DOWRY AND CRUELTY

INTRODUCTION

Dowry means property or money brought by a bride to her husband on their marriage. Dowry death or suicides by married women as a result of their being subjected to cruelty by in – laws and/or husband constitute a slur on the Hindu society. More often cruelty emanates from the failure of the parents of the girl to meet the exacting demand for the dowry by the in-laws of the victims; our anxiety on this score has darkened into dread which in turn has dwindled into despair. Dowry death, at present, is a burning problem of the society. It is increasing day by day owing to prevailing socio – economic fabric and life style in the family. Dowry death has thrown a major challenge to the police personnel, medico legal experts as well as to judicial officers not only to wipe out this social menace but also to penalize the culprits in deterrent manner.  In India, the payment of a dowry was prohibited in 1961 under Indian civil law and subsequently by Sections 304B and 498A of the Indian Penal Code was enacted to make it easier for the wife to seek redress from potential harassment by the husband’s family.

 

Laws relating to Cruelty and Dowry demand

·        To prohibit the demanding, giving and taking of Dowry, the Dowry Prohibition Act, 1961 has been in force since 1st July 1961.

·        To stop the offences of cruelty by husband or his relatives on wife, Section 498-A has been added in the Indian Penal Code, and Section 198-A has been added in the Criminal Procedure Code since the year 1983.

 

In the case of suicide by a married woman, within 7 years from the date of her marriage, the Court may presume that such suicide has been abetted, encouraged by her husband or his relatives. Provision to this effect has been added in the Indian Evidence Act, by adding Section 113-A since the year 1983.

The object in forming the Dowry Prohibition Act and adding provisions in the Indian Penal Code, the Criminal Procedure Code and the Indian Evidence Act is to remove the evil of dowry system and give protection to women. The object of this article is to try and explain whether the demand for dowry amounts to cruelty or not.

 

MEANING OF CRUELTY

The definition of cruelty as stated in Black’s Law Dictionary is ‘the intention and malicious Infliction of mental or physical suffering on a living creature, esp. a human; abusive treatment’^[1]

 

If one goes through Section 498 A of the Indian Penal Code 1860, one would find the explanation of the word cruelty but not the definition.

 

The IPC explains, rather than define the word cruelty. It states that for the purpose of this section i.e. sec 498 A, “cruelty” means:
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide 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 demands for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.’^[2]

 

Despite this explanation, there seems to be no clear cut definition of cruelty. Be it the Hindu Marriage Act, 1955 or the Dowry Prohibition Act 1961 or the Indian Evidence Act, none of them seems to carry the definition of cruelty. Hence, in an end number of cases we find that a number of judges have tried to define cruelty in many ways.

The most landmark case being Shobha Rani v. Madhukar Reddy^[3]. In this case, the learned Chief Justice observed that,  ‘The word “cruelty” has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical the court will have no problem to determine it. It is a question of fact and degree. If it is mental the problem presents difficulty.’

 

Indeed the word cruelty is a very subjective term. One cannot define it in one go. One can only infer what it is for a particular individual in a given instance. The subjectivity of this term has time and again posed as a major challenge to the Indian courts. Yet many have tried to infer its true meaning from the facts provided. The above mentioned case also defined how cruelty is not an intentional aspect. The learned judges mentioned in the case that, ‘It is not necessary to prove the intention in matrimonial offence. From the context and the set up in which the words `cruelty’ has been used in s. 13(1) (i-a)^[4], intention is not a necessary element in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained or, cruelty could be easily established. But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty.’

 

The court here clearly said how immaterial it is to establish whether the cruelty meted out was intentional or not. The reason being that the matrimonial duties and responsibilities are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life.

In a recent judgement, the Supreme Court said that “merely being “intimate” with another woman is not sufficient ground for a man to be held guilty of inflicting cruelty on his wife on the charge of failing to discharge his marital obligations.” A bench of Justices K S Radhakrishnan and P C Ghose said ,”We are of the view that the mere fact that the husband has developed some intimacy with another, during the subsistence of marriage, and failed to discharge his marital obligations, as such would not amount to cruelty.”

