Justin D James
Government Law College, Thrissur
All intellectual conversations about women in a Kerala circle invariably include that well-phrased analogy- “Women are mothers; and goddesses”. It aims to establish the idea that the women in your life should be revered like a mother and respected as a goddess. But in effect, this dreamy ideal rarely actualizes into a life practice. While the state which ranks highly in most of NITI Aayog’s social and human development indicators takes serious efforts to educate its girls, the approach post-education is quite a contrast.1 Underage marriage in Kerala are the lowest within the whole nation (0.9%), but the marriage rate in the age group 18-20 is a different story- a quarter of the female population of the state are wedded before they hit 20.2 Women who have barely graduated enter marriages before they get any foothold of their own, and often end up at the mercy of their partners and in-laws. They often get harassed or abused because they didn’t bring enough dowries to the family but are restricted in reaction because of the precarious situations they are left in. And further down the marriage roads, some of these women are found hung from the ceilings; or burnt in the backyards; or bitten by snakes in beds.
DOWRY- ORIGIN AND EXISTENCE
Dowries have existed as a custom in many communities from ancient or medieval times. The transfer of money, goods or estate from the bride’s family to the groom or his family was a fairly common practice, especially in societies of patriarchal nature. It was expected to be an assurance for the bride, which would afford her a certain degree of independence in the alien and possibly hostile environment she was wedded off to.3It sometimes also acted as a base investment from which a household could be built, and was considered as a factor of the desirability of women.
In India, the dowry system was in practice since the Vedic period where gifts from parents or relatives were recognized as the bride‘s property and was called ‘Stridhan’.4 Hindu traditional customs viewed marriage as the gift of a maiden or ‘Kanyadaan’, which was accompanied by dowry usually consisting of items that would help start their independent lives.
While the practice of dowry weaned off in most communities in the 19th and 20th centuries, it is still followed at large in many South Asian countries including India. In fact, there was a period during the colonial rule of the British when dowry was mandatory, and by denying property rights of women, dowry was effectively transfigured into the right of the grooms.5 Post-independence, the violence faced by women was recognized as an area that required strong interventions by the State and numerous legal provisions were enacted. Nevertheless, statistics show not much has changed over the decades that followed.
Dowry deaths statistics, which were recorded only since 1988, show that in 1989 the number of cases counted at 4215. Dowry was the motive behind roughly 6% of all culpable homicides and murders.6 The numbers have steadily increased in the decades that follow. Between 1995 and 2007, there was a 74% increase in the instances of dowry deaths, and there was a 31% increase in the number of dowry-related suicides during this same period.7 By 2012, the number of women killed in dowry-related violence had risen to 8233 and the cases reported by survivors nearly hit one lakh.8 The latest incidents are further proof that the fight against dowry death is stalling at the same point it was decades ago.
PROVISIONS IN LAW
The legislations which exclusively target violence faced by brides are the Dowry Prohibition Act, Sections 498-A and 304-B of the IPC and Section 113-B of the Indian Evidence Act.
1) Dowry Prohibition Act, 1961:
The reasoning stated for the enactment of this statute explains the motive clearly. An earlier attempt to confer property rights on women by the Hindu Succession Act of 1956 had not made the desired impact. There was a need for a punitive statute against the practice, as well as to ensure any dowry given would serve the needs of the women.9 The statute was further amended in 1985 and 1986 in order to increase the effectiveness and be more truthful to the objective.
- Section 2 defines dowry as any property or security which is given by one party to another party in connection with the marriage between them. The definition is wide enough to include parents and even outside persons but doesn’t include dower or mehar in the case of people governed by Muslim personal laws.
- Section 3 prescribes a punishment of not less than five years imprisonment and a fine amount equivalent to the dowry value over any person who gives or takes dowry or abet such giving or taking. At the same time, this section declares any presents given, without demand, to the bride or bridegroom outside the ambit of this statute provided they are customary in nature and not excessive in value.
- Section 6 exists for the benefit of women, such that any dowry already given in connection to a woman’s marriage should be transferred to her possession or that of her heirs in case she is not alive.
- Section 7 explains the jurisdiction and that no action may be taken except on the knowledge of the Court itself, a police report, a complaint by the aggrieved person, parent or relative or a complaint by any welfare organization recognized in this behalf by the Government. The aggrieved person itself will not be liable to prosecution based on his/her statement.
