Indian Dowry Customs continue to Rule Society: A Critique with Landmark Cases

INTRODUCTION
“Among rude people, the women are generally degraded; among civilised people
they are exalted”

- James Mill

Of all the crimes committed within the ambit of marriage, Dowry remains one of the
most problematic and difficult to deal with. Its ambiguous origins, the procedural difficulties
in punishing the crime and separating it from a woman’s legitimate stridhan are just some
of the major difficulties faced by jurists.

On tracing the evolutionary track of this custom, one realises that there is actually very
little religious backing for the custom of dowry as we see it today. Instead, this evil has
resulted from man’s own avarice.1 In addition to this, there exist certain myths regarding
the dowry system. Some of these myths include criticisms of ancient Hindu texts and the
influence of Muslim rule in India.2

The researcher, during the course of this essay, shall look into the origins of this
social evil in order to try and prove that the custom that rules society has originated out of
selfish motives of parties involved, and how such practices have, over a period of time,
become the cause for dowry laws to fail.

The Dowry Prohibition Act, in both its original and amended form, has served no
constructive purpose due to inherent deficiencies such as the narrow view taken in
determining possible complainants.3 In addition to this, while there have been landmark
judgements that have served to forward the cause of Dowry prevention, there have also
been hindrances in the form of judgements setting bad law. The researcher shall discuss
these problems in the following chapters.

1
See Generally, S.V. Joga (ed.), Dowry and the Law, 4th edition, Lexis Nexis, New Delhi, 2002, pp. 2-5.
2
See generally, M Basu, Women and Law in India: Hindu Women and Marriage Law, Oxford University
Press, New Delhi, 2004, p. 2.
3
Ibid, p. 90.

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 Indian Dowry Customs continue to Rule Society: A Critique with Landmark Cases

It is time the legislators took note of loopholes that exist in present law regarding marriage
in India. After all, riddance from social evils against women, as stated by James Mill, is a
mark of civilised society; and dowry being one of India’s most prominent social evils
deserves due consideration. In order to do so, ground realities of such a practice must
ultimately be taken into consideration, something that hasn’t been done yet.

THE ORIGINS OF AN EVIL: A RELIGIOUS VIEWPOINT

Many authors claim that Dowry custom is nothing but a manifestation of Stridhan
and Kanyadaan that was demarcated in ancient Hindu Law. 4 However, the researcher
would like to concur with a view espoused by Paras Diwan and S.V. Joga. They, while
criticising the view that in order to complete the ritual of kanyadaan the father of the bride
was expected to gift something more than the bride, submit that the ritual closest to Dowry
4
Basu, op. cit., pp. 85-86.

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 Indian Dowry Customs continue to Rule Society: A Critique with Landmark Cases

in ancient Hindu texts is that of sulka.5 Sulka or ‘bride’s price’ was a system of marriage
practiced as an asura form of marriage, and disapproved of under Hindu custom. 6 In fact,
Manu in his Shastras went so far as to state:

“The father exploiting his power of disposal of his daughter or ward in marriage
for his own pecuniary benefit is in utter disregard of his parental duty of bestowing
her on a duly qualified person.”7

However, in doing so, Manu distinguishes between sulka and stridhan by stating
that “when Sulka given for the damsel is not taken by the kinsmen for their own use, there
is no sale. It is only honouring the bride and is totally free from sin. 8 Hence, it is wrong to
compare the noble cause of Stridhan to the corrupt one of Sulka.

According to the Hindu Dharmashastras, “marriage is a sacrament” between a man

and woman for the “performance of religious duties” 9 On taking this perspective, it
becomes abundantly clear that attaching a consideration to the sacred ritual of marriage
was not only alien to ancient Hindu Law, but was also a concept abhorred by jurists of the
time.10

Another important Hindu custom compared to Dowry is that of Varadakshina.11

However, this tradition was prevalent only among a small class of Brahmins and not with
Hindus in general. Also, the practice of varadakshina included the gifting of clothes and
ornaments by the bride’s parents as possessions of the bride. 12 An interesting paradox