In this particular case, the fact that cruelty was mental needs to be understood on the basis of degree of each person.^[5] In matrimonial cases, the Court is not concerned with the ideals in family life. It has only to understand the spouses concerned as nature made them, and consider their particular grievance.^[6]

 

Cruelty has two types. One is physical cruelty while the other is mental cruelty. Mental cruelty is again very hard to define for it is the most subjective element in the definition of cruelty. Still the courts have tried to explain it on the basis of the circumstances available. The definition of mental cruelty in Black’s Law Dictionary is from the basis of divorce. It states, ‘one spouse’s course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health or mental health of the other spouse’.^[7]

 

The courts while dealing with mental cruelty decided to consider every aspect from a family oriented point of view. In another landmark case of A. Jayachandra v. Aneel Kaur^[8] , mental cruelty was addressed in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Mental cruelty falls within the purview of a matrimonial wrong.

 

The reason as to why there isn’t any definition of mental cruelty is because the concept cannot be static. There cannot be a parameter regarding the extent of mental cruelty in matrimonial case.  The same goes for cruelty as a whole. There is no doubt a universal idea of cruelty yet the core issue here is subjective. It differs from individual to individual. In the case, Samar Ghosh v. Jaya Ghosh^[9]  the SC held that the concept of cruelty differs from person to person depending upon the upbringing, level of sensitivity, educational, family, cultural background, financial position, social status, customs, traditions, religious beliefs, human values and value system.

 

Hence we do not have any such definitison of cruelty and it is upon the courts to perceive the meaning depending upon the circumstantial evidence.

 

CRUELTY AND DOWRY

TRANSFORMATION OF DOWRY INTO A SOCIAL EVIL

The system of dowry initially started as customary presents when the parents of the girl used to give away gifts to the newlyweds out of love and affection. In olden days, it was customary to give some presents to the bride and bridegroom and his family at the time of marriage. The parents of the bride or their relations out of affection and good intention used to provide the couple something to fall back upon in case of need. The system started at a time when girls were generally not very much educated and even if they were educated they were unwilling to take up gainful employment. There was also less opportunity for them either to supplement the family income or to become financially independent. There was yet another reason for such customary gifts. The daughter then was not entitled to a share in the joint family properties when she had a brother. Hence the father out of affection or other consideration used to give some cash or kind to the daughter at the time of marriage. The right of the father to give a small portion of even the family property as a gift to the daughter at the time of her marriage was recognised. But unfortunately over the years, new practice developed. The boy or his family members started demanding cash or kind from the bride’s parents. They started demanding dowry as a matter of right. The demand more often extended even after the marriage. There were instance of harassment of the wife, if the demand was not complied with. In order to curb this evil practice, the Parliament enacted the Dowry Prohibition Act, 1961 (Act No. 28 of 1961). The Act prohibited the giving or taking of dowry. But in spite of this enactment, the pernicious practice continued in some communities.

Today, demanding dowry is one of the worst evil that is present in the Indian society. Materialism, influenced by greed seems to be the primary cause for consistent dowry related violence against women. Gender insensitivity coupled with indifference patronised by patriarchy fuels this attitude beyond imagination. This is the precise reason why cruel and inhuman acts in the form of dowry death continue to take place unabated.^[10]

 

OBJECTIVE FOR ESTABLISHING A STRICT RULE AGAINST CRUELTY AND DOWRY DEMAND

Though the Dowry Prohibition Act was passed in way back 1961, yet there was no mention of the word cruelty in it. The legislators only thought of prohibiting dowry rather than curbing it and protecting women from the harassment that she had to undergo. Fortunately in 1983, to check cruelty to women by husband and by parents-in-law, rampant in an unprecedented scale in the country a new chapter, XXA, entitled ‘Of Cruelty by Husband or Relatives of Husband’ was added^[11]. In the same time an additional amendment was made in the Evidence Act shifting the burden of proof of innocence on the part of the accused as against prosecution in the case of abetment of suicide by a married woman and a wife’s death within a period of seven years from the date of her marriage.^[12]

 

The object of adding the chapters is to punish a husband and his relatives who torture and harass the wife with a view to coerce her or any person related to her to meet any unlawful demands or to drive her to commit suicide.^[13]

 

