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Published : April 13, 2016 | Author : Prashanti
Category : family law | Total Views : 1400 | Unrated

  
Prashanti
Miss. Prashanti Upadhyay ,LL.M, Student, Law College Dehradun, Arcadia Grant P.O. Chandanwari, Premnagar, Dehradun, Uttarakhand- 248007
 

Dowry laws: Loopholes and Possibilities of misuse

There is hardly any other malady of greater magnitude, which the society is facing today than the curse of dowry demand and dowry death. It is commonly talked of in the society that the newly married wife is expected to be a gold mine, failing which they treat her as combustible material, and because of this cruel behavior, the girl, who comes to the matrimonial home with great expectations and dreams, has to resort to suicide or be burnt alive by the in-laws.

It is ironic that in India dowry was originally designed to safeguard the woman and it was the provision of " Streedhan" ("Stree" meaning woman and "dhan" meaning wealth) in the form of money, property or gifts given solely to the woman by her parents at the time of her marriage. "Streedhan", an inheritance was meant to exclusively belong to the woman at the time of her marriage. The abuse of this custom eroded and aborted the original meaningful function of dowry as a safety net for the woman and was corrupted to become the price tag for the groom and consequently the noose for the bride.

The government has tried to combat the growing incidence of dowry death by enacting various laws to prevent such deaths from occurring and to punish those responsible when they do occur. The government's first effort came with the Dowry Prohibition Act of 1961. To increase its effectiveness, the government has twice amended the Act, in 1984 and 1986. The 1986 amendments require the police and a judicial magistrate to investigate every unnatural death of a woman married less than seven years. Currently, the Act prohibits the "giving, taking, or demanding of dowry." The Act defines "dowry" as property that is given or agreed to be given to a newlywed by the other newlywed or either set of parents "in connection with the marriage." Violations of the Act are "punishable with a term of imprisonment of between six months and two years, plus a fine of up to ten thousand rupees or the value of the dowry, whichever is higher.

In addition to criminalizing dowry, the Indian Parliament has criminalized dowry-related violence against women. The Indian Penal Code, amended in 1983, outlaws dowry-related cruelty by the husband and his relatives. The Parliament further amended the Penal Code in 1986 to explicitly provide that dowry deaths are punishable with imprisonment between seven years and life. Additionally, the Code of Criminal Procedure now mandates a police investigation into deaths of women under suspicious circumstances that occur within seven years of marriage. Finally, in addition to criminal laws, the Parliament amended the Indian Evidence Act, which now creates a presumption of dowry death whenever a woman is subjected to dowry-related cruelty or harassment soon before her death.

In spite of legal breakthroughs, shocking statistics on dowry deaths continued to show up in Indian newspapers. The 90's showed a steady yearly increase in bridal death tolls with many more deaths unreported. Like clockwork every 12 hours a dowry related death claimed to have taken the lives of over 20,000 women across India between 1990 and 1993. And the dowry death statistical beat goes on…live, time, emit, evil…
A total of 2988 dowry death cases are pending in the High Courts all over the country. In addition 13251 dowry death cases are pending in the subordinate courts throughout the country. The highest number of dowry death cases comprising 926 such cases are pending in the Rajasthan High Court followed by 842 such cases in the Punjab and Haryana High Court 436 cases in the Bombay High Court 397 cases in the Madhya Pradesh High Court 141 cases in the Himanchal Pradesh High Court 140 in the Andhra Pradesh High Court 71 in the Patna High Court and 35 in the Kerala High Court. As for the Karnataka High Court the combined figure of 2064 cases is pending both in the High Court and the subordinate judiciary of the State of Karnataka. In the case of subordinate courts the highest number of 4974 dowry death cases is pending in the State of Maharashtra followed by 2213 such cases pending in the State of Bihar, 2064 cases in the State of Karnataka, 1373 cases in the State of Andhra Pradesh, 1349 cases in the State of Madhya Pradesh, 936 cases in the State of Jharkhand, 705 cases in the State of Punjab, 152 in the State of Kerala and 85 cases in the State of Himachal Pradesh.

While no time limit has been prescribed by law for courts to decide dowry death cases both the Government and the Judiciary are concerned with the pendency of such cases. Meanwhile various steps are being taken to expedite disposal of cases by the courts. These include amendment of the Code of Criminal Procedure increase in the number of judges or judicial officers appointment of special judicial and metropolitan magistrates and setting up of fast track courts.

