PROJECT (HONS) 2017-5LLB-92 Contents I.INTRODUCTION.. 3 II.SUMMARY OF THE

 

PROJECT
1: ARTICLE REVIEW

 

ANTI
DOWRY LAWS IN INDIA

We Will Write a Custom Essay Specifically
For You For Only $13.90/page!


order now

 

 

SUBJECT:

FAMILY
LAW

 

SUBMITTED
TO:

PROF.
ARUNA VEKAT

 

SUBMITTED
BY:

NIKHIL
CHAINANI

1ST
YEAR 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.INTRODUCTION

Dowry is the
transfer of daughters parental property in the form of cash or kind at the the
time of the marriage of the daughter. In India, the transfer of dowry to the
bridegroom’s family puts financial stress on the bride’s family.  According to the new laws the transfer of
dowry is now prohibited under section 498a of the Indian penal code and the
dowry prohibition act 1961. Despite various anti- dowry laws, it still is one
of the common illegal practices. The object of these provisions is to prevent
and control the menace of Dowry.  But, many instances have come to light
where the complaints are not bona fide and have been filed with oblique motive.

In this
project I would be analyzing the widespread misuse of the anti dowry laws and
its impact on the family of the victims. For this, I have taken an article on
the misuse of the anti dowry laws from the Indian Express and another article
from The Hindu.

 

 

 

 

 

 

 

 

 

 

 

II.SUMMARY OF THE ARTICLE

II.1- Wary of anti- dowry law being ‘abused’ (The
Indian Express)

This
article mainly deals with the supreme courts directions to deal with complaints
regarding the complaints filed under section 498A of the Indian penal code;
this is mainly because of a series of observations, that many of the complaints
filed under section 498A are not bonafide. The Supreme Court ordered family
welfare committees to be set up in every district and every complaint received
under section 498A should be looked into by this committee. This committee
needs to give a brief report on its opinion and also ordered that the police
must not arrest the accused till this report is generated. Any bail plea filed
should be given at the earliest with a one days notice to the prosecutor.

II.2- Misuse of dowry laws and the failure of the
system (The Hindu)

This
article talks about the misuse of anti dowry laws. The Supreme Court observed
that 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 anti
dowry laws were misused and how it affected the families of the accused. This
article also talks about the law commissions 243rd report which
talks about positives and negatives of the anti dowry laws.

 

 

 

 

 

 

 

 

 

III.ANALYSIS

III.1- section 498A of the IPC

There
have been several enactments during the past few decades inorder to address the
concerns of the women. However in course of time, many reports of misuse of
these laws have come which have not only affected the husband but also the
relatives as the law does not state that it only punishes the husband of the
victim but also punishes any relative of the husband who has subjected her to
cruelty. In the case of Sushil Kumar
Sharma vs. Union of India 1the
Supreme Court observed that in many instances cases were being filed under
section 498A of the Indian penal code with oblique motive. The main reason for
widespread misuse of this law is because it is a cognizable, non compoundable
and non bailable offence. This means that the accused can be arrested and put
behind bars without any warrant or investigation, the complaint cannot be
withdrawn by the petitioner, i.e., chances of living with one another reduces
and the accused cannot get a bail directly, inorder to get a bail he needs to
appear in front of the court and request for the bail whose decision is
dependent on the discretion of the judge. On a single complaint under section
498A the husband and the alleged relatives can be put behind bars.2
There have been many judgements in the high court’s and the supreme courts were
the judges have observed that the misuse of the anti dowry laws have not only
affected the husband but the entire family has been put behind the bars whereas
they haven’t done any wrong. Many judges are of the view that the growing
misuse of these laws can lead to a new legal terrorism.

III.1.1- Cases where section 498A has been misused

In
the case of Jasbir Kaur vs. state of Haryana- the high court observed that an
alienated wife may go up to any extend inorder to affect, defame and demean as
many relatives of the husband as possible.

In
the case of Kans Raj vs. State of Punjab- the Supreme Court was of the view
that the relatives of the husband should not be held liable for the fault of
the husband. The Supreme Court ordered that it should be proved beyond
reasonable doubt and the relatives cannot be held liable by mere implications.

In
the case of State vs. Srikanth- The Karnataka high court judges decided that
arresting the entire family which includes the brother and the sisters in law
has to be reduced as in many cases the family was not liable for the cruelty
caused to the wife by the husband and the wife had filed complaints against the
entire family only with oblique motive.

In
all of these cases we observe that the cases filed are not bonafide and the
acquittal of the accused in such cases does not always wipe out the
discomfiture faced by the accused and the family of the accused during the
period of the trial and also before the trial takes place. In most of the
circumstances widespread media coverage adds fuel to the fire and leads to the
defamation of the entire family.

