CRIMINOLOGY

Social Legislations and Crime

The Social Practice of Dowry and the Dowry Prohibition Act

Quadrant I: Description of the Module

Description of Module
Subject Name Criminology
Paper Name Social Legislations and Crime
Module Name/Title The Social Practice of Dowry and the Dowry
Prohibition Act
Module Id 8
Pre-requisites A basic idea of the prevalence of Dowry system in
India is necessary

Objectives To understand the roots of the Dowry System in

India and explain students how and why the
dowry system evolved

To acquaint students with the basic provisions of

the Dowry Prohibition Act, 1961

To understand the social context in which the

legislation was enacted

To assess the efficacy of this legislation in

eliminating the dowry system

To explain how Dowry System endangers societal

balance and how its eradication is of great
importance

Key Words Dowry, Social, Problem, Prohibition, Matrimonial

Cruelty, Vedic Age, Medieval, Women,
Agreement, menace, social status, economic,
Indian Penal Code, Property, Valuable Security

Quadrant II: E-text

Introduction:

Evolution of Dowry as a Social Problem:

The evolution of the phenomenon of Dowry has deep-rooted and highly noxious connection
with the social status of women. To understand how dowry developed into a menace that it
is today, it is necessary to understand two premises: firstly, the decline in social status of
women and secondly, the inevitable economic ramifications of their degenerated social
status.

Transition in Social Status of Women in the Later Vedic Age:

The practice of dowry is very common in India and has been carried forward in the name of
tradition and culture for several centuries. Historically, dowry is said to have begun in the
Later Vedic Age in India. Indian society is believed to have had no such practice like dowry
in the early stages, i.e. the Rig-Vedic Age. However, with moral corruption creeping into
Indian society at all levels in the Later Vedic Age, the position of women started to decline.
There were various reasons for the erosion of moral values in Indian society but the primary
one was the monopoly of Brahmins on all intellectual and spiritual matters. As a
consequence of Sanskritisation, a certain degree of social purity was attached to rituals, rites
and spiritual practices and as a necessary concomitant of socially approved terms of purity;
exclusivity of a class of people also arose in matters concerning knowledge and spirituality.
This marked the beginning of manipulation of available sources of religious literature as well
as misinterpretation of the content therein. Sanskritisation can be said to be the reason for
replication of dowry across all communities in India. Sankritisation is relevant because once
the dowry system started being practised among the well to do upper castes, it was then
replicated among the lower castes in India. It is particularly relevant in the context of India
due to prevalence of caste hierarchies.

Consequentially, all religious instructions were interpreted to the disadvantage of women.

Whereas in the Early Vedic Age, women had the privilege of education and intellectual as
well as spiritual advancements, in the Later Vedic Age, freedom of women was curtailed and
their role were limited to domestic and household activities. On the other hand, men,
particularly, those belonging to the upper class started gaining more powers and privileges in
society. The fulcrum of power relations in Indian society at this juncture was the upper class
male population who dominated literature, fine arts, spiritual practices and philosophical
deliberations. A necessary result of the uninhibited freedom was the creation of a reckless
power structure that dominated Indian society, culture and traditions for a very long time.
With a massive decline in the status of women and the concomitant meteoric rise of men as
intellectual and spiritual masters of a powerful civilisation, potentially noxious and relatively
permanent social norms and values were dictated during this phase. They were a vicious
concoction of arrogant exploitative tendencies and selfish confinement of the world of
knowledge to the privileged few. With the doors of education, literacy and knowledge closed,
women were then conditioned to believe that marriage and rearing of children was the only
role they had to play in society. The competence of women was tested by parameters such
as child-bearing capacity, craft and culinary skills, ability to nurture and rear children, etc.
With these were added abstract conceptions of sacrifice, care, etc. with unlimited
denotations and highly elastic connotations.

