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Dowry: A Custom or A Crime

The concept of dowry is as old as society. Dowry existed  in a primitive  form, but under  various titles,  among the ancient Hindus. This practice of offering gifts during weddings is widespread throughout India. The bride is presented with gifts by her parents. The motive for this gift-giving is the parents' devotion for their children, but with time, this ritual grew inflexible and connected with social position and family prestige, resulting in significant societal harm.

However, the wedding ceremony was not just about this authoritarian institution. The definition of dowry is given under section 2 of Dowry Prohibition Act 1961. Definition of "dowry". In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly:
  1. by one party to a marriage to the other party to the marriage; or
  2. by the parents of either party to a marriage or by a other person, to either party to the marriage or to any other person; at or before or after the marriage us consideration for 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.[1]
Our society is getting increasingly vulnerable to it on a daily basis.

The customary practice which was  originally in practice talked about parents giving gifts to their daughter which was known as stridhan. The word ''Stridhan' has been derived from The word stri-dhan is made up of two words Stri and Dhan. Which means property (Dhan) of women. Stree dhan is the movable or immovable property held by women. In customs it was believed that after death married women take away this stri dhan to heaven. 

Dowry on the other hand is different from it as dowry is a type of demand and is not voluntary therefore stri dhan on one hand is valid but dowry is invalid.

Essentials of Custom:

Any traditional practice to be recognised as custom needs to fulfil following requirements:

  1. Immemorial antiquity
  2. Reasonableness
  3. Not oppose to public policy
  4. Continuance

Immemorial antiquity 
The first and foremost requirement for a valid custom is that it should be immemorial. It should have been practised since the formation of society. If a practice is not as old as the society it can not be considered as a valid custom. 

Reasonableness
A valid custom should be reasonable. It should be beneficial to the society,it should not be opposed to principles of justice and morality.

Not oppose to public policy
The most important requirement for a valid custom is that it should not be opposed to public policy. It should not be harmful to any person or group of persons and should not have an adverse effect on anyone.

Continuance
A custom should be followed in continuance it should not have pause or breaks in the middle. If a practice is stopped in the middle it can not be regarded as a valid custom.

Dowry as a Custom?

The practice of dowry is as old as marriage. The provisions related to Dowry can be found in various historical texts. In addition to this the giving and taking of dowry is also considered as a good practice under these texts. So it can be concluded that initially dowry was considered a valid custom but with the advent of time it lost its recognition as people started believing that it is opposed to public policy. 

Laws Relating to Dowry

With passage of time the practice of dowry started attracting various crimes against married women. The brides started getting harassed and the cases of cruelty started rising for which the biggest reason which came forward was non payment of dowry. Due to these reasons a need was felt by the law makers for enactment of specific loss relating to the dowry.

Therefore the dowry prohibition act ,1961 was invented by the parliament. The act contains prohibitions relating to what will constitute a dowry and what will be the punishment for giving and taking a dowry. 

Misuse of Laws Relating to Dowry

Every coin has two sides. Any law which is enacted for protection of a specific class can be easily misused. In recent times there has been an ample increase in the amount of cases involving pay allegations of dowry. 

Landmark Judgement 
Kamesh Panjiyar @ kamlesh Panjiyar vs. State of Bihar [2]
Facts of the case
In the instant case Jaikali Devi (The deceased) got married to the appellant. Rs, 40,000 as dowry was demanded by the appellant during the time of marriage which was paid to him. 

A buffalo was demanded by the appellant after the marriage and which was not fulfilled by the family of the deceased. 

Due to this failure of fulfillment of demand his family started to torture the deceased.  When the situation was known to the brother of the deceased he went to meet her but was insulted by the family of the appellant. 

Few days later, the brother of the deceased got to know about the death of his sister. 
The body of the girl had many injuries on her body. It was claimed by the Appellant that she had some rheumatic disease due to which her death was caused.

Judgement:
  • Appellant was found guilty and Sessions court punished him with the imprisonment of 10 years.
  • Appellant appealed before the High Court of Bihar, the court reduced the sentence to 7 years.

The decision of the sessions court was upheld by the Supreme stating that it was not necessary to give direct evidence of causing death under Section 304 IPC. Cruelty caused by the victim  before death is enough.

Suggestions:
It appears jus and proper to state that the law makers can make the prohibitions relating to punishment for dowry more strict in addition to this provision should also be made to penalise who misuse the law relating to dowry. 

Conclusion
To conclude we would like to state that the origin of dowry can be traced back from time in memorial but the initial nature of dowry kept on changing with time and therefore its nature changed and got opposed to public policy and to insure protection of people from this social evil the above mention law was implemented by law makers.

End-Notes:
  1. Section 2 of Dowry Prohibition Act 1961
  2. (2005) 2 SCC 388
Written By:
  1. Akshita Tripathi, B.Com LL.B(Hons.) 3rd year, Faculty of Law, Dr. Shakuntala Misra National Rehabilitation University,Lucknow, U.P
  2. Amit Pandey, B.A LL. B (Hons.) 4th Year, Faculty Of Law, University Of Lucknow, U.P
  3. Shakshi Agarwal, B.Com LL.B(Hons.), 5th Year, Jamnalal Bajaj School of Legal Studies, Banasthali Vidyapith, Rajasthan.

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