THE DOWRY PROHIBITION ACT, 1961

    As per Indian societal practices, Kanyadan has been a prevalent ritual. It is laid down in Dharmashastra that the kanyadan is incomplete without dakshina given to the bridegroom. 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. It was offered out of love and affection and did not constitute any consideration for the marriage. It was a voluntary practice without any coercive force. But slowly and gradually, the voluntary element has disappeared and the coercive element has crept in which is popularly known in today’s world as “Dowry”.

    Numerous social reformers including Aleem Khan, Rao Bahadur Kandukuri fought for the abolition of the dowry system.[1] Before India gained independence, the then provincial government of Sindh passed an enactment known as the “Sind Deti Leti Act, 1939” to deal with the evils of dowry but could not make any changes in society.[2] During the past few years, this system has taken deep roots in many states of India. To fight against this evil, the State Governments of Bihar and Andhra Pradesh enacted “The Bihar Dowry Restraint Act, 1950” and “The Andhra Pradesh Dowry Prohibition Act, 1958” for the respective States, but both these enactments failed to achieve the objectives for which they were enacted.[3]

    Then the matter was raised in the Parliament when the dowry cases were at its peak and there was an urgency for tougher regulations. The long discussions held between the then Law Minister, Cabinet members, and the enactment of the Hindu Succession Act, which did not give desired results, led to the formation of separate legislation to prevent dowry crimes known as The Dowry Prohibition Act, 1961; which was passed in the Joint Sittings of both the Houses of Parliament and it received the assent of the President on 20th May 1961.

    THE DOWRY PROHIBITION ACT

    This law was intended to prevent the giving and receiving of dowry and saving the lives of millions of innocent women. Earlier, it contained 10 sections but after a certain major amendments today it has 13 sections in total. 

    SCOPE

    The Dowry Prohibition Act, 1961 extends to the whole of India including the Union Territory of Jammu & Kashmir after scrapping Article 370 of the Constitution. It was enacted on 20 May 1961 and commenced on 20 June 1961. [4] The Act does not apply to the Muslim Personal Law (Shariat) and Mahr in Muslims does not constitute dowry according to the case of Kunju Moideen v. Syed Mohamed.[5] 

    DOWRY

    As per the Act, ‘dowry’ means any property or valuable security given or agreed to be given either directly or indirectly.[6] The words ‘valuable security’ has the same meaning as described under Section 30 of the Indian Penal Code. The demand for TV, refrigerator, gas connection, cash of Rs. 50,000/- and 15 tolas of gold are demands of valuable security explained in the case of Shankar Prasad Shaw v. State.[7] 

    The dowry can be given by one party to a marriage to the other party to the marriage, or by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person at the time of marriage or before or any time after the marriage in connection with the marriage of the said parties. But if the demand for property or valuable security has no connection with the consideration for the marriage; it will not amount to a demand for dowry. The demand for valuable presents made by the appellants on occasions like Deepavali is not connected with the wedding or marriage and these demands will not constitute dowry as defined in the case of Arjun Dhondiba  Kamble v. State of Maharashtra.[8] 

    The case of Y.K. Bansal v. Anju [9] explained the actual scenario, where the husband had demanded a sum of Rs. 50,000/- some days after the marriage from his father-in-law and when his demands were not fulfilled then he used to torture his wife and threatened her in the name of another marriage and this behaviour of a man represents the demand for dowry though it was after marriage. 

    PENALITIES

    If any person after the commencement of this Act, gives or takes or abets the giving or taking of dowry then he/she shall be liable under section 3 of the Dowry Prohibition Act. where a person asking for dowry gets the punishment of imprisonment for a term not less than 5 years and with a fine, not less than Rs. 15,000. This penalty can be increased or decreased by the judge if he finds any suitable reason for the same. 

    The above-mentioned provision does not apply to the party when presents are given at the time of a marriage to the bride or the bridegroom without any demand having been made on that behalf. But it is compulsory that such presents need to be of customary nature and the value of such presents need not increase as compared to the financial status of the person by whom, or on whose behalf such presents are given. [10]

    Also, this section is not in contravention to articles 14, 19, 21, and 22 of the Constitution as per the case of Indrawati v. Union of India.[11]

    Further, if a person demands dowry directly or indirectly from the parents or other relatives or guardian of a bride or bridegroom then he/she shall be liable for the punishment of imprisonment for a term not less than 6 months but may extend up to 2 years with the fine of Rs. 10,000. The sentence of imprisonment can be decreased by the Judge if he finds an adequate reason.[12]

    The demand for dowry is not a continuing offense but every demand of dowry causes a fresh offence but the demand which was made for the very first time would be taken into consideration from the eyes of the law and the same thing has been explained in the case of Harbans Singh v. Smt. Gurcharan Kaur alias Sharan Kaur.[13]

    If a woman being set on fire or any act equal to murder done to her by her-in-laws and if she had written a letter to her parents that she was being harassed and threatened in that family due to dowry demands then the complete family comes under fault; Bhoora Singh v. State.[14]

    Like Section 3, provisions under Section 4 also do not contravene any articles including 14,  19, 21, 22 of the Constitution.

