Concept of Dowry and its legal prohibition
Shyam Kumar S
1st SEM LLB Evng Batch
Concept of Dowry
• Dowry is an ancient system which parents of the bridge to bridegroom or his parents money, goods,
and land honouring the bridegroom willingness to accept the bride in marriage
• Dowry was unknown is ancient societies women enjoyed full freedom and respect in society. Marriage
is considered as a sacred union. In the brahma form of marriage peculiar to upper class marriage the
gift of daughter include ornaments and articles. In royal families royal brides used to bring dowry of
hundred of cows.
• In ancient Hindu concept of kanyadhan and shrthidhana. In kanyadhan the father of bride offers groom
money property and gifts and in shrthidhana the bride gets jewellery. Later kanyadhan become
associate with varadakshina
• Gradually the position of women detonated marriage becomes a commercial transaction Bride’s father
started purchasing groom with consideration of cash and kind
• Locally, dowry or trousseau is called jahez in Urdu, Persian and Arabic; dahez in Hindi, dāj in Punjabi,
daijo in Nepali, çeyiz in Turkish, joutuk in Bengali, jiazhuang in Mandarin, varadhachanai in Tamil,
streedhanam in Malayalam, miraz in Serbo-Croatian and in various parts of Africa as serotwana, idana,
saduquat or mugtaf.
Legal definition of Dowry
• It is pertinent to note that S. 2 of the Dowry Prohibition Act, 1961, defines ‘dowry’. It provides for an elaborate
definition, and the Hon’ble Supreme Court has explained in Rajinder Singh v State of Punjab AIR 2015 SC 1359
• a. Dowry includes within its ambit both property as well as valuable security of any kind.
• b. Such property or valuable security should be given or agreed to be given.
• c. Such giving or agreeing to give can be: -
• i. By one party to a marriage to the other.
• ii. By the parents of either party. This excludes dower or mahr in case of people whom Muslim personal law applies
• iii. By any other person to either party to the marriage or to any other person.
• d. “Such property or security can be given or agreed to be given either directly or indirectly.”
• e. Such giving or agreeing to give can be at any time before or after or during the marriage.
• f. “Such giving or receiving must be in connection with the marriage of the parties.”
• Thus, we see that a definition of wide amplitude has been given to ‘dowry’. It can involve any person and any property,
depending upon the facts and circumstances of the case.
Judicial Interpretation of the term dowry
• Pawan kumar v. State of Haryana AIR 1998 SC 958
The court held that there need to be an agreement. A persistent demand for TV, Scooter were held
to be a demand in connection with marriage hence such demand would fall in the definition of
dowry
• Kamdeo Mehto v. State of Bihar (now Jharkand) 2006(1) RCR(criminal)495
In this case accused demanded service from the in-laws. The court held that service is a property
and would come under the definition of dowry
• Reena Aggarwal v. Anupam (2004) 3SCC 199
The court observed that any property or valuable security given or demanded as consideration for
marriage will account to dowry.
Judicial Interpretation of the term dowry
• Sushil Kumar and others v. State of Haryana 2005 (3)RCR Criminal 129
The court observed that any payment that is a “customary payment” ie: given at the time of child
birth or any other ceremonies as prevalent in different societies are not covered under dowry
• Sidram Narayan Batane v. State of Maharastra 1993 1 DMC 204 (BOM)
The court observed that reimbursement of marriage expenses does not account to dowry
• Mohammad Usman Warsi v. Mahammad Farooq 1990(27) ACC 376
The court held that Mehar does not account to be dowry
Dowry as a crime and Social evil
The practise of dowry has demeaned the Value of women in society. A dowry puts a huge financial obligation
to the brides family. It had many parents thinking a daughter means of losing money and son a means of
gaining money. The mother of a girl has often been subjected to trauma and mistreatment if the conceived
baby is not a male. Though sex determination is illegal this often happens and subsequently leads to feticide
or infanticide. This in affects the child sex ratio in India
Another important impact the cruelty and torture imparted to the bride which may be physical, mental,
emotional. Physical torture may include assault and even abetment to commit suicide
Cruelty in the form of torture or harassment of a girl with a intent of demanding property or valuable
security* constitutes a dowry crime torture may include physical, mental phycological torture
Cruelty in many dowry demand cases account to death or abetment of suicide of the girl. This is technically
treated as dowry death and is punishable under S 304 b of IPC
Dowry deaths is a serious evil in the society and therefore the matter a significant concern before the State
Governments and Govt of India therefore it was understood that specific law in this regard in order to
safeguard the interests and dignity of newly married women
Measures taken by the Provinces and states
Realising the evil nature of the dowry practise many states and provinces under erstwhile British
India had taken steps
The state of Mysore in year 1933 enacted a act which intended to discourage unscrupulous exaction
of what is called as the bridegroom’s price or varadakshina by making it ultimately beneficial to the
bride
Sind Deti-Leti act 1935 The provisional govt passed this act to deal with the system of dowry
Bihar Dowry Prohibition Act 1950 ,the Andhra Pradesh Dowry prohibition Act 1958 and the J&K
Dowry restraint Act 1968 were enacted to curb these practices in their states
Dowry prohibition Act 1961
• The Dowry Prohibition Act was passed on May 1, 1961, to eliminate the dowry
system in India This makes the ‘giving and accepting of dowry, punishable in
India with up to 5 years of imprisonment and fine extending up to Rs.15,000 or
the value of dowry, whichever is more. The Dowry Prohibition Act 1961 has seen
a couple of amendment in the form of the Dowry Prohibition (Amendment) Act
1984….and 1986 respectively. After the first amendment in 1984, many of the
women representatives argued that the amendments thus made were still not
enough to tackle the situation of Dowry related matters in the society and thus the
act was subsequently further amender in the year 1986 to make the situation better.
