Dowry law in India
Encyclopedia
Payment of a dowry
, gift—often financial, has a long history in many parts of the world. In India, the payment of a dowry was prohibited in 1961 under Indian civil law and subsequently by Sections 304B and 498a of the Indian Penal Code were enacted to make it easier for the wife to seek redress from potential harassment by the husband's family. Dowry laws have come under criticism as they have been misused by women and their families.
In India, there are civil laws, criminal laws and special legislative acts against the tradition of Dowry. Someone accused of taking dowry is therefore subject to a multiplicity of legal processes.
, this Act prohibits the request, payment or acceptance of a dowry, "as consideration for the marriage". where "dowry" is defined as a gift demanded or given as a precondition for a marriage. Gifts given without a precondition are not considered dowry, and are legal. Asking or giving of dowry can be punished by an imprisonment of up to six months, or a fine of up to Rs. 15000 or the amount of dowry whichever is higher and imprisonment up to 5 years. It replaced several pieces of anti-dowry legislation that had been enacted by various Indian states.
Section 4 of the said Act states:
However, as per section 3 of the Act, both the giver and the receiver are sought to be punished.
Offences under this section are bailable and cognizable.
It reads:
This section is non-bailable,non-compoundable (i.e. it cannot be privately resolved between the parties concerned) and cognizable.
Prosecution for a non-compoundable offense can only be quashed by a High Court of India under its powers under section 482 of Criminal Procedure Code of India. Usually, cases under 498A are quashed by mutual agreement when the husband and wife reconcile with each other, or agree to divorce by mutual consent.
After registration of an FIR for a cognizable, non-bailable offense, the police in India can arrest any and all of the accused named in the complaint.
Status of Second wife under Anti-Dowry Law- I [2008] DMC 279- Bombay High Court- Justice C.L. Pangarkar —Ranjana Gopalrao Thorat Vs. State of Maharashatra- Hindu Marriage Act,1955—Section 17—Bigamy—Second wife cannot assume a character as wife--- It is no marriage in eyes of law—[Pg.280 {Para6}]-- Indian Penal Code—Section 498A—cruelty—word “relative”—meaning of- “Person who is related to husband either by blood or marriage—Thus she does not fall within scope of Section 498A-- Indian Penal Code— Pg.280 {Para6}]
"Every Suicide After Marriage cannot be presumed to be Suicide due to Dowry Demand"- 2011[1] JCC Page No.668- In The High Court of Delhi- Hon’ble Mr. Justice Shiv Narayan Dhingra- Dated: - 2 December 2010- Rani Vs. State of NCT of Delhi- Criminal Appeal No. 93 of 2004- Indian Penal Code, 1860- Section 304B/ 498A Read With Section 34- Conviction- allegation of demanding of Rs.50,000/- and scooter were vague in nature- Whether it was done by husband, mother-in-law or father-in-law- Answers to all these questions are absent—Ingredients of Section 304B IPC were totally absent- Unnatural Death can be called a dowry death only if after making a demand made by accused is not fulfilled by perpetuation of cruelty upon the victim- The list of dowry show that both parties belonged to poor strata of society- No evidence, whatsoever was collected by police about the real facts- Every suicide after marriage cannot be presumed to be a suicide due to dowry demand- The tendency of the court should not be that since a young bride has died after marriage, now somebody must be held culprit and the noose must be made to fit some neck.
For the purpose of this act, Domestic Violence includes the demand for dowry:
This Act empowered the lower courts to issue "protection orders" on the complaint of a woman against her male relatives. The protection orders could include restraining orders on the husband and others, monetary compensation, and residence orders.
Though it is a Civil remedy, violation of protection orders result in Criminal penalties (including imprisonment).