    BAN ON ADVERTISMENTS

    This provision puts complete restriction on dowry advertisement and is added by the Amendment Act, 1986. It states that if an individual put any advertisement in any newspaper, periodical, journal, or through any other media, any share in his property or of any money or both as a share in any business or other interest as consideration for the marriage of his son or daughter or any other relatives then he/she shall be liable for the punishment described. The punishment for the same is imprisonment for a term not less than 6 months (a judge can decrease this if he finds any special reason) which may extend to 5 years or with a fine which may extend to Rs. 15,000. [15]

    AGREEMENT RELATING TO DOWRY

    Any agreement for giving or taking of dowry has no value in the eyes of law and shall be void.[16] The word ‘void’ has the same meaning as described in Section 2(g) of the Indian Contract Act, 1872.

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    DOWRY TO BE FOR THE BENEFIT OF WIFE OR HER HEIRS

    This provision says that dowry is not a crime when it is given out of love and affection at the time of marriage for the benefit of the wife or her heirs.

    (1) Other than the wife if someone else has received the dowry in her connection in marriage then that person has a duty to transfer the same received goods to the woman. If the dowry was received before marriage, or at the time of or after marriage then within three months he/she has to transfer the pending goods to the woman who has received it on her behalf, and if it was received when the woman was minor then the person has to transfer the same goods to her when she attains the age of majority within 3 months. 

    (2) If any person fails to transfer the goods received within the above specified time limit then he/she shall be punishable with imprisonment not less than 6 months and may extend up to 2 years or with a fine between Rs. 5000- 10,000 or with both. 

    (3) When the woman who is entitled to receive the goods dies before receiving it then the heirs of the woman shall be entitled to claim it. If the woman has children it will be transferred to such children and if she has no children then it will be transferred to her parents.

    (3A) Where a person convicted under sub-section (2) for failure to transfer the goods as required then the court shall punish him as described above and order him in writing to transfer the same to such woman or her heirs within a specified period ordered by the court, and if that person fails to fulfill the given direction then and the amount equal to the value of the received goods may be recovered from him by such court and paid the same to the woman or her heirs.[17]

    In the cases of Rajeev v. Ram Kishan Jaiswal[18], Prithichan v. Des Raj Bansal[19], Pradeep Kumar v. State of Punjab[20], it was stated that the dowry items are required to be transferred to the parents or woman’s children if any but not the husband. 

    COGNIZANCE OF OFFENCES

    This provision says that it is lawful for a Metropolitan Magistrate or a Judicial Magistrate of the first class to pass any order or sentence authorized by this Act on any person convicted of an offence under the Dowry Prohibition Act. Moreover, no court other than these is allowed to take cognizance of offence under this Act except the police report or a complaint by an aggrieved person or his/her parents, relatives, or by any other welfare institution or organization recognized by the State or Central government.[21]

    The original section provided that the offences under the Act be non-cognizable, non-bailable, and non-compoundable but after the Amendment Act, 1984, and the Amendment Act, 1986 it was changed into cognizable, non-bailable offences.[22]

    BURDEN OF PROOF

    Where any person is prosecuted for taking or abetting the taking of any dowry under section 3, or the demanding of dowry under section 4, the burden of proving that he had not committed an offence under these sections shall be on him.[23]

    DOWRY PROHIBITION OFFICERS

    The State Government has the power to appoint as many Dowry Prohibition Officers as they want and specify the area where they shall exercise their jurisdiction. It is the duty of every Dowry Prohibition Officer to prevent the taking, abetting, or demanding of dowry, to collect evidence that is necessary for the prosecution and focus on the proper execution of the Act. [24]

    POWER TO MAKE RULES

    The Central Government may, by notification in the Official Gazette, make rules for carrying out the purpose of the Act. In short, the Central authority has complete power to make rules regarding the same.[25]

    Just like the Central Government has the power to make rules regarding the prevention of dowry, the State Government too has the power to form rules and regulations regarding the proper execution of the Act in the state.[26] The additional functions to be performed and the limitations and conditions subjected to  Dowry Prohibition Officers under sub-section(2) and (3) of Section 8B are decided under the State heads.

