Effective Implementation of the Dowry Prohibition Act 1961, need of the hour
(Dr.Mridul Eapen, Former Member, Kerala State Planning Board
Adv.J Sandhya, Former Member, Kerala State Commission for the Protection of Child Rights )
While it is true that social change and gender justice cannot be brought about merely by passing laws within the existing patriarchal framework which do not question the basic issues of power balance between genders, women’s economic rights within the family and her position in society which results from her powerlessness, what are the ways in which these laws can be made to perform better even while other measures are being taken to create a gender conscious society. Some of the limitations of the laws have been pointed out as also the absence at times of the institutional structures prescribed under these Acts. Our attempt is to have a close look at the Prohibition of Dowry Act 1961 in the backdrop of the recent, anguished, vocal outbursts in Kerala society against the practice of dowry subsequent to the suicide of a young woman called Vismaya (and two others in the same month). How can we make it more effective?
Across India there is evidence of the increasing dimensions of dowry as an essential basis of match making, and in Kerala too there is a sharp visibility of dowry and signs of its growing presence including among groups that did not conventionally observe dowry (for instance among the matrilineal Hindu groups). The practice of dowry is perhaps the most demeaning for women, causing huge financial burden on the parents, impoverishing poorer families, resulting in violence against women, even leading to death (by burning in many cases) or suicide if dowry requirements are not met as has become very in the last few months. At times parents are unable to marry off daughters, even highly educated /working girls, due to high dowry demands. Kerala has a higher than all-India average of unmarried women.
While the state is ahead of other states in social indicators reflected in the Gender Development Index, a decomposition of this index reveals that the top position in education and health masks the poor employment profile of women in the state, a critical source of independent income which would increase their bargaining power to withstand dowry demands. There are indications of significant escalation in dowry rates in the state. For instance even as early as in 1996, dowries for mid-status middle class marriages (as between children of say a primary school teacher or local factory worker) were upto Rs 2 lakh and rising (M Eapen and P Kodoth: Family Structure, Women’s Education and Work:Re-examining the High Status of Women in Kerala, WP 341, CDS,2002). Needless to state dowry rates have escalated since then and the system has become highly commercialised, money being used to contract marriages with desirable families. While reviewing the Act, we are of the opinion that of utmost importance is a change in social thinking eradicating ‘dowry’ as it is now perceived, emphasising equal share for boys and girls in family wealth and empowering women economically through decent paid employment to make them independent and self confident.
II. Overview of the Act
The Dowry Prohibition Act 1961 prohibits the practice of giving or taking of dowry by either parties to a marriage. This overview includes the amendments made in 1984 and 1986 (for eg. expanding the definition of dowry to include before or any time after marriage; making the offence non-bailable; putting the burden of proof on the person who takes the dowry ; ensuring that the dowry is transferred to the woman, if received by someone else; and that it goes to her children or parents if she dies within 7 years of marriage; enhancing the penalty; appointment of Dowry Prohibition officers and an Advisory Board).
Definition of `dowry’ (Section 2)
In this act, `dowry’ means any property or “valuable security” (having the same meaning as in Sec 30 of IPC) given or agreed to be given either directly or indirectly:
a. by one party to a marriage to the other party to the marriage; or
b. by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person; at or before or any time after the marriage in connection with the marriage of said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Penalty for giving or taking dowry (Section 3)
If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with the fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more: Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years.
Presents which are given to the bride or the bridegroom at the time of marriage without any demand being made are not considered as dowry. But it imposes a duty on parties getting married to make and maintain a list of gifts and presents received as required under the Rules of this Act.
Penalty for (a) demanding dowry (Section 4); punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees with a proviso for special reasons to lower the penalty:
(b) anyone who advertises (Section 4A)and offers to give money or property in return for marrying his son, daughter or relative; anyone who publishes these advertisements shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to five years, or with fine which may extend to fifteen thousand rupees:
Any Agreement for giving or taking of dowry shall be void (Section 5).
If dowry has been exchanged at a wedding anyway, it imposes a duty on the person who is given dowry to give it to the bride within three months if before or after or when the woman was a minor (Section 6). Anyone who does not hand over the dowry to the bride within the specified time shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to 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.
Where such woman dies within seven years of her marriage, otherwise than due to natural causes, such property shall,(a) if she has no children, be transferred to her parents; or (b) if she has children, be transferred to such children and pending such transfer, be held in trust for such children.
