Category Archives: Dowry

More Protection to Women in Live-in Relationships

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Women in live-in relationships are supposed to receive the same protection as wives when it comes to domestic violence. Now,  it appears that that protection also applies to dowry.

Section 498 A of the Indian Penal Code has long been criticised by so-called men’s rights activists who claim that they are doing such things as ‘saving Indian families’, never mind that they’re doing so at the expense of the safety of Indian women. Section 498 A makes cruelty against women by their husbands and in-laws an offence.

So far, it has been possible for a man to avoid being brought under the ambit of this Section by simply not marrying the woman in question. The literal interpretation of the Section requires a wife to be treated cruelly for an offence to have been committed, and the logic was: where there is no wife, there can be no cruelty under the ambit of this Section of the law.

In Koppisetti Subbharao @ Subramaniam Vs. State of A.P., a Bench of the Supreme Court comprising Justices Arijit Pasayat and A K Ganguly changed this though. Justice Pasayat who wrote the judgment said that the would not allow a narrow interpretation to stand in the way of women’s rights.

In this case, a man named Koppisetti Subbharao had been accused of harassing his live-in partner for dowry. He defended himself saying that Section 498 A did not apply to him since (a) he was not married to his live-in partner and (b) he was married to someone else.

The Court was not impressed. It said that ‘the nomenclature “dowry” does not have any magical charm written over it. It is just a label given to a demand of money in relation to a marital relationship’. Drawing parallels with the law which recognises the legitimacy of children born of void and voidable marriages, it explained its stand asking: “Can a person who enters into a marital agreement be allowed to take shelter behind a smokescreen to contend that since there was no valid marriage, the question of dowry does not arise?”

Preferring a liberal construction of the law, the Court went on to explain why it had rejected a literal and technical interpretation saying: “Such legal niceties would destroy the purpose of the provisions. Such hairsplitting legalistic approach would encourage harassment of a woman over demand for money.”

This judgment seems to go a long way in saying that men can’t dodge either responsibility or liability to women they live with by simply not getting married to them.

Judgment: http://judis.nic.in/supremecourt/helddis3.aspx

Defining Dowry: Not a Gift to a Baby

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The Dowry Prohibition Act, 1961 says, “Dowry means any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage; or by the parents 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, in connection with the marriage of the said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. The expression ‘valuable security’ has the same meaning as in section 30 of the Indian Penal Code.”

In yet another case defining what dowry is, the Supreme Court has held that demand for presents to a child do not fall within the ambit of dowry and that mere evidence that a woman has been subjected to harassment does not in itself make out a case of dowry death as defined by Section 304B of the Indian Penal Code which says:

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called ‘dowry death’, and such husband or relative shall be deemed to have caused her death.
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

In this case, a woman named Jagadeshwari committed suicide by setting herself on fire after her husband, Narayanamurthy from Karnataka, and his parents, Kannappa and Shivabhushanamma, demanded a gold ring and silverware for on the occasion of her new-born child’s thread-changing ceremony which was to be held at her parents’ home.

Jagadeshwari’s family could not afford to give the child a ring and so, Narayanamurthy refused to take part in the ceremony.

The marriage of the couple had taken place in 1989 and was harassed by her husband and in laws for not having brought enough dowry right from the time of the wedding till the time of her death — she committed suicide on November 11, 1990.

After her death, both her husband and her in-laws were charged with offences under Sections 498A and 304B of the Indian Penal Code and Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961.

Section 498A of the Indian Penal Code says:

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation: For the purposes of this section, ‘cruelty’ means- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

And Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961 deal with the penalties for taking and demanding dowry and say that dowry to be for the benefit of the wife or her heirs.

The father-in-law died while the trial was underway and both the husband and mother-in-law were acquitted by the Trial Court for lack of evidence.

The Karnataka High Court subsequently convicted her husband under Section 304B of the Indian Penal Code on appeal and sentenced him to seven years of rigorous imprisonment. It also convicted him under Section 498A of the Code and fined him 5,000 INR. However, it upheld his acquittal under Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961. Also, it did not find Shivabhushanamma guilty of any offence.

The Supreme Court upheld the acquittal of the mother-in-law also acquitted Narayanamurthy saying that although he had been given silverware at the ceremony, “such gifts are not enveloped within the ambit of dowry”.

Link

The Burden of Proof in Dowry Deaths

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In a dowry death case, the husband was acquitted because he was not present in the village at the time of his wife’s death. His parents were, however, convicted. The Rajasthan High Court set aside their conviction since the State did not appeal against the husband’s acquittal. The Supreme Court has held that the State’s failure to appeal against the husband’s acquittal does automatically mean that the prosecution failed to prove charges of dowry death under the Indian Penal Code.

The case contains a detailed discussion of where the burden of proof lies in cases of dowry deaths:

“In our considered view, this was a fit case for invoking Section 106 of the Evidence Act, which lays down that when any fact is especially within the knowledge of the any person, the burden of proving that fact is upon him. In Ram Gulam Chaudhary vs. State of Bihar [2001 (8) SCC 311] this Court considered the applicability of Section 106 of the Evidence Act in a case somewhat similar to the present one. Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The accused by virtue of their special knowledge must offer an explanation which might lead the court to draw a different inference.

In Trimukh Maroti Kirkan vs. State of Maharashtra [2006 (1) SCC 681], a two judge-bench of which one of us (G.P.Mathur,J.) was a member, considered the applicability of Section 106 of the Evidence Act and observed:

“The demand for dowry or money from the parents of the bride has shown a phenomenal increase in the last few years. Cases are frequently coming before the courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in court as they want to keep aloof and do not want to antagonise a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the houses should go unpunished.”

If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [1944 AC 315] quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh [2003 (11) SCC 271]. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case.

Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.

Similar view has been expressed in State of Punjab vs. Karnail Singh [2003 (11) SCC 271], State of Rajasthan vs. Kashi Ram [2006 (12) SCC 254], Raj Kumar Prasad Tamakar vs. State of Bihar [2007 (1) SCR 13].

We are sure, if the learned Single Judge of the High Court had adverted to Section 106 of the Evidence Act and correctly applied the principles of law, he would not have committed the grave error of acquitting the respondent.”

CASE NO.: Appeal (crl.) 1133 of 2000

State of Rajasthan v. Jaggu Ram

DATE OF JUDGMENT: 04/01/2008
BENCH: G.P. Mathur & G.S. Singhvi
JUDGMENT: G.S. Singhvi, J.

Trafficking and Prostitution

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This post focusses on the EU.

1 Direct trafficking

The expansion of the European Union and the opportunity to make money due to an ostensibly insatiable demand are factors which have contributed to up to 120000 women and children being annually trafficked into Western European countries from Central and Eastern European countries.

Most women victims are aged between 18 and 25, and have been abducted or deceived (by being promised ‘normal’ jobs) in Western Europe. They are usually sexually exploited and suffer from severe physical and psychological trauma which may continue long after the exploitation itself has ended. The European Union has been more active in developing penal legislation, law enforcement and judicial co-operation than in the preventing trafficking and protecting victims although it has supported NGOs and health and social services to assist victims to recover and resume a normal life. [1]

2 Indirect trafficking

In 2003, immigration contributed to more than 80% of the total population growth in the EU-15. The effective integration of immigrants, many of whom are financially dependant and therefore particularly vulnerable to abuse, in both the labour market and society has become a channel to reach the Lisbon targets. However, ‘the gender perspective is to a large extent lacking in integration policies, which hampers the possibilities to fully utilise the potential of immigrant women in the labour market’.[2]

3 The links between trafficking and domestic violence

Women who have entered a society alien to them are especially vulnerable to being subjected to exploitation and violence since they often do not know their rights and even if they do, they may not know how to protect themselves.

Mass migrations due to poverty, pauperisation and prejudice ensure that rootlessness, ethnic tensions and violent lawlessness are a feature of nearly every city of the developed democratic world, [3] and one of the manifestations of this phenomenon is that those who are violent at home now have access to a market of both women who are illegally trafficked and women who migrate to Western European countries in search of a husband.

Moreover, women who migrate to marry ‘threaten’ the local women, particularly those who are already married, because their husbands may divorce them in favour of (younger) migrants thus depriving them of their pensions and leaving them in poverty after decades of marriage.
Recommendations have been made to protect local women in such situations by increasing stamp duty to make divorce proceedings prohibitively expensive, ensuring that matrimonial property is divided equally between the husband and his first wife, considering housework as labour in the case of housewives and making provisions to entitle housewives to a salary and pension from the state for their work in the home.

4 Efforts to beat trafficking

In line with the principle of subsidiarity and as signatories of the Beijing Platform for Action, it is Member States’ responsibility to take measures to fight trafficking although the European Commission has undertaken initiatives to help them fulfil their obligations. The Commission was, for example, responsible for implementing STOP (1996-2000) and STOP II (2001-2002) which were conducted to exchange information, and to reinforce networks and practical co-operation between Member States in order to encourage and facilitate action to prevent and combat trade in human beings and the sexual exploitation of children (including child pornography). STOP had a budget of €6.5 million and co-financed 85 projects in its five-year implementation period and STOP II, which was initiated to ensure continued support to the programme, had funds €4 million at its disposal for its two-year implementation period.[4]

Furthermore, both human rights law and (the the majority position in) refugee law now acknowledge state responsibility for human rights violations such as family violence which has become one of the most visible (and prolific) emerging bodies of refugee case law.[5]

References:
[1] Trafficking in Women; The misery behind the fantasy: from poverty to sex slavery
[2] Framework Strategy on Gender Equality 2001-2005
(The European Commission)
[3] Reflections on Violence
(John Keane, Oxford, 1996)
[4] STOP
[5] Refugee Law, Gender, and the Human Rights Paradigm
(Deborah E. Anker, Harvard Human Rights Journal, Volume 15 Spring 2002)

This post is an extract from an essay was written for the POROS Project.

