(A special repeat project on)

Jurisprudence of Legal Rights and Duties

Submitted to: Submitted by:

Mr. Mohd. Atif Khan Lucky Tandon
(Assistant Professor)
Section C
Roll No.-75
Semester- VI, B.A.L.LB. (Hons.)

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, (C.G.)

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 DECLARATION
I hereby declare that the project work entitled “Jurisprudence of Legal Rights and Duties”
submitted to the Hidayatullah National Law University, Raipur is the original work done by
me under the guidance of Mr. Mohd. Atif Khan, HNLU, Raipur and this project has not
performed the basis for the award of any degree or diploma and similar project if any.

- Lucky Tandon

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 ACKNOWLEDGEMENTS
I Lucky Tandon feel highly elated to work on the topic “Jurisprudence of Legal Rights and
Duties I would like to express my deepest gratitude to Mr. Mohd. Atif Khan for his
continued guidance and support throughout the completion of this project and for giving me
the opportunity to expand my knowledge base by working on this topic .
.I would like to thank my family and friends without whose support and encouragement, this
project would not have been a reality. Some printing errors might have crept in, which are
deeply regretted. I would be grateful to receive comments and suggestions to further improve
this project report.

Lucky Tandon
SEMESTER-VI
ROLL NO.-75

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 TABLE OF CONTENTS
ACKNOWLEDGEMENTS ............................................................................................................ 2
TABLE OF CONTENTS ................................................................................................................ 3
INTRODUCTION .......................................................................................................................... 4
RESEARCH OBJECTIVE ............................................................................................................. 6
RESEARCH METHODOLOGY.................................................................................................... 6
HYPOTHESIS ................................................................................................................................ 6
CHAPTERISATION ............................................................................................................................................. 7

SCOPE AND LIMITATION: ............................................................................................................................. 7

CHAPTER I ............................................................................................................................................................. 8
THE CONCEPT OF DOWRY ........................................................................................................................... 8
CHAPTER II ........................................................................................................................................................... 13
FACTORS ENCOURAGING DOWRY ....................................................................................................... 13
CHAPTER III ........................................................................................................................................................ 16
DOWRY AND STRIDHAN ............................................................................................................................. 16
CHAPTER IV ........................................................................................................................................................ 17
DOWRY AND LAW .......................................................................................................................................... 17
CONCLUSION ............................................................................................................................ 29
BIBLIOGRAPHY ........................................................................................................................ 31

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 INTRODUCTION
The development of society is credited to the constant evolution of law. When people come
into contact with each other, everyone has certain rights and duties obligated towards one
another. Rights and duties are the pillars of law, and hence consequently protected by it. Both
these concepts are intertwined.
Definition of Right
The definition of legal rights have been propounded by several famous legal philosophers
Some of the definitions may be illustrated as under :
1. Jhhn Austin – According to Austinb, “ A party has a right when another or others are bound or
obligated by law to do or forebear towards or in regard of him”. This definition is not widely accepted.
It was stated by John Stuart Mill that the act reffered by Austin should be in the interest of the person
who can be said to have the right. He illustrated with an example by stating that when a prison is
sentenced to death the jailor is bound to execute him . Does this mean that the convict has the right to
be hanged?
2. Rudolf Von Jhering- Defined rights as “legally protected interests”. The law does not protect all such
interests. The interests of men conflict with another and the law, is the rule of justice and protects only
certain interests.
3. John Salmond- Salmond defines right as an intrest recognised and protected by a rule of justice. He
says, for an interest to be regarded as a legal right, it should obtain not merely legal protection but also
recognition. The law protects cruelty against animals and to some extent the interest of animals, but
animals do not possess any legal rights.
4. Holland- Legal rights were defined by Holland as “ The capacity residing in one man of controlling,
with the assent and assistance of the state the action of others “ He followed Austin’s definition.
5. Gray- He defined a legal right as “ That power which a man has to make a person or persons do or
refrain from doing a certain act or act, so far as the power arises from society imposing a legal duty
upon a person or persons :. He states that the “right is not the interest itself, it is the means to enjoy the
interest secured
6. Supreme Court of India- The apex court defined legal right in the case of State of rajasthan v. Union of
india1 as: “In strict sense , legal right s are the correlatives of legal duties and are defined as interests
whom the law protects by imposing corresponding duties on others . But in generic sense the word
‘right’ is used to mean an immunity from the legal power of another in the same way as liberty is an
exemption from the right of another, immunity, in ,short is no subjection.