Cognisance of offences (Section 7)
The trial of a crime under this law can only happen in the court of: Metropolitan Magistrate (urban areas with a large population usually have such courts);Judicial Magistrate (First Class)
• any higher court (e.g. Sessions Court)
The judicial process in a court starts when it comes to know that a crime under this law has been committed from:
• judge's knowledge;
• police have filed a charge-sheet (or a police report);
• private complaint from a victim or relative of victim; or
• complaint by a government recognized welfare organization.
Notwithstanding anything contained in any law for the time being in force a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act (inserted by Act 43 of 1986).
Crimes under this law are treated as (a) 'cognizable' (except for the purpose of arrest). The law on criminal procedure treats more serious crimes as 'cognizable' - the police can start investigation into such a crime without the permission of a Magistrate; (b) Non-bailable: a person arrested under this law cannot get bail as a matter of right. He or she will have to make an application to the Court - the Court has the power to decide if you can be granted bail after your arrest; and (c) Non-compoundable: Certain less serious crimes can be settled by the victim and the accused. However, crimes under this law cannot be settled in this manner.
Burden of proof (Section 8A): Where any person is prosecuted for taking or abetting the taking of any dowry , or the demanding of dowry, the burden of proving that he had not committed an offence under these sections shall be on him.
Dowry Prohibition Officers (Section 8B)
The Act talks about the appointment of as many Dowry Prohibition Officers as the state government thinks fit and specifies the areas in respect of which they shall exercise their jurisdiction and powers. Every Dowry Prohibition Officer shall see (a) that the provisions of this Act are complied with; (b) to prevent, as far as possible, the taking or abetting the taking of, or the demanding of, dowry; (c) to collect such evidence as may be necessary for the prosecution of persons committing offences under the Act; and (d) to perform such additional functions as may be assigned to him by the State Government.
The State Government may, by notification in the Official Gazette, confer such powers of a police officer as may be specified in the notification on the Dowry Prohibition Officer who shall exercise such powers subject to such limitations and conditions as may be specified by rules made under this Act. For the purpose of advising and assisting Dowry Prohibition Officers in the efficient performance of their functions, the state government can appoint an Advisory Board consisting of not more than five social welfare workers (out of whom at least two shall be women) from the area in respect of which such Dowry Prohibition Officer exercises jurisdiction.
Power to make rules (Section 9)
This section talks about the power of the Central Government to make rules in relation to:
• The form and manner in which and by whom the list of presents is to be maintained under this law.
• Administration of this law.
The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act primarily with relation to functions of the Dowry Prohibition Officers and the limitations on those functions.
III.Implementation of the Act
Social acceptance of dowry is conspicuously on the rise. Despite attempts to tighten the law by inserting/substituting certain sections/subsections, in particular the 1984 and 1986 amendments, dowry continues to grow unabated. As noted earlier, the number of cases registered under the Act in the state is relatively low, even when there are relatively more deaths reported on account of dowry. One major reason for the failure of the Act in curbing the menace is that giver is expected to give complaint.
The National Commission for Women (NCW) had suggested amendments which included amendment to definition of dowry, provision for separate penalties for giving and taking dowry and penalties for non-maintenance of the list of gifts received at the time of marriage, insertion of a new clause providing an opportunity to the woman to file a case at the place where offence is committed or where she permanently/temporarily resides, protection officers under PWDV Act to carry out the duties of the Dowry Prohibition Officers (Press Information Bureau, 23rd July 2015).
Government of Kerala notified Kerala Dowry Prohibition Rules 2004, superseding the 1992 Rules and had appointed three Regional Dowry Prohibition Officers (RDPOs); Trivandrum zone, Ernakulam zone and Kozhikode zone. The DPOs are given a number of additional duties, inter alia (a) act as member secretary/convener of the Advisory Board; (b) create awareness of the extremely discriminatory nature of this practice among the public by organising camps, panchayat samitis, through media and involve local people for prevention of dowry, maintain a register to record all complaints and separate files for each individual case. Most importantly the Rules specify that the DPO’s approach should be primarily preventive and remedial and prosecution will be recommended and resorted to if other measures are found ineffective or when parties fail to comply with the orders within the stipulated time; no additional infrastructural support has been given to them. However the above posts are not in effect now subsequent to the bifurcation of Social Justice Department, into Social Justice and Women and Child Development and the Government is now in the process of putting appropriate officers in place, most likely the District Women Protection officers.
