By Devansh Singh
Dowry has plagued society for a long time, it has transformed into various forms over the years making the laws ineffective sometimes. Questions about the misuse of dowry laws for harassment have been continuously raised over the years, making a case for the misuse of the laws by women.
The custom of Dowry entails a transfer of money, goods, services, and sometimes immovable property from a bride’s parent or relatives to the groom or his parents or his relatives after or before their marriage. This tradition dates to the 13th or the 14th Century, and it was governed by the Hindu Succession law under the Mitakshara system. Under this system, it was specifically mentioned that a female child was not entitled to a share in the parental wealth, unlike a male child. Dowry was central to specific forms of marriages where it was used to compensate female members of the family when they got married. This position was maintained for a very long time in certain forms of marriages and accepted by the colonial government too. The aim here is to understand the societal significance and persistence of the practice of dowry even when the meaning of the word keeps shifting and acquiring different forms in today’s world.
The custom of dowry has been prevalent for a long time, but it only took its present form during the advent of British Colonizers. Ranjana Sheel argues, there was a huge ignorance of the plurality of the culture and traditions that existed in India during the hurried subjugation of India. During this codification and selection of four systems of marriage, from the eight forms of marriages, as legitimate practice, the British confirmed the custom of dowry. These forms of marriages had the custom of dowry during the Kanyadaan. Incidentally, these forms of marriages were practised by the upper caste whereas bride price was common in lower caste or tribes. This was legitimized because the courts only upheld these four kinds of marriages as legitimate. This custom could be a typical example of the suppression of cultural pluralism by the colonizers. One of the four forms of legitimized marriage, Brahma Marriage, required the bride to bring money and property with her in return for no counter presentation from the bridegroom, this made the Brahma marriage coterminous with the dowry marriage. The equation of giving dowry to giving a share in patrilineal wealth is problematic because it suggests that the wealth never remains with the bride. It’s her husband and his relatives who exert actual control over the wealth brought by her, the price of this dowry is not decided by the bride or her parents, instead, it’s a demand from the groom and his family that needs to be fulfilled. It is very well depicted in the movie, Shadi Mein Zaroor Aana (2017) and TV series like Made in Heaven (2019). These works are identical to real-life situations of dowry and harassment.
In today’s world modernism and materialism are the leading virtues of the fast-growing economy of India. In line with these virtues, the needs, desires and demands of people are rising and dowry is an easy way of accessing these resources, thus leading to dowry inflation. There have been cases where the groom has demanded dowry to start his business. Similarly, another demand in today’s time is for lavish weddings whose brunt is mainly borne by the bride’s family, this is done to signify the respect given to the groom and his family and the well-being of their daughter. Another reason for giving a good dowry is for the comfort of the bride and fewer work responsibilities on her shoulder.
In various households, the husband or even the parents-in-law demand the woman’s salary as a right. This is a common practice in India where a woman is forced to give her salary to her husband or his family members. Sometimes, the groom’s family doesn’t demand a dowry but looks for a salaried woman- the reason isn’t better compatibility, instead, it is her salary that they have their eyes on. At a social gathering, a 23-year-old jokingly suggested that people shouldn’t ask for a dowry now but instead look for an employed woman, locally known as a “Kamaau Bahu”. It clearly signifies that the salary of the woman is in lieu of the dowry and thus she might have no control over its spending. This raises the point of control of wealth again. Even if a girl receives wealth (familial, salary, gifts etc.) does she actually control it or is it her husband and sometimes her in-laws who really control it?
The Indian Parliament enacted the Dowry Prohibition Act in 1961 after 14 years of independence. The act banned the practice of dowry. It defines dowry as-
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, to either party to the marriage or to 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.
This act has defined the penalty for dowry giving or taking, the penalty being fifteen thousand rupees or the amount of dowry whichever is more and punishment not less than 5 years. But this section also clarifies that voluntary gifts (which weren’t demanded) given by the family of the bride wouldn’t be counted as dowry. The act has defined the punishment for demanding dowry, as imprisonment for at least 6 months and at most 2 years. The act defines that the courts can only take cognizance if the woman herself or her relatives or an established welfare organization is recognized by the state or the central government. It also directs the burden of proof to be on the accused. The rule made by the Government, as per section 9 of the act, in the year 1985 demands the creation of lists of the presentation given to the bride and the bridegroom, respectively, during the wedding and the respective lists must be signed by the bride and the bridegroom.
