CHALLENGES IN THE IMPLEMENTATION OF LAWS RELATED TO DOWRY DEATH
Author: Sristi G. Shetty
School of Law, Christ (deemed to be University)
3rd year BBA LLB (Hons.)
I. ABSTRACT
Women in this generation are breaking all the societal barriers and emerging as great personalities in every field. From famous activists to great entrepreneurs they have been struggling to break stereotype mindset of this male dominated society. But unfortunately, at some stage of their life, many women have faced or are still facing abuse or violence against them. One such abuse faced by many women at common is dowry. Payments through different medium between two families at the time of marriage existed during the history of many countries which is still prevailing in many areas of developing countries. These payments can be more than enough to affect women and create imbalance in the society’s distribution of wealth. Although the concept of dowry during marriage is illegal in India, it is still prevalent and unfortunately its eventually becoming expensive. Evidence have shown that the transfer of wealth in the form of dowry from the brides’ family to bridegroom and for his family has been steadily increasing from past few decades. Most of these young women who have been the prey for dowry death have either committed suicide due to continuous abuse and harassment, or through bride-burning.
This paper begins from focusing on the prevalence of dowry from ancient time and magnitude of marriage payment or dowry in India. It then focuses on laws prevailing in India regarding dowry, its effect and interpretation of laws. This paper will also focus on a concept which is already followed in many countries known as brideprice which is vice versa of dowry where bridegroom pays amount to bride and discusses on difference between brideprice and dowry. The paper will also be discussing about the Scio-legal impact of dowry and laws related to dowry. At later stage this paper will be focusing on the need for proper implementation of the existing laws on dowry and problems faced in implementing these laws. It takes an objective look into the legal strategies in this field of dowry death and also addresses some welcome changes which might alter the course of the concerned law.
II. KEY WORDS
Abuse, Bride-burning, Bride price, D
owry, Dowry death, Harassment, Violence.
owry, Dowry death, Harassment, Violence.
III. INTRODUCTION
Violence against women has been a serious challenge in our society. This violence against women either in work place, or at home is reducing or supressing their true potential. Though many laws in present century is trying to bring equality among both men and women in almost all aspects but it is also true that the disparity amongst the two still persists in the society. Statutory provisions were formulated and enacted to safeguard the rights of weaker sections of the society. Despite all these provisions in the constitution, the women in our country continue to suffer, due to lack of awareness about their rights, illiteracy and oppressive practices and customs being followed blindly from decades. Quite often women encountered violence of one sort or another both in their homes and outside society, which is directly linked with their unequal positions in a patriarchal society, and cutting them across both class and community.[1]The first few categories of violence focused in India were rape, and murder of innocent bride for dowry.[2]It was later realized by women community that these were the most brutal expressions of widespread phenomenon of domestic violence, which also includes wife beating, cruelty, torture, mental agony and humiliation.[3] Such incidents and experience made the women’s groups demand that wife abuse to also be treated as an offence.[4]
It is an ancient or age old custom being followed in India for a bride’s family to give dowry to the groom and his family. [5]As Hindu law entitles women to fewer property rights than men, the practice of giving dowry is one of the attempt to redress inequity by providing women with a share of the family, but the attitude of society towards this practice or evil is neither uniform nor consistent as this practice still prevails.[6]
“The term dowry death, also known as bride burning, is used to describe murders of
young brides resulting from a dispute over their dowry.”[7] Most of these killings are often staged as accidental deaths which caused by mysterious kitchen fires, but victims are also found after having been hanged or poisoned and unfortunately they couldn’t have been saved because of corrupt system leading to poor investigation.[8]Unfortunately dowry death is a result of a very unique form of violence which is suffered by many Indian women.[9]
young brides resulting from a dispute over their dowry.”[7] Most of these killings are often staged as accidental deaths which caused by mysterious kitchen fires, but victims are also found after having been hanged or poisoned and unfortunately they couldn’t have been saved because of corrupt system leading to poor investigation.[8]Unfortunately dowry death is a result of a very unique form of violence which is suffered by many Indian women.[9]
Undoubtedly, it is a proven fact that there are some limits to the extent to which changes can be expected in the society by these laws.[10]Attempts at bringing about changes in the status of women either through legislation or judicial activism can achieve only little success without a simultaneous movement to change the social and economic structures and the culture of society which has always been unequal towards women.[11]
The ancient practices, beliefs which led to the practice of dowry system in our country and how it turned out to be a evil practice in the society, the existing legal provisions and the social outlook on how these laws are being used and the challenges in implementing these laws will be discussed in this paper.