5
P Diwan, Law Relating to Dowry, Dowry Deaths, Bride Burning, Rape and Related Offences,Universal Law
Publishing, New Delhi, 2002, p. 16; Joga, op. cit., p. 5.
6
Ibid.
7
Manu Chapter III, Verse 51, as cited in S.V. Joga (ed.), Dowry and the Law, 4th edition, Lexis Nexis, New
Delhi, 2002, p. 5.
8
Manu Chapter III, Verse 54, as cited in S.V. Joga (ed.), Dowry and the Law, 4th edition, Lexis Nexis, New
Delhi, 2002, p. 5.
9
Gopalkrishna v. Venkataverasa ILR 37 Mad 273; Debi Lal v. Nand Kishore ILR 1 Pat 266, as cited in S.V.
Joga (ed.), Dowry and the Law, 4th edition, Lexis Nexis, New Delhi, 2002, p. 2.
10
Including Manu, as shown in Diwan, op. cit., p. 16.
11
Diwan, op. cit., p. 14.
12
Ibid.

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 Indian Dowry Customs continue to Rule Society: A Critique with Landmark Cases

related to this is that the Parliamentary Joint Committee has taken a stand that wrongly
equates varadakshina with dowry.13

One of the major challenges that needs to be countered with regard to abolition of
Dowry in India is the definitional problem. A positive step in this field was taken by the
Supreme Court in the landmark case of Rashmi Kumar v. Mahesh Kumar Bhada 14 wherein
it was held that a bride’s stridhan is hers to keep and that she has absolute rights over
such property. Similarly, in Pritam Singh v. State of Delhi 15 it was clearly demarcated that
Section 6 of the Dowry Prohibition Act, 1961 is aimed at opposing dowry and not stridhan
given to the bride by her parents and in-laws.

Some authors who go to the extent of agreeing that Hindu scriptures never
prescribed Dowry in any form still hold another misconstrued idea that the situation of
women’s rights took a turn for the worse with the onset of muslim rule. 16 However, these
writers do not take into account the fact that it was Muslim rulers like Akbar who tried to
abolish vices like Sati that Hindus customarily practiced against their women. 17 The
researcher believes that instead of criticising religious texts or religion followed by
emperors, one must look at the fundamental avarice and hunger that governs human
thinking. Dowry is not so much a vice in scripture as it is a social vice.

From the fact that the Dharmashastras make ‘marriage’ a religious duty, it is obvious that
the ritual of marriage is accorded a lot of importance in Hinduism. This coupled with the
prevalent notion that girls should be married off at a tender age, has resulted in an anxiety
existing among girls’ parents and guardians.18 Such baseless beliefs in society perpetuate
inequitable practices like Dowry. Another important concept determining prevalence of
Dowry has been the sex-ratio in a region. It has been observed that in areas where sex-
ratio is tilted towards girls, dowry flows from the bride’s family and vice-versa. Hence, in
modern times, economic concepts like demand and supply have started determining how
13
Ibid.
14
1999 (2) RCR (Cr) 43 (SC), as cited in Diwan, op. cit. p. 15.
15
2000 (4) RCR (Cr) 566 (Del) as cited in Diwan, op. cit. p. 15.
16
G Mukherjee, Dowry Death in India, Indian Publishers Distributors, 1999, p. 256.
17
Ibid.
18
Joga, op. cit. p. 7.

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and between whom the sacred tie of marriage shall be performed. 19 Such a view has been
put into perspective crisply by S.V. Joga:

“The scrupules of parents and guardians of the parties to the marriage changed
their colour and man started conducting business even with his offspring.”

DOWRY IN MODERN TIMES: PRACTICES AND LAWS RELATING TO DOWRY

While there is no evidence of an accepted and sanctioned form of Dowry being
practiced in ancient times; in the modern day, following from the custom that it is the
parent’s dharma to give his daughter in marriage, the crippling ritual of the groom and
groomwalas extorting money in return for an assumed favour of taking the girl off her
father’s hands, has percolated into society.20

In 1961, the Dowry Prohibition Act came as a beacon light of hope to thousands of
oppressed families that dreamed of freedom from a vice that had crippled finances for
years on end. Yet, it is an unfortunate truth that success seen by this act has been limited,
even though judges have tried their best to use the limited resources available to them and
come up with viable interpretations to abolish the vice that dowry is.

