Revisiting the law to check dowry menace

To cite Section 2 of the Dowry Prohibition Act, 1961,

In this act, `dowry’ means any property or valuable security given or agreed to be given either directly or indirectly:

a. by one party to a marriage to the other party to the marriage; or
b. by the parents of either party to a marriage or by any other 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 said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation II.-The expression `valuable security’ has the same meaning as in Sec. 30 of the Indian Penal Code (45 of 1860).
However, dowry has been assimilated in the society and is a part of India’s cultural beliefs.
Although seeking a dowry has been outlawed in India since 1961, the ban has been a challenge to enforce. An amendment to the law in 1986 mandated that any death or violence within the first seven years of marriage would be tried as related to dowry. The reality is that most cases of dowry violence go unreported.

Some of the revered scholars do claim that the dowry system existed even during the ancient Indian period giving reference of texts like the Code of Manu and the Smritis. According to Stanley Tambiah, the Code of Manu sanctioned dowry and bride wealth in ancient India. He claims that dowry was relatively more prestigious form than bride wealth. While dowry was associated with the Brahmanic, i.e. priestly caste, the bride wealth was restricted to lower castes. On the contrary, analysists like Michael Witzel is of the view that the ancient Indian texts suggest that dowry practices were not significant. On the other hand, he claims that the texts give us the idea that women during the ancient Indian period enjoyed property inheritance rights either by appointment or when they had no brothers.

Moreover, Al-Biruni, one of the greatest scholars of the medieval Islamic era writes in the Chapter on Matrimony in India, in about 1035 AD, “The implements of the wedding rejoicings are brought forward. No gift (dower or dowry) is settled between them. The man gives only a present to the wife, as he thinks fit, and a marriage gift in advance, which he has no right to claim back, but the (proposed) wife may give it back to him of her own will (if she does not want to marry).”

These writings and observations depict divergence in the views and analyses by the scholars, however, it is very clear that in the present social-cultural system dowry does exist and has emerged to be one of the menace regarding crime and violence against women in India. Despite the fact that India has become a booming economy in the last couple of years, its socio-cultural milieu finds even higher ‘prices’ than before bringing about more frequent instances of violence against women.

Dowry has also been associated with succession rights in the property. It is very true that granting women inheritance rights equal to men’s increases their access to physical and human capital. Earlier a Hindu woman could only have rights over a particular property which was given to her at the time of the wedding. Only males were entitled to be coparcener (a person who shares equally with others in the inheritance of an undivided estate or in the rights to it). A law was then made to empower women with the inheritance rights, the Hindu Law of Inheritance Act, 1929 which was replaced by the Hindu Succession Act, 1956 granting women with limited ownership right over property. Considering the ambiguities and inequities it was amended in 2005, where the daughters administered by Mitakshara law, were given the statutory right in the coparcenary property of their fathers. Until this amendment only the son acquired by birth an interest in the ancestral property. Section 23 of the Hindu Succession Act, 1956 was nullified which states that women heirs cannot have an equal share in the property unless male heirs suggest segregating their share. According to the revised Section 6 the Act, the daughter of a coparcenary is provided with the same rights and liabilities as a son from the same family.

The Supreme Court in Prakash V. Phulavati (2016) 2 SCC 36 ruled that the right will be available only when the father and daughter are alive on the date the amendment was made. Daughters cannot resume or question the authority over a property of persons who passed away before September 2005. For the sake of transparency, it may be said that the status of any self-acquired property (as distinct from coparcenary property) of a Hindu male dying intestate remains unchanged, with the daughter being entitled to a simultaneous share in such self-acquired property as the son (in absence of any will to the contrary). Certainly, the amended law will aid those women who are born into Hindu families holding ancestral property. But this law cannot be applied to any self-acquired property. Thus, it may be said that even though there has been an improvement in the Hindu Succession Act, there is still an underlying inequity faced by women heirs. Improper inheritance rights have also afflicted women in the context of dowry and related crime and violence which predominantly relate to cruelty (including torture and harassment), domestic violence (including physical, emotional and sexual assault), abetment to suicide and above all dowry death (bride burning and murder).

