We are about to celebrate our 73rd Independence Day and everywhere across the India people are very patriotic, all the patriotic songs being played where India is referred to as Mother India, in other word- “Maa Tujhe Salaam”. The words such as Janani, matra bhumi are used to describe India because, it is the place where we are born, we have to serve and we get buried in its soil. But the ideology of people tend to change when it comes to women. It is very sad to say that on one hand we worship this mother and the other hand we burn, kill, disregard our sisters, daughters and wives. Discrimination of women’s start from their birth, from the time when society thinks that a girl is born and to get her married, the father needs to do huge savings. The problem in our country is not of marriage but the show off’s and the idea of grand wedding and taking and giving of dowry in the marriage. The Supreme Court in the case of Vikas Vs. State of Rajasthan stated that “society has to find out ways and means of controlling and combating this menace of receipt and payment of dowry. It appears that instead of controlling the payment and receipt of dowry in one or the other form, it is increasing even in the educated class.” Well it cannot be itself said that low rates of participation in education, lack of financial independence alone are responsible for the continuance of this custom or rather a social evil called dowry. It can be witnessed that, more grand the wedding, more dowry is given. Moreover, Men cannot be alone blamed for this. It has been rightly said that, “Women are the agents of patriarchy”. There are instances where the mother-in-law itself burns the daughter-in-law just because she wanted more dowry. According to NCRB, 91,202 dowry deaths were reported in India in the previous decade. Dowry is a custom which has let to the distortion of the sex ratio of India, it has contributed to the increase in female feticide and infanticide at a huge level. There are so many cases which goes unreported and people suffers, the society at large suffers, And, hence the need of boycotting such a custom- which is still persisting in India irrespective of class of a person, by making as well as investigating and implementing anti dowry laws, comes into picture.
- WHAT IS DOWRY IN INDIAN CONTEXT?
The concept of dowry is not new and it is being practiced since the Vedic era. The dowry system in the Indian marriages can be recognized as the commercial part of the marriage, the girl used to get the necessary utensils for the installation of her new family and as a “Stridhan”. The land and property was given to the bride in place of succession rights, so that she can be capable enough to take care of her children if her husband dies as very few women in those times were financially independent. But gradually the concept of dowry got misused and took a different shape altogether, there came a demand of dowry from the in laws which lead to the parents belonging to middle and lower middle class family to sell of their agricultural land and parents who are in government jobs got indulged in corrupt practices such as taking and giving bribes just to earn their daughters dowry. Dowry is not a problem of one single community, though it was followed at large in Northern part of India but later on got widespread in all the communities and every part of India.
Certain judgements makes it clear as to what will constitute to be a dowry in Indian context, In Bachni Devi & Anr. Vs. State of Haryana, through Secretary, Home Department Supreme court held that the appellant’s demand for a motorcycle from his wife so that his brother can use it for carrying out his business smoothly was considered to be a dowry. As the wife committed suicide because she was continuously harassed and ill-treated for this. Where on other side Baldev Singh Vs. State of Punjab the Supreme Court held that the husband’s demand for the victim’s share in the ancestral property would not constitute to fall within the ambit of dowry and hence the husband was acquitted for the same. Also in the case of Appasaheb and Anr. Vs State of Maharashtra the Supreme Court held that the appellant demand for money at the time of a ‘financial stringency’ from the victim’s family, will not be considered as ‘dowry’, and hence this judgement can be criticized on the ground that many a times the husband and the in laws demand dowry in regards of such false financial crisis claims. Which change in time, the ways of extracting dowry is getting changed.
And even now, the means and ways of demanding a dowry has changed but dowry is still demanded. The problem of dowry is just like an engine to a train, it brings all sets of social evils with itself. The problem of female feticide arises due to demand of dowry, the lower middle class family feels convenient to abort the child instead of landing in debts in future. As a girl grows up she is not given maximum exposure and education which a male sibling gets in her family just because the parents are depositing money for her marriage and dowry. The problem continues to persist even after giving dowry and marriage of the girl, the girl has to suffer torchers by her in-laws, cases of domestic violence being reported is one of the reasons of dowry. Finally, the cases of dowry deaths are closed as just kitchen accidents or suicides.
