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Anti-Dowry Laws: Tools of Justice, or Instruments of Blackmail ? by the Society for Promotion of Marital Harmony 2004

 

The Dowry Prohibition Act, was enacted with the intention of protecting wives from marital violence, abuse and extortionist dowry demands, however, the actual implementation of these laws has left a bitter trail of disappointment, anger and resentment in its wake, among the affected families

The truth is, that there were adequate provisions in the IPC Sections 323, 324, 325 and 326 for use against anyone who assaults a woman or causes her injury. The Indian Penal Code was amended twice during the 1980s — first in 1983 and again in 1986 — to define special categories of crimes dealing with marital violence and abuse

In 1983, Section 498A of the IPC defined a new cognizable offence, namely, “cruelty by husband or relatives of husband”. This means that under this law the police have no option but to take action, once such a complaint is registered by the victim or any of her relatives. It prescribes imprisonment for a term which may extend to three years and also includes a fine. The definition of cruelty is not just confined to causing grave injury, bodily harm, or danger to life, limb or physical health, but also includes mental health, harassment and emotional torture through verbal abuse. This law takes particular cognisance of harassment, where it occurs with a view to coercing the wife, or any person related to her, to meet any unlawful demand regarding any property or valuable security, or occurs on account of failure by her, or any person related to her, to meet such a demand.

During the same period, two amendments to the Dowry Prohibition Act of 1961, enacted in 1984 and 1986, made dowry giving and receiving a cognizable offence. Even in this case, where a person is prosecuted for taking or abetting dowry, or for demanding dowry, the burden of proof that he had not committed the offence was placed on the accused.

However, no punitive provisions were added for those making false allegations or exaggerated claims. There is, of course, the law against perjury (lying on oath). But in India, the courts expect people to prevaricate and lawyers routinely encourage people to make false claims because such stratagems are assumed to be part of the legal game in India. Therefore, the law against perjury has hardly ever been invoked in India.

Section 406, to be invoked by the woman to file cases against her husband and in-laws for retrieval of her dowry prescribes imprisonment of upto three years for criminal breach of trust. Often, highly exaggerated or bogus claims are made by unscrupulous families who demand the return of more than was given as ‘stridhan’, using the draconian sections 498A and section 406 of the IPC as a bargaining tool.

Furthermore, another Section 304B was added to the IPC to deal with yet another new category of crime called “dowry death”. This section states that if the death of a woman is caused by burns or bodily injury, or occurs under abnormal circumstances, within seven years of her marriage and it is shown that just prior to her death she was subjected to cruelty by her husband or any relative of her husband, in connection with any demand for dowry, such a death would be called a “dowry death”, and the husband or relative would would be deemed to have caused her death. The burden of proof is shifted to the accused party. The basic spirit of Indian jurisprudence is that a person is presumed innocent till proven guilty. However, in all these cases the person is assumed guilty till proven innocent.

The person held guilty of a "dowry death" shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. By inserting a new section 113B in the Indian Evidence Act, the lawmakers stipulated that in cases that get registered by the police as those of “dowry death”, the court shall presume that the accused is guilty unless he can prove otherwise.

This is understandable in cases of death because the unnatural demise of a woman through suicide or murder is in itself proof that something was seriously wrong in the marriage. But problems arise when the same presumption applies to cases of domestic discord where the underlying cause of conflict is not necessarily the husband's violence, abuse or economic demands but due to the couple's inability to get along with each other.

The law was recast, heavily weighted in the woman’s favour, on the assumption that only genuinely aggrieved women would come forward to lodge complaints and that they would invariably tell the truth. In the process, however, the whole concept of due process of law had been overturned in these legal provisions dealing with domestic violence

With the police as well as lawyers encouraging female complainants to use this as a necessary ploy to implicate their marital families, making them believe that their complaint will not be taken seriously otherwise. It has become a distinct trend to include dowry demands in every complaint of domestic discord or cruelty, even when dowry was not an issue at all. This has created an erroneous impression that all of the violence in Indian homes is due to a growing greed for more dowry.

This tendency has received a further fillip with the enactment of 498 A, mentioning dowry demands seems to have become a common ritual in virtually all cases registered with the police or filed in court, misusing the provisions of sections 498A and 406. Even members of many women’s organisations themselves acknowledge such abuse. Things have come to this pass, not just due to police and judicial corruption/apathy but also because the laws, as they are currently framed, lend themselves to easy abuse.

All these amendments placed draconian powers in the hands of the police without adequate safeguards against the irresponsibility of the enforcement machinery. There are any number of cases coming to light where Section 498A has been used mainly as an instrument of blackmail. It lends itself to easy misuse as a tool for wreaking vengeance on entire families, because, under this section, it is available to the police to arrest anyone a married woman names as a tormentor in her complaint, as “cruelty" in marriage has been made a non-bailable offence. Thereafter, bail in such cases has been denied as a basic right.

This law has lent itself to gross abuse, because arresting and putting a person in jail, even before the trial has begun, amounts to pre-judging and punishing the accused without due process. Although a preliminary investigation is required after the registration of the F.I.R, in practice such complaints are registered, whether the charges are proved valid or not, and arrest warrants issued, without determining whether the concerned family is actually abusive, or they have been falsely implicated. Our laws do not recognise the possibility of daughters-in-law maltreating old in-laws or other vulnerable members of their husband's family.

There are any number of cases where the problem is mutual maladjustment of the couple rather than abuse by the entire joint family. However, a host of relatives, including elderly parents, who are not necessarily the cause of maladjustment, have all been arrested and put in jail for varying lengths of time before the trial begins. There have been several cases where judges have refused bail unless the accused family deposits a certain sum of money in the complainant’s name as a precondition to the grant of bail.

There have been of instances where the main point of discord between the couple was that the wife wanted the husband to leave his parent's home or an old widowed mother and set up a nuclear family. Since the man resisted this move, the wife used 498A as a bargaining device, without success though.

Indeed, there have been many cases where the woman uses the strict provisions of 498A in the hope of enhancing her bargaining position vis a vis her husband and in-laws. Her lawyers often encourage her in the misguided belief that her husband would be so intimidated that he will be ready to concede all her demands. However, once a family has been sent to jail even for a day, they are so paranoid that they refuse to consider a reconciliation under any circumstances, pushing instead for divorce, then they are in a fight to the finish. Thus, many a woman ends up with a divorce she didn’t want and with weaker, rather than strengthened, terms of bargaining.

Often, these highly exaggerated or bogus claims made by unscrupulous wives and her family fail to stand scrutiny and many cases do not go far because the charges are so exaggerated that the cases fall through. In many instances, out-of-court settlements are made, by presenting, with mutual consent, a joint petition/ in the High Court u/s 482 Cr. P.C., using 498A as a bargaining point by the woman’s family. But this in itself amounts to using the law as a weapon of intimidation rather than a tool of justice defeating the letter, spirit and purpose of the law depriving the truly deserving cases of her legitimate dues....

 

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