Aamina Maryam
ABSTRACT
The author underscores that the practice of dowry in marriage is a menace and is horrifying to the society at large. It disregards the dignity of women and endangers the sanctity of the sacred institution of marriage. A failure to bring in the promised dowry attracts torture, abuse (both physical and mental) - wherein the brides are beaten, locked up, starved, strangulated, burnt alive and sometimes that drives them to commit suicide. In order to protect women from this evil practice, the legislature introduced several legislations. In this context, the author analyses how these legislations are being misused, how the men are being victimized, its repercussions, and the approach of judiciary to prevent the same. The author also analyses the said gender biased legislation- as it ignores the fate of transgenders and other non binaries. However, the article also puts forth the fact that the Indian judiciary is on its way to legalise non binary institutions, as is seen in the historic judgement of Navtej Singh Johar v. Union of India which decriminalises S.377 IPC. The author further adds the need for introduction of more gender neutral laws and also the need to revisit existing laws in order to provide inclusivity and equal justice to all genders.
INTRODUCTION-
“A sacred oneness witnessed by fire itself”[1], marriage is considered as a bond that marks the beginning of a sacred union which completes a human being.[2]However, the concept of marriage has not been innately inherent to the Indian society. As an institution, it has undergone a radical evolution, the history of which speaks volumes of how it has conformed to the present needs that the society posed, becoming more concrete by gaining a legislative backing of the personal laws of the land.
Dowry, defined as “The property which a woman brings to her husband in marriage; more commonly called a ‘portion’”[3], is a system was not something which Indians were completely unaware of. The Atharva Veda refers to a royal bride who brought a dowry of about a hundred cows. Draupadi, Subhadra and Uttara also brought with them wealthy presents of horses, elephants and jewelleries as ‘varadakshina’[4] as a gift to their respective bridegrooms. Moreover, women also voluntarily received certain gifts in cash and kind which constituted her separate property and were meant as a security in times of adversity.[5] However, with time, both these practices got intertwined and later on assumed a horrific character, for the obtainment of which force and coercion became two handy tools, thereby rendering the sacred institution of marriages as nothing but a bargain.[6] Many cases of torture, abuse and domestic violence popped up where the brides were beaten, locked up, starved, physically and mentally tortured, strangulated, burnt alive and sometimes forced to commit suicide when they failed to bring the promised dowry.[7] This dark phase endangered the sanctity of this sacred institution, questioning its sustainability. It was to stop this socially acceptable practice of considering women as an object, something that the groom owned and disposed of at his own whims and fancies, that many laws were enacted to completely uproot these rampant vices.Marriages thus have been transmogrified from being religious and sacrosanct institution; something which uplifts to unquestionable divinity (a spiritual union) to a formal one i.e., sanctioned and regulated by the laws of the land.[8]Therefore, as pointed out by William Eskridge, marriage is “an institution that is constructed and not discovered by societies”[9].
The battle that women have waged against this ‘socially sanctioned discrimination’ is exemplary and as a result of this long drawn battle (which still continues at various levels), the Indian judiciary took a stern view regarding these atrocities and the Government of India promulgated new laws to deter the society from treading upon a wedded woman’s dignity. Consequently, Sections 498A and Section 304 B (which defines dowry death) were incorporated into the Indian Penal Code by Act No. 46 of 1983 and 43 of 1986[10], The Dowry Prohibition Act of 1961 and Protection of women from Domestic Violence Act of 2005 were passed “to strike at the roots of dowry menace”[11].
