Shield or Weapon? The Abuse of India’s Dowry Laws
By Isra Syed, From Volume 2, Issue 2
n recent years, India has been on the minds of many people—common associations are burgeoning economic growth, budding political hegemony, and rapid technological innovations. However, while the most populous coun- try of South Asia gains momentum in the global workplace, a legal conundrum has taken hold of the Indian home. For decades, India has been battling the issue of dowry-related domestic violence. According to United Nations Population Fund Report, as many as seventy percent of married women in India between the age of 15 and 49 are victims of beat- ing, rape, or forced sex.1 One of the leading causes for such violence is dowry harassment, a widespread and culturally entrenched phenomenon in which the family of the groom demands a high dowry from the family of the bride. While the causes behind dowry harassment are difficult to pinpoint, the socially dependent status of women makes them means for their husbands’ families to easily increasing their stand- ard of living, while reaffirming their position of power over the woman.
Dowry harassment can take many forms, from continuously escalat- ing demands during the arrangement of the marriage, to the verbal and physical abuse of the bride after her wedding, to pressurizing her to bring a bigger dowry from her family. Even as society grants more economic freedom to women, dowry-giving continues to be a part of the Indian way of life, and its social externalities continue to affect women of lower economic and social standing. Every year, more than 9,500 women are killed over dowry conflicts in India.2 For years, the Indian government has attempted to craft a productive legal policy to punish and prevent dowry abuse cases, but to little avail.
Indian Dowry Law: A Historical Perspective
In many segments of Indian society, the practice of dowry is an age-old tradition still practiced to this day, despite its repeal in 1961.3 Generally speaking, it is a payment from the bride’s family to the groom’s family at the time of the ar- ranged marriage. Depending on the salary and status of the groom, the parents of the bride give her a number of items, such as furniture, crockery, appliances, clothing, jewelry, or cash.4 Historically, the family of the groom demands the dowry to be of a certain value, placing tense financial and social strain on the family of the bride. In many cases, these demands continue long after the wedding, and failure to comply with them degenerate into female domestic harass- ment and abuse. Moreover, the dowry phenomenon is largely responsible for economically incentivizing a preference for male over female children in the family unit, creating impli- cations such as sex-selective abortions and unbalanced sex ratios.5
In order to mitigate these results, the Indian government is- sued the Dowry Prohibition Act of 1961, which made the act of giving or receiving dowry a crime punishable by imprison- ment or fine.6 However, the practice of dowry, and its nega- tive social implications, did not cease with the enactment of this new law, for a number of reasons.7 For instance, under the law, dowry is defined as “any property or valuable se-curity given or agreed to be given either directly or indirectly by one party to a marriage to the other par- ty to the marriage or by the parents of either party to a marriage or by any other person, to either party to the marriage.”8 At the same time, however, the law does allow “gifts” given to the couple outside of a dowry arrangement.9 This has rendered the law essentially toothless and made the enforcement of the prohibition nearly impossible. Dowry harassment continued to be widespread.
Following a spate of dowry-related murders in 1983 in the northern part of the country, the Indian government realized that the ineffective prohibition on dowry was in need of fine- tuning and strengthening. It thus introduced a new section to the Indian Penal Code in 1983, which made the preceding dowry harassment laws more stringent, in hopes of clamp- ing down on the dowry problem once and for all. This law, referred to as Section 498a, made cruelty by husband or his relatives a criminal offense by stating that “whoever being the husband or relative of the husband of woman, subjects such woman to cruelty shall be punished with the imprisonment for a term which may extend to three years and also be liable to fine.”10
Section 498a: Shifting the Power Balance
While Section 498a appears to have made revolutionary pro- gress, the well-intentioned law has recently become the sub- ject of countless legal complaints, scholarly criticisms, and a nation-wide public outcry against the commonplace abuse of the law. A large number of recent dowry harassment cases have involved inflated, aggravated, or nonexistent al- legations, roping in the entire family of the accused husband on baseless criminal charges, out of vengeance or greed on the part of the wife.11 For instance, in the year 2005, out of 58,319 cases filed under Section 498a, 10,491 of them were charge-sheeted on grounds of frivolity, meaning that 24,256 innocent people were arrested on illegitimate grounds, due to the non-bailable and cognizable nature of the law.12 Ad- ditionally, only five per cent of all 498a cases resulted in con- victions, further suggesting a widespread trend of legal abuse and inefficacy.13
According to Justice D.K. Jain of the Supreme Court of In- dia, “Section 498a IPC was introduced with the avowed ob- ject to combat the menace of dowry deaths and harassment to a woman at the hands of her husband or his relatives. Nevertheless, the provision should not be used as a device to achieve oblique motives.”14 The conundrum lies in Section 498a’s loose definition of cruelty as any willful conduct likely to cause grave injury or danger to the woman, or harassment of the woman in order to coerce her to meet any unlawful demand.15
Several unique qualities of Section 498a make it a particu- larly stringent law. While in almost every crime, Indian juris- prudence puts the burden of proof on the accuser, in matters of dowry law, the husband is seen as guilty until proven in- nocent in the eyes of the law. Additionally, as a cognizable of- fense, once such a complaint is registered by the victim or any of her relatives, the police are legally obligated to take action against the accused and take them into custody as soon as possible. The law prescribes imprisonment for a term which may extend to three years and includes a fine.
Moreover, Section 498a’s defi- nition of cruelty is not just con- fined to causing grave injury, bodily harm, or danger to life, limb or physical health, but also includes harming men- tal health through harassment and verbal abuse. This law takes particular cognizance of harassment, where it occurs to coerce the wife, or her relatives, to meet any unlawful demand regarding any property or val- uable security.16 Thus, through placing the burden of proof on the accused, criminalizing har- assment, and making the pun- ishment cognizable, the lan- guage of the section favors the woman greatly, in the hope of making dowry complaints ac- cessible to women who would otherwise remain silent about their plight.
Impact and Abuse of the Law
However, in 2008, out of the 31,950 dowry death cases brought to trial, only 1,948 resulted in convictions.17 This number is up from past years, indicating that perhaps the new stringency is empowering more women to bring their abusers to trial, and finally bringing familial equality to In- dia.18 However, there is another side to the coin of the law’s success, surrounding the law in a bout of controversy.
In recent years, Section 498a has facilitated the creation of a new type of marriage fraud, referred to as “498a entrap- ment.” In these instances, a woman files or threatens to file a 498a case against her husband’s entire family when the mar- riage turns sour, thereby blackmailing them for large sums of money and ensuring that the divorce proceedings pass quickly through India’s generally lethargic courts. Other times, the family of the woman plans the case long before the marriage turns bad, accusing the husband of abuse with- in weeks after the wedding.19 A number of men and their families have filed complaints and counter suits in this vein, and a burgeoning “men’s rights movement” has been at the forefront of a vocal effort to denounce the law, creating a polarizing dialogue about the state of the Indian family. While efforts to bring men’s rights to the center of the dowry law debate seem disingenuous and slightly misogynistic, the large and growing number of genuine complaints regarding 498a entrapment is impossible to ignore. Although the num- ber of false dowry claims against men is still overshadowed by the intensity of dowry related crimes committed against women in India, a number of men’s rights organizations have made it their mission to lobby for the law’s removal, on the grounds that its ambiguous language and near-dra- conian strictness allow for easy abuse. These concerns are valid, especially in regards to non-resident Indians, who are disproportionately likely to fall victim to such fraud and bear the heavy consequences.20
The Indian justice system is still in search of an effective way to legally mitigate the dowry death and domestic violence is- sue that has troubled the nation for so long. While the Dowry Prohibition Act of 1961 proved completely ineffectual due to its unenforceability, the stringency of Section 498a went too far, creating a problem of legal abuse and uncovering a much deeper problem of gendered social tensions and resentment within Indian society. These facts raise the fundamental question of whether the Indian judiciary should continue to regulate the dowry practice, or whether a new approach needs to be taken in order to counter it.
