Dowry: Topic 2

Unit 3
q) Dowry is considered as one of the social evils of Indian society. Explain the legal provisions with
case laws.

Synopsis:
1)Introduction
2)Meaning and concept
3)Historical background
4) Historical journey for anti-dowry laws
5)Causes of dowry
6)Definition of dowry
7)Dowry Prohibition Act,1961 and Legal provisions of the Act
8)Dowry and Indian Evidence Act
9)Dowry and Indian Penal Code
10)Dowry and Law Commission of India
11)Case laws
12)Consequences of dowry
13)Remedial measures
14)Conclusion

1)Introduction:
Dowry is considered as one of the social evils of our Indian society. The concept of dowry is deep rooted
in Indian customs and traditions. Dowry owes its origin in the concept of “Stridhan”. The word “stri” means
woman and the word “dhan” means property. (movable/immovable).
Thus, dowry refers to the property which a woman brings along with her after marriage to her
matrimonial home. Dowry is one of the heinous crime of modern time. It has been a matter of serious
concern to everyone in the society. The rate of dowry is increasing day by day.

2)Meaning and concept:

It refers to the cash, durable goods, real property that the bride and the family members gives to the
bridegroom, his parents, his relatives as an essential condition of marriage. It is also in the form of gifts
which are given at the time of marriage. The concept of dowry is practiced since time immemorial.

3) Historical background:

1)The concept of dowry has its reference in the hindu law which recognised Brahma form of marriage. This
form of marriage gave permission to the father to gift his daughter jewellery and to the bridegroom gifts and
garments. During this period the dowry system was introduced with a good intention in the form of gifts,
money, valuables etc.

2) Dowry was more of a prestigious thing and it was associated with the Brahminic Caste whereas the Brides
wealth was typically restricted to the lower castes. This mainly prevailed in the earlier half of 20th Century.

3) Dowry has been referred as ‗Yautraka ‘which means a kind of material gift which confirms that two people
have joined in a matrimony. The girl in marriage was given away upon getting a price that was called ‘Sulka’.
It means that the parents were compensated for their loss of their daughter after her marriage.

4)Dowry system was prevalent since the Vedic period where gifts from parents, relatives were recognised as
women ‘s property called ‘Stridhan’.

5)In Indian marriages along with money, jewellery and other items to be given to the groom as dowry the
giving away of the bride- ‘Kanyadana’ was also a part of it. Kanya means Daughter and Dana means Gift. It
was also known as ‘Hunda’, it comes from the word Handa meaning pot. It was called so because in ancient
times the dowry was given in a pot.

6) Dowry was given as a support to the bride that she could use for her independent use. According to
Kautilya, dowry was a means of Subsistence or jewellery what is called the use of property of a woman.

It is only when the British came to settle permanently under Lord Cornwallis in 1793, enabled a system of
private ownership of land which was an unknown concept in India. It is then that the Feudal system or the
Zamindari System emerged, before this zamindars were just tax collectors of the society. It was only during this
time when the British completely prohibited women from owning any land or any kind of property. This was the
time when parents used to give money to the bride during her marriage and as the British prohibited women
from possessing any kind of wealth the money that she received during her wedding will now belong to her
husband.

The husband in this case misused the right to possess the wife ‘s wealth and the concept of dowry once again
took a turn and now it became a consideration for marriage that meant in a marriage the bride had to bring the
wealth as desired by the family of the in-laws as consideration of her marriage.

If such desired wealth was not brought then various ways of torture be inflicted upon the bride to pressurise
her to bring such wealth and so in the process there have been various cases of crimes like Murder, Suicide,
bodily injuries, Mental abuse etc. In the 1980s, we first got the glimpse of uproar on protest against Dowry.
Women through their radical movement established that root of subordination lies in the biological family and
corporation of laws were not adequate until the attitude of society is reformed via education and participation in
politics.

