Law Relating To Dowry Offences - Dowry Law Misuse(IPC 498A) By Indian women.

What is 'dowry'?
Dowry means any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage or by the parents of either party or by any other person to either party to the marriage. It may be given at or before or any time after the marriage in connection with the marriage of the said parties. But it does not include dower or 'mahr' in case of person to whom the Muslim Personal Law (Shariat) applies (Section 2).

Comment
The Dowry Prohibition (Amendment) Act 1984 has amended the definition of dowry by substituting the words, "in connection with the marriage' (for the original words as 'consideration of marriage'). The effect of the amendment is now easier to prove the giving or taking of dowry so long as presents were made in connection with marriage. Another significant change which has been brought under the Dowry Prohibition (Amendment) Act 1986 in the definition of dowry is that it now includes the property given at any time after the marriage.

Whether the Dowry Prohibition Act applies to a particular community or religion? No. This Act applies to all communities irrespective of the religion. There is a misconception among some that it applies only to Hindus. But in fact it equally applies to Muslims, Christians, Parsis, Jews or to any and every person who performs his marriage in India and is found guilty by dowry offence.

Penalty for Giving or Receiving Dowry
Is giving or accepting dowry punishable?
Yes, because it is a criminal offence. The person or persons guilty of giving, taking or abetting the giving or taking of dowry may be imprisoned for a minimum of five years and fined not less than Rs. 15,000 or the amount of the value of the dowry whichever is more. For adequate and special reasons the court has the power to grant lesser punishment but the reasons must be recorded in the judgement. (Section 3)

Comment
Under the Dowry Prohibition (Amendment) Act 1984 the punishment was enhanced and a minimum and maximum punishment limits were laid down. It was increased from Six months to two years imprisonment and the fine from Rs. 5,000 to Rs. 10,000. However, the Amending Act 1986 further enhanced the punishment which may extend to five years and fine which may not be less than Rs. 15,000 or the amount of the value of such dowry whichever is more.

The main loophole in the present Act is that it holds the giver as well as the acceptor of dowry equally guilty. The provision of the Act prevent the parents of the girl to come forward and make a complaint about the fact that they have been compelled to give dowry. So the giver of the dowry should he exempted from the clutches of law.

Is giving of presents to the bride or bridegroom at the time of marriage punishable? No. If the gifts are given freely and voluntarily. All the same, the presents must be listed (see below under Dowry Prohibition Rules 1985 for details of the list). Also, the giving to such presents should be a part of local custom and their value must be proportional to the financial capacity of the giver.

Comment
The amended section of the Act does not specify the value of the gifts. It only states that this value should not be "excessive" in comparison with the financial status of the giver. But such vagueness opens scope for endless disputes and litigation. It is a loophole in the Act that allows dowry by the backdoor. This loophole needs to be plugged by placing a limit on the value of the gifts.

Is demanding dowry punishable?
Yes. For demanding dowry, directly or indirectly, the punishment is imprisonment for a minimum six months or maximum two years and a fine up to Rs.10,000. If there are adequate and special reasons, which the court must record in the judgement, the period of imprisonment may be reduced to below six months.

Is an agreement or contract to give or receive dowry valid in law?
No. Such an agreement or contract is invalid and cannot be legally enforced.

Maintenance of Lists
What are the rules regarding the maintenance of the list of presents?
1. The bride must maintain the list of presents given to her at the time of marriage.
2. The bridegroom must maintain the list of presents received by him.
3. These lists must be prepared at the time of marriage or as soon as possible thereafter.
4. They must be in writing.
5. They must contain the following:
      - a brief description of each present;
      - the name of the giver;
      - its approximate value;
      - his relationship to the receiver of the gift.
      - The signatures (or thumb impression, if illiterate) of both the bride and the bridegroom.

Attesting this list by any of the relatives present at the marriage is at the option of the bridegroom.

Law Relating To Dowry Offences
Transfer of Dowry Property

To whom should dowry property be transferred?
Any person who receives any dowry should transfer it to the woman on whose behalf it was received. Further, if the dowry was received before the marriage, the receiver must transfer it to the woman within three months after the marriage;

If the dowry was received at the time of or after the marriage, it must be transferred to her within three months of its receipt;

If the dowry was received when the woman was a minor, it must be given to her within three months after she becomes 18 years old. Till then the person who received it is expected to hold it in trust for her benefit.

