Dowry system in India
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The dowry system in India[1] refers to the durable goods, cash, and real or movable property that the bride's family gives to the groom, his parents and his relatives as a condition of the marriage.[2][3] Dowry is called "दहेज" in Hindi and as جہیز in Urdu.[4]
The dowry system can put great financial burden on the bride's family.
A court judgement[9] clarifies the legal definition of dowry as
"Dowry" in the sense of the expression contemplated by Dowry Prohibition Act is a demand for property of valuable security having an inextricable nexus with the marriage, i.e., it is a consideration from the side of the bride's parents or relatives to the groom or his parents and/or guardian for the agreement to wed the bride-to-be.
Article 3 of the Dowry Prohibition Act, 1961 specifies that the penalty for giving or taking dowry does not apply to presents that are given at the time of a marriage to the bride or groom is when no demand for them has been made.[10]
Although Indian laws against dowries have been in effect for decades, they have been largely criticised as being ineffective.[11] The practice of dowry deaths and murders continues to take place unchecked in many parts of India, which has further added to the concerns of enforcement.[12]
Section 498A of the Indian Penal Code required the groom and his family to be automatically arrested if a wife complains of dowry harassment. The law was widely abused, and in 2014, the Supreme Court ruled that arrests cannot be made without a magistrate's approval.[13]
Historical context
The history of dowry in South Asia is not clear. Some scholars believe dowry was practised in antiquity, but some do not.
Michael Witzel claims the ancient Indian literature suggests dowry practices were not significant during the Vedic period.[14] Witzel also notes that women in ancient India had property inheritance rights either by appointment or when they had no brothers.
The findings of MacDonell and Keith are similar to Witzel, and differ from Tambiah; they cite ancient Indian literature suggesting bridewealth was paid even in
Kane claims ancient literature suggests bridewealth was paid only in the
One of these are the eyewitness records from Alexander the Great's conquest (ca. 300 BC) as recorded by Arrian and Megasthenes. Arrian's first book mentions a lack of dowry,
They (these ancient Indian people) make their marriages in accordance with this principle, for in selecting a bride they care nothing whether she has a dowry and a handsome fortune, but look only to her beauty and other advantages of the outward person.
Arrian, The Invasion of India by Alexander the Great, 3rd Century BC[16]
Arrian's second book similarly notes,
They (Indians) marry without either giving or taking dowries, but the women as soon as they are marriageable are brought forward by their fathers in public, to be selected by the victor in wrestling or boxing or running or someone who excels in any other manly exercise.
~ Arrian, Indika in Megasthenes and Arrian, 3rd Century BC[17]
The two sources suggest dowry was absent, or infrequent enough to be noticed by Arrian., as well as wrote a memoir on Indian culture and life he observed. Al-Biruni claimed,
The implements of the wedding rejoicings are brought forward. No gift (dower or dowry) is settled between them. The man gives only a present to the wife, as he thinks fit, and a marriage gift in advance, which he has no right to claim back, but the (proposed) wife may give it back to him of her own will (if she does not want to marry).
~ Al-Biruni, Chapter on Matrimony in India, about 1035 AD[19]
Al-Biruni further claims that a daughter, in 11th century India, had legal right to inherit from her father, but only a fourth part of her brother. The daughter took this inheritance amount with her when she married, claimed Al-Biruni, and she had no rights to income from her parents after her marriage or to any additional inheritance after her father's death. If her father died before her marriage, her guardian would first pay off her father's debt, then allocate a fourth of the remaining wealth to her upkeep until she is ready to marry, and then give the rest to her to take with her into her married life.[19]
Causes of the dowry
Various reasons have been suggested as cause of dowry practice in India. These include economic factors and social factors.
Economic factors
There are many
Some suggestions point to economics and weak legal institutions on inheritance place women in disadvantage, with inheritances being left only to sons.
Dowry gave, at least in theory, women economic and
For many, dowry has become a greater financial burden on the bride's family, and can leave families
Social factors
The structure and kinship of marriage in parts of
In addition to marriage customs that may influence dowry, social customs or
While India has been making progress for women's rights, women continue to be in a subordinate status in their family.[27][28] Women's education, income, and health are some significant factors that play into the dowry system, and for how much control a woman has over her marriage.[28]
Religious factors
Dowry in India is not limited to any specific religion. It is widespread among Hindus and people of other religions. For example, Indian Muslims call dowry as jahez and justify the practice in terms of jahez-e-fatimi. Islamists classify jahez into two categories: The first comprises some essential articles for the outfit of the bride as well as for conjugal life. The other is made up of valuable goods, clothes, jewelry, an amount of money for the groom's family, which is settled on after bargaining. The jahez often far exceeds the cost of the baraat and marriage parties. The jahez is separate from cash payment as Mahr or dower that Sharia religious law requires be gifted to the bride.[4]
Dowry in the modern era
Dowry had been a prevalent practice in India's modern era and in this context, it can be in the form of a payment of cash or gifts from the bride's family to the bridegroom's family upon marriage. There are variations on dowry prevalence based on geography and
Dowry also varies by economic strata in India. Upper-class families are more likely to engage in the dowry system than the lower class. This could be in part due to women's economic exclusion from the
When dowry evolved in the
This article may be confusing or unclear to readers. In particular, This sentence contradicts the rest of the article.. (June 2023) |
In the modern era, the concept of dowry has evolved and Indian families no longer practise bride price.[34] This is because with the passage of time, bride price gradually disappeared and dowry became the prevalent form of transfer.[35] In the modern era, the practice of dowry requires the bride's family to transfer goods to the groom's family in consideration for the marriage.