4)The Historical Journey of Anti- Dowry Laws

In the latter half of the 1900s in India there was an alarming rise in Dowry related crimes. Crimes
like
murder of the bride by hanging, burning, poisoning etc., compelling the brides to commit suicide, verbal
and
mental abuse, inflicting of bodily injuries to name a few. The society was completely in the grip of a dark
phase
where greed and lust were the primary factors where marriage was concerned. It was seldom taken as a
scared
union. The basic sacredness of the institution of marriage was long lost. The victims of Dowry crimes
increased
and so the need for a reform.
In order to eradicate this evil the Sind Act was passed in 1939. The government of Bihar passed the
Bihar Dowry Restraint Act,1950. Though the Dowry Prohibition Act, 1961 was prevalent but the rate of
Dowry crimes increased at an alarming rate. There were no proper checks and investigations were
improper.
After the enactment of the Dowry Prohibition Act, 1961 and after series of various protects against
the alarming increase of Dowry crimes, women activists started various awareness programme to
educate women about their rights and that dowry was a prohibited act and is against law.
In the year 1983, the Criminal Law (second amendment) Act was passed and a new provision
Section 498A was added to the Indian Penal Code, 1860. This provision provided women protection
from abuse both physical and mental.
In the case of Ashok Kumar v. State of Rajasthan SCC1991 in this case Justice R.M.Sahai observed
that bride burning and dowry death is a shame to our country.

5)Causes of Dowry:
 Inferior status of woman:
 Woman is considered as a burden
 Dowry is a way of providing share to the girls in parents property
 Undue importance is given to the institution of marriage
 Parents are eager to get their daughters married soon in order to avoid affairs and
exogamous form of marriage of their daughters.
 Lack of education and economical freedom to girls leads to origin of dowry system
 Greed: desire for easy wealth
 Competition with neighbours relatives
 Considered as a status symbol
 Gender inequality
 Desire to get daughters married in rich families, highly educated boys, high salaried
employee
 Dowry is the way of providing a share to the girls in the parents property
 To help the newly married couple in the establishment of the new household
 6)Definition of Dowry:
1) According to Max Radiant, ”Dowry is the property which a man receives when he marries ,either
from his wife or her family.”
2) According to Webster’s New International Dictionary, ”Dowry is the money good or estate which
a woman brings to her husband in marriage”
3) Section 2 of the Dowry Prohibition Act,1961 dowry means any property or valuable given or
agreed to be given either directly or indirectly –
 By one party to the other party in the marriage
 By the parents of either party in a marriage or by other person to either
party in the marriage or to any other person,
At or before or any time after the marriage in connection with the marriage
of the said parties, but does not include dower or mehr in the case of
persons to whom the Muslim Personal Law applies.

7)The Dowry Prohibition (DP) Act ,1961:

Object of the Act: This act was enacted by the government with an objective to prohibit presenting, obtaining
or demanding dowry by any means from either of the party to the marriage. The act had been amended two
times in the year 1984 and 1986.After these amendments two new provisions s498(A) and s304(B) were
introduced in the IPC.
1) Importance of the Act: This legislation prohibits the request, payment or acceptance of a dowry, “as
consideration for the marriage”. Here “dowry” is defined as a gift demanded or given as a precondition
for a marriage. Gifts given without a precondition are not considered dowry, and are legal.   Asking or
giving of dowry can be punished by an imprisonment of up to six months, a fine of up to Rs. 15000 or
the amount of dowry (whichever is higher), or imprisonment up to 5 years.
2) Jurisdiction: This act extends to the whole of India. This act delegates the central and state
government to formulate rules in relation to giving, taking and demanding dowry.
3) Penalty for giving and taking dowry Section 3:
If any person after the commencement of the act gives, takes, abets the giving or taking of dowry shall
be punished with imprisonment for a term of not less than 5 years and with fine not less than rs 15,000/
Exception:
Nothing in section 3 shall apply to the presents which are given at the time of marriage to the bride
without any demand. The presents which are given to the bride and bridegroom at the time of marriage
without any demand were given out of love and affection as well as the presents are in accordance with
the rules made under this act.
4) Penalty for demanding dowry section 4: it provides that if any person demands dowry directly or
indirectly from the parents, relatives, guardians of bride or bridegroom as the case may be shall be
punished with imprisonment for a term which shall be not less than 6 months but which may extend to
2 years and with fine which may extend to 10,000 rs. If demand for dowry is made even after the
marriage it could be also a part of consideration thereby bringing it comes within the definition of
dowry. Any agreement for the giving or taking of dowry shall be void.