1
AIR (1997) SC 1361]
Theories of legal right

There exists two main theories of legal right –1 The will Theory and 2. The interest theory

The will theory of legal rights –

The will theory states that right is an inherit attribute of the human will. It says that the purpose of the law is to
allow the free expression of human will. This theory was advocated by scholars like – Hugo, Kand, Hume and
so on. The subject matter is derived from human will. Austin , Holland, and Pollock define rights in terms of
will. According to the famed French jurist , John Locke “the basis of the right is the will of the individual “
Puchta defined legal right as a power over an object which by means of right can be subjected to the will of the
person enjoying the right. This theory has been widely accepted by the jurists in germany.
Despite its wide acceptance, there were many scholars who disagreed with it.
Some of the criticisms were from duguit who is opposed to the “will” theory. According to him the basis of law
is the objective fact of “social solidarity” and not the subjective will. The law is to protect only those acts or
rights which further ‘Social solidarity’ . He calls the theory of subjective right a mere metaphysical abstraction.

The interests Theory of legal rights

The interest theory of legal right was proposed by German jurist Rudolph Von Jhering. Jhering defined rights as
legally protected interests. Jhering does not emphasise on the element of will in alegal right . He asserts that the
basis of legal right is ‘Interest” and not ‘Will’. The maiu object of law is the protection of human interest and to
avert conflict between their individual interest. These interests are not created by the state but they exist in the
life of the community itself. Salmond has criticized Jherings theory on the ground that it is incomplete since it
completely overlooks the element of recognition by a state. A legal right should not only be protected by the
state but also be legally recognized by it. Gray stated that the theory was only partially correct. He emphasised
that a legal right is not an interest in itself but it is only a means to extednd protection of interests. He considers
legal right as that power by which a man makes others person do or abstain from doing a certain act by imposing
a legal duty upon them through the agency of law ‘state’
Both these theories are not opposed to each other, it is rather a combination of both that is correct. Dr. Allen has
tried to blend theses two theories by pointing out that the essence of legal right seems to be, not legally
guaranteed power by itself nor legally protected interest by itself, but the legally guaranteed power to nrealise an
interest. Thus, it would be sensible to say that both ‘will’ and ‘interest’ are essential ingredients of a legal right.

Elements of a legal right

According ti sir John Salmond each legal right has 5 essential elements-

1. The person of inheritance – It is also known as the subject of right. A Legal right is always vested in a
person who may be distinguished, as the owner of the right, the subject of it or the person who may be
distinguished, as the owner of the right, the subject of it or ‘the person of inheritance’. Thus, there
cannot be a legal right without a subject or a person who owns it. The subject means the person in
whom the right is vested or the holder of the right. There can be no right without a subject. A right
without a subject or a person who owns it is inconceivable. The owner of the right, however, need not
be certain or determinate. A right can be owned by the society, at large is indeterminate.
2. The person of incidence- A legal right operates against a person who is under the obligation to obey or
respect that right. He is the ‘ The person of incidence’. He is a person bound by the duty or the subject
of the duty.
3. Contents of Right- The act or omission which is obligatory on the person bound in favour of the
person entitled. This is called the context or substance of the right it obliges a person to act or forbear in
favour of the person who is entitled to the right . It may also be known as the substance of the right.
4. Subject matter of the right- Salmond has given the fifth element also, that is, ‘title’. He says that
‘every legal right has a title ,that is to say certain facts or events by reason of which the right has
become vested in its owner’
Hence it can be observed every right involves a threefold relation in which it stands
1. It is a right against some person or persons
2. It is a right to some act or omission if such person or persons.
3. It is a right over to something to which that act or omission relates

The term ‘person’, ‘act’, ‘thing’ are connected with the term ‘right’

A popular illustration that was quoted by Salmond satisfies all of the above mentioned elements of
legal rights. It is as follows –
“If “ ‘A’ buys , a piece of land from ‘B’, “A” is the owner of the right so acquired. The persons bound
by the correlative right are persons in general, for a right of this kind avails against all the world. The
object or the subject matter of the right is the land. And finally the title of the right is the conveyance by
which it was acquired by the previous owner”

Kinds of legal Right

Jurists have classified legal rights in the following ways-

1. Primary and secondary rights
2. Public and Private rights
3. Positive and negative right
4. Vested and contingent
5. Perfect and imperfect right
6. Principal and accessory rights
7. Legal and Equitable rights
8. Proprietary and personal rights
9. Rights in rem and rights in personam
10. Rights in re proporia and rights in re aliena

Primary and secondary rights-

Primary rights also called as antecedent rights. It is vested within a person by law or any other legal
manner. These are the bundles of those rights which are the privileges enjoyed by any person e.g. a
person’s right to liberty.

