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The ‘dowry system’ as a practice is not new to Indian society and culture. It is a great social evil as it deprives a woman and her family of their rights. The reason as to why girls are considered as a burden is because of this prevailing dowry system in the society.
Dowry is defined as any property or valuable security is given or agreed to be given directly either on or after the marriage by one party to the marriage to the other. Many factors effectuate dowry systems such as inheritance systems and the bride’s economic status, structure and kinship of marriage in parts of India and other religious factors.
The repercussions of this system being cruelty, domestic violence, abetment to suicide, murder and much more. This called out the need to have some special laws with regard to the dowry prohibition and which should at the same time, punish the taker as well as the giver of the dowry.
Hence, the first all-India legislative enactment relating to dowry was The Dowry Prohibition Act, 1961.This legislation came into force from 1st July 1961. A dawn was felt which was effectively prohibiting the demanding, giving and taking of dowry.Further to built up the anti-dowry law new provisions were added to the Indian criminal law – section 498A of the Indian Penal Code and section 198A of the Criminal Procedure Code in 1983. In 2005, the Protection of Women from Domestic Violence Act was passed, which provided an extra protection from dowry harassment.
Provisions of The Dowry Prohibition Act, 1961
A legislation to replace the giving, taking and demanding of dowry was enacted in the form of The Dowry Prohibition Act, 1961. The Act anticipates preventing of dowry by enacting section 3 of the Act, which provides for the penalty. The punishment could be imprisonment for minimum 5 years and a fine more than ₹15,000 or the value of the dowry received, whichever is higher. The Act makes an exception to gifts that are received at the time of marriage, in the absence of such demand. Dowry agreements are void ab initio and if any dowry is received by anyone other than the woman, it should be transferred to the woman. This provides a safeguard by protecting the interest of the women.
Criminal liability under the Indian Penal Code, Criminal Procedure Code, and Evidence Act
The Indian criminal laws were comprehensively amended to include dowry as a punishable offense. Section 304B was added to the Indian Penal Code, 1860( IPC) which made dowry death a specific offense punishable with a minimum sentence of imprisonment for 7 years and a maximum imprisonment for life.
Further, section 113B of the Evidence Act, 1872 (Evidence Act), creates an additional presumption of dowry death when it is shown that before her death, the woman had been subjected to cruelty on account of dowry demand. Section 304B IPC r/w Section 113B of the Evidence Act have enabled the conviction of many who were not caught by the Dowry Prohibition Act, 1961.
Also, Section 498A IPC was specifically included in 1983 to protect women from cruelty and harassment. The constitutionality of Section 498A was challenged before the Supreme Court of India on grounds of abuse, on grounds that it gave arbitrary power to the police and the court. However, it was upheld in Sushil Kumar Sharma v. Union of India (2005). The Code of Criminal Procedure, 1973 provides that for the prosecution of offenses under Section 498A IPC, the courts can take cognizance only when it receives a report of the facts from the police or upon a complaint being made by the victim or her family.
India is a party to several international conventions, which guarantees protection to women against the peril of dowry problems. Few of them are :
- Universal declaration of human rights (UDHR)
- International Covenant on Civil and Political Rights (ICCPR)
- International Covenant on Economic, Social, and Cultural Rights (ICESCR), etc
However, there are many non-intervention and cultural relativism problems that don’t allow international conventions to curb the problems of dowry.
Hindu Marriage: Whether a Sacrament or a Civil Contract?
For a Hindu, marriage is a Sanskara (religious rite or sacrament). It is looked upon something which is more of a religious necessity. But at the same time, it is also a civil contract, which takes the form of a gift.
For example in Purshottamdas v. Purshottamdas, the court observed that “marriage of Hindu children is a contract made by their parents”. In Muthusami v. Masilamani, the court observed, “a marriage is undoubtedly a contract entered into for consideration.”
The words like contract and consideration itself talk a lot about the involvement of dowry in the Hindu marriages.
Thus, there lies an unevenness between Hindu Law and the secular laws with regard to dowry. On one hand, the secular laws are trying to eradicate the problems of dowry and on the other hand, the Hindu laws are encouraging such practice as a religious one.
Thus, the scorching problems of dowry cannot be suppressed without the support of its key actors, who are acting in and around this field. Mere legislation cannot be expected to serve the purpose unless there are support and backing from the society. Hence, it is very important to cut the roots of this deep-rooted problem, before it takes stronghold with the land and makes it next to impossible to cut down this problem.
– Sonika Choudhary
Content Writer @ Legal Bites