In another landmark case, Gurbachan Singh v. Satpal Singh^[14], the relation between demand for dowry and cruelty has been explained by the Supreme Court. As per the facts of the case it was held that the victim, a newlywed woman, who had committed suicide within a year of her marriage, was subjected to utmost cruelty (she was also insinuated to have an illegitimate child). The accused family demanded dowry and when she failed to bring it, they tortured her. The court, comprising a two judge bench of said that, that the worst part of the cruelty was that she was even taunted for carrying an illegitimate child. The Court also held that a respectable lady cannot bear this kind of false allegation levelled against her and this must have mentally tortured her. Thus the persistent demands of the accused for more money, their tortures and taunts amounted to instigation and abetment that compelled her to do away with her life.

 

In this case we see how the demand for dowry is a very delicate matter. It can transform into an ugly picture and ultimately drive a woman to her death bed.

Similarly, in the most recent cases of Rajesh Bhatnagar v. State of Uttarkhand^[15] and Sharad v. State Of Maharashtra^[16] when the brides were burnt alive with reference to the demand of dowry and their failure in fulfilling the demand, one can very well understand the stand of cruelty in demand for dowry. This type of cases can give us a clear picture of how the demand for dowry can become a cruel issue.

 

Quite recently, the Supreme Court has ruled that a person cannot be convicted for merely demanding dowry unless the demand is followed by mental or physical cruelty resulting in the death of the victim.^[17] In the case of Amar Singh v. State of Rajasthan the courts have said that just demanding dowry can’t result into a case of cruelty and one can’t file a case for this. A Bench of Justices R M Lodha and A K Patnaik said in the judgement that the prosecution has to establish convincing evidence that the accused had subjected the victim to torture soon before her death in connection with the demand.

 

Again, in a recent case a Delhi Court has held that “mere taunts and jibes for bringing insufficient dowry” does not amount to causing harassment to woman or subjecting her to cruelty for dowry, unless there is a persistent demand for it aimed at forcing her to meet it.^[18]

Hence we see that there is a very intimate relation between cruelty and demand for dowry. The legislators have done a benevolent job by bringing in laws which enabled the courts to punish the greed and lust filled people who demand dowry in exchange of woman.

 

But again, as stated earlier, cruelty is a subjective term. The amount of patience to bear cruelty is different from woman to woman. What could be a mere taunt for one woman could be a very harsh word for another. Tolerance has always been different for every human being. But then question arises as to how does one identify when to lodge a complaint for dowry and when not to. The legislators and the courts have left a very open space in this regard. Their stand is vague here. The courts in India are meant to take an objective stand for they are bound by law and one can’t expect the Indian courts to fall for every emotion. Yet it can take a reconciliatory stand. When one approaches the court, one expects the problems to be solved and to get back into the normal family life. But if the courts aren’t able to do that, then it’s a failure on their part.

 

CRUELTY, A SUBJECTIVE MATTER BEING TREATED OBJECTIVELE BY INDIAN COURTS

 

Matrimonial alliances in India mean the bonding of two families. When a dowry case if filed, the resultant is often a bad blood between the two families or a divorce on the ground of cruelty and dowry. A look into the statistics shows a significant rise in divorce cases due to cruelty. The stand of Indian courts is very essential while judging a cruelty and dowry related case. A judge must consider the option that though the issue here is very subjective, yet they must try and find out a way so that the spouses can live a normal and harmonious life after the case is over. In the case of Anil Sethi and Amar v. State of Union territory of Chandigarh^[19], the case so happened that the accused party acknowledged their mistake and pleaded the judge for mercy. They were able to convince the court of their realization and the court finally acquitted them. The Punjab and Haryana High Court set forth an example stating that the main object of law is to ensure a happy home rather than a broken one. They even requested all the possible judges to review their decisions so that the resultant is a harmonious family.

Hence we see that though the Indian courts are bound by law, yet they have a huge responsibility towards the society. Adhering to the principles of natural justice, if the courts are able to bring back the bonds that has been lost in the dowry and cruelty cases, then it shall be their ultimate justice.^[20]

 

MISUSE OF DOWRY AND CRUELTY LAWS

The dowry laws when interpreted literally, becomes a tool in the hands of every woman for threatening their husbands with regards to any trifle domestic feud! Misuse of dowry and cruelty laws is at rise. When the government implemented this law, they had a very benevolent idea regarding the protection of women from avaricious man. But the rise in mishandling of the laws gives a rather poor picture. The most misused amongst the laws is section 498 A of IPC. The law is one sided and it’s exploitative. It becomes all the more difficult for it is a cognizable, non-bailable and non-compoundable offence.