A number of US men who have come to India to marry Indian nationals have been arrested and charged with crimes related to dowry extraction. Many of the charges stem from the US citizen’s inability to provide an immigrant visa for his prospective spouse to travel immediately to the United States. http://travel.state.gov/travel/cis_pa_tw/cis/cis_1139.html
The courts sometimes order the US citizen to pay large sums of money to his spouse in exchange for the dismissal of charges. The courts normally confiscate the American’s passport, and he must remain in India until the case has been settled.http://travel.state.gov/travel/cis_pa_tw/cis/cis_1139.html
It is stated in Travel Advisory by US, since the police may arrest anyone who is accused of committing a crime (even if the allegation is frivolous in nature), the Indian criminal justice system is often used to escalate personal disagreements into criminal charges. This practice has been increasingly exploited by dissatisfied business partners, contractors, estranged spouses, or other persons with whom the US citizen has a disagreement, occasionally resulting in the jailing of US citizens pending resolution of their disputes. At the very least, such circumstances can delay the US citizen's timely departure from India, and may result in an unintended long-term stay in the country. Corruption in India, especially at local levels, is a concern, as evidenced by Transparency International’s Corruption Perception Index of 3.5, ranking India in 72nd place of the world’s countries.
In a well publicized case, Dr. Balamurali Ambati
, who earned his MD at age 17, and his family were detained in India for over three years in a suit related to alleged dowry
demands by the family for his brother's wife Archana, which delayed Dr. Ambati's entry to the ophthalmology
program for two years, leaving him to begin his residency in 1998. All charges against him were dismissed in October 1996 and all his family members were acquitted in June 1999.
During the course of the trial the Ambatis produced a tape in which the father of Archana demanded US $500,000 to drop all the charges although the details of this particular case are still debated in India.
The Centre for Social Research
India has released a research report http://www.csrindia.org/projects/research_Section%20498A.html opposing amendments to section 498A. According to this report, in the studied cases there were no convictions based solely on section 498A. The report however states that 6.5 percent of the studied cases were falsified. They also state that many people believe the law has been abused by "educated and independent minded women." A police official asserted that in his district one-third of dowry murder cases were found totally false by the police. http://timesofindia.indiatimes.com/cms.dll/html/uncomp/articleshow?msid=136812.
However, on December 17, 2003, the then Minister of State for Home Affairs, I.D. Swami said: “There is no information available with the Government to come to the conclusion that many families in India are suffering due to exaggerated allegations of harassment and dowry cases made by women against their husbands and other family members involving them in criminal misappropriation and cruelty.” http://164.100.24.219/annex/200/AS230.htm
On 20 July 2005, Justices Arijit Pasayat
and H.K. Seema of the Indian Supreme Court declared Section 498A to be constitutional."The object is to strike at the root of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not an assassin's weapon. If [the] cry of "wolf" is made too often as a prank, assistance and protection may not be available when the actual wolf appears," the Bench said. http://www.hindu.com/2005/07/22/stories/2005072202631500.htm.
In August 2010, the Supreme Court asked the Government of India to amend the Dowry Laws to prevent their misuse.
In February 2011, the Law Commission of India is considering grounds to recommend amendments to IPC 498A.
Even temporary imprisonment followed by acquittal leads to loss of social standing.
As per the judgements given by many courts in India including supreme court, once a women files a false 498a case against her husband or her relatives she had caused cruelty to the other party and the husband can claim divorce and it is assured.
A women who files a false 498a case against the husband or husbands relatives finds its difficult to get remarried as the other person feels that he might also be in the same position if he marries her.
Dowry
A dowry is the money, goods, or estate that a woman brings forth to the marriage. It contrasts with bride price, which is paid to the bride's parents, and dower, which is property settled on the bride herself by the groom at the time of marriage. The same culture may simultaneously practice both...
, gift—often financial, has a long history in many parts of the world. In India, the payment of a dowry was prohibited in 1961 under Indian civil law and subsequently by Sections 304B and 498a of the Indian Penal Code were enacted to make it easier for the wife to seek redress from potential harassment by the husband's family. Dowry laws have come under criticism as they have been misused by women and their families.
In India, there are civil laws, criminal laws and special legislative acts against the tradition of Dowry. Someone accused of taking dowry is therefore subject to a multiplicity of legal processes.
