An Analysis of the Dowry Prohibition Act, 1961

An Analysis of the Dowry Prohibition Act, 1961

ILE Legal Blog

15 Jun, 2022

Author – Tanisha Vijayvergiya, Student at Lovely Professional University, Jalandhar (Punjab)

INTRODUCTION

As we all know, in India, the dowry system has been followed before the British period. During the Medieval period, our ancestors had started the dowry system for a good purpose. The reason behind the dowry system was to make women financially independent after marriage.  So, the bride’s parents give money, land as a gift for the sake of her security. But, during the British period, a monarchy system existed that didn’t give the right to women to own land. Therefore, all the gifts given to the bride by her parents were confiscated by the bridegroom’s family. Later this system becomes torture for the women. This practice is followed in many religions. In Hinduism, it’s called Kanyadan; In Sikhism, it is Dehaj; In Muslims, it’s Mahr. Now, in India, Marriage becomes the source of income. This messed system gives birth to female infanticide, domestic violence, death rate, birth rate, suicide cases, such issues. Because of such issues and problems, the president of India passed an act i.e., the dowry prohibition act, 1961.

DOWRY PROHIBITION ACT OF 1961

This act was enacted to prohibit the dowry system. It was enacted by the parliament in the 12th year of the Republic of India on the 1st of May of 1961, and this act came into force on the 20th of May of 1961. Earlier, this act applied to the whole of India except Jammu & Kashmir; but after the abrogation of Article 370, it applies to Jammu & Kashmir as well. Let us understand the important provisions of the dowry prohibition Act, 1961:  

  1. Definition: The definition of ‘Dowry’ is defined under section 2 of the dowry prohibition act of 1961. Section 2 says that dowry is a monetary or gift deed given to the bride by her family at the time of marriage. Ultimately, it is a transfer of parental property to the bride. Dowry can be anything such as a car, utensils, jewellery, crockery, cash or other products. In Sharia law, Mehr is considered a dowry, given to the bride by the bridegroom or his family at the time or before or after the marriage.
  2.  Section 30 of the Indian Penal Code: The definition of section 30 is the same as the definition of the phrase “valuable security”. It explains that the phrase “valuable security” is a document that creates, transfers, restricts, extinguishes the legal right. No person can refuse to accept that legal right. 
  3. Illustration: On the back of a bill of exchange, ‘A’ signs his name. The endorsement is a “valuable security” since it transfers the right to the bill to anybody who may become the authorised bearer of it.
  4. Transfer of the Dowry: Section 6 of the dowry prohibition act of 1961 deals with the transfer of dowry to the woman, parents, her heirs. According to this section, if someone other than the woman receives a dowry in the marriage then, that person is responsible for transferring it to the woman. Following are the conditions in which the person has to transfer the dowry:
  5. If the person received the dowry from the bride’s family before the marriage then, that person has to return it to the woman within three months from the date of marriage.
  6. If the person receives the dowry during the marriage or after the marriage then, he has to return it to the woman within three months from the date of taking the dowry. 
  7. If the person received the dowry when the woman was minor then, that person has to return it to the woman when she attains the age of eighteen years. But, this transfer can be put on hold for the sake of a woman’s benefit. 
  8. If a woman is eligible for property under subsection (1) of section 6 of the act and she passes before obtaining it then, her heirs are required to seek it from the person who is now holding it.
  9. If a woman dies within the seven years of the marriage due to natural causes then, such property shall be transferred to her parents, if she doesn’t have any child. If she has a child then, it shall be transferred to the child. But, for the sake of his benefit, the transferral of property can be put on hold. 
  10. Cognizance and Cognizable:  Section 7 of the dowry prohibition act deals with cognizance of offences and section 8 of the act deals with the cognizable offences. Let us look at it. 

(i) Section 7: Cognizance means judicial notice. According to this section, if there will be any contradiction between the provisions of Crpc and the dowry prohibition act then, the provisions of this act always prevail. This section states that under this act, only a court of metropolitan magistrate or a judicial magistrate of the first class can trial dowry offences, which can be commenced based on the court’s personal information, a police report, or a complaint made by any social welfare agency.  There is one clause of section 7 which says that chapter 36 of Crpc does not apply to the dowry prohibition act. Chapter 36 deals with the limitation period.

(ii) Section 8: This section says that the dowry prohibition act will apply on only those cases which are cognizable (police can arrest without warrant), non-bailable (the only court can grant bail), and non-compoundable (offences cannot settle outside the court). This section also states that if the offences are cognizable then, the criminal procedure code, 1973 shall apply.

  • Penalty: Section 3, 4, 4A, 6(2), and 6(3A) of the dowry prohibition act of 1961 deals with the penalty for the violation of the dowry prohibition act, 1961. 
  •  Section 3 of the act deals with the penalty of those people who take and give dowry. According to this section, if anyone takes or gives dowry after the commencement of the act then, that person shall be punished with the imprisonment of not less than 5 years, and the fine of 5,000 rupees or it can be the amount of the taken and given dowry; but, out of these two conditions, the excessive amount should be taken. But, this section has one clause that says that if there is any reasonable and adequate reason, the court will provide imprisonment of not more than or equal to 5 years. 
  • Exceptions: In this section, there is one clause that deals with the exceptions. Let us look at it.

