Under Hindu System of Law, marriage was a sacrament, it was a permanent and indissoluble union and was meant for the performance of religious duties by men and women. It is one of the 48 Sanskaras recognized by the Hindu religion. The ancient Hindu Law recognized eight forms of marriage, namely 'Brahma, Daiva, Arsha and Prajapatya which were approved forms and the Asuru, Gandharva, Raksha and the Paishacha forms were unapproved. Later only Brahma, Asuru and Gandharva forms were recognized and the other forms were considered obsolete.
Brahma form of solemnizing marriage was most popular. In Brahma form it is gift of the bride who is bedecked and bejeweled with ornaments is presented to a man learned in Vedas and of conduct when the father himself invites. It was a gift of bride, the presents and the jeweler were voluntarily given to the bride. In the beginning it was never in the form of coercion or binding. Since, no portion of the parental property was allowed to be shared by female children, therefore, as part of compensation, gifts and presents were given to the daughters at the time of their marriage. These gifts overtime came to be institutionalized as Dowry.
Unfortunately, the custom in the contemporary context has gone far beyond a cultural practice or innocuous extravagance, and has added to itself ominous dimensions. It assumed serious proportions only when the people who could not afford it were coerced to give it. Many social reformers like Raja Ram Mohun Rai, Ranade,j, Ishwar Chander Vidya Sagar and Mahatama Gandhi dedicated their lives for eradication of various social evils including the evil of dowry.
he result of the social reformers bore fruits to some extent when first of all Sind Deti-Leti Act was passed in the year 1939. This Act prohibited payments in excess of limits specified in the list applicable to the girl's family, which were made either by the respective Panchayats or in case of their failure by the Provincial Governments. When these lists were registered and published these were binding upon every member of the respective Panchayats and violation of which was made punishable. After the independence there were two States, Bihar and Andhra Pradesh who passed Dowry Prohibition Act in their respective States and ultimately the present Act was passed in 1961 and was made applicable throughout the length and breath of the country.
After the independence the country has witnessed the evil of dowry in a more acute form, than it was witnessed before, and practiced in the whole of the country by almost all sections of the society. The giving and taking of Dowry has been considered the symbol of high prestige and rank of the rich people with their accounted and unaccounted wealth indulged in this practice and performed marriage with great pomp and show. The middle class who cannot afford Dowry, rather who experience the pinch of the evil of this system while marrying of their daughters and who decry the existence of the evil in the society documents not feel ashamed of demanding Dowry when they have to marry off their sons. The Dowry devil has eroded considerably the sanctity of marriage with the result it has now been reduced to business in which the bridegroom and his parents aim to make maximum quick money.
Efficacy of Dowry Prohibition Act, 1961
The Dowry Prohibition Act, 1961 has been amended twice in 1984 and 1986. Many basic changes were introduced in 1984 including the definition of Dowry in order to give it more deterrent effect and provide teeth to the provisions. It was further amended in 1986. But the evil practice of dowry is still haunting the society like a phantom and spreading like a contagious disease in spite of there being a lot of opposition from the women and other welfare organizations and in spite of imposition of punishments under the law.
on the Offence of Dowry and Dowry Related Deaths
In order to establish the implicit connection between the dowry system and the dowry deaths it is essential to look at the different provisions of the Act along with the provisions of other enactments. While section 2 of the Act defines the term 'Dowry' as any property or valuable security given in connection with a marriage, section 3 thereof makes giving or talking the dowry as a punishable offence. Section 4 provides penalty for demanding dowry and section 4-A bans advertisements on matrimonial based on the ground of dowry. Section 5 makes void an agreement for giving and taking the dowry, section 6 contemplates a legal obligation on the person who actually receives the dowry to transfer the same to the women in whose marriage it is given or to her children, heirs or parents as the case may be, in the event of her death. Section 7 and 8 provide provision as to the cognizance of offence. Section 8-A provides provision as to the burden of proof in certain cases and section 8-B provides for the appointment and powers and functions of the Dowry prohibition Officers. Section 9 and 10 empower respectively the central as well as the state Governments to make rules.
