A Theoretical Perspective on Dowry Deaths in India

RESEARCH METHODLOGY

• Area: Rights of women in India

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• Topic: A Theoretical Perspective on Dowry Deaths in India
• Objectives:

1. To understand the concept of dowry as has originated and evolved in India.
2. To conceptualize modern day consequences of dowry system.
3. To refer to various laws in India and find out reasons for ineffectuality.
4. To analyze the trend lay down in this regard by way of various judicial decisions.
5. To critically analyze the reasons for divergence between the object of law with regard to dowry death and the practice evolved by judicial precedents.

• Research questions:

1. What is dowry?
2. How has the concept of dowry evolved in India?
3. What are the various sections of the statutes applicable to the crime of dowry death?
4. What are the drawbacks with respect to judicial intervention in the cases of dowry deaths?
5. What can be done by the responsible authorities and by the society at large to prevent the occurrence of dowry deaths?

• Research tools: The research of this project was carried out with the help of internet and the books available in the library of N. L. U. so the sources are secondary in nature. Case study method has been used to study the concept of dowry death in practicality. In the whole project, uniform footnoting style is adopted in conformity with National Law University.

INTRODUCTION

In modern Indian political discourse the custom of dowry is often represented as the cause of serious social problems, including the neglect of daughters, sex-selective abortion, female infanticide, and the harassment, abuse, and murder of brides. Attempts to deal with these problems through legislative prohibition of dowry, however, have resulted in virtually no diminution of either dowry or violence against women. Marriages are made in heaven, is an adage.

A bride leaves the parental home for the matrimonial home, leaving behind sweet memories therewith a hope that she will see a new world full of love in her groom's house. She leaves behind not only her memories, but also her surname, gotra and maidenhood. She expects not only to be a daughter in law, but a daughter in fact. Alas! The alarming rise in the number of cases involving harassment to the newly wed girls for dowry shatters the dreams. In-laws are characterized to be outlaws for perpetrating a terrorism which destroys matrimonial home.

The terrorist is dowry, and it is spreading tentacles in every possible direction. Imagine the plight of a young woman, newly wed and thrust into an unfamiliar situation. She is surrounded by those she has only just met, her new husband and his family. They regard her as a means to an end – she is little more than a device by which to enrich them. She finds herself emotionally and physically harassed day and night because her parents cannot meet all of her in-laws’ dowry demands. Her parents have already exhausted much of their life savings and have little left to give.

But because she is a dutiful wife, a good daughter, an obedient woman, she stays at her in-laws, resigned to her fate. Then, one evening, while she is working in the kitchen, she feels a terrible chill. Someone has doused her with a pail of kerosene and another is about to throw a burning match. Can she save herself by taking off her clothes? No. When doused with kerosene or gasoline, a human being’s first feeling is sharp cold. Instantaneously, aided by one’s own body heat, the kerosene evaporates by drawing out the young wife’s warmth. The match is thrown.

She bursts into a ball of flames. A living human being, with a warm body, full of love, hope, and trust towards what should have been a new and exciting phase in her life – a life terminated in its prime – all for a motor car, a scooter, a bicycle, a refrigerator, or a television. This is the shocking reality of the contemporary dowry marriage in India and the frightening experience faced by many young women. Each year, thousands of these young women are murdered, through what has been dubbed “bride-burnings”, by husbands and in-laws seeking increased dowry demands.

While the practice of dowry is commonly perceived by the international community as one of Indian custom and culture, in its current form it is more accurately described as a social phenomenon believed to bestow a greater social status upon the recipient. Originally designed to be a gift given out of affection at the time of a daughter’s marriage, today the dowry system has turned into a perverted version of an ancient and respected custom. It has now become an obligatory transaction that places a heavy impact on a family’s financial and social status and a young wife’s welfare.

In the last four decades, dowry negotiations between the families of brides and grooms have escalated into continuing demands even after the agreed-upon amount is given. Even more disquieting are the increasing numbers and the ways in which young wives are killed when their husbands and in-laws are dissatisfied with the amount of dowry given or when additional demands are not met. Frequently, as the violence and abuse escalates, if the young wife is not murdered she is driven to commit suicide. In this project, I will discuss about the historical perspective of dowry as well as the modern evolution of this system.

Thereafter is a reference to its evolution and its consequences. It takes the position that the modern practice of dowry is actually the product of economic and socio-cultural processes and modern-day dowry is a relatively recent transformation into a means of extortion by the groom and his family, having no religious justification. Subsequently, this paper analyzes relevant Indian positive laws currently in place to prevent dowry deaths while the next part examines the reasons behind the unenforceability behind these laws. A chapter quantifies the phenomenon of dowry death and highlights the contemporary statistics.

A HISTORICAL PERSPECTIVE ON THE ORIGINS OF DOWRY

The definition of “dowry” is commonly understood to mean the property that a bride brings with her at the time of marriage. This custom, which traditionally was the voluntary giving of gifts by the bride’s father to his daughter, his son-in-law, and sometimes his daughter’s in-laws at the time of marriage, has been in practice since ancient times in India. However, like many other customs, it has evolved over the course of centuries. Because a Hindu marriage is a sanskara or sacrament, the tenth ordained by the sacred scriptures of the Hindus, an orthodox Hindu must marry.

The Hindu scriptures recognized eight forms of marriage, four approved and four unapproved. The two leading forms of marriage were the Brahma and Asura forms. In the most common of the approved forms, the Brahma form, the bridegroom is invited and the bride is given to him as a gift by her father. It was within this form of marriage that the tradition of giving gifts prevailed and the father would give his daughter as many gifts as he could afford. Likewise, of the unapproved, the most common was the Asura form which meant an outright purchase of the bride.

Accordingly, all marriages in which the bride was given without receiving any kind of consideration from the bridegroom came to be called Brahma, and where any payment was made, came to be known as Asura. The validity of the Brahma form of marriage is due largely to its ancient religious significance. In comparison, the Asura form of marriage was eventually condemned because it was in contrast to Hindu religious ideas . An approved marriage among Hindus has always been considered a kanyadan, an ideological principle, to which dowry, or gift-giving as it was originally intended, was inextricably linked.

