Dowry system in India

The Dowry system in India (Hindi: दहेज, Dahēj)^[1] refers to the durable goods, cash, and real or movable property that the bride's family gives to the bridegroom, his parents, or his relatives as a condition of the marriage.^[2] It is essentially in the nature of a payment in cash or some kind of gifts given to the bridegroom's family along with the bride and includes cash, jewellery, electrical appliances, furniture, bedding, crockery, utensils and other household items that help the newlyweds set up their home.^[3] Dowry is referred to as Jahez in Arabic (derived from Islamic jahez-e-fatimi).^[4] In far eastern parts of India, dowry is called Aaunnpot.^[5]

The dowry system is thought to put great financial burden on the bride's family.^[6] In some cases, the dowry system leads to crime against women, ranging from emotional abuse, injury to even deaths.^[7] The payment of dowry has long been prohibited under specific Indian laws including, the Dowry Prohibition Act, 1961 and subsequently by Sections 304B and 498A of the Indian Penal Code.

A court judgement ^[8]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.

The Dowry Prohibition Act, 1961 article 3 specifies that the penalty for giving or taking dowry does not apply to presents which are given at the time of a marriage to the bride or bridegroom, when no demand for them have been made.

Although Indian laws against dowries have been in effect for decades, they have been largely criticised as being ineffective.^[9] The practice of dowry deaths and murders continues to take place unchecked in many parts of India and this has further added to the concerns of enforcement.^[10]

Section 498A of the Indian Penal Code required the bridegroom and his family to be automatically arrested if a wife complains of dowry harassment. The law was wide abused and in 2014, the supreme court ruled that arrests can only be made with a magistrate’s approval. ^[11]

Historical context

The history of dowry in South Asia is not clear. Some scholars believe dowry was practiced in antiquity, but some do not. Historical eyewitness reports, as discussed below, suggest dowry in ancient India was insignificant, and daughters had inheritance rights, which by custom were exercised at the time of their marriage. Documentary evidence suggests that at the beginning of 20th century bride price, rather than dowry was the common custom, which often resulted in poor boys remaining unmarried.^{[12] [13]}

Stanley J.Tambiah claims the ancient Code of Manu sanctioned dowry and bridewealth in ancient India, but dowry was the more prestigious form and associated with the Brahmanic (priestly) caste. Bridewealth was restricted to the lower castes, who were not allowed to give dowry. He cites two studies from the early 20th century with data to suggest that this pattern of dowry in upper castes and bridewealth in lower castes has persisted through the first half of the 20th century.^[14] However, it is more likely that marriages involved both reciprocal gifts between the two families, claims Tambiah, so that insofar as the groom's family gives the bridewealth, it tends to be given back as the culturally validated dowry to the bride as part of her conjugal estate.^[15]

Michael Witzel, in contrast, claims the ancient Indian literature suggests dowry practices were not significant during the Vedic period.^[16] 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 brahma- and daiva-types of marriage associated with the Brahmanic (priestly) upper caste. Dowry was not infrequent when the girl suffered from some bodily defect. Property rights for women increased in ancient India, suggest MacDonell and Keith, over the Epics era (200 BC to 700 AD).^[17]

Kane claims ancient literature suggests bridewealth was paid only in the asura-type of marriage that was considered reprehensible and forbidden by Manu and other ancient Indian scribes. Lochtefeld suggests that religious duties listed by Manu and others, such as 'the bride be richly adorned to celebrate marriage' were ceremonial dress and jewelry along with gifts that were her property, not property demanded by or meant for the groom; Lochtefeld further notes that bridal adornment is not currently considered as dowry in most people's mind.^[18]

Above analysis by various scholars is based on interpreting verses of ancient Sanskrit fiction and inconsistent smritis from India, not eyewitness accounts. Available eyewitness observations from ancient India give a different picture. One of these are the eyewitness records from Alexander the Great conquest (ca. 300 BC) as recorded by Arrian and Megasthenes. Arrian first book mentions a lack of dowry,

