Dowry is a prevalent practice (social evil), wherein a brides family pays her in-laws an exorbitant amount of money before during or after her marriage. A rampant social and economic evil, it was declared illegal via the provisions of the Dowry Prohibition Act, 1961, and yet it is widely practised to this date.
1 Genesis of Anti Dowry and Anti Cruelty Laws in India
2 498-A – Cognizable, Non-Bailable and Non-Compoundable
3 498-A, Dowry and the Burden of Proof
4 The Reform of S 498-A?
5 The Continuing Abuse of 498-A
6 Giving of Dowry also an Offence
Genesis of Anti Dowry and Anti Cruelty Laws in India:
One must generally un-thread the history to understand the reason and motive of the laws which have come in place. A brief study can tell that in 1983, as a great savior to the fair gender, section 498-A with respect to cruelty for the purpose of extraction of Dowry, was incorporated in the IPC, Indian Penal Code 1860, stating:
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.
498-A – Cognizable, Non-Bailable and Non-Compoundable
The offence of 498-A was made Cognizable giving police the authority to arrest without warrant. The offence was also made non-bailable and non-compoundable. This came as a blow to even the best advocates for dowry and 498-A cases, for they knew from their experience and its unguarded potential that this section is going to be one of the most abused in the history of all laws. Further, the sweep came with the explanation of world cruelty:
For the purpose 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.
498-A, Dowry and the Burden of Proof
Soon section 498-A became a champion sine qua non for Anti Dowry Laws and Cases. The best advocates for dowry and 498-A thus face the tough interpretation of the law as this section is applicable to dowry cases even in the absence of the actual word “dowry” in the section. The reason is that by virtue of Section 8-A of The Dowry Prohibition Act, the husband, and his family members are presumed guilty for the offence. The offences include taking or abetting the taking of any dowry under section 3; or of demanding of dowry under section 4.
The onus to prove the innocence lies on the accused. In such a scenario, the complaints appear to be an emotional spew of bile. The complainants levy accusations in an absurd and casual fashion, lacking any actual specifics or details. They make accusations of harassment for compulsive giving of dowry. The accuse the husband of further and repeated demands of dowry, assault. The do so against the husband, his family and upon all those people the complainant wants to see burn.
The Reform of S 498-A?
A decade of the abuse of this law was felt. There were exaggerated claims and accusations, unaccountable power to the executive and limitations on the powers of judiciary. This in turn lead to wrongful convictions and grave miscarriages of justice. The Secretary to the Government of India, through his D.O. letter in September 2009, requested the Law Commission of India to suggest measures to check its misuse. Further, the Hon’ble Supreme Court of India in August 2010, in the case of Preeti Gupta vs. the State of Jharkhand, expressed that a serious revision and reform of the provision is warranted by the Legislature. Likewise, The best advocates for dowry and 498-A in their respective cases made many more observations in different cases through different forums came forth.
In Aug 2012, the Law Commission, in its 243rd report suggested some legislative revisions. Theses included provisions for compounding of the offence and objectively analyzing the logical strength of the complaint. After ages of subjugation and an era of stringent approaches, we are now on the threshold of a balanced approach. However, the sufferance of the male and his family and the dowry demands are not extinct yet.
At the same time as such abuse of law, there still exists a large section of the population which does need 498–A in its crude and unforgiving form. If only slum immersions can be made a necessary part of our training systems, the hurt could be felt and understood by one and all. Those in power would know suffering. They would come to relate more appropriately to the poverty struck and the fair gender who needs specific legal help. These are the people who deserve the rights granted under the S.498-A.
The Continuing Abuse of 498-A
Our society at the same time, carries in its fold – the educated, self-dependent and empowered women belonging to a comparatively fair social set-up. Ironically, the relief of 498-A in its unaltered form and spirit is just as easily available and most abused by these empowered.
Most of the time the actual friction is because of the conflict in the thought process, family aspirations and status etc. But, in most of the cases, women do not hesitate in going by the proverb “everything is fair in love and war”. Thus, they invoke the powers of section 498-A as a blackmailing shield. So when an investigation is carried out to collect the prima-facie evidence of the complaint, it must first work to reveal the social status, residential areas, family background, liabilities, education and economic strength of the parties, so that the bail applications can be logically decided.
Giving of Dowry also an Offence
If the officials are gathering the Presumptive force against the husband from section 8-A of The Dowry Prohibition Act, the official need not overlook the aspect that the same Dowry Prohibition Act makes the giving of dowry equally an offence and the taking transaction does have a giving act as its prelude! The giving was made an offence because the anti-dowry act had sought to curb the show of opulence, but the fact remains that it has not receded and rather has increased with the increase in the flow of money in the society.
India has controlled the show and opulence of money in election scenes and yet it has miserably failed on the marriage front. The reason is that the desire to showcase wealth is not one sided. The clap of two hands needs to be distinguished from a bang by one.
|Criminal Law | Matrimonial Law|
|Laws||Dowry Prohibition Act, 1961 | Dowry Prohibition Rules, 1985|
|Related Links||National Commission for Women | 498a.org | Reset – The Dowry System | Dowries are illegal in India. But families — including mine still practice it – Vox|