Indian dowry custom continue to rule society – a critique with landmark cases

Indian Dowry Customs continue to Rule Society: A Critique with Landmark Cases

INTRODUCTION “Among rude people, the women are generally degraded; among civilised people they

are exalted”

- James Mill

Of all the crimes committed within the ambit of marriage, Dowry remains one of the

most problematic and difficult to deal with. Its ambiguous origins, the procedural difficulties in

punishing the crime and separating it from a woman’s legitimate stridhan are just some of the

major difficulties faced by jurists.

On tracing the evolutionary track of this custom, one realises that there is actually very little

religious backing for the custom of dowry as we see it today. Instead, this evil has resulted from

man’s own avarice.1 In addition to this, there exist certain myths regarding the dowry system.

Some of these myths include criticisms of ancient Hindu texts and the influence of Muslim rule

in India.2

The researcher, during the course of this essay, shall look into the origins of this social

evil in order to try and prove that the custom that rules society has originated out of selfish

motives of parties involved, and how such practices have, over a period of time, become the

cause for dowry laws to fail.

The Dowry Prohibition Act, in both its original and amended form, has served no

constructive purpose due to inherent deficiencies such as the narrow view taken in determining

possible complainants.3 In addition to this, while there have been landmark judgements that have

served to forward the cause of Dowry prevention, there have also been hindrances in the form of

judgements setting bad law. The researcher shall discuss these problems in the following

chapters.

It is time the legislators took note of loopholes that exist in present law regarding marriage in

India. After all, riddance from social evils against women, as stated by James Mill, is a mark of

1 See Generally, S.V. Joga (ed.), Dowry and the Law, 4th edition, Lexis Nexis, New Delhi, 2002, pp. 2-5.2 See generally, M Basu, Women and Law in India: Hindu Women and Marriage Law, Oxford University Press, New Delhi, 2004, p. 2.3Ibid, p. 90.

The National University of Juridical Sciences Page 1


civilised society; and dowry being one of India’s most prominent social evils deserves due

consideration. In order to do so, ground realities of such a practice must ultimately be taken into

consideration, something that hasn’t been done yet.



THE ORIGINS OF AN EVIL: A RELIGIOUS VIEWPOINT Many authors claim that Dowry custom is nothing but a manifestation of Stridhan and

Kanyadaan that was demarcated in ancient Hindu Law.4 However, the researcher would like to

concur with a view espoused by Paras Diwan and S.V. Joga. They, while criticising the view that

in order to complete the ritual of kanyadaan the father of the bride was expected to gift

something more than the bride, submit that the ritual closest to Dowry in ancient Hindu texts is

that of sulka.5 Sulka or ‘bride’s price’ was a system of marriage practiced as an asura form of

marriage, and disapproved of under Hindu custom.6 In fact, Manu in his Shastras went so far as

to state:

“The father exploiting his power of disposal of his daughter or ward in marriage for his

own pecuniary benefit is in utter disregard of his parental duty of bestowing her on a

duly qualified person.”7

However, in doing so, Manu distinguishes between sulka and stridhan by stating that

“when Sulka given for the damsel is not taken by the kinsmen for their own use, there is no sale.

It is only honouring the bride and is totally free from sin.8 Hence, it is wrong to compare the

noble cause of Stridhan to the corrupt one of Sulka.

According to the Hindu Dharmashastras, “marriage is a sacrament” between a man and

woman for the “performance of religious duties”9 On taking this perspective, it becomes

abundantly clear that attaching a consideration to the sacred ritual of marriage was not only alien

to ancient Hindu Law, but was also a concept abhorred by jurists of the time.10

4 Basu, op. cit., pp. 85-86.5 P Diwan, Law Relating to Dowry, Dowry Deaths, Bride Burning, Rape and Related Offences,Universal Law Publishing, New Delhi, 2002, p. 16; Joga, op. cit., p. 5.6 Ibid.7 Manu Chapter III, Verse 51, as cited in S.V. Joga (ed.), Dowry and the Law, 4th edition, Lexis Nexis, New Delhi, 2002, p. 5.8 Manu Chapter III, Verse 54, as cited in S.V. Joga (ed.), Dowry and the Law, 4th edition, Lexis Nexis, New Delhi, 2002, p. 5. 9 Gopalkrishna v. Venkataverasa ILR 37 Mad 273; Debi Lal v. Nand Kishore ILR 1 Pat 266, as cited in S.V. Joga (ed.), Dowry and the Law, 4th edition, Lexis Nexis, New Delhi, 2002, p. 2.10 Including Manu, as shown in Diwan, op. cit., p. 16.



Another important Hindu custom compared to Dowry is that of Varadakshina.11

However, this tradition was prevalent only among a small class of Brahmins and not with Hindus

in general. Also, the practice of varadakshina included the gifting of clothes and ornaments by

the bride’s parents as possessions of the bride.12 An interesting paradox related to this is that the

Parliamentary Joint Committee has taken a stand that wrongly equates varadakshina with

dowry.13

One of the major challenges that needs to be countered with regard to abolition of Dowry

in India is the definitional problem. A positive step in this field was taken by the Supreme Court

in the landmark case of Rashmi Kumar v. Mahesh Kumar Bhada14 wherein it was held that a

bride’s stridhan is hers to keep and that she has absolute rights over such property. Similarly, in

Pritam Singh v. State of Delhi15 it was clearly demarcated that Section 6 of the Dowry

Prohibition Act, 1961 is aimed at opposing dowry and not stridhan given to the bride by her

parents and in-laws.

Some authors who go to the extent of agreeing that Hindu scriptures never prescribed

Dowry in any form still hold another misconstrued idea that the situation of women’s rights took

a turn for the worse with the onset of muslim rule.16 However, these writers do not take into

account the fact that it was Muslim rulers like Akbar who tried to abolish vices like Sati that

Hindus customarily practiced against their women.17 The researcher believes that instead of

criticising religious texts or religion followed by emperors, one must look at the fundamental

avarice and hunger that governs human thinking. Dowry is not so much a vice in scripture as it is

a social vice.

From the fact that the Dharmashastras make ‘marriage’ a religious duty, it is obvious that the

ritual of marriage is accorded a lot of importance in Hinduism. This coupled with the prevalent

notion that girls should be married off at a tender age, has resulted in an anxiety existing among

girls’ parents and guardians.18 Such baseless beliefs in society perpetuate inequitable practices 11 Diwan, op. cit., p. 14.12 Ibid.13 Ibid.14 1999 (2) RCR (Cr) 43 (SC), as cited in Diwan, op. cit. p. 15.15 2000 (4) RCR (Cr) 566 (Del) as cited in Diwan, op. cit. p. 15.16 G Mukherjee, Dowry Death in India, Indian Publishers Distributors, 1999, p. 256.17 Ibid.18 Joga, op. cit. p. 7.



like Dowry. Another important concept determining prevalence of Dowry has been the sex-ratio

in a region. It has been observed that in areas where sex-ratio is tilted towards girls, dowry flows

from the bride’s family and vice-versa. Hence, in modern times, economic concepts like demand

and supply have started determining how and between whom the sacred tie of marriage shall be

performed.19 Such a view has been put into perspective crisply by S.V. Joga:

“The scrupules of parents and guardians of the parties to the marriage changed their

colour and man started conducting business even with his offspring.”

DOWRY IN MODERN TIMES: PRACTICES AND LAWS RELATING TO DOWRY 19 Ibid.



While there is no evidence of an accepted and sanctioned form of Dowry being practiced

in ancient times; in the modern day, following from the custom that it is the parent’s dharma to

give his daughter in marriage, the crippling ritual of the groom and groomwalas extorting money

in return for an assumed favour of taking the girl off her father’s hands, has percolated into

society.20

In 1961, the Dowry Prohibition Act came as a beacon light of hope to thousands of

oppressed families that dreamed of freedom from a vice that had crippled finances for years on

end. Yet, it is an unfortunate truth that success seen by this act has been limited, even though

judges have tried their best to use the limited resources available to them and come up with

viable interpretations to abolish the vice that dowry is.