The 2004 Rules necessitate that every government servant shall after his marriage furnish a declaration to the Head of Department after it has been duly signed by the wife, father and father- in-law, stating that he has not taken any dowry. While efforts of the Government are to curb the menace of dowry, some actions of the State seem to passively accept the practice, if not encourage it. For instance, the practice of accepting that ‘gifts’ may be given during marriage, but not as dowry is an acceptance of the practice, though under another name. Similarly maintenance of list of gifts though is in accordance with the Rules, again stands as a testimony to the practice of dowry rather than for curbing it. So is the mandatory presentation of affidavit by government employees during marriage. It is felt that such lists and affidavits may become disadvantageous to the woman as they can be taken as proof for not exchanging dowry while in reality it may be far from the truth.
But it is also a reality that without having enough and effective legal provisions for ensuring equal property rights for women in a male dominated society like ours, saying no to these ‘gifts’ may ultimately become a disservice to the women. Male preference is so strong even amongst the highly educated parents that they prefer to invest in good education to boys than to girls and prefer the boys to take possession of the familial property with the belief that it is the men who need to take care of parents during their old days. In such a scenario , saying ‘no’ to ‘gifts’ may ultimately become detrimental to the women as they would ultimately be left with no good education as well as no share from the wealth of their parents.
While the Dowry Prohibition Act is a Central legislation, it may be feasible to bring in appropriate State amendments by our state legislature as are done in Bihar and Himachal Pradesh. Keeping the issues that emerged in the review of the Act and its implementation, the following recommendations are made for improving implementation of the Act:
• A major problem in the proper implementation of the Act is the provision of punishing the giver under Sec.3 of the Act . The amended provision of Sec.7 that a statement made by the person aggrieved by the offence shall not be subject to prosecution under this Act should be given wide publicity so that more people could come out with complaints of having given dowry. Usually the giver of the dowry does so under pressure from the other side as well as under the pressures of social norms; an empathetic approach needs to be taken towards the giver. The giver should be treated as a victim rather than a perpetrator, and the punishment for the giver should be removed or at least reduced. • Section 6 of the Act which states that where the dowry is received by any person other than the woman getting married, should be transferred to her within 3 months, depending on whether it was given before, at or after time of marriage, failing which the receiver shall be punished, should certainly be a matter of enquiry by the prohibition officers. • The Dowry Prohibition Officers should be provided necessary facilities and required office staff, considering the scope of activities that can be organised and the coverage of areas with respect to activities and jurisdiction. • The Advisory Board as mandated by the Act shall be set up so that proper direction can be given to the anti-dowry movement and activities to be undertaken at various levels; state, region, district and local level. • Welfare institutions have not provided any assistance to complainants. Resources in these institutions such as Counsellors shall be used to help by way of counselling services to the complainants.
• Similar to what is followed as a means to prohibit smoking and drinking, whenever the element of dowry and related issues is projected in films or TV programmes a subtitle showing ‘giving and taking dowry is punishable’ may be inserted as a caution to public.
• Incentives in cash or by way of good marks in service record may also be given to those who are very much involved in awareness creation programmes undertaken by Government.
• It is necessary to re-examine the provision that every Government servant shall after his marriage furnish a declaration stating that he has not taken any dowry to the Head of Department after it has been duly signed by the wife, father and father- in – law.
• Awareness programmes about the ills of the system, and the Act as well as gender sensitisation needs to be consistently and continuously undertaken since dowry is a deeply entrenched social evil, the eradication of which is a very difficult task.. Grass-root level programmes such as at the school level need to be organised with the involvement of community organisations. Initiatives of some local governments (such as Panancheri and Nilambur panchayats) to reduce the menace may be documented and replicated, if found effective.
The Act in its current form has not been very beneficial to women as its provisions seem to accept the practice and suggest measures to manage the practice of dowry exchange, for e.g. the provision of maintaining a list of gifts. If the system of maintaining the list of gifts is to be followed, scope for integrating it in the marriage registration system may be looked into.
It cannot be denied that the Act will work only with a change in the entrenched gender norms and practices which appear to justify this custom of giving dowry, becoming increasingly competitive to contract marriages with desirable families and stigmatising girls who return to parental homes due to dowry harassment. Marriage should not mean the severing of a woman’s ties with her natal home/family to which they should have a permanent and uncontested right which should be understood by the parents. Women have to be economically strengthened and mind sets have to change. There have been attempts to prevent the giving and taking of dowry by tightening certain sections of the law as we saw above and we have suggested a few more but to address dowry seriously, social policy in Kerala must continue its fight for gender equality through varied measures in which men should offer all support by refusing to accept dowry and women refusing to marry men who demand dowry.
[Acknowledgement: This Note is largely based on a review of the Dowry Prohibition Act 1961, done for the IVth Administrative Reforms Commission and published in their Third Report titled, Welfare to Rights, Oct 2018]