A customary nuptial, kanyadan reflects the idea of the gift of a virgin daughter into marriage to the groom and his family. Articulated dowry demands were forbidden under this ideology, as the bride and the “dowry” were gifts to be freely and voluntarily given by the father of the bride. Combined with the fact that the giving of one’s daughter and her dowry constituted a holy act, dowry was originally intended to be limited to the holiest and highest of the four castes, the Brahmins, the priests of the Hindu caste system. The custom of dowry originated during the Vedic period of 1500-500 B. C. amongst the North Hindu Rajputs.

At the time of its origin it was practiced only among the Brahmin caste, and the religious significance arose from the ancient scripts of Manu, a holy text that ordained that dowry should be restricted to the Brahmin caste. Nonetheless, even in the early days, families who were wealthy enough to give gifts to the groom and the bride’s matrimonial family were allowed to do so. These high caste Hindus considered kanyadan as one of the sacred paths to salvation.  These gifts could hardly be called dowry within the contemporary meaning of the word as they were gifts freely given after the marriage as signs of affection.

Further, there is no account that grooms tried to make fortunes by demanding large amounts of valuable gifts. In those days, if any such request was made, it was rejected and deemed completely unreasonable since the prevailing view was that the groom was taking the bride away and stripping her family of her services. Thus, traditionally dowry was also viewed as a way to demonstrate one’s social status and caste. Even within the Brahmin caste, the giving of dowry demonstrated status and strengthened social ties. Unlike today’s practice, historically dowry rarely enabled individuals to advance up the social and economic ladder.

Moreover; these gifts were limited to those families who could freely give them and whose socio-economic status permitted it. B. Traditional Dowry Customs Historically dowry, or the act of kanyadan, had a ritual significance in controlling the marriage process and limiting the scope and scale of gift giving. When a woman married in India she was valued as the moral force of the family. Thus, the meaning behind dowry was fundamentally religious and symbolic, and the ritual Brahmin practice of kanyadan gave the bride power and status; accordingly, both she and her dowry were considered a sacred gift.

This meritorious act of kanyadan consisted of two aspects. Stridhan is the classical notion behind an Indian woman’s marriage wealth. Given directly to the bride, it was meant to be an asset to her in times of adversity and, under Hindu law, was her own property. Dakshina was a gift given out of affection from the family of the bride to the groom and included any continuous gifts made after the marriage. Hence, traditional dowry was formerly confined to specific gifts for specific purposes. Stridhan Literally, the word stridhan means women’s property. Given as a sign of affection and as a symbol of the natal family’s ability to take care of their daughter, this portion of the dowry was intended to equip a woman for her new life. The bride received these gifts, which consisted of mostly movable property such as household possessions, clothing, bedding, furniture, utensils, Literally translated, Stri mean women’s and dhan means property and precious jewelry, either before or after the marriage. Any gifts given to the bride by friends and other relatives before or after the marriage or at the time of the bridal procession were also considered part of stridhan.

The Dharmashastras, an ancient holy text of the Hindus, suggest that stridhan was the bride’s property over which she enjoyed complete control and which would provide her with financial protection in times of adversity. Thus, stridhan’s most critical concept was that the woman had absolute ownership of the property. This implied two important characteristics. First, a woman had full rights as to its disposal and division as it was her absolute property. She was therefore free to sell, give, mortgage, lease, or exchange it as she pleased. Second, upon her death, a woman’s stridhan passed to her own female heirs, usually her daughters. Before the Hindu Succession Act of 1956 (“Succession Act”), Hindu women were not allowed to inherit immovable property such as land or buildings; they were only allowed to inherit the stridhan of their mothers. Thus, stridhan was meant as a substitute for the non-inclusion of the daughter in the inheritance process. However, section 14 of the Succession Act now provides that “any property possessed by a female Hindu is held by her as full owner…”. The legislation applied to immovable property in addition to the movable property, acquired through any means. It also decreed that women were entitled to inherit equally along with their brothers, thus allowing them to inherit property from their fathers. Dakshina The Dharamashastras further stipulated that the meritorious act of kanyadan was incomplete until the groom was given a dakshina. In kanyadan, the bride was the gift given to the groom, and a gift or dan has to be accompanied by a subsidiary gift, i. e. dakshina. When a dakshina was given to a Brahmin priest, it was given without any material reciprocation.

The priest in turn, blessed the giver and deemed the gift sacred, thereby elevating the religious status of the giver. Thus, the giving of dakshina is based off the religious principle of gift-giving to a Brahmin priest. The dakshina was a nominal gift, usually some gold or cash, that was given purely out of affection directly to the groom. In earlier times, this bequest was voluntary, not compulsory, and the amount or lack of the gift did not create an impediment to the completion of the marriage. Again, the bride’s family gave dakshina only in accordance with their financial ability.

Therefore, associated with the religious symbolism of dakshina, traditional dowry also represented a gift of affection from the natal parents to their future son-in-law, consisting of celebrations, gifts, and money, for which they received blessings, status, and perhaps the knowledge of having arranged a secure future for their daughter. Dowry as a traditional concept, then, represented the women’s right to property, which would be transferred to daughters at the time of their marriage as a type of “pre-mortem” inheritance.

Since marriage is a required sacrament, the token dakshina given to the groom, as completion of the act of kanyadan, paved the pathway to salvation for the bride’s family. Originally constituting the inheritance of the bride, dowry, as it is known today, eventually took on the meaning of a gift meant for the couple. This gift, comprised of the stridhan belonging to the wife and the dakshina of the groom, was usually managed by the husband and could later be used by the couple as an inheritance or dowry for their own children.

Ideally then, the conjugal estate encompassed the dowry brought by a daughter and the inheritance given to a son at the time of their marriage. Hence, the dowry system as originally intended was meant to provide security to a new couple as they began their new life together.