What is the penalty for not transferring dowry property to the bride?
A person going against Section 6 can be jailed from six months to two years or fined Rs. 5,000 to Rs. 10,000 or given both punishments.

What if the guilty party still fails to transfer the property to the woman?
The court can, besides punishing him, order in writing that the property be transferred to the woman or her heirs within a specified period of time. The court may recover from him as fine an amount equal to the value of the property and pay it to the woman or her heirs, parents or children, as the case may be.

Who is entitled to get the dowry property if the woman dies before receiving it?
If the woman entitled to any dowry property dies before receiving it, her heir are entitled to it.
If she dies within seven years, her property must be transferred to her children or, in the absence of children, to her parents.

Whether a person who retains the dowry and does not return to the woman entitled to it, is guilty of an offence?
Yes. Any person who retains the dowry and does not return to the woman entitled to it is guilty of criminal breach of trust under Section 406 of IPC. He shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both.

Denial of Conjugal Rights
Some husbands, because they are unhappy over their wife's dowry, deprive her of the rights and privileges of marriage, torture her or refuse to look after her, how are they to be punished?

The guilty person can be imprisoned up to one year and fined up to Rs. 5,000 (Section 4B).

If a husband denies conjugal right to his wife, can he be punished?
He can be jailed for up to one year or fined up to Rs. 10,000 or given both punishments. (Any fine charged on the husband may be given to the wife as compensation if the court so direct).

If the husband gives a written assurance to the court that he will not demand dowry or that he will allow conjugal rights to his wife, the court may drop the proceedings against him.

But if he proves false to his promise, the wife can make a fresh application to the court and the court will take up the case from the stage at which it was dropped. (But she has to do it within three years of suspension of proceedings).

Maintenance Payable by Husband

In the above case, can a woman demand maintenance from her husband who has denied her conjugal Rights?
Yes. But she must apply to the court within tow month after his conviction. The court can then order him to pay her a maintenance allowance not exceeding Rs. 500 per month. Before passing an order to this effect the court must give a reasonable hearing to both sides in order to come to a fair figure which is in keeping with the position and status of the parties, the reasonable wants of the wife and her available resources.

The maintenance allowance ordered by the court shall be a charge even on the property that the husband acquires after the date of the order.

Congnisance of Offence

Which court is competent to try offences under this Act?
A Metropolitan Magistrate or a Judicial Magistrate of the first class can try any offence under this Act. (Section 7)

Who are entitled to make a complaint to the court?
- A police officer;
- Any person affected by the offence or parent or other relative of such person;
- Any recognised welfare institution or organisation. (These are social welfare institutions or organisations recognised for this purpose by the Central or State Government).
- A court also an intitiate a trial on the basis of its own knowledge of the facts of the offence. (Section 7)

Is dowry a cognisalbe offence?
Dowry is considered a cognisable offence for the purpose of investigation. That means the police officer can investigate case as soon as a complaint is lodged in the police station. But he has no power to arrest the accused person without a warrant or without an order of a Magistrate.

Are offences under this act bailable or non-bailable?
Every offence under this Act is non-bailable. It means the accused person has no legal right to get bail. Only a Magistrate can grant him bail on application, using his discretion. Offences under this Act are also non-compundable. The complainant cannot withdraw the case on compromise with the opposite party.

Is there any period of limitation for filling the Complaint under the Dowry Prohibition Act?
No. Under the Dowry Prohibition (Amendment) Act 1984 the bar of the period of limitation of one year has been done away for filing the complaint under the Act. Now there is no limitation of period whatever.

Burden of Proof

Who has the legal duty( burden of proof to prove the guilt in dowry offences?
The burden of proving that he has not committed an offence under the Dowry Act is on the accused. (Section 8-A)

In normal practice, the prosecution alone is responsible for proving the guilt of the accused; the accused is not bound to defend himself. But is not easy to dig out the truth this way. Instead if both prosecution and the accused are given the burden of proof and both parties asked to prove their arguments, it would he easier to arrive at the truth.

Dowry Prohibition Officers
Are there special officers created by this Act?
The State Government has the power to appoint Dowry Prohibition Officers with the following powers and functions:
- to see that the provisions of the Act are complied with
- to prevent the receiving, abetting the receiving or demanding of dowry;
- to collect evidence for the prosecution of the accused person;
- to perform other duties assigned to him by the State Government or specificed in the rules.