Economic Consequences and Growth of Dowry:

An expression that is often used by scholars to depict the role of women in the Vedic Age is
“queen of the household”. The phrase signifies that women were supposed to dictate
everything in connection with internal matters of the household and men were supposed to
comply. While that may have been the ideal and may also have been practised for some
period possibly, what cannot be denied is that very soon, the position of women was brought
down to that of slaves. The reason behind it was the negligent role played by women in the
economic aspects of society. With men being bread-winners, they were an important link in
the economic equations of Indian society while women were seen as negligible spectators.

Gradually, they started being treated as chattels and objects. Since men were supposed to
be the bread-winners and run the economy of the household, upon marriage, they were
supposed to look after the economic needs of their wives as well. As it was taken for granted
that a married woman would not be an earning member of the family, at the time of
marriage, she was sent to her matrimonial home with gifts, money and essential
commodities.

It is difficult to state with certainty whether giving gifts to women at the time of marriage
started as a compulsory practice or whether it was a voluntary one. A plausible theory is that
it could have started as a voluntary practice and later on, “gifting” may have turned into a
mandatory social practice giving rise to the present-day problem of “Dowry”. Traditionally, in
the Indian system of marriages, eight forms have been recognised: Brahma, Arsha, Daiva,
Prajapatya, Gandharva, Asura, Rakshasa and Paishacha. Of these, the Brahma form of
marriage which involves the gifting of the daughter with jewellery is said to be the best and
most widely recognised. Such practices and social mores have contributed to the growth of
the dowry system.

Thus, socially speaking, Dowry is a practice that has its connections with women being
treated as economic commodities and not equal human partners. It is the consequence of a
thoroughly imbalanced social equation-one that tilts in favour of men and is heavily biased
against women. Traditionally, women have not been recognised as having right to an equal
share in property of their parents. For example, in the Mitakshara school of law, a daughter
has not been considered as a coparcener. This further aggravates the problem of dowry.

Dowry in the Modern Age:

In ancient and medieval times, practices like polygamy, Sati, etc. complicated the problem of
dowry by compromising the status of women further. With women being treated as economic
burdens and the birth of a daughter being treated as a social disadvantage for the family, the
system of Dowry continued to spread further. In modern times, the practice has been seen in
almost all parts of India but has been the most prominent in states like Bihar and Uttar
Pradesh where the price to be paid by a woman’s family for marriage is directly proportional
to the education, qualifications and social status of the groom. Dowry, as a social practice
has been linked with the upper strata of Indian society.

The practice of dowry has grown in India shamefully over the years. There are very few
communities which are free from the evils of this practice but in the rest of the country, it is
present in varying proportions.

Dowry becomes a toxic social problem on account of the fact that many women have been
killed brutally for the inability of their parents to meet the economic demands of the groom’s
side. Apart from that, it erodes the basic dignity to which every human being is entitled,
irrespective of gender or social status.

As a consequence of Dowry and the resulting treatment of women as economic burdens,

some very serious crimes are perpetrated against them. One such offence is female
foeticide. Such crimes bring out the worst side of humanity. Killing a girl-child even when she
is not born (female foeticide) or killing her right after her birth (female infanticide) in order to
avoid the economic burden of raising and marrying her off are serious social problems that
depict a rotten society.

Hence, dowry is not just one problem in itself. It is the genesis of almost all the disabilities
women suffer from, in the social context. A chief consequence of this social menace is the
declining sex ratio in India.

The Indian Penal Code makes a provision in section 304-B for penalising homicide resulting
from dowry.

Dowry Prohibition Act, 1961:

The realisation that the practice of dowry needs to be curtailed drove the legislature to pass
the Dowry Prohibition Act in 1961. The purpose of this legislation was to prohibit Dowry in all
its forms and manifestations. The Act penalises not only the taking of dowry but also the
giving of it. The purpose of this legislation is to build pressure on both the bride’s and
groom’s sides to abstain from the use of dowry. It was realised over a period of time that if
parents and relatives of some women agree with the proposition of dowry, whether less or
more, it would be impossible to stop the practice. Further, economic capacity of a segment
of people often becomes a legitimate ground for expecting dowry from others. As a
consequence, people with lesser economic capacity find it difficult to get their daughters
married, thus perpetrating and carrying forward the practice of dowry.

