LOOPHOLES IN THE ANTI-DOWRY LAWS IN INDIA AND THOROUGH ANALYSIS OF THE INTERNATIONAL LAWS ON DOWRY

Authors:

Chetana Prakash, SLS, Hyderabad

Manasi Pawaskar, GLC, Mumbai


Edited by: Puru Pratap Singh, GNLU


Introduction:-

In most of the civilisations around the globe, women have been oppressed since time immemorial. India is one of the oldest civilisations of the world and the roots of gender based discrimination date back to the arrival of the Aryans. The blind faith in texts such as the Dharmashastras and Dharmasutras add to the problem. Another issue that this blind faith gave birth to was the problem of dowry which can be traced back to the gotra system and the forms of ‘valid’ marriages of the Ancient Hindu Society. In the modern era, even though there are steps being taken to tackle this social evil, the problem is nowhere near its end. Following is an analysis of the existing loopholes in the rules which give this issue a chance to continue to be a part of today’s society.

Loopholes that exist in the anti-dowry laws in India:-

It is an undeniable fact that dowry gives rise to several issues such as physical as well as mental trauma and hence, it needs to eradicated. The term dowry has been defined under Section 2 of the Dowry Prohibition Act, 1961. However, in a layman’s term language, the term dowry refers to any kind of perk (in cash or in kind) that is given by the bride’s family to the groom’s family in exchange for marrying the girl is termed as dowry and is demanded by the groom’s family. This social arrangement many a times leads to mental and physical harassment of the woman at the hands of the husband and his family. With the passage of time, a number of anti-dowry laws have been incorporated in India like the Dowry Prohibition Act, 1961, Indian Penal Code, 1860 and Indian Evidence Act, 1872. Although the laws were incorporated with a view to put an end to dowry deaths/suicides but the laws seem to be flawed when given a closer introspection. Following are a few provisions that need to be revisited-

One of the biggest loopholes in the Dowry Prohibition Act is the allowance of giving of gifts. Now the general concept of gifts goes with the understanding that they are given willingly without any ulterior motive. The main aim of the Dowry Act is to prevent the forcible giving of money or any other item as per the demand of the groom’s family, so as to not incentivise marriage for the wrong reasons. Section 498A of IPC & Section 113A of the Evidence Act read together and Section 304B of the IPC & Section 113B of the Evidence Act read together lead to the following observations:

1. There is presumption of cruelty/harassment to be the sole reason for suicide/dowry death and the other factors that might be responsible for suicide/dowry death has been ignored. The definition of cruelty is nowhere given and varies from person to person. Hence such presumption is arbitrary and unreasonable. The subjectivity in the definition of cruelty means that for every person the degrees of cruelty vary. As a result, one thing may be classified as cruel for one and not for the other. Thus such presumption, in every case, of applicability of the provision of cruelty is unreasonable.

2. A limitation period of 7 years has been allotted to cases of suicide/dowry death which is unreasonable. Even though this period is not fixed and is open to extensions, the same are painstakingly difficult to seek and mentally damaging to the victim. What is even more peculiar is that if prima facie that death has been due to natural causes, a hurried investigation might not reveal the truth, and the problem aggravates.

3. There is no limitation as to the filing and disposal of cases related to dowry death/suicide which leads to pendency of cases to an unreasonable extent and it's a very well established principle of law that justice delayed is justice denied. Also, the offence under Section 498A of the IPC is non-compoundable in nature which washes away any possibility of genuine reconciliation by the litigating parties.

These are the loopholes that exist and need to be taken care of for an effective justice system with regards to dowry.

International Laws Related to Dowry

In some countries like China[1] and Thailand, the groom gives their bride’s family cash on the day before wedding as a sign of gratitude as their view about marriage is based on financial stability. Dowry is still practiced on a large number in certain regions of Europe, South Asia and the Middle East, northern part of Africa and among some communities in Britain.