Dowry prohibition Act 1961
The S.2 of the act defines the practice of dowry. Any property or valued security
provided or agreed to be given, either directly or indirectly, is referred to as "dowry." It
can be done by one spouse to the other spouse in a marriage. Otherwise, it might be paid
to either party to a marriage or to any other person, at or before [or any time after the
marriage] [in connection with the marriage of the aforementioned parties but does not
include] dower or mahr in the case of those to whom the Muslim Personal Law applies
(Shariat).
The penalty for giving and taking dowry is specified in S.3 of the Act.
So, just as the bridegroom's family would be liable for taking money, the bride's family
would be accountable for agreeing to give dowry. The penalty would be a minimum of
five years in prison and a fine of not less than fifteen thousand rupees or the value of the
dowry, whichever is higher. According to the fourth section, anyone who directly or
indirectly seeks dowry from the bride's parents, relatives, or guardians would be
penalized with a minimum of six months in prison and a maximum of two years in
prison, as well as a fine of ten thousand rupees.
Dowry prohibition Act 1961
• In Arjun Dhondiba Kamble v. State of Maharashtra 1993 (3) Bom CR 473
The court held that "dowry" in the sense of the expression contemplated by the Dowry Prohibition
Act is a demand for valuable security having an inextricable nexus with the marriage, i.e., it is a
consideration from the bride's parents or relatives to the groom or his parents and/or guardian in
exchange for the agreement to marry the bride-to-be. However, a demand for property or significant
security that has no connection to the marriage payment will not be considered a dowry demand.
Pandurang Shivram Kawathkar v. State of Maharashtra II (2001) DMC 448
The Court held that the mere demand of dowry before marriage is an offence.
Indian Penal Code, 1860
The Indian Penal code under certain provisions, criminalizes certain acts which could be related to the
practice of dowry.
• Section 304-B discussed dowry death. It states that if a woman dies from burns or bodily injury within
seven years* of her marriage and it is proven that 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.
Anyone who commits dowry death faces a minimum sentence of seven years in prison and a
maximum sentence of life in prison.
Vemuri Venkateshwara Rao v. State of Andhra Pradesh 1992(1)crimes 287 AP
Guidelines regarding this section were established. The accused is demanding dowry and harassing the
deceased, the deceased has died, and the death occurred under unusual circumstances. Because there was
a demand for dowry, harassment, and death within seven years of marriage, the other elements follow
naturally, and the offence under section 304-B is established.
* State of Punjab v. Iqbal Singh 1991AIR 1532
Indian Penal Code, 1860
• Cruelty to Women [Sec. 498-A IPC and allied sections]-
• Section 498-A was introduced in the year 1983 to protect married women from being subjected to
cruelty by the husband or his relatives. A punishment extending to 3 years and fine has been
prescribed. The expression “cruelty” has been defined in wide terms so as to include inflicting
physical or mental harm to the body or health of the woman and indulging in acts of harassment with
a view to coerce her or her relations to meet any unlawful demand for any property or valuable
security. Harassment for dowry falls within the sweep of latter limb of the section. Creating a
situation driving the woman to commit suicide is also one of the ingredients of “cruelty”.
• Section 498-A – Husband or relative of husband of a woman subjecting her to cruelty
— Whoever, being the husband or the relative of the husband of a woman, subjects such woman to
cruelty shall be punished with imprisonment for a term which may extend to three years and shall
also be liable to fine.
• Explanation. — For the purposes of this section, “cruelty” means—
• (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or
to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
• (b) harassment of the woman where such harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable security or is on account of
failure by her or any person related to her to meet such demand.
