Dowry in disguise

Women activists are worried that the Supreme Court's January 5 ruling on dowry may set a wrong precedent.

T.K. RAJALAKSHMI in New Delhi

ON January 16, in an anguished letter to Justice K.G. Balakrishnan, Chief Justice of India, the All India Democratic Women's Association (AIDWA) expressed deep disappointment with the "flawed interpretation" of the word dowry in a judgment delivered by the Supreme Court on January 5. It requested the Court to review its judgment, as it viewed the judgment as setting a wrong precedent and having the potential to allow and encourage the demand for dowry after marriage.

In the course of allowing an appeal against a judgment of the Aurangabad Bench of the Bombay High Court, the apex court set aside the conviction of the accused in a dowry death case. In their judgment, which was mainly based on an interpretation of dowry as defined under the Dowry Prohibition Act, 1961, Justices G.P. Mathur and R.V. Raveendran held that "a demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood".

The case essentially involved the death of Bhimabai of Palshi village in Aurangabad district in Maharashtra. Bhimabai's husband Appasaheb and her mother-in-law were convicted of dowry murder by the High Court on February 23, 2005. Bhimabai had been married for two and a half years. On September 15, 1991, she consumed pesticide and subsequently died. According to the prosecution and Bhimabai's parents, the main witnesses, six months after her marriage Bhimabai's in-laws often began to exert pressure on her to bring Rs.1,000 or Rs.1,200 to meet household expenses and to buy manure. Similar demands were made before her suicide. Bhimabai had complained to her parents that her husband and mother-in-law occasionally beat her. Her father, Tukaram, along with some relatives, tried to dissuade Bhimabai's in-laws from harassing her. For four months after that Bhimabai was not ill-treated but soon harassment began again. During cross-examination, the patil (headman) of Palshi village said that Bhimabai had come to him some months before her death and told him that all was not well between her and her husband.

While the apex court accepted the statement of the victim's parents that the accused had asked their daughter to bring money to meet domestic expenses and purchase manure, it held that that did not amount to demanding dowry under Section 2 of the Dowry Prohibition Act. According to this definition, dowry meant any property or valuable security given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties.

The judgment held that "the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential". It went on to add that "being a penal provision, it has to be strictly construed", observing at the same time that dowry was a "fairly well-known social custom or practice in India".

The evidence adduced by the prosecution did not, therefore, show that the appellants had made any demand for dowry. As the demand for dowry was not established, the Court set aside the conviction under 304B of the Indian Penal Code.

No case of cruelty under Section 498A could be made out as the Sessions Court, which heard the case earlier, convicted the accused under Section 304 but acquitted them under Section 498A and 306 read with Section 34.

A sentence of seven years' rigorous imprisonment had been awarded to the accused. The apex court refrained from expressing an opinion as to whether the appellants could be held guilty of the offence under Section 498A (torture, mental or physical) or 306 IPC.

Women's organisations that were in the forefront of anti-dowry movements have reason to be agitated by the judgment. In the 1980s, women activists demanded changes in the definition of dowry as the earlier definition stated that only those items that were given in consideration of marriage would be construed as dowry. The definition was restrictive in more than one sense: not only was it required to prove that the items had been given so that a marriage could take place but it also excluded articles given before and after the marriage. The demand to amend the Act was made in the context of increasing cases of harassment for dowry.

Kirti Singh, an advocate in the Supreme Court and the legal convener of AIDWA, said the words "in connection with marriage" obviously meant articles or money demanded as a result of or because of the marital relationship. She said that the 1986 Amendment to the Dowry Act, which inserted the words "or at any time after the marriage", was done to cover the kind of situations outlined in Bhimabai's case and which existed in several cases of dowry harassment.

Sudha Sundararaman, general secretary of AIDWA, told Frontline that had this particular section not been interpreted in this manner, no instance of dowry demanded after the marriage ceremony would come under the purview of the definition. She said that AIDWA received hundreds of complaints of cruelty and torture emanating from dowry demands.

The National Crime Records Bureau's Crime in India 2005 report shows that although dowry deaths (Section 302/304B) came down in 2005 (6,787 cases) as compared with 2004, when 7,026 cases were recorded, in the five-year period from 2001 to 2005, more than 6,000 cases of dowry deaths were recorded each year.

In 2005, around 3,204 cases were registered under the Dowry Prohibition Act, 1961, compared with 3,592 cases in 2004. However, what was more disconcerting was that cases of torture (Section 489A) were increasing steadily, from 49,170 in 2001 to 58,319 in 2005. The proportion of crimes under the IPC committed against women as a percentage of the total number of IPC crimes showed an increase in the five-year period.

Although the figures for torture do not give disaggregated information about torture suffered by married and unmarried women or identify cases of torture as those for dowry, it can be safely assumed that the bulk of the cases are related to dowry demands. If the figures for torture, dowry deaths and cases registered under the Act are taken together, the total figure for these crimes would constitute the bulk of the crimes committed against women, outstripping the figures for rape and molestation. Yet, the rate of conviction remains low in addition to the overall low reporting of crimes related to dowry demands.

Kirti Singh said the interpretation of the words "in connection to marriage" may lead to a situation where no conviction for dowry deaths would take place if demands were made after the marriage and unless the woman's family or the woman herself could show that the demands were connected with the ceremony of marriage. She is concerned that such interpretations would only add to the already lackadaisical manner of investigations. In 2001, an AIDWA study on the expanding dimensions of dowry concluded that there was an erosion in the plurality of traditions in the family form as well as in the terms and forms of exchange of sons and daughters. The variation of patterns, which was itself an outcome of varying stages of social evolution, had given way to a more homogenised, mainstream model, it found.

Among other things, this mainstream model entailed huge expenditures for marriage. Communities practising bride price had switched over to dowry. The practice had permeated communities such as Muslims, Adivasis and Dalits, which were not previously known to give and take dowry. The study, which was based on a survey, revealed that marriages had become expensive events since the 1990s and such expenditure and dowry were considered a matter of great pride for the bride's family.

The demand for dowry has been directly related to strong son preference. Dowry has cut across castes, classes and communities. There is no doubt that a sharp decline in the child sex ratio and the shortage of girl children in the zero to six age category have to do with the demand for dowry in Indian society today. It is also no surprise that dowry has continued to be as resilient as the caste system; it has adapted itself to changing times and the new consumerist order. Despite a law, whose effectiveness has left much to be desired, dowry continues to be justified as a social custom.