MISUSE OF ANTI-DOWRY LAWS: THE OTHER SIDE OF THE COIN


Authors:

Puru Pratap Singh, GNLU

Deepsea Chakraborty, Army Law College, Pune




INTRODUCTION

The emergence of industrialized societies and social awareness amongst people, especially in women regarding their rights of equality and personal liberty has led to a change in the meaning of stability in the context of marriage.[1] The issues of family law reform and women’s rights has been entangled in the polemics of politics. It is impossible to overlook the miseries and hardships suffered by woman of all communities. The life of a woman in our country has always been difficult, due to the social customs. But unfortunately, today the laws are such that a woman can easily misuse it to serve her benefit and purpose.[2] Dowry laws are unfortunately one of them.

CONCEPT OF DOWRY

The Dowry Prohibition Act, 1961 defines dowry as: any property or valuable security given in or settled to be given either directly or indirectly – (1) by one party to the other party in marriage; or (2) by the parents of either party or by any other person to either party to marriage or to any other persons; at or before or after the marriage as consideration. It does not include dower or mahr in cases where Muslim Personal Law applies.[3] In spite of laws against dowries, the practice of dowry deaths and murders continue to take place all across the country, and hence they are largely criticised as being ineffective.[4]

ANTI – DOWRY LAWS AND THEIR MISUSE

The Dowry Prohibition Act, 1961 is the first legislative enactment that marked the foundation of a new legal framework of dowry harassment laws prohibiting the demanding, giving and receiving of dowry. Although this law made dowry illegal, the practice continued unchecked. So, to strengthen the law, new provisions were made to the Indian Criminal Law, namely – Section 498A to Indian Penal Code and Section 198A to the Criminal Procedure Code in the year 1983. Further, Section 304B was added to IPC, which recognised dowry death as a specific punishable offence. The Protection of Women from Domestic Violence Act was passed in 2005, which provided an extra layer of protection.

1) THE DOWRY PROTECTION ACT, 1961

It lays down a proper definition of dowry and various provisions as a measure to eradicate this evil from the society. Dowry in the Act is well-defined as any asset or valuable security given or decided to be given in relation with the marriage.[5] It consolidated the laws against dowry which were passed in certain states.[6] It awards penalty under Section 3 if any individual grants, receives or abets giving or taking of dowry. The punishment provided could be imprisonment for minimum of 5 years and a fine of more than Rs. 15,000 or the worth of dowry received, whichever is more.[7] Agreements on dowry are void ab initio and the dowry received should be transferred to the woman, if they are taken by anyone other than the woman.[8] The burden of proving innocence is on individuals charged and not the woman or her family.[9]

The Amendment Act of 1986 introduced Sections 8A and 8B. Section 8A states that the burden of proving that one has not committed the offence is on the person charged. However, the Supreme Court in the case of Balram Kumavat v. Union of India[10] held that conviction cannot be based on such presumptions without offence being proved beyond reasonable doubt. Nowadays, more individuals especially, husbands are committing suicide fearing false complaints under this Act.

2) SECTION 498A OF INDIAN PENAL CODE, 1860: AKA LEGAL TERRORISM

Section 498A of IPC was specifically included in 1983 to curb the peril of dowry. It awards punishment for 3 years and a fine. Some women often use it as a weapon than to shield themselves. Supreme Court has held that matters under section 498-A, IPC are civil and private in nature.[11] Therefore, in such matters it is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process.[12] The Justice Malimath Committee report says, “The harsh law, far from helping the genuine mistreated women, has become a source to blackmail and harass husbands and his relatives. Once a complaint (FIR) is lodged with the Police under Section 498A/406 IPC, it becomes an easy tool in the hands of the Police to arrest or threaten to arrest the husband and relatives named in the FIR without even considering the worth of the allegations and making a preliminary investigation.”

Is Section 498A IPC fit for the Indian Society?

Section 498A: 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 such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.[13]

In the case of Onkar Nath Mishra v. State (NCT of Delhi),[14] the SC recognised that “Section 498-A IPC was introduced with the objective to combat the menace of dowry deaths and harassment to a woman at the hands of her husband or his relatives. Nevertheless, the provision should not be used as a device to achieve tilted motives”.

There are several reasons as to why this Section, although being a relevant one, is unfit for the Indian society, at least in the current form and procedure. First and foremost, this offence under Section 498A is a non-bailable one, and no investigation is required prior to arresting the accused. This is probably the biggest reason why this Section is misused so frequently. Furthermore, an offence under this Section is a non-compoundable offence, thus leaving no room for reconciliation between the two parties.