5) Ban on advertisement section 4A: if any person offers through advertisement any
newspaper ,periodical, journals, media any share in business any interest or consideration for marriage
of son daughter of relative shall be punishable with imprisonment for a term not less than 6 months
which may extend to 2 years or with fine of rs15,000/.

6) Agreement for giving or taking dowry to be void section 5: Any agreement for the giving or taking
of dowry shall be void.
7) Dowry to be for the benefit of the wife or heirs section 6:
(1) Where any dowry is received by any person other than the woman in connection with whose
marriage it is given, that person shall transfer it to the woman –

a. if the dowry was received before marriage, within three months after the date of marriage; or
b. if the dowry was received at the time of or after the marriage within three months after the date of its
receipt; or
c. if the dowry was received when the woman was a minor, within three months after she has attained
the age of eighteen years, and pending such transfer, shall hold it in trust for the benefit of the woman.
(2) If any person fails to transfer any property as required by sub-section (1) within the time limit specified
therefor or as required by sub-section(3), he shall be punishable with imprisonment for a term which shall
not be less than six months, but which may extend two years or with fine which shall not be less than five
thousand rupees, but which may extend to ten thousand rupees or with both.

(3)Where the woman entitled to any property under sub-section (1) dies before receiving it, the heirs of the
woman shall be entitled to claim it from the person holding it for the time being:
if she has no children, be transferred to her parents, or
if she has children, be transferred to such children and pending such transfer, be held in trust for such
children.

(3-A) Where a person convicted under sub-section (2) for failure to transfer any property as required by
sub-section (1)or sub-section (3) has not, before his conviction under that sub-section, transferred such
property to the women entitled thereto or, as the case may be, her heirs, parents or children, the Court shall,
in addition to awarding punishment under that sub-section, direct, by order in writing, that such person
shall transfer the property to such woman, or as the case may be, her heirs, parents or children within such
period as may be specified in the order, and if such person fails to comply with the direction within the
period so specified, an amount equal to the value of the property may be recovered from him as if it were a
fine imposed by such Court and paid to such woman, as the case may be, her heirs, parents or children.

(4)Nothing contained in this section shall affect provisions of Sec. 3 or Sec. 4.

8) Cognisance of offences section 7:
No Court inferior to that of a Metropolitan magistrate or a Judicial Magistrate of the first class shall try any
offence under this Act; no Court shall take cognizance of an offence under this Act 
9)Burden of proof in certain cases section 8A: Where any person is prosecuted for taking or abetting the
taking of any dowry under Sec. 3, or the demanding of dowry under Sec.4, the burden of proving that he
had not committed an offence under those sections shall be on him.

10) Dowry Prohibition Officers section 8B:

(1) The State Government may appoint as many Dowry Prohibition Officers as it thinks fit and specify the
areas in respect of which they shall exercise their jurisdiction and powers under this Act.
 8)Dowry and Indian Evidence Act:

 Section 113(A): of Indian Evidence Act: it provides presumption of abetment of suicide in case of
death of married woman within a period of 7 years of marriage.
 Section 113(b): of Indian 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 demand of
dowry
 Section 304(B) of Indian penal code along with section 113(B) of Indian evidence act has enabled
conviction of many people who were not caught under Dowry Prohibition Act, 1961.

9) Dowry and Indian Penal Code:

1)Apart from the Dowry Prohibition (DP) Act 1961, the menace of dowry has been covered in three sections of
Indian Penal Code viz. Section 406 {recovery of the Streedhan}, Section 304-B {Dowry deaths} and Section
498-A {cruelty on the basis of demand of dowry}. However, there are some major issues with these laws as
discussed under.

2)The issue of differentiation between the Dowry and Streedhan

Section 406 of the Indian Penal code is usually applied in investigation of stridhan recovery from the husband
and his family. Stridhan is what a woman can claim as her own property within a marital household. It may
include her jewellery (gifted either by her family), gifts presented to her during the wedding or later, and the
dowry articles given by her family. Offences under this section are Non-bailable and cognizable.
The issue with this section of IPC is that it hardly demarcates the boundary between the Dowry and
Streedhan. Streedhan belongs to the woman while dowry is something which is given by either party to another.
3)IPC Section 498A
It provides that if the husband or a relative of the husband of a woman, subjects the woman to cruelty, he shall
be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Here, the offence of cruelty is considered to be non-compoundable and non-bailable. This means that once a
case is lodged, there cannot be compromise.

