any agreement for taking or giving dowry. Such an agreement is void. Section 6 of the act is benevolent provision to women for accepting  dowry for the benefit of the wife or her heirs. It says: (1) where any dowry is received by any person 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 months after the date of marriage; or

2. if the dowry was received at the time of or after the marriage, within  three months after the date of its receipt; or
3. if the dowry was received when the woman was a minor, within  [three months] after she has attained the age of eighteen years; and pending such transfer, shall hold it in trust for the benefit of the woman.             (2) If any person fails to transfer any property as required by sub-section (1) within the time limit specified therefor  ³[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 to ten thousand rupees] or with both.]
     (3) 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.
    ³[ Provided that where such woman dies within seven years of her marriage, otherwise than due to natural causes, such property shall,-

d.      if she has no children, be transferred to her parents, or

5. if she has children, be transferred to such children and pending such transfer, be held in trust for such children.]

Section 6A says where a person convicted under sub-section (2) for failure to transfer any property as required by sub-section (1)   or sub-section (3) has not, before his conviction under that sub-section, transferred such property to the woman entitled thereto or, as the case may be,  her heirs, parents or children] the court shall, in addition to awarding punishment under that sub-section, direct, by order in writing, that such person shall transfer the property to such woman or, as the case may be,   her heirs, parents or children] within such period as may be specified in the order, and if such person fails to comply with the direction within the period so specified, an amount equal to the value of the property may be recovered from him as if it were a fine imposed by such Court and paid to such woman or, as the case may be,  her heirs, parents or children. (4) Nothing contained in this section shall affect the provisions of section 3 or section 4.

                        Section 7 deals with Cognizance of offences in the Act.                          (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-

a.                                          no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act;

b.                                          no court shall take cognizance of an offence under this Act except upon-

i.                                                its own knowledge or a police report of the facts which constitute such offence; or

ii.                                                a complaint by the person aggrieved by the offence or a parent or other relative of such person, or by any recognized welfare institution or organisation;

c.                                          it shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the first class to pass any sentence authorised by this Act on any person convicted of any offence under this Act.

Explanation- For the purposes of this sub-section  " recognized welfare institution or organisation" means a social welfare institution or organisation recognized in this behalf by the Central or State Government.

(2) Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to any offence punishable under this Act,

 (3) Notwithstanding anything contained in any law for the time being in force a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act.]

                        Section 8 stipulates that the offences in this act are cognizable for the purposes of investigation of such offences; and for the purposes of matters other than matters referred to in section 42 of that Code; and for the arrest of a person without a warrant or without an order of a Magistrate and every offence in this Act shall be non- compoundable and non-bailable

In ordinary course the burden is on the prosecution to prove its case beyond reasonable doubt. But the legislature has shifted this burden to the accused by incorporating Sec. 8A. “ Where any person is prosecuted for taking or abetting the taking of any dowry under section 3, or the demanding of dowry under section 4, the burden of proving that he had not committed an offence under those sections shall be on him.”

Sec. 8B specifies about the Dowry Prohibition Officers.

Sec. 9 and 10 speaks about the power of central Government and State Government respectively to make rules. In exercise of the powers conferred by section 9 of the Dowry Prohibition Act, 1961 (28 of 1961), the Central Government made Dowry Prohibition (Maintenance of lists of Presents to the Bride and Bridegroom) Rules, 1985. This has come into force on the 2nd day of October, 1985 being the date appointed for the coming into force of the Dowry Prohibition (Amendment) Act, 1984 (63 of 1984). According to this rule the bride or bride groom  shall keep a list of presents which are given at the time of the marriage to the bride and to the bridegroom shall be maintained by the bride and bridegroom respectively.

Such a list shall be prepared at the time of the marriage or as soon as possible after the marriage. It shall be in writing and shall contain a brief description of each present, the approximate value of the present, the name of the person who has given the present and where the person giving the present is related to the bride or bridegroom, a description of such relationship. This list shall be signed by both the bride and the bridegroom. Explanation one of this section specifies that where the bride is unable to sign, she may affix her thumb-impression in lieu of her signature after having the list read out to her and obtaining the signature, on the list, of the person who has so read out the particulars contained in the list and  Expalnation two specifies where the bridegroom is unable to sign he may affix his thumb-impression in lieu of his signature after having the list read out to him and obtaining the signature, on the list, of the person who has so read out the particulars contained in the list. The bride or the bridegroom may, if she or he so desires, obtain on either or both of the lists referred to in sub-rule (1) or sub-rule (2) the signature or signatures of any relations of the bride or the bridegroom or of any other person present at the time of the marriage.