• Modern Evolution of Dowry - It is essential to reiterate that the traditional ideology of the kanyadan marriage was practiced only among the high priestly Brahmin caste, and the wealthy upper castes.

Within this kanyadan marriage, stridhan was not part of the dowry as it was given directly to the bride and she could dispose of it as she saw fit. Dakshina symbolized an affectionate portion given to the future son-in-law in accordance with a family’s financial ability. This social transfer of wealth within a cultural framework provided not only the fulfillment of a material obligation of the bride’s family to the bride, but also served as the moral basis for the establishment of a relationship between the two families.

The once voluntary affectionate portion of Dakshina is what has transformed into today’s modern dowry. Consequently, dowry marriages are equated with Brahma kanyadan marriages. Nonetheless, not until the middle of the 19th century, did ordinary families became obligated to provide elaborate dowries, the cost of which might ruin a family, or the lack of which might impede the settlement of a their daughter’s marriage.

• Increase in Prevalence and Resulting Effects of Hypergamy - It was at this time that hypergamous marriages came into vogue in some regions, and ompetition for grooms came to include payments in the form of cash, precious metals, and other valuables. Hypergamy refers to the custom of marrying a man from a superior grade or clan with general notion being that a female should wed a superior male, thereby marrying into a higher division, but under no circumstances marrying into a lower one. A major consequence of hypergamy is status asymmetry between the male’s side and the female’s side, resulting in the notion that the groom’s family is superior to the bride’s family.

Thus the latter improve their status through marriage while the former secure cash, jewelry, and other costly items. Hence, the giving of dowry is integral to a hypergamous marriage and it was in northern India where this ideology was broadly practiced. In contrast, among the South Indian castes, as previously stated, the custom of bride-price was universal. This custom, if anything, resulted in favor of the female’s family. [28] However, because it later came to be condemned as an Asura marriage by the Brahmin law givers, bride-price became unpopular among most of Indian society. 29]The law givers interpreted the asura marriages as involving the sale of the brides and their own form, kanyadan marriages, as involving the gift of the bride. If a bride’s family accepted payment, the element of gratuity that is essential to kanyadan would be destroyed, and consequently the notion that the bride’s family should give but not receive became very popular. The commercial aspect of the bride-price transaction was regarded as a taint upon the sacredness of marriage.

Thus, kanyadan was preferred because it was free of this commercial element, and the Brahma form of marriage prevailed. Nonetheless, the ideology of the hypergamous kanyadan marriage allows families, by resorting to an attraction of wealth, to obtain desirable bridegrooms from higher classes and thereby elevate their own status. Furthermore, the kanyadan marriage requires the giving of dakshina. It is ironic that dakshina, or “bride-groom’s” price, was never deemed objectionable to the Brahma form, despite its similarity to bride price. In any event, the system of dowry spread throughout the Southern regions of India and a new status asymmetry was introduced among the dowry paying castes. To that extent, the South became much like the North and the modern day dowry system has widely replaced the institution of bride-price.

• Increase in Access to and Emulation of Higher Castes - The successful replacement of bride-price by dowry may be attributed to the fact that dowry became associated with prestige as a consequence of preference by the higher caste groups.

The key to the increase in dowry-giving throughout the regions of India may be that lower caste groups desired to emulate and aspire to the system of dowry as a way of following the example of the higher caste groups. Consequently, this may also explain the concomitant increase in the dowry phenomenon and resulting bride burning. It was not until the last few decades that emulation such as this has become a relatively new phenomenon. It has been noted that while both bride-price and bride-groom price, i. e. owry were followed in castes with an internal hierarchy, in the past, the dominant castes did not allow emulation by the lower castes. This sharp increase in emulation has been attributed to improved economic conditions and increased education, as well as greater access to the organized sector. Furthermore, since the time of Indian independence, increased inter-caste mixing in schools and in jobs has provided the lower groups with access to the higher groups, enabling them to observe their ways and adopt them.

This change from bride-price to dowry has been detrimental to women and their families because the contemporary dowry system has evolved into a practice that causes financial ruin to brides’ families, endangers young wives’ lives and well-being, and lowers the status of women, as well as that of their families. Finally, because marriage in India is believed to be a necessity in order to fulfill religious duties and is required by Hindi ideology, it is out of the question not to marry off a daughter. Thus, many families who are unable to afford elaborate dowries or meet continuing demands find themselves between the proverbial rock and a hard place.

MODERN DAY CONSEQUENCES OF DOWRY SYSTEM

Today, it is believed that the present dowry system has its origin in the twin Hindu marriage rites of kanyadan, of which stridhan was a part, and dakshina. However, to call stridhan, the presents made to the bride at or after the marriage, as a requisite part of dowry is a mistake, since it completely misunderstands the very concept of stridhan.

The stridhan given to a woman at the time of marriage cannot be equated to dowry because in traditional times it was a woman’s own property that fell under her absolute power, and moreover, these items were given directly to her. Modern-day dowry is not dakshina or stridhan. It is and has always been property that has been obtained under duress, coercion, or force, and cannot be categorized as presents made to the groom or bride. The distinction between the two is that dowry is essentially property which is extorted from the bride’s family while presents or gifts are property that is voluntarily given.

Furthermore, the amount of money and goods that are given in the contemporary dowry system are enormous, evolving into a few lakhs of rupees, as well as furniture, electronics, costly clothing, and jewelry. In addition, the bride’s family must pay all of the wedding expenses, including any travel and lodging needs of the groom and his party. Moreover, payment is demanded, directly or indirectly, by the groom and/or his kin. Modern-day dowry has become the property extorted from the father of the bride by the groom and his parents, and therefore cannot be considered presents given out of affection.

It is an important distinction in practice that modern dowry constitutes essentially extortion while the presents of the past were given voluntarily and willingly. Thus, modern day dowry is more in line with the unidirectional flow of cash and other goods from the bride’s family to the groom’s family, whereas in the South of India the modern phenomenon of dowry is a new development. The dowry that is given in the higher caste weddings in India today, and which has permeated to the lower castes, is an entirely new phenomenon and should not be related to the traditional ideas of kanyadan and stridhan.

Moreover, Vedic scholars boldly articulated that there is no reference to “dowry” in any of the Vedas or other ancient texts, thus destroying any religious sanction of the modern day practice. Nonetheless, apart from Indian society’s maintained continual religious sanctification of the modern-day dowry practice, the contemporary system has advanced due to factors such as the position of these women in the patriarchal joint family as well as their perceived subordinate position in Indian society; both of which result in a perpetual forced dependence on men and further lowers their status.

In addition, the traditional custom has been warped from gifts given only at the time of marriage into a propagation of events, at any of which “dowry” is expected to be and usually is demanded. A. Cultural Shift in the Perception of the Status of Women As a result of archaic laws and evolving customs pertaining to family and property, Indian society confers power and status to males and their families; conversely, females and families with females suffer automatically from low status. However, Indian culture did not always view women is such low esteem.

During the Vedic period from birth a female was treated equally with a boy. It was expected that she would be given an education and these educated girls had an effective say in the selection of their marriage partners. It wasn’t until later, beginning with the late Aryan period 300 BC that the status and role of women shifted dramatically due to increasing Brahmin influence, and women began to be viewed with decreasing status.

• The Subordinate Position of Women in Indian Society - The status of women today in Indian society is a fundamental reason why the modern-day dowry system continues to perpetuate.

The change from bride-price to dowry has been identified as the major catapult in decreasing the status of Indian women. The change from bride-price to dowry was an attempt to improve the social status of a family because dowry was associated with the higher social groups. As a result of this change to a hypergamous ideology where families of females are viewed lower on the status hierarchy than are families of males, a female also additionally suffers from a loss of status even within her natal family, as she is now perceived as a liability rather than as an asset. From birth she is viewed as a burden because her family will have to expend valuable resources for her care and upbringing although upon marriage she will leave her family to become a member of her husband’s family, and consequently be unable to support and care for them in their old age. Further, there is the looming obligation of having to amass large quantities of money and goods so that when she is old enough to marry, her new family is sufficiently induced to take on the burden of her maintenance.

For these reasons, Indians are more likely to abort a female fetus, murder female infants, and favor sons in terms of food, medical treatment, and education. The female infanticide is another effect of the dowry system in India. Medical clinics throughout the country provide amniocentesis tests to detect the gender of a fetus. Those fetuses that are female are often subsequently aborted because the eventual financial burden of a woman’s dowry makes a female infant highly undesirable.

Additionally, there continues to be a discrepancy in the sex ratio of the Indian population due to poor health care and nutrition for girls and women. Indeed, India is one of the few countries that have a higher population of men than women. The female-to-male ratio in India has actually decreased from 972:1000 in 1901 to 900:1000 in 2000. It is highly likely that a daughter will be fed poorly and rarely taken to a doctor when ill. Ironically, over the last century, healthcare has become widely accessible and women outnumber men in almost every other country.

It would seem to follow that the higher ratio of men to women in India would mean that there should be more of a demand for women, especially in a society that considers marriage a religious obligation. However, as the tradition of dowry has grown increasingly distorted over the centuries and women are perceived as a future liability, it has led many families to prefer to have only boys. Perpetuations of customs such as dowry reduce the status of women because people view the birth of a girl with apprehension and unhappiness.

Because marriage is controlled by the family groups, and a women is expected to not only obey her in-laws but also her husband, this provides for her perpetual dependence: when unmarried she is dependent on her father, after marriage she is dependent on her husband, and if widowed she is dependent on her son. Thus, due to her economic dependence and inferior social status, she suffers a great lost of self-respect, independence, and autonomy.

Nonetheless, because Indian society views females as a valueless burden and because Indian marriages have essentially become business deals made for profit, Indian society implicitly sanctions the contemporary practice of dowry. Consequently, enormous pressure is placed on brides and their families, resulting in their exploitation and an increase in dowry-related violence.

• Position of Indian Women in the Patriarchal Joint –Family The structure of Indian family life has also fostered modern development of the dowry system.

The extended or joint family has prevailed in India, particularly in the rural areas that constitute most of the country. Because of the dominance of the joint-family, the Hindu community is dominated by the thought that children are the property of their parents. Even after marriage, the son is expected to set a good example and obey his elders. When a woman marries in India, she moves into her husband’s home, and accordingly, she is expected to behave in a similar, if not more subservient, fashion as her husband. This provides the justification for the joint-family to assert control over the bride’s portion of the dowry, the stridhan.

Thus, the new wife often finds herself at the bottom of the pecking order and is forced to bear the brunt of the labor in the house. In addition, because begetting a son is the goal of a Hindu marriage and a woman reached her highest status within the family structure in her role as a mother to a son, the family heir, the mother-in-law’s need to be in a close relationship with her son puts her in a diametrically opposed relationship with the new bride. An Indian mother’s long-term status and financial security in the joint-family depends on her son because it is he who will provide for and take of her when her husband dies.

When the son marries, it is seen as a threat to her security and thus, the relationship between a daughter-in-law and mother-in-law is inherently strained because of the mother-in-law’s need to protect her source of security and power. As a result of the hierarchical structure of the joint-family, one way a mother-in-law asserts her power is via the dowry process. If she is unhappy and has not already harassed her daughter-in-law, her son will know about it, who in turn, because his loyalties lie with his mother, will harass his wife.

It is ironic that the key manner that the contemporary dowry system is maintained is via these relationships between the daughters-in-law and mothers-in-law. The daughters-in-law give in and allow this system to perpetuate because they too, one day want to be and will be in the position of their mother-in-law. Thus, in the absence of another source of security and livelihood, women end up supporting a system that has and continues to oppress them. Furthermore, even when women were recipients of the stridhan portion, this portion, could consist of only moveable property such as household items and jewels.