IV. HISTORY
Most societies, at some point in their history, have had the practice of giving and taking dowry as matter of pride.[12]Parents of brides will have to pay either in the form of money or gifts as per the demands made by the grooms family. “These marriage payments come in various forms and sizes but can be classified into two broad categories: transfers from the family of the bride to that of the groom, broadly termed as “dowry,” or from the groom’s side to the bride’s, broadly termed as brideprice.”[13]However, in terms of population numbers, dowry has played a more significant role, because the convention of dowry has occurred mainly in Europe and Asia from an, where more than 70 percent of the world’s population resides and this practice of dowry was a common ritual.[14]
The custom of brideprice dates back as far as 3000 BCE. The ancient civilizations of Egyptians, Mesopotamians, Hebrews, Aztecs, and Incas all used brideprice. The Germanic tribes, who date from 2000 BCE and ruled western Europe from the 600 to 1000 CE, required brideprice for a marriage to be legal. A valid marriage contract in Islamic law required a form of brideprice. Such transactions are associated with the Maghreb of the early Middle Ages, Bedouin tribes of the Middle East, and countries previously under the Ottoman Empire such as Iraq, Syria, Egypt, Turkey, Iran, Albania, and Afghanistan. Classical China required the negotiation of a brideprice for the validity of marriage, and these transfers continue to be the norm in many rural areas today. China also seems to be one of the few examples where brideprice and dowry coexist, with the brideprice being compulsory and the dowry, which is more voluntary in nature, typically financed with a return portion of the brideprice.
The dowry system dates back at least to the ancient Greek city-states (800 to 300 BCE) and to the Romans by around 200 BCE.[15]In medieval western Europe and later, dowries were common practice among most, if not all, social and economic groups. Since dowry was required and an important ritual under Roman law, so dowries were transferred in many parts of the Byzantine Empire in different ways until its fall to the Ottomans in the fifteenth century.[16]Payment of dowry was prevalent in seventeenth and eighteenth-century Mexico and Brazil, as marriages were made as per Spanish and Portuguese family law until these countries gained their independence.[17]In the present times, widespread dowry payments made in India have been extensively documented and it is taken seriously.[18]Dowries have been a custom followed in India from ancient period and is unfortunately still persistent in many parts of India. “Comparatively little research has explored marriage transfers in the rest of south Asia, though several studies point to dowry payments now occurring in Bangladesh, Pakistan, and Sri Lanka.”[19]
V.
LAWS RELATED TO DOWRY IN INDIA
LAWS RELATED TO DOWRY IN INDIA
For the first time in India the Dowry Prohibition Act, 1961 was formulated and amended in 1984 and again in 1986 to make the provisions of this law to make it more effective and stringent as well as to fill in the loopholes which had made this Act ineffective.[20]The period of limitation to file the complaint which was previously there was removed. The offense is now cognisable due to the amendment which will help in the process of investigation. The complainant is also protected after filing the case based on the new amendments. “A new section on “dowry murder” has been introduced in the Indian Penal Code.”[21]The Indian Evidence Act was amended to shift the burden of proof, to the husband and his family by whom the dowry is demanded and if the bride dies within 7 years of the marriage otherwise than under normal circumstances, to the husband and his family.[22]In the new amendment provision has been made for the appointment of Dowry Prohibition Officers and Advisory Committees and advertisements containing contents related to consideration made for marriage is considered as punishable.
The main features which was focused in 1986 amendment are as follows:
· The fine imposed was increased to Rs.15,000.[23]
· The burden of proof of the offence was shifted to the accused.[24]
· Dowry was made as a non-bailable offence.[25]
· A complete ban was imposed on advertisements related to dowry.[26]
· If a women died in an unnatural death, her property would be transferred to her children and in case if she dies childless her property will revert back to her parents.[27]
“The recommendation of the Committee on the Status of Women for banning the taking or giving of dowry in the Government Servants Conduct Rules, was accepted in 1976 and clause 13A was introduced in the Central Services Rules for the purpose.”[28]The demand for dowry from the in laws or husband needs to be made a ground for divorce in all relevant acts.[29]
The new amendments, participation of women’s organizations has helped in bringing greater awareness in the society about the crime and many cases were being filed after the amendments in the Act. The Voluntary Action Bureau of the Social Welfare Boards and the Legal Government funding have been rendering valuable services in this field of safeguarding women through stringent laws.[30]Unfortunately, despite all these efforts, there has been no significant reversal in the trend nor any visible change in attitudes of the people even among those educated urban elite where we hear of dowry deaths most frequently.[31]
Some of the most brutal expressions of domestic violence, which included wife beating, cruelty, torture and humiliation. These situations made women’s groups to demand that wife abuse be treated as an offence. Realizing the gravity of demand for treating and giving equal safety and protection to women, the Parliament responded with the Criminal Law (Second Amendment)Act, 1983, which for the first time gave legal recognition to domestic violence by making cruelty inflicted either by the husband or his relatives as an offence( Chapter XXA of the Indian Penal Code, Section 498A).[32] Again the Law of Evidence was amended to provide that if a married woman commits suicide within seven years of her marriage the presumption in law will be that her husband or his relatives abetted the suicide(Section 113A of the Indian Evidence Act, 1872).[33]
Section 304B(1) of Indian Penal Code states that “Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.[34]
Section 304B(2) of Indian Penal Code states that “Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life”.[35]
VI. INTERPRETATION OF LAW
Though these new sections have gone
a long way in bringing some legal remedy and a solution to protect those women victims of domestic violence in their martial homes, it is unfortunately has been found that women can be victims of cruelty and violence in their parental home as well.[36]
a long way in bringing some legal remedy and a solution to protect those women victims of domestic violence in their martial homes, it is unfortunately has been found that women can be victims of cruelty and violence in their parental home as well.[36]
The committee on the Status of Women in India had pointed out that certain “penal provisions in the law are definitely influenced by the established patriarchal system, the dominant position of the husband and the social and economic backwardness of women.”[37]
· In some cases the legislature has presumed that cruelty as mentioned under Section 498A if proved can be the sole cause of dowry death.