India's statutory laws are ineffective in preventing dowry deaths and punishing the perpetrators for four reasons:

1.Vague Statutory Language

First, the statutory language is too vague to effectively stop the practice of demanding or giving dowries. It is actually a problem of under inclusiveness. As originally construed by the courts, dowry included only money and property given at the wedding ceremony. Consequently, the Act did not prohibit gifts demanded after the wedding. The Act's definition of what constitutes dowry needs to be expanded to prevent families from evading the Act's proscription against dowry.

2.  Non enforcement of Existing Laws

Equally at fault in the continuing problem of dowry deaths is the non-enforcement of criminal laws by police and prosecutors. Although the Ministry of Home Affairs has issued specific instructions to police officers as to how to investigate dowry deaths, the police rarely follow these guidelines and frequently fail to investigate properly. Instead, police often dismiss such crimes as family disputes and report them as "kitchen accidents." Less than ten percent of apparent dowry-related deaths are actually investigated.

Even when investigations are carried out they are generally incomplete. The police fail to take photographs or fingerprints and often base their investigations primarily on statements made by relatives. Any witnesses that do exist are intimidated into silence or are reticent to get involved. If a death cannot be written off as accidental, the police take months and even years to file a charge sheet. By this time, any evidence that was available has disappeared. In addition, prosecutors are often reluctant to prosecute the alleged perpetrator. Even when prosecutions do eventually make it to trial, the faulty investigations provide judges with an excuse to acquit.
Police corruption is largely responsible for such slipshod investigations and prosecutorial delays. There is evidence that police are bribed by husbands and in-laws in exchange for agreeing not to make a formal investigation. It is also not uncommon for police to conspire with the accused to falsify cases as suicides or accidents. This falsification may even involve altering the woman's dying declaration, which is often the only evidence of any wrongdoing by the husband and in-laws. Such an alteration by the police may effectively prevent conviction.

Even the judiciary contributes to the small number of dowry-related prosecutions. Dowry complaints are given such low priority that it can often take up to one year before the court even agrees to grant a hearing. Moreover, courts often suppress certain crucial evidence, such as suicide notes and dying declarations, on technical grounds.

3.Cultural Attitudes toward Women

Cultural attitudes toward Indian women provide the third impediment to effective enforcement of laws prohibiting dowry and criminalizing dowry murder. From childhood, an Indian woman is taught that she will marry the man her family chooses and that she will have to win over the family into which she marries. Once married, a woman's maternal family shuns her; she must make a place for herself in her new family. Moreover, she must serve her husband selflessly, bear everything without complaint, and never attempt to return to her maternal family. Hindu religious texts reinforce this theme, instructing women to remain devoted to their husbands no matter what their husbands do to them. Social mores dictate that a woman must never speak out against her husband, and a broken marriage is viewed as a disgrace both to the woman's family and to her own honor. Consequently, Indian women rarely seek divorces or accuse their husbands or in-laws of violence. Instead, they suffer harmful abuse in silence. Women will not complain about a husband's abuse or even a murder attempt, refusing to implicate their husbands even on their deathbeds. As a result of these cultural attitudes, parents and neighbors rarely offer to help the new bride. Even when a bride has the courage to seek help, her parents almost always refuse to allow her to return home out of fear of public humiliation. Thus, the bride, who has nowhere to turn for help, is placed at great risk of a dowry-related death.

4.Economic Discrimination against Women

Finally, legalized economic discrimination against women impacts the efforts to halt dowry deaths by preventing women from achieving economic independence and freedom from their aggressors. Because of laws governing the ownership of both real and personal property, women have "little control over land use, retention, or sale." Of the personal property laws, only Hindu family law distinguishes between "ancestral and self-acquired property in the matter of inheritance." Under these inheritance laws, women are prohibited from heading households or inheriting ancestral property. Instead, the only way women can inherit their father's or husband's personal property is through testation. Although in theory the Hindu Succession Act gives Hindu women equal inheritance, "in practice, married daughters are seldom given a share in parental property." Similarly, Islamic personal law recognizes the inheritance rights of both sons and daughters, but it mandates that the daughter's share be just one half of the son's because sons are responsible for caring for their elderly parents.

In addition to discrimination against women in the matter of inheritance, women are discriminated against in the area of employment. No law guarantees women equal employment opportunities. Because it prevents women from becoming economically independent, Indian law compels them to remain in abusive relationships, even if their husbands have tried to murder them. Compounding this problem are existing laws that make obtaining a divorce difficult and that fail to provide adequate support for the few women who are successful.