These items were not considered valuable in economic terms. This is because women in India did not receive land as dowry, and land is a premium asset in a society where agriculture is the primary means of generating wealth. As a result, the inheritance of moveable property that they did receive was consequently of little material value. In the Indian joint-family, land has been the source of property and inheritance for thousands of years. As state previously, property, before the Succession Act, could only be inherited by male heirs; thus the only “inheritance” that a daughter received was her dowry.

Consequently, the original concept of dowry was not an ill-intentioned one since it helped start a woman in her new home by providing amenities that would help her and her young husband in beginning a life together. Although the traditional dowry was intended to be a source of inheritance of gifts and money for the daughter, the conjugal control of a dowry interferes with the organizational power of the joint-family, especially because the new couple shares a home with the family of the groom. Given the structure of the joint-family, the dowry is of little material wealth and the Indian bride often receives little direct benefit from it.

Moreover, the young couple is not free to regard the property brought by the wife as their own marital product. The conjugal estate normally comes under the control of the patriarch of the joint-family and so brides are guaranteed no control of their dowry.

• Economic Shift from the Caste System to Class Divisions within the Social Structure - The institution of marriage of ancient and medieval India was most affected by the socio-political and economic changes which accompanied the establishment of British rule in India.

The period of British colonialism, from the late 17th to the mid-20th century, is frequently identified as the turning point at which the dowry system developed into its modern day form. This transition to dowry represented an influential historical turn between the values of marriage as a spiritual union and marriage as an economic union.

• Remnants from British Rule: The Impact of Capitalism One of the primary reasons why the meaning and practice of dowry has been so drastically altered is that class has replaced caste as a prominent measure of social status in modern India.

The old custom has thus been transformed from a religious symbol into a vital source of income for families desperate to meet pressing social needs.

As a result of this transformation, the giving of dowry among Hindus is now publicly, ideologically, and morally validated even though in early times the various aspects of dowry were voluntarily performed from love and affection in accordance with the financial position of the bride’s father. With the introduction of a cash conomy into India and the post-colonial economic crisis of the 1970s, combined with the already low status of women, dowry and dowry-related murders increased, becoming a ready form of wealth procurement to be used by the groom and his family. A resulting effect was the re-definition of the social hierarchy; whereas caste formerly determined social status, class began to take precedence. Thus, the centuries-old tradition of dowry became a means for an upwardly mobile family to demonstrate their wealth and make ties among higher social groups.

Instead of giving stridhan directly to the bride upon marriage, much of it began to be given to the joint-family. Moreover, the aspects of kanyadan and dakshina became entangled and came to be known as the single institution of dowry. During the period of British colonization, in order to obtain a dowry, compulsion, coercion, and force increasingly began to be used, and ultimately the majority of marriages arose from a bargaining-process. Introduction of forces such as monetization, education, and the organized sector by the British into India added to the burden on a woman’s family to improve their status.

Consequently, modern dowry can be viewed as entirely the result of British rule. The British introduced a higher standard of living and a more materialistic way of life. More importantly, the British exploitation of their powerful position imposed a sense of servility, humiliation, and inferiority on the Indian people. The Indian people resented their subservience and became increasingly class conscious in their values and their way of life. Indian society became increasingly aware of the potential of money and conscious of a materialistic approach towards life.

These two items coupled together, generated a demand for ready cash in addition to gifts in the marriage negotiations. Encouraged by these new cultural values of the modern world, the desire to acquire unearned wealth, under a misguided feeling that such a transaction was a blessing of God, gained legitimacy and acceptance among Hindu society. Deeply ingrained Hindu customs that emphasized moral character, honesty, and service to God ultimately became polluted by an increase in “competitive spirit, emotional compulsions, and unaccounted bribery”, values that resulted indirectly or directly by the British domination.

The colonialism of India was new unnatural, element that threw the natural order out of kilter, and Indian society reacted with increased competitiveness, which ultimately revealed itself in the perversion of the old dowry custom.

• Marriage as a Market Transaction - Due to the impact of high prices on the standard of living and the longer time period over which dowry may be demanded, it has become increasingly difficult for families to spare enough money to adhere to this custom, especially given its present expectations.

The amount of dowry given can either typically depend on the financial status of the bride’s family, today an element whose consideration has increasingly diminished, or on the explicit and direct demands made by the groom’s parents. It is this second and growing phenomenon that leads to the escalating dowry-related violence, and victimization of the wife and her family. Upper class families generally give ornaments, such as gold or silver, inset with costly stones, like diamonds, sapphires, or rubies.

These families can also afford and do give furniture, utensils, crockery and as well as costly items such as radios, sewing machines, refrigerators, and even vehicles of transportation. Lower class families, whose income is generally less than a hundred rupees per month, give a few silver ornaments. Among these poor people, utensils and crockery are considered essential because they feel that the woman must have the kitchenware to cook food. Due to their low economic position, it is in these poorer classes that this custom has become difficult to maintain.

Families will often borrow money to fulfill their desire to give more and more to their daughters. However, they then incur heavy debts that can take years to repay. Middle class families however cannot afford elaborate ornaments, and generally give ornaments of gold inset with only ordinary stones or those purely of gold. Education and an expanding economy, as well as increased government employment, have created this urban middle class. It is estimated that eighty-five percent of dowry deaths and eighty percent of dowry harassment or violence situations occur in either the middle or lower classes.

Indeed, this phenomenon seems to be most prevalent in the emerging upwardly mobile middle class and the highest increases are not among the poorest but among those with middle incomes. With urbanization and pressures of a cash-based economy, dakshina is emphasized and stridhan has become less important. Dowry is seen as a replacement for the money that will be used to educate the groom so that he can then move among a higher class and later command a higher dowry.

Moreover, as the groom becomes accustomed to a higher standard of living, and thus certainly have more needs for ready cash, he will come to expect that those needs will be met through dowry received upon his marriage. Furthermore, today, as opposed to Rajput times and as practiced by the Brahmins, the bride's family uses the practice of dowry to attract families of higher status and power than their own. These connections are used to enhance the status of the bride’s parents and achieve material gains.

The amount of dowry that a man of a particular profession or position in life can command fluctuates just like any other market commodity. It is common knowledge that implicit price tags are attached to prospective grooms depending on their education, status, occupation, and income, as well as any other factors. For instance, men having government jobs, or being in a profession, such as CPAs and engineers, and living in cities have prestige and are considered to be in short supply, thus they can command higher dowries.

Also, the higher the education of the groom and the more prestigious the profession, i. e., doctors and lawyers, the higher the dowry demands. These potential grooms are considered such a valuable commodity that the parents of girls feel they must be competitive if they want to secure such a “commodity” for their daughter. In contrast, women are reduced to the level of chattel, to be sold or bartered away according to the whims of the men and their families.

It is as if a discount sale coupon is tagged on to the brides in order to engage them in this highly competitive matrimonial market to make them more marketable. While natal families do have to bear heavy costs, for some there is some benefit in engaging in this modern dowry system. If the potential in-laws have a son who is educated, earning a salary, and moving among a wealthier group of people, the potential bride’s family may try to move their family’s position into the in-laws higher group by virtue of the daughter’s marrying into this group.

Because they are outsiders and of a poorer background, they will have to offer a higher dowry to accomplish the social climb. However, once they are part of the new social group, they can demand an equally high or higher amount of dowry for their son when he marries. One might think that increasing literacy and education would reduce the effect of dowry however it has actually raised dowry demands and increased economic pressures on natal families. Families of higher-educated girls seek higher educated boys, and the higher education adds value to the boy’s worth as a market “commodity”.

Thus families are hit with a dual price-tag because they not only have to pay for the higher education for their daughter, but the educated potential groom, as a more valuable commodity, can also command a higher price in the matrimonial market. Because the Indian marriage market is essentially an implicit market in bride and groom attributes, the resulting market equilibrium appears to associate a price with each match. Consequently, the amount of dowry given is often considered this equilibrium price given for a “good” match. Ironically, these are not good matches as the girl’s best interests are rarely, if ever taken into account.

These marriages, rather than being the religious sacrament stipulated by the Dharmashastras, have become a commercial vehicle to fulfill materialistic needs of grooms and their families and social needs of bride’s families without ever taking into account any needs of the brides. 3. Proliferation of Events where Dowry is bestowed Dowry giving and taking in India has now come to cover many different things in different circumstances. A significant feature of dowry is that it has come to constitute an elaborate series of payments extending over a long period of time.

It no longer merely means the property that a bride gets at the time of her marriage, but has been extended to include items or property given well before or long after the marriage. Furthermore, families now have more opportunities to take advantage of the dowry-giving custom. In some Indian states such as Punjab and Haryana, a pre-engagement ceremony, referred to as Thaka has become prominent. The Thaka ceremony affirms the relationship established between two families and signifies that negotiations have been initiated for a matrimonial alliance.

The potential bride’s parents, along with a few close relatives, visit the home of the man to whom they expect their daughter will be shortly engaged. They take plenty of sweets and fruits, and cash for the potential groom-to-be, as well as for his parents and close relatives. If there is no Thaka ceremony, the first series of payments commence with the engagement ceremony and conclude with the departure of the bride to her matrimonial home. In the Hindu community, there is a formal engagement ceremony before the marriage here goods (“gifts”) are customarily given. If there are any festivals or holidays between the Thaka ceremony or engagement ceremony and the actual wedding, the bride’s parents will also send gifts to the groom’s parents. The actual day of marriage is also an obvious time when gifts will be asked for and given. Today, the arrival of the bride in her new home, a day that in ancient Indian times was a blessing for the groom’s family to welcome their bow or daughter-in-law, today constitutes yet another situation where the bride will be expected to arrive bearing gifts.

The second series of payments can persist long after the marriage, sometimes continuing for months, even years after. At the very least, throughout the first year of marriage, festive and religious holidays mark situations where the bride’s parents feel obligated to send presents, regardless of whether it is demanded by the groom’s parents. Especially if the girl is pregnant, the groom’s family will also demand some gift or payment. This sending of presents is not done out of affection, but for fear of social condemnation that good dowry was not given, or out of fear that their daughter may be harassed and sent back to her natal home.

In addition, these dowry demands not only place pressure on a new bride and her parents, but can also involve her entire extended family. C. Violent Derailment of the Traditional Dowry System The abuse of the custom of dowry has eroded and aborted the original meaningful function of traditional dowry, i. e. , kanyadan, and the giving of stridhan and dakshina. The once intended safety net for the bride and the gift of affection for the groom has corrupted into a price-tag for the groom and a noose for the bride.

No longer merely a system of giving voluntary gifts, the modern dowry system has become Indian society’s primary method for manipulating one’s family status and wealth. It is largely distinguished from the older traditional dowry system by the presence of compulsion, which is largely due to the fierce competition in the marriage market. Today, the underlying motivation behind the giving of dowry is the need of the bride’s family to improve their family standing or status. Stridhan, the classical notion prescribing a woman’s marriage wealth, has been violated in four respects in contemporary Indian society.

First, any item that is transferred as stridhan along with the bride at the time of marriage, and in ancient times was given directly to her, may now be taken into sole possession by the groom and his family. Second, the groom’s parents use the stridhan portion brought by their daughter-in-law, to enhance the dowry given in acquiring husbands for their own daughters, if they have any, or for any other conceivable purpose. Third, dowry demands continue even after the marriage and can be perpetuated indefinitely, thus always being a ready source of cash and the latest materialistic goods.

Finally, spouting religious meaning behind this taking of dowry, the groom’s family justify their demands; however the cash transaction requested by and ultimately given to the groom’s parents is not mentioned anywhere in the traditional Brahman dictum. In earlier times a women was not allowed to inherit property, thus the stridhan portion was meant to provide her with a share of her parental wealth. Thus “dowry” was a social means of transferring the natural rights of inheritance to a daughter via the marriage process.

