In India, Dowry refers
to the durable goods, cash, and real or movable property that the bride's
family gives to the bridegroom, his parents, or his relatives as a condition of
the marriage. It is essentially in the nature of a
payment in cash or some kind of gifts given to the bridegroom's family along
with the bride and includes cash, jewellery, electrical appliances, furniture,
bedding, crockery, utensils and other household items that help the newlyweds
set up their home.
The dowry system is thought to put great financial
burden on the bride's family. In
some cases, the dowry system leads to crime against women, ranging from emotional abuse,
injury to even deaths.
The payment of dowry has been prohibited under
specific Indian laws including, the Dowry Prohibition Act, 1961 and
subsequently by Sections 304B and 498A of the Indian Penal Code.
The history of dowry in South Asia is not clear. Some scholars
believe dowry was practiced in antiquity, but some do not. Historical eyewitness reports, as discussed
below, suggest dowry in ancient India was insignificant, and daughters had
inheritance rights, which by custom were exercised at the time of their
marriage.
Stanley J.Tambiah claims the ancient Code of Manu sanctioned dowry and bridewealth
in ancient India, but dowry was the more prestigious form and associated with
the Brahmanic (priestly)
caste. Bridewealth was
restricted to the lower castes, who were not allowed to give dowry.
He cites two studies from the early 20th century with data to suggest that this
pattern of dowry in upper castes andbridewealth in lower castes has persisted through the first
half of the 20th century However, it is more likely that marriages
involved both reciprocal gifts between the two families, claims Tambiah, so
that insofar as the groom's family gives the bridewealth, it tends to be given
back as the culturally validated dowry to the bride as part of her conjugal
estate.
Michael Witzel, in contrast, claims the ancient Indian literature
suggests dowry practices were not significant during the Vedic period. Witzel also notes that women in
ancient India had property inheritance rights either by appointment or when
they had no brothers.
The findings of MacDonell and Keith
are similar to Witzel, and differ from Tambiah; they cite ancient Indian
literature suggesting bridewealth was paid even in brahma- and daiva-types of marriage associated with the Brahmanic (priestly) upper caste. Dowry was
not infrequent when the girl suffered from some bodily defect. Property rights
for women increased in ancient India, suggest MacDonell and Keith, over the
Epics era (200 BC to 700 AD). Kane claims ancient literature
suggests bridewealth was paid
only in theasura-type of marriage that was considered
reprehensible and forbidden by Manu and other ancient Indian scribes.
Lochtefeld suggests that religious duties listed by Manu and others, such as 'the bride be
richly adorned to celebrate marriage' were ceremonial dress and jewelry along
with gifts that were her property, not property demanded by or meant for the
groom; Lochtefeld further notes that bridal adornment is not currently
considered as dowry in most people's mind.
Above analysis by various scholars is
based on interpreting verses of ancient Sanskrit fiction and inconsistent smritis from India, not eyewitness
accounts. Available eyewitness observations from ancient India give a different
picture. One of these are the eyewitness records from Alexander the Great conquest (ca. 300 BC) as recorded by Arrian and Megasthenes.
Arrian first book mentions a lack of dowry, Arrian's second book similarly
notes.
The two sources suggest dowry was
absent, or infrequent enough to be noticed by Arrian. About 1200 years after
Arrian's visit, another eyewitness scholar visited India named Abū Rayḥān al-Bīrūnī, also known as Al-Biruni, or Alberonius in Latin. Al-Biruni was an Islamic
era Persian scholar who went and lived in India for 16 years from 1017 CE. He
translated many Indian texts into Arabic, as well as wrote a memoir on Indian
culture and life he observed. Al-Biruni claimed,
Al-Biruni further claims that a
daughter, in 11th century India, had legal right to inherit from her father,
but only a fourth part of her brother. The daughter took this inheritance
amount with her when she married, claimed Al-Biruni, and she had no rights to
income from her parents after her marriage or to any additional inheritance
after her father's death. If her father died before her marriage, her guardian
would first pay off her father's debt, then allocate a fourth of the remaining
wealth to her upkeep till she is ready to marry, and then give the rest to her
to take with her into her married life.
