Buzz 46: Lawyer Shruti Swaika Shares 5 Legal Facts On Dowry Indian Women Should Know About

In India, 21 women die every day due to dowry-related violence. The recent cases of dowry harassment, especially, are examples of how the cultural practice of dowry perpetuates the oppression, torture, and murder of countless women. On February 25, Ayesha Banu, 24, a resident of Ahmedabad, recorded a video message before she jumped into the Sabarmati River and ended her life. Ayesha said she was facing harassment for dowry from her husband. A week before, Rashika Jain, 25, fell to her death at her in-laws’ place in a posh locality in Kolkata. Her family alleged that she was tortured by her husband and others and that they had given Rs 7 crore as dowry.

So does that mean the evil of dowry is unending? Certainly not, lawyers, activists and several organizations are helping women fight such harassment. One organization that’s standing strong with the victims of dowry harassment is Fox & Mandal, appearing for the family of Rashika Jain.

TC46 connected with Shruti Swaika, a lawyer by profession and Principal Associate at Fox & Mandal, to gain insights into creating awareness about women’s legal rights on dowry. Here, she explains the laws that protect against dowry and 5 legal rights every woman should know about.

1. The Dowry Prohibition Act defines dowry in our Constitution

The Dowry Prohibition Act, 1961, in Section 2, defines it as follows:

“2. Definition of “dowry” – In this Act, “dowry” means any property or valuable security 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 the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation I. – [deleted]

Explanation II.—The expression “valuable security” has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860).”

There are also some state amendments to this, e.g. In Haryana, they have changed this definition

2. Case laws help build and uphold the fight against dowry

Some case laws:

• A mere allegation of giving cash to a bridegroom in absence of clear evidence of the source from which the cash allegedly paid was brought and as the evidence is discrepant as to the exact amount of money allegedly paid does not prove acceptance of a dowry, Nilakantha Pati v. State of Orissa, 1995 Cri LJ 2472.
• A demand made after the solemnisation of marriage would constitute dowry, State of H.P. v. Nikku Ram, (1995) 6 SCC 219: 1995 SCC (Cri) 1090, overruling Inder Sain v. State, 1981 Cri LJ 1116 : (1981) 20 DLT 309 (Del).
• In view of the definition of “Dowry” under Section 2 of the Dowry Prohibition Act, the mere demand thereof would not be an offence under Section 4 of that Act. It should either be given or agreed to be given at or before or after the marriage in connection with the marriage. Although in common parlance one very often uses the term “dowry demand” in the cases where the husband or his relations demand valuable security from the parents and other relations of the wife after the marriage, yet this will not amount to demand dowry under the Act in view of the definition of dowry contained in Section 2 of the Act. Demand for dowry under the Act and in the legal sense will mean the demand for dowry only when it refers to the property of valuable security given or agreed to be given at or before or after the marriage. The alleged offence as made out in the complaint petition may attract the penal provision as contained in Section 498-A of the Penal Code. The Parliament in its wisdom appended the explanation as to what “cruelty” means and has constructed sub-clause (b) of Section 498-A in the following words, “harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is an account of failure by her or any person related to her to meet such demand.” If the cases of this nature are to be brought within the ambit of Section 4 of the Act, then the word “dowry” under Section 2 of the Act shall have to be redefined in the light of sub-clause (b) under Section 498-A of the Penal Code. The term “extortion demand” popularised by the media may also find a place in the definition of dowry, Sankar Prosad Shaw v. State, 1991 Cri LJ 639 (Cal).
• A demand made subsequent to marriage is also covered under “Dowry”, Vidhya Devi v. the State of Haryana, (2004) 9 SCC 476: 2004 SCC (Cri) 1473.
• Any property given by the parents of the bride in connection with the marriage constitutes dowry. It is not necessary that the property should be given in consideration of the marriage, Rajeev v. Ram Kishan Jaiswal, (1993) 1 Crimes 504 (All).
• There are three occasions related to dowry i.e. one before the marriage, second at the time of marriage and third at “any time” after the marriage. Third-occasion may appear to be an unending period, but the crucial words are “in connection with the marriage of the said parties” but payments which are customary payments for e.g. given at the time of the birth of a child or other ceremonies as are prevalent in different societies, are not covered by “dowry”, Kamesh Panjiyar v. the State of Bihar, (2005) 2 SCC 388: 2005 SCC (Cri) 511.
• Dowry as a quid pro quo for marriage is prohibited and not the giving of traditional presents to the bride or the bridegroom by friends and relatives. Thus, voluntary presents given at or before or after the marriage to the bride or the bridegroom, as the case may be, of a traditional nature, which are given not as a consideration for marriage but out of love, affection or regard, would not fall within the mischief of the expression “dowry” made punishable under the Dowry Prohibition Act, Reema Aggarwal v. Anupam, (2004) 3 SCC 199: 2004 SCC (Cri) 699.
• The argument that there has to be an agreement at the time of the marriage in view of the words “agreed to be given” occurring in Section 2 of the Dowry Prohibition Act, and in the absence of any such evidence it would not constitute a dowry is not tenable since the definition of dowry in Section 2 of the Act by amendment includes not only the period before and at the marriage but also the period subsequent to the marriage, State of A.P. v. Raj Gopal Asawa, (2004) 4 SCC 470: 2004 SCC (Cri) 1306.
• All the expressions used under Section 2 of the Dowry Prohibition Act, 1961 are of a very wide magnitude. The expression “in connection with the marriage” cannot be given a restricted or a narrower meaning. Even in common parlance and on its plain language, it has to be understood generally. The object being that everything, which is offending at any time i.e. at, before or after the marriage, would be covered under this definition, but the demand of dowry has to be “in connection with the marriage”. “In connection with the marriage” is an expression which has to be given a wider connotation. However, the demand of dowry should not be so customary that it would not attract, on the face of it, the provisions of this section. The customary payments given at the time of the birth of a child or other ceremonies as are prevalent in the society or families to the marriage, would not be covered under the expression “dowry”. But where the husband had demanded a specific sum from his father-in-law and upon not being given, harassed and tortured the wife and after some days she died, such cases would clearly fall within the definition of “dowry” under the Act, Ashok Kumar v. the State of Haryana, (2010) 12 SCC 350.
• If demand for property or valuable security, directly or indirectly, has a nexus with marriage, such demand would constitute “demand for dowry”. The cause or reason for such demand is immaterial, Bachni Devi v. the State of Haryana, (2011) 4 SCC 427 : (2011) 2 SCC (Cri) 280.
• Interpretation —Definition of “dowry” covers all demands made at the time, before or even after marriage, provided the same were in connection with the marriage. Expression “in connection with the marriage” should be given a wide meaning and understood generally. Customary payments such as those made at the time of the birth of a child or other ceremonies do not fall within the ambit of dowry, Ashok Kumar v. the State of Haryana, (2010) 12 SCC 350.
