HOW DOES DOWRY AND DOWER CONTRAST LEGALLY AND SOCIALLY?

ABSTRACT

Customs and traditions have always played a significant role in the Indian society. In this essay an analysis of two very unique components of marriage customs are discussed which have come into bein...

By: Aman Singh, Shubhra sotie | Update: 2016-09-30 16:43:36

HOW DOES DOWRY AND DOWER CONTRAST LEGALLY AND SOCIALLY?

ABSTRACT

Customs and traditions have always played a significant role in the Indian society. In this essay an analysis of two very unique components of marriage customs are discussed which have come into being through ancient practice. One of the components investigated upon is Mahr or Dower. Dower is the stipulated amount of money, benefits or/and property a wife is entitled to receive from her husband in consideration of the Islamic nuptials that follow. The act of such consideration that is dower is enforceable by law. Mahr possesses equivocal qualities that are bestowed upon both the man and the woman. Dowry on the other hand is blatantly a societal evil that has come into existence due to materialistic greed and demand of the humankind. A dowry has no specific extent of what constitutes of a “dowry”. It can extend from cash to any range of property or material goods as demanded by the kin of the Bride-Groom. Dowry and its consequences are listed and elaborated upon. A clear distinction is drawn between the two; A legal component to marriage and A gift of coercion.  

How does Dowry and Dower contrast legally and socially?

Before Nehru would address the world at the stroke of midnight, on the eve of India independence he wrote “The spirit of the age is in favour of equality, but the practice denies it almost everywhere”. Pandit Nehru is long gone but the inequalities still subsist. Dowry is one of them. It is a well-accepted fact now that dowry is a social evil in the society and it is very important now to look into the provisions of law which are still not arduous for such a heinous crime, its been almost two decades since the Supreme Court stated the following in its judgement, and almost half century since Dowry prohibition Act (hereinafter referred to as Dowry Act) was challenged but no remarkable change has happened which can be praised.  

“The curse of Dowry has been raising its ugly head every now and then, but the evil has been flourishing beyond imaginable proportions.”[1]