Since
Many times, as part of this mutual 'give-and-take', an attempt is made by the groom's family to dictate the quantum of each gift along with specific demands for dowry. In such circumstances, there is an element of exerting coercion on the bride's family and this is what has come to be recognized as the menace of dowry in today's times.[2] Dowry does not refer to the voluntary presents which are made to the bride and the groom; rather it is what is extracted from the bride or her parents.[36]
Types of dowry crimes
A newly married woman can be a target for dowry related violence because she is tied economically and socially to her new husband.[27] In some cases, dowry is used as a threat or hostage type situation, in order to extract more property from the bride's family.[37] This can be seen in new brides, who are most vulnerable in the situation.[23] Dowry crimes can occur with the threat or occurrence of violence, so that the bride's family is left with no choice but to give more dowry to protect their daughter.[23] The northern and eastern states of India show higher rates of dowry-related violence.[38]
Dowry is considered a major contributor towards observed violence against women in India. Some of these offences include physical violence, emotional abuses, and even murder of brides and young girls prior to marriage.[23][25][37] The predominant types of dowry crimes relate to cruelty (which includes torture and harassment), domestic violence (including physical, emotional and sexual assault), abetment to suicide and dowry death (including, issues of bride burning and murder).
Fraud
A 2005 Canadian documentary film,
Cruelty
Cruelty in the form of torture or harassment of a woman with the objective of forcing her to meet a demand for property or valuable security is a form of dowry crime. The cruelty could be in the form of verbal attacks or may be accompanied by beating or harassment in order to force the woman or her family to yield to dowry demands.[41] In many instances, the cruelty may even force the woman to commit suicide and it has been specifically criminalized by the anti-dowry laws in India.
Domestic violence
Domestic violence includes a broad spectrum of abusive and threatening behavior which includes physical, emotional, economic and sexual violence as well as intimidation, isolation and coercion.[42] There are laws like the Protection of Women from Domestic Violence Act, 2005 that help to reduce domestic violence and to protect women's rights.
Abetment to suicide
Continuing abuse by the husband and his family with threats of harm could lead to a woman committing
Dowry murder
Bride burnings are often disguised as accidents or suicide attempts. Bride burnings are the most common forms of dowry deaths for a wide range of reasons like kerosene being inexpensive, there being insufficient evidence after the murder and low chances of survival rate.
India, with its large population, reports the highest number of dowry related deaths in the world according to Indian National Crime Record Bureau.[49] In 2012, 8,233 dowry death cases were reported across India, while in 2013, 8,083 dowry deaths were reported.[38] This means a dowry-related crime causes the death of a woman every 90 minutes, or 1.4 deaths per year per 100,000 women in India.[50][51]
Laws against dowry
The first all-India legislative enactment relating to dowry to be put on the statute book was The Dowry Prohibition Act, 1961 and this legislation came into force from 1 July 1961.[52] It marked the beginning of a new legal framework of dowry harassment laws effectively prohibiting the demanding, giving and taking of dowry. Although providing dowry is illegal, it is still common in many parts of India for a husband to seek a dowry from the wife's family and in some cases, this results in a form of extortion and violence against the wife.