A violation or breach of duty of the primary rights, on the other hand, gives rise to a sanctioning right
or essential right. These are also known as secondary rights. It is also called remedial or adjectival
rights.
It is sub-divided into two types
1. Right to exact and receive a pecuniary penalty from the defendant for loss or right and
2. Right to exact and receive damage for the injury caused to the defendant
It can be said that the primary rights exists independently whereas secondary rights have no
separate existence and arise only on the violation of primary right
https://www.legalbites.in/rights-duties-jurisprudence/

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 RESEARCH OBJECTIVE
1. To understand the concept of dowry and stridhan.
2. To study the shortcoming of the relevant provisions.
3. To understand the concept of dowry death.

RESEARCH METHODOLOGY
The research methodology used in this project is analytical and descriptive. It is largely
based on electronic and secondary sources of data. Data has been collected from various
books, articles, papers and web sources.

HYPOTHESIS
It seems that in a society which is highly divided into social stratification, wiping out
custom which is so deeply rooted is not an easy task and will require many more years for
it to be completely be gone from the society. Laws alone cannot cure the social maladies,
there has to be a strong campaign for creating awareness among young men and women
and society. Women need to be empowered so that they can take their decisions. Above
all the social attitudes and mindsets of society and people should change first.

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 CHAPTERIZATION:
CHAPTER I: THE CONCEPT OF DOWRY
CHAPTER II: FACTORS ENCORAGING DOWRY
CHAPTER III: DOWRY AND STRIDHAN.
CHAPTER IV: DOWRY AND LAW.

SCOPE AND LIMITATION

The research is limited to the problems that arise to the women and her family in India due to
the evil practise of dowry. In light of the Dowry Prohibition Act, the research is limited to the
shortcomings of the law incorporated for prevention of dowry and measures to overcome the
same.

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 CHAPTER I
CONCEPT OF DOWRY

MEANING OF DOWRY:

‘Dowry’ in its different varieties, was known as ‘dos’ in Indian, ‘Dot’ in Africa, and ‘Mulug’
in the early centuries of Christian era. Any property which is given to the groom at the time
of marriage is, according to Encyclopedia Britannica1, called dowry.

Similarly, according to Encyclopedia America "a dowry is the property that brides family
gives to the groom or his family upon marriage.2 Ordinarily dowry is the property which a
man receives when he marries, either from his wife or from her family."3 As per Advanced
20th century dictionary- "dowry means property etc. which a wife brings to her husband in
her marriage".4

According to Webster Dictionary, it means "money, goods or estate that a woman brings to
her husband at marriage." according to the Cambridge Dictionary it is "property which a
woman brings to her husband at marriage." The dictionary meaning of dowry is different
from the one given in the Dowry Prohibition Act.

Thus the term ‘dowry’ denotes property, whether real or personal, which a wife brings to her
husband on marriage, In other words the property which the husband receives from his wife
or her family upon marriage is called dowry.

Dowry in legal terms means "any property to variable given by one party to the other party at
before or after the marriage as consideration for the marriage." In common terms it means
nothing but an unwilling extraction from bride father of all the things that the bridegroom
parents desire for agreeing to accept the girl in marriage to their son.5

1
Encyclopedia Britannica, lithe Ed. pp. 461, 564.
2
Encyclopedia Americana, pp 321.
3
Encyclopedia of the Social Sciences.
4
Advanced 29th Century Dictionary.
5
Encyclopedia of Women in India.