10)Recommendations of Law Commission:

1)In 2002, the Law Commission had recommended watering down the anti-dowry law to make it less stringent
by allowing the woman involved in the case to withdraw the case with the permission of the court provided she
is not under any pressure. The commission, headed by Justice PV Reddi, has also recommended to the
government to make Section 498-A of the Indian Penal Code (IPC).

2)Similarly, Justice Malimath Committee on Reforms of Criminal Justice System, 2003 observed the following
and gave the recommendation to amend the law immediately.
The less tolerant impulsive woman may lodge an FIR even on a trivial act. The result is that the husband and his
family may be immediately arrested and there may be a suspension or loss of job.
 The offence alleged being non-bailable, innocent persons languish in custody. There may be a claim for
maintenance adding fuel to fire, if the husband cannot pay.
 The woman may change her mind and get into the mood to forget and forgive. The husband may realize the
mistakes committed and come forward to turn a new leaf for a loving and cordial relationship. The woman may
like to seek reconciliation. But this may not be possible due to the legal obstacles. Even if she wishes to make
amends by withdrawing the complaint, she can not do so as the offence is non compoundable. The doors for
returning to family life stand closed.
 11)Case Laws:

1)In the Arnesh Kumar v State of Bihar SC 2014

Facts of the case: a wife had alleged that her father in-law and mother-in law had demanded Rs 8 lakhs, a car,
an air conditioner etc. in the form of dowry. When her family failed to pay this, she was threatened by her
husband for second marriage and drove her out of the house.
The Supreme Court however observed that there were several frivolous complaints lodged by women to
falsely implicate their in-laws and thus laid down a checklist of nine criteria which must be complied with
before arresting a person under Section 498A of IPC.
Findings: In this case the supreme court has given guidelines and directions to all the state government to
instruct its police officers not to automatically arrest any person when a case under section 498(A) of IPC is
registered but to satisfy themselves the necessity of arrest under the parameters under section 41 of CRPC.
If the police and Magistrate do not comply with the guidelines then it will attract disciplinary and contempt
proceedings against them.

2) Sher Singh Pratap v.State of Haryana SC 2015

In this case supreme court held that the social problem of sati and dowry death have plagued this nation for
centuries.

3)In the recent Rajesh Sharma and Ors. v State of UP SC 2017

Facts of the case: a woman had complained of dowry demand by her in-laws subsequent to which she was
dropped at her matrimonial home when she was pregnant. She had to go through trauma and had a miscarriage
followed by her in-laws taking away her Stridhan.
Findings: The Court in this case gave further stringent criteria for determination of case under Section 498A.
 It mandates the setting up of a family welfare committee in every district for scrutinizing the dowry harassment
cases.
 The members of this committee shall be social workers or persons interested in the subject.
 The members shall be paid an honorarium.
 The police have to look into the recommendations of these committees before making any arrests.

12)Consequences of dowry system:

1) Parents are compelled to give dowry directly or indirectly since it is considered as a price for marriage and if
the parents fail to give it then the bride has to suffer ill -treatment.

2)Due to dowry system the general status of woman is lowered since female children are considered as
unwanted burden and are victims of domestic violence, dowry deaths, bride burning etc

3)The dowry system leads to family disharmony

4)Matrimonial relations are hampered

5)The dowry system has led to gross evils in society like female infanticide, foeticide, dowry deaths, suicides
etc.

6)Some of the girls who cannot marry at their respective ages due to poverty cannot afford dowry and become
victims of corrupt and immoral life eg prostitution, sexual abuse etc.

12)Suggestions and Remedial Measures:

1)Dowry is a social malaise, one that can be tackled by the society alone.

2) Social boycott and public shaming of people who give and take dowry has to be the first step.
3)We should refuse to be part of any wedding that encourages dowry.

4) Absence of those who appreciate and applaud would demotivate people from splurging on weddings. 
5)Educating and empowering girls

13) Conclusion: