Payment of a dowry, gift — often financial, has a long history in many parts of the world. In India, the payment of a dowry was prohibited in 1961 under Indian civil law and subsequently by Sections 304B and 498a of the Indian Penal Code were enacted to make it easier for the wife to seek redress from potential harassment by the husband's family. Dowry laws has come under criticism that they are misused by women and their families.
Gifts given by the parents of the bride are considered "stri-dhan", i.e. property of the woman, traditionally representing her share of her parent's wealth .
This act prohibits the request, payment or acceptance of a dowry, "as consideration for the marriage". where "dowry" is defined as a gift demanded or given as a precondition for a marriage. Gifts given without a precondition are not considered dowry, and are legal. Asking or giving of dowry can be punished by an imprisonment of up to six months, or a fine of up to Rs. 5000. It replaced several pieces of anti-dowry legislation that had been enacted by various Indian states.
This Section of the Indian Penal Code was inserted by a 1986 amendment. The Dowry deaths law defines a 'dowry death' as the death of a woman caused by any burns or bodily injury or which does not occur under normal circumstances within seven years of her marriage. For a woman's death to be a dowry death, it must also be 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. If this is proved, the woman's husband or relative is required to be deemed to have caused her death. Whoever commits dowry death is required to be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
Section 498A was inserted into the penal code in 1983 it reads:
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.
In practice, cruelty is taken to include the demanding of a dowry. This section is non-bailable, non-compoundable (i.e. it cannot be privately resolved between the parties concerned) and cognizable (i.e. the police can arrest the accused without investigation or warrants) on a report from a woman or close relative. Another examples of a cognizable law in India was the Prevention of Terrorist Activities Act.
Police often file charges against the husband, his parents and other relatives (whoever being named on the complaint by the wife or her close relatives) and put them in jail. There is no penalty (even a fine) for filing a false case. Many individuals have claimed this is being abused by the wife or her close relatives.
In urban India, the majority of families have adequate knowledge regarding section 498A of the Indian Penal Code, 1860. The (all male) Malimath committee in 2003 proposed making amendments to this section although such amendments have been opposed by women's groups. The Centre for Social Research India has released a research report opposing amendments to section 498A. According to this report, in the studied cases there were no convictions based solely on section 498A. Although the report states that 6.5 percent of the studied cases were falsified. They also state that many people believe the law has been abused by "educated and independent minded women." A police official asserted that in his district one-third of dowry murder cases were found totally false by the police. .
However, on December 17, 2003, the then Minister of State for Home Affairs, Mr. 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."
On 20 July 2005, Justices Arijit Pasayat and H.K. Seema of the Indian Supreme Court declared Section 498A to be constitutional."The object is to strike at the root of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not an assassin's weapon. If [the] cry of "wolf" is made too often as a prank, assistance and protection may not be available when the actual wolf appears," the Bench said. .
Several reports of the abuse of Section 498A have involved couples based outside India especially in the US. The United States Department of State has published the following travel warning: A number of U.S. citizen men who have come to India to marry Indian nationals have been arrested and charged with crimes related to dowry extraction. Many of the charges stem from the U.S. citizen's inability to provide an immigrant visa for his prospective spouse to travel immediately to the United States.
The courts sometimes order the U.S. citizen to pay large sums of money to his spouse in exchange for the dismissal of charges. The courts normally confiscate the American's passport, and he must remain in India until the case has been settled.India
In a well publicized case, Dr. Balamurali Ambati, who earned his MD at age 17, and his family were detained in India for over 3 years in a suit related to alleged dowry demands by the family for his brother's wife Archana, which delayed Dr. Ambati's entry to the ophthalmology program for 2 years, leaving him to begin his residency in 1998. All charges against him were dismissed in October of 1996 and all his family members were acquitted in June 1999 . During the course of the trial the Ambatis produced a tape in which the father of Archana, demanded US $500,000 to drop all the charges although the details of this particular case are still debated in India.
Section 498A in itself is, however, not meant to deal specifically with dowry -- it is commonly considered to be a 'dowry law' because domestic violence against a wife related to dowry demands is considered to be within the scope of 'cruelty' envisaged by the Section.
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