Dowry

Introduction
The practice of giving a "dowry" or a gift to a woman at marriage is said to have
its origins in the system of "streedhan" (women's share of parental wealth given
to her at the time of her marriage).
As a woman had no right to inherit a share of the ancestral property streedhan
was seen as a way by which the family ensured that she had access to some of
its wealth. There is no clear proof as to when this practice was first started in
India.
What began as gifts of land to a woman as her inheritance in an essentially
agricultural economy today has degenerated in to gifts of gold, clothes, consumer
durables and large sums of cash, which has sometimes entailed the
impoverishment and heavy indebtedness of poor families. The dowry is often
used by the receiving families for business purposes, family member's education,
or the dowry to be given for the husband's sister. The transaction of dowry often
does not end with the actual wedding ceremony as the family is expected to
continue to give gifts.
In the course of time dowry has become a widespread evil and it has now
assumed menacing proportions. Surprisingly it has spread to other communities,
which were traditionally non-dowry taking communities. With the increasing
greed for the easy inflow of money on account of a bride the chilling stories of
bride burning started coming to light.
With a view to eradicate the rampant social evil of dowry from the Indian society,
Parliament in 1961 passed the Dowry Prohibition Act which applies not merely to
Hindus but all people, Muslims, Christians, Parsees and Jews. It extends to the
whole of India except the State of Jammu and Kashmir.
What constitutes dowry
Dowry is defined as any property or valuable security given or agreed to be given
either directly or indirectly:
By one party to a marriage to the other party to the marriage or;
By parents of either party to a marriage or;
By any other person to either party to the marriage.
BAN ON ADVERTISEMENT
Any advertisement in any newspaper, periodical, journal or through any other
media offering dowry as consideration for marriage is punishable with
imprisonment for a term not less than 6 months and it may extend upto 5 years
or with fine upto RS. 15,000 (Fifteen thousand).
DOWRY AGREEMENT-NOT VALID
An agreement for giving and taking of dowry shall be void
The dower or Mahr given during marriage under the Shariat (Muslim Personal)
Law.
Gifts that are given to the bride or the bridegroom at the time of the marriage
(without any demand being made) will not amount to dowry, if such presents are
entered in a list in the following manner:
The bride shall maintain the list of presents given to the bride
The bridegroom shall maintain the list of presents given to the bridegroom
The lists shall be prepared at the time of marriage and shall be in writing
The list shall contain a brief description of each present, approximate value, the
name of the person who presented it, relationship of the presenter to the bride or
the groom
The list shall be signed (or thumb impression) by both the bride and the groom
Where dowry already given- 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 in the name of the women
if it was received before marriage within three months after the date of marriage
if it was received at the time of marriage or after the marriage within three months
after the date of it's receipt
if the dowry was received when the woman was a minor within 3 months after
she has attained the age of 18 years.
Pending such transfer that person shall hold the dowry in trust for the benefit of
the woman. In the event of death of the woman dowry shall be transferred to her
children or her parents.
If any person fails to transfer any property within the time limit specified, he shall
be punishable with imprisonment for a term not less than 6 months, but which
may extend to 2 years or with fine which shall not be less than RS. 15,000
(Fifteen thousand) or with both.
Remedies
Giving, taking and demanding dowry is a criminal offence under the Dowry
Protection Act and the Indian Penal Code. Under the Dowry Prohibition Act only
Metropolitan Magistrate or the Magistrate of the first class is competent to try
these offences
A Complaint may be made in the following manner:
A complaint may be filed in the court of the Metropolitan Magistrate or the
Magistrate of the first class by the following
The person aggrieved of the offence
A parent or
Other relation of such person or
By a recognised welfare institute or organisation
A complaint may be filed by the above mentioned persons in the police station or
in the crime against women Cell who then make an investigation in the matter
and report the facts to court which then takes cognizance of the matter.
