Labour and Social Welfare: Dowry Prohibition Act, 1961

Background

In India, Dowry refers to the durable goods, cash, and real or movable property that the bride’s family gives to the bridegroom, his parents, or his relatives as a condition of the marriage. In India, there was a tradition of Kanyadan in marriage in Vedic period also. It has been a prevalent practice in India’s modern era.

Dowry system originates many other social problems in the Indian society like feticide, killing girl baby, suicide, indebtness, sexual crime, polygamy, family disorganisation etc.

Attempts were made to eradicate this system, the State governments enacted several laws, Bihar Dowry Restrain Act, 1950, Andhra Dowry Prohibition Act, 1956.
The first all-India legislative enactment relating to dowry was the The Dowry Prohibition Act, 1961. It marked the beginning of a new legal framework of dowry harassment laws effectively prohibiting the demanding, giving and taking of dowry.
Although providing dowry is illegal, it is still common in many parts of India for a husband to seek a dowry from the wife’s family and in some cases, this results in a form of extortion and violence against the wife. To further strengthen the anti-dowry law and to stop offences of cruelty by the husband or his relatives against the wife, new provisions were added to the Indian criminal law – section 498A to Indian Penal Code and section 198A to the Criminal Procedure Code in 1983.
In 2005, the Protection of Women from Domestic Violence Act was passed, which added an additional layer of protection from dowry harassment.

The Dowry Prohibition Act, 1961

The Dowry Prohibition Act, 1961 consolidated the anti-dowry laws which had been passed on certain states.

                                             Introduction

(1) This Act, enacted by the Central Government, extends to the whole of India except the State of Jammu and Kashmir.

(2) It is a social legislation as it deals with the social problems.

                                  Definition of dowry (Sec. 2)

In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly—

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Main Provisions

1. Penalty for giving or taking dowry. (Sec. 3)-

If any person gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than 15000 rupees or the amount of the value of such dowry, whichever is more.
But the Court may, for adequate and special reasons, impose a sentence of imprisonment for a term of less than 5 years.

Articles or commodities to be given as gift in marriage shall not be considered as dowry u less those articles or commodities are not necessary condition for the marriage.

2. Penalty for demanding dowry.(Sec. 4) –

If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, any kind of dowry, he shall be punishable with imprisonment from 6 months to 2 years amd fine up to 10000 Rs.
But the court may give punishmemt of less than 6 months in apropraite or particular condition.

3. Ban on advertisement. (Sec. 4A) –

If any person gibes an advertisement for the marriage of his son or daughter in a newspaper, periodical, journal or through any other media describing any share in his property or money or trade or giving other benefits then it shall be punishable with imprisonment from 6 months to 2 years or a fine up to Rs. 15,000.

But the court may give punishmemt of less than 6 months in apropriate or particular condition.

4. Burden of proof in certain cases. (Sec. 8A) –

Where any person is prosecuted for taking or abetting the taking of any dowry under Sec. 3, or the demanding of dowry under Sec.4, the burden of proving that he had not committed an offence under those sections shall be on him.

5. Dowry Prohibition Officers. (Sec. 8B) –

(1) The State Government may appoint as many Dowry Prohibition Officers as it thinks fit and specify the areas in respect of which they shall exercise their jurisdiction and powers.

(2) Every Dowry Prohibition Officer shall exercise and perform the following powers and functions, namely:-

(a) to see that the provisions of this Act are complied with;
(b) to prevent  the taking or abetting the taking of, or the demanding of, dowry;
(c) to collect such evidence for the prosecution of persons committing offences under the Act; and
(d) to perform such additional functions as may be assigned to him by the State Government, or may be specified in the rules made under this Act.

(3) The State Government may, by notification in the Official Gazette, confer powers of a police officer on the Dowry Prohibition Officer with limitations and conditions specified by rules made under this Act.

6. Advisory Board. (Sec. 8B(4)) –

The State Government may appoint an Advisory Board for the purpose of advising and assisting Dowry Prohibition Officers in the efficient performance of their functions.

The Advisory Board will consist of not more than 5 social welfare workers (out of whom at least two shall be women).

7. Agreement for giving or taking dowry to be void. (Sec. 5) –

Any agreement for the giving or taking of dowry, made before or after the enforcement of this Act shall be void.