Hence, a need of strict implementation of legislature arises. Not just implementation but prevention of the misuse of the legislature is also a necessity. Many cases have been reported where a women, to get rid of her husband and to attain maintenance have imposed false cases. This also should be taken care under the investigation procedure and then judiciary should come to a conclusion.
In 1961, the legislature responded to the outcries of the women’s right and the need for gender equality and dignity to women by enacting the Dowry Prohibition Act. The main objective of this act was to eradicate the social evil of dowry from the society. But the act had very little effect of the dowry practices, so it got amended twice, first in 1984 and the second in 1986. Despite of the amendment the legislature is still not capable enough to curb the practice of the dowry. Thus, this legislature has many loopholes. And according to the survey done on crime against women by ‘Saheli’ a social organization in Delhi, the organization had investigated 109 cases of death by burning and came to the conclusion that out of 109 cases 85 were of married women. It was quite shocking that out of 109 cases 99 cases were closed because no foul play was suspected and of the remaining 10 cases arrests were made in 7 cases and in one case bail was granted. These recklessness can be best explained by the case, State(Delhi Administration) Vs. Laxman Kumar were the dying declaration was recorded by the investigating Police Officer and it was not recorded by the doctor nor the magistrate was called by the investigating officer though he had the opportunity to call the magistrate. The dying declaration recorded by this Investigating Officer hence was rejected by the court and the case was closed. This is just one instance but when we look at large, “No single day passes without the newspaper headlines screaming of such incidences. As per the official figures, there is one dowry death reported in every 101 minutes.” The Question still being the same what are the laws doing? Are laws regarding dowry is only just a black and white paper? And hence the need of answering this question by not only pointing out the loopholes in law but also suggesting means to improvise them comes into picture.
- IN RELATION TO DOWRY PROHIBITION ACT, 1961
- SECTION 2 OF THE DOWRY PROHIBITION ACT, 1961
To start with, the definition of Dowry as given in Section 2 of the Dowry Prohibition Act, 1961.
“Dowry means any property or valuable security given or agreed to be given either directly or indirectly”.
- “By one party to a marriage to the other party to the marriage, or
- By the parent of either party to a marriage or by any 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 applies”.
This section imposes a sanction to the people who indulges in giving or taking of the dowry. It provides imprisonment for a term not less than five years and fine not less than fifteen thousand rupees, whichever is more. Penalities of imprisonment not less than six months and which may be extended to two years and fine not less than ten thousand rupees are also imposed on those who demands directly or indirectly any dowry from the relatives or parents of bride or the bridegroom. It is important to be noted that this provision makes relatives and parents of either the bride or the bridegroom criminally liable and thus tries to eradicate the custom of dowry but this provision but does not talk about the protection and aid to the victim and her relatives from harassment.
- SECTION 3 OF THE DOWRY PROHIBITION ACT, 1961
According to Section 3 of the Dowry Prohibition Act
There exception to the ban in such procedure requires the noting down of the gifts which are exchanged between the families of brides and bridegrooms as a customary provision and signature of both should be taken which will be an evidence in this case. In case the dowry is taken, this proof will be used to get back the gifts which were given to the bridegroom at the time of marriage. Failure to do so will make the bridegroom and his parents criminally liable and such offences would be a non-bailable offences. But the implementation of such procedure is quite poor and hence State Government should appoint a Dowry Prohibition Officers who can enforce this provision of Dowry Prohibition Act.
- VOLUNTARY GIFTS
The provision of the Dowry Prohibition Act which talks about “voluntary gifts” can be given also gets misused. In many cases on the mask of “voluntary gifts” the family of the bride are pressurized to send gifts as demanded by the in-laws of the bride. Furthermore, it becomes really difficult to prove as to which can be called as “voluntary gift” or which are gifts obtained by pressurizing the family of the bride.
- VALUABLE SECURITY
The Dowry Prohibition Act defines dowry as “any property or valuable security” that is given “in connection of marriage”. This provision was interpreted differently in many cases, valuable security or property in marriages could also be called as the gifts given in the marriage to bride and bridegrooms and nowhere this was proved as dowry. This provision hence was very ambiguous and had caused various judgements against the victim. Furthermore, this provision discourages the victim or her family to report the instances of dowry harassment. The sentence, “in connection of marriage” promotes the negotiations and agreements of dowry which takes place. Instead of declaring such agreements as illegal and void and hence non enforceable. In the case of Vemuri Venkateswara Rao v. State of Andhra Pradeshit was observed that there was no agreement between the parties to give any property as dowry before or after marriage and the demand of T.V, refrigerator, gas connection, cash of Rs 50, 000/- and 15 tolas of gold after the marriage were not demand of dowry but valuable security.
Hence it is very clear from this case that under the blanket of valuable security “dowry demands” are still taking place.
- RECOVERY OF DOWRY AND PRESENTS
Section 6 of the Dowry Prohibition Act, 1961 talks about recovery of the dowry. The women can recover the dowry which was given to her in laws and in case if she is dead then her heirs can claim the dowry which was given. Now this provision is often not used, as when the victim is alive she will be scared to claim the dowry back because according to section 3 of the Dowry Prohibition Act, 1961 giving and taking of dowry is an offence. Therefore, her parents would be prosecuted under this if she claim the dowry. And the second case where she is dead, her heirs, that is the in laws, her children and the husband enjoys the benefits of the property of the ill-fated woman. And hence, this provision serves as no remedy.
- ROLE OF CRIMINAL LAWS
- PROVING OF CRUELTY- SECTION 304-B OF THE INDIAN PENAL CODE
The supplementing provision to Dowry Prohibition Act is the amendment which happened in 1986 to Indian Penal Code and the result being is the addition of section 304-B, which is “Dowry Death”. The punishment for the dowry death is provided under Section 304-B(ii) of the Indian Penal Code which prescribes imprisonment for a term not less than seven years and may extent to life imprisonment. Under this provision if a death has occurred to the bride with “bodily burnt injuries” who was “subjected to cruelty” by her in laws will be liable for the offence of Dowry Death. Now, it becomes very difficult to prove that cruelty actually occurred as the victim is already dead and the cruelty occurred soon before the death of the victim. This might also lead to tampering of evidences by the in laws of the deceased and ultimately will be a miscarriage to justice. In State of Andhra Pradesh Vs. Raj Gopal Asawa and Anr, the Supreme Court convicted the accused under section 304-B of the Indian Penal Code, only when it was proved that before the death of the victim she had undergone cruelty in relation to the demand of dowry by her husband and in laws. Another loophole of this provision was pointed out by the case Soni Devrajbhai Babubhai Vs. State of Gujrat and Ors where the appellant was not convicted under Section 304-B of the Indian Penal Code inspite of having all the evidences of cruelty just because this provision has a perspective effect. The incident of cruelty following the dowry death occurred in the month of August 1986 while this provision was added to the Indian Penal Code in the month of November 1986 and hence the appellant was able to take the defence of “ No ex post facto law”.
Hence, considering the fact that such provisions are the welfare provisions and the sole motive of incorporating such provisions in the Indian Penal Code is reduction of these types of offences hence they should be given a retrospective effect.