 

 

 

MISUSE OF THE SECTION: VICTIM TURNING INTO THE ABUSER

The Supreme Court of India says, “…by misuse of the provision [IPC 498a – Dowry and Cruelty Lawa new legal terrorism^[21]has been unleashed.”

This provision was intended to be used a shield and not an assassin’s weapon. Laws originally meant to protect from the dowry menace are being misused by vicious and unscrupulous urban women and their families as “an assassin’s weapon”.^[22] This is a soaring social evil in Indian families. Today, the educated urban Indian women with the aid of jingoistic feminism have turned the tables. They have discovered several loopholes in the existing Indian judicial system and are using the laws which were crafted to curb the menace of torture and harassment due to dowry, to in-turn harass their husbands and the husband’s family that includes fathers, mothers, sisters, elderly grandparents, and even disabled individuals.

We are not talking about the dowry deaths or physical injury cases but about dowry harassment cases that require no investigation or evidence whatsoeverand can be filed just based on a statement by the wife.

With an approximately 60,000 such accusations per year, about 200,000 people are directly affected by these false accusations. In the landmark case of Deb Narayan Halder v. Smt. Anushree Halder^[23], the wife misused the dowry law. The court found that there was no evidence to prove that wife was subjected to torture and harassment by husband and hence let go off the accused.

 This poorly formulated law is encouraging ill-intentioned women and their families to lodge false cases against innocent people vulnerable to such gender biased laws, finally causing the imprisonment of such people along with immense emotional, physical, financial trauma and public ignominy.

Men’s organisations are now demanding that the Centre should direct state governments to make no arrests under Section 498A without proper investigation. In fact, the Delhi and Hyderabad police have already issued circulars stating that no arrests will be made unless the case has been investigated first. 498A is also criticised for its non-compoundable and non-bailable provisions by people on both sides of the fence. As it stands, the law is no doubt a powerful means to punish violence against women. But its misuse cannot be wished away. A CSR study states that 6.5 per cent of the total cases brought under 498A were found to be false at the level of investigation. And men haven’t stopped crying foul. Although the Supreme Court upheld the validity of the law in 2005, it also asked the legislature to find ways to stop the misuse^[24].

 

CONCLUSION

For a long time now, many Indian married women have been harassed and tortured for the social evil called dowry. Once a gift from the parents of the girl for her well being has now become a compulsion and an offer to the groom and his family in exchange of the bride. With the changing times, the avarice for money has also increased manifold. People go to the level of even burning the brides which is a menace in its own and there can’t be anything crueler than this.

 

The Supreme Court held that mere demand for dowry can’t be a subject matter of complaint if it is not followed by harassment and torture. But the question here is when we know that something as heinous as demand for dowry has taken place, why don’t we try to nip that evil in the bud? Why should a woman wait for her husband and his family to start being cruel to her so that she could file a complaint? The law has no doubt helped a lot but there are still questions that need to be answered.

 

Cruelty is a subjective term and there can’t be any specific definition of cruelty. One can assume what amounts to cruelty but then again the level of tolerance is different from woman to woman. The courts have tried their best to define it every time they were faced with the variant situations. But again the term being subjective in nature while the courts being objective in nature, one can’t expect a lot from the outcome. Most often the outcome of cruelty is a bad blood between the two families though in a matrimonial alliance that is the one thing that needs to be sorted out. It is essential for the courts to keep in mind that when such delicate issues are in question there should be an exemplary punishment rather than a retributive one for the real agenda is to save the marriage.

Again, the dowry laws, if interpreted literally, become a tool in the hands of the every woman to threaten their husbands for every trifle domestic feud. This is now at rise and has become a ground for divorce amongst most married woman. The legislators should try to understand how the law is being misused and abused and should frame a better one.

Submitted by:
Suman Das III Year, BALLB,
Punita Parsoya III Year, BALLB
NLU Delhi