8. Dowry to be for the benefit of the wife or her heirs.(Sec. 6) –

(1) If any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman: –

(a) within three months after the date of marriage if the dowry was received before marriage; or
(b) within three months after the date of its receipt if the dowry was received at the time of or after the marriage; or
(c) within three months after she has attained the age of eighteen years if the dowry was received when the woman was a minor, and pending such transfer, he shall hold it in trust for the benefit of the woman.

(2) If any person fails to transfer property under sub-section (1) within the time limit, he shall be punishable with imprisonment from 6 months to 2 years or with fine of Rs. 5000 to Rs. 10000 or with both.

(3) If the woman entitled to property under sub-section (1) dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it.

If such woman dies within 7 years of her marriage, from any other cause than natural death, such property shall be transferred to-
(a) her parents if she has no children; or
(b) if she has children, be transferred to such children and pending such transfer, be held in trust for such children.

(4) Where a person convicted for failure to transfer any property as required by sub-section (1) has not delivered it before his conviction to the woman entitled for it or her heirs, parents, children as the case may be, the Court shall, in addition to awarding punishment, direct that such person shall transfer the property to such woman or, as her heirs, parents or children within specified period, and if such person fails to comply with the direction within the period so specified, an amount equal to the value of the property may be recovered from him and paid to such woman or her heirs, parents or children.

9. Cognizance of offences.(Sec. 7) –

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973:

(a) a court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall not try any offence under this Act;

(b) no Court shall take cognizance of an offence under this Act except upon—
(i) its own knowledge or a police report of the facts which constitute such offence, or
(ii) a complaint by the person aggrieved by the offence or a parent or other relative of such person, or by any recognized welfare institution or organisation;
(recognized welfare institution or organisation means a social welfare institution or organisation recognized in this behalf by the Central or State Government)

(c) it shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the first class to pass any sentence authorised by this Act on any person convicted of an offence under this Act.

10. Power to make rules.(Sec. 9) –

(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

(2) Such rules may provide for: –

(a) the form and manner in which, and the persons by whom, any list of presents shall be maintained and all other matters related to it; and
(b) the better co-ordination of policy and action with respect to the administration of this Act.

(3) Every rule made by the Central Government under this Act shall be laid before each House of Parliament within prescribed time limit.  Parliament may allow, modify or nullify the rule.

Note:- Under its powers to frame rules for carrying out its objectives under the Act, the government of India has framed the Maintenance of Lists of Presents to the Bride and the Bridegroom Rules, 1985.

11. Power of State Government to make rules. (Sec. 10) –

(1) The State Government may make rules for carrying out the purposes of this Act by notification in the official gazette.

(2) Such rules may provide for all or any of the following matters, namely:-

(a) the additional functions to be performed by the Dowry Prohibition Officers;
(b) limitations and conditions under which a Dowry Prohibition Officer may exercise his functions.

(3) Every rule made by the State Government shall be laid before the State Legislature as soon as possible.

Shortcomings

(1) Lack of proper implementation

Arrangement made for the implementation of the Act is defective. Since dowry has become a social prestige, help from the society and social organisation is necessary to stop it. Top down approach of law would not work effectively.

(2) Misuse of the Act

As there are no penalties for false complaints or perjury, many women and their families misuse the law to intimidate and harass the husband and his family members.

From various judgments from the Supreme Court of India criticized the law saying that though there are several genuine dowry cases, thousands of cases of fake cases are also reality. The Dowry Prohibition Act has become the simplest way to harass and get the husband and his relatives arrested.
The two-judge bench of the Supreme Court, headed by Justice Chandramauli Kumar Prasad observed that in some cases bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested.

(3) Burden of proof

Victims of the Dowry Prohibition Act argue that there are vague definitions of dowry and streedhan in the law. Also, as the Dowry Prohibition Act (Section 8A) states, “Where any person is prosecuted for taking or abetting the taking of any dowry under Section 3, or the demanding of dowry under Section 4, the burden of proving that he had not committed an offence under those sections shall be on him, shows that the presumption of guilt is on the man.

(4) Duplication of laws

There are various existing laws that deal with a lot of the crimes mentioned in the Dowry Prohibition Act; thus, there is duplication of the laws.