In Asia, dowry system is most commonly practiced in India, Pakistan and Bangladesh. However, dowry system is illegal in almost all the countries but still legal in Britain[2]. Pakistan has five separate laws (first being passed in 1984 and the last being passed in 2008) making the dowry system illegal. In Pakistan, dowry is called ‘Jahez’ in Arabic. West Pakistan Dowry (Prohibition of Display) Act, 1967; Dowry and Bridal Gifts (Restriction) Act, 1976 and the Muslim Personal Family Laws Ordinance, 1961[3] are some laws passed by Pakistan.[4] Violation of the act invites imprisonment for one year or fine up to 5000 or both or imprisonment up to six months or fine up to Rs.10000 or both.

Greece also amended its Family Laws in 1983 through legal reforms to make dowry illegal[5]. A petition in parliament has been moved to make dowry illegal as part of country’s Family Violence Protection Act in Australia also. Kenya’s marriage bill which was implemented in 2012 also bans any dowry payments.

The Social Customs and Practices Act also banned dowry in Nepal in 2009. The violator of this will face punishments of up to three months in jail or a fine of 3000 Nepalese rupees, or about 1,875 rupees.[6] Still Nepali people of the Madhesi society freely welcome dowry as a right to the groom’s side. Even highly educated people in Nepal accept dowry without any hesitation.

The original practice in Bangladesh was ‘Pawn’ which was gradually replaced by the dowry which is known as ‘Joutuk’. There is a rise in the rate of the dowry deaths in Bangladesh. Bangladesh has taken inspiration from Indian anti-dowry laws. Dowry Prohibition Act, 1980; Dowry Prohibition (Amendment) Ordinance, 1982 and Dowry Prohibition (Amendment) Ordinance, 1986 are the laws which prohibit dowry in Bangladesh.[7] Violators of the law will face punishments with imprisonment which may extend to five years and shall not be less than one year, or fine or both depending on the court. The offence of giving, taking or demanding is a non-cognizable offence under section 8 of the said act. Section 11 of the Prevention of Repression of Women and Children Act, 2000 says that if the husband of the women or relatives or parents of the husband cause death or attempt to cause death to that woman for dowry or cause serious or simple hurt to her than that relative or in-laws or guardian 1) shall be sentences to death for causing death or imprisonment for life for attempting to cause death and will be liable for a fine in both cases, 2) shall be punishable with rigorous life imprisonment or minimum five years or maximum twelve years rigorous imprisonment and will be liable for fine for causing serious hurt or injury 3) shall be punishable with minimum one year and maximum three years of rigorous imprisonment and will be liable for a fine for causing simple hurt (fine can be imposed up to Tk.50,000). But the law does not have any punishment for the misuse of the said act. Hence, it is frequently used by women to harass in-laws and the husband. The system of dowry is still being carries out in many countries like Serbia, Egypt, Afghanistan, Sri Lanka, Iran, Turkey, Azerbaijan, Tajikistan, Morocco and Bosnia.

Conclusion:-

It is a very well-known fact that dowry is a social evil which is responsible for mentally and physically tortured wives in various countries around the globe. Even though there are laws in place that tend to this issue, but it can undoubtedly be said that these laws are not as efficient as they were intended to be. The scope of dowry laws, which include both substantive laws and procedural laws, has to be restricted. The wide ambit of the law is necessary to an extent where it cannot be misused. Proper guidelines have to be laid down, after a detailed study of each and every aspect of the law when it comes to dowry because it is a social evil which affects the basic pillar of any society, the family and completely destroys the same.

[1] https://www.herworld.com/weddings/ideas-advice/pin-jin-or-dowry-what-you-should-know-about-chinese-wedding-tradition/ [2] https://www.indy100.com/article/dowry-outlawed-in-all-these-countries-but-still-legal-in-britain--x1HtqfYSUx [3] https://www.dawn.com/news/1318742 . [4] https://en.wikipedia.org/wiki/Dowry_death . [5] https://www.nytimes.com/1983/01/26/world/around-the-world-greece-approves-family-law-changes.html [6]http://therisingnepal.org.np/news/12207#:~:text=The%20Social%20Customs%20and%20Practices,deteriorated%20to%20a%20large%20extent. [7] Ibid.


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