A glaring error in the Act, which has proved to be its downfall, is the fact that
Section 3 makes both giver and taker of dowry liable to face legal action. By placing both
the perpetrator and the victim in the same category, not only does the Act fail in curtailing
19
Ibid.
20
See Generally, Diwan, op. cit., p. 15.

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dowry, it acts as a weapon in the hands of the taker of dowry, since on being forced to pay
dowry, the giver shall obviously not complain against the act, thereby risking his
daughter’s marriage along with facing legal sanctions. 21 In addition to this redundant
section, Section 7 of the Act goes one step further by making a complaint mandatory,
thereby preventing a magistrate from taking suo moto action. This read in tandem with the
fact that the actual victims have been discouraged from complaining under Section 3
defeats the entire purpose of the Act. 22 Therefore, unless a third party comes forward and
voluntarily suffers an infringement of his time and money in filing a suit against dowry
takers, there is little hope for the Dowry Prohibition Act, in its present form to see any
success.23

Another important shortcoming in efforts to abolish dowry have been caused by the
lukewarm response among members of society. This is largely due to distrust in the legal
system and the fear of disrupting the married life of one’s daughter. This has however led
to the exponential increase in dowry deaths witnessed in the western and north-western
belt of the country. This belt accounts for three hundred of the three hundred and forty five
dowry deaths.24

Judges in recent landmark judgements have gone out of their way in accepting
positive interpretations when it comes to Dowry Prohibition. In Pawan Kumar v. State of
Haryana25 for example, the Supreme Court has established that persistent demand for
commodities after marriage, would come under the definition for dowry. In Vemuri v. State
of Andhra Pradesh26 the transfer of land for the settlement of marriage was ruled to be a
form of dowry.

In order to do away with the Dowry Prohibition Act’s (1961) shortcomings, in the
cases of Lajpatrai Sehgal v. State 27, the court held that Section 198 of the Code of

21
Basu, op. cit., p. 94.
22
Ibid.
23
Ibid.
24
Ibid, p. 95.
25
1998 Cr LJ 1144, as cited in Diwan, op. cit., p. 21.
26
(1992) 1 Crimes 287, as cited in Diwan, op. cit., p. 23
27
1983 Cr LJ 888, as cited in Diwan, op. cit., p. 52.

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Criminal Procedure doesn’t apply to cases of dowry. This is because aggrieved parties in
dowry cases hardly complain, and the amendment to Section 7 of the Act makes it obvious
that relatives of the aggrieved parties are entitled to file a complaint. Also, through the
explanation to Section 7 it is clear that even recognised welfare institutions can bring a
case against dowry mongers.28

While Dowry is defined as a bailable offence under the Dowry Prohibition Act, which
makes provisions for anticipatory bail, in the case of Phimiben v. State of Gujarat 29, the
Supreme Court criticised the Sessions Court for having granted anticipatory bail to the
accused when the allegations of burning the bride to death was of an extremely grave
nature. This means that the judges are to exercise their discretion when it comes to
granting or rejecting anticipatory bail keeping in mind the relevance and magnitude of the
accusations. Also, in Srikanta Krishna Ghosh v. Indu Kumari Ghosh 30, Dowry demand is
an offence, even if it was before the marriage was finalised, and was still being negotiated.

While such laws give a broad interpretation of the statute so as to increase the
chances of abolishing Dowry from society, there are also some case laws that give some
leeway to the accused to prove innocence. For example, in Hari Kumar v. State of
Karnataka31, the court held that even though Section 8A of the Dowry Prohibition Act
claims that the burden of proof rests on the accused, the complainant needs to prove a
reasonable amount of claims so as to shift the burden of proof onto the accused. 32

Having observed that the Courts have tried to do their best in making use of a not-
so-supportive statute, the researcher believes that there is a pressing need for the loose
ends of the statute to be tied based on the forward looking interpretations given by the
courts over the years. In addition to this, measures that could help improve Dowry
Prohibition at a practical level include the use of education to open up people’s minds. As
has been found by Geetanjali Mukherjee, “…women favouring dowry is gradually reduced

28
Ibid.
29
1992 Cr. LJ 1994, as cited in Diwan, p. 16.
30
1983 BJLR 262, as cited in Diwan, op. cit., 32.
31
(1994) 1 DMC 356 (FB), as cited in Diwan, op. cit., p. 48.
32
See Generally, Diwan, op. cit., p. 48.