Arrian's second book similarly notes,

The two sources suggest dowry was absent, or infrequent enough to be noticed by Arrian.^[21] About 1200 years after Arrian's visit, another eyewitness scholar visited India named Abū Rayḥān al-Bīrūnī, also known as Al-Biruni, or Alberonius in Latin. Al-Biruni was an Islamic era Persian scholar who went and lived in India for 16 years from 1017 CE. He translated many Indian texts into Arabic, as well as wrote a memoir on Indian culture and life he observed. Al-Biruni claimed,

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 till she is ready to marry, and then give the rest to her to take with her into her married life.^[23]

It is unclear what happened to these daughter's inheritance laws in India after Al-Biruni's visit to India in the 11th century. It is also unclear when, why and how quickly the practice of dowry demand by grooms began, whether this happened after the arrival of Islam in the late 11th century, or with the arrival of colonialism in the 16th century, or both.

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 economic factors that contribute towards the system of dowry. Some of these include inheritance systems and the bride’s economic status.

Some suggestions point to economics and weak legal institutions on inheritance place women in disadvantage, with inheritances being left only to sons.^[24] This leaves women dependent upon their husbands and in-laws, who keep the dowry when she marries.^[25] Prior to 1956, including during the British Raj, daughters had no rights of inheritance to their family's wealth. In 1956, India gave equal legal status to daughters and sons among Hindu, Sikh and Jain families, under the Hindu Succession Act (India grants its Muslim population the Sharia derived personal status laws). Despite the new inheritance law, dowry has continued as a process whereby parental property is distributed to a daughter at her marriage by a social process, rather than after parents death by a slow court supervised process under Hindu Succession Act (1956).^[26]

Dowry gave, at least in theory, women economic and financial security in their marriage in the form of movable goods. This helped prevent family wealth break-up and provided security to the bride at the same time.^[24] This system can also be used as a premortem inheritance, as once a woman is presented with movable gifts, she may be cut off from the family estate.^[27]

For many, dowry has become a greater financial burden on the family, and can leave families destitute based on the demands from the groom.^[24][28] The demand for dowry has increased over time.^[29]

Social factors

The structure and kinship of marriage in parts of India contributes to dowry. In the north, marriage usually follows a patrilocal (lives with husband’s family) system, where the groom is a non-related member of the family. This system encourages dowry perhaps due to the exclusion of the bride's family after marriage as a form of premortem inheritance for the bride.^[24] In the south, marriage is more often conducted within the bride's family, for example with close relatives or cross-cousins, and in a closer physical distance to her family. In addition, brides may have the ability to inherit land, which makes her more valuable in the marriage, decreasing the chance of dowry over the bride price system.^[24]

In addition to marriage customs that may influence dowry, social customs or rituals, and parents expectations of dowry are important factors to consider. A 1995 study showed that while attitudes of people are changing about dowry, dowry continues to prevail.^[28][30] In a 1980 study conducted by Rao, 75% of students responded that dowry was not important to marriage, but 40% of their parents’ likely expected dowry.^[28]

While India has been making progress for women’s rights, women continue to be in a subordinate status in their family.^[31][32] 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.^[32]

Religious factors

Dowry in India is not limited to any specific religion. It is widespread among Hindus and other religions. For example, Indian Muslims call dowry as jahez, 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.^[4]

Dowry in the modern era

Dowry has 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 class. States in the north are more likely to participate in the dowry system among all classes, and dowry is more likely to be in the form of material and movable goods.^[24] In the south, the bride price system is more prevalent, and is more often in the form of land, or other inheritance goods. This system is tied to the social structure of marriage, which keeps marriage inside or close to family relations.^[24]

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 labor market in upper classes.^[6][24]

When dowry evolved in the Vedic period, it was essentially followed by the upper castes to benefit the bride, who was unable to inherit property under Hindu law.^[33][34] To counter this, the bride’s family provided the groom with dowry which would be registered in the bride’s name.^[35] This dowry was seen as stridhan (Sanskrit: woman’s property).^[36] Also, an important distinction is the fact that while the upper castes practiced dowry, the lower castes practiced bride price to compensate her family for the loss of income.^[34][37]