THE TRAGEDY OFDOWRY PROHIBITION LAWS IN INDIA-
In order to conform to the popular Indian traditions of making her marriage a success at any cost, an Indian woman quietly and resiliently bears all the inconveniences, hardships and even the abuses that her nuptial household poses on her.[12] The persecution of these ‘silent therefore, socially acceptable wives’ assumed such colossal a character in the patriarchal Indian society that the Indian jurisdiction was left with no other option than to penalise this persecution. Promulgated to protect a woman from the unjust demands posed on her by her connubial family, dowry prohibition laws have successfully fulfilled their sole purpose of instilling fear and thereby deterring the groom and his family from extorting money from the bride and her family. However, the one-sided nature of protection that the law encompasses has given a prejudiced mechanism to some women in fulfilling their unjust personal agenda against the groom’s family when the latter fail to provide absolute satisfaction to the former’s demands., The main purpose of the laws was to provide protection to all those women who had been left estranged by a marriage, but the way they have been interpreted and put to use by some people of the society has proved to be draconian for the men, placing them in immense peril.[13]
SUPPRESSION OF MEN’S RIGHTS-
On the face of it, the dowry laws aim at creating a forum of respite for such estranged women but the preferentiality that the law entails makes it downright biased and discriminatory for men. There is no alternative given to a man to absolve him of the accusations and prove his innocence. Even the FIRs lodged on trivial issues by the disgruntled wives[14] have the power to send an innocent man and his family behind the bars (the offence under Section 498-A being non-bailable), casting a scar on them which persists forever. The conventional presumptive stance[15] that the laws mandate in cases of dowry deaths are also too harsh and somewhat unfair as they convict a man and his family (even relatives) merely on grounds of suspicion.[16] Furthermore, on account of the offence being non-bailable and non-compoundable, the criminal case against the defendants continues, making the man and his family undergo immense stigmatisation and hardship.[17] The misemployment of the said provision unleashes a new legal terrorism, granting authority to unscrupulous persons to lodge frivolous complains which are not bona fide and have been filed with an oblique motive of wreaking personal vendetta or causing harassment.[18] The Supreme Court also states how exaggerated versions of the cases are reflected in many complaints that are made in the courts leading to insurmountable harassment, agony and ignominy of men.[19]It is therefore unfortunate that the laws which were meant to protect the women are being used as instruments of oppression.[20]
Once bitten is twice scared.[21]The malicious misuse of the provisions in way of falsely implicating the husband and his family, discourages people from believing in the concept of companionship and marriage altogether[22].
FAILS TO RECOGNISE THE EXISTENCE OF OTHER GENDERS
With a distinct place being assigned to “a relationship in the nature of marriage”[23] in a legal statute, India witnessed the dawn of a new era. Stemming from the Prohibition of Domestic Violence Act, 2005 (hereinafter, The DV Act), the concept of live-in relationships (a new social phenomenon commonly found in the West[24]) gained a more solid ground in the subsequent Velusamy v. Patchaiammal[25] and Indra Sarma v. V.K.V. Sarma[26] judgements (to be viewed from the lens of personal autonomy arising out of the right to life guaranteed under Article 21 of the Constitution[27]). The NALSA judgement[28] upheld the right of all persons to self-identify their gender, giving a legal acknowledgement to the fact that gender and sex are distinct, the former evidently being a fluid concept, possessing various dimensions. The year 2018 finally witnessed the quashing of the anti-sodomy law i.e., decriminalisation of S.377 of the IPC in the historic judgement of Navtej Singh Johar v. Union of India.[29]Even though India is yet to provide legal recognition to same sex marriages[30], the constitutionality provided to consensual sexual conduct between adults of the same sex heralded the beginning of a new epoch which didn’t confine the ideas of love and relationships to the two sexes only. Despite the fact that India now recognises the aforementioned relationships, laws like The DV Act, which provide a cure for the problems arising out of ‘marriages and relationships in nature of a marriage’[31],fail to mention the existence of the other genders, thereby undermining their existence. This in a way pigeonholes relationships and its related issues to men and women alone and thus feeds into obsolete heteronormative construct. The National Crime Record Bureau statistics[32] show a larger population of women as victims of domestic abuse for dowry and domestic violence but the matter that we are dealing here is that of the denial of the basic right to claim a legal recourse by other sections of a society (homosexuals, cis-men, non-binary persons, trans-genders, etc.), however miniscule the population may be. Professor V.S. Ramachandran, lauded as the ‘Marco Polo of Neuroscience’ by Richard Dawkins mentions in his book (named The Tell-Tale Brain) how different aspects of sexuality are set in motion during the phase of foetal growth itself- sexual morphology (external anatomy), sexual identity (what you identify yourself as), sexual orientation (what sex you are attracted to) and sexual body image (the brain’s internal representation of the body parts)[33]. While in most cases they harmonise during the developmental years (expressing itself as what is considered by the society as ‘normal’) but in some cases, they decouple, causing the individual to bend towards the other side of the spectrum (something which is not considered as normal but is highly normal and very much a part of the human existence and so it cannot be termed as non-natural).[34] It is absurd as to how the law which has been devised to guard the citizens against all kinds of discriminatory activities becomes the perpetrator of the same by overlooking a phenomena which is purely biological and thus completely out of human control. It is a sheer disregard of the right to equality enshrined in Article 14 of the Indian Constitution.