- SEVEN YEARS LIMIT-SECTIONS 113A AND SECTIONS 113B OF THE EVIDENCE ACT
Another ambiguous provision apart from Section 304-B of the Indian Penal Code are Sections 113-A and 113-B of the Indian Evidence Act, which raises a presumption in favour of the deceased lady if her death was caused within the seven years of marriage. If she was subjected to cruelty before her death. 113A- it raises a presumption of abetment to suicide if the suicide was committed within seven years from the date of her marriage and before her suicide the lady was subjected to cruelty by her husband and her in laws. And similarly the court raises a presumption in favour of deceased lady if before her death she was subjected to cruelty for demand of dowry or in connection with dowry. The presumption of 113A is “may presume” and in 113B it is “shall presume”. Through the court raises presumption but the presumption can be raised only after the offence of cruelty is proved. Which is not easy for the prosecution to prove. In most of the cases the presumption is of no use because cruelty could not be proved by the prosecution. In the case of Nanak Vs. State of UP the deceased was the wife of the accused. The court was not able to prove the motive of the accused under Section 8 of The Evidence Act and this difficulty to prove the motive lead to the acquittal of the accused. Similarly, In the case of Barabhadrappa Vs. State of Karnataka the appellant was first subjected to death by the High Court as through circumstantial evidence it was proved that he had murdered her wife for dowry and was regularly torchering her. Later on, the Supreme Court altered the sentence to life imprisonment.
Sometimes the court acts leniently and recognizes the offence of cruelty as normal wear and tear of marriage. And gives a chance to the accused by reducing the punishment. Moreover, the capping of seven years puts the limitation on courts to raise the presumption. It is quite evident in most of the cases that cruelty in regards to dowry does not end and even lasts after the seven years. There is no reasonable differentia about why the seven years is choosen as limit.
- MISUSE OF SECTION 498A OF INDIAN PENAL CODE
Not only women, but men also become a victim of Domestic Violence. Most of the women who wants divorce from her husband registers false accusation of cruelty against their husband and in-laws under section 498A of Indian Penal Code. The complainant does not need to produce any evidence regarding the cruelty while complaining under Section 498A of The Indian Penal Code and if the person is found guilty the person will be imprisoned for three years and will also be liable to pay fine . The imprisonment of such nature causes huge mental trauma to the in laws and husband of the women. It is very shocking that today, suicide rate of married man is much higher than the married women. Census shows that 508 per 100,000 people for married man commits sucide from the age group 30 to 44 and 220 women per 100,000 commits suicide from the age group 45 to 59 years. Cases have been reported but the census go unreported where such innocent families have been arrested without any investigation and put to judicial custody and then such mental agony have caused the whole family to commit suicide in the jail. Until July 2014, Section 498A enabled the police to arrest the people who were accused of cruelty without any warrant or examination. In the case of Thathapadi Venkatalakshmi Vs. State of A.P, wife had accused the husband of cruelty under section 498A of the Indian Penal Code, the police had filed the chargesheet to take cognigence of the offence. And wife was not permitted to withdraw chargesheet filed by the police under section 498A. This crime of dowry being a non- bailable offence and such lack of safeguards leads to loss of job and reputation of husbands while staying in jail. The complainant in case of reconciliation, cannot withdraw the complaint serves as another disadvantage for the accused. Moreover, the arrest of this nature made under section 498A comprises of 6% of the total arrest made under the Indian Penal Code and is in the third place after theft and hurt and out of these 10% of the cases are found to be false and 3,72,706 cases related to this pending in the different courts of India. And hence this section of The Indian Penal Code has widely been misused in such a way that it has become inconsistent with the fundamental right of “prohibition on discrimination on the basis of sex” guaranteed by Article 15 of the Constitution of India and hence section 498A should be made bailable and compoundable.
There are many such cases where the husband’s sister with her new born baby have been put to jail along with her parents and then they have to face emotional, mental and financial hardships. The cases have been reported where a women wants divorce from her husband just because she wanted to marry her boyfriend and then such false cases of dowry gets registered to get rid with the marriage. In the very famous case of
ARNESH KUMAR V. STATE OF BIHAR
FACTS: In this case, the women alleged that her in laws had demanded 8 lakh rupees, furniture and air conditioner in the form of dowry and when her family failed to pay this, she was threatened by her husband hence the husband and in laws should be liable to get prosecuted under section 498A of the Indian Penal Code for the offence of cruelty.