Under Section 498 A of the Indian Penal Code (IPC), 1860, matrimonial Cruelty in India is a cognizable, non bailable and non-compoundable offence. Sec. 498A says:
Husband or relative of husband of a woman subjecting her to cruelty. Whoever being the husband or the relative of the husband of a woman, subjects her to cruelty shall be punished with imprisonment for a term, which may extend to three years and shall also be liable to a fine.

Explanation – for the purpose of this section, “cruelty” means:
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demands for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

The section was enacted to combat the menace of dowry deaths. It was introduced in the code by the Criminal Law Amendment Act, 1983 (Act 46 of 1983). By the same Act section 113-A has been added to the Indian Evidence Act to raise presumption regarding abetment of suicide by married woman. The main objective of section 498-A of IPC is to protect a woman who is being harassed by her husband or relatives of husband.

On the other hand, the Protection of Women from Domestic Violence Act, 2005 includes a broad spectrum of abusive and threatening behaviour including physical, emotional, economic and sexual violence as well as intimidation, isolation and coercion. Regarding abetment to suicide Section 306 IPC says, “If any person commits suicide, whoever abets the commission of such suicide, shall be punishable with such imprisonment of either description of a term which may extend to 10 years, and shall also be liable to fine.”

In dowry related cases, abetment assumes alarming significance as abetment includes all acts and attempts to intentionally advise, encourage, or assist in committing suicide. The impact of dowry can leave a woman helpless and desperate, which can cumulate in emotional trauma, abuse, depression and suicide. Last but not the least, the most heinous is the dowry deaths, rather murders. Most dowry deaths occur when the young woman, unable to bear the harassment and torture, commits suicide by hanging herself or consuming poison. Dowry deaths also include bride burning which are generally disguised as accidents or suicide attempts. Apart from bride burning, there are some instances of poisoning, strangulation, acid attacks etc. also for killing the bride.

According to the National Crime Records Bureau (NCRB), 21 dowry deaths are reported across the country every day, but the conviction rate is only 34.7 per cent. The NCRB states that in 2015, as many as 7,634 women died in the country due to dowry harassment. Either they were burnt alive or forced to commit suicide over dowry demand. Data further reveals that after registration of dowry deaths, police have charge sheeted around 93.7 per cent of the accused, of which only 34.7 per cent have been convicted. The remaining cases are still pending in various courts.

Four months after a two-judge Bench of the Supreme Court laid down a set of guidelines to check misuse of the anti-dowry law (Section 498A of the IPC), on 29 November 2017 a three-judge Bench headed by Chief Justice of India has decided to revisit it. The Bench clarified that it can’t frame guidelines on how to investigate dowry harassment cases, saying such guidelines will amount to going beyond statutory provisions.

To recall here the Supreme Court in Rajesh Sharma vs. State of Uttar Pradesh 1265 OF 2017 [Arising out of Special Leave Petition (Crl.) No.2013 of 2017 in its directives put an end to the practice of automatic arrests in cruelty and dowry-related under Section 498A of IPC, that has often been misused to harass innocent family members of husbands named in complaints. It had ordered setting up of committees to scrutinise dowry harassment complaints. The court had issued guidelines while dealing with a matrimonial dispute and after taking into account suggestions by Additional Solicitor General, the 243rd Report of the Law Commission (August,2012), 140th Report of the Rajya Sabha Committee on Petitions (September,2011) and certain earlier decisions of the Supreme Court. On 29 November, the Bench said that these directions will not apply to the offences involving tangible physical injuries or death. The July order was criticised by women’s rights activists, who said it made it difficult to fight the social evil of dowry. On the other hand, some NGOs working for men’s rights had welcomed it, saying it would help to check misuse of the law.

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