In the modern era, the concept of dowry has evolved and Indian families no longer practice the traditional Vedic concept of dowry.^[38] This is because with the passage of time, bride price gradually disappeared and dowry became the prevalent form of transfer.^[39] 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 marriages in India are a time for big celebrations in each family, they tend to be very lavish. Accordingly, Indian weddings usually involve considerable expenditure and accompanying wedding presents from relatives in both sides of the family. This is normal expenditure which is done willingly and varies from one family to another depending on the wealth, status, etc.^[3]

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.^[40]

Types of dowry crimes

Recently married women can be a target for dowry related violence because she is tied economically and socially to her new husband.^[31] In some cases, dowry is used as a threat or hostage type situation, in order to extract more property from the bride’s family.^[41] This can be seen in new brides, who are most vulnerable in the situation.^[27] 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.^[27] The northern and eastern states of India show higher rates of dowry-related violence.^[42]

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.^[27][29][41] 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).

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. Such cruelty could just 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.^[43] In many instances, such cruelty may even force the woman to commit suicide and it has been specifically criminalized by the anti-dowry laws in India.

Where as cruelty towards newly wed women is well recognized and defined by law, the same actions when committed on husbands do not constitute Cruelty. However often this is not the case.

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.^[44] 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 suicide. In such situations, the dowry crime even extends to abetment of suicide, which includes all acts and attempts to intentionally advise, encourage, or assist in committing suicide.^[45] The impact of dowry can leave a woman helpless and desperate, which can cumulate in emotional trauma and abuse.^[27][31] Dowry related abuse causes emotional trauma, depression and suicide.^[27] The offence of abetment to suicide is significant because in many cases, the accused persons often bring up a defense that the victim committed suicide at her own volition, even though this may not be true in reality.^[46]

Dowry death

Dowry deaths relate to a bride’s suicide or murder committed by her husband and his family soon after the marriage because of their dissatisfaction with the dowry. Most dowry deaths occur when the young woman, unable to bear the harassment and torture, commits suicide by hanging herself or consuming poison. Dowry deaths also include bride burning where brides are doused in kerosene and set ablaze by the husband or his family. Sometimes, due to their abetment to commit suicide, the bride may end up setting herself on fire.^[47]

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.^[27] Apart from bride burning, there are some instances of poisoning, strangulation, acid attacks, etc., as a result of which brides are murdered by the groom’s family.^[48]

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.^[42] 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 The Dowry Prohibition Act, 1961 and this legislation came into force from July 1, 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 to Indian Penal Code and section 198A to the Criminal Procedure Code in 1983. In 2005, the Protection of Women from Domestic Violence Act was passed, which added an additional layer of protection from dowry harassment. Although the changes in Indian criminal law reflects a serious effort by legislators to put an end to dowry-related crimes, and although they have been in effect for many years now, they have been largely criticised as being ineffective.^[9]

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 a term not less than 5 years and a fine not less 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 judiciary also includes a murder charge under Section 302 IPC as this allows courts to impose death penalty on perpetrators of the offence. Section 406 IPC, pertaining to offences for the criminal breach of trust, applies in cases of recovery of dowry as it is supposed to be for the benefit of the woman and her heirs.

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 Supreme Court of India on grounds of abuse, on grounds that it gave arbitrary power to the police and the court. However, it was upheld in Sushil Kumar Sharma v. Union of India (2005).^[66] The Code of Criminal Procedure, 1973 provides that for the prosecution of offences under Section 498A IPC, the courts can only take cognizance only when it receives a report of the facts from the police or upon a complaint being made by the victim or her family.

Protection of Women from Domestic Violence Act, 2005

The Protection of Women from Domestic Violence Act, 2005 ("Domestic Violence Act") was passed in order to provide a civil law remedy for the protection of women from domestic violence in India.^[7] The Domestic Violence Act encompasses all forms of physical, verbal, emotional, economic and sexual abuse and forms a subset of the anti-dowry laws to the extent it is one of the reasons for domestic violence.^[67] Section 3 of the Domestic Violence Act specifically incorporates all forms of harassment, injury and harms inflicted to coerce a woman to meet an unlawful demand for dowry.^[67] Some of the common remedies under the Domestic Violence Act include:

• 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

India is a party to several international human rights instruments which provide theoretical remedies to the dowry problems.^[68] These international conventions include the Universal Declaration of Human Rights ("UDHR"), International Covenant on Civil and Political Rights ("ICCPR"), the International Covenant on Economic, Social, and Cultural Rights ("ICESCR"), the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW"), and the Convention on the Rights of the Child ("CRC"). CEDAW codifies the rights most relevant to the discussion of dowry-related violence: the rights of women. However, there are issues of non-intervention and cultural relativism which impede the use of international law to combat dowry deaths.^[69]

Criticisms on the enforcement of dowry laws

Although Indian laws against dowries have been in effect for decades, they have been largely criticised as being ineffective.^[9] Despite the Indian government's efforts, the practice of dowry deaths and murders continues to take place unchecked in many parts of India and this has further added to the concerns of enforcement.^[10] 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.^[70]

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.^[71] While the laws give great powers, they are not effectively enforced by the police or by courts. It can take up to 10 years for a case to go to court and even once in court, husbands and in-laws end up getting away with extortion or even murder because the women and their families cannot prove 'beyond reasonable doubt' that they are the victims of such crimes, as there are rarely any outside witnesses.^[72] Moreover, when deaths occur through bride burning, evidence itself is usually lost in flames.^[73]

Criticisms on the abuse of dowry laws

There is growing criticism that the dowry laws are often being misused, particularly section 498A IPC which is observed by many in India as being prone to misuse because of mechanical arrests by the police.^[74] 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.^[75]

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 crore's of money as dowry and since it is a cognizable case, police are bound to register the case. And in most cases, the capacity of the wife or her parents and the source of the funds are never tracked.

The Nisha Sharma dowry case was an anti-dowry lawsuit in India. It began in 2003 when Nisha Sharma accused her prospective groom, Munish Dalal, of demanding dowry.^[76] The case got much coverage from Indian and international media. Nisha Sharma was portrayed as a youth icon and a role model for other women.^[77] The case ended in 2012, after the court acquitted all accused.^[76] The Chief Justice Magistrate observed that Nisha was in a relationship with another person Navneet, who she really wanted to marry.^[78]

Section 498A IPC was challenged but upheld by the Supreme Court of India in 2005.^[79] In 2010, the Supreme Court lamented about the possible misuse of anti-dowry laws in Preeti Gupta & Another v. State of Jharkhand & Another and recommended a detailed investigation.^[80] Based on the Supreme Court's observations, the Indian parliament set up a committee headed by Bhagat Singh Koshyari.^[81] In July 2014, in the case of Arnesh Kumar v. State of Bihar & Anr.,^[82] a two-judge bench of the Supreme Court reviewed the enforcement of section 41(1)(A) of CrPC which instructs state of following certain procedure before arrest, and went on to observe that the 498A had become a powerful weapon in the hands of disgruntled wives where innocent people were arrested without any evidence due to non-bailable and cognizable nature of the law.^[75][83] The decision received criticism from feminists because it weakened the negotiating power of women.^[84][85][86] Others welcomed the decision as landmark judgment to uphold the human rights of innocent people.^[87][88] An organization Save Indian Family Foundation was founded to combat abuses of IPC 498a.

On April 19, 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.^[89] News reports indicate that the proposed amendment will make the offence compoundable and this would facilitate couples to settle their disputes.^[90]

See also

• Dowry
• Dowry death
• Bride burning
• Domestic Violence in India

General:

• Women in India
• Marriages in India
• Bride price
• Female foeticide in India
• Social issues in India

References