 

III.1.2- How does the misuse affect the family?

In
cases 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 which
may further lead to suspension or loss or work or defamation. This offence
being a non bailable one leads to innocent people suffering in custody. Further
the wife may claim for maintenance which can worsen the situation for the
husband and his family as in some many conditions the husband is not
financially sound and the loss of job coupled with the payment of maintenance
can lead to financial stress on the husband and his family. She may sometimes
change her mind and forget the husband and the family or the husband may
realize his mistakes and ask for pardon, but this is not possible due to the
legal obstacles attached to section 498A of the Indian penal code. In
situations where the women wants’ to withdraw the complaint, she cannot do so
as the offence is considered to be a non compoundable one and the complaint
cannot be withdrawn once filed. That means that the chance of uniting the
family closes and she has no option other than staying with her biological
family.

The
law was created with the intention to be used as a guard and not as a counter
weapon. The courts cannot have a straightjacket formula for cases related to
dowry and cruelty faced by the wife. The main objective of the law is to arrive
at the truth and punish the guilty and not the innocent. The court should make
efforts to see that the innocent people are not made to suffer on account of
baseless, oblique and malicious allegations.

III.2- Dowry Prohibition Act, 1961

According
to the Dowry prohibition act of 1961 the punishment for the transfer of dowry
from the wife’s family to that of the husband was punishable by imprisonment up
to 6 months, or a fine up to an amount of Rs. 5000.3
However due to the widespread misuse of the law the punishment was later
enhanced by the amendment acts of 1984 and 1986, the fine limit was increased
to Rs. 10000 or to the amount which is equivalent to the dowry which was
transferred and has also increased the maximum punishment to one year.

According
to the dowry prohibition act all agreements with regard to the transfer of
dowry are considered to be null and void, i.e., they cannot be enforced in the
court. It also states that the person who receives the dowry amount needs to
transfer it back to the woman within a time span of three months and in case
where the bride hasn’t attained majority then it has to be transferred to her
within a time span of three months on the attaining of majority. Failure to
follow this is considered to be a dowry offence and then this can be taken to
court where the punishment is dependent on the discretion of the judges

III.3- The Protection of Women from Domestic
Violence Act

This
recent law has made it even more accessible for women to misuse anti dowry laws
as this law assumes all men to be torturers and considers that only women are
victims. This law assumes the economic, verbal and emotional abuse suffered by
women which makes it even more difficult as these abuses cannot be quantified.
Many families who were charged under these laws have committed suicide as they
were unable to bear the torture inside the jail as well as the social trauma of
being defamed in the society.

 

 

 

 

 

IV.CONCLUSION

All the entire anti
dowry laws assume that women are always true and have been abused by the
husband and his relatives. The husband or his relatives are arrested
immediately after the FIR has been filed and can only be released from the jail
on the discretion of the judge, by that time the husband and his family has
faced enough criticism from the society in many scenarios have lost their jobs
or means of livelihood. These laws need certain amendments where they are
stringent enough for the husbands and his relatives not to violate them and
also the women cannot misuse these laws.

According to me the
view of the national commission for women’s report presented in the Rajya Sabha
on 7th September 2011 should be considered. The report gave the
following 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 dowry
prohibition act 1961 have certain commonalities and need to be synchronized and
implemented uniformly.

·        
To protect the misuse of the laws the
police should ensure that no arrest should be made without reasonable
investigation and should only be made after the investigation proves
satisfactory on the genuineness and bonafideness of the complaint on behalf of
the wife and it should also be checked whether there is a need to arrest.

·        
Mahila Desks should be available in all
police stations and crime against women cells which would deal with the
complaints filed by the women regarding dowry and cruelty. This will make sure
that the matter is verified by the NGOs and the National commission for women
before 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 husband
and wife or the relatives’ of the husband and the wife, the first course of
action should be mediation instead of filing a court complaint.

·        
Professional counselors should be
appointed and the counseling should be carried out be these professional
counselors instead of police doing this work.

By using these
recommendations we could reduce the misuse of anti dowry laws and also protect
innocent families being put behind the bars for a certain period of time. This
would help in strengthening the legal system of the country and would make the
anti dowry laws available to the actual women who have suffered cruelty from
the husband or his relatives instead of the judges and the state machinery
wasting time in solving cases which have been filed with oblique motives. This
would also help in the uniting of many families where the women wanted to file
a dowry case with oblique motive which would later become irrevocable even on
the discretion of the wife.

 

 

 

1 2005 6 SCC 281

2 http://legalserviceindia.com/article/l467-Misuse-of-Anti-Dowry-Laws.html

3 Dowry prohibition act, 1961