CONCLUSION AND SUGGESTIONS-
“The provision is intended to be used as a shield and not an assassin’s weapon”[35]. Time and again the highest court of the land has mandated for a serious overhauling of the dowry laws by the legislature[36] as it was not able to argue concretely against the misuse of the same. The major aim behind taking such stringent measures was to nip the social evils in the bud but the bold pursuance of this chronic evil by some sections of the society to fulfil their personal greed has started to erode the faith that people had in our legal system, thereby undermining the idea of impartial justice. Albeit the fact that the grounds for misuse should not hold that much a value so as to denude the dowry laws of its teeth, a provision to make sure that the laws don’t prove to be biting for an innocent individual and his family must also be ensured.[37] The sole objective of deterrence should be upheld, but at the same time, the complaints filed with false or exaggerated allegations having some other ulterior motives should also be curbed by way of penalising them.[38]
Moreover, in accordance with the pragmatic realities of the society, there is an immediate need for such laws to recognise the existence of the other genders and bringing them into the mainstream. New provisions should be inserted in order to protect them from the atrocities rising out of their relationships.
“It is better that ten guilty persons escape than that one innocent suffer.”[39] Therefore, following the argument put forth in the DK Basu v. State of Bengal, any matrimonial dispute should be first made to undergo dispute resolution mechanisms such as conciliation, mediation and counselling of the parties[40] (as enshrined in the preamble of The Family Courts Act of 1984). This will ensure that one final chance is given to the parties to salvage their marriage from becoming a prey to the complaints that are not substantially true, complaints filed in the heat of the moment or frivolous complaints which mostly lead to an irretrievable breakdown of the marriage on account of the stringency that they entail in the form of the offence being non-bailable, non-compoundable and non-cognizable. The award of such dispute resolution mechanisms should be made binding on both the parties so as to preserve and protect the institution of marriage and to promote the well-being of the innocent children who in this ongoing tussle and hostility become the hapless victims[41].Moreover, provisions should be made to curb the tendency to falsely implicate and rope in the relatives of the husband as accused[42] unless there is some substantial and specific mater.
