Family law dowry
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Dowry concept under Family Law
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Family law dowry
- 1. DOWRY By Anuja Aiyappan anujaaiyappan@gmail.com
- 2. Dowry – Ancient Scenario The ancient marriage rites in the Vedic period are associated with kanyadan. It is laid down in Dharamshastara that the meritorious act of kanyadan is not complete till the bridegroom was given a dakshina. So when a bride is given over to the bridegroom, he has to be given something in cash or kind which constitute varadakshina. Thus kanyadan became associated with varadakshina i.e. the cash or gifts in kind by the parents or guardian of the bride to the bridegroom. The varadakshina was offered out of affection and did not constitute any kind of compulsion or consideration for the marriage. It was a voluntary practice without any coercive overtones.
- 3. Dowry – Present Scenario Today dowry has become a widespread evil and social menace and biggest problem faced by women. Marriage is becoming a big source of exploitation and of getting rich overnight in some communities The spread of education has not helped in curbing the social evil of dowry. The , more highly educated is the youngman, higher are the demands for the dowry. The dowry system is one of the primary cause of female infanticide and foeticide in India. Domestic violence is another consequence of this evil. Indian Parliament enacted the Dowry Prohibition Act, 1961, to minimize the evil effects of dowry. The object of Act is to prohibit the giving and taking of dowry.
- 4. Definition of ‘dowry’ According to Section 2, Dowry Prohibition Act, 1961, `dowry’ means any property or valuable security given or agreed to be given either directly or indirectly- (a) by one party to a marriage to the other party to the marriage, or (b) by the parents of either party to a marriage or by any other person at or before or any time after the marriage in connection with the marriage of said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies
- 5. Giver, taker and demander or dowry offenders Taking or giving of dowry or abetting to give dowry or abetting to take dowry continue to be offences. Demanding of dowry by any person directly or indirectly from parents or guardian of bride or bridegroom is also a dowry offence Under the Dowry Prohibition Act, 1961, a maximum and minimum punishments has been laid down. It is a unique law which considers the person who commits the act as well as the person against whom the act committed as offenders.
- 6. Transfer of dowry to bride If the dowry has actually been received but its receiver is not the bride then the Act lays down that the dowry has to be transferred to the bride. The failure to transfer the dowry to the bride within the stipulated period constitutes a dowry offence , for which the offender is liable to be awarded the same punishment as the taker of dowry. If the bride dies before the transfer of dowry is effected, her heirs will be entitled to it.
- 7. Dowry Offences and Trial Dowry offences are -: Not cognizable; they are cognizable for the purpose of investigation. Non-compoundable offences Non-bailable An agreement for giving or taking dowry is void. Cognizance of dowry offence can be taken up by -: The Magistrate himself or on the basis of police report, or, Complaint lodged by -: A parent Other relation of such person Recognized welfare institute or organization Complaint can be made at anytime after the commission of the offence, but if it is done after considerable delay the court may not entertain it if no reasonable explanation for the delay is given.
- 8. Dowry Prohibition Officers Responsibility is to take steps for enforcing and preventing the contravention of the provisions of the act. Should collect evidence for the effective prosecution of offenders. Render all possible aid and advise to victimized persons. Section 8B, Dowry Prohibition Act, 1961 stipulates for the appointment of Dowry Prohibition Officers
- 9. Section 304-B of IPC Section 304 B was introduced in the Indian Penal Code in order to strictly deal with and punish the offence of Dowry Death. The insertion of the provision in the Indian Penal Code was for providing for a more stringent offence. The necessary conditions for application of dowry death are :- 1. When the death of a woman is caused by any burns or bodily injury, or occurs under unusual circumstances. 2. And the aforesaid two facts spring within 7 years of the girl's marriage. 3. And soon before her death, she was subjected to cruelty or harassment by her husband or her relative 4. And this is in connection with the demand for dowry. If these conditions exists it would constitute dowry death, and the husband and/or his relatives shall be deemed to have caused her death
- 10. Protection of Women from Domestic Violence Act, 2005. An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. Under section 3 of Protection of Women from Domestic Violence Act, 2005, definition of domestic violence , in sub-section (b) harassment or any injuries for dowry shall constitute domestic violence. More than 5,000 women are killed annually by their husbands and in-laws, who burn them in “accidental” kitchen fires if their ongoing demands for dowry before and after marriage are not met. Many cases go unreported.
- 11. Conclusion Despite protest by women's organizations, serious activism, legal amendments, special police cells for women, media support and heightened awareness of dowry being a crime, the practice continues unabated on a massive scale. Despite every stigma, dowry continues to be the signature of marriage. Dowry is a complicated phenomenon in the Indian society and it cannot be eradicated by simple legislative measures. It is an accepted fact dowry is not a easy problem to be eliminated. However such a social menace can be combated with effective strategic measures that would protect the dowry of the Indian bride and would allow such dowry to be treated as her exclusive property.
