Part 2
Analysis and Reflection
96
A
demonstration against dowries in New Delhi, India organized by Saheli a womans organization.
Photo: Sheba Chhachi, Lifetools.
97
Matrimony
Dowry:
commercial bargain with no ethical foundation
Monica Melanchton
".
. . her marriage came to a grinding halt on October
24, 1981. On that day, her husband and mother-in-law, it was alleged, took hold
ofNagamani, who was withering away in agony and
torture, and tied her to a pole in the storeroom. They poured kerosene and lit
the living pyre. Nagamani became a human torch,
burning in the fire of a dowry-seeking people ..."
"In
Delhi recently, one more beautiful, educated and accomplished housewife joined
the martyrdom of dowry deaths. This time, the helpless victim was Geeta Malik, a young mother of three ..."
"HUSBAND
HELD FOR DOWRY DEATH" "CBI TO PROBE MYSTERY DROWNING OF BRIDE ON
HONEYMOON" "DOWRY TO FINANCE BUSINESS" "SUICIDE TURNS TO
MURDER"
These
quotes, taken from journals and dailies, may sound shocking to the non-Indian
reader but in India hardly a week passes without the newspapers proclaiming
shrilly the death or harassment of another newly-wed woman. The cause of death
is often written off as suicide, but an investigation would bring to light the
true cause.
A
system of dowry exists in many cultures and societies, but nowhere has it
become such a colossal problem as in India. The system and its concomitant
evils are perhaps the best indicators of moral and economic norms in a society
which claims very old and rich cultural traditions. Elsewhere, in some
primitive tribes, the would-be groom has to pay a bride price and there is talk
of the woman being bought and sold like a chattel. The situation is reversed in
India; the husband, besides acquiring a woman who fulfils all the requirements
of wife, cook, housekeeper and mother, also demands an exhorbitant
dowry. If this is not paid, the husband and his family might, literally, reduce
the wife to ashes. 1
Dowry
giving is a commercial bargain with no ethical foundation. The system has
caused physical, psychological and financial hardship to parents who have more
daughters than sons as well as more daughters than wealth. Highly educated and
sophisticated families are ruthless when it comes to extorting money and
material goods from brides and their families. Marital discord results if the
parents of the bride or wife are unable to satisfy these ever-increasing
demands.
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Definition of dowry
In the
legal sense, 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 at or before or after the marriage as a consideration2
for the marriage of the said parties. 3
Historical background
Stereotyped
customs sometimes persist, irrespective of the harm or good they may bring to a
society. Legal reforms lag behind, and the legislators do not perform their
tasks well perhaps because they don't have a sense of the urgency of the task
or the power of social and economic conditions to limit legal rights and
duties. The custom of dowry giving thus continues to lead to economic
exploitation and ill treatment of brides, and humiliation of other people
affected by it.4
In India,
social and spiritual doctrines have a tremendous impact on the dowry system. It
is difficult to determine exactly how or when the practice began in India, but
there is no doubt that it has existed since ancient times. 5
In
Sanskrit texts, dowry is referred to as yautraka the material gifts which serve to
confirm the union of those joined together in matrimony. In one form of ancient
Indian marriage, a girl was given away upon her father's receipt of a bride
price called sulka a form of compensation to the girl's parents for the loss of
their daughter. The custom had fallen into virtual disuse by the early middle
ages, when it came to be regarded as disreputable because it made the father a
"seller of children". However, it is still practised
clandestinely where, for example, a wealthy old man who desires a young bride
will pay her father a large sum of money as a settlement for the daughter.
In
course of time, a gradual reversal of roles took place, and today it is the
groom and not the bride who commands the price. Some trace the origins of the
modern Hindu dowry system to ancient times, when a bride given to a brahmin was
decked with ornaments at her wedding. The jewels and adornments then passed to
her husband. Others believe that the custom originated with royalty: it was
among the aristocratic and royal families that brides were accompanied by
elephants, horses, gold, silver and the like at the time of marriage. What has
probably happened is that brides have always received some voluntary gifts of
valuable jewellery and garments, but this custom has
gradually turned into a commercial transaction between the families of the
bride and groom. With the emergence of pre-puberty marriage, families proud of
their ancestry were anxious to give away their daughters within a limited time.
In some cases, when the transfer of a woman from her own family to the
husband's family took place, a certain amount of wealth in cash or kind, agreed
upon by the parents of both parties, was also transferred in the same direction.