Sunil Bajaj v. State of M.P. is one of those land mark cases which points out towards the drawbacks of the section 304-B in the sense of its misinterpretation by the lower courts and use of it as a weapon of revenge against the innocent persons. In this case Sunil Bajaj married Suman (deceased) in 1991. He was asking her wife to bring money from her parents and parents were giving money to her from time to time. In June 1995 Suman told her mother that her husband was demanding an amount of Rs. 20,000 and that he had illegal relations with some girls of doubtful character and used to bring those girls to his house. Those girls have beaten her also. That the appellant was ill-treating and harassing her. The prosecution says that all that cruelty of the appellant led her to commit suicide by burning herself on August 28, 1995.

In this case the question of law before the Apex Court was that whether the conviction of appellant was in the interest of justice under section 304-B I.P.C. in the light of the facts and circumstances of the case?
It was held by the Hon’ble Justice Shivraj V. Patil:
It is unfortunate that the trial court did not properly and objectively consider the evidence to reach a conclusion that the appellant was guilty of the offence u.s. 304-B I.P.C. the High Court also did not appreciate the evidences as being the first court of appeal and had disposed the appeal in a summary way, confirming the order of the trial court. In the light of the above stated facts and evidences both the courts have committed a serious and manifest error in not looking that the crucial ingredient of the offence under section 304-B was not established that the deceased was subjected to cruelty or harassment by the appellant soon before her death in the connection of the demand of dowry. So the judgment of the High Court suffers from infirmity and illegality.

So the appeal is allowed and the order and conviction passed by the High Court and the trial court is set aside and the appellant is acquitted.
Before coming to any conclusion there is a dire need of analyzing the statutory provisions about dowry death critically.

By analyzing the provisions of dowry death we may deduce following from various cases that how they have been actually interpreted by the judiciary:
(1) Once ‘cruelty’ as envisaged by section 498-A is proved, and then it will not be necessary to prove that cruelty as mentioned, is the cause of suicide/ dowry death.
(2) The legislature has presumed that cruelty, as mentioned, is the sole cause of suicide/ dowry death.
(3) The offence u/s. 304-B and S. 306 I.P.C. will be held proved without any reference to act of accused in the event of suicide/ dowry death. Even the accused may not be intending, planning, visualizing or anticipating the act of suicide / dowry death.
(4) It will not be necessary for the prosecution to prove that the suicide/ dowry death was abetted by the accused.
(5) The presumption of abetment will be available, without there being any evidence of abetment as provided by S. 107 I.P.C.
(6) The presumption, which was discretionary u/s. 113-A of the Evidence Act, has been made mandatory u/s. 113-B of the Evidence Act and S. 304-B I.P.C. thus the court is bound to draw the presumption.

Section 304-B of the Penal Code and S.113-B of the Evidence Act assume that the sole cause of dowry death/ suicide is cruelty as envisaged in S. 498-A. this assumption is not based on any scientific data. The Punjab and Haryana High Court in Balbir Singh v. State of Punjab held that a wife might have chosen to end her life for reasons, which may be many, other than that of cruelty. The following causes, other than cruelty, have been held to be cause of suicide or death, by various courts:
(1) One third of the people, who kill themselves have been found to be suffering from mental illness.
(2) The motive for the act that operates on the mind of the author of the act is not always known or is difficult to discover. Thus the difficulty is to find actual cause of death.
(3) Everybody has different level of tolerance. The coping mechanism is not uniform. Some are able to withstand various pressures, while others succumb to them.
(4) A wife committed suicide since two letters from her paramour had come to the knowledge of her husband.

It is not difficult to find cases where the motive for the death may never see the light of the day. The proof may have disappeared with the death of the wife. For the reasons of self-condemning proof, she may have chosen to keep it secret, where the husband or his relatives may not be in a position to lead the evidence to it.

Then the conviction will follow under the presumption, though they are innocent, there is not any cruelty.

The procedure prescribed by law must be fair, just and reasonable, not fanciful, oppressive or arbitrary. Where an assumption not supported by any scientific data existed, the law was declared unconstitutional.

There is nothing in common between S. 498-A and S. 306 and S. 304-B of the Penal Code. The motivation of two offences may be quite different. The ingredients of cruelty (S. 498-A) and abetment (S. 306) or dowry death (304-B) are altogether different. The circumstances in which the two offences are committed are quite different.

It would appear that there is no nexus between cruelty in section 498-A and abetment of suicide/ dowry death.

The legislature can provide a more stringent punishment for cruelty u/s. 498-A but cannot enact law that cruelty will henceforth be treated as abetment of suicide or dowry death. For example, rape of a girl of 8 years is even worse than murder, but the legislature cannot provide that such a rape will be considered as murder.