[The author is a first year LL.B. student at Jindal Global Law School ]
[1] Subhash Chandra, Vivaha (Marriage System),http://sanskrit.du.ac.in/web/uploads/pdf/MA%20Documents/E-resources/Paper%20No%20-%20104/UnitIII_Vivaha.pdf [2]William Harman, THE HINDU MARRIAGE AS SOTERIOLOGICAL EVENT, Vol. 17, No. 2, International Journal of Sociology of the Family, 169-82, (1987), http://www.jstor.org/stable/23028457. [3] Dowry, Black’s Law Dictionary (4th ed., 1968). [4]Paras Diwan THE DOWRY PROHIBITION LAW, 27, No. 4, Journal of the Indian Law Institute, 564–71, (1985), http://www.jstor.org/stable/43953016 [5]P. S Jaswal & Nishtha Jaswal. ANTI-DOWRY LEGISLATION IN INDIA : AN APPRAISAL, 30 No. 1, Journal of the Indian Law Institute, 78–87, (1988),http://www.jstor.org/stable/43951146 [6]Supra note 4. [7]Id. [8]Grossi, Renata. Love and Marriage: In Looking for Love in the Legal Discourse of Marriage, ANU Press 17-38, (2014). Available at http://www.jstor.org/stable/j.ctt13www3x.5 [9] W N Eskridge jnr, A History of Same-Sex Marriage 79(9) Virginia Law Review 1485 (1993). [10] S. Sriranga, SUPREME COURT GUIDELINES GIVING NEW DIMENSIONS TO SECTION 498 A IPC - LEGISLATIVE HISTORY AND DEVELOPMENTS IN THE LAST THREE DECADES, http://justlaw.co.in/wp-content/uploads/2021/02/Article-SS-498-A-Dowry.pdf [11]Sushil Kumar Sharma v. Union of India, (2005) 6 SCC 281 (India). [12]Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, Volume 1, 190-91, (March 2003) available at https://www.mha.gov.in/sites/default/files/criminal_justice_system.pdf [13] Rajesh Sharma v. State of U.P., (2018) 10 SCC 472 (India). [14]Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 (India). [15]The Indian Evidence Act, 1872, §113B (India). [16]R. Deb, DOWRY DEATHS : BURDEN OF PROOF, 37, No. 4,Journal of the Indian Law Institute), 519-30, (1995). available at http://www.jstor.org/stable/43953251. [17]Vardaan Bajaj , The Grey Areas of Domestic Violence Laws in India, 2016 SCC OnLine Blog OpEd 14 [18]Supra note 12. [19]Preeti Gupta v. State of Jharkhand AIR 2010 SC 3363 (India) [20]Supra note 17. [21]Savitri Devi v. Ramesh Chand, 2003 SCC OnLine Del 483 (India). [22]Bibi Parwana Khatoon v. State of Bihar, (2017) 6 SCC 792 (India). [23]The Prohibition of Domestic Violence Act, 2005, §2(f) (India). [24] S. Khushboo v. Kanniammal & Anr. AIR 2010 SC 3196 (India). [25]D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469 (India). [26]Indra Sharma v. V.K.V. Sarma, (2013) 15 SCC 755 (India). [27]Areeb Uddin Ahmed, Live-in relationships have become part and parcel of life, approved by SC: Allahabad High Court, Bar and Bench (October 29, 2021, 8:29 PM),https://www.barandbench.com/news/litigation/live-in-relationships-have-become-part-and-parcel-of-life-approved-by-sc-allahabad-high-court. [28]National Legal Services Authority v. Union of India, (2014) 5 SCC 438 (India). [29]Navtej Singh Johar v. Union of India, (2018) 1 SCC 791 (India). [30]Prashant Jha, Law recognises marriages between only biological man and biological woman: Centre to Delhi High Court, Bar and Bench(October 25, 2021, 1:25 PM), https://www.barandbench.com/news/litigation/law-recognises-marriages-between-only-biological-man-and-biological-woman-centre-to-delhi-high-court [31]Supra note 22. [32]National Crime Records Bureau, Crime in India 2020 Statistics, Volume 1, https://ncrb.gov.in/sites/default/files/CII%202020%20Volume%201.pdf [33]Arunkumar and Sreeja v. The Inspector General WP(MD) No. 4125 of 2019 (India). [34]Id. [35]Supra note 11. [36]Preeti Gupta v. State of Jharkhand, (2010) 7 SCC 667 (India) and Sushil Kumar Sharma v. Union of India, (2005) 6 SCC 281 (India). [37]Law Commission of India, Section 498A IPC, Report No. 243 (August, 2012), https://lawcommissionofindia.nic.in/reports/report243.pdf [38]Id. [39]Maedot Teka, What is Blackstone’s Formulation in Criminal Law? (March 26, 2021), https://www.lawinfo.com/resources/criminal-defense/what-is-blackstone-s-formulation-in-criminal.html [40]D.K. Basu v. State of W.B., (1997) 1 SCC 416 (India). [41]Supra note 32. [42]Kanraj v. State of Punjab AIR 2000 SC 2324 (India).