It is unclear what happened to these
daughter's inheritance laws in India after Al-Biruni's visit to India in the 11th century. It is also unclear when, why
and how quickly the practice of dowry demand by grooms began, whether this
happened after the arrival of Islam in the late 11th century, or with the arrival
of colonialism in the
16th century, or both.
Causes of the practice
Various reasons have been suggested as
cause of dowry practice in India. These include economic factors and social
factors.
Economic factors
There are many economic factors that contribute towards
the system of dowry. Some of these include inheritance systems and the bride’s economic
status.
Some suggestions point to economics and
weak legal institutions on inheritance place women in disadvantage, with
inheritances being left only to sons. This leaves women dependent upon
their husbands and in-laws, who keep the dowry when she marries. Prior to
1956, including during the British Raj, daughters had no rights of
inheritance to their family's wealth. In 1956, India gave equal legal status to
daughters and sons among Hindu, Sikh and Jain families, under the Hindu Succession Act (India grants its Muslim population the Sharia derived personal status laws).
Despite the new inheritance law, dowry has continued as a process whereby
parental property is distributed to a daughter at her marriage by a social process,
rather than after parent’s death by a slow court supervised process under Hindu Succession Act (1956).
Dowry gave, at least in theory, women
economic and financial security in their marriage in the form of
movable goods. This helped prevent family wealth break-up and provided security
to the bride at the same time. This system can also be used as a premortem inheritance, as once a woman is
presented with movable gifts, she may be cut off from the family estate.
For many, dowry has become a greater
financial burden on the family, and can leave families destitute based on the demands from the
groom.
The demand for dowry
has increased over time.
Social factors
The structure and kinship of marriage
in parts of India contributes
to dowry. In the north, marriage usually follows a patrilocal (lives with husband’s family)
system, where the groom is a non-related member of the family. This system
encourages dowry perhaps due to the exclusion of the bride's family after
marriage as a form of premortem inheritancefor the bride. In the south, marriage is more
often conducted within the bride's family, for example with close relatives or
cross-cousins, and in a closer physical distance to her family. In addition,
brides may have the ability to inherit land, which makes her more
valuable in the marriage, decreasing the chance of dowry over the bride price system.
In addition to marriage customs that
may influence dowry, social customs or rituals, and parents expectations of dowry are
important factors to consider. A 1995 study showed that while attitudes of
people are changing about dowry, dowry continues to prevail. In a 1980
study conducted by Rao, 75% of students responded that dowry was not important
to marriage, but 40% of their parents’ likely expected dowry.
While India has been making progress
for women’s rights, women
continue to be in a subordinate status in their family. Women’s
education, income, and health are some significant factors that play into the
dowry system, and for how much control a woman has over her marriage.
Religious factors
Dowry in India is not limited to any specific religion. It is widespread
among Hindus and other religions. For example,
Indian Muslims call
dowry as jahez, justify the practice in terms of jahez-e-fatimi.
Islamists classify jahez into two categories: The first comprises some
essential articles for the outfit of the bride as well as for conjugal life.
The other is made up of valuable goods, clothes, jewelry, An amount of money
for the groom's family, which is settled on after bargaining. The jahez often
far exceeds the cost of the baraat and marriage parties. The jahez is
separate from cash payment as Mahr or dower that Sharia religious
law requires.
Dowry in the modern era
Dowry has been a prevalent practice in
India's modern era and in this context, it can be in the form of a payment of
cash or gifts from the bride's family to the bridegroom's family upon marriage.
There are variations on dowry prevalence based on geography and class. States in the north are more likely
to participate in the dowry system among all classes, and dowry is more likely
to be in the form of material and movable goods. In the south, the bride price system is more prevalent, and is
more often in the form of land, or other inheritance goods. This system is tied
to the social structure of marriage, which keeps marriage inside or close
to family relations.
Dowry also varies by economic strata in
India. Upper-class families are more likely to engage in the dowry system than
the lower class. This could be in part due to women’s economic exclusion from
the labor market in upper
classes.
When dowry evolved in the Vedic period, it was essentially followed by the upper castes to benefit the bride, who was
unable to inherit property under Hindu law. To counter this, the bride’s
family provided the groom with dowry which would be registered in the bride’s
name. This dowry was seen as stridhan (Sanskrit: woman’s
property).