Dowry
As per section 2 of the Dowry Prohibition ActStridhan
Stridhan is, generally speaking, what a woman can claim as her own property within a marital household. It may include her jewelry (gifted either by her family or by her in-laws), gifts presented to her during the wedding or later, and the dowry articles given by her family.The Dowry Prohibition (DP) Act
Introduced and taken up by then Indian law minister Ashoke Kumar SenAshoke Kumar Sen
Ashoke Kumar Sen was an Indian barrister, a former Cabinet minister of India, and an Indian parliamentarian....
, this Act prohibits the request, payment or acceptance of a dowry, "as consideration for the marriage". where "dowry" is defined as a gift demanded or given as a precondition for a marriage. Gifts given without a precondition are not considered dowry, and are legal. Asking or giving of dowry can be punished by an imprisonment of up to six months, or a fine of up to Rs. 15000 or the amount of dowry whichever is higher and imprisonment up to 5 years. It replaced several pieces of anti-dowry legislation that had been enacted by various Indian states.
Section 4 of the said Act states:
However, as per section 3 of the Act, both the giver and the receiver are sought to be punished.
IPC Section 406
This section, for offences related to Criminal Breach of Trust, is usually applied in investigation of Stridhan recovery from the husband and his family.Offences under this section are bailable and cognizable.
IPC Section 304B
This Section of the Indian Penal Code was inserted by a 1986 amendment. The wording of the law states:IPC Section 498A
Section 498A was inserted into the Indian Penal Code in 1983 via an amendment.It reads:
This section is non-bailable,non-compoundable (i.e. it cannot be privately resolved between the parties concerned) and cognizable.
Prosecution for a non-compoundable offense can only be quashed by a High Court of India under its powers under section 482 of Criminal Procedure Code of India. Usually, cases under 498A are quashed by mutual agreement when the husband and wife reconcile with each other, or agree to divorce by mutual consent.
After registration of an FIR for a cognizable, non-bailable offense, the police in India can arrest any and all of the accused named in the complaint.
Status of Second wife under Anti-Dowry Law- I [2008] DMC 279- Bombay High Court- Justice C.L. Pangarkar —Ranjana Gopalrao Thorat Vs. State of Maharashatra- Hindu Marriage Act,1955—Section 17—Bigamy—Second wife cannot assume a character as wife--- It is no marriage in eyes of law—[Pg.280 {Para6}]-- Indian Penal Code—Section 498A—cruelty—word “relative”—meaning of- “Person who is related to husband either by blood or marriage—Thus she does not fall within scope of Section 498A-- Indian Penal Code— Pg.280 {Para6}]
"Every Suicide After Marriage cannot be presumed to be Suicide due to Dowry Demand"- 2011[1] JCC Page No.668- In The High Court of Delhi- Hon’ble Mr. Justice Shiv Narayan Dhingra- Dated: - 2 December 2010- Rani Vs. State of NCT of Delhi- Criminal Appeal No. 93 of 2004- Indian Penal Code, 1860- Section 304B/ 498A Read With Section 34- Conviction- allegation of demanding of Rs.50,000/- and scooter were vague in nature- Whether it was done by husband, mother-in-law or father-in-law- Answers to all these questions are absent—Ingredients of Section 304B IPC were totally absent- Unnatural Death can be called a dowry death only if after making a demand made by accused is not fulfilled by perpetuation of cruelty upon the victim- The list of dowry show that both parties belonged to poor strata of society- No evidence, whatsoever was collected by police about the real facts- Every suicide after marriage cannot be presumed to be a suicide due to dowry demand- The tendency of the court should not be that since a young bride has died after marriage, now somebody must be held culprit and the noose must be made to fit some neck.
Domestic Violence Act (2005/2006)
The above being criminal remedies, a civil remedy was brought into the picture in 2005 (amended in 2006). This was called the "Protection of Women from Domestic Violence Act".For the purpose of this act, Domestic Violence includes the demand for dowry:
This Act empowered the lower courts to issue "protection orders" on the complaint of a woman against her male relatives. The protection orders could include restraining orders on the husband and others, monetary compensation, and residence orders.
Though it is a Civil remedy, violation of protection orders result in Criminal penalties (including imprisonment).
Criticism by Judiciary
The Supreme Court of India and the various High Courts have noted the gross misuse of IPC 498A in various judgments:- Supreme court declared 498a as "Legal Terrorism" while giving judgment in matter of Sushil Kumar Sharma Vs. Union of India (UOI) and Ors - Jul 19 2005 (Citation: JT 2005 (6) SC 266).
Criticism outside India
Several reports of the abuse of Section 498A have involved couples based outside India especially in the US & Canada. The United States Department of State has published the following travel warning:A number of US men who have come to India to marry Indian nationals have been arrested and charged with crimes related to dowry extraction. Many of the charges stem from the US citizen’s inability to provide an immigrant visa for his prospective spouse to travel immediately to the United States. http://travel.state.gov/travel/cis_pa_tw/cis/cis_1139.html
The courts sometimes order the US citizen to pay large sums of money to his spouse in exchange for the dismissal of charges. The courts normally confiscate the American’s passport, and he must remain in India until the case has been settled.http://travel.state.gov/travel/cis_pa_tw/cis/cis_1139.html
It is stated in Travel Advisory by US, since the police may arrest anyone who is accused of committing a crime (even if the allegation is frivolous in nature), the Indian criminal justice system is often used to escalate personal disagreements into criminal charges. This practice has been increasingly exploited by dissatisfied business partners, contractors, estranged spouses, or other persons with whom the US citizen has a disagreement, occasionally resulting in the jailing of US citizens pending resolution of their disputes. At the very least, such circumstances can delay the US citizen's timely departure from India, and may result in an unintended long-term stay in the country. Corruption in India, especially at local levels, is a concern, as evidenced by Transparency International’s Corruption Perception Index of 3.5, ranking India in 72nd place of the world’s countries.
In a well publicized case, Dr. Balamurali Ambati
Balamurali Ambati
Balamurali "Doogie Howser" Ambati is an Indian-American ophthalmologist, educator, and researcher, currently working at the University of Utah. In 1995, he entered the Guinness Book of World Records as the world's youngest doctor, at the age of seventeen....
, who earned his MD at age 17, and his family were detained in India for over three years in a suit related to alleged dowry
Dowry
A dowry is the money, goods, or estate that a woman brings forth to the marriage. It contrasts with bride price, which is paid to the bride's parents, and dower, which is property settled on the bride herself by the groom at the time of marriage. The same culture may simultaneously practice both...
demands by the family for his brother's wife Archana, which delayed Dr. Ambati's entry to the ophthalmology
Ophthalmology
Ophthalmology is the branch of medicine that deals with the anatomy, physiology and diseases of the eye. An ophthalmologist is a specialist in medical and surgical eye problems...
program for two years, leaving him to begin his residency in 1998. All charges against him were dismissed in October 1996 and all his family members were acquitted in June 1999.
During the course of the trial the Ambatis produced a tape in which the father of Archana demanded US $500,000 to drop all the charges although the details of this particular case are still debated in India.
Criticism by Men's Rights movements
According to the Men's Rights movement in India, the laws suffer from the following shortcomings:- Gender Bias: The laws do not recognize cruelty and domestic violence against men. The police in India almost never registers complaints of extortion or violence against men in a domestic relationship, whereas registering a complaint under 498A (where a woman is the aggrieved party) is widespread.
- Vague definitions of Dowry and Stridhan.
- Presumption of guilt. IPC 304B assumes that if the accidental death of a wife happens within 7 years of marriage, it should be assumed to be murder, unless the husband can prove his innocence. Similarly, the Dowry Prohibition Act (section 8-A) states that "Where any person is prosecuted for taking or abetting the taking of any dowry under Sec. 3, or the demanding of dowry under Sec.4, the burden of proving that he had not committed an offence under those sections shall be on him."
- Duplication of existing laws: Laws already exist to deal with offences against intimidation, violence, extortion and murder. A "dowry death" can be considered a murder, and a demand for dowry can be considered extortion under existing laws. The additional laws, instead of reforming the police, mostly serve to shift the burden of proof onto the accused.
- A corrupt police force which often does no investigation before arresting innocent people.
- Human Rights violations: In most cases involving Non-Resident Indians, their passports are impounded and they are restricted from traveling outside the country.
- No penalties, in practice, for false complaints or for perjury.
Police Circulars
The Ministry of Home Affairs, as well as various State governments, have issued notifications and circulars which limit the arbitrary arrests made by Police during investigation of dowry-related offences.Demands for Amending the law
The Malimath committee in 2003 proposed making amendments to this section although such amendments were opposed by Women's groups.The Centre for Social Research
Centre for Social Research
The Centre for Social Research , established in 1983, is an advocacy group for women based in New Delhi, India. The group tries to bring attention and justice to all marginalized and underprivileged areas of society...
India has released a research report http://www.csrindia.org/projects/research_Section%20498A.html opposing amendments to section 498A. According to this report, in the studied cases there were no convictions based solely on section 498A. The report however states that 6.5 percent of the studied cases were falsified. They also state that many people believe the law has been abused by "educated and independent minded women." A police official asserted that in his district one-third of dowry murder cases were found totally false by the police. http://timesofindia.indiatimes.com/cms.dll/html/uncomp/articleshow?msid=136812.
However, on December 17, 2003, the then Minister of State for Home Affairs, I.D. Swami said: “There is no information available with the Government to come to the conclusion that many families in India are suffering due to exaggerated allegations of harassment and dowry cases made by women against their husbands and other family members involving them in criminal misappropriation and cruelty.” http://164.100.24.219/annex/200/AS230.htm
On 20 July 2005, Justices Arijit Pasayat
Arijit Pasayat
Justice Arijit Pasayat is a retired judge of the Supreme Court of India. He hails from Orissa where he practised in matters relating to Taxation and Constitutional affairs before the Orissa High Court-Career:...
and H.K. Seema of the Indian Supreme Court declared Section 498A to be constitutional."The object is to strike at the root of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not an assassin's weapon. If [the] cry of "wolf" is made too often as a prank, assistance and protection may not be available when the actual wolf appears," the Bench said. http://www.hindu.com/2005/07/22/stories/2005072202631500.htm.
In August 2010, the Supreme Court asked the Government of India to amend the Dowry Laws to prevent their misuse.
In February 2011, the Law Commission of India is considering grounds to recommend amendments to IPC 498A.
Social Repercussions
In urban India, the majority of families have inadequate knowledge regarding section 498A of the Indian Penal Code, 1860.Even temporary imprisonment followed by acquittal leads to loss of social standing.
As per the judgements given by many courts in India including supreme court, once a women files a false 498a case against her husband or her relatives she had caused cruelty to the other party and the husband can claim divorce and it is assured.
A women who files a false 498a case against the husband or husbands relatives finds its difficult to get remarried as the other person feels that he might also be in the same position if he marries her.
See also
- Gender discrimination in IndiaGender discrimination in IndiaIn India, discriminatory attitudes towards women have existed for generations and affects women over their lives. Although the constitution of India has granted women equal rights but gender disparities remains....
- Uniform civil code of India
- Women's RightsWomen's rightsWomen's rights are entitlements and freedoms claimed for women and girls of all ages in many societies.In some places these rights are institutionalized or supported by law, local custom, and behaviour, whereas in others they may be ignored or suppressed...
- Suhaib IlyasiSuhaib ilyasiSuhaib Ilyasi is a producer, director and the host of India’s first reality TV show, India's Most Wanted. He is one of the pioneers of Indian television journalism and specially known for his anti-crime activism on Indian television. Suhaib Ilyasi is the founder and the Executive Chairperson of...
- Anticipatory bailAnticipatory bailUnder Indian criminal law, there is a provision for anticipatory bail under Section 438 of the Criminal Procedure Code. This provision allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence....
- Bride priceBride priceBride price, also known as bride wealth, is an amount of money or property or wealth paid by the groom or his family to the parents of a woman upon the marriage of their daughter to the groom...
External links
- Institutionalisation and Expansion of Dowry System in Colonial North India
- http://www.498a.org