JUDGEMENT: It was observed by the Supreme Court that, there was a frivolous complaints lodged by women to falsely implicate her in laws and thus this case laid down a checklist of nine criteria which must be complied with before arresting a person under Section 498A of the Indian Penal Code.
And this case was one of the landmark case and imposes a system of checks and balances on the people who are misusing the provision 498A of the Indian Penal Code.
Therefore the, “ Law must be modified to protect such innocent people, in order to stabilize the foundation of Indian family system”. Law must investigate and analyse before arresting someone. Gender Equality does not only means providing incentives to women’s only but it also means to protects men and women both from harassments against each other.
- DOMESTIC VIOLENCE ACT- IN RELATION TO DOWRY
As discussed in the above paragraph, dowry not only causes dowry deaths and suicides but it is one of the reason for female feticides and domestic violence. Domestic Violence can be physical, emotional, sexual and economical. A women can initiate the proceeding of divorce or judicial separation on the ground of domestic violence and cruelty under section 498A of the Indian Penal Code should be proved to attract imprisonment of three years and conviction. The limitation of this provision is that even if the cruelty is proved, there is no provision of maintenance, shelter and relief for the women who are not economically independent. This leads to women bearing all kinds of domestic violences happening instead of getting it reported. Another loophole of this Act is, the nature of Domestic Violence is not defines as civil or criminal and many cases of Domestic Violence are shifted to the family courts. One should not forget that the basic motive of the family courts are to resolve family disputes through conciliation. Even, section 14 of the Domestic Violence Act, 2005 talks about counselling either of the two parties or delaying the proceedings up to two months. Now, if the conciliation process is done for such violences happening which is so common in a country like India, the chances of repeating the violence or harassing or causing greater harm in demand of more dowry can happen.
Moreover, the very motive of the justice shall get defeated as less cases will be reported. Studies have shown that nearly one third of Indian women who experience domestic violence have thought of running away from that family but the continuous fear of leaving their young children make them to stay in that family and tolerate this crime happening against her. And hence domestic violence laws should be based on the UN Model Code and legal protection to the victim should be granted after even one incident of domestic violence. Settlement should not be the process of granting the legal relief. The laws should have a provision for the temporary custody of the child/ children so that the perpetrator does not blackmail the victim. It is our fundamental right to live with dignity which has been guaranteed by the Constitution of India. And the grave misuse of such laws is hampering the fundamental right which has been guaranteed to every citizen and non-citizen. Hence there is a need for transformation of attitudes and practices so that both women and men can live a life of equality and dignity.
- NEGLIGENCE ON THE PART OF THE AUTHORITIES
Apart from the laws, there is negligence on the part of authorities which has lead to acquittal of accused or the dismissal of the case. This is one of the biggest loophole and that particular authority should be made answerable for omission of duty to care. Because of such people, there are so many women whose cries are not being heard, whose family spend their entire life seeking justice for the deceased women. But at the end what they receive shakes one’s trust in the judicial system and law implementation. For instance in the case of Madhubala Vs. Delhi Administration the dying declaration of the victim was recorded by the magistrate in the hospital but there were cetain flaws in it. The certificate of fitness was not obtained by the doctor and there was no signature or thumb impression in it. The statement was not recorded in the form of question and answer and moreover the statement was in hindi and it was recorded in English. The court considered these documents as non- admissible as it did not comply with the rules of the governing body and hence conviction was not made. Hence there should be committee and a tribunal set up which may impose checks and balances on these authorities to ensure proper implementation of the laws.
- REASONS FOR LOOPHOLE IN DOWRY LAWS
The dowry laws fails creates terror in the minds of the culprit and that is the reason why there is increase in dowry related cases and this social evil still persists. The reason behind loopholes in dowry laws includes:
- We live in a democratic country which guarantees individual liberties and procedural due process and imposes limitations in the use of criminal sanctions.