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with progressive levels of education.” 33 Also, this would foster a growth in the number of
working women. Again according to Geetanjali Mukherjee, approximately 20% more
women are favourable towards mixed marriage than housewives. This helps as it removes
the constraint of caste-based marriages, which act as an incentive for groomwalas to
extort money from the bride’s parents. 34 Hence, along with legal inputs to cleanse society
of dowry, social conditioning through such welfare measures is also proven contributors to
the cause.

CONCLUSION
In order to conclude this critical analysis, the researcher would like to throw light on
how misconceptions have played a major role in Dowry law in India. Writers have not held
back while criticising the ancient scriptures for propagating social evils. In addition to this,
they have also gone to the extent of claiming that women’s rights in general deteriorated
33
Mukherjee, op. cit, 276.
34
Ibid.

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from the time of Manu. 35 This stand has however been taken in complete ignorance of the
fact that it was Manu, who explicitly stated that “a man who takes consideration through
greed is a seller of his child.”36

Some other legal writings blame Muslim rule for the advent of restrictive laws
against women. While the researcher agrees that some Muslim rulers were restrictive in
their outlook towards women, it is important to note that they were less so compared to the
Hindu society of the time.37 The researcher submits that one must agree to the fact that
Dowry custom is an evil developed out of Social Practice, and avarice; with very little, if
anything to do with roots in religious theories. It is only through realisation of facts that one
can be capable of moving ahead and discussing the difficulties in practically abolishing
such an evil.

The law drafted in the form of the Dowry Prohibition Act of 1961 has not been of
significant help, and it has often been left to the courts to interpret the statute and make
positive inputs to the law. There is a pressing need for amendments to the act on the basis
of the courts’ rulings on the subject. In addition to this, social conditioning in the form of
education of women, increasing jobs for women, etc. could go a long way in removing
stigma relating to Dowry in society. Free thinking fostered through such efforts will make it
easier for Dowry prohibition laws to be implemented unopposed.

The researcher would thus like to conclude by stating that Indian Dowry custom
doesn’t just continue to rule society, in fact it is a creation of the avarice and greed of
modern man, and doesn’t really continue from any ancient social vice. The law in the form
of statutes is presently inadequate in dealing with the evil, and it is only through positive
thought and greater action in the field that we can hope to prevent the ruthless sale of
brides into insatiable, selfish and egoistic households.

35
See Generally, Basu, op. cit., 85-87
36
Manu, Chapter III, as cited in Basu, op. cit., p. 30.
37
See Generally, Mukherjee, p. 256.

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BIBLIOGRAPHY
Primary Sources

The Dowry Prohibition Act, 1961

The Code of Criminal Procedure, 1973

The Indian Penal Code, 1860

Secondary Sources

Anonymous, ‘Dowry in India’, viewed on 22nd August 2009,

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< http://www.indianchild.com/dowry_in_india.htm>

Basu, M., Women and Law in India: Hindu Women and Marriage Law. Oxford University
Press, New Delhi, 2004.

Diwan, P., Law Relating to Dowry, Dowry Deaths, Bride Burning, Rape and Related
Offences. Universal Law Publishing, New Delhi, 2002.

Gautham, B., ‘Dowry Custom: Killing India’s Daughters’, viewed on 22 nd August 2009, last
modified on 26th June 2004,

< http://www.japantimes.co.jp/cgi-bin/eo20040626a1.html>

Joga (ed.), S.V., Dowry and the Law. 4th edition, Lexis Nexis, New Delhi, 2002.

Lyn, T.A., ‘Fire a Major Cause of Death for Young Indian Women’, viewed on 22 nd August
2009, last modified on 1st March 2009,

<http://www.reuters.com/article/asiaCrisis/idUST121827>

Mukherjee, G., Dowry Death in India. Indian Publishers Distributors, 1999.

Srivastava, A.B.; Gupta, H.P., Law of Dowry Prohibition, Modern Law House, Lucknow,
2004.

The Oxford Citation Method has been followed in this Essay.

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