To further strengthen the anti-dowry law and to stop offences of cruelty by the husband or his relatives against the wife, new provisions were added to the Indian criminal law – section 498A
Dowry Prohibition Act, 1961
The Dowry Prohibition Act, 1961 consolidated the anti-dowry laws which had been passed on certain states.[53] This legislation provides for a penalty in section 3 if any person gives, takes or abets giving or receiving of dowry. The punishment could be imprisonment for minimum 5 years and a fine more than ₹15,000 or the value of the dowry received, whichever is higher.[54] Dowry in the Act is defined as any property or valuable security given or agreed to be given in connection with the marriage.[55] The penalty for giving or taking dowry is not applicable in case of presents which are given at the time of marriage without any demand having been made.[56]
The Act provides the penalty for directly or indirectly demanding dowry and provides for a penalty involving a prison term of not less than 6 months and extendable up to two years along with a fine of ₹10,000. Dowry agreements are void ab initio and if any dowry is received by anyone other than the woman, it should be transferred to the woman.[57] The burden of proving that an offense was not committed is on the persons charged and not on the victim or her family.[58][59] Under its powers to frame rules for carrying out its objectives under the Act, the government of India has framed the Maintenance of Lists of Presents to the Bride and the Bridegroom Rules, 1985.[60] There are also several state level amendments to the Dowry Prohibition Act.[61]
Criminal statutes – Indian Penal Code, Criminal Procedure Code and Evidence Act
The Indian criminal laws were comprehensively amended to include dowry as a punishable offence.[62] Section 304B was added to the Indian Penal Code, 1860 ("IPC"), which made dowry death a specific offence punishable with a minimum sentence of imprisonment for 7 years and a maximum imprisonment for life. It provided that if the death of a woman is caused by burns or bodily injury or occurs in suspicious circumstances within 7 years of her marriage, and there's evidence to show that before her death, she was subjected to cruelty or harassment by her husband or his relative regarding the demand for dowry, then the husband or the relative shall be deemed to have caused her death.[63]
Further, section 113B of the Evidence Act, 1872 ("Evidence Act"), creates an additional presumption of dowry death when it is shown that before her death, the woman had been subjected to cruelty on account of dowry demand.[64] Section 304B IPC along with Section 113B of the Evidence Act have enabled the conviction of many who were not caught by the Dowry Prohibition Act, 1961.[65] Section 113A of the Evidence Act provides a similar presumption of abetment of suicide (which is an offense under Section 306 IPC), in case of death of a married woman within a period of seven years of her marriage.
Additionally, the
Further, Section 498A IPC was specifically included in 1983 to protect women from cruelty and harassment. The constitutionality of Section 498A was challenged before the
Protection of Women from Domestic Violence Act, 2005
The
- protection orders – prohibiting a person from committing domestic violence;
- residence orders – dispossessing such person from a shared household;
- custody orders – granting custody of a child; and
- compensation orders – directing payment of compensation.
International conventions
However, there are issues of non-intervention and cultural relativism which impede the use of international law to combat dowry deaths.[69]
Criticisms of the Dowry Laws
Misuse
There is growing criticism that the dowry laws are often being misused, particularly the section 498A of the Indian Penal Code which is observed by many in India as being prone to misuse because of mechanical arrests by the police.[70] According to the National Crime Records Bureau statistics, in 2012, nearly 200,000 people including 47,951 women, were arrested in regard to dowry offences. However, only 15% of the accused were convicted.[71]
In many cases of 498A, huge amounts of dowry are claimed without any valid reasoning. A rickshaw puller's wife can allege that she gave crores of rupees as dowry and since it is a cognizable case, police are bound to register the case. In most cases, the financial capacity of the wife or her parents and the source of the funds are never tracked.
In 2005, Section 498A was upheld by the
was founded to combat abuses of IPC 498a.On 19 April 2015, the Indian government sought to introduce a bill to amend Section 498A IPC based on the suggestions of the Law Commission and Justice Malimath committee on reforms of criminal justice.[82] News reports indicate that the proposed amendment will make the offence compoundable and this would facilitate couples to settle their disputes.[83]
Nisha Sharma Lawsuit
The Nisha Sharma dowry case was an
Ineffectiveness
Although Indian laws against dowry have been drafted decades ago, they have been largely criticised as being ineffective.[11] Despite the Indian government's efforts, the practice of dowry deaths and murders continues unchecked in many parts of India and this has further added to the concerns of enforcement.[12] There is criticism by women's groups that India's dowry harassment laws are ineffective because the statutes are too vague, the police and the courts do not enforce the laws and social mores keep women subservient and docile, giving them a subordinate status in the society.[87] The law ignores the complexities of dowry-related violence and overlooks the element of coercion, and arbitrary compulsive demands. [1]
Further, many women are afraid to implicate their husbands in a dowry crime simply because the Indian society is viewed as having conditioned women to anticipate or expect abuse and in some sense eventually, endure it.
In a recent landmark judgment on dowry death, Hon’ble Supreme Court of India held that “Mere death of the deceased being unnatural in the matrimonial home within seven years of marriage will not be sufficient to convict the accused under Section 304B and 498A IPC”.[91]
See also
General related:
- Women in India
- Weddings in India
- Bride price
- Female foeticide in India
- Social issues in India
India related:
- Domestic violence in India
- Female foeticide in India
- Gender inequality in India
- Gender pay gap in India
- Kerala snakebite murder
- Men's rights movement in India
- National Commission for Women
- Rape in India
- Welfare schemes for women in India
- Women in agriculture in India
- Women in India
- Women in Indian Armed Forces
- Women's Reservation Bill
- Women's suffrage in India
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