PROJECT1: ARTICLE REVIEW ANTIDOWRY LAWS IN INDIA SUBJECT:FAMILYLAW SUBMITTEDTO:PROF.ARUNA VEKAT SUBMITTEDBY:NIKHILCHAINANI1STYEAR BA LLB (HONS)2017-5LLB-92 Contents I.INTRODUCTION..
3 II.SUMMARY OF THE ARTICLE. 4 II.1- Wary of anti- dowry law being ‘abused’ (The Indian Express). 4 II.2- Misuse of dowry laws and the failure of the system (The Hindu).
4 III.ANALYSIS. 5 III.1- section 498A of the IPC. 5 III.
1.1- Cases where section 498A has been misused. 5 III.1.
2- How does the misuse affect the family?. 6 III.2- Dowry Prohibition Act, 1961. 7 III.3- The Protection of Women from Domestic Violence Act. 7 IV.CONCLUSION.
. 8 I.INTRODUCTIONDowry is thetransfer of daughters parental property in the form of cash or kind at the thetime of the marriage of the daughter.
In India, the transfer of dowry to thebridegroom’s family puts financial stress on the bride’s family. According to the new laws the transfer ofdowry is now prohibited under section 498a of the Indian penal code and thedowry prohibition act 1961. Despite various anti- dowry laws, it still is oneof the common illegal practices. The object of these provisions is to preventand control the menace of Dowry.
But, many instances have come to lightwhere the complaints are not bona fide and have been filed with oblique motive.In thisproject I would be analyzing the widespread misuse of the anti dowry laws andits impact on the family of the victims. For this, I have taken an article onthe misuse of the anti dowry laws from the Indian Express and another articlefrom The Hindu. II.SUMMARY OF THE ARTICLEII.
1- Wary of anti- dowry law being ‘abused’ (TheIndian Express)Thisarticle mainly deals with the supreme courts directions to deal with complaintsregarding the complaints filed under section 498A of the Indian penal code;this is mainly because of a series of observations, that many of the complaintsfiled under section 498A are not bonafide. The Supreme Court ordered familywelfare committees to be set up in every district and every complaint receivedunder section 498A should be looked into by this committee. This committeeneeds to give a brief report on its opinion and also ordered that the policemust not arrest the accused till this report is generated.
Any bail plea filedshould be given at the earliest with a one days notice to the prosecutor.II.2- Misuse of dowry laws and the failure of thesystem (The Hindu)Thisarticle talks about the misuse of anti dowry laws. The Supreme Court observedthat the anti-dowry laws were being used as a weapon rather than as a shield.
This article gives a brief on the cases in the supreme court where the antidowry laws were misused and how it affected the families of the accused. Thisarticle also talks about the law commissions 243rd report whichtalks about positives and negatives of the anti dowry laws. III.ANALYSISIII.1- section 498A of the IPCTherehave been several enactments during the past few decades inorder to address theconcerns of the women. However in course of time, many reports of misuse ofthese laws have come which have not only affected the husband but also therelatives as the law does not state that it only punishes the husband of thevictim but also punishes any relative of the husband who has subjected her tocruelty.
In the case of Sushil KumarSharma vs. Union of India 1theSupreme Court observed that in many instances cases were being filed undersection 498A of the Indian penal code with oblique motive. The main reason forwidespread misuse of this law is because it is a cognizable, non compoundableand non bailable offence. This means that the accused can be arrested and putbehind bars without any warrant or investigation, the complaint cannot bewithdrawn by the petitioner, i.e., chances of living with one another reducesand the accused cannot get a bail directly, inorder to get a bail he needs toappear in front of the court and request for the bail whose decision isdependent on the discretion of the judge.
On a single complaint under section498A the husband and the alleged relatives can be put behind bars.2There have been many judgements in the high court’s and the supreme courts werethe judges have observed that the misuse of the anti dowry laws have not onlyaffected the husband but the entire family has been put behind the bars whereasthey haven’t done any wrong. Many judges are of the view that the growingmisuse of these laws can lead to a new legal terrorism.III.1.1- Cases where section 498A has been misusedInthe case of Jasbir Kaur vs.
state of Haryana- the high court observed that analienated wife may go up to any extend inorder to affect, defame and demean asmany relatives of the husband as possible.Inthe case of Kans Raj vs. State of Punjab- the Supreme Court was of the viewthat the relatives of the husband should not be held liable for the fault ofthe husband. The Supreme Court ordered that it should be proved beyondreasonable doubt and the relatives cannot be held liable by mere implications.
Inthe case of State vs. Srikanth- The Karnataka high court judges decided thatarresting the entire family which includes the brother and the sisters in lawhas to be reduced as in many cases the family was not liable for the crueltycaused to the wife by the husband and the wife had filed complaints against theentire family only with oblique motive.Inall of these cases we observe that the cases filed are not bonafide and theacquittal of the accused in such cases does not always wipe out thediscomfiture faced by the accused and the family of the accused during theperiod of the trial and also before the trial takes place. In most of thecircumstances widespread media coverage adds fuel to the fire and leads to thedefamation of the entire family. III.1.2- How does the misuse affect the family?Incases where the woman are intolerant, they may file an FIR on trivial acts,resulting in the immediate arrest of the husband or the family or both whichmay further lead to suspension or loss or work or defamation. This offencebeing a non bailable one leads to innocent people suffering in custody.