(i) Any presents contained in the list which are maintained by rules of the act are given to the bride without any demand then, section 3 will not apply to them. 

(ii) Any presents contained in the list which are maintained by rules of the act are given to the bridegroom without any demand then, section 3 will not apply to them. 

(iii) Any presents that are given by the bride or any other person on her side shall not exceed the financial status of that person who is giving that present.

  • Section 5 of the Act defines that any agreement made among any person for taking or giving dowry shall be void in nature. 
  •  Section 4 of the act deals with the penalty of those people who demand dowry. According to this section, if anyone demands dowry either directly or indirectly to the bride, her parents, to the guardian, or any other relatives shall be punishable with the imprisonment of six months to two years but, shall not be less than 6 months, and that person shall also liable to pay fine of not more than ten thousand rupees. But, if there is any special or adequate reason mentioned then, the court shall punish that person with imprisonment but not more than six months of period.         
  •  Section 4A of the act deals with the penalty of those people who do an advertisement of dowry. According to this section, the advertisement of dowry is banned in India. But, if any person does an advertisement that he will give money, property or any share to his son or daughter and circulate it through print and publish way such as newspapers, journals, articles, and through any other media then, such person shall be punishable to imprisonment for six months to five years but, not less than six months and that person shall also liable for fine of not more than fifteen thousand rupees. But, if there will be any reasonable point mentioned in the case then, the court will provide relief to reduce the imprisonment term of not more than six months. 
  • Section 6(2) of the act deals with the penalty of those people who failed to transfer the dowry according to provisions of section 6(1) of the act. According to this section, if any person fails to transfer the dowry within the time limit defined in section 6(1) then, such a person shall be punishable with the imprisonment of six months to two years but not less than six months or with the fine of five thousand rupees to ten thousand rupees, or it can be both.
  •  Section 6(3A) of the act deals with the penalty of those people who are convicted under section 6(2) because of the violation of section 6(1) and (3). According to this section, the court held that if any person convicted under section 6(2) due to the failure of transferral of the property then, he has to transfer the property to an entitled woman or her heirs or parents within the specified period. If still, that person shall not follow the direction of the court then, the equal amount of transferral property shall be taken from the share of his property as a fine by the court and given or paid to the woman, her heirs, or parents.
  • The burden of proof: Section 8A of the act deals with the burden of proof. This section says that any person convicted under section 3 and 4 and he denies the facts then, that person has to prove his point to the court. 
  • Rulemaking powers: Section 9 and 10 of the act deals with this rulemaking power. Let us look at it:
  • Section 9: According to this section, the central government has the power to make rules. According to the dowry prohibition (Maintenance of list of presents to the bride and bridegroom) rules, 1985, they have the power to make lists of presents that are defined under section 3 of the act.  
  • Section 10: According to this section, the state government has the power to make rules as well as give direction to the dowry prohibition officers who are appointed by the state government under section 8B.

CASE LAWS

  1. Inder Sain v. State:[1] It was decided that “consideration” was limited to the motivation or purpose for marriage, as well as recompense or reward, and hence did not include any property sought or granted after the marriage. To avoid a limited reading of the Act, the phrase “any time after the marriage” has been added to replace “after marriage.” Gifts are only permitted in Indian marriages if they are traditional and do not place a financial strain on the family. A list of such gifts, along with their value and description, must be produced and signed by both the bride and groom.
  2. S. Gopal Reddy v. state Andhra pradesh:[2] The Supreme Court ruled that the demand, even if made before the wedding, must be treated as a violation of section 4 of the Dowry Prohibition Act. The court held in this instance that the mere demand of dowry is sufficient to bring the offence home to an accused and that any demand of property or money made from the bride or her family by the bridegroom or his parents, or vice versa, would come within the DV Act’s section 4 dowry problems.
  3. Inder Raj Malik v. Sunita Malik:[3] The Delhi High Court ruled that a person convicted under both Section 4 of the Dowry Prohibition Act and Section 498A of the Indian Penal Code does not face double jeopardy under Article 20(2) of the Indian Constitution. The Dowry Prohibition Act and the Indian Penal Code differ in that the demand of dowry is illegal; but cruelty is not required in the older enactment, but cruelty is required in the later legislation under section 498A of the Indian Penal Code.

CONCLUSION

The Dowry Prohibition Act of 1961 was enacted solely to prohibit the offering and taking of dowry. One important feature of this issue is that the term or monetary dowry was never the issue. Instead, it was excessive demands and the ensuing violence that emerged as a result of those demands not being met, and this eventually led to a worsening of the situation. All the important provisions that we discussed above should be known to every citizen of India. 

REFERENCES

  1. Dowry Prohibition Act, 1961
    1. Indian Penal Code, 1860
    1. Inder Sain v. State 1981CriLJ 1116(Del)
    1. S. Gopal Reddy v. state Andhra Pradesh 1996 4 SCC 596
    1. Inder Raj Malik v. Sunita Malik (1986) Cr LJ 151

[1]  1981CriLJ 1116(Del)

[2] 1996 4 SCC 596.

[3] (1986) Cr LJ 151