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Dowry Prohibition Act, 1961 defines dowry, “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 dowry or mehar in the case of
persons to whom the Muslim Personal Law (Shariat) applies.”6

Under the definition of Dowry under the act the term ‘valuable security’ shall have the same
meaning as given in Indian Penal Code which is reads as under: The words “valuable
security” denote a document which is, or purports to be, a document whereby any legal right
is created, extended, transferred, restricted, extinguished or released, or whereby any person
acknowledges that he lies under legal liability, or has not a certain legal right.7

Earlier, the definition of ‘dowry’ that was limited to the time at or before the marriage was
extended to the period even after the marriage by the Act 63 of 1984 w.e.f. 02.01.1985.
Another amending Act of 1986 introduced another change in the definition of dowry by
substituting the phrase ‘or any time after the marriage’ for ‘after the marriage’ is Section 2 of
the Act whereby the continued demand for dowry long after marriage was expressly within
the mischief of the law.8

Origin of this evil:

Hindus conceived of their marriage as a sacramental union - a sacrosanct, permanent,
indissoluble and eternal union. Hindus did not regard it as a contract, but as a tie which once
tied cannot be untied. Wife was not just considered ‘Patni’ but ‘Dharampatni’ - Partner in the
performance of spiritual as well as secular duties.

When the concept of marriage in Hindu is considered a sacramental and eternal bond. Then
concept of dowry, a social evil becomes alien to this bond. Bond of marriage has its

6
§ 2 of Dowry Prohibition Act, 1961.
7
§ 30 of India Penal Code
8
Sriniwas Gupta : Dowry Prohibition : Law Needs more Teeth. 1990(0) 30 SD 15-21.

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foundation in mutual love, respect, trust, faith, but greedy nature of human being, which
creates lust for dowry shakes this bond, and shatters it like a storm.

Mahatma Gandhi once said: As a bride, the queen of household, the Sahadharmini, the
Bharya and the equal partner with her husband has become worst target of social and
economical exploitation in demands of dowry. Dowry death is a deep-rooted social evil. This
system of dowry was not always prevalent in the Indian society.
There was no demand as such of the money or other items as nowadays. The gift given by the
parent to the bride at the time of marriage was only to start her new marital life and was out
of love and affection which has changed over the years.

In India, it is difficult to determine exactly how or when the practice of Dowry began, but
there is no doubt that it has existed since ancient time.9 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".
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 believe that the present dowry system has its origin to the twin Hindu marriage rites
viz. Kanyadan and Varadakshina. According to the Hindu shastras the meritorious act of dan
or ritual gift is incomplete till the receiver is given Dakshina. So when bride is given over to
that bridegroom he has to be given something in cash or kind which constitutes Varadakshina
thus Kanyadan became associated with Varadakshina i.e., the cash or gift in kind by the
parents or guardian of the bride to the bridegroom.

9
Hooja, S.L., Dowry system in India: a case study, Dehli, Asia Press, 1969.p. 15

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It is submitted that Varadakshina has not been prevalent among all Hindus it has prevailed
only among certain castes of brahmans. The committee abruptly equated it with dowry, the
Varadakshina or dowry in those days includes ornaments and clothes which the parents of the
bride could afford and were given away as the property of the bride hence was offered out of
affection and did not constitute and kind of compulsion or consideration for the marriage. It
was a voluntary practice without any coercive overtones.

Originally what was given out of affection and humility as Stridhan and Varadakshina came
to be commercialize. Virtue was vulgarized and like securities the market is also fluctuating.
The ‘duty of giving dowry later became the essential negotiation of marriage transact in
ancient India.

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 CHAPTER II
FACTORS ENCOURAGING DOWRY

Social malady of dowry is a gift of the society to itself. Dowry is a creation of a human being.
The cause for existence of this social evil may be found in society itself. Immoral person has
misused and abused the usage of giving customary gifts by parents, brothers and their
relatives to bride at the time of marriage. There are many factors responsible for existence of
this social evil in society.

Some factors may be output of society itself. Some factors may be resting upon the economy
of nation. Some factors may be creation of culture of society. Lack of enforcement machinery
for implementation of Parent Act is also main factor for this social evil.

One solitary factor cannot be responsible for existence of this problem in society. All the
factors are co-jointly providing the conducive environment for existence of this social
malady. Some factors are present in society since a long time. Some factors may be gift of
modem social, cultural and economic set-up.

1) SOCIAL FACTORS –
Dowry has its roots and existence in old prevalent custom which is being followed by the
people, since time immemorial i.e., offering the gifts voluntarily out of love and affection and
regards to the girl before marriage, at the time of marriage and thereafter by the parents,
relatives and common friends/ neighbours.