• The definition of the term “dowry” under Section 2 of the Act shows that any property or valuable security given or “agreed to be given” either directly or indirectly by one party to the marriage to the other party to the marriage “at or before or after the marriage” as a “consideration for the marriage of the said parties” would become “dowry” punishable under the Act. Property or valuable security so as to constitute “dowry” within the meaning of the Dowry Prohibition Act must be given or demanded “as consideration for the marriage”, Reema Aggarwal v. Anupam, (2004) 3 SCC 199: 2004 SCC (Cri) 699.
• The definition of “dowry” contained in Section 2 of the 1961 Act, shows that the term is defined comprehensively to include properties of all sorts, as it takes within its fold “any property or valuable security” given or agreed to be given in connection with marriage, either directly or indirectly, Bachni Devi v. the State of Haryana, (2011) 4 SCC 427.
• The word “agreement” referred to in Section 2 of the Dowry Prohibition Act, 1961, has to be inferred on the facts and circumstances of each case. The interpretation that conviction can only be if there is an agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act. “Dowry” definition is to be interpreted with the other provisions of the Act including Section 3, which refers to giving or taking dowry and Section 4 which deals with penalty for demanding dowry, under the 1961 Act and the Indian Penal Code. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable, Pawan Kumar v. the State of Haryana, (1998) 3 SCC 309: 1998 SCC (L&S) 740.
• Court’s approach should be realistic in dealing with a case under the Act. Provisions of the Act should be interpreted in the light of the object of the Act so as to further that object but it being a penal statute court should be cautious and careful so that suspicion, conjectures and surmise may not influence its judgment. At the same time, it cannot acquit an accused merely on the basis of technicalities and minor discrepancies, S. Gopal Reddy v. the State of A.P., (1996) 4 SCC 596: 1996 SCC (Cri) 792.
• “Dowry” — Meaning of —Following Rajinder Singh, (2015) 6 SCC 477, any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the 1961 Act, at or before or at any time after the marriage which is reasonably connected to the death of a married woman, would necessarily be in connection with or in relation to the marriage unless the facts of a given case clearly and unequivocally point otherwise, M. Narayan v. the State of Karnataka, (2015) 6 SCC 465 : (2015) 3 SCC (Cri) 214.
• Emphasis under Section 2 is on the property or valuable security given “at or before” or “at any time after” marriage, in connection with marriage. Amount or things demanded must, therefore, have a nexus with marriage. Words “insufficient and inferior quality of dowry” are important. They indicate that the transaction of giving dowry was not complete, Surinder Singh v. the State of Haryana, (2014) 4 SCC 129 : (2014) 4 SCC (Cri) 769.
• Definition of “dowry”.—The expression “in connection with” would in the context of the social evil sought to be tackled by the Dowry Prohibition Act mean “in relation with” or “relating to”. Thus, any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Dowry Prohibition Act, at or before or at any time after the marriage which is reasonably connected to the death of a married woman, would necessarily be in connection with or in relation to the marriage unless the facts of a given case clearly and unequivocally point otherwise. Such giving or agreeing to give of any property or valuable security can be at any time. It can be at, before, or at any time after the marriage. Thus, it can be many years after the marriage is solemnised, Rajinder Singh v. the State of Punjab, (2015) 6 SCC 477 : (2015) 3 SCC (Cri) 225.
• “Any property or valuable security”.—The word “any” is a word of width and would, therefore, include within it property and valuable security of any kind whatsoever, Rajinder Singh v. the State of Punjab, (2015) 6 SCC 477 : (2015) 3 SCC (Cri) 225.
• Dowry death — Ingredients.—Connotation and essential elements of “soon before her death”, explained. It is not synonymous with “immediately before”. Days or months are not what is to be seen. Time-lags may differ from case to case. Dowry demand should not be stale but should be a continuing cause of death. Section 304-B must be construed fairly, pragmatically and with common sense so as to fulfil the object of remedying the great social evil it seeks to achieve, Rajinder Singh v. the State of Punjab, (2015) 6 SCC 477: (2015) 3 SCC (Cri) 225.

3. Basic laws state that dowry is illegal

There is the Dowry Prohibition Act for this. 

In addition, there is the Indian Penal Code. Section 304-B, which was inserted in 1986, provides as follows:

304-B. Dowry Death

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

Explanation — For the purpose of this sub-section, “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits 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.

4. Dowry is the worst foundation for any marriage

Legally they can report the family, but practically speaking this is hardly a solution. Marriage is as intimate a relationship as it gets. It simply cannot start on such grounds. DO NOT get married to someone you need to file a criminal case against. It does not get more basic than that. One way to offer help is to be supportive of women who choose to not get married when faced with the demands of dowry. Of course, this is a deep-rooted problem and will require time to overcome.

5. Certain Lifestyle Factors Impact A Victim’s Mindset In The Fight Against Dowry

1. Be financially independent, you can stand up to most things if you are.
2. Self-care, emotional and spiritual, for you will need this to stand up to society.
3. Have a strong support group. Support groups do not mean it has to be a support group of women only, both men and women can be a part of your support group. This is important when you take a stand for yourself. Having family that understands is of course a big bonus.