Cases under 498A
Niraj Trivedi v. State of Bihar and Ors. 9W.P (Crl.)no.415 of 2004.
In this case the Delhi High Court held that ‘the matters related to section 498A of IPC can be
investigated only where there has been a commission of any crime.’ In this particular case the
fundamental requirement for the investigation in matters related to section 498A was made clear.
Onkar Nath v. State (NCT of Delhi) (2008) 2 SCC 561.
It was held that the provision should not be used as a device to achieve oblique motives. This
judgement can be treated in a way as an advice of the court relating to the misuse of this provision.
PROTECTION OF WOMEN FROM DOMESTIC
VIOLENCE ACT 2005
• This act was enacted with an objective to provide protection to women against the atrocities
faced by the women inside the 4 walls of her matrimonial house. It is self-evident that mainly in
the initial years of marriage, the domestic violence can take place in relation to demand of dowry
and also the fact cannot be denied that as women can be subjected to violence anytime and after
any duration, This Act provides to a woman protection from all major types of abuses namely
physical, mental or emotional and also against any conduct which harms the dignity of any
women so this Act is a step towards the safeguarding of women in a dual way.
•
Indian Evidence Act, 1872
• Presumption as to abetment of suicide by a married woman.—When the question is whether the
commission of suicide by a woman had been abetted by her husband or any relative of her husband and
it is shown that she had committed suicide within a period of seven years from the date of her marriage
and that her husband or such relative of her husband had subjected her to cruelty, the Court may
presume, having regard to all the other circumstances of the case, that such suicide had been abetted by
her husband or by such relative of her husband." Explanation.—For the purposes of this section,
“cruelty” shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860). 11
• An important thing to note here under this section is that as per the language of the section it can be
inferred that according to the presumption, the burden of proof initially is upon the male accused to
prove his innocence as accoding to Section 113A it shall be presumed that the husband or his relatives
have abetted the suicide of the wife while here the onus of proof lies on the opposite party.
Misuse of Dowry related laws
• Various provisions and statutes relating to dowry were made with the view of protecting women
against the social evil of dowry in the society but on the other hand it can be noticed and seen
that there have been numerous and countless instances of women misusing the laws in order to
or with an intent to falsely get their male counterpart and his family members convicted for an
offence which was never done by them. Even there are instances when women falsely accuse
man in order to defame him and his family. The following are some of the case laws dealing with
the point of the misuse of section 498A of Indian Penal Code:
• Savitri Devi v. Ramesh Chandra &Ors.(II 2003 DMC 328)
• The Honourable Court held very evidently that ‘There has been a serious misuse of the
provisions to such a limit that it was striking the foundation of marriage itself and the same was
held to be ‘Not Good’ for the society at large.”
• In Jasbir Kaur v.State of Haryana 1990 2 Rec Cri R 243 , the Punjab and Haryana High Court
observed as follows: “It is known that an estranged wife will go to any extent to rope in as many
relatives of the husband as possible in a desperate effort to salvage whatever remains of an
estranged marriage.
Conculsion
It is evident that the practice of dowry is deep rooted in the Indian society
and still practiced. A primary reason for the same is the prevailing gender
inequality in the Indian society. Parents in India prefer to have a male child
rather than a female child. Daughters are often considered to be a burden
which results in numerous cases of female infanticide on the daily basis.
People are not hesitant to provide dowry because it has established a
custom, and despite numerous regulations, only a small number of
violators are found guilty. This social evil can only be removed if people's
mentalities change. When people realize that giving and receiving dowry is
the same as selling their daughters and boys, the system's roots will begin
to erode, and the practice will be destroyed, although that day appears to be
a long way off.
Conclusion
• It is to be understood that with great powers comes great responsibilities.
Thus, when anti dowry laws are prevalent, it is the duty of the people to
not misuse such laws. It has become normal practice to employ anti-
dowry legislation to blackmail a husband. The amount of bogus 498A
cases or incidents of misapplication of anti-dowry legislation has
prompted India's Supreme Court to label it "legal terrorism." Because of
the law's bias, women have been able to file false cases against their
husbands for a variety of reasons, including: getting out of the marriage
due to her inability to adjust to the new family, blackmailing the husband
to extort money, and/or falsely accusing the husband in order to rekindle
with a man she was previously associated with or had an extramarital
affair with.
References
• https://thefactfactor.com/tag/dowry
• Legal Aspects of Dowry in India International Journal for Law
Management Vol3 Iss 4 1583
• Dowry System in India Shodh Saritha Jan Mar 2021 Vol 8 Issu 29 Pages
142-146
• Dowry System in India 2022 IJCRT Vol 10 Issue 1 Jan 2022