Also, an
important distinction is the fact that while the uppercastes practiced dowry, the lower castes
practiced bride price to compensate her family for the loss of income. In the modern era, the concept of
dowry has evolved and Indian families no longer practice the traditional Vedic concept of dowry. This is because with the passage
of time, bride price gradually
disappeared and dowry became the prevalent form of transfer. In the modern era, the practice
of dowry requires the bride’s family to transfer goods to the groom’s family in
consideration for the marriage.
Since marriages in India are a time for big celebrations in each family, they tend to be very
lavish. Accordingly, Indian weddings usually
involve considerable expenditure and accompanying wedding presents from
relatives in both sides of the family. This is normal expenditure which is done
willingly and varies from one family to another depending on the wealth,
status, etc.
Many
times, as part of this mutual 'give-and-take', an attempt is made by the
groom’s family to dictate the quantum of each gift along with specific demands
for dowry. In such circumstances, there is an element of exerting coercion on
the bride’s family and this is what has come to be recognized as the menace of
dowry in today’s times. Dowry does not refer to the voluntary presents
which are made to the bride and the groom; rather it is what is extracted from
the bride or her parents.
Types of dowry crimes
Recently married women can be a target
for dowry related violence because she is tied economically and socially to her
new husband. In some cases, dowry is used as a threat or hostage type
situation, in order to extract more property from the bride’s family. This
can be seen in new brides, who are most vulnerable in the situation. Dowry crimes can occur with the
threat or occurrence of violence, so that the bride’s family is left with no
choice but to give more dowries to protect their daughter. The northern and eastern states
of India show higher rates of
dowry-related violence.
Dowry is considered a major contributor
towards observed violence against women in India. Some of these offences include
physical violence, emotional abuses, and even murder of brides and young girls
prior to marriage. The predominant types of dowry crimes relate to
cruelty (which includes torture and harassment), domestic violence (including
physical, emotional and sexual assault), abetment to suicide and dowry death (including, issues of bride burning and murder).
Cruelty
Cruelty in the form of torture or
harassment of a woman with the objective of forcing her to meet a demand for
property or valuable security is a form of dowry crime. Such cruelty could just
be in the form of verbal attacks or may be accompanied by beating or harassment
in order to force the woman or her family to yield to dowry demands. In many instances, such cruelty
may even force the woman to commit suicide and it has been specifically
criminalized by the anti-dowry laws in India.
Domestic violence
Domestic violence includes a broad spectrum of
abusive and threatening behavior which includes physical, emotional, economic
and sexual violence as well
as intimidation, isolation and coercion. There are laws like the Protection of Women
from Domestic Violence Act 2005 that help to reduce domestic violence and to protect women's rights.
Abetment to suicide
Abuse by the husband and his family with threats of harm could lead to a
woman committing suicide. In such
situations, the dowry crime even extends to abetment of suicide, which 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 and abuse. Dowry related
abuse causes emotional trauma, depression and suicide. The offence of abetment to suicide
is significant because in many cases, the accused persons often bring up a
defense that the victim committed suicide at her own volition, even though
this may not be true in reality.
Dowry death
Dowry deaths relate to a bride’s suicide or murder committed by her husband and his
family soon after the marriage because of their dissatisfaction with the dowry.
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 where brides are doused in kerosene and set ablaze by the husband or
his family. Sometimes, due to their abetment to commit suicide, the bride may
end up setting herself on fire. Bride burnings are often disguised as accidents or suicide attempts.
Bride burnings are the most common forms of dowry deaths for a wide range of
reasons like kerosene being inexpensive, there being insufficient evidence
after the murder and low chances of survival rate. Apart from bride burning, there
are some instances of poisoning, strangulation, acid attacks, etc., as a result of which brides are
murdered by the groom’s family.
India, with its large population,
reports the highest number of dowry related deaths in the world according to Indian National Crime Record Bureau.
In 2012,
8,233 dowry death cases were reported across India, while in 2013, 8,083 dowry
deaths were reported.
This
means a dowry-related crime causes the death of a woman every 90 minutes, or
1.4 deaths per year per 100,000 women in India.
For
contextual reference, the United Nations reports a worldwide average
female homicide rate of 3.6 per 100,000 women, and an average of 1.6 homicides
per 100,000 women for Northern Europe in 2012.