A glaring error in the Act, which has proved to be its downfall, is the fact that Section 3

makes both giver and taker of dowry liable to face legal action. By placing both the perpetrator

and the victim in the same category, not only does the Act fail in curtailing dowry, it acts as a

weapon in the hands of the taker of dowry, since on being forced to pay dowry, the giver shall

obviously not complain against the act, thereby risking his daughter’s marriage along with facing

legal sanctions.21 In addition to this redundant section, Section 7 of the Act goes one step further

by making a complaint mandatory, thereby preventing a magistrate from taking suo moto action.

This read in tandem with the fact that the actual victims have been discouraged from

complaining under Section 3 defeats the entire purpose of the Act.22 Therefore, unless a third

party comes forward and voluntarily suffers an infringement of his time and money in filing a

suit against dowry takers, there is little hope for the Dowry Prohibition Act, in its present form to

see any success.23

Another important shortcoming in efforts to abolish dowry have been caused by the lukewarm

response among members of society. This is largely due to distrust in the legal system and the

fear of disrupting the married life of one’s daughter. This has however led to the exponential

20 See Generally, Diwan, op. cit., p. 15.21 Basu, op. cit., p. 94.22 Ibid.23 Ibid.



increase in dowry deaths witnessed in the western and north-western belt of the country. This

belt accounts for three hundred of the three hundred and forty five dowry deaths.24

Judges in recent landmark judgements have gone out of their way in accepting positive

interpretations when it comes to Dowry Prohibition. In Pawan Kumar v. State of Haryana25 for

example, the Supreme Court has established that persistent demand for commodities after

marriage, would come under the definition for dowry. In Vemuri v. State of Andhra Pradesh26

the transfer of land for the settlement of marriage was ruled to be a form of dowry.

In order to do away with the Dowry Prohibition Act’s (1961) shortcomings, in the cases

of Lajpatrai Sehgal v. State27, the court held that Section 198 of the Code of Criminal Procedure

doesn’t apply to cases of dowry. This is because aggrieved parties in dowry cases hardly

complain, and the amendment to Section 7 of the Act makes it obvious that relatives of the

aggrieved parties are entitled to file a complaint. Also, through the explanation to Section 7 it is

clear that even recognised welfare institutions can bring a case against dowry mongers.28

While Dowry is defined as a bailable offence under the Dowry Prohibition Act, which

makes provisions for anticipatory bail, in the case of Phimiben v. State of Gujarat29, the Supreme

Court criticised the Sessions Court for having granted anticipatory bail to the accused when the

allegations of burning the bride to death was of an extremely grave nature. This means that the

judges are to exercise their discretion when it comes to granting or rejecting anticipatory bail

keeping in mind the relevance and magnitude of the accusations. Also, in Srikanta Krishna

Ghosh v. Indu Kumari Ghosh30, Dowry demand is an offence, even if it was before the marriage

was finalised, and was still being negotiated.

While such laws give a broad interpretation of the statute so as to increase the chances of

abolishing Dowry from society, there are also some case laws that give some leeway to the

accused to prove innocence. For example, in Hari Kumar v. State of Karnataka31, the court held

24 Ibid, p. 95.25 1998 Cr LJ 1144, as cited in Diwan, op. cit., p. 21.26 (1992) 1 Crimes 287, as cited in Diwan, op. cit., p. 2327 1983 Cr LJ 888, as cited in Diwan, op. cit., p. 52.28 Ibid.29 1992 Cr. LJ 1994, as cited in Diwan, p. 16.30 1983 BJLR 262, as cited in Diwan, op. cit., 32.31 (1994) 1 DMC 356 (FB), as cited in Diwan, op. cit., p. 48.



that even though Section 8A of the Dowry Prohibition Act claims that the burden of proof rests

on the accused, the complainant needs to prove a reasonable amount of claims so as to shift the

burden of proof onto the accused.32

Having observed that the Courts have tried to do their best in making use of a not-so-

supportive statute, the researcher believes that there is a pressing need for the loose ends of the

statute to be tied based on the forward looking interpretations given by the courts over the years.