The S. 304-B provides for a minimum sentence of 7 years rigorous imprisonment, without providing that for reasons to be recorded, the court can award fewer sentences. There can be case of ailing mother-in-law or a pregnant sister-in-law at the time of conviction. Thus it excludes judicial scrutiny or discretion in showing leniency or clemency.

The observation of the Punjab and Haryana High Court in Balbir Singh v. State of Punjab is very relevant regarding the misuse of these provisions:
These salutary provisions cannot be allowed to be misused by the parents or relatives of psychopath wife, who may have chosen to end her life for other reasons than cruelty. The glaring reality cannot be ignored that the ugly trend of false implications with a view to harass and blackmail an innocent spouse and his relatives, is fast emerging. It is time to stop this unhealthy trend, which results in unnecessary misery and torture to numerous affected persons.

There should not be any factor of sympathy towards the family of the deceased and that of hatred towards the accused at least in the mind of the judge to part real justice, not a biased one.

It has been noticed in the cases coming that even when the police got recorded a dying declaration before a Magistrate and that the injured wife did not allege any foul play, but after consulting with her parents and relatives she makes a second dying declaration and alleges many things. There is no provision in the existing law, which may act as a safeguard against these types of practices.

In 1995 there was much media exposure about the Ambati family and the legal encounter with India's Dowry Act. The Ambatis, resided in the United States and were U.S. citizens of Indian origin. In the June of 1995 the Ambati groom, a young doctor, married his bride in India. The bride accompanied the groom back to the U.S. but the marriage was short lived and the bride returned to India. Months later when the Ambati family visited India to receive a prestigious award from the Raja Lakshmi Foundation, the bride filed a claim with allegations of dowry harassment against the Ambati groom, and his family. Indian authorities arrested the Ambati family the instant they revisited India. For almost 4 years the Ambatisbattled the courts of India. In a recent update in The India Monitor it was announced that the Ambati family "has now been acquitted of all charges".

The article also stated, that, "during the course of the trial the Ambatis produced a tape " in which the bride's father, " demanded US $500,000 to drop all the charges". Very soon thereafter the bride " wrote to the Ministers for Home Affairs and Law & Parliamentary Affairs that she was " unconditionally withdrawing" all charges against the Ambati family".

The significance of the Ambati case and its recent legal outcome illustrates two things. One being the emergence and surfacing of dowry related problems entering the domain of family law and matrimonial life on foreign soils, stretching far beyond India's cultural and social perimeter. More importantly it also depicts the possibility of the Dowry Prohibition Act being abused.

In Akula Ravinder v. State of A.P. a sort of relief came against the possible misuse of section 304-B IPC when it was held that death must be proved to be one out of the course of nature and the mere fact that the deceased was young and death was not accidental is not sufficient to establish that death must have occurred otherwise than under normal circumstances. Thus, there are still many inconsistencies in law related to dowry, which should be corrected to ensure its effective and fair implementation.

But the evil of dowry is equally a matter of concern to the society as a whole and shall have to be curbed.

For this some steps may be taken as following:
(1) We will have to shift to our ancient value based society where the women were respected as equally as men, perhaps more than men.
(2) The women need to be well educated and economically independent at the various levels of the society. We hear of no cases of bride burning in the western countries because their women are well educated and economically independent.
(3) In dowry death cases the police investigation should be prompt and impartial instead of being corrupted, and sloppy.
(4) As recommended by the Supreme Court in the case of Bhagwant Singh v. Commissioner of police, more women police officers should be involved for proper investigation of crime against women.
(5) Moreover there should not be unfortunate delay in the disposal of dowry death cases. Guilty should be punished while events are still fresh in the public mind so that it can work as a deterrent for the society. For this purpose special courts may also be established.
(6) Within the purview of law, registration of marriage together with the list of gifts should be made compulsory. Provision must be made that any gifts madder after the marriage should also be included in the list.
(7) Dowry is a social scourge and public opinion has to be mobilized against this cancerous evils. It cannot be contained by only legal and police action. The memorable words of Mahatma Gandhi, Acceptance of dowry is a disgrace for the young man who accepts it as well as perhaps a dishonor for the woman folk should ring in the ears of every unmarried young man or woman.
(8) The educated youth can contribute tremendously in curbing this evil if they try to implement and practice the education, which they are given.
(9) Besides of general literacy, a legal literacy programme should also be started to make the women of the downtrodden class aware of their legal rights.
(10) In all this voluntary organizations can play an important role.
(11) Thus vigorous investigation and prosecution, realistic punishment of the offenders along with a determined re awakening movement to curb the evil are required. There are no short cut and flashy solutions of this deep-seated social malaise.

 




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