So, the only way to check the growth of dowry, as envisioned in the Act, is to stop not only
the acceptance but also the giving of dowry.

The term ‘Dowry’ has the following essential elements (s.2 Dowry Prohibition Act, 1961):
a) Firstly, dowry includes any type of property as well as valuable security
b) Secondly, such property or valuable security may be given or agreed to be given by
either party
c) The giving of property or valuable security may be direct or indirect
d) The transaction must be in connection with marriage. It may be before, after or at the
time of marriage.
e) Dowry does not include the Islamic concept of Dower or Mahr
f) Likewise, dowry also excludes from its purview all such gifts which may be given to
either party to the marriage in the form of jewellery, cash or other articles.
As seen above, the practice of dowry is basically a transaction in which property or
valuable security is transferred between the parties to marriage or between their parents.
‘Property’ includes within its ambit both moveable and immovable property. Likewise,
valuable security as defined in the Indian Penal Code is any document that can create,
alter or extinguish rights of individuals.

A salient feature of the Dowry Prohibition Act, 1961 is that it declares under section 4
that any agreement for the giving and taking of dowry shall be void. Section 8 of the Act
goes on to provide that offences under this Act will be non-cognisable and non-
compoundable.

A major demerit of the legislation is that it protects the exchange of “gifts”. Although the
idea of a gift refers to a voluntary transfer of property or valuable security from one
person to another, many constituents of dowry can be in the garb of gifts. So, in India,
dowry still continues in society as a gift on most occasions.

Apart from that, a major loophole of the Dowry Prohibition Act is also in the manner in
which the indirect transactions should be understood. It is very difficult to establish
through evidence that certain circumstances amount to indirect demand for dowry.
Considering the fact that demands for dowry are private affairs, proving the existence of
circumstances that amount to indirect demands for dowry are very difficult.

The temporal element in the definition of dowry is equally important for a detailed
analysis. It is significant to note that the Act clearly states that demand for dowry can be
made not only at the time of marriage but also before and after marriage. What needs to
be justified is that it was made in connection with marriage. Once that is established, the
temporal element is of little importance.

Also, demand for dowry may be made at any stage of the marriage. Unlike section 304-B
of the Indian Penal Code (Dowry Death) which can apply only within 7 years of marriage,
the Dowry Prohibition Act, 1961 does not have a period of limitation. This is in sync with
the social reality of marriage in India. Although demands for dowry are usually made
within the initial few years of marriage, they can also be made after marriage for transfer
of valuable property.

Socio-legal Impact of the Dowry Prohibition Act

The Dowry Prohibition Act is an important legislation and to assess its efficacy one has
to ascertain its impact from both social as well as legal perspectives. While the
understanding of the term “social impact” is pretty clear, one may have doubts about the
“legal impact” of this legislation. The factor of “dowry” is extremely crucial in the penal
law of India, i.e. the Indian Penal Code. For example, dowry is a significant factor in the
offence of Dowry Death covered under section 304-B of the Indian Penal Code.
Likewise, demand for dowry also amounts to Matrimonial Cruelty under section 498 A of
the Indian Penal Code. So, for instance, if a woman has been the victim of Dowry Death,
no relief can be given to her family if they are unable to establish it in a court of law that
the death resulted from demand for dowry.

In this context, it is important to assess how the Dowry Prohibition Act has been applied
in various cases by our Courts and where exactly the prosecution has found it difficult to
establish that a case for dowry can be made out in a given case.

