www.whiteblacklegal.co.in ISSN: 2581-8503

VOLUME 1: ISSUE 7 || December 2019 ||

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WHITE BLACK LEGAL: THE LAW JOURAL

4 www.whiteblacklegal.co.in ISSN: 2581-8503 Death: A Bane Of Society By: KESHAV SETHI Abstract Dowry death1 is a plague that has been affecting the very roots of Indian culture towards the process of modernization, which has in result stunted the growth of Indian minds towards modernization. is one of the most hideous and burning issue in India. There are laws, which have been incorporated by the legal system of the country to provide safeguard against such gruesome offenses. Our government has launched several of campaigns and awareness programs against the practice of dowry and providing knowledge about the impact of it upon our society. However, in spite of such initiatives the statics on dowry death related have only increased in India. There are still certain areas where there is a lack of growth and prevalence of dowry practice among those societies.

There is Dowry Prohibition Act 19612 which is enacted and in addition with Section 304- B(dowry death) and Section 498-A ( cruelty by husband or his relatives) have been integrated into the 3read with Section 113-B( presumption as to dowry death) have been made part of the Indian Evidence4 Act in order to eradicate or atleast lower down this gruesome act of dowry system. This research paper has made an effort to understand as to why deaths related to dowry system still happening and understanding the mindset of a society, which is still letting such practice to have an existence in such modernize world.

Keywords:- Dowry Death : Dowry Prohibition Act 1961 : Government: Section 113-B of I.E.A5: Section 304-B IPC6: 498-A of IPC7.

1https://www.advocatekhoj.com/library/bareacts/indianpenalcode/304b.php?Title=Indian%20Penal%20Code,%201860&STitle=Dowry%20 death 2https://wcd.nic.in/act/dowry-prohibition-act-1961 3https://indiacode.nic.in/bitstream/123456789/4219/1/THE-INDIAN-PENAL-CODE- 1860.pdfhttps://indiacode.nic.in/bitstream/123456789/4219/1/THE-INDIAN-PENAL-CODE-1860.pdf 4https://indiankanoon.org/doc/1953529/ 5https://indiankanoon.org/doc/1906/ 6https://indiankanoon.org/doc/653797/ 7https://indiankanoon.org/doc/538436/

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INTRODUCTION in India is steeped in tradition and deep-rooted cultural belief. Practices that are commonly referred as customs have been passed down and practiced along with changing times. There is one such customs that stubbornly resisted change: Dowry system8.

Dowry system has its roots rooted deeply in the history of India but it was not always like this from the beginning. The hazard of dowry system has become a serious and unethical social stigma of Modern India even though the society and the population claim themselves as "literate" and "educated". This practice is not only having an impact on the life of a but also on her family. We live in the world where the difference among the gender no longer exists but why that is especially in India there are still certain part of the society where the birth of a girl child is still consider sad news. With growth in economical condition of India which has further more caused serious financial and emotional stress to the 's parents and family has resulted in emotional trauma on the life of women. We have laws which are trying to protect the status and empowerment of women but our society is not letting such gruesome practice to stop existing in such modernize world. India is not stunted by the growth of business sector or economical sector but due to the very people living in it.

It is high time that we stop accepting the title of third world nation because of such practices like dowry system and give women the status and respect they deserve.

Growth of

The dowry system in India is linked with the marriage establishment. However, unlike the recent times dowry was a voluntary gift in the ancient time to the daughter, which in present scenario has become a conditional dowry "dahej". Our history consist of stories where the men and gods lived together in harmony, we have ancient sculptures which talks about women with such high respect. In our history we have all been told the story of "swayamvar" as a Hindu marriage practice where the bride gets to decide who to marry. In those times, the groom would have to show his potential of marrying the bride. We have various of example from our history such as in Ramayana, Rama had to lift the Shiva's bow to prove that he was eligible to marry Sita.

So if this was the importance given to women in our tradition, then when and where did this contradiction of the menace of dowry enter our society? There are no proof of existence of

8 https://en.wikipedia.org/wiki/Dowry_system_in_India

6 www.whiteblacklegal.co.in ISSN: 2581-8503 such evil practices in our literature of ancient times. The answer to this question may be in a well researched book by Veena Talwar Oldenburg : Dowry : The imperial origin of a cultural Crime9. The author follows a paper trail left by British bureaucrats during the British colonial rule in India. This does not mean that dowry system was not prevalent in Pre- colonial period.