There are other anti-dowry-related laws in India defined in the Indian Penal Code, Indian Evidence Act, Criminal Procedure Code as well as the Protection of Women from Domestic Violence Act, 2005. Some of these laws supplement the Dowry Prohibition Act 196 and vice versa. Section 113B creates a presumption of dowry death if it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. Section 304 B of the Indian Penal Code says, 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”. Sections 302 and 398 of the IPC are used to declare the death penalty to the perpetrators of dowry and prevent cruelty or harassment of women respectively. Moreover, dowry being one of the causes of domestic violence, sections 2 and 3 of THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT 2005, define dowry and declare any mental, physical, or economic harm to coerce the woman or her relatives for dowry as defined as domestic violence respectively. These acts and sections of code were designed to work together with the Dowry Prohibition Act of 1961 to control the menace of dowry.
Despite existing since 1961 these laws have been unsuccessful in many cases where the crime has been reported. This has been mainly through loopholes that have been found in these laws despite the various amendments made to them. There is a constant cultural tension between modern efforts to change gender roles and the extreme effort to preserve patriarchal tradition. There are some legal problems associated with the implementation of these laws and then there are sociocultural issues which are the motive for the intention of violation of these laws.
Tara Singh Kaushik argues about many such flaws in the legal and social framework of our society. The exclusion of voluntarily given gifts is a very convenient loophole that has been in use for a very long time. It is a well-established fact that there is an unsaid expectation from the husband and his relatives to provide them with gifts and organize a good wedding. Without reference, the bride’s family arranges gifts for the groom as well as his relatives. If these gifts aren’t offered, then the social standing of the bride as well as the groom’s family is questioned. Similarly, the discussions surrounding dowry are very discreet and indirect and can’t always be specified as demands; thus, it can always be argued that these gifts were voluntarily given out of love and may even go unreported. This raises questions about ambiguous terms like “the indirect demand of dowry will also be penalized” as per sections of the Dowry Prohibition Act. Some things must be given to a bride as per the custom of a particular form of marriage, these are voluntary gifts of ornaments and clothes. Kaushik also argues for an absence of a legal upper limit on such gifts. This can be seen in the modern materialistic concept of the big fat Indian wedding whose brunt is borne by the bride’s family and is a very prevalent concept in today’s world.
“Soon before death” mentioned in section 113 B or 304 B is another ambiguous term. The problem with the usage of this term is that death might not occur instantly after the cruelty but might be caused later . It would not be far-fetched to argue that a woman may commit suicide many months after the cruel act/s which affected her mentally, and she commits suicide. Similar is the problem with the arbitrary limit that only cases of deaths within 7 years of marriage will be presumed to have been caused by the husband and his family and thus the burden of proof will be placed on them. Kaushik also argues that some families plan these murders to show that the death wasn’t because of dowry.
Kaushik suggests that there is cultural resistance to the Enforcement of the Dowry Law, and this is a common practice prevalent in the case of transformative laws. Galanter suggested that traditional norms persist in influencing the interpretation and enforcement of modern laws and this is very clearly visible in the case of anti-dowry laws. There need to be concrete social changes that need to take place for these legislations to work. These social factors need to be taken into consideration to make the enforcement of the law more effective as suggested by Roscoe Pound. In some of his guidelines, he suggests that for the better functioning of law as a tool of social control and smooth functioning, historical aspects of the laws need to be studied to make it better and more effective by considering all the social factors.
In today’s modern, liberal, and democratic India the cultural dominance of dowry is present and active because of various social factors which have been prevalent forever but are evolving. First, at the hands of the British and then through modern forces of materialism, it evolved with time. The way in which dowry is asked or given may have become a little subtle and in different forms, as chosen by the groom’s family. The roots of this system are based on traditional customs but if looked deeper it only is only a perpetuation of patriarchy and the upper caste idea of marriage. Exclusion of these ideas from the common sense of at least most of society is the only way to get rid of this menace. To do that there needs to be a study of all the flaws of this legislation as well as the societal norms prevalent. These points also show us the resistance created by culture against transformative law.
About the Author
Devansh Singh is a 2nd Year Law Student at Jindal Global Law School.
Image source: https://kashmirglacier.com/2021/05/10/dowry-system/