Tasneem Nafiss, 2nd yr, Capital Law College
DIFFERENCE BETWEEN DOWRY AND GIFT
There is a huge difference between dowry and a gift when the bride’s family gives some of the jewelry or anything even having financial issues but without forcefully that is a gift, but when the groom’s family demands more than they can give even knowing about their family financial issues then this is called dowry.
INTRODUCTION
The dowry system in India refers to the durable goods, cash, movable property Etc. that the bride’s family gives to the groom, his parents, and his relatives as a condition of the marriage. Dowry is called "दहेज" in Hindi and as جہیز in Urdu. The dowry system can put a great financial burden on the bride’s family. In some cases, the dowry system leads to crimes against women, ranging from emotional abuse and injury to even death. Dowry is a social evil in society that has caused unimaginable torture and crimes toward women and polluted the Indian marital system. Dowry is payment made in cash or kind to a bride’s in-laws at the time of her marriage. Today the government has come up with many laws (The Dowry Prohibition Act 1961) and reforms, not only to eradicate the dowry system but also to uplift the status of the girl child by bringing in many schemes. However, owing to the social nature of this problem, the legislation has failed to produce the desired results in our society. To get rid of this problem, appealing to the social and moral consciousness of the people, providing education and economic independence for women, and effective enforcement of legislation against the dowry system, can help.
IS DOWRY DECREASING OR STILL PRACTICED IN INDIA?
Dowry is still present in India in some places but the practice has been illegal in India in 1961, it continues to thrive and leaves women vulnerable to domestic violence and even death. It has decreased in some areas in India but still, it is important and bound to give in some places. It marked the beginning of a new legal framework of dowry harassment laws effectively prohibiting the demanding, giving, and taking of dowry. Although providing a dowry is illegal, it is still common in many parts of India for a husband to seek a dowry from the wife’s family, and in some cases, this results in a form of extortion and violence against the wife. Dowry is decreasing in many areas but there are some tribal areas even some rural people asking for heavy demand of dowry. Which stays silent until some crime violence or harassment happens.
DOWRY PROHIBITION ACT
Dowry Prohibition Act is an Indian law which was enacted on the 1 st of May 1961. This act was levied to prevent giving or receiving any form of dowry. The dowry prohibition act was passed in 1961 which justifies the term ‘dowry’ which includes the property, goods, or money that is given by either of the parties who is engaged in the marriage.
This can be given by the parents of either of the parties or by anyone else who is in connection with the marriage. The dowry prohibition act applies to all persons irrespective of caste or religion in India.
Sixty-three years ago, to eradicate the evil custom of dowry from society and to eliminate violence against married women for want of dowry and dowry deaths, “THE DOWRY PROHIBITION ACT” was passed. This act received the assent of the president of India on 20th May 1961 and the act came into force on 1st July 1961. Dowry Prohibition Act 1961 is criminal law and according to the section, offering and accepting dowry is a cognizable offence. Cases can be filed based on self-information by the victim, police reports, information from parents/relations, or complaints registered by any NGO. The offence under this act is nonbailable and non-compundable.
According to section 8 (a), the offender has to prove that he is not guilty and that he has not accepted any dowry and has not committed any offense under this act. This rule is called “strict liability”. According to the principle of criminal jurisprudence, an accused is presumed to be innocent until their guilt is proved, and it is for the prosecution to prove beyond reasonable doubt that the accused has committed the offense. This section makes an exception to this general rule and shifts the burden on the accused to prove his innocence. Amendment of the Indian penal code and the Indian Evidence Act are the special features of this act.
Secondly, the Indian Penal Code section 498(a) defines cruelty. This section has been amended to make cruelty to a woman by her husband or in-laws and forcing her to meet their unlawful demands of dowry will attract punishment with imprisonment up to three years with a fine. Thirdly according to the Indian Evidence Act section 113(a) & 114(b), if atrocities and harassment are proved and the victim dies an unnatural death within seven years of her marriage, the court will presume that she has been driven towards suicide by her husband and his relatives. In this situation, under IPC section 306 provision of 10 years of imprisonment & fine is made after 1961.
IMPACT OF DOWRY SYSTEM IN INDIA
Dowry is considered a major contributor to observed violence against women in India. Some of these offenses include physical violence, emotional abuse, and even murder of brides and young girls prior to marriage. The predominant types of dowry crimes relate to cruelty which includes torture and harassment, domestic violence including physical, emotional, and sexual assault, abetment to suicide and dowry death including, issues of bride burning and murder.
DOWRY DEATH
Dowry deaths relate to the bride’s suicide or killing committed by her husband and his family soon after marriage because of their dissatisfaction with the dowry. It is typically the culmination of a series of prior domestic abuses by the husband’s family. Most dowry deaths occur when the young women, unable to bear the harassment and torture, commit suicide. Most of these suicides are by hanging, poisoning or by fire. Sometimes disguised as suicide or accident. Death by burning of Indian women has been more frequently attributed to dowry conflicts. In dowry deaths, the groom’s family is the perpetrator of murder or suicide.
India has by far the highest number of dowry deaths in the world according to Indian National Crime Record Bureau. In 2022, more than 6.4 thousand cases per year this means brides are burned every 30 minutes. This is so sad to say that dowry deaths not decreasing.