Today,
the groom's party often demands
a complete inventory of ornaments, clothing, cash bonds, utensils and other
properties that will accompany the bride before the marriage proposal is
accepted. This is regarded as the daughter's share in her family inheritance;
henceforth her
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husband must accept
all responsibility for her economic needs. The transfer of dowry should ensure
that the husband cannot, at any time in the future, accuse the woman of
"coming to him like a beggar".
Factors contributing to the
continuation of the dowry system
Apart
from its roots in Hindu culture, there are other reasons for the continued existence of the dowry system.
There
is widespread belief in India that the marriage of a man to a girl makes that
man superior to the girl's family. The transactions of the dowry system have
not, therefore, evolved in order to provide security for the newly married
couple but rather are based on the "disadvantage" that a woman
causes her husband; monetary compensation is deemed necessary to offset such an
unprofitable deal. This is one of the reasons why Hindus have ever dreaded the
birth of a daughter. Daughters are a heavy financial liability when they are to
be married, and a blot on the family if they remain unmarried,
It is
vital to the Hindu father that his daughter marries; he is prepared to pay as much as he can afford or
even borrow in order to obtain a suitable husband for her. The demand for
bridegrooms makes them much-sought- after commodities, and a "price"
is placed on grooms from even the most repectable
families.
Many
Indian men go abroad for higher education, for the sake of a bright career.
Once they have completed their studies, demand for them increases in the
marriage market. Plenty of offers are made, with the result that these young
men become conscious of their importance, and attach an unduly high value to their education and career. They become
selective in their choice of
partners: the girl needs to be smart, highly educated, accomplished in domestic
work, and from a rich and influential family. This intensifies competition
among the girls' parents, who are compelled to agree silently to the men's
demands. If the father has the misfortune to possess a daughter who is of dark
complexion, or in any way ugly or deformed, the amount of dowry to be given
increases. 6
Most
Indian colleges, both professional and non-professional, charge high capitation
fees. Educational expenses are also high. Some families donate large sums of money
to colleges in order to gain admission for their children. The expenses
incurred for education could amount to anything from Rs50 0007 to more than Rs300 0008 for
medical and engineering students. Many students want to recover their
educational expenses through dowry when they marry.
Parents
of daughters favour the dowry system when it comes
to taking dowry for their sons! When their sons marry, the parents demand huge
sums of money, anticipating that they might have to pay a similar amount when
their daughter weds. Through their defensive actions, these people also
contribute to the continuation of the dowry system. 9
Dowry
is considered by many Indian people to be dakshina an offering attending the gift of
the girl. They believe they cannot achieve salvation without fulfilling their
religious duty to give dowry to a daughter; it would be sinful if parents did
not give her gifts on her marriage. These people
100
believe that
happiness cannot dwell in their houses if they send their daughter or sister
away without giving her due share of dowry. Religion is therefore a strong
social force behind the retention of the dowry system. 10
According
to one leading Indian sociologist, Professor M.N. Srinivas,
the increase in dowry-giving is also attributable to a sharp increase in the
emulation of the higher castes by the lower castes. There is improved access to
education and jobs in the organised sector; dowry is
a practice adopted to exhibit a new status. The people of the lower castes are
of the opinion that "what is good enough for brahmins is good enough for
me"11. To this end they spend heavily or even borrow.
Another
major factor contributing to this evil system is the inheritance law. Until
comparatively recently, women were denied the right of inheritance. This led to
the rigidity of the custom of dowry among the propertied classes. But with the
passage of the Hindu Code Bill 1956
which, for the first time, conferred the right of property upon women and
entitled them to a share in the father's property previously bequeathed only to
sons, things have gradually taken a different turn and western values have
influenced the institution of marriage.
Besides
these factors, the modern Indian girl has also become status- conscious, and
often wants to marry someone of higher social standing who draws a large
income.
Consequences
The
very institution of marriage is being altered by this evil system. Marriage has
become a potential death trap for an increasing number of women, particularly
in the northern parts of the country. Instead of assisting newly- wed couples
to set up a household, dowry has become a major disruption of marital harmony.
It has taken the shape of a business transaction, in which material goods take
priority over the bride herself. The bride's parents are often taxed with
frequent fresh demands, even after the marriage. Inability to satisfy these
demands can lead to the wife bearing the brunt of her in-laws' anger, and to
psychological, social and economic problems for her family. The parents often
get into debt so heavy that it passes from one generation to the next. In cases
where a man has more than one daughter, he usually struggles to get them all
married, because he spends all his money and borrows more to get the eldest
married.