· In Ratan Lal V. State of Madhya Pradesh[38], it was mentioned in the judgement that it is obligatory to prove that the death occurred within seven years and if this fact can not be proved then this section will not apply.
· In Kaliyaperumal v. State of Tamil Nadu[39], the court is obliged to show that ‘soon before the death’ there was harassment and cruelty on the women. But it ‘soon before the death is not mentioned in section 304B of Indian Penal Code.
· In Akula Ravinder V. State of Andhra Pradesh[40], the judgement mentioned few other conditions of death which can be proved as dowry death and helped in reducing the misuse from Section 304B.
VII. IMPLEMENTATION OF DOWRY LAWS
1] Statutory language
Language used in the statutes and enactments are usually vague, abstract and not easily comprehensible by common people. Along with this another problem is that the words used might not be explained or may have broad notion and understanding its ambit and comprehending accordingly will be difficult. In the act the word dowry is should be expanded into a greater ambit as this only mentions about money or the property given as consideration at the time of marriage.
2] Implementation or enforcement of laws on society
Enforcing the laws on the society becomes an issue as police or the court usually conceal few facts or sometimes the investigation process is not performed properly because of bribe from the husband and in-laws. Even if the act contains detailed procedure to perform investigation it is usually not followed as it is highly time consuming and deviated as an unexpected accident.
3]Cultural values and burden because of society
Every girl is considered to be understanding in her in-law’s house and create bonding. Even if the in- laws are waiting for her money or gifts they harm her or give torture. Unfortunately, women in our country are supposed to be submissive, meek and suffer the pain alone but not allowed to talk about it in public as it may bring bad name on both the houses from where she lived before marriage and her in-laws house. Rather than filling a complaint these women feel it is better to remain silent rather than raising voice against this evil practice.
4] Lack of awareness
Many women in our country don’t know their rights in the eyes of constitution. They are ready to suffer the pain within themselves but rather don’t file a case either scared about that her status of her family going down or are usually not aware since it is written in a difficult language usually not apprehensive by nature. Inadequate education given
to the women may make it difficult for them to understand their rights.
to the women may make it difficult for them to understand their rights.
VIII. STEPS TO IMPROVE IMPLEMENTATION OF LAWS
1. Women should be given equal opportunity as men in the society. Laws should make a woman more empowered and secured in this country. Laws focused on women should support them and shouldn’t have exceptions within it for men to escape from harsh punishment. If the laws within it contains provisions safeguarding men, then equality will not be balanced.
2. In order to implement the laws in a effective way then the laws should reach all the women including rural areas in our country. But to make everyone aware about the laws women should be educated and the implemented laws should be conveyed to everyone through movements, speeches and seminar even in rural as well as urban areas.
3. Regular meetings should be held exclusively for women in all districts especially in all rural and under developed places within country. These meetings should be held by advocates. In these meeting advocates should brief them about women laws and those ladies who have grievances should be helped by advocates to file cases.
4. Dowry death cases should be investigated without any impartiality or bias and it should be genuine.
5. More women police officers should be involved in dowry cases as they will be sensitive cases and it shouldn’t only be seen in a critical way but sometimes it should also be seen in emotional point of view.