LEGAL PROVISIONS AGAINST DOWRY SYSTEM IN INDIA
In 1961, barely 11 years after the adoption of the Indian Constitution, the Indian Parliament passed its first legislation against dowry in the form of the Dowry Prohibition Act, which criminalized demanding and giving dowry. This act was given significantly more teeth in amendments in 1984 and 1986. These amendments, notably in 1986, added dowry deaths to section 304 (b) of the Indian Penal Code which made dowry deaths culpable homicides. In 1983, another section 498 (A) was added to the penal code which further strengthened the anti-dowry provisions and obliged the police to arrest a woman’s in-laws in the case of harassment and/or cruelty. It was a landmark achievement for women’s rights in the country. At the same time, there has been a continuous outcry on how the laws against dowry are being dishonestly misused by many. Therefore, on 27 July 2017, the Supreme Court announced that under section 498A, an accused cannot be arrested immediately, as was the case before. Now, Family Welfare Committees will discuss such cases before a First Information Report (FIR) is filed by the police. These committees are to be set up throughout the country.
PUNISHMENT FOR DOWRY DEATH
304B. Dowry death. -- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation. For the purpose 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.
Punishment for dowry death is a minimum sentence of imprisonment for seven years or a maximum sentence of life. The bare act reading of the punishment for dowry death states 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 to imprisonment for life."
Section 498A Cruelty This provision defines cruelty as "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."
Essential Ingredients or Elements of Dowry Death –
Section 304B, IPC The Supreme Court has outlined the essential elements of dowry death (section 304B, IPC) in the case of Kamesh Panjiyar vs State of Bihar, 2005 as:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with the demand of dowry.
(v) It must be shown that such cruelty or harassment has been suffered by the woman soon before her death.
Case
The Trial Court held her mother-in-law and husband guilty of committing an offence under section 304B of the Indian Penal Code. They were given punishment for seven years of rigorous imprisonment. When the appeal was made to High Court, it agreed to the Trial Court, and the appeal was rejected.
The appeal was then made to the Supreme Court. The apex court held that demand for any property or valuable security having nexus with marriage constitutes dowry demand. The cause or reason for such demand is immaterial. It observed that the deceased was harassed by the accused after her father denied fulfilling the demand. Hence, harassment driving the deceased to commit suicide is dowry death.
Accordingly, the appeal was rejected by the Supreme Court, and the time of two months was given to accused 1 to surrender for going through the imprisonment conferred to her.
In the case of Preeti gupta & anr. V. State of Jharkhand & anr. Section 498-A was challenged and Supreme Court regrets about the possible misuse of anti-dowry laws and recommend a detail investigation.
In Inder Sain v. State, it was held that “consideration” was restricted to motive or reason, compensation or reward to marriage and would not, therefore, include any property demanded or given subsequent to marriage. The expression “any time after the marriage” has been brought to replace “after marriage” to eliminate a restricted interpretation of the statute. The concepts of gift in Indian marriages are only allowed which are customary in nature, which does not create a financial burden on a family. A list of such presents, along with value and description, is to be prepared and must be signed by the bride and bridegroom.
In case of Sanjay Kumar Jain v. State of Delhi it was said that “The dowry system is a big slur and curse on our society, democracy and the country. It is incomprehensible how such unfortunate and condemnable instances of dowry deaths are frequently occurring in our society. All efforts must be made to combat and curb the increasing menace of dowry death. The legislature was seriously concerned about this unfortunate reality of our society and to curb combat the increasing menace of dowry deaths with a firm hand the Dowry Prohibition Act, 1961 was enacted.
A common rehearse in marriages are that articles and ornaments of bride are immediately taken into possession by husband or his family can transferred to woman or her heirs by virtue of section 6 with period of three months failing of such act will amount to imprisonment from six months to two years and fine from five to ten thousand rupees.
Supreme Court in case of Pratibha Rani v. Suraj Kumar held that taking possession of bride articles will amount to criminal breach of trust punishable under section 405 of penal code. Supreme Court in the case of state of Punjab v. Iqbal Singh explained the period of seven years as it is considered to be turbulent one after which the legislature assumed that the couple would have settled down in life.
Conclusion
Dowry death is a social curse which is a burning issue in Indian society. Organized approach by women welfare organizations, police, public servants and judiciary by applying deterrent punishment for dowry deaths culprit. It can be observed that government of India along with Indian judiciary makes co-operative and supportive law to safeguard the life interest and dignity of women and provide further justice to the victim of harassment or cruelty by husband and his relatives. Change in education system led to an improvement in the education status of female and door to door employment service will lesser down dowry deaths. Still, certain corrective measures need to adopt to eradicate or at least curb this social menace of dowry death, but most importantly it needs a public will and commitment to shun away materialistic greed of dowry demands.
In cases to curb the rate of dowry deaths, harassment or cruelty more female police personnel should be inducted so available in a situation relating to unnatural deaths of women. In the interest of proper investigation and justice, the investigation cannot be done below the rank of assistant commissioner. Punishment for abetment of suicide must be raised to up to seven years. A rational and practical approach to the above-mentioned matter will certainly be helpful
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