- Dowry Prohibition Act is more reactive and punitive rather than being preventive and curative.
- Ignorance of law cannot be excused, but it really becomes difficult to make citizens of a country aware of its laws where around 70% population are illiterate and poor. Government and NGO’s needs to create awareness by the means of local languages in the villages.
- CONCLUSION & SUGGESTIONS
The rate of increase in dowry demand, dowry death, female feticide and domestic violence should be severely dealt with. We have the laws but the implementation of laws are poor. According to the National Crime Record Bureau 91,202 dowry deaths were reported in India in the previous decade. And there have been cases were dowry has been picturized as accident in the kitchen and the accused has got acquittal.
The concept of dowry is not a new concept, dowry being initially introduced to help the girl in installation of new house and was given as succession right because those days, females had no right in succession. But gradually the misuse of the provision took place as dowry was seen as a source of income by the bridegroom’s parents which lead to continuous torture and dowry related crimes. Today, in 21st century, people are still practicing dowry but the way in which it is given and taken has just changed. It is practiced everywhere, irrespective of community, caste, religion and states.
The practice of dowry is still persisting because the laws in relation to dowry are not implemented properly. These provisions are often misused and hence there is a need of such laws to be amended and serve fully for the welfare of the women.
True implementation of these laws will only be possible when the society is made aware of its rights and is educated on the matters of status of women and gender equality. Women needs to be empowered and financially independent as well as aware of such laws so that they do not indulge in tolerating such kind of torture to themselves. Also, as I proceeded with my research I found that few laws are also misused by women. So the ‘gender equality’ education should be promoted and whosoever is at fault should be penalized.
The Act is criticized on the grounds that it uses the term “voluntary gift” and “valuable security”, now how will one prove in the court whether the property given is voluntarily as a gift or dowry. Also in so many cases dowry has been recognized has valuable security and has lead to accused’s acquittal. The law should include the definition of both the terms exhaustively, so as the court can interpret it within that ambit itself.
Similarly, it is quite vague when this act talks about that victim may recover the dowry back and incase of her death her heirs can. This provision is contradicting the earlier one, if a victim tries to restore the dowry back, her family might get prosecuted for giving the dowry. Moreover, after her death her husband and her children would enjoy the benefits of dowry. This provision should be struck down, as most important in these cases are justice. When the justice is delivered to the women by convicting the accused, the court should atomatically return the dowry with compensation to the victim or her family in case of her death.
The criminal law also has provisions with respect to dowry, the proving of cruelty before the death of the victim puts a burden of proof on the victim while the burden of proof should be on the accused.
Similarly, under section 113A and 113B of the Indian Evidence Act, the court raises presumption but this presumption can be raised only after the offence of cruelty is proved. Which is not easy for the prosecution to prove. In most of the cases the presumption is of no use because cruelty could not be proved by the prosecution and cruelty is seen as normal wear and tear in marriages by different courts. Hence, court should not interpret such nature of offences in a lenient way.
Through amendment, a severe punishment should be incorporated for those who misuse the provision of cruelty under section 498A of IPC. Though ignorance of law is not an excuse but misusing a law should be made punishable.
The loophole is present in the provision regarding dowry in Domestic Violence Act too , this Act talks about conciliation which cannot be at all accepted in dowry cases. Also there is no mention of maintenance given to wife which would automatically lead to the wife settling the dowry cases, staying with her husband and in laws again and getting tortured, voluntarily this time.
Hence, it is time that these laws should get amended and our judicial system should take dowry cases very seriously by establishing a separate tribunal which will only focus on cases regarding dowry and see that the misuse does not happen. Moreover, one should be more aware about the rights of the women and see that these laws are properly implemented. More aware the individual, stronger the implementation and zero misuse of law should be the prime goal to achieve.