6. There should be speedy disposal of dowry cases in the court as at PRESENT moment someone’s life maybe at stake.
IX. CONCLUSION
Even after so many years of independence women in our country are still fighting for equal rights and equal opportunities equivalent to men in our society. But violence against women either in the means of cruelty, rape, dowry etc still persists as an evil in the society. Till date many women are killed because of their in-laws and husband’s greed. There are laws formulated especially for the protection of women from dowry related issues but there is lack of awareness. Women along with those living in villages should be aware of their rights and the proper way to fight against these serious issues. Only if the laws formulated is reaching to those at whom it is aiming then it proves the effective implementation of laws if not then the laws formulated will not be used at the apt situation. Dowry is an evil in the society as the technology and thinking is developing in our country, practice of such evils persistent in the society from years should come to an end.
X. BIBILIOGRAPHY
BOOKS
1. Women and the rule of law, By Sumanlata.
2. Women and law, By Dr. Samiya Tabasum.
ARTICLES AND JOURNALS
3. For Richer, For Poorer, Till Death Do Us Part: India’s Response to Dowry Deaths, Alizabeth Newman – Hein Online
4. Dowry Death: Implications of Law, K. S. Latha; R. Narendra- Hein Online
5. Anderson, Siwan. “The Economics of Dowry and Brideprice.” The Journal of Economic Perspectives, vol. 21, no. 4, 2007, pp. 151–174. JSTOR, JSTOR, www.jstor.org/stable/30033756.
ONLINE RESOURCES
6. Raman Devgan, IPC Section 304, Indian Penal code, http://devgan.in/ipc/index.php?q=304&a=1#ixzz53tlZbKnH
7. Raman Devgan, IPC Section 304, Indian Penal Code, http://devgan.in/ipc/index.php?q=304&a=1#ixzz53tmA0tiI
[1] SUMANLATA, WOMEN AND THE RULE OF LAW 3(Akansha Publishing House, New Delhi,2005)
[2] Id. at 1
[3] Id. at1
[4] Id. at 1
[5] Alizabeth Newman, For Richer, For Poorer, Till Death Do Us Part: India’s Response to Dowry Deaths, 15 ILSA J. Int’l L. (1992)
[6] Id. at 2
[7] Id. at 2
[8] Alizabeth Newman, For Richer, For Poorer, Til Death Do Us Part: India’s Response to Dowry Deaths, 15 ILSA J. Int’l L. (1992)
[9] K. S. Latha; R. Narendra, Dowry Death: Implications of Law, 38 Med. Sci. & L. (1998)
[10] SUMANLATA, WOMEN AND THE RULE OF LAW 3(Akansha Publishing House, New Delhi,2005)
[11] SUMANLATA, WOMEN AND THE RULE OF LAW 3(Akansha Publishing House, New Delhi,2005)
[12] Anderson, Siwan. “The Economics of Dowry and Brideprice.” The Journal of Economic Perspectives, vol. 21, no. 4, 2007, pp. 151–174. JSTOR, JSTOR, www.jstor.org/stable/30033756.
[13] Id. at 12
[14] Id. at 12
[15] Id. at 12
[16] Id. at 12
[17] Id. at 12
[18] Id. at 12
[19] Id. at 12
[20] SUMANLATA, WOMEN AND THE RULE OF LAW 8(Akansha Publishing House, New Delhi,2005)
[21] Id. at 20
[22] Id. at 20
[23] DR SAMIYA TABASUM, WOMEN AND LAW 234(Satish Upadhyay, Satyam Law International, New Delhi,2016)
[24] Id. at 23
[25] Id. at 23
[26] Id. at 23
[27] Id. at 23
[28] Supra. at 20
[29] Supra. at 20
[30] Supra. at 20
[31] Supra. at 20
[32] SUMANLATA, WOMEN AND THE RULE OF LAW 4(Akansha Publishing House, New Delhi,2005)
[33] Id. at 32
[34] Raman Devgan, IPC Section 304, Indian Penal code, 13th October 2014, http://devgan.in/ipc/index.php?q=304&a=1#ixzz53tlZbKnH
[35] Raman Devgan, IPC Section 304, Indian Penal Code, 13th October 2014, http://devgan.in/ipc/index.php?q=304&a=1#ixzz53tmA0tiI
[36] Supra. at 32
[37] Supra. at 32
[38] Ratan Lal v. State of Madhya Pradesh, AIR 1971 SC 778, 1971 (0) BLJR 1034, 1971 CriLJ 654, (1970) 3 SCC 533, 1971 3 SCR 251
[39] Kaliyaperumal v. State of Tamil Nadu, AIR 2003(1) AWC 344 SC,(2003) 2 CALLT 23 SC
[40] Akula Ravinder V. State of Andhra Pradesh, AIR 1991 SC 1142, II (1991) DMC 53 SC, 1991 Supp (2) SCC 99