Laws against dowry
The first all-India legislative
enactment relating to dowry to be put on the statute book was the Dowry
Prohibition Act, 1961 and this legislation came into force from July 1, 1961. It
marked the beginning of a new legal framework of dowry harassment laws
effectively prohibiting the demanding, giving and taking of dowry. Although
providing dowry is illegal, it is still common in many parts of India for a
husband to seek a dowry from the wife's family and in some cases, these results
in a form of extortion and
violence against the wife.
To further strengthen the anti-dowry
law and to stop offences of cruelty by the husband or his relatives against the
wife, new provisions were added to the Indian criminal law - section 498A
to Indian Penal Code and
section 198A to the Criminal Procedure Code in 1983. In 2005, the Protection of Women
from Domestic Violence Act was passed, which added an additional layer of protection from dowry
harassment.
Dowry Prohibition Act, 1961
The Dowry Prohibition Act, 1961
consolidated the anti-dowry laws which had been passed on certain
states. This legislation provides for a penalty in section 3 if any person
give takes or abets giving or receiving of dowry. The punishment could be
imprisonment for a term not less than 5 years and a fine not less than 15,000
or the value of the dowry received, whichever is higher. Dowry in the Act
is defined as any property or valuable security given or agreed to be given in
connection with the marriage. The penalty for giving or taking dowry is
not applicable in case of presents which are given at the time of marriage
without any demand having been made. Similarly, section 4 of the Act provides
the penalty for directly or indirectly demanding dowry and provides for a
penalty involving a prison term of not less than 6 months and extendable up to
two years along with a fine of ₹10,000. Dowry agreements are void ab initio and if any dowry is received by
anyone other than the woman, it should be transferred to the woman. The
burden of proving that an offense was not committed is on the persons charged
and not on the victim or her family. Under its powers to frame rules for
carrying out its objectives under the Act, the government of India has framed
the Maintenance of Lists of Presents to the Bride and the Bridegroom Rules,
1985. There are also several state level amendments to the Dowry
Prohibition Act.
Criminal statutes - Indian Penal Code, Criminal Procedure
Code and Evidence Act
The Indian criminal laws were
comprehensively amended to include dowry as a punishable offence. Section
304B was added to the Indian Penal Code,
1860 ("IPC"),
which made dowry death a
specific offence punishable with a minimum sentence of imprisonment for 7 years
and a maximum imprisonment for life. It provided that if the death of a woman
is caused by burns or bodily injury or occurs in suspicious circumstances
within 7 years of her marriage, and there's evidence to show that before her
death, she was subjected to cruelty or harassment by her husband or his
relative regarding the demand for dowry, then the husband or the relative shall
be deemed to have caused her death. Further, section 113B of the Evidence
Act, 1872 ("Evidence Act"), creates an additional presumption of
dowry death when it is shown that before her death, the woman had been
subjected to cruelty on account of dowry demand. Section 304B IPC along
with Section 113B of the Evidence Act have enabled the conviction of many who
were not caught by the Dowry Prohibition Act, 1961. Section 113A of the
Evidence Act provides a similar presumption of abetment of suicide (which is an
offense under Section 306 IPC), in case of death of a married woman within a
period of seven years of her marriage.
Additionally, the judiciary also includes a murder charge under Section 302 IPC as
this allows courts to impose death penalty on perpetrators of the offence.
Section 406 IPC, pertaining to offences for the criminal breach of trust,
applies in cases of recovery of dowry as it is supposed to be for the benefit
of the woman and her heirs.
Further, Section 498A IPC was
specifically included in 1983 to protect women from cruelty and harassment. The
constitutionality of Section 498A was challenged before the Supreme Court of India on grounds of abuse, on grounds that it gave arbitrary power to the
police and the court. However, it was upheld in Sushil Kumar Sharma
v. Union of India (2005) The Code of Criminal Procedure, 1973 provides that for the prosecution
of offences under Section 498A IPC, the courts can only take cognizance only
when it receives a report of the facts from the police or upon a complaint
being made by the victim or her family.