Furtherthe wife may claim for maintenance which can worsen the situation for thehusband and his family as in some many conditions the husband is notfinancially sound and the loss of job coupled with the payment of maintenancecan lead to financial stress on the husband and his family. She may sometimeschange her mind and forget the husband and the family or the husband mayrealize his mistakes and ask for pardon, but this is not possible due to thelegal obstacles attached to section 498A of the Indian penal code. Insituations where the women wants’ to withdraw the complaint, she cannot do soas the offence is considered to be a non compoundable one and the complaintcannot be withdrawn once filed. That means that the chance of uniting thefamily closes and she has no option other than staying with her biologicalfamily. Thelaw was created with the intention to be used as a guard and not as a counterweapon. The courts cannot have a straightjacket formula for cases related todowry and cruelty faced by the wife. The main objective of the law is to arriveat the truth and punish the guilty and not the innocent. The court should makeefforts to see that the innocent people are not made to suffer on account ofbaseless, oblique and malicious allegations.
III.2- Dowry Prohibition Act, 1961Accordingto the Dowry prohibition act of 1961 the punishment for the transfer of dowryfrom the wife’s family to that of the husband was punishable by imprisonment upto 6 months, or a fine up to an amount of Rs. 5000.3However due to the widespread misuse of the law the punishment was laterenhanced by the amendment acts of 1984 and 1986, the fine limit was increasedto Rs. 10000 or to the amount which is equivalent to the dowry which wastransferred and has also increased the maximum punishment to one year.Accordingto the dowry prohibition act all agreements with regard to the transfer ofdowry are considered to be null and void, i.
e., they cannot be enforced in thecourt. It also states that the person who receives the dowry amount needs totransfer it back to the woman within a time span of three months and in casewhere the bride hasn’t attained majority then it has to be transferred to herwithin a time span of three months on the attaining of majority. Failure tofollow this is considered to be a dowry offence and then this can be taken tocourt where the punishment is dependent on the discretion of the judges III.
3- The Protection of Women from DomesticViolence ActThisrecent law has made it even more accessible for women to misuse anti dowry lawsas this law assumes all men to be torturers and considers that only women arevictims. This law assumes the economic, verbal and emotional abuse suffered bywomen which makes it even more difficult as these abuses cannot be quantified.Many families who were charged under these laws have committed suicide as theywere unable to bear the torture inside the jail as well as the social trauma ofbeing defamed in the society.
IV.CONCLUSIONAll the entire antidowry laws assume that women are always true and have been abused by thehusband and his relatives. The husband or his relatives are arrestedimmediately after the FIR has been filed and can only be released from the jailon the discretion of the judge, by that time the husband and his family hasfaced enough criticism from the society in many scenarios have lost their jobsor means of livelihood. These laws need certain amendments where they arestringent enough for the husbands and his relatives not to violate them andalso the women cannot misuse these laws. According to me theview of the national commission for women’s report presented in the Rajya Sabhaon 7th September 2011 should be considered. The report gave thefollowing ways to amend the anti dowry laws.
· Section 498A of the Indian penal code,the protection of women from domestic violence act 2005 and the dowryprohibition act 1961 have certain commonalities and need to be synchronized andimplemented uniformly.· To protect the misuse of the laws thepolice should ensure that no arrest should be made without reasonableinvestigation and should only be made after the investigation provessatisfactory on the genuineness and bonafideness of the complaint on behalf ofthe wife and it should also be checked whether there is a need to arrest.· Mahila Desks should be available in allpolice stations and crime against women cells which would deal with thecomplaints filed by the women regarding dowry and cruelty. This will make surethat the matter is verified by the NGOs and the National commission for womenbefore the state machinery is set to use against the husband and the family.
This would reduce the defamation caused to the family of innocent husbands.· In case of disputes between the husbandand wife or the relatives’ of the husband and the wife, the first course ofaction should be mediation instead of filing a court complaint.· Professional counselors should beappointed and the counseling should be carried out be these professionalcounselors instead of police doing this work.By using theserecommendations we could reduce the misuse of anti dowry laws and also protectinnocent families being put behind the bars for a certain period of time.
Thiswould help in strengthening the legal system of the country and would make theanti dowry laws available to the actual women who have suffered cruelty fromthe husband or his relatives instead of the judges and the state machinerywasting time in solving cases which have been filed with oblique motives. Thiswould also help in the uniting of many families where the women wanted to filea dowry case with oblique motive which would later become irrevocable even onthe discretion of the wife. 1 2005 6 SCC 2812 http://legalserviceindia.com/article/l467-Misuse-of-Anti-Dowry-Laws.html3 Dowry prohibition act, 1961