As laid down by the definition of dowry in the Section 2 of Dowry Act[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 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 definition above very clearly defies the myth that, the term dowry can only be used for consideration of marriage given by the side of bride, but by the virtue of the above Act and its definition and its vast interpretation it shall be assumed that dowry can be given by the parents of either party to the marriage[3] but in the Indian society a woman can only be a victim and not an author of the crime[4]. Dowry has been one of the parent reason to cause cruelty towards women after their marriage and it is a very sad fact that women, wives, Mothers, Daughter-in-laws actually succumb to this cruelty after their marriage just because of this sin in our customs and practices either by her family members or she commits suicide. The Indian Penal Code[5] (Hereinafter referred to as IPC) states in its section 498-A “Husband or relative of husband of a woman subjecting her to cruelty.--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.” This statute is very clear in its meaning that any act of cruelty which leads to the extent that the woman has to compromise to her health (mental or physical) either by herself or by them forcefully shall be punished with the imprisonment which may extend to 3 years or fine. This statute also includes any 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. The demand could be for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Now this is the case where demand (directly or in directly) was done after the marriage or any of the party were forced to suffice the need of dowry. In the same breath we talk about dower which is a stipulated amount of money, property or any material object which is pre-decided between the Bride and the bridegroom and given by the groom to the bride. The most significant difference between dowry and dower is the flow of money, benefits or kind. In the case of dowry it is from the bride to the bridegroom whereas in Dower the flow of dower is from the bridegroom to the bride. Unlike dowry, dower is not an act of endearment or a gift or consideration but a compulsion by law without which a nuptial in an Islamic marriage. Dower has a legal enforceability that dowry lacks. Allah in the Holy Quran said “And give the women (on marriage) their dower as a free gift; but if they, of their own good pleasure, remit any part of it to you, take it and enjoy it with right good cheer."[6] The significance of this verse in Islamic law is in how it’s interpreted. It is up to the discretion of the bride if she wants to remit the dower or keep it to herself. Dowry poses no such customary or legal discretion at the disposal of the bride. Dowry embarks from its very beginning into ambiguity. In Hindu law, many texts cite Dan as a concept similarly the marriage of the daughter is referred to as Kanyadaan[7] whereas in Islamic law a marriage constitutes of a contractual union of offer and acceptance and relief stipulations for the bride in case of dissolution or even inception of marriage. When the girl is given as a gift (Stridhan or Kanyadaan) implies that whatever she brings is their property and have their right over it and her. Naturally, a gift is a gesture and a gesture would not have stipulations of relief if there is a dissolution of marriage or its inception; ambiguity is key whereas In Islamic law a Dower forms an essential part of the contract[8] which if not given in the stipulated time the bride can refuse to cohabit with her husband[9] and can also knock the doors of justice if after the dissolution of marriage dower is not directed back to the bride in contrast dowry historically has had no such relief. The contractual aspect of the marriage has empowered muslim women to list their stipulations in the marriage contract (Niqah-nama) or sign a pre-marriage agreement(Kabin-nama) in which she can list her access to her husband’s estate and property, her individual expeses, separate residential property in case of remarriage and location of matrimonial home. The Indian courts have cited these contracts as valid and enforceable[10]. Originally Mahr was tantamount to sale-price.  The price was paid to father of the wife but Islam contended its payment to the wife solely for the reason to make it a check on the power of husband on divorce hence it can be assumed that dower is not exactly a curse like dowry rather it’s a boon for the female in case of dissolution of marriage or death of her husband or any other case of maintenance. Many academicians use the “compensation theory” to describe the justifiability of dowry. The theory cites that a woman who comes home to the bride-groom would not be gainfully employed and her contribution on the economic front would not be substantial so it is only justifiable that she brings some to the estate of the groom. Undoubtedly, the economic evaluation of the household activities that the same bride would perform for the rest of her life is duly ignored. A lot has been said about accounting a housewives’ daily activities into the national income but the general opinion seeks to overlook. Dower on the other hand gives same power and authority over the husband’s oral dissolution of marriage; if not authority it gives at least a relief to the bride if the marriage dissolves. This is ingrained greatly in the Islamic law Dowry too has its deep roots in the Indian society and it is a sad but a truthful stand  that parents of the bride are equally responsible for this affliction which has spread all over the fabric called marriage. After many years of struggle by women in our society, some from our own families. We must realize that there is no way in which one can justify this bane to holy matrimony of two people. Islam seems more progressive in nature in terms of endowing women with property rights and an absence of coverture.  The only status of similarity among dowry and dower is in what form they could be in , A Mahr or dower can be in form of money, movable or immovable property, gold coins, assets, material objects. Dowry similarly through years has been a lot of the above listed items. Dowry; though not a legal obligation like dower without which any Islamic nuptial would be void has still broken a lot of marriages being a tool of coercion and greed in a society the likes of India.  Often referred to as “gift” poses exorbitant amounts of pressure on the families of the bride. The family of the bride when fall short of expectations of the families of the groom, ties are broken. If a marriage so happens and less than the negotiated amount is received in dowry the bride is relentlessly harassed for the same. One of the many severe instances of harassment is bride burning[11] Some evils that are believed to be enabled by Dowry itself or are consequential in nature Female foeticide/ Female Infanticide– Even today, when there are so many Laws for prohibiting female foeticide   the statistics tell another story. The number of the same are much more to one’s expectations. One of the biggest reasons behind this practice is the thought that if a female child is born then she would turn out to be a burden on the exchequer of her parents as a lot would have to be spent in her marriage.  Dowry being a must in rural areas and also a badge of status poses a great problem. Therefore, people find it better to eradicate the root of the problem, the girl child. Suicide by Young Girls– Many a times when the parents are not able to marry off their daughters because of dowry, this brings in harassment to the family which leads the young girls to commit suicide to bring an end to the mental harassment to their families. It is a rather humiliating feat for girls who undergo such a turmoil they often find it best to end their lives to put an end to their parent’s sorrows and the humiliation that comes along with it. Illiteracy of girls– Many families do not send their girls to school. No education is provided to their daughters with a thought of saving the money being used for education to be used for the purpose of dowry. Education seems wasteful as eventually the girl would have to be married off.

Bride burning almost always ends in death of the bride. Wedding is one of strongest bond that exist between humans and both husband and wife have their own expectations and hope for their happy conjugal life, but not every time it comes out to be true for wife all her visions are dusted when this blight called dowry comes into the picture and when bride burning and death of the wife is a consequence. Dowry is a curse indeed it needs to be eradicated. Such instances of cruelty proves our greed and disrespect for every woman in our society. It portrays how few coins of metal cost more than our mother, sister, and daughter. We have honored own females as deities, we have touched their feet we have done everything to praise and worship them dutifully, but we have killed the one who needs to be worshipped. Hon'ble Mr. Justice Ranganath Misra, J. In the case of THLaxman compared newlywed girl as a plant and said “When a girl is transplanted from her natural setting into an alien family, the care expected is bound to be more than in the case of a plant. Plant has life but the girl has more developed one.”[12] But in reality instead of giving her a more developed life we have harassed her, beaten up and murdered, or are forced to commit suicide and the means adopted to cause these deaths are not very usual these include burning and poisoning. Nature of torture and harassment has taken such a form that these methods are not even used in hell to punish people like who actually commit these crimes in a very famous case of Asha rani where she was murdered for just Rs5000/- or an auto rickshaw, her father who fathered seven daughters could not afford to give that amount and had to suffer this humiliation of her daughter being beaten in his presence by her in-law in his own house. [13] Whereas dower empowers women to walk away with it after a marriage dissolves or not go into the marital house if the dower is not given in stipulated time and also spend it according to her needs in a marriage, A Hindu woman doesn’t even walk away alive if dowry is not up to the standards of the family of the groom.  Unprecedented reports of women being burnt to death isn’t new to the Indian society. Although there is no specified amount of Mahr, legally but it is understood that a moderation in the amount is viable according to the existing social model. There is an up rise in the expectancy of lower and lower demands of Mahr. Unfair amounts of Mahr are being received by several brides. Alarming amounts of Mahr which will never suffice the well-being or livelihood if in case of dissolution of marriage or death of husband. Exploitation has seeped into a customary act of honor and respect too. As the amount of Mahr alarmingly falls; dowry rises at disquieting rates. The more you bid for the better match is ensured so parents bid higher and higher suffocating under financial pressure and debt. Materialistic demands are ever changing and never ending. Dowry has opened up an entire market and another economic sphere where packages are up for grabs.

CONCLUSION

Sociologist Andre Beteille said “The constitution may indicate in which direction we are to move but the social structure will decide how far we are able to move and at what pace” or one could put it as: You can take the horse to the water but you can’t make it drink the water. Although Laws exist but are they sufficient? Is Islamic law really progressive or is nothing devoid of exploitation in a country like ours. As we started with Nehru, we must end with his wise words too and make it happen what he envisioned. “A new star rises, the star of freedom in the east, a new hope comes into being a vision long cherished materializes. May the star never set and that never be betrayed by!

BIBLIOGRPHY

1.      S.Gopal Reddy vs State Of Andhra Pradesh AIR 1996 SC 2184.

2.      Dowry prohibition Act 28 of 1961.

3.      Section 2 (b) Dowry prohibition Act 28 of 1961.

4.      Smt. Sowmithri Vishnu vs Union Of India 1985 AIR 1618

5.      The Indian Penal Code, 1860 (ACT NO. 45 OF 1860)

6.      The Holy Quran, Surah Al Nisa (The Women) Verse:4

7.      Roughly translated: Gift of a daughter

8.      Kapore Chand vs Nidar Kissa

9.      Hadaya:The Holy Quran.

10. Mansur vs Azizul AIR 1928, Oudh 308

11. State (Delhi administration) v. Laxman, AIR 1996 SC 250

12. Ashok Kumar v. State Of Rajasthan 1990 AIR 2134.

 

[1] S.Gopal Reddy vs State Of Andhra Pradesh AIR 1996 SC 2184.

[2] Dowry prohibition Act 28 of 1961.

[3] Section 2 (b) Dowry prohibition Act 28 of 1961.

[4] Smt. Sowmithri Vishnu vs Union Of India 1985 AIR 1618

[5] The Indian Penal Code, 1860 (ACT NO. 45 OF 1860)

[6] The Holy Quran, Surah Al Nisa (The Women) Verse: 4.

[7] Roughly translated: Gift of a daughter.

[8] Kapore Chand vs Nidar Kissa.

[9] Hadaya: The Holy Quran.

[10] Mansur vs Azizul AIR 1928, Oudh 308.

[11] Ashok Kumar v. State Of Rajasthan 1990 AIR 2134.

[12] State (Delhi administration) v. Laxman, AIR 1996 SC 250.

[13].Supra note. 11.

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