The Use and Misuse of Section 498A

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Many people seem to associate Section 498A of the Indian Penal Code exclusively with Indian anti-dowry laws. One does, of course, often hear allegations of the section being widely misused but have very rarely does one hear any actual cases being cited to support such a claim.

In fact, a Tata Institute of Social Sciences study in 1999 indicates that few women’s organisations recommend recourse to section 498A IPC as a first resort and that the number of such cases are miniscule in comparison to the prevalence of domestic violence. However, such studies have done little to stop a large spectrum of people ranging right from husbands and their families to some members of the judiciary from voicing their complaints.

The Section says:

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation: For the purposes of this section, ‘cruelty’ means- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

There seem to be two sides to the story : one is that Indian society is patriarchal and public attitudes are firmly in favour of men and wives are usually held responsible for marital problems as the following statement in a report prepared by the legal adviser to the Delhi Commissioner of Police in November 2000 shows: “…the reasons for disharmony between the wife and the husband arise only when either the wife is reluctant/refuses to adjust herself in the family circumstances or if the husband feels reluctant to accommodate his wife either on account of unnecessary interference by the parents of the wife or non-cooperative attitude of the wife.”

It would be hard for anyone to deny that domestic violence is rampant — a look at any given day’s edition of a local newspaper would probably report at least two cases of women who’ve been killed / burned to death by it. And those are just the most extreme cases. No one really knows how many instances of domestic violence go completely unnoticed and it seems faintly ridiculous to me to render useless one of the few laws which exist to combat it.

This, however, is precisely what the The (all male) Malimath Committee suggested in a way by recommending that such complaints be made bailable and compoundable. The committee produced a 600 page report which among other things included 16 research papers but for some reason excluded not only any discussion on the issue of violence against women but also excluded any inputs either from victims of marital cruelty or from those working in the field. Some of its reasoning seems to have been encapsulated in 16.4.4 of the report which says: “A less tolerant and impulsive woman may lodge an FIR even on a trivial act. The result is that the husband and his family may be immediately arrested and there may be a suspension or loss of job. The offence alleged being non-bailable, innocent persons languish in custody. There may be a claim for maintenance adding fuel to fire, especially if the husband cannot pay. Now the woman may change her mind and get into the mood to forget and forgive. The husband may also realize the mistakes committed and come forward to turn over a new leaf for a loving and cordial relationship. The woman may like to seek reconciliation. But this may not be possible due to the legal obstacles. Even if she wishes to make amends by withdrawing the complaint, she cannot do so as the offence is non-compoundable. The doors for returning to family life stand closed. She is thus left at the mercy of her natal family.”

But the other side of the story is that there is abuse of the law although the extent to which such abuse takes place has never been firmly established. There are of course unscrupulous women who use section 498A of the IPC for their own ends but what one also has to realise is that very often woman are encouraged by lawyers and/or the police etc. to add that the violence they faced was related to dowry so that their complaints would be taken ‘seriously’. And that is what is ironical because the section itself is not designed exclusively in reference to dowry-related problems : in itself, it is meant to deal with all forms of domestic violence.

Section 498A is, in a way, in favour of women. It was created by an amendment to the Indian Penal Code in 1983. Complaints under it are cognizable, non-bailable and non-compoundable. Close on its heels came two amendments to the Dowry Prohibition Act of 1961 — in 1984 and 1986 — which made dowry giving and taking cognizable offences. Those accused under both these laws are not assumed to be innocent until proven guilty ; contrary to other laws, the accused are, in theory, required to prove that theory have not committed a crime although in reality they often easily get bail.

Tilting the balance in favour of women has often been useful since previously women could not meet the burden of proof quite simply because marital violence usually occurred behind closed doors and that being the case, in the absence of independent witnesses, there was no easy way for women to prove their cases beyond reasonable doubt as was required under criminal law.

The problem, however has been that there was no mechanism brought into play to ensure that women didn’t lie. The law against perjury is virtually non-functional in India and there are no deterrents to ensure that complaints made under this section to ensure that only genuine cases are registered.

In December 2003, the Minister of State for Home Affairs, I. D. Swami said, “There is no information available with the Government to come to the conclusion that many families in India are suffering due to exaggerated allegations of harassment and dowry cases made by women against their husbands and other family members involving them in criminal misappropriation and cruelty.”

The statement is probably not entirely true although cases of abuse of section 498A may simply be isolated ones and not part of a general trend. The answer though probably doesn’t lie in making the law bailable and compoundable but in amending it so that bonafide and malafide complaints can be separated.

References:
1. Statement referred to in reply to Rajya Sabha starred question no. 230 for 17.12.2003 regarding amendments in sections 406 and 498A of the IPC
2. Laws against domestic violence : Underused or Abused? by Madhu Kishwar
3. Misuse of 498A – much ado about nothing? by Bikram Jeet Batra