In the case of Preeti Gupta Vs. State of Jharkhand,[15]the SC observed “a serious re-look of entire Section 498A is required. All of these recommendations are in against the rigidity of this provision. The simple principle has been revealed here that if procedural laws are made too hard then object of the substantive law will be frustrated. If chance of reconciliation is not given then the whole institution of family will come to an end. But cardinal rule of family law is to make the family not to break the family. The aim of this provision was mainly to make a society free from family disputes. In writ petition about the constitutional validity of Section 498A, the SC said, merely because the provision was constitutional and intra vires, did not give a license to unscrupulous persons to wreck personal vendetta or unleash harassment.”

3) THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005: BIASED AGAINST MALE

The Protection of Women from Domestic Violence Act, 2005 was passed with the idea of providing a civil law remedy for safeguarding the women from domestic violence. It covers all forms of physical, emotional, verbal, financial and sexual abuse and forms a subset of the anti-dowry laws.[16] Section 3 of this Act encompasses all forms of harassment, damage and harms imposed to force a woman to meet an unlawful demand for dowry.[17]

Some of the provisions of the Act are biased in favour of women and they are being misused by them greatly. Under this Act, the aggrieved party is always “a woman”, man does not fall within the purview of such definition. The worst part of the Act is Section 32(2) which states that on the sole testimony of the aggrieved party, that is the woman, the court may conclude that the offence has been committed by the accused. Hence, it is biased in favour of women and against men.

HOW TO TACKLE THE MISUSE OF THESE LAWS?

The Indian government and jurisprudence keep on adding inputs to strengthen the women, but men are not abandoned by law. Justice is always chosen over injustice. So, the men whose reputation is defamed with false accusations can opt for some legal measures for recovery and seek protection against Section 498A IPC. Here they are:

· The husband can file a case of defamation under Section 500 of the Indian Panel Code.

· Under Section 9 of CrPC, the husband can file an application for damage recovery which he and his family have undergone due to the false accusations of cruelty and harassment.

· Section 182 of IPC, 1860 is one of the prevalently used measures against false 498A cases. When the authority finds that the averments made were false, the culprit is subjected to imprisonment of 6 months or fine or both under this Section. The person will be charged on the grounds of misleading the judiciary with false information.

Scope of Improvement

As observed, there is an urgent need for the anti-dowry laws to be re-examined with special attention to the needs of our society. Key issues that need to be dealt with are the non-bailable and the non-compoundable nature of the offence. Considering that the key motive behind the misuse of these laws is the mental harassment of the husband and his family, changing the nature of the offence, will directly result in the reduction of false accusations

[1] Paras Diwan, Modern Hindu Law, p. 63-64, (2007). [2] Lalsa Mohini, Legitimacy of Section 498A of Indian Penal Code, Cri. LJ, Vol-117, p.127, (2011). [3] C.N. Shankar Rao, Indian Social Problems. S. Chand. pp. pp, pg.238, (2019). [4] Purna Manchandia, Practical Steps towards Eliminating Dowry and Bride-Burning in India, Tul. J. Int’l & Comp. L. 13: 305-319, (2005). [5] Section 2, Dowry Prohibition Act, 1961. [6] The Dowry Prohibition Act, 1961 repealed the earlier local laws e.g. The Andhra Pradesh Act, 1958 and The Bihar Dowry Restraint Act, 1950. S. Krishnamurthy, The Dowry Problem: A Legal and Social Perspective, Ch. The Roots of Dowry, Bangalore: IBH Prakashana, p.66, (1981). 7 Section 3(1), Dowry Prohibition Act, 1961. 8 Sections 5 and 6, Dowry Prohibition Act, 1961. 9 Section 8A, Dowry Prohibition Act, 1961. 10 AIR 1996 SC 2184. [11] Ram Gopal Vs. State of MP, SCALE 711, (2010). [12] G Sagar Suri Vs. State of UP, 2 SCC 636, (2002). [13] Section 498A, Indian Penal Code, 1860. [14] 2 SCC 561, (2008). [15] SC 3363, (2010). [16] Suman Nalwa and Hari Dev Kohli, Law Relating to Dowry, Dowry Death, Cruelty to Women & Domestic Violence. New Delhi: Universal Law Pub. Co., pp.362-364, (2011). [17] Ibid.

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