The State Government can confer the powers of a police officer on the Dowry Prohibition Officer by notification in the Official Gazette. (8-B)

Cruelty to Married Women

What does the law provide as regards case of cruelty to married women?
A new Section 498A has been added in the Indian Penal Code under Chapter XXA. Under this Section a husband or his relative who commit cruelty upon the wife can be jailed for upto a three years and fine.

Here cruelty means any wilful conduct of a person that is likely to drive the woman to commit suicide or to cause her serious physical, mental or moral injury. It also means harassment to force her or her relatives to meet an unlawful demand for property or valuable security (a document that guarantees certain legal rights to some one). Criminal Law Second Amendement Act. 1983).

Is cruelty to a married women a cognisable offence?
Yes. To make it a cognisable offence information about the offence must be given to an officer in charge of the police station by the woman or by any person related to her by blood, marriage or adoption, or by a specified public servant (government officer).

Is it a bailable offence?
No. The offender has no right to get bail. He can get bail only on application to the Magistrate and at the latter's discretion.

Which is the competent court to try an offence of cruelty?
A Magistrate of the first class or a Metropolitan Magistrate.

Can any court take cognisance of the offence of cruelty?
A court cannot start a case against the accused person without a police report of the offence or a complaint by the aggrieved person or her father, mother, brother, sister or her father's or mother's brother or sister. With the permission of the court a criminal case can also he filed by any other person related to her by blood; marriage or adoption.

Is the harassment with a view to coercing the wife or person related to her to meet any unlawful demand of dowry would constitute cruelty a ground of divorce under Hindu Marriage Act 1955?
Yes. The Supreme Court in Sobha Rani v. Madhukar Reddy (AIR 1988 SC 121) for the first time accepted that demand for dowry amounts to cruelty entitling the wife to get a decree for dissolution of mariage.

Dowry Death

What is dowry Death?
If a women dies due to burns or bodily injury and in suspicious circumstances within seven years of her marriage and if it is shown that just before her death she was subjected to cruelty or harassment by her husband or his relatives in connection with demands for dowry, such death will be known as "dowry death". In this case her husband or his relatives will be considered to cause her death. (Section 304 - BIPC)

What is the punishment for dowry death?
A guilty person can be jailed from seven years to life imprisonment (20 years).

How serious is the offence of dowry death?
Causing dowry death is cognisable offence, and a police officer can arrest the accused person without a warrant. It is also a non-bailable offence, the granting of bail being left to the discretion of the Magistrate.

What court can try an offence of dowry death?
Only a Court of Session can conduct a trial for the offence of dowry death.

Is there any time limit for the offence of "dowry death"?
Yes. Within seven years of the victim's marriage.

Police Enquiry

By an amendment to Section 174 of the Criminal Procedure Code a police officer has been given the authority to investigate the following cases without warrant:

- sucide by a woman within seven years of her marriage;
- death of a woman within seven years of her marriage, if there is a reasonable suspicion that some one has committed an offence on her before her death'
- death of a woman within seven years of her marriage, when any of her relatives make a request to the police officer to investigate the matter;
- in case of any doubt regarding the cause of death.

What is expected of the offiver in charge of a police station when he is informed of a case of unnatural death?
The officer in charge of a police station, when he receives information, must enquire about the unnatural death (caused by suicide, accidents by animal or machinery, or murder), or death in suspicious circumstances. He must immediately inform about it to the nearest Executive Magistrate having the power to hold an inquest. Thereafter the police officer must go the place where the body lies. There in the presence of two or more respectable persons of the locality he must make an investigation and draw up a report regarding the cause of death. The report must contain a description regarding the wounds, fractures, marks of injury found on the body and the manner in which the death has occurred and the type of weapon by which the injury was caused.

The report must be signed by the police officer and the witnesses and forwarded to the District Magistrate or the Sub-Divisional Magistrate.

What is the power of the police officer to send the dead body for examination?
If a Police Officer considers it expedient, he may send the dead body for examination to the nearest Civil Surgeon, or any authorised medical practitioner. In such a situation he must take into consideration, the weather, the distance and the condition of the body (Section 176 Cr. P.C)

What Magistrates are empowered to hold inquests?
Any district Magistrate, or Sub-Divisional Magistrate, or any other Magistrate especially given power of conduct inquest (Section 176 Cr. P.C.)

Magisterial Enquiry

What are the rules regarding magisterial enquiry?
Section 176 of the Code of Criminal Procedure demands an inquiry by a Magistrate when any person dies in police custody or when a woman commits suicide or dies in suspicious circumstances within seven years of marriage.

