Author: Asmita Chakraborty | Featured-Pic Credit: Shashwat Ashiya
What is the dowry prevention act?
The dowry prohibition law in our country prohibits the practice of taking dowry by either party to a marriage. It prohibits demand and advertisement of dowry during marriage. This act makes provision to punish anyone who takes or gives or demands dowry. Additionally, it has provisions to punish those who help to provide or take dowry as well.
Analysis of the act
The specific forms of violence against women were linked to a failure to meet dowry demand. Cases have come to public notice where brides, on account of their failure to bring the promised or expected dowry have been beaten up, kept without food for days, locked up in dingy rooms, tortured physically or mentally, strangulated or burnt alive or been forced to commit suicide. With a view to eradicating the rampant social evil of dowry from the Indian society, Parliament, in 1961, passed the Dowry Prohibition Act which applies not only to Hindus but to all-Muslims, Christians, Parsis and Jews. The Act however, did not prove to be effective and the evil of dowry continued to reign supreme. Several Indian states amended the Dowry Prohibition Act, 1961, with a view to give it a teeth. They did not succeed in curbing, much less eradicating, the dowry menace.
The Joint Parliamentary Committee on dowry on its report of 1982 has opined that for the failure of the dowry prohibition law, there are two reasons: First the explanation to Section 2 of the prohibition Act excludes all presents (whether given in cash or kind from the definition of dowry, unless the same were given in consideration of marriage, and it is almost impossible to prove that gifts or present given at, before, or after the marriage were given in consideration of marriage. The main reason is that no giver of the present will ever come forward to say that he gave these in consideration of marriage, as giving of dowry is as much an offence as taking it.
Secondly, the Act did not have an effective enforcement instrumentality. No court can take the cognizance of a dowry offence except on complaint, made by a person within one year from the date of the commission of a dowry offence. It is unrealistic to expect the bride or bride’s parents or other relations to go to lodge a complaint. The parents are usually the victims of dowry. They are unwilling (and certainly reluctant) to come forward because of their apprehension that it may lead to the victimisation of their daughter.[1] Keeping everything in view, the Supreme Court has observed in Vikas v. State of Rajasthan[2] that the receipt and payment of dowry has to be controlled not only by effective implementation of the Act but by society also. Society has to evolve ways and means to curb this menace.
What is a dowry:
In this act dowry is defined as any property or valuable security agreed to be given directly or indirectly by one party to marriage to another or by the parents of one party to the other. The expression valuable security has the same meaning as that of section 30 in the Indian Penal Code, 1860. Any property given by parents of the bride need not be in consideration of the marriage, it can even be in connection with the marriage and would constitute dowry.[3] The definition of dowry is wide enough to include all sorts of properties, valuable securities, etc., given or agreed to be given directly or indirectly.[4]
Dowry means any property given or agreed to be given by the parents of a party to the marriage at the time of the marriage or before marriage or at any time after the marriage in connection with the marriage. So, where the husband had demanded a sum of Rs. 50,000 some days after the marriage from his father-in-law and on not being given became angry, tortured the wife and threatened to go for another marriage, it was held that the amount was being demanded in connection with the marriage and it was a demand for dowry though it was demanded after the marriage.[5] The furnishing of a list of ornaments and other household articles such as refrigerator, furniture, electrical appliances, etc., at the time of the settlement of the marriage amounts to demand of dowry within the meaning of section 2 of the Dowry Prohibition Act, 1961.[6]
What is not a dowry:
The customary payments in connection with birth of child or other ceremonies are not involved within ambit of dowry.[7] Where the demand for property or valuable security has no connection with the consideration for the marriage, it will not amount to a demand for dowry.[8] While dowry signifies presents given in connection with marriage to the bridal couple as well as others, Stridhan is confined to property given to or meant for the bride.[9]. Demand of dowry in respect of invalid marriage would not be legally recognisable.[10] A sum of money paid by a Mohemmadan in connection with his daughter’s marriage to prospective bridegroom for the purchase of a piece of land in the joint name of his daughter and would-be son-in-law is not ‘dowry’ within the meaning of the Act.[11]
Procedure prescribed:
Under Indian law giving and taking dowry is a punishable offence. There are several laws for prohibiting and punishing in dowry cases. But first of all the information of such offence should be made. For that :
- Victim has to file an FIR in local police station.
- A comprehensive report has to be submitted to the police.
- The victim should file a criminal case of dowry against those persons for dowry harassment and even file for divorce based on this.
- It is even advisable to a consult a lawyer for getting legal advice. Dowry lawyer will assist, advise and could even represent the person in court of law for dowry harssament case.
- As all information should be comprehended with provisions of law
- Filing of complaint with police or women cell is essential.
Time limit
In dowry cases, the case should be filed within seven years of marriage. If both of the parties need divorce, then both the parties should under respective personal (religion laws) apply for mutual consent divorce. If the both the parties are willing to get divorced they have to be living separately for one year. The court of law will grant a divorce after six months of filing of the complaint.
Punishment for dowry:
Dowry is a punishable offence. Under dowry prohibition act there are several sections as:
Section 3(1) of DPA“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 the fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry.”[12]
Section 3 does not contravene articles 14, 19, 21 and 22 of the Constitution and therefore this section is not ultra vires of the said articles.[13]The offence is founded in the relationship of the property demanded as abettor with the nature of demand. It should not bear a mere connection with marriage.[14]Abetment is a preparatory act and connotes active complicity on the part of the abettor at a point of time prior to the actual commission of the offence.[15]
According to section 4 (1) of DPA“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.”[16]
The mere demand of dowry before marriage is considered an offence.[17] Even before the happening of marriage, the demand of dowry is punishable and so its continuous demand again and again after the marriage.[18]Furnishing of a list of ornaments and other household articles at the time of settlement of marriage amounts to demand of dowry and accused are liable to be convicted under section 4.[19]
4-A. Ban on advertisement. If any person-
- offers, through any advertisement in any newspaper, periodical, journal or through any other media any share in his property or of any money or both as a share in any business or other interest as consideration for the marriage of his son or daughter or any other relative,
- prints or publishes or circulates any advertisement for same purpose , he shall be punishable 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[20]
Other Penal provisions for dowry:
Section 304A of the Indian Penal Code defines ‘dowry death’ and provides for its punishment. However in cases of dowry death it includes the important doctrine of ‘soon before the death’ the wife must have been subject to cruelty. Punishment under this section involves imprisonment of 7 years of imprisonment extending upto life imprisonment. The offence under this section is a cognizable, non-bailable and non-compoundable offence. The essential ingredients for section 304A are: [21]
- Death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances.
- Death should have occurred within seven years of her marriage
- The woman must have been subjected to cruelty or harassment by her husband or any relative of her husband.
- Cruelty or harassment should be for or in connection with the demand for dowry.
- Cruelty or harassment should have been meted out to the woman before her death.
In Prema S. Rao v. YadlaSrinivasaRao[22], it was held that to attract the provisions of section 304B, one of the main ingredients which is required to be established is that “soon before her death” she was subjected to cruelty and harassment “in connection with the demand of dowry”. In another case, it was held that either the husband or any other relative could be guilty of the offence under 304A if he or she directly or indirectly participated in the commission of the offence.[23]
Judicial overview:
The Supreme Court in the case of State of West Bengal v. OrilalJaiswal[24] observed that the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide.[25]
The Bombay High Court in case of Smt. SarlaPrabhakarWagmare v. State of Maharashtra[26] under section498-A, I.P.C. observed that it is not every harassment or every type of cruelty that could attract Section 498-A I.P.C. it must be established that beating and harassment were with a view to force the wife to commit or to fulfil illegal demands of husbands or in-laws. The court held that beating and harassment with a view to force the wife to commit suicide or to fulfil the illegal demands of the husband was not established.[27]
In the case of Ashok Kumar v. State of Punjab[28]the Punjab and Haryana High Court set aside the conviction under section 306 I.P.C. and acquitted the husband and noted that the presumption as to abetment to suicide is available only if husband is proven guilty of doing cruelty to his wife.
In State (Delhi) v. Gulzari Lai[29], the case was on circumstantial evidence. Held that motive plays an important role in the cases of circumstantial evidence. Accused can be convicted if the circumstances are wholly in-consistent with innocence of the accused. Benefit of doubt must go to the accused. Hence, the accused was acquitted by the court. On appeal, the Supreme Court said that it will be impossible for us to interfere with the order of acquittal passed by the High Courts.
In Public Prosecutor v. TotaBasavaPunniah[30]supports this view, this was a case of death by hanging within three years of the marriage. Evidence showed that dowry was demanded. The court held that even if it is a case of suicide Section 304-B I.P.C. is attracted.[31]
But in AtulaRavinder and others v. State of A.P.[32] though it was proved that the accused was harassing the deceased and making demand of dowry, and there was evidence to show that the deceased was subjected to cruelty within the meaning of Section 498- A.I.P.C. the Court did not punish the accused.
In Delhi Administration v. Laxman Kumar[33] and Indian Federation of Women Lawyers v. Shakuntala[34] the trail court had found that the accused guilty and awarded the extreme penalty but the High Court had acquitted the accused. The Supreme Court relied on the evidence of the witness who had not only rushed to the spot but took a leading part in putting out the fire from the bride’s person and ensured her dispatch for medical assistance at the shortest interval and as expected of good neighbours, informed the police, called a text and help and sympathy to the victim, they cannot be said to an animosity towards the accused. The defence explanation of an accident and the saree catching fire was rejected by the Supreme Court as unbelievable on the basis of circumstantial evidence. The relationship of the deceased with the in-laws strived, she was subjected to physical and mental torture and no consideration was shown for her delicate health. The court observed that it was not a case of death by stove-burst, but rather a cold-blooded murder.
Conclusion:
The dowry prohibition act which was brought in the year of 1951 had the sole purpose of prohibiting the offering and taking of dowry. It is important to understand the word or material dowry itself was never the cause of the problem. Rather it was the unreasonable demands and subsequent violence that arose due to the non-fulfilment of the dowry demands that lead to the rampant increase in the problems.
However, inspite of some stringent provisions giving and taking of dowry still happens today. This problem could be attributed to mainly two reasons:
- The lack of knowledge about the existing laws regarding prohibition of dowry.
- The inefficiency of effective implementation of the provisions of the act
- The indiscriminate misuse of the same.
Dowry is a menace that plagues the society and augments other evils and it needs to be stooped.
[1] Modern Hindu Law, ParasDiwan
[2]Appeal (crl.) 299 of 2001
[3]Rajeev v. Ram KishanJaiswal, 1994 Cri LJ NOC 255 (All).
[4]VemuriVenkateswaraRao v. State of Andhra Pradesh, 1992 Cri LJ 563 AP HC.
[5]Y.K. Bansal v. Anju, All LJ 914
[6]Madhu Sudan Malhotra v. K.C. Bhandari, 1988 BLJR 360 (SC).
[7]Satbir Singh v. State of Punjab, AIR 2001 SC 2828.
[8]ArjunDhondibaKamble v. State of Maharashtra, 1995 AIHC 273.
[9]Hakam Singh v. State of Punjab, (1990) 1 DMC 343.
[10]ReenaAggarwal v. Anupam, AIR 2004 SC 1418.
[11]KunjuMoideen v. Syed Mohamed, AIR 1986 Ker 48.
[12] http://wcd.nic.in/act/dowry-prohibition-act-1961,10.06.2018(11:23am)
[13] Indrawati v. Union of India, I (1991) DMC 117 (All)
[14]MadanLal v. Amar Nath, (1984) 2 Rec Cr. 581.
[15]Muthummalv.Maruthal, 1981 Cr. LJ 833 (Mad)
[16] Ibid
[17] PandurangShivramKawathkar v. State of Maharashtra, 2001 Cr LJ 2792 (SC).
[18]Harbans Singh v. Smt. GurcharanKaur alias SharanKaur , 1993 Rec Cr R 404 (Del).
[19]Raksha Devi v. Aruna Devi, I (1991) DMC 46 (P&H).
[20] Ibid
[21] A Critical Overview Of Offences Against Women Under The Indian Penal Code, Jibin Mathew George, TusharBhardwaj, Siddhartha Srivasatava, www.lawctopus.com available at https://www.lawctopus.com/academike/critical-overview-offences-women-indian-penal-code/ last seen on 7/06/2018
[22] AIR 2003 SC 11.
[23]Vadde Rama Rao v. State of Andhra Pradesh, 1990 Cr LJ 1666.
[24]AIR 1994 SC 1418.
[25] Dowry and Law: A Critical Analysis, www.shodhganga.inflibnet.ac.in available at http://shodhganga.inflibnet.ac.in/bitstream/10603/132584/10/10_chapter%204.pdf last seen on 7/06/2018.
[26] 1990 CriLJ 407.
[27] Ibid.
[28]AIR 1977 SC 109.
[29] 1979 (ii) Cr.LJ.1057.
[30]I (1990) DMC 466.
[31] Supra note.
[32]AIR 1991 SC 1142.
[33]1986 AIR 250.
[34]Criminal Appeal No. 93/84.
About the Author: Asmita is a 2016-21 Batch student at Chanakya National Law University, Patna.
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