In addition to this, measures that could help improve Dowry Prohibition at a practical level

include the use of education to open up people’s minds. As has been found by Geetanjali

Mukherjee, “…women favouring dowry is gradually reduced with progressive levels of

education.”33 Also, this would foster a growth in the number of working women. Again

according to Geetanjali Mukherjee, approximately 20% more women are favourable towards

mixed marriage than housewives. This helps as it removes the constraint of caste-based

marriages, which act as an incentive for groomwalas to extort money from the bride’s parents.34

Hence, along with legal inputs to cleanse society of dowry, social conditioning through such

welfare measures is also proven contributors to the cause.

32 See Generally, Diwan, op. cit., p. 48.33 Mukherjee, op. cit, 276.34 Ibid.



CONCLUSION

In order to conclude this critical analysis, the researcher would like to throw light on how

misconceptions have played a major role in Dowry law in India. Writers have not held back

while criticising the ancient scriptures for propagating social evils. In addition to this, they have

also gone to the extent of claiming that women’s rights in general deteriorated from the time of

Manu.35 This stand has however been taken in complete ignorance of the fact that it was Manu,

who explicitly stated that “a man who takes consideration through greed is a seller of his child.”36

Some other legal writings blame Muslim rule for the advent of restrictive laws against

women. While the researcher agrees that some Muslim rulers were restrictive in their outlook

towards women, it is important to note that they were less so compared to the Hindu society of

the time.37 The researcher submits that one must agree to the fact that Dowry custom is an evil

developed out of Social Practice, and avarice; with very little, if anything to do with roots in

religious theories. It is only through realisation of facts that one can be capable of moving ahead

and discussing the difficulties in practically abolishing such an evil.

The law drafted in the form of the Dowry Prohibition Act of 1961 has not been of

significant help, and it has often been left to the courts to interpret the statute and make positive

inputs to the law. There is a pressing need for amendments to the act on the basis of the courts’

rulings on the subject. In addition to this, social conditioning in the form of education of women,

increasing jobs for women, etc. could go a long way in removing stigma relating to Dowry in

society. Free thinking fostered through such efforts will make it easier for Dowry prohibition

laws to be implemented unopposed.

The researcher would thus like to conclude by stating that Indian Dowry custom doesn’t

just continue to rule society, in fact it is a creation of the avarice and greed of modern man, and

doesn’t really continue from any ancient social vice. The law in the form of statutes is presently

inadequate in dealing with the evil, and it is only through positive thought and greater action in

the field that we can hope to prevent the ruthless sale of brides into insatiable, selfish and

egoistic households.

35 See Generally, Basu, op. cit., 85-8736 Manu, Chapter III, as cited in Basu, op. cit., p. 30.37 See Generally, Mukherjee, p. 256.



BIBLIOGRAPHY Primary Sources



The Dowry Prohibition Act, 1961

The Code of Criminal Procedure, 1973

The Indian Penal Code, 1860

Secondary Sources

Anonymous, ‘Dowry in India’, viewed on 22nd August 2009,

< http://www.indianchild.com/dowry_in_india.htm>

Basu, M., Women and Law in India: Hindu Women and Marriage Law. Oxford University Press,

New Delhi, 2004.

Diwan, P., Law Relating to Dowry, Dowry Deaths, Bride Burning, Rape and Related Offences.

Universal Law Publishing, New Delhi, 2002.

Gautham, B., ‘Dowry Custom: Killing India’s Daughters’, viewed on 22nd August 2009, last

modified on 26th June 2004,

< http://www.japantimes.co.jp/cgi-bin/eo20040626a1.html>

Joga (ed.), S.V., Dowry and the Law. 4th edition, Lexis Nexis, New Delhi, 2002.

Lyn, T.A., ‘Fire a Major Cause of Death for Young Indian Women’, viewed on 22nd August

2009, last modified on 1st March 2009,

<http://www.reuters.com/article/asiaCrisis/idUST121827>

Mukherjee, G., Dowry Death in India. Indian Publishers Distributors, 1999.

Srivastava, A.B.; Gupta, H.P., Law of Dowry Prohibition, Modern Law House, Lucknow, 2004.

The Oxford Citation Method has been followed in this Essay.


http://www.reuters.com/article/asiaCrisis/idUST121827

http://www.japantimes.co.jp/cgi-bin/eo20040626a1.html

http://www.indianchild.com/dowry_in_india.htm

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Indian dowry custom continue to rule society – a critique with landmark cases