Protection of Women from Domestic Violence Act, 2005
The Protection of Women
from Domestic Violence Act, 2005 ("Domestic Violence Act") was passed in
order to provide a civil law remedy
for the protection of women from domestic violence in India. The Domestic Violence Act
encompasses all forms of physical, verbal, emotional, economic and sexual abuse
and forms a subset of the anti-dowry laws to the extent it is one of the
reasons for domestic violence. Section 3 of the Domestic Violence Act specifically incorporates all
forms of harassment, injury and harms inflicted to coerce a woman to meet an
unlawful demand for dowry. Some of the common remedies under the Domestic
Violence Act include:
·
protection
orders - prohibiting a person from committing domestic violence;
·
residence
orders - dispossessing such person from a shared household;
·
custody orders
- granting custody of a child; and
·
Compensation
orders - directing payment of compensation.
International conventions
India is a party to several international human rights
instruments which provide theoretical remedies to the dowry problems.[63] These international conventions
include theUniversal Declaration of Human Rights ("UDHR"), International Covenant
on Civil and Political Rights ("ICCPR"), the International Covenant
on Economic, Social, and Cultural Rights ("ICESCR"), the Convention on the
Elimination of All Forms of Discrimination Against Women ("CEDAW"), and
the Convention on the Rights of the Child ("CRC"). CEDAW
codifies the rights most relevant to the discussion of dowry-related violence:
the rights of women. However,
there are issues of non-intervention and cultural relativism which impede the use of international law to combat dowry deaths.
Criticisms on the enforcement of dowry laws
Although the change in Indian criminal
law reflects a serious effort by legislators to put an end to
dowry-related crimes, and although they have been in effect for many years now,
they have been largely criticized as being ineffective. Despite the Indian
government's efforts, the practice of dowry deaths and murders continues to
take place unchecked in many parts of the country and this has further added to
the concerns of enforcement. There is criticism by women's groups that
India's dowry harassment laws are ineffective because the statutes are too
vague, the police and the courts do not enforce the laws and social mores keep
women subservient and docile, giving them a subordinate status in the
society. Further, many women are afraid to implicate their husbands in a
dowry crime simply because the Indian society is viewed as having conditioned
women to anticipate or expect abuse and in some sense eventually, endure
it. While the laws give great powers, they are not effectively enforced by
the police or by courts. It can take up to 10 years for a case to go to court
and even once in court, husbands and in-laws end up getting away with extortion
or even murder because the women and their families cannot prove 'beyond reasonable doubt' that they are the victims of such crimes, as there are rarely any outside witnesses. Moreover, when deaths occur through bride burning, evidence itself is usually lost in flames.
Criticisms on the abuse of dowry laws
There is growing criticism that the
dowry laws are often being misused, particularly section 498A IPC which is
observed by many in India as being prone to misuse because of mechanical
arrests by the police. According to the National Crime Records Bureau statistics, in 2012, nearly 200,000 people
including 47,951 women were arrested in regard to dowry offences. However, only
15% of the accused were convicted. According to Shonee Kapoor, to minimize the misuse
of such laws, false dowry complaints should be punished.
Section 498A IPC was challenged but
upheld by the Supreme Court of India in 2005. In 2010,
the Supreme Court lamented about the possible misuse of anti-dowry laws in Preeti
Gupta & Another v. State of Jharkhand & Another and
recommended a detailed investigation.
Based on
the Supreme Court's observations, the Indian parliament set up a committee
headed by Bhagat Singh Koshyari. In July
2014, in the case of Arnesh Kumar v. State of Bihar & Anr., a
two-judge bench of the Supreme Court reviewed
the enforcement of section 41(1)(A) of Cr PC which instructs state of following
certain procedure before arrest, and went on to observe that the 498A had
become a powerful weapon in the hands of disgruntled wives where innocent
people were arrested without any evidence due to non-bail able and cognizable
nature of the law. The
decision received criticism from feminists because it weakened the negotiating
power of women. Others
welcomed the decision as landmark judgment to uphold the human rights of innocent people.
On April 19, 2015, the Indian government sought to
introduce a bill to amend Section 498A IPC based on the suggestions of the Law
Commission and Justice Malimath committee on reforms of criminal justice. News reports indicate that the proposed
amendment will make the offence compoundable and this would facilitate couples
to settle their disputes.
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