    CONCLUSION

    Dowry is popularly known as Dahez in most parts of India and in the eastern parts, it is referred to as Aaunnpot.[27] Apart from the specific Indian Act explained above to prohibit dowry issues, we have other legal sections too to deal with it. The sections 304B and 498A of the Indian Penal Code which states the punishment of imprisonment for husband and his relatives if they subject a woman to the cruelty of dowry.[28]

    Although Indian laws against dowries have been in effect for decades, they are still ineffective. The National Crime Bureau of India recorded nearly 7000 dowry linked deaths in 2017. Dowry deaths rose from about 19 per day in 2001 to 21 per day in 2016.[29] But these are only recorded ones; there are numerous cases which go unreported because many women are still illiterate in this progressing India and do not have the legal knowledge, family support, or financial independence. Basically, they are lacking in all directions. Moreover, the brutal reality of the dowry system is not the story of rural areas only. Even the educated family sitting in metropolitan cities like Delhi and Bangalore is harassing a woman for not bringing enough gold or money with them. Thus, the change in the mentality of people is the only solution to this problem. When husbands and their families start respecting women as they are and stop comparing them with money or materials, it will ultimately result in slow down of such crimes.  

    REFERENCES 

    [1] The Historical Journey Of Anti-Dowry Laws By Himanshi Nagpal, available at: https://feminisminindia-com.cdn.ampproject.org/v/s/feminisminindia.com/2017/06/21/historical-journey-anti-dowry-laws/?amp=&usqp=mq331AQHKAFQArABIA%3D%3D&amp_js_v=0.1#aoh=16025000040282&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s&ampshare=https%3A%2F%2Ffeminisminindia.com%2F2017%2F06%2F21%2Fhistorical-journey-anti-dowry-laws%2F (last visited on September 29, 2020).

    [2] Laws- The DowryProhibition Act, available at: http://education.dewsoftoverseas.com/vakilno4/dowryprohibitionact/indroduction.html#:~:text=Long%20before%20India%20gained%20independence,could%20create%20the%20desired%20effect (last visited on September 29, 2020).

    [3] Archit Bharadwaj and Taran Deep Arora, “The Dowry Prohibition Act 1961 Business Law- Project Report”(2007).

    [4] The Dowry Prohibition Act 1961,s.1.

    [5] Kunju Moideen v. Syed  Mohamed AIR 1986 Ker 48.

    [6] The Dowry Prohibition Act 1961,s.2.

    [7] Shankar Prasad Shaw v. State, 1 (1992) DMC 30 Cal.

    [8] Arjun Dhondiba  Kamble v. State of Maharashtra, 1995 AIHC 273.

    [9] Y.K.Bansal v. Anju All L.J. 914.

    [10] The Dowry Prohibition Act 1961,s.3.

    [11] Indrawati v. Union of India I, (1991) DMC 117.

    [12] The Dowry Prohibition Act 1961,s.4.

    [13] 1993 Rec. Cr. R 404 (Del).

    [14] 1993 Cri LJ. 2636 All.

    [15] The Dowry Prohibition Act 1961,s.4A.

    [16] The Dowry Prohibition Act 1961,s.5.

    [17] The Dowry Prohibition Act 1961,s.6.

    [18] 1994 Cri. LJ NOC 255 (All).

    [19] II (1990) DMC 368 P & H.

    [20] 1990 (1) CC Cases 594.

    [21] The Dowry Prohibition Act 1961,s.7.

    [22] The Dowry Prohibition Act 1961,s.8.

    [23] The Dowry Prohibition Act 1961,s.8a.

    [24] The Dowry Prohibition Act 1961,s.8b.

    [25] The Dowry Prohibition Act 1961,s.9.

    [26] The Dowry Prohibition Act 1961,s.10.

    [27] The Dowry System in India: Is the Trend Changing?, Pulitzer Center, available at: https://pulitzercenter.org/projects/dowry-system-india-trend-changing (last visited on September 30, 2020).

    [28] The Indian Penal Code, 1860.

    [29] 17 dowry cases in 16 days of new year, The New Indian Express, available at: https://www-newindianexpress-com.cdn.ampproject.org/v/s/www.newindianexpress.com/cities/bengaluru/2020/jan/17/17-dowry-cases-in-16-days-of-new-year-2090576.amp?usqp=mq331AQHKAFQArABIA%3D%3D&amp_js_v=0.1#aoh=16025005735324&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s&ampshare=https%3A%2F%2Fwww.newindianexpress.com%2Fcities%2Fbengaluru%2F2020%2Fjan%2F17%2F17-dowry-cases-in-16-days-of-new-year-2090576.html (last visited on September 30, 2020). 


    BY KHUSHI PALIWAL | UNIVERSITY COLLEGE OF LAW, MLSU

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