Notas do Editor
- Whatever presents were given to the daughter on the occasion of the marriage by her parents, relations or friends constituted her stridhan. Since varadakshina included ornaments and clothes and cash, one opinion was that this also constituted the property of the bride stridhan. But varadakshina was a present to the bridegroom and it constituted his property The varadakshina was given out of love and affection voluntarily and no compulsion was exercised. The presents given to the bride by way of ornaments, clothes and other articles as well as cash from the side of her father and husband constituted her stridhan. These were probably meant to provide her with a sort of financial security in adverse circumstances.The Stridhan is unique because a woman has absolute, exclusive dominion over such property and has the power to sell, alienate or give the same away as she pleases both during her lifetime and thereafter. Her husband and/ or his family members have no rights over such Stridhan. In the case of PratibhaRani v. Suraj Kumar and Anr ,AIR 1985 SC 628, the Supreme Court arrived at a definition of Stridhan by enlisting the following exchanges as constituting Stridhan- Gifts made before the nuptial fire Gifts made at the bridal procession, i.e. while the bride is being led from her residence of her parents to that of her husband Gifts made in token of love, that is, those made by her father-in-law and mother-in-law and those made at the time of the bride making obeisance at the feet of her elders Gifts made by the father of the bride Gifts made by the mother of the bride Gifts made by the brother of the bride
- Bride 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. In the anthropological literature, bride price has often been explained in market terms, as payment made in exchange for the bride's family's loss of her labour and fertility within her kin group. The agreed bride price is generally intended to reflect the perceived value of the girl or young woman. Dower - A settlement from the groom to the bride is an essential part of current traditional Muslim marriages: a man must pay mahr to his bride. It is considered a gift which she has to agree on. The dower can be any value as long as it is agreed upon by both parties. When the groom gives his bride the dower, it becomes her property. In case of a divorce, she won't have to give up her dower unless she is the one who requested the divorce. In the latter case, her husband may ask her to return the dower to him.Dowryis the money, goods, or estate that a woman brings to her husband in 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.Dowry is an ancient custom, and its existence may well predate records of it. Originally, the purpose of a dowry was to provide "seed money" or property for the establishment of a new household, to help a husband feed and protect his family, and to give the wife and children some support if he were to die. Dowry is considered as a cost of buying matrimonial peace for the bride. If they fail to satisfy dowry demands then she is subject to cruelty, mental and physical harassment by the husband and the in-laws. She is vulnerable to insult and humiliation for not bringing enough dowry.The Indian courts have banned the practice since 1961, forgetting that it is indeed a strongly rooted tradition. So in today's India, the dowry system plays a huge, but largely underground and illegal role in match-making, and forming of marriage alliances. It is the dowry system that is the primary cause of female infanticide and foeticide in India, and the primary reason why everybody wants to have only male children. The system of gift-giving has turned into a system of absurd demands, and one of harassment of women.
- The Act uses the word “dowry” not merely in the sense of what the bride’s parents give to the bride and bridegroom but also the other way round. In other words , if the property or valuable security is given by bridegroom to the bride or bride’s father in connection with the marriage of the parties, it would also be covered in the definition of dowry. The wedding presents , whatever be their value , are excluded from the purview of dowry. Two safeguards against the abuse of “presents are laid down: All presents made to the bride and bridegroom at the time of marriage ( but not those given before or after marriage) are to be put in a list, andSuch presents should commensurate to the financial status of the giver According to Section 3(2) of Dowry Prohibition Act, 1961Nothing is sub section (1) shall apply to, or in relation to, - a. Presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf). b. Presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf). Provided that such presents are entered in a list maintained in accordance with the rules made under this Act. Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given.Any property given by parents of the bride need to be in consideration of the marriage, it can even be in connection with the marriage and would constitute dowry; Rajeev v. Ram KishanJaiswal, 1994 Cri L.J. NOC 255 (All).The definition of dowry is wide to include all sorts of properties, valuable securities etc. given or agreed to be given directly or indirectly. Therefore the amount of Rs.20,000/- and 1.5 acres of land agreed to be given at the time of marriage is dowry, even though the said land was agreed to be transferred in the name of the deceased as 'pasupukumkuma' by executing a deed; VemuriVenkateswaraRao v. State of Andhra Pradesh, 1992 Cri L.J. 563 AP HC.The furnishing of a list of ornaments and other household articles such as refrigerator, furniture, electrical appliances etc. at the time of the settlement of the marriage amounts to demand of dowry within the meaning of section 2 of the Dowry Prohibition Act,1961; Madhu Sudan Malhotra v. K.C. Bhandari; 1988 BLJR 360 (SC).While dowry signifies presents given in connection with marriage to the bridal couple as well as others, stridhan is confined to property given to or meant for the bride; Hakam Singh v. State of Punjab, (1990) I DMC 343.