Pre-Colonial Period

With the changing of times, the practice of dowry retained its existence but meaning of it is changed. Yes, the system of dowry existed even before the British Rule but the true meaning of giving dowry was very different at that time. In our old Hindu laws, importance was given to the birth of Son and it was believed that it was a way for the parents to attain heaven (Swarg). The property laws of that duration excluded women from being a part in the property owned by her father as all was entitled to Son by law. In Pre-colonial period, there was another practice which played a very prominent role in the effecting the status of women which was Pratha10 in which the women were not allowed to remarry once her husband dies and would have burn herself to death on her husband's pyre. During that period, the dowry was an institution, which was managed by women, for women, to enable them to establish their status and have recourse in emergency. Here what is to be stressed upon is that the valuables or wealth what was given under dowry was given to the bride, not to the groom or his family so in order words the valuable or wealth was for the betterment of the bride and the groom or his family had no control over that therefore it was known as "istri dhan". The reason behind it was to give financial independence to women.

Post-colonial period

After the colonial rule we witness that the society have taken certain steps for the empowerment of women such as abolishment of Sati Pratha, widow remarriage11, education of women, ban on female infanticide12, abolishment of Devdasi System13 , out of the mentioned reforms for women one still retained its existence which was the practice of dowry. Our glorified history have given the literal reasoning as to why dowry was practiced

9 Dowry Murder-The Imperial Origins of a Cultural byVeena Talwar Oldenburg

10 https://en.wikipedia.org/wiki/Sati_(practice) 11 https://en.wikipedia.org/wiki/Hindu_Widows%27_Remarriage_Act,_1856 12 https://en.wikipedia.org/wiki/Female_infanticide_in_India 13 https://en.wikipedia.org/wiki/Devadasi

7 www.whiteblacklegal.co.in ISSN: 2581-8503 but the society with time have changed the true meaning of the practice. A practice which was for empowerment and betterment of the women is now being seen as the knot around her neck that straggle her to death. The valuables and wealth which was given in marriage was for the bride alone, groom or his family had no part in that but with change of time it resulted in the changing of customs where now the groom family would demand valuable and wealth for the marriage. It was seen that before the establishment of marriage groom's family would first inquire about the financial status of bride's family and not considering the fact whether bride was educated or not.

During the fight of independence , women and men both took part in raising the voice against the Colonial Rule and demanding a nation that truly belonged to people , a free India and in 1947 we attained our independence and on 26th of November 1950 our constitution14 came into force, it took 11 years for our newly formed country to see dowry as a crime against women and society and finally in 1961 The Dowry Prohibition Act was passed to safeguard the rights and integrality of women. The government has taken several steps and awareness towards the prohibition of the practice of dowry but statistics shows an increase in death especially related to dowry death.

Why this problem still exists in India?

We have seen that the status of women have gradual been on decline over the centuries and despite of our government's initiatives or awareness program there is still some lacking from which this evil practice is drawing its existence. Being a law student and part of the society I have noticed that it is the orthodox mindset of the people that have caused this practice to prevail over the years, that very mindset of the people is what resistance to the change and not the practice is. If the society wants this practice can stop to existence but there are certain prevalence of such orthodox mind because which a bride has to face such cruelty over dowry.

We have laws that protect a women and her family preventing from becoming a victim of this gruesome practice such as:-

• 304B. 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

14 https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf

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is shown that soon before her death she was subjected to cruelty or 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.

The essential ingredients of Section 304-B of IPC are:

1. The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances 2. Such death should have occurred within seven years of her marriage 3. She must have been subjected to cruelty or harassment by her husband or any relative of her husband 4. Such cruelty or harassment should be for or in connection with demand for dowry and 5. Such cruelty or harassment is shown to have been meted out to the woman soon before her death.

• 498A (IPC). Husband or relative of husband of a woman subjecting her to cruelty:— Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term, which may extend to three years and shall be liable to fine. Explanation.—For the purpose of this section, “cruelty” means— (a) Any willful conduct which is of such a nature as is likely to drive the woman to commit or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) 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 on account of failure by her or any person related to her to meet such demand.

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Ingredients of Section 498-A of IPC are as follows:- 1. The woman should be a married woman. 2. The married woman should be the subject of the cruelty of harassment. 3. The harassment should be done by husband or by husband's relatives. 4. There should be a guilty mind in play from husband or his relatives.

• Section 113B in The Indian Evidence Act, 1872:-Presumption as to dowry death.— When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation.—for the purposes of this section, “dowry death” shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860). Ingredients of Section 113-B are:- 1. The death of a woman occurred by burns or bodily injury or had occurred otherwise than normal circumstances; 2. Such death should have occurred within 7 years of marriage; 3. The deceased was subjected to cruelty or harassment by her husband or any relative of her husband; 4. Such cruelty or harassment should be for or in connection with the demand for dowry; 5. To such cruelty or harassment the deceased should have been subjected to soon before her death.