Law reform
The
dowry system has come in for scathing criticism from Hindu liberals. The
institution, they declare, ensures that the Hindu girl will have the best
husband that money can buy. According to the critics, the legislation passed in
1961 to restrict the operation of the dowry system has so far done little to
stop the custom; it has merely substituted the disposal of eligible bachelors
by private auction for the previous public sale.
The
genesis of the problem of cruelty towards women can be traced to the social
apathy of the Indian populace. Although the Indian Constitution provides for
equality of the sexes, with special protections for women and children, in
their family life Indians have been governed by personal and
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religious laws which
militate against women's interests. These laws have relegated Indian women to
an inferior position, both legally and socially. 12
The Dowry
Prohibition Act of 1961 has been totally ineffective because, although
it seeks to punish offenders, it is hard to see how they can be brought before
the court under this act, especially given the hidden nature of the offences.
The people of India are affected by innumerable superstitions, and it is
impossible to expect, as a sequel to a highly sanctified ceremony like
marriage, that a bride, groom or any near or distant relative would drag the
guilty parties to a court of law. This is clearly evident from the lack of
complaints since the passage of the act. 13
The Dowry
Prohibition Act defines dowry as 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 after the marriage as 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.
For the removal of doubts,
it is hereby declared that any presents made at the time of marriage to either
party to the marriage in the form of cash, ornaments, clothes or other articles
shall not be deemed to be dowry, within the meaning of this section, unless they are made as consideration for the
marriage of the said parties. 14
The Act further
states that the giving and taking
of dowry or its abetment, or the demand for it, has been made an offence to be
visited with imprisonment, fine or both.
But the
success of the act essentially depends on public co-operation. The legislation
has so far failed because of its self-contradictoriness and the mixed attitudes
found in the Indian society today. In order to be effective, the act should be
accompanied by political, social and economic changes in the status of women
both inside and outside the family. 15
A 1985
amendment has replaced the phrase "in consideration for the marriage"
with the words "in connection with the marriage". This has widened
and improved the definition of dowry: according to the old definition, things
given after the marriage could not be defined as dowry because they were not
given to effect the marriage. 16 The amendment recognises
that dowry demands often increase after marriage, when the bride is at the
mercy of her in-laws. The amendment also adds that presents shall not be
treated as dowry so long as "no demand has been made" for such
presents. A suggestion, by the committee which recommended the amendment, that
a ceiling be laid on such presents was overlooked. Hence, the problem continues
the in-laws' demands, made verbally, cannot be proven.
The
amendment continues: the "presents" should be of customary nature,
and the value thereof not excessive, having regard to the financial status of
the person by whom or on whose behalf such presents are given. But who decides
as to what is customary? What is excessive? The decision is left to the judge's
arbitrariness, giving play to individual biases and legal uncertainty. 17
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According
to this act, both the giver and taker of dowry are equally guilty. In both
cases the court has a discretion to reduce the minimum period of imprisonment
(six months). The amendment committee opposed this discretion as it would be
misused.
When both
parties are held guilty and are equally liable to punishment, the bride and her
parents become reluctant to prosecute the other party for fear of social
reprobation. They are afraid that the prosecution may rebound on themselves,
18 The amendment committee therefore recommended that the offence of
taking dowry be made cognisable, in order that anyone
might report it. But the new amendment has imposed certain limitations on this:
"any recognised welfare institution or organisation" has the right to complain if the
harassed woman or her relatives are not in a position to do so.
One of
the most laudable recent judgements which, in
immediate terms, will have a wide-ranging effect on dowry disputes, was passed
by the Supreme Court. It declared that all gifts to a woman at marriage
remained her absolute private property until the end, and that neither her
husband nor any other had the right to them without her sanction. Gifts of
cash, ornaments, silver, clothing or anything that constitutes dowry may be entrusted
by the wife to the husband, but the husband will be deemed "guilty of
criminal breach of trust" if he misappropriates or refuses to return what
the court regards "as the absolute and personal property of his
wife".19
Before
a 1983 amendment, the Indian Penal
Code defined cruelty as conduct which resulted in bodily injury to a
person. Evidence of physical injury had to be in the form of medical
examination. While a wife could seek divorce on the grounds of mental cruelty,
she could never demand any penal action against her husband on this basis.