- According to Section 3(1) of Dowry Prohibition Act, 1961 - Penalty for giving or taking dowry “ If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more: Provided that the Court may, for a adequate and special reasons to be recorded in he judgment, impose a sentence of imprisonment of a term of less than five years.” According to Section 4 of Dowry Prohibition Act, 1961 - Penalty for demanding dowry “ If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees. Provided that the Court may, for a adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.”InNeera Singh v The State (Govt. of NCT of Delhi) and Ors138(2007)DLT152 landmark orders of Justice ShivNarayanDhingra was“The police should simultaneously register a case under Dowry Prohibition Act against the parents of the complainant as well, who married their daughter despite demand of dowry. Section 3 of the Dowry Prohibition Act prohibits giving and taking of dowry. If a woman of grown up age and well-educated gets married to a person despite dowry demand, she and her family becomes accomplice in the crime under Dowry Prohibition Act”
- According to Section 6 of Dowry Prohibition Act, 1961 - Dowry to be for the benefit of the wife or her heirs – (1) Where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman a. If the dowry was received before marriage, within three months after the date of marriage, or b. If the dowry was received at the time of or after marriage, within three months after the date of its receipt, or c. If the dowry was received when the woman was a minor, within three months]after she has attained the age of eighteen years. And pending such transfer, shall hold it in trust for the benefit of the woman (2) If any person fails to transfer any property as required by sub section (1) within the time limit specified therefore, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extended to two years or with fine which shall not be less than five thousand rupees, but which may extend to ten thousand rupees] or with both. (3) Where the woman entitled to any property under sub section (1) dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it for the time being. Provided that where such woman dies within seven years of her marriage, otherwise than due to natural causes, such property shall, - (a) If she has no children, be transferred to her parents, or (b) If she has children, be transferred to such children and pending such transfer, be held in trust for such children. (3A) Where a person convicted under sub section (2) for failure to transfer any property as required by sub section (1) has not, before his conviction under that sub section, transferred such property to the woman entitled thereto or, as the case may be her heirs, parents or children the court shall, in addition to awarding punishment under that sub section, direct , by order in writing that such person shall transfer the property to such woman or, as the case may be, her heirs, parents or children within such period as may be specified in the order, and if such person fails to comply with the direction within the period so specified, an amount equal to the value of the property may be recovered from him as if it were a fine imposed by such court and paid to such woman or, as the case may be, her heirs, parents or children. 4. Nothing contained in this section shall effect the provisions of section 3 or section 4.
- According to Section 7(1) of Dowry Prohibition Act, 1961 - Cognizance of offences (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- a. No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act. b. No court shall take cognizance of an offence under this Act except uponi. Its own knowledge or a police report of the facts which constitute such offence, or ii. A complaint by the person aggrieved by the offence or a parent or other relative of such person, or by any recognized welfare institution or organisation. c. It shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the first class to pass any sentence authorised by this Act on any person convicted of an offence under this Act.Explanation - For the purpose of this sub section, "recognized welfare institution or organisation" means a social welfare institution or organisation recognized in this behalf by the Central or State Government.Police has the freedom to make investigation of its own, and if it comes to the conclusion that an offence has been committed , it can approach the court.
- According to Section 8Bof Dowry Prohibition Act, 1961 - Dowry Prohibition Officers- (1) The State Government may appoint as many Dowry Prohibition Officers as it thinks fit and specify the areas in respect of which they shall exercise their jurisdiction and powers under this Act. (2) Every Dowry Prohibition Officer shall exercise and perform the following powers and functions, namely: - a. To see that the provisions of this Act are complied with, b. To prevent, as far as possible, the taking or abetting the taking of, or the demanding of, dowry, c. To collect such evidences as may be necessary for the prosecution of persons committing offences under the Act, and d. To perform such additional functions as may be assigned to him by the State Government, or as may be specified in the rule made under this Act. (3) The State Government may, by notification in the Official Gazette, confer such powers of a police officer as may be specified in the notification on the Dowry Prohibition Officer who shall exercise such powers subject to such limitations and conditions as may be specified by rules made under this Act. (4) The State Government may, for the purpose of advising and assisting Dowry Prohibition Officers in the efficient performance of their functions under this Act, appoint an Advisory Board consisting of not more than five social welfare workers (out of whom at least two shall be women) form the area in respect of which such Dowry Prohibition Officer exercise jurisdiction under sub section (1).
- Section 304-B of IPC reads as follows :-Dowry death (1) 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 relatives shall be deemed to have caused her death. Explanation – For the purposes of this sub section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961. (2) 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. A landmark decision was given in Public Prosecutor, Andhra Pradesh High Court v. T. Punniah,1989 Crl.L.J. 2330. , where suicide, though committed by the victim herself, was considered to fall under "dowry death" as envisaged under Section 304-B.
- According to Section 3(b)of Protection of Women from Domestic Violence Act, 2005.- Definition of domestic violence.- (b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security;
- In the final analysis, the most crucial element of a dowry death case is a woman's inability to effectively resist her in-laws' demands and, if necessary, to leave a marriage which causes her humiliation. In Indian society, there is a culture of silence that reinforces an oppressive pressure to keep the marriage going at all costs. This effectively keeps women in abusive homes. Hence, dowry and the increasing demands related to it, are not the sole exterminators of women in this country. Instead, it is the unjust social pressure placed on women to stay in abusive, unwelcome homes when their lives are clearly in danger.