• THE DOWRY PROHIBITION ACT, 196115:- An act to prohibit the giving or taking of dowry. Under the Act `dowry’16 means any property or valuable security given or agreed to be given either directly or indirectly: o by one party to a marriage to the other party to the marriage; or o 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 in the case of persons to whom the Muslim Personal Law (Shariat) applies.

15 https://wcd.nic.in/act/dowry-prohibition-act-1961 16 https://wcd.nic.in/act/dowry-prohibition-act-1961

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Explanation II.-The expression `valuable security’ has the same meaning as in Sec. 30 of the Indian Penal Code (45 of 1860).

• Protection of women from act,200517 The Protection of Women from Domestic Violence Act 2005 is an Act of the Parliament of India enacted to protect women from domestic violence. It was brought into force by the Indian government from 26 October 2006. The Act provides for the first time in Indian law a definition of "domestic violence", with this definition being broad and including not only physical violence, but also other forms of violence such as emotional/verbal, sexual, and . It is a meant primarily for protection orders and not for meant to be enforced criminally. "Domestic violence"18 is defined by Section 3 of the Act as "any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it: 1. harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing , sexual abuse, verbal and emotional abuse and economic abuse; or 2. harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or 3. has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or 4. otherwise injures or causes harm, whether physical or mental, to the aggrieved person." The Act goes on, through the section Explanation 1, to define "physical abuse", "sexual abuse", "verbal and emotional abuse" and "economic abuse".

Despite of such laws, which have been precisely drafted in order to eradicate this problem, it still prevails. Our society and people claims themselves to be literate but it is us because of whom this evil prevails. The lack of moral education among families, the orthodox mindset that is resistant to accept the change is what causing the problem. No matter how many awareness programs or laws the government makes it still won't make difference until the mentality of the society change and ready to accept that prevalence of dowry system in India is an anchor that is preventing women achieve complete independence from the these social

17 https://en.wikipedia.org/wiki/Protection_of_Women_from_Domestic_Violence_Act,_2005 18 https://indiacode.nic.in/show-data?actid=AC_CEN_13_14_00008_200543_1517807325788§ionId=12898§ionno=2&orderno=2

11 www.whiteblacklegal.co.in ISSN: 2581-8503 evil. Society has to understand that these social evil should be put to an end and they should not have been existing on the first place. Moral education should not only be given to the youth alone but also to our elders of society so that their generation would realize that what went wrong and the coming generations would understand what have been going wrong.

We live in a country where when a girl child is born we believe that laxmi ( goddess of prosperity and good fortune) has blessed the family but when that very girl is ready to get married it is us only who ask for money or valuables in a holy and matrimonial bond which defines our basic mindset. It is so ironical that on one hand, we worship goddesses and on the other hand, they are being subjected to cruelty or even death because of dowry. It is because of such practices that female child ration is always less than male child ratio as no one would want to see their daughter to be a victim of the cruelty arising out of dowry system.

LANDMARK CASES: DOWRY DEATH, 304-B(IPC),113-B(INDIAN EVIDENCE ACT) AND 498-A (IPC)

1. STATE OF KARNATAKA VERSUS M.V. MANJUNATHEGOWDA & ANR. 2. THE STATE OF ANDHRA PRADESH VERSUS RAJ GOPAL ASAWA AND ANR. 3. DHAIN SINGH AND ANR. VERSUS STATE OF PUNJAB 4. DHARAM CHAND VERSUS STATE OF PUNJAB & ORS. 5. TARSEM SINGH VERSUS STATE OF PUNJAB 6. G.V. SIDDARAMESH VERSUS STATE OF KARNATAKA 7. DASRATH VERSUS STATE OF M.P. 8. SANJAY KUMAR JAIN VERSUS STATE OF 9. SHAM LAL VERSUS STATE OF HARYANA ETC. 10. KANS RAJ VERSUS STATE OF PUNJAB & ORS. 11. KUNHIABDULLA AND ANR. VERSUS STATE OF KERALA 12. KALIYAPERUMAL AND ANR. VERSUS STATE OF TAMIL NADU 13. KAILASH VERSUS STATE OF M.P. 14. SMT. SHANTI AND ANR. VERSUS STATE OF HARYANA 15. SMT. RAJESHWARI DEVI VERSUS THE STATE OF U.P. WITH ONKAR SINGH & ORS. VERSUS THE STATE OF U.P 16. SATPAL VERSUS STATE OF HARYANA 17. M. SRINIVASULU VERSUS STATE OF A.P 18. KISHAN SINGH & ANR VERSUS STATE OF PUNJAB 19. DINESH SETH VS. STATE OF N.C.T. OF DELHI 20. BALWANT SINGH AND ORS. VERSUS STATE OF H.P

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