(Cognizance means notice or knowledge upon which a judge is bound to act)
The Metropolitan Magistrate or the Magistrate of the first class may take
cognizance himself if such facts come to his own knowledge.
A complaint may be filed under the Indian Penal Code for cruelty by husband or
relatives of husband.
The Code of Criminal Procedure shall apply to offences under the Dowry
Prevention Act as if they were cognizable offences (cognizable offence is one in
which a police officer may arrest without warrant)
for the purpose of investigation of such offences.
arrest of a person without a warrant or without order of a magistrate.
Every offence under this Act is a non bailable and non compoundable offence
(that which cannot be compromised or settled out of court, between the
complainant and the accused, at any stage of the trial)
BURDEN OF PROOF
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 has not committed an
offence shall be on him. (One of the principles of the Indian Criminal Law is that a
person is innocent until proven guilty and the onus of proving the guilt is on the
complainant/prosecutor. This onus has been shifted in certain specific offences
such as Dowry, Rape, etc.).
PENALTY FOR TAKING OR GIVING DOWRY
The giving, taking or even abetting to give or take dowry amounts to an offence
punishable with imprisonment for not less than 5 years and with fine which shall
not be less than RS. 15,000 (Fifteen thousand) or the amount of value of the
dowry, which ever is more.
PENALTY FOR DEMANDING DOWRY
If any person demands directly or indirectly, from the parents or other relatives of
a bride or bridegroom, as the case may be, any dowry, he shall be punishable
with an 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 RS. 10,000
(ten thousand)
LIMITATION
There is no period of Limitation for filing a complaint under the Dowry Protection
Act. For example: If a person was harassed for dowry in the year 1996 she can
file a complaint in the year 2001 or even later as for prosecution under the Act
bar of limitation has been removed.
DOWRY PROHIBITION OFFICERS
The Act also empowers the State Government to appoint Dowry prohibition
officers and they have the following powers and functions.
To ensure the compliance of the Act.
To prevent the taking or demanding of dowry.
To collect evidence necessary for the prosecution of persons committing offence
under the Act.
To perform additional functions as may be assigned to him by the State Govt.
Dowry death
The Indian Penal Code provides that where any women dies an unnatural death
within seven years of her marriage and it is shown that she was harassed or
subjected to cruelty by her husband or his relative for dowry, such death shall be
called a Dowry death. The husband or the relative shall be deemed to have
caused the death of the women. The offence is punishable with imprisonment of
not less than seven years (Section 304B Indian Penal Code).
Cruelty/Harassment Towards Women
Whoever, being a husband or relative of the husband subjects such women to
cruelty shall be punished with imprisonment for a term of three years.
Cruelty has been defined as:
Any conduct which is likely to drive the women to commit suicide or to cause
grave injury or danger to life, limb or health (Mental or physical) of the women, or
Harassment with a view to coercing her or any person related to her to meet any
lawful demand for property or valuable security or is on account of failure by her
or any person related to her to meet such demand. (Section 498A Indian Penal
Code)
Relevant Provisions of different Laws prevailing in India deal with
Child Marriage
The Prohibition of Child Marriage Act, 2006
Section 2 (a) child means a person who, if a male has not completed twenty one years
of age and a female, has not completed eighteen years of age.
Section 2(b) child marriage means a marriage to which either of the contracting parties
is a child.
Section 3. Sub Section(1). every child marriage, whether solemnized before or after the
commencement of this Act, shall be voidable at the option of the contracting party who
was a child at the time of the marriage.
Provided that a petition for annulling a child marriage by a decree of nullity may be filed
in the district court only by a contracting party to the marriage who was a child at the
time of marriage.
Section 9. whoever being a male adult above eighteen years of age, contracts a child
marriage shall be punishable with rigorous imprisonment which may extend to two years
or with fine which may extend to one lakh rupees or with both.