                        Next attempt to the protection to women was done through incorporation of section 304 B in the Indian POenal Code by the Act 43 of 1986 w.e.f. 19-11-1986.

                        This section was intenteded to prevent and punish the increasing dowry deaths.

Sec. 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 purposes 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.

                        So to say this section defines a 'dowry death' as the death of a woman caused by any burns or bodily injury or which does not occur under normal circumstances within seven years of her marriage. For a woman's death to be a dowry death, it must also be 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. If this is proved, the woman's husband or relative is required to be deemed to have caused her death. Whoever commits dowry death is required to be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. 304B.

                        Section 498A of cruelty by husband or relatives of husband was inserted by Act 46 of 1983 into the Indian Penal Code in 1983.  it reads:

Sec. 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 purposes of this section, "cruelty" means-

(a) any wilful 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  elated to her to meet such demand.

                        This section is non-bailable, non-compoundable (i.e. it cannot be privately resolved between the parties concerned) and cognizable (i.e. the police can arrest the accused without investigation or warrants) on a report from a woman or close relative. The provisions in Sec. 498-A of I.P.C. may be equated to those of another cognizable law in India i.e. Prevention of Terrorist Activities and Disruptions Act i.e. TADA, in Maharashtra State,which was later repealed.

                        "Legal terrorism" is what Supreme Court of India has termed this law because the police often file charges against the husband, his parents and other relatives (whoever being named on the complaint by the wife or her close relatives) and put them in jail without any reliable evidence under the excuse of an investigation. In several cases it can be seen that after a long legal struggle after years the final judgment is acquittal of accused.

                        The  trail of an innocent accused took a 8 years was the reading of national Research bureau. When a competent Trial Court arrives at a verdict that there was no reasonable ground for filing the complaint U/s 498-A of IPC and that the story of the prosecution was full of exaggerations, that the real reason for filing the complaint was something else altogether, that it was in fact the original complainant wife (or her relative/s) who had harassed the accused husband and/or his relative/s by depicting a false story and has prosecuted the husband/ relative without any just/reasonable cause and thus abused law simply to harass him/them, the original complainant wife or her relative is not penalized under the provisions in Sec. 211 of IPC r/w Sec. 250 (1,2,3) of Cr. P. C. The harassed husband and/or his relative/s may thereafter file a separate Civil Suit against the criminal wife and/or her relative/s, in an appropriate civil Court- for a suitable compensation relating to the said harassment and demand a fair compensation according to his/their status in the society and the nature of defamation etc.

                        National Research Bureau had conducted a study on the number of cases increased from 1996 to 2008. It was 28670 cases U/s 498A in the year 1996 and 63428 cases in the year 2008. an increase of 120 % was noted in 12 years. On December 17^th of  2003, the then Minister of State for Home Affairs 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.” How can it be true when National Crime research bureau has given report to government that since 1999 almost a million people were arrested U/s 498 A. One innocent person is arrested every minute. As enthusiasm to protect the women by politicians and determined loveless wife and her family flush out the complaints about 5,00,000 persons were arrests in the last 4 years of which 80% of them are proved innocent. One innocent elderly is arrested every 24 hours under this section. One innocent women is arrested in every 21 minutes and one child is arrested almost every day. How this section is raped by the society is seen clear. The protected women are arrested. Innocent children ARE arrestED. The senior citizens were dragged to jail due to the misuse of this section.

                        By all these to poor, innocent, elders, children, in an attempt to protect the victims of atrocities, on 20 July 2005, Justices Arijit Pasayat and H.K. Seema of the Indian Supreme Court declared Section 498A to be constitutional. "The object is to strike at the root of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not an assassin's weapon. If [the] cry of "wolf" is made too often as a prank, assistance and protection may not be available when the actual wolf appears," the Bench said. Several reports of the abuse of Section 498A have involved couples based outside India especially in the US. The United States Department of State has published the following travel warning: A number of U.S. citizen men who have come to India to marry Indian nationals have been arrested and charged with crimes related to dowry extraction. Many of the charges stem from the U.S. citizen’s inability to provide an immigrant visa for his prospective spouse to travel immediately to the United States.The courts sometimes order the U.S. citizen to pay large sums of money to his spouse in exchange for the dismissal of charges. The courts normally confiscate the American’s passport, and he must remain in India until the case has been settled

                        Dr. Balamurali Ambati’s case is an example of hoe S.498A is misused for obtaining dowry from the husbands family. How they are extracted by using this sharp edged weapon.  Dr. Balamurali Ambati. 17 years of age, an MD and his family were detained in India for over 3 years in a suit related to alleged dowry demands by the family for his brother's wife Archana, which delayed Dr. Ambati's entry to the ophthalmology program for 2 years, leaving him to begin his residency in 1998. All charges against him were dismissed in October 1996 and all his family members were acquitted in June 1999 ^[3]. During the course of the trial the Ambatis produced a tape in which the father of Archana, demanded US $500,000 to drop all the charges.

                        In most cases 498a complaint is followed by the demand of huge amount of money (extortion) to settle the case out of the court. This section is non-bailable (you have to appear in court and get bail from the judge), non-compoundable (complaint can't be withdrawn) and cognizable (register and investigate the complaint, although in practice most of the time arrest happens before investigation). There have been countless instances where, without any investigation, the police has arrested elderly parents, unmarried sisters, pregnant sister-in-laws and even 3 year old children. In these cases unsuspecting family of husband has to go through a lot of mental torture and harassment by the corrupt Indian legal system. A typical case goes on for years (5-7 years is typical) and the conviction rate is about 2% only. Some accused parents sisters and even husbands have committed suicide after time in jail.

            In S.498A cases, because of the presumption of burden of proof even if the complaint is false, the accused shall be presumed guilty until you prove that you are innocent.
                        Dowry originated in upper caste families as the wedding gift to the bride from her family.  The dowry was later given to help with marriage expenses and became a form of insurance in the case that her in-laws mistreated her. The practice of dowry abuse is rising in India.  The most severe in “bride burning”, the burning of women whose dowries were not considered sufficient by their husband or in-laws.  Most of these incidents are reported as accidental burns in the kitchen or are disguised as suicide.
Dowry is an evil, evil system and all of us, at some level, condone it and even contribute to it. Wealthy and affluent parents give dowry to the children in the form of gift. What we need give to our child is education not dowry in the form of gift.  Despite the Law commission and various judges' recommendations to make 498A a bailable offence, our lawmakers have not made any effort to save the innocent people who are being victimized by the abusive women and their families.

                        We must stop this legal terrorism (as termed by the Supreme Court of India) by our radical women organizations that openly advocates and legitimizes adultery by the wife and killing of the unborn child

                        According to Justice V.S. Malimath, the Chairman of the committee on Reforms in the Criminal Justice System (CRCJS) and former Chief Justice of Karnataka and Kerala High Courts, such a "pro-women" amendment will "unite a family".  He  said: "Imprisonment of the husband and his family for any short term will strain the relations, and this puts the wife and children at the crossroads devoid of any support. In a conservative society like ours, it is a tough task for a woman to run the family on her own. This (amendment) saves the process of adducing false evidence before the court, which is now being adopted for the purpose." The committee has suggested amending Section 498-A making the offence bailable and compoundable. The committee in its report containing 158 recommendations, which was submitted to the Government recently, has suggested a leeway by which such conciliation will be a possibility.

NOTE: The recommendations of Justice V.S. Malimath, the Chairman of the committee on Reforms in the Criminal Justice System (CRCJS) and former Chief Justice of Karnataka and Kerala High Courts will be mailed soon as "Legal Subotage in India" for a better under standing of the future legal atmosphere of independent India.

Article by:-

Adv. K.C. Suresh, B.A., LL.M (Crimes), PGDHR(Human Rights) Legal Adviser (Rtd) Vigilance and Anti-corruption Bureau, Kerala State and Special Public Prosecutor.