Countering The Dowry Menace

[Nishank]

Countering The Dowry Menace

by Justice Pritam Pal

October 23, 2005

THE TRIBUNE

(Source: http://www.tribuneindia.com/2005/20051023/edit.htm#1 )

The practice of giving dakshina during marriage had its origin in the sublime sentiments of parents and relatives of a bride. Today, as dowry, it has gained the characteristics of a market transaction and women are killed, burned, commit suicide or get thrown out of their house. It is a unique form of violence experienced by women in India. Dowry is a social scourge and public opinion has to be mobilized against this cancerous evil. It cannot be contained by only legal and police action.

The memorable words of Mahatma Gandhi — "acceptance of dowry is a disgrace for the young man who accepts it as well as perhaps a dishonour for the woman folk" — should ring in the ears of every unmarried young man or woman. Unfortunately, even with the passage of time and spread of education, the cancer is showing no signs of abatement.

With 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. Cases have come to public notice where brides, on account of their failure to bring the promised or expected dowry have been beaten up, kept without food for days together, locked up in dingy rooms, tortured physically and mentally, strangulated or burnt alive or led to commit suicide.

In places where traditionally there is an absence of caste or dowry based marriage system (such as the tribal communities of the far-east Indian states or predominantly caste-free Muslim, Christian, or Buddhist majority areas), dowry deaths are still not rampant. Elsewhere, dowry-related violence on women is out-of-control due to the following reasons:

1) Retention of the caste system, 2) undermining of the woman by the religious orthodox and social patriarch making herself and her family vulnerable to socio-economic pressures and extortion, 3) ever-increasing greed of the bridegroom and his family, 4) an economically strangled hyper-populated society non-supportive of unmarried women, and 5) a morally depraved political system run by pro-status quo conservatives.

With a view to eradicating 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, Parsis & Jews. But the act did not prove effective, and the evil of dowry continued to reign supreme.

With a view to give teeth to the law, many amendments were made to the existing law. The legislature intent is clear: to curb the menace of dowry with a firm hand. It must be remembered that since these crimes are generally committed in the privacy of residential homes and in secrecy, independent or direct evidence is not easy to get. The members of the husband’s family are not likely to depose against him. There is no body at the moment to record the woman’s declaration.

When this is taken in the light of the principle of criminal courts that every accused is presumed to be honest until his guilt is established beyond a reasonable doubt, it becomes very difficult for the courts to convict the accused. The whole burden of proof is upon the prosecution side. A little lacuna here or there and the accused family get the benefit of doubt. Circumstances loudly demand that there should be some burden of proof on the family in whose home a young married woman is lost by burning or otherwise. Some burden will naturally fall upon them to make their position clear if an adverse presumption is drawn against them.

That is why the legislature has, by introducing Sections 113-A & Section 113-B in the Evidence Act, tried to strengthen the prosecution hands by permitting a presumption to be raised when certain foundational facts are established and the unfortunate event has taken place within seven years of the marriage. The period of seven years is considered to be the turbulent one after which the legislature assumes that the couple would have settled down in life. If a married woman is subjected to cruelty or harassment by her husband or his family members, Section 498-A of Indian Penal Code would be attracted.

If such cruelty or harassment was inflicted by the husband or his relative in connection with any demand for dowry immediately preceding death by burns and bodily injury or in abnormal circumstances within seven years of marriage, such husband or relative is deemed to have caused her death and is liable to be punished under Section 304-B IPC. When the question at issue is whether a person is guilty of causing a dowry death, if the woman was subjected by such person to cruelty or harassment in connection with any demand for dowry, Section 113-B Evidence Act provides that the court shall presume that such person had caused the dowry death.

The new section creates a presumption against the husband and his family. The presumption is that even if it was a case of suicide, the family must have abetted it by practicing cruelty upon her. The effect of the new provision is that if some proof is available of the fact that a married woman was subjected to cruelty of her husband or his family members and she has committed suicide within seven years of her marriage the court may presume that the suicide had been abetted by her husband or his family members. This may be called presumption of abetment. The presumption will be raised by the court only after taking into account all the other circumstances of the case.

Dowry death is defined in Section 304-B of IPC. It covers a kind of death which is not natural, occurring within seven years of marriage and is preceded by cruelty or harassment in connection with dowry. Section 304-B is a special provision which is inserted by the amendment in 1986 to deal the dowry deaths. It is a substantive provision creating a new offence and not merely a provision effecting a change in procedure for trial of a pre-existing substantive offence.

Awakening of the collective consciousness is the need of a day. For this, a wider social movement is necessary. The role of the courts, under the circumstances, assumes a great importance. The courts are expected to deal with such cases in a realistic manner so as to further the object of the legislation.

One of the cardinal rules of interpretation in such case is that a penal statute must be strictly construed. The courts have, thus, to be watchful to see that emotions or sentiments are not allowed to influence their judgement, one way or the other, and that they do not ignore the golden thread passing through criminal jurisprudence that an accusation must be established beyond a reasonable doubt. They must carefully assess the evidence and not allow either suspicion or surmise or conjectures to take the place of proof in their zeal to stamp out the evil from the society while at the same time not adopting the easy course of letting technicalities or minor discrepancies in the evidence result in acquittal of an accused. They must critically analyse the evidence and decide the case in a realistic manner.

Justice Pritam Pal is a judge of the Punjab and Haryana High Court.

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Regards,
Nishank
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