While section 113-A of the Indian Evidence Act provides presumption as to the abetment of suicide in case where a married woman who commits suicide within 7 years of her marriage,. Section 113-B thereof provides presumption as to the commission of dowry death where a person subjects a woman to cruelty or harassment for or in connection with any demand for dowry soon before her death.
What is Dowry under the Act?
According to section 2 of the Act 'Dowry' means any property or valuable security where:
1. It is given or agreed to be given either directly or indirectly;
(a) by one party to the marriage to the other party to the marriage. Or
(b) by the parents of either party to the marriage to either party to the marriage, or
(c) by any person to either party to the marriage or to any other person, and
2. it is given at or before or ant time after the marriage,
3. it is given in connection with the marriage, and
4. it does not include dower or mahr given under the Muslim personal law.
A glimpse of the foregoing analysis of Section 2 makes it clear that in the process of giving or taking dowry, there are three parties involved, namely
1. either party to the marriage
2. parents of either party to the marriage
3. any person or any other person.
The term 'Property' appearing in the main part of section 2 includes movable and immovable property. The phrase ' By one party to a marriage to the other party to the marriage ' appearing in clause (a) of section 2 includes within the ambit of the term 'Dowry' whatever property or valuables security given, inter-alia by either the bride to the bride-groom or the bride-groom to the bride, at or before or any time after their marriage, provided it is given in connection with such marriage. Incidentally, the phrase ' at or before or any time the marriage' appearing in clause (b) of Section 2 is an inclusive provision and in its literary sense the time span involved in the giving or taking the dowry ranges from birth to bereavement of the parties to the marriage.
Section 2 is subject to the provisions of Sub Section (2) of Section 3 which allows permissible presents given or taken in connection with a marriage. However, any property or valuable security given or taken by either party to the marriage or by the parents of either party of the marriage, or by the person on behalf of either party to the marriage does not amount to be the 'Dowry' if it is given otherwise than in connection with the marriage. It is not beyond one's imagination as to what other connections or considerations the parties to a marriage may have with regard to the giving or taking properties or valuable securities in so long as their interrelationship begins only from the angle of the marriage. What will be the legal implications if the so called property or valuable security is given or taken by either party to the marriage from the other party to the marriage prior to and unconnected to the solemnization of such marriage but later on the parties may come to an understanding either to ignore or to waive off the same in consideration of the marriage in the normal course of their new relationship. Does it amount to be a dowry under Section 2 and thereby attracting the penal provisions of Section 3 ? Or, where any property or valuable security is given or taken under any benami lease or mortgage or sale in consideration of solemnization of marriage or consummation of marriage, whether the provisions of Section 3 apply?
Strictly speaking, these instances are governed by the provisions of the Act, but who has to ring the bell ? Although it is given in connection with the marriage, the mere statement that the property or valuable security is not given in connection with the marriage will simply take away the jurisdiction of the Act in the absence of any deeming provision to that effect. The provisions of presumptions contemplated under Section 113-B of the Indian Evidence Act apply only to the cases of Dowry deaths, not to the cases of the Dowry.
Explanation II below Section 2 provides that the expression 'valuable security' has the same meaning as in Section 30 of the Indian panel code, thus valuable security includes document also but this explanation cannot be of much help in invoking the provisions of the Act because in matrimonial contracts, legal rights can be created or transferred otherwise than in the form of any document. Broadly speaking this explanation is against the provisions of Transfer of Property Act, in so long as there is no proven evidence to show that this sort of transactions are made in connection with the marriage. Then how to bring a nexus between such transfers and the marriage?
Legal Test in the Prohibition of Giving and Taking Dowry
Sub-Section (1) of Section 3 of the Act contemplates that giving or taking or abetting the giving or taking of Dowry is a punishable offence. But sub-Section (2) of Section 3 permits the giving of customary presents at the time of marriage, provided there shall not be any demand for such presents. Further, the value of these presents shall not be in excess of the financial status of the person who presents the same or on whose behalf these are made, and that the same are to be listed in the prescribed form as required under the rules framed in accordance with the provisions of the Act. What is important in this sub-Section is that the presents shall be made only at the time of the marriage. The Act neither defines the term 'Present' nor provides in any clear terms as to the distinctive nature of a present and Dowry. Moreover it is also not feasible to assess the value of the presents vis-'-vis the financial capacity of the person who gives such presents or on whose behalf these are given in each case. In this connection the role of the Dowry Prohibition Officers appointed under Section 8 B of the Act is yet to gain public importance. In such a situation is it not to say that the law is too restrictive to deal with these aspects and is too congenial to prolong the legal process because of the inclusion of such ardent provisions. It is also not that the Act indirectly allows giving and taking Dowry in the form of presents? In any case law should be reformative and not restrictive.
It may be seen that Section 3 of the Act restrains the parents of the bride the giving of some property or valuable security even to their own daughter out of whatever little they could possess in connection with and in consideration of the marriage. As already mentioned, it also prohibits a bride/wife giving any property or valuable security to her bridegroom/husband and vice versa. The time span as provided by the Act under Section 2 ranges from birth to the death of the parties to the marriage in so far as giving or taking Dowry at or before or after the marriage is concerned. These provisions of the law are far from practicability especially in a welfare state like India where family is the primary institution in forming the society and parental obligations and wife and husband relations cannot be obliviated because of the legal inhibitions imposed under the Act.
Agreement for Giving or Taking Dowry is void
According to the Section 5 of the Act any agreement for the giving or taking of Dowry shall be void. But this Section is silent with regard to anything given or taken in furtherance of such agreement even though it forms part of any consideration in the contract of marriage. The law is not as clear as it ought to be specify as to whether in such a case, the marriage, if solemnized and consummated, shall also become void within the meaning of the contract Act.
It is interesting to note that Section 3 of the Act prohibits giving and taking Dowry as a cognizable offence, and whereas Section 6 thereof requires the person who receives it to transfer the same to the woman in whose marriage it is given or to the heirs, children or parents of such women as the case may be where she dies before receiving the same within the stipulated period of three months in accordance with clauses (a) to (c) of sub Section (1) of that Section. Failure to do so amounts to be a punishable offence under sub-Section (2) read with or without sub-Section (3) thereof. That is to say, the Dowry paid under the Act can be construed to be the sole property of the woman in whose marriage it is given whether or not it is given by her parents, husband or parents-in-law or any other person. It also amounts that Section 6 of the Act contravenes the provisions of Section 3 thereof?
In fact, marriage brings new changes and challenges in the life of a woman. From the day of her marriage, a newly wedded woman obviously requires special socio-economic security and protection which must be assured not only by her parents but also by her husband. This is more so where the bride is an unemployed person and is totally dependent on the earning of her husband or parents-in-law. Further , a bounden duty also lies on the parents of a bride to look after the well being of their daughter on par the son. Such a duty cannot be ignored only because their daughter is given away in a marriage to another person who shall look after her welfare thereafter. She should be assured as far as possible a minimum living needs by her parents as to how they could do in the case of a son.
At the fag end of our discussion we should take into consideration the fact that dowry menace is not only a legal problem but is more a social problem, so it needs to be handled at socio-legal platform. The realization of the equality of status to man and woman will be more helpful in curbing the menace of dowry than any number of legislations.
Recently, a new school of thought has found place even in higher judiciary that Dowry Prohibition Act, is being used for carrying out personal vendetta, as it was reflected the case of Savitri Devi v. Ramesh Chandra, in which the Justice J.D.Kapur of Delhi High Court taken into account the misuse of Dowry Prohibition Act and ask to make the offence compoundable and bailable. An Act must evolved according to the needs of evolving society otherwise it looses the prime purpose of making the society progressive. It is not to suggest that that the above school of thought is correct but given the fact that it has found expression at such a high level it is worthwhile of being taking into consideration. At the same time it should be taken care of that it does not become a classic case of throwing baby with bath water.