However, in many regards, the last word on the efficacy of 498a and the current set of dowry laws has not yet been spoken. A number of women have been able to free them- selves from abusive relationships due to the law’s favorable language, even though the problem of dowry deaths un- doubtedly continues. The catalyst of the dowry death phe- nomenon is social in nature, and under current conditions of limited law enforcement in India, can only be eliminated through large-scale social change. While the place of the law is surely to regulate social customs from causing harm, in the context of Section 498a, the value of harshly criminalizing this aspect of family law may not outweigh the great personal damage that has come about from its abuse.
For the time being, the Supreme Court of India has prom- ised to force the government to reassess the law.21 Until then, it can only be hoped that the law enforcement of India miti- gates the adverse effects of 498a, while realizing its potential to keep the Indian family from further crises.
1. Ankur Kumar, “Domestic Violence in India: Causes, Conse- quences and Remedies,” Youth Ki Awaaz, http://www.youthkiawaaz. com/2010/02/domestic-violence-in-india-causes-consequences- and-remedies-2/.
2. Anudita Chaurasia, “Dowry Death”: Crime Against Humanity, Mighty Laws, Apr 11 2011, http://www.mightylaws.in/417/dowry- death-crime-humanity. 3. “The Dowry Prohibition Act”, Ministry of Woman and Child De- velopment, 20 May 1961.
4. ShinghKamayani, “The Dowry System and Women in India”, Internation Christian University Center for Gender Studies, April 2005. 5. Amelia Gentleman, “Indian Brides Pay a High Price”, The New York Times, Oct 22 2006.
6. “Dowry Prohibition Act of 1961, Maahilayog, Maharashtra Gov- ernment, May 20th 1961. <http://mahilaayog.maharashtra.gov.in/ new/pdf/dowery-%20act.pdf> 7. Ibid, Madhu Purnima Kishwar.
8. “The Dowry Prohibition Act, 1961”, Ministry of Women and Child Development, http://wcd.nic.in/dowryprohibitionact.htm. 9. Ibid, Madhu Purnima Kishwar. 10. “Section 498A in the Indian Penal Code”, Central Government Act, Indian Kanoon.org, http://indiankanoon.org/doc/538436/. 11. Richa Mishra, “Section 498 IPC”, Legal Service in India, 23 April 2009.
12. “The Silent Tears of Shattered Families”, 498a.org, http:// www.498a.org/contents/Publicity/498aReport.pdf. 13. “The Silent Tears of Shattered Families”, Ibid. 14. “IPC-498a- Harrassment or Cruelty to Women”, The Indians Abroad, http://www.theindiansabroad.com/tag/ipc-498a/.
15. “Section 498A: Husband or Relative of Husband of a Woman Subjecting her to Cruelty,” VakilNo1.com, http://www.vakilno1. com/bareacts/indianpenalcode/s498a.htm. 16. Ibid, MadhuPurnimaKishwar.
17. “Disposal of IPC Cases by Courts in 2008,” National Crime Re- cords Bureau, Ministry of Home Affairs. 18. “Disposal of IPC Cases by Courts in 2008,” Ibid. 19. “What’s Working: 498 or MHA?”,Save Indian Family Founda- tion. http://www.saveindianfamily.org/articles/views/984-whats- working-498a-or-mha.html
20. “Victim of Dowry Immigration Fraud”, India West, http:// www.498a.org/contents/general/Advice%20to%20NRIs%20marry- ing%20in%20India.pdf. 21. “Amend Dowry Law to Stop its Misuse, says SC to Government”, August 2010, The Times of India.
22. By Yann Forget (Own work) [GFDL (www.gnu.org_copyleft_fdl. html) or CC-BY-SA-3.0-2.5-2.0-1.0, via Wikimedia Commons.