Section 10. whoever performs, conducts or directs or abets any child marriage shall be
punishable with rigorous imprisonment which may extend to two years and shall be liable
to fine which may extend to five lakh rupees unless he proves that he had reasons to
believe that the marriage was not a child marriage.
The Special Marriage Act, 1954
Section 4. Conditions relating to solemnization of special marriages-
Cl. (c) the male has completed the age of twenty-one years and the female the age of
eighteen years.
Section 24. Void marriages-
Sub Section (1). Any marriage solemnized under this Act shall be null and void and may
on a petition presented by either party thereto against the other party, be so declared by a
decree of nullity if-
Cl. (i) any of the conditions specified in clauses (a), (b), (c) and (d) of section 4 has not
been fulfilled.
The Hindu Marriage Act, 1955
Section 5(iii). the bridegroom has completed the age of twenty one years and the bride
the age of eighteen years at the time of marriage.
Section 18. Punishment for contravention of certain other conditions for Hindu marriage-
(a). in the case of a contravention of the condition specified in clause (iii) of Section 5,
with simple imprisonment which may extend to fifteen days or with fine which may
extend to one thousand rupees or with both.
Muslim Law
One of the important elements of Muslim marriage is Puberty. Puberty is a biological
phenomenon. It is generally presumed to have been attained at age 15. A person who has
attained puberty is called baligh(major). The possibility of attaining puberty at an earlier
age is not ruled out-in exceptional cases boys and girls have found to have attained
puberty even at age 12 and 9 respectively.(The Muslim Law of India, Tahir Mahmood,
3rd Edition, 2002, LexisNexis, Butterworths)
The Indian Christian Marriage Act, 1872
Section 60. Every marriage between Indian Christians applying for a certificate, shall,
without the preliminary notice required under Part III, be certified under this Part, if the
following conditions be fulfilled and not otherwise-
(1) The age of the man intending to be married shall not be under twenty one years, and
the age of the woman intending to be married shall not be under eighteen years.
The Parsi Marriage and Divorce Act, 1936
Section 3 Sub Section (1)No marriage shall be valid if-
Cl.(c) in the case of any Parsi has changed his or her religion or domicile or not who if a
male has not completed twenty one years of age and if a female has not completed
eighteen years of age.
Significance of the present law
The Act of 2006 would have far reaching ramifications. It being a secular Act, a piece of
uniform civil code would be applicable on all communities of India[3]. This Act
specifically declares that a child marriage is not void, it is only voidable. The object
behind the enactment of this law is to discourage marriages between under aged
persons[4]. Thus, if the parties to a child marriage do not get it annulled it shall remain to
be a valid marriage before the law. Other than this the legislation does not demarcate
between a child marriage and a normal marriage. This implies that the contracting parties
to a child marriage have the same rights duties and obligations as the bride and the groom
of an ordinary marriage. The provisions for custody and maintenance of the girl child has
been made i.e. even of such marriage was declared void, the girl had the right to
maintenance from the husband till the time she got remarried. Section 12 makes such
marriages null and void in case the child is enticed or taken away from the custody of
his/her lawful guardian or is by force compelled or by deceitful means induced to go
from any place or is sold for the purposes of marriage and made to go through a form of
marriage or if the minor is married after which the minor is sold or trafficked or used for
immoral purposes. Further, under the new Act the punishment for encouraging or
facilitating or solemnizing such marriages was increased. Nonetheless the policy of not
holding the women liable for solemnization of such marriages was continued even under
the new Act.
Attempt has been made through this new Act to prevent child marriages not to prohibit
them. Under the Special Marriage Act such marriages are void, this Act has enacted for
literate and advanced people who alone can normally perform civil marriages. On the
other hand, the Hindu Marriage Act has enacted for all Hindu people including illiterate,
socially-economically backward and tradition ridden people where child marriages are
performed for centuries. An attempt to prevent all such child marriages through this new
Act is appreciable.