The nearest Magistrate who has the power to hold the enquiry into the cause of death may do it either instead of or in addition to the investigation held by the police officer. He must record the evidence taken by him, if he finds it necessary, examine the dead body to find the cause of death.

Whenever possible, the Magistrate must inform the close relatives (parents, children, brothers, sisters and spouse) of the dead about the enquiry and allow them to be present at the enquiry.

The Indecent Representation of Women (Prohibition) Act, 1986

What is the name of this law?
This law is known as "The Indecent Representation of Women (Prohibition) Act, 1986.

When was it enacted?
It was enacted on the 23rd of December, 1986.

Why was this Act enacted?
It was enacted to prohibit indecent representation (indecent exhibition) of women through advertisements or in publications, writings, paintings, figures or in any other manner.

Is there any other law relating to obscenity in India?
Yes, Sections 292, 293 and 294 of the Indian Penal Code. (See Appendix)

Why was it necessary to have a separate legislation to prohibit obscenity? In spite of the above provisions of the Indian Penal Code, indecent representation of women in publications, especially in advertisements, were multiplying every day. This has the effect of denigrating women. It also corrupts persons, especially the youth. So it was felt necessary to have a separate legislation to effectively prohibit the indecent reprsentation of women through advertisements, books, pamphlets etc.

What are the specific objectives of the Act?
This Act aims -
a) to define indecent representation of women;
b) to prohibit all advertisements, publications etc., which contain indecent representation of women in any form;
c) to prohibit selling, distribution, circulation of any book, pamphlet etc., containing indecent representation of women;
d) to punish the guilty.

Application of the Act

To which areas of India does this Act extend?
It extends to the whole of India except the state of Jammu and Kashmir.

When did this Act come into operation?
On the 23rd of December, 1986.

Definitions

What are the meanings of the following terms used in this Act?
In the Act--
a) "advertisement" includes any notice, circular, label, wrapper or other document and also includes any visible representation made by means of any light, sound, smoke or gas;
b) "distribution" includes distribution by way of samples, whether free or otherwise;
c) "indecent representation of women" means the depiction in any manner of the figure of a woman, her form or body or any part of it in such a way as to have the effect of being indecent, or derogatory to, or denigrating women, or is likely to deprave, corrupt or injure the public morality or morals;
d) "label" means any written, marked, stamped, printed or graphic matter, affixed to, or appearing upon, any package;
e) "package" includes a box, carton, tin or other containers.

Prohibition of advertisements containing indecent representation of women.

What is prohibited by Section 3 ?
This Section prohibits any exhibition or publication, directly or indirectly, of any advertisement which contains indecent representation of women in any form.

Prohibition of publication or sending by post of books, pamphlets, etc.

What is prohibited by the section?
This section prohibits the production, selling, hiring, distribution, circulation or sending by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form.

To what type of publications does this section not apply?
This section is not applicable to -
a) any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure--
(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure is in the interest of science, literature, art or learning or other objects of general concern; or
(ii) which is kept or used in good faith for religious purposes;

Does this section apply to any representation sculptured, engraved, painted or otherwise represented on or in any ancient monument?
No.

Does this section apply to any temple or any car used for the conveyance of idols or for any religious purpose?
No.

Is Section 4 applicable to any film in respect of which the provisions of Part II of the Cinematorgraphy Act, 1952, is applicable?
No.

Powers to enter and search

Who is authorised to conduct a search under this Section?
Any Gazetted Officer authorized by the State Government.

When can he conduct the search?
He can conduct a search within the local limits of the area for which he is authorised

What is the authority given to him under this Section?
He can enter and search any place in which he has reason t believe that an offence under this Act has been or is being committed.
At what time is he authorised to conduct a search?
At all reasonable times.

Is he permitted to take assistance of others in conducting the search?
Yes.

What is he authorised to take from the place of search?
He may take any advertisement or any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which he has reasons to believe violates any provisions of this Act.

Has he got the power to examine any record, register, document or any other material object found in the place of search?
Yes.

When is he authorised to seize them?
He can also seize them if he has reason to believe that they may furnish evidence for committing the offence punishable under this Act.

Is the Gazetted Officer empowered to enter a private house for search without a warrant?
No.

Do provisions of the Code of Criminal Procedure, 1973 apply to any search or seizure under this Act?
Yes.

Which section of the Code will apply to the search or seizure made under this Act?
Section 94 of the Code.