Thus, the original underlying motivation was to provide the bride with a pre-mortem inheritance and to overcome the restrictions of the early Succession laws. However, the Succession Act of 1956 decreed that women were entitled to inherit equally along with their brothers, thus allowing them to also inherit property. It recognized an equal right of Indian women to inherit property and for the 1st time conferred absolute ownership to her. Due to this legislation, the traditional reasons underlying the giving of stridhan, to safeguard the woman and her economic well-being, have ceased to exist.

Hereinafter, a model of dowry deaths is discussed whereby various concepts pertaining to victimization of women for dowry are discussed. The model falls into two parts, the first of which, influenced by socio-cultural and victimological concepts, attempts to identify the kind of marriage arrangements that lead to a potential problem. These are groups of variables 1-9 in Figure 1. The second part of the model is influenced by routine activity and rational choice perspectives, and attempts to deal with the more dynamic aspects of the phenomenon after marriage (groups 10-14).

Groups 1 and 2 cover the socio-cultural factors (patriarchal traditional society; dowry system) that provide the context for the development of dowry problems. Dowry problems frequently arise within urban, middle class families with conservative outlooks. Groups 3,4, 5 and 6 concern the kinds of family and the needs of both the husband's and wife's families before the marriage. Economic needs are important for both families. The husband's family may be trying to obtain resources through the dowry, by capitalizing on the husband's earning power. The wife's family may be trying to protect resources.

The relative status of the families is also relevant, with the husband's family generally being more influential. Groups 7 and 8 deal with the personal characteristics of the wife and the husband. Wives are more likely to be victimized if they are submissive, young and less educated. Husbands are more likely to be aggressors, or to fall in with their parent's aggression, if they are weak and emotionally dependent. Husbands who are older and better educated than their wives are more likely to dominate their spouses and commit acts of violence against them.

The marriage contract (Group 9) attempts to reconcile the needs of the husband's and wife's families. The kind of arrangements that appear to lead to trouble include, for example, a large dowry not paid on full at the time of the marriage and dowries with non-cash items over which disagreements arise about the quality of the goods supplied. Misunderstandings are likely to be greater if the families do not know each other well and have used a middleman to arrange to contract Group 10 deals with the living situation after marriage.

In the joint family system, quarrels may center around the wife's insufficient dowry especially when the wife is unemployed and not well enough trained in housework to satisfy the husband's family. As marriages are generally arranged, the chances of incompatibility between the husband and wife are high and the probability of disputes correspondingly great. The bride's parents will generally be unsupportive because of the prevailing belief that once a girl is married her parents should not interfere in her new life, even if she comes to them for help.

Even where they are supportive, they cannot come quickly to help her if they live at a distance. The risk of physical abuse is increased when the husband's family lives in a quiet neighborhood or if there are no neighbors. That bride burning is basically an urban phenomenon may be partly due to the busy life in cities neighbors tend to have little time to get involved in each other's affairs. The busy routines of urban dwellers thus leaves unguarded the defenseless young bride.

Groups 11 and 12 deal with the reactions of the husband and wife after marriage. The wife's personality will affect her reaction to her marital problems. She might tolerate the harassment and mistreatment so as not to bring any shame on her parents. Since she is dependent on her husband both emotionally and economically she may completely loose confidence in herself. The fact that in many cases the husband has not chosen the wife may cause him much unhappiness because he finds her unattractive or incompatible with his friends.

These feelings of frustration may fuel his demands that the wife get more money from her parents. Groups 13 and 14 deal with the husband's and wife's decision making. If pressures upon the wife became intolerable she may decide to take matters into her own hands and end her life. The husband on the other hand, as a result of dissatisfaction at work and in his married life, may have affairs with other women, get into other activities like gambling and take to alcohol or drugs. He may choose to deal with his difficulties and frustrations by plotting to kill his wife.

This decision will be influenced by a perceived low risk of detection, the availability of an easy method of killing his wife, and the possibility of solving his problems by marrying some other woman with a better dowry settlement.

Yet there is nothing to prevent the groom and his family from making initial exorbitant demands, continual demands, or using the dowry money as they do not see fit, nor do previous fulfilled demands guarantee that future demands will not be made. As a result, dowry deaths are a consequence of the intense competitive expansion of capitalism within an intricate web of hierarchical relations, resulting in a widening gap between the rich and the poor, intensified gender stratification, and India’s subordinate status in the world market.

In this extremely competitive environment, dowry demands are one method of attempting upward mobility. The modern-day dowry system, as a perverted version of the past, leads to the impoverishment of the bride’s family, allows for the materialistic enrichment of the groom’s family, values the groom as a market commodity, and most importantly, rarely buys security and peace for the bride.

ILLEGALITY OF PRACTICE: INDIA’S POSITIVE LAWS

On May 20, 1961, the Parliament of the Central Government of India recognized that the practice of giving and taking dowry was “evil” especially to the extent that it involved money or goods. For that reason, they enacted the Dowry Prohibition Act (“the Act”) with the sole objective of eradicating the giving or taking of dowry. The Indian Parliament took further steps, by amending the Indian Penal Code (“IPC”) in 1983 and again in 1986 with the Indian Evidence Act (“IEA”), and the Code of Criminal Procedure (“CCP”), to reduce the dowry murder phenomenon by criminalizing dowry related violence against women. A. The Dowry Prohibition Act of 1961 The Act does not seek to completely abolish the custom of giving gifts upon marriage but to restore the dowry system to its original traditional form and purposes.

Accordingly, the statutory definitions do not include the gratuitous stridhan portion of dowry; however, these gifts must be given at the time of the marriage and not before or after. Although the generally accepted definition of dowry is the “property that a girl brings with her at the time of marriage,” the 1961 Act defined the offense of giving or taking ‘dowry’ as “including any property or valuable security given or agreed to be given, at or before the marriage as consideration for the marriage…”. This language, however, proved to be problematic as an effective method of prohibiting dowry.