20 But with the amendment, wife- beating, mental injury and harassment
are considered cruelty. The amendment defines cruelty as "any wilful conduct which is of such a nature as is likely to
drive the woman to commit suicide or cause physical or mental injury to
herself. It is also the harassment of the woman. . . with a view to coercing
her or her relatives to meet any unlawful demand for any property".21
Another
good feature of the amendment is that it states that, if a woman has committed
suicide within seven years from the date of the marriage, and it is shown that
her husband or his relatives had subjected her to cruelty, the court may
presume. . . that such suicide had been abetted by her husband or his relatives".22
As is
the case with most laws, these laws feature loopholes which the guilty person
can use to get away. Social injustices cannot always be solved through the
medium of legal safeguards alone. It is difficult to collect evidence of dowry
offences: neighbours are reluctant to offer
eye-witness corroboration. More social organisations
should vigorously take up the issue, thereby building up social resistance to
such behaviour.
Students
should be infused with high social ideals. If the male student decides not to
accept dowry in spite of his parents' coercion, this will have a good effect on
society. But for this to happen, a complete re-orientation of the education
system is necessary. Women should be encouraged through education to develop
whole personalities. Inter-caste, inter-religious and inter-lingual marriages
may also discourage the practice of dowry. They
103
would definitely
reduce competition among the girls' parents and encourage love marriages
instead of arranged marriages.
For
dowry to disappear completely which seems far off a major change in the
social value system has to come. Public opinion against the system needs to be
created with the help of the media, seminars, symposia and debates. Legal
deterrent punishment is likely to be abused by enforcement agencies like police
while the system has social and cultural approval.
Dowry among the Muslims
All
Muslim marriages involve mahr, a payment to the bride by the groom
and his family whenever she demands it. If so agreed, some or all the mahr may be paid at the wedding. Mahr
is usually given in cash, but may also include real estate and jewellery. The pledge of mahr
is said to be legally binding. The groom's kinsmen are also expected to provide
the bride with clothing and jewellery at the wedding.
23
All
Muslim brides are expected to bring dowries to their conjugal homes. These
range from a few cheap cooking pots to a grand array of household goods,
clothing, milking animals and even servants. Detailed lists of dowry items are
kept and, should a marriage end in divorce, a woman would, ideally, take her
dowry away with her. In practice, complete retrieval of a dowry is likely to be
difficult. The evils of dowry are being experienced by Muslim brides also.
Dowry among
Indian Christians
The
Indian churches also face the problem of dowry especially those with ancient
traditions in South Tamilnadu and Kerala, such as the Syrian Church. Believed
to have been founded by St Thomas the disciple of Christ, the Syrian Church has
many Hindu traditions woven into its Christianity. The dowry arrangement is
commonly accepted by the church; justified on the grounds that the bride is
bringing with her wealth equivalent to her share in the family property. In
order to avoid sub-division and fragmentation of immovable property, the female
members of the family are given their share in cash and jewellery.
If this really were true, it would probably be acceptable. But many grooms
choose girls who can afford to bring dowry that is satisfying to them. Until
recently, a certain portion of the dowry was given to the church as a gift.
There is, even now, a special ceremony among these Christians in the presence
of the local priest, to mark the giving of the dowry. The evils of the dowry
system are therefore experienced by the Christian community, no matter what justifications are put
forward.
Notes
1. See "The dowry evil" in The City
Tab, May 5-11, 1985, p 16.
2. The legal term consideration
refers to that which is given, or done, by one party as their contribution to a
contract. Consideration is necessary for the contract to have effect.
3. MOHAN, S., ed, Problem
of dowry in Bangalore city,
Bahni series. Joint women's programme
series, 1983, p 9.
104
4. HOOJA, S.L., Dowry system in India: a case
study, Dehli,
Asia Press, 1969.
5. Ibid, p 15.
6. MOHAN, op cit, p 28.
7. $ US 4 000.
8. $ US 24 000.
9. MOHAN, op cit. p 16.
10. HOOJA,
op cit, p 22.
11. See "Understanding
the dowry system", The Sunday Herald, April 28, 1985.
12. The City Tab, May 5-11, 1985, p 17.
13. ACHAR, M.R.,
and VENKANNA, T., Dowry Prohibition Act, Law Book Co, Allahabad, 1962, p v.
14. Ibid.
15. See Manushi journal about women in society, no 24, 1984,
p 20.
16. Ibid. p 29.
17. Ibid, p 30.
18. Ibid.
19. SETHI, S-,
"Dowry: a gift of justice", India Today, April 15, 1985, p 81.
20. Manushi,
no 24, 1984, p 28.
21. Stree,
no 8, March-April 1985, p 12.
22. Ibid.
23. AHMAD, I., ed. Family,
kinship and marriage among Muslims in India, Dehli, Manohar
Book Service, 1976.