A) Materialistic Attitude of Society:

Industrialization and modem scientific development and research have made the life of
individual materialistic and attitude of society has become materialistic. Everybody in society
wants to become the owner of luxurious consumer goods like. TV, Fridge, Washing Machine,
and Cellular Phone etc. These things have become the status symbol of prosperity and it also
depicts the economic standard and living standard of a person. Soundless of marriage is
adjudged and measured from the gifting of these articles in marriage.

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B) Lust for suitable match for girl:
Every parent has eagerness for good matching for her daughter. He wants that matrimonial tie
of her daughter must be established with well-established suitable match. So they try their
level best to give tire dowry as for the expectation of them. The urge of suitable match is also
the cause of existence of social evil of dowry in the society.

C) Lack of Education in Female :

Financial crises in poor family and other class, the girl fails to get education.The girl looks
after the affair of family. When family has number of children, then parents give attention
towards the male member only. Due to lack of education female child before the marriage
remains dependent upon her parents or brothers, and after marriage they remain dependent
upon his husband. This financial dependency of woman is also a cause of existence of evil of
dowry in Society.

D) Attitude of Society:
The dowry causes addition in wealth or unscrupulous person. Such kind of tendency and
basic instinct of human being is also a cause, why this social evil of dowry is in existence in
society. A dire need is to cause change in social attitude of society.
Unfortunately, the spread of education has not helped in curbing the social evil of dowry,
rather the educated youth has become more demanding as he along with his parents want to
recover every money spent on the education of young man.

2) ECONOMIC FACTORS-
A) Concentration of Wealth in Hands of Elite:
Proper non-implementation of Income tax and wealth tax law has concentrated the wealth and
monetary resources in a particular class of people, they are becoming rich and rich day by day
and poor is becoming poor day by day. They have accumulated the black and unaccounted
money.
Marriage occasion is the time when they siphoned out their money and they spend lavishly in
the marriage of their daughter and son. Middle class people also follow their path and they
raise the demand as per their status.

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B) Economic Structure:
Economic structure of a country determines the attitude of people. Now days our economy
has changed from agricultural base to industrial base. Industrialization paves the way for
capitalism. In such economy maximum manufacture of luxurious consumer goods take place.
It makes the life of citizen luxurious and materialistic.
People strive for attaining more and more luxurious goods. It develops the materialistic
attitude in the society.
Marriage is occasion to satisfy this urge and to acquire such luxurious goods. Economic
factor is also responsible for existence of social evil of dowry.

C) Moral and Cultural Values:

Moral value responsible for existence of social evil is that every parents want to give some
kind of financial help to her daughter in form of cash, jewellery and other stridhan. But this
moral value has been misused and abused by the persons to satisfy their demand.

D) Lack of Awareness in Respect of Dowry Prohibition Legislative Measures:

Due to their illiteracy women always lead their lives like a domestic women. Due to lack of
education, they fail to know their legal rights recognized and protected under law. They
remain unaware about the legislative measures for redressal of their grievances.

They remain unaware about the machinery of the law established under law to enforce the
social beneficial legislation. Women are not aware, what kind of procedure should be
followed for enforced their substantive right. They remain unaware about the procedure for
filing the complaint. They kept on tolerating harassment on account of dowry demands.

Moreover, state machinery has failed to propagate and circulate the dowry prohibition
measure in a simple tongue and in language of common masses to make them popular.
When cruelties caused by husband and his relatives become intolerable and unbearable then
they commit the suicide or left the matrimonial home and form the company of her parents.

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 CHAPTER III
DOWRY AND STRIDHAN

The term Stridhan first occurs among the smrities in the Dharmasutra of Gautama and
literally means womans property. The Mitakshara and the authorities that follow it take the
Stridhan in its etymological sense as including all kinds of property of which a woman has
became the owner whatever be the extent of her rights over it.

There is a widespread confusion and misconception that the present dowry system has its
origin to the twin Hindu marriage rites, viz., Kanyadan and Vardhakshina
Manu enumerates six kinds of Stridhan □ Gifts made before the nuptial fire; □ Gifts made at
the bridal procession; □ Gifts made in token of love and affection; □ Gifts made by father; □
Gifts made by the mother; □ Gifts made by a brother;10