- Section 8 deals with the cognizance of the offence. After initially declaring the offences as bailable, they were altered to non-bailable by the amendment of 1986. In the same amendment, the burden of proof was placed on the prosecuted person by introducing Section 8A. Section 8B directs the State Government to appoint Dowry Prohibition Officers to see to the compliance of the provisions of this Act.
2) Section 304-B of IPC:
This section was inserted by the amendment of 1986, in order to particularly tackle the offence of dowry death.
- Clause (1) establishes the circumstances in which death would be considered as dowry death. The death has to occur by burns, body injury or other unnatural circumstances, within a period of seven years after marriage. Soon before the death, the person must have been subjected to cruelty or harassment by her husband or husband’s relatives, in connection to demand the dowry.
- Clause (2) prescribes a punishment of not less than seven years and up to imprisonment for life for the offenders.
3) Section 498-A of IPC:
This Section was introduced in 1983 as a separate Chapter to incriminate instances of cruelty meted out to women by husbands or relatives of husbands.
- Cruelty under this Section includes harassment related to the demand for dowry as well as any other willful conduct which causes grave injury or danger to the woman, or drives her to commit suicide.
- Any offender under this Section may be punished with imprisonment up to three years and shall also be liable to a fine.
4) Section 113-B of the Indian Evidence Act:
This Section details the presumption of liability in the cases of dowry death.
- When the woman had been subjected to cruelty or harassment in connection with any demand for dowry soon before her death, the Court presumes it is a case of dowry death. Once it is proven without a doubt that the woman faced cruelty or harassment soon before her death, the onus to prove shifts to the accused.
The legal enactments and their implementations have been under constant scrutiny by critics over the decades. These have largely centred around discrepancies within the laws and issues of rising frivolous cases. Many jurists and law commissions have also seen the need for pointing out ambiguity and misdirection in these laws. The Dowry Prohibition Act, for example, inadvertently acknowledges the occurrence of child marriages which are prohibited by another statute.10 It does not go as far as making child marriages valid, but it does give out the impression that such marriages are fairly common.
One other major issue is the rise in false complaints which dilutes the actual purpose of these statutes. Complaints are filed to satisfy personal vendettas by misusing provisions and courts have observed that the legislature has to find ways to deal with makers of such false allegations. The concern is so big that it could be considered as ‘legal terrorism.11 Further Madras High Court makes an observation that most complaints are filed in the heat of the moment due to trifling fights or ego clashes and even directs the police to try reconciling the parties before filing the FIR, and if there is no chance for settlement, steps have to be taken to ensure dowry is returned to the complainant12
Critics also note that despite the large increase in cases filed, the conviction rate on cases filed under Sections 304-B and 498-A is only between 20 to 30%.13 This is cited as evidence for the frivolous nature of the majority of the complaints. Insofar, it becomes clear that one of the major challenges faced by the system in solving the dowry menace is the rise in false complaints. The concerned officials including the police and the judiciary are forced to be cautious while approaching petitions of this nature.
SOCIAL IMPRESSIONS OF DOWRY
There is no difference of opinions when it is said that dowry essentially is a social evil, and society alone holds the axe which could cut its roots. The laws can only change so much; when the society is not aligned with the purpose of the law, it is mere words typed in a white sheet. Families consider dowry as a symbol of grandeur and even compete to be the one that gives the most or receive the most. And when the daughter faces cruelty in her new home, the parents are reluctant to take her away, because society considers it too damning for a wife to be separated from her husband. As noted by Court14, normally the daughter-in-law suffering cruelty would not inform anyone initially. When she gets an opportunity, she might inform her parents, who in fear of pride, would wait for a proper time to try and settle the issue. In almost every case of dowry death, we see that the bride seeks help from her parents, which she doesn’t receive, and forces her to help herself out of life.
From the part of the judiciary, efforts are made as much as they can. The interpretations today are much lenient than it was during the turn of the century. The literal interpretation of a penal provision on dowry death may have blunted the battle against the long-standing social evil for a long time. The language used in the laws have always flummoxed courts; for instance, Section 304-B requires death by burns or bodily injury or ‘otherwise than under normal circumstances. The cruelty or harassment need to happen ‘soon before her death. These were often interpreted strictly by the judiciary and ‘soon before’ used to be interpreted as ‘immediately before’. Recently CJ Ramana has reiterated15 the need to be liberal in these interpretations and noted that there is only a need for a proximate link between the instance of cruelty and death. The cause of death can include homicidal, suicidal and accidental circumstances and there is no pigeonhole approach in categorizing death under 304-B.
The Kerala legislature had enacted the Dowry Prohibition Rules, and as part of it appointed officers based in three zones to oversee the effective execution of the laws. Under the purview of the rules, government employees can also be asked to submit an affidavit post-marriage stating that they have not taken any dowry, which has to be signed by the wife and her guardian as well. Further efforts are made to increase the number of preventive officers to every district, so as to increase the efficiency of operation.16 The laws to tackle the issue, as well as the system to implement the laws, are in place, and the final piece of the puzzle is the approach of the society.
The recurring cases of dowry deaths just highlight the rather philosophical observation17 made by the Supreme Court in 1993- ‘laws alone are not enough to combat the evil of dowry; A wider social movement to educate the women of their rights is needed to conquer this menace, particularly in rural areas where they are largely illiterate, unaware of their rights and easily exploited’. While education does help, the incidents in Kerala- the most literate state- shows it is not everything. Education does impart the sense to see what is wrong and what is right, but the choice still needs to be made.
On the back of the disturbing occurrences in the Gods own country, Arif Khan, Governer, makes a genuine suggestion of tying dowry to education in a radical manner. Graduates would execute an anti-dowry bond in order to receive their certificates; if violated, their degree would risk being nullified. It goes without saying that this approach of using education to tackle dowry might actually work better than the traditional approach.
While this suggestion faces countless legal blockades, the general consensus would agree that something similarly radical is the need of the hour. Legislatures have done the best they can in formulating codes. Judiciary does their best in preserving the ambit of the codes and giving a helping hand to the hapless. Now society has to rise to the occasion, by means of meaningful and proactive discussion and execution, and do everything they can to help our women.
1 NITI AAYOG, http://www.social.niti.gov.in (last visited July 4, 2021).↩
2 Census of India, Sample Registration System Statistical Report 2018, 39 (2018), https://censusindia.gov.in/Vital_Statistics/SRS_Report_2018/SRS_Statistical_Report_2018.pdf. ↩
3 The Editors of Encyclopaedia, Dowry, ENCYCLOPEDIA BRITANNICA (July 4, 2021, 10:43 AM), https://www.britannica.com/topic/dowry.↩
4 Soumi Chatterjee, Concept and evolution of dowry, 7 IJHSSI 85, 86 (2018), http://www.ijhssi.org/papers/vol7(1)/Version-2/M0701028590.pdf.↩
5 VEENA TALWAR ET. AL., DOWRY MURDER: THE IMPERIAL ORIGINS OF A CULTRAL CRIME (Oxford University Press 2002).↩
6 B. Devi Prasad, Dowry-Related Violence: A Content Analysis of News in Selected Newspapers, 25 JCFS 71, 71(1994).↩
7 Gopalan Retheesh Babu, Dowry deaths: a neglected public health issue in India, 3 International Health 35, 37(2011).↩
8 Carol J. Williams, India ‘dowry deaths’ still rising despite modernization, LOS ANGELES TIMES (July 7, 2021, 6.22 PM), https://www.latimes.com/world/worldnow/la-fg-wn-india-dowry-deaths-20130904-story.html.↩
9 Gazette of India, Extra Ordinary Gazette, pt. ii sec. 2, 397(1959)↩
10 Law Commission of India, Report No. 270 (July 2017), Chapter 6.11 (2017)↩
11 Sushil Kumar Sharma v. Union of India, (2005) 6 SCC 281↩
12 Romaiah v. State, (2008) 3 MLJ (Crl)↩
13 Law Commission of India, Report No. 243 (August 2012), Chapter 3.2 (2012)↩
14 Shyam Khatkar v. State of Chhattisgarh, 2012(1) Crimes 1 (Chhatt)↩
15 Satbir Singh v. State of Haryana, 2021 SCC OnLine SC 404↩
16 Dowry prohibition officers in all districts, THE HINDU (July 17, 2021, 5:11 PM),https://www.thehindu.com/news/national/kerala/dowry-prohibition-officers-in-all-districts/article35369472.ece. ↩
17 Kundala Balasubramaniam v. State of A.P., 1993 AIR SC 1321↩
Note: This work is published as a part of the Article Writing Competition organized by The Legal Boffin in 2021.