For example, in the original definition clause, the Act stated that “any present given or taken by either party, either party’s parents or by any other person directly at the time of marriage was not dowry unless it was taken as consideration for the marriage". The statute, as worded, only prohibited exchanges that were given or agreed to be given as consideration, and did not include any gifts, in the form of cash, ornaments, clothes, or other articles, given at the time of a marriage to either party.

Consequently, the definition of dowry was narrowed, and any gifts given before or upon and any cash/expenditures made after the marriage, were excluded and could not be violations of the Act. As evidence of this gap in coverage, the Delhi High Court, ruled in Madan Lal Ors v. Amar Nath, that “property may pass hands subsequent to marriage, even months or years after it, merely to save the marriage from being broken…or to save the wife from harassment, Given the ineffectiveness of the language and the inadequacy of the 1961 law in decreasing the dowry phenomenon as well as in countering the increasing violence and harassment inflicted upon young women, the women’s movement in India campaigned for law reform.

As a result, the Indian legislature enacted amendments in 1984 and 1986 with the intention of making the law more stringent and, therefore more effective. The 1984 amendment broadened the scope of the original act by substituting the words “in connection with the marriage” for the original “as consideration for marriage. ” The definition was broadened again in 1986 to include presents given “any time after the marriage” within the definition of dowry.

Furthermore, the 1986 amendment raised the minimum punishment for taking or abetting the taking of dowry to five years and a fine of 15,000 rupees. Additionally, it shifted the burden of proving that there was no demand for dowry to the person who takes or abets in the taking of dowry, made punishable by imprisonment, for a term of six months to five years, or alternatively, with a fine of 15,000 rupees, any advertisement which related to the offering of property in consideration for marriage was made punishable by imprisonment, and made bail unavailable in dowry cases. 46] As a result of the 1984 and 1986 amendments, the current Act outlaws the giving, taking, or demanding of dowry, which it defines as any property or valuable security given or agreed to be at, before, or after the marriage in connection with the marriage.

Thus, the Act provides greater room for the exercise of judicial discretion in declaring a larger range of “giving” as dowry. Nonetheless, even given the expansion of the definition of dowry, the current Act has been widely criticized for being ridden with “legal loopholes. For example, the Act prohibits dowry but allows the giving of gifts at the time of the marriage. Moreover, the definitions do not clearly define the terms “consideration,” “gift,” or “present,” making it difficult to determine what constitutes consideration and how that differs from a gift. Matters are further complicated by the Act’s use of the word “dowry” to describe not only what the bride’s parents give to the groom or to their daughters-in-laws but also what the groom’s parents give to the bride and their sons-in-laws.

Consequently, the charge of “dowry” can be easily avoided by offering the items or cash carefully as a gift so as not to invoke any characterization of the property as compensation. To counteract the ambiguity of this language, yet not proscribe the giving of gifts altogether, some have suggested imposing a limit on the aggregate value of such gifts. However, others have agued that this is just as impractical for essentially the same reason that the Act remains unenforceable: corruption is the norm. As a result of the vagueness and under-inclusive nature of the statutory language, the Act still remains argely ineffective. Thus, Indian families can continue to demand dowry money without fear of reprisal. In practice, states may amend the statute if they wish, without restriction for instance by including explanations and definitions for certain terms in their local version of the statute. For example, the state of Haryana amended the Act by widening the definition of dowry. The definition included any marriage expenses incurred directly or indirectly at or before the marriage or in connection with any of the Thaka, Sagai, Tikka, Shagan, and Milni ceremonies.

Moreover, unlike the federal act, any gifts to either party in the form of cash, ornaments, clothes or other articles are also considered dowry. Further many state statutes, unlike the Act, have imposed upper limits on the amount of marriage expenses and presents that are allowed to be given. Haryana further prohibited any marriage expenses that were greater than five thousand rupees, restricted the marriage party to twenty-five members and the band to eleven members.

Finally, while states have the power to amend, it should also be noted that the states are not required to incorporate any federal amendments made to the Act; For example, when federal amendments were added to the Act in 1984, Haryana did not incorporate these into its state act. B. Additional Corresponding Legislation In 1983, the Indian Penal Code, the Indian Evidence Act, and the Indian Criminal Procedure Code were changed simultaneously to deal more effectively not only with dowry-related deaths, but also with cases of cruelty against married women.

The 1986 Amendment to the Act also proposed the new offence of “dowry death” to be created in the Indian Penal Code as well as any other corresponding legislation. Indian Penal Code In 1983, Parliament amended the Indian Penal Code to outlaw dowry related cruelty by the husband or his relatives by enacting § 498-A as part of the Criminal Law Act (“Criminal Act”).  The Criminal Act created the offense of cruelty, and provided for the punishment of a husband or his relatives if they harass a woman in order to coerce her to meet any unlawful demand for property. Additionally, §306 created the offense of “abetment to suicide” hich provided that anyone who instigates another to commit suicide will be liable for abetting the commission of a suicide when the suicide results from such instigation. Further, in 1986, a new offense of “dowry death” was created under IPC § 304-B, allowing for an irrefutable presumption previously unknown to Indian jurisprudence. It provides that when a woman’s death occurs under questionable circumstances and it is proved that she was subjected to dowry-related cruelty or harassment, it shall be presumed that the husband or any of his relatives committed the offense of dowry death and caused her death.

Moreover, it stated that the minimum punishment for committing dowry death was imprisonment of a minimum of 7 years to life. The Judicial Response The attitude of the judiciary at the apex level has -been in favor of women, the crux of which can be condensed to Justice Mohan's judgment in Panniben vs. State of Maharashtra: "Every time a case relating to dowry death comes up it causes ripples in the pool of conscience of this court. Nothing can be more barbarous, nothing could be more heinous than this sort of a crime ... "

The 1983 Amendment Act also inserted Section 113-A in the Indian Evidence Act which raises presumption as to abetment of suicide by a married woman. It lays down that when the question is whether commission of suicide by a woman had been abetted by her husband or any relative of her husband, and it is shown that she had committed suicide within a period of seven years of marriage from the date of her marriage, that her husband or such, relative of her husband had subjected her to cruelty, the court

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