Whether a particular kind of property is Stridhan or not. depends on — □ the source form
which the property was acquired; □ her status at the time of acquisition, that is whether she
acquired it during maidenhood, overture, or widowhood; and lastly, □ the school to which she
belongs.
It has been held by the privy council that share obtained by a widow on partition is not her
Stridhan.11
Stridhan is not dowry. Dowry has always been, and conceptually and essentially that property
which is obtained under duress, coercion, or pressure. It is that property which is extorted
from the father or guardian of the bride by the groom or his parents, or other relations. Thus
dowry is not presents made to the bride and bridegroom.
The dowry- the social evil- cannot be thus traced to Kanyadan and Varadakshina. Since under
Hindu law it is customary for a parent or rather the parent is duty bound to give his daughter
in marriage. Dowry has to be distinguished from Stridhan - Sanayika Stridhan (particularly
the yauktaka which constitute of gifts received by the bride at the time of marriage)- which is
her absolute property.

10
Manu , ix, 194.
11
Debi Mangal Pd. v. Mahadeo Pd. (1912) 34 All. 234
 CHAPTER IV

DOWRY AND LAW

From the perusal of the law on dowry one gets the impression that the legislature has done all
it possibly could, to curb not only the giving, taking and demanding of dowry but also the
related aspects in matrimonial relationship which tend to violet the dignity of married woman.

In spite of some sincere efforts made for trimming up the wings of this deep rooted social
evil, one legislature failed to do away with this giant social evil. Since 1961, many dowry
prohibiting provisions have been enacted by the States and Central Government of India to
eradicate this problem.

The Dowry Prohibition Act of 1961 has been 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.

Dowry definition- A 1985 amendment has replaced the phrase "in consideration for the
marriage" with the words "in connection with the marriage" under the definition of Dowry.
This has widened and improved the definition of dowry: According to the old definition,
things given after the marriage could not be defrned as dowry because they were not given to
effect the marriage.12 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.

12 The dowry prohibition (Maintenance of lists or presents to the bride and bridegroom) rules 1985,
Helpline Law, www.helplinelaw.com

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Both parties are held guilty- According to this act, both the giver and taker of dowry are
equally guilty. 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, 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.

Also when presents are made by or on behalf of the bride, only such presents are saved which
are of the 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

Difficulties in gathering evidence- At the time of dowry death there is the difficulty of
obtaining the evidence because death has occurred inside the house and nobody other than
the possible culprits have any firsthand knowledge of how it is occurred. Because relations
between the wife and her husband and in-laws is a private matter known only to 225 the
family.
Though the neighbours notice harassment of a bride they may rarely take serious interest
considering such matters as ‘private or family affairs’. Public outcry against ill-treatment of a
bride though hard occasionally, may not happen every time.
In many instances where husbands were obvious offenders, the dying woman might hesitate
to make a statement before the police or the magistrate against her husband or even in-laws
considering the fate of her children after her death and for fear of bringing bad name to her
family. As such gathering evidence about such crimes is rather a difficult task and several
other sources of evidence have to be used to corroborate the commission of crime.

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Recovery of Dowry & Presents- Section 6 of the Act, is the most salutary provision. It
protects the interest of woman/bride by providing that the dowry received by any person is
obliged to transfer under the pain of punishment to the bride. If bride dies before receiving it,
her heirs are entitled to claim it from the person holding it. These provisions have proved
inadequate because :

• the offences become prematurely time-barred; • the bride may fear that if she proceeded
under Section 6 of the Act to recover her dowry it would expose her parents to criminal
prosecution for giving dowry under Section 3 of the Act;

The lack of control of the bride over dowry property and misappropriation of dowry by
groom’s family have been sources of conflict between families which frequently resulted in
the persecution of the bride. Here it may be suggested that where the bride has been burnt to
death or died due to torture and if there are no heirs, parents or children, after her death, the
husband or in-laws should not be allowed to enjoy benefits of the property of the ill fated
woman.

Dowry Offences- The offenders guilty of taking or giving of dowry or of its abetment, 13 or
demanding of dowry are liable to punishment with a mandatory minimum of five years
imprisonment along with fine which shall not be less than Rs. 15,000 or the amount of the
value of such dowry, whichever is more .14
However, the discretion of the court to reduce the mandatory minimum punishment after
recording adequate and special reasons for the same; appear to be inconsistent with the policy
of punishing dowry offenders effectively. Such provisions may be omitted and dowry
demanders and takers should be given no such attitude in this regard.15

The Criminal Law (Second Amendment) Act, 1983 (No. 46 of 1983)

To strengthen the Parent Act, The Dowry Prohibition Act, 1961, the Parliament has enacted
and inserted some new statutory provisions in Indian Penal Code and the Indian Evidence
Act viz. Section 304-B and 498-A IPC 113-A and 113-B Indian Evidence Act.