In the case of State of Andhra Pradesh v. Raj Gopal Asawa and Another 1, the husband,
brother- in- law and mother-in-law of the deceased were tried for death of the wife by
suicide. Evidence was put before the court to show that demands for dowry were made
by the mother as well as the brother-in-law. It was also shown that the husband’s role
was tacit. While all other elements of dowry death were present and there was a
conviction in the lower court, the High Court acquitted the appellants on the ground that
there was no evidence of any agreement before marriage for payment of dowry.
Surprisingly, the Court also held that demands made after marriage would not qualify as
dowry. However, upon appeal the Supreme Court laid down that there is no requirement
of any agreement before marriage for demand of dowry. It was also observed by the
Court that the demands for dowry need not be direct and may be indirect and such
indirect demands will also qualify as Dowry.

Another important section of the Dowry Prohibition Act is the prescription of penalty of 5
years for giving as well as taking of dowry (s. 4, Dowry Prohibition Act, 1961) However,
given the social reality of India, there may be occasions in which the bride or her family
may have no option but to concede to the demand for dowry. In such cases, will the
woman or her family be made liable under the Act? This question was the subject matter
of the case of Puja Saxena v. State and Another (Puja saxena v State and Anr. 2010) in
2010. In this case, the groom’s side had made a demand for dowry at the time of
engagement. With the fear of the engagement being called off, the bride’s side had no
option but to concede to the demand of the opposite side.

Such situations are extremely common in India as calling off an engagement or marriage
is considered to be a loss of honour and a matter of irreparable loss of dignity for the
bride’s family, especially in middle-class society. Keeping this social reality of India in
mind, section 7 (3) of the Dowry Prohibition Act was drafted. The section says that
cognisance shall be taken of the circumstances under which a party had conceded to the
demands for dowry. If the consent was given under circumstances of force or duress, the
protection of section 7(3) will be available to the victim. Accordingly, in Puja
 Saxena’scase, the victim was granted the benefit of section 7(3) and penalty under
section 3 was not given to them.

Conclusion:

So as to conclude, the Dowry Prohibition Act is a very important social legislation. It has a
far-reaching impact on curbing the evil practice of dowry although it also has its inherent
defects. However, a significant contribution of the legislation is that it is deeply
contextualised to the social realities of India in relation to dowry. Nevertheless, some
changes need to be made, especially in the definitional aspects of the legislation.

Summary:

- Historically, dowry system is said to have been introduced as a consequence of

moral corruption of society in the Later Vedic Age.
- In the Later Vedic Age, freedom of women was curtailed and they were expected to
be in charge of the domestic front only.
- Lack of literacy and education was a primary reason for the declining status of
women.
- Due to the weak position of women, they were considered to be economic liabilities
and this is the basis of the inception of Dowry System.
- The realisation that the practice of dowry needs to be curtailed drove the legislature
to pass the Dowry Prohibition Act in 1961 and it penalises both parties for giving and
taking of Dowry.
- Dowry includes all types of property as well as valuable security.
- Gifts and mahr are excluded from the domain of Dowry.
- There is a prescription of 5 years, penalty for giving and taking of dowry.
- There are several instances of death because of non-payment of dowry.
- Dowry Deaths are covered under section 304-B of the Indian Penal Code.
- Demanding dowry also constitutes Matrimonial Cruelty under section 498 A of the
IPC
- There are some loopholes in the Dowry Prohibition Act of 1971 as a consequence of
which curbing the practice of dowry completely is a difficult proposition
- In Puja Saxena’s case, the protection under section 7(3) of the Act was given and the
bride’s parents were not penalised as the factor of coercion was present as a
consequence of which they had to agree with the proposition of giving dowry.
- The Dowry Prohibition Act not only has a social but also a significant legal impact on
Indian society.

References

1. Dowry Prohibition Act 1961 s.4

2. Dowry Prohibition Act 1961 s.4

3. Puja Saxena v. State and Anr., 4 LRC 82 (2010).

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AIR 2004 SCC 1933