What should an authorised officer do when he seizes any material after the search?
He must immediately inform the nearest Magistrate and take his orders regarding its custody.

Penalty

What is the normal punishment of violating the provisions of section 3 or 4?
For the first conviction the punishment is imprisonment upto 2 years and fine upto two thousand rupees. For the second subsequent conviction the imprisonment will be from six months to five years and the five will be from ten thousand rupees to one lakh rupees.

Offences by companies.

Who will be held responsible when an offence under this Act has been committed by a company?
Every person, who, at the time the offence was committed, was in-charge of the company for the conduct of the business of the company, as well as the company shall be considered to be guilty of the offence.

Can an accused person in-charge of a company be punished if he proves that the offences was committed without his knowledge or that he had exercised all due diligence to prevent the commission of that offence?
No.

Who can be punished when it is proved that an offence has been committed by a company and that it has been committed with the consent or connivance of, or due to the negligence of, any of its directors, manager, secretary or officer?
Then the director, manager, secretary or the officer of the company could be proceeded against and punished.

What is the meaning of "company" in this section?
It means any corporate body and includes a firm or any association of individuals.

What is meant by "director"?
"Director" in relation to a firm, means a partner in a firm.

What is the usual punishment given to a company for committing an offence under this Act?
A fine and not imprisonment.

What sort of punishment can be given to a person judged as guilty of an offence committed by a company?
He can be given imprisonment and fine.

Offences to be cognizable and bailable.

What is the nature of an offence committed under this Act?
It is a cognizable offence, which means the accused person can be arrested without warrant.

Is it a bailable offence?
Yes. it is a bailable offence, which means the accused person has a right to get bail from a police officer in-charge of a police station.

Prosecution of action taken in good faith.

Can a suit, prosecution or other legal proceeding be instituted against the Central Government or any State Government or any of their officers for anything done in good faith under this Act?
No.

Power to make rules.

Who is empowered to make rules to carry out the provisions of this Act?
The Central Government.

What is the procedure to make rules?
The rules framed by the Central Government have to be notified in the Official Gazette before they are implemented.

On what matters can the rules be framed?
The rules can be framed for the following matters--
a) the manner in which the seizure of advertisements or other articles shall be made;
b) the manner in which the seizure list shall be prepared and delivered to the person from whose custody any advertisement or article has been seized.

For Effective Implementation of this Act

The strength of a law consists in its implementation. Many of our laws are without teeth. They are mere show pieces. A good member of them are made just to pacify the people when they make a hue and cry about a particular problem. Once they are enacted no one is bothered about their implementation. People's participation is minimum in India due to illiteracy, ignorance and apathy of the common people. In a democratic system of government, laws cannot be implemented without the active participation and collaboration of the people.

Many of the laws enacted for the benefits of women are not implemented effectively due to the apathy and indifference of the law-enforcing agencies, such a police, bureaucrats, lawyers and judges. The situation can be changed only by awakening the conscience of the people, especially women, regarding their duty to become active partners in implementing the laws made for their benefits. Below are given some suggestions for the effective implementation of this Act.

1. Women's organisations must be formed and registered wherever possible in view of strengthening women and to enable them to fight for their rights.
2. Initiative must be taken by women's organisations to study the laws critically, to find out their loopholes, and to suggest ways and means to amend them, and implement them effectively.
3. Women legal researchers must interview police officers, bureaucrats, lawyers, judges and common people to get their opinions on the efficacy of the Act and the problems faced in implementing its provisions.
4. Adequate efforts must be made by women's organisations to get the support of investigative journalists, police officials and legal activists to fight against those indulging in indecent representations of women in books, magazines and advertisements.
5. Women-models must be persuaded not to indulge in vulgar display of their bodies for accumulating wealth. They must be warned about the legal consequence of their indecent acts.
6. Social activists working for the welfare of women must inform the Gazetted Officers appointed by the State Government under Section 5 of this Act. They are competent to enter any place and conduct search to find evidences related to the offences committed under this Act.
7. Women activists and women's organisation must lodge F.I.R.s on offences committed under the Act and Indian Penal Code, in police stations under whose jurisdictions objectionable matters or obscene pictures of women are found.
8. Legal notices should be issued to publishers and editors of books, magazines, and newspapers, and advertisement agencies to stop publications of indecent pictures and photos of women.
9. Public Interest Litigation in the form of writ of mandamus should be filed by women's organization and women activists in the High Courts or in the Supreme Court of India against government officials for not taking legal action against those violating the provisions of this Act.