The unbridled and unhindered mass child marriages performed throughout India, are a
clear warning that the existing law prohibiting child marriages has failed miserably. The
Law Commission took the notice of this failure of the present Act and making an
extensive review in child marriages and its implications upon other laws the Commission
by its 205th Report has suggested some proposal which can be incorporated in the present
law so that it can strictly enforce. The relevant proposal (inter alia) of the Commission
are like (i) Child marriage below the age of 16 be made void (i.e. legally unenforceable
under any circumstances), (ii) Marriages where either or both spouses are between 16 and
18 be made voidable (i.e. giving an option of either party to get them annulled),(iii) The
age of marriages for both boys and girls be made 18 years; (here the Commission says
there is no reason for keeping a difference in the two ages), (iv) The provision of
maintenance of the girl till her remarriage in either to be continued and all children
arising out of either of the marriages under to be deemed legitimate, (v) The legal age for
a girl to give sexual consent to be increased to 16 years;(vi) Registration of all marriages
to be made mandatory.[5]
Introduction
The literal meaning of the word domestic violence basically means any
violent or aggressive behaviour of any person within the home as the word
here is domestic or in other words a violent quarrel between a couple
which may force a female spouse to file for mental harassment basically
under domestic violence act and other provisions of Indian Penal Code
(IPC) and Criminal Procedure Code (CrPC). Basically from ages, domestic
violence has been committed against women but in todays scenario men
can also file for domestic violence which can come under the category of
domestic abuse, family violence basically arising in the relationships such
as marriage including relationships with family members, family friends etc.
and it can be in various forms such as physical aggressions, sexual abuse,
emotional abuses etc.
What constitutes domestic violence
Section 3 of the Domestic Violence Act, 2005 states that what constitutes
domestic violence according to which domestic violence shall include: -
(a) Threats to health, safety, life etc, whether mental or physical, including
physical abuse, sexual abuse, verbal and emotional abuse and economic
abuse; or
(b) Harassmentthrough any forms such as harms, injuries to the aggrieved
person by coercing her or any other person related to any unlawful demand
for dowry or other property or valuable security; or
(c) Otherwise injuring or causing harm, through physical or mental means
to the aggrieved person.
Against whom domestic violence can be filed
In the present day scenario, complaint can be filed against any adult male
member who is in a domestic relationship with the aggrieved person and
against whom the aggrieved person has sought any relief under this Act
including the other family members such as mother-in-law, father-in-law,
brother-in-law etc. or any relative of the husband or male partner. But in a
recent judgement of 2010 in the case of Kusum Lata Sharma vs State &
Anr, the Bombay High court held that a sister cannot file a complaint
against her brother's wife, or her own sister. A mother-in-law if subjected to
domestic violence by daughter-in-law cannot file a case against her
daughter-in-law however she can file a complaint case against her son
mentioning the name of the daughter-in-law as the agent of her son.

Punishment against Domestic Violence

There are various regulations or provisions being made for protection

of women against domestic violence under the statute such as
Sec.304B of IPC pertaining to dowry death.
Under section 313-316 of IPC female infanticide has been made
punishable which means forcefully terminating the pregnancy of a
women.
Other sections of IPC dealing with these issues are section 305-306
related to abetment of suicide and 340,349 of IPC respectively
wrongful confinement and wrongful restraint.
A complaint can also be filed under section 498A of IPC for cruelty
which also falls under domestic violence.

Is domestic violence gender neutral

Yes, domestic violence can be said to be gender neutral in India because
according to the research and studies it is clear that the number of men
and women who commit violence toward each other is equal with respect
to the analysis of these studies but apart from this it has also been found
out that women are more likely to report act of violence then men in India.
The reason for the violence both in men and women are different as men
turn into violent when they feel a sense of powerlessness such as when
they are not able to overcome what they want and women turn violent
when they are frustrated or do not get their spouses attention.Hence it can
be said that men and women are both the victims of domestic violence and
hence an inclusive approach must be taken to help families resolve conflict.