13
§3, The Dowry Prohibition Act, 1961
14
§ 3(1),and § 4 as amended by the Dowry Prohibition Act, 1986.
15
Niranjan Lai Gupta ‘.Protection of Women, JLS, 1986-88.

20
Seeking Further Amendment of S. 498-A of IPC-
The insertion of Section 498-A of the Indian Penal Code was certainly the need of the hour in
order to protect the destitute wedded wives from torture and cruelty husbands and in-laws for
their wrongful gain. It covers the cases of cruelty and states-
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. After enactment Section 498-A of Penal Code, a number of
innocent families have been put to unnecessary harassment. The wedded ladies cannot be
termed or said to be fair in all the cases. The new Section 498-A is now-a-days found to be
misused in a number of cases.

Distinction between Section 304-B and Sec. 302 of IPC

Crimes such as bride-burning and abetment of suicide come within the purview of Sections
302, 304-B, 306 and 498-A, IPC. The offences are relatable to demand of dowry and non-
fulfilment thereof at the time of marriage or even thereafter.
There are criticisms against section 304-B IPC. By introducing this section, a distinction has
been created between this section and section 302, IPC. Scope has been left for a culprit to
escape the maximum punishment of death, because the maximum sentence under Section
304-B is imprisonment for life and the minimum is seven years imprisonment.

DOWRY DEATHS

Bride burning is a shame for our society. Obviously because it is basically an economic
problem of a class which suffers both from ego and complex. Unfortunately, the high price
rise and ever increasing cost of living coupled with enormous growth of consumer goods
effacing difference between luxury and essential goods appear to be luring even the new
generation of youth, of the best service, to be as much part of the dowry menace as their
parents and the resultant events flowing out of it.
Dowry killing is a crime of its own kind where elimination of daughter-in-law becomes
immediate necessity if she or her parents are no more able to satiate the greed and avarice of
her husband and his family members to make the boy available once again in the marriage
market.

21
This has become such a menacing reality that Parliament has to make a dowry related death
as crime by inserting section 304 -8 and 498- A in Indian Penal Code, 1860 and sections 113
-A, 113-8 in Indian Evidence Act, 1872.
Although these amendments have given the fruitful results and improved the position of
women in our society but it requires the implementation of law in true letter and spirit. Cruel
treatments and harassment to the women for bringing inadequate dowry are not being
completely controlled by the Act and lot need to be done.

In view of the nature of the dowry offences that are generally committed in the privacy of
residential homes and in secrecy, independent and direct evidence necessary for conviction is
not easy to get. Accordingly, the Amendment Act 43 of 1986 has inserted Section 113 B in
the Evidence Act, 1872 to strengthen the prosecution hands by permitting a certain
presumption to be raised if certain fundamental facts are established and the unfortunate
incident of death has taken place “within seven years of marriage”.

Presumption as to dowry Death:

Under Criminal Law, as a matter of rule, every accused is entitled to a presumption of

innocence until his guilt is proven beyond reasonable doubt. The burden of proving the guilt
of an accused lies on the prosecution throughout.
But, in a case related to dowry death, the prosecution has to prove only that a woman has
died a non natural death within seven years of her marriage and she was being tortured or
humiliated before her death for dowry. If this can be proven then the law presumes that it is a
case of dowry death and the burden of proving innocence is shifted on to the accused persons.

Essential Ingredient of Section 304B:

A careful analysis of Section 304B, I.P.C. shows that Section has the following
essential ingredients:-
(a) Death of a woman should be caused by burns or bodily injury or otherwise than
under normal circumstances.;
(b) Death should have occurred within seven years of her marriage;
(c) The woman must have been subjected to cruelty or harassment by her husband or
any relative of her husband;
(d) Cruelty or harassment should be for or in connection with the demand for dowry;

22
(e) Cruelty or harassment should have been meted out to the woman before her death.

In a case, what was allegedly asked for by the accused-husband and mother-in-law of
decreased was some money for meeting domestic expenses and for purchasing manure. Since
an essential ingredient of Section 304 -B, I.P.C. viz., demands for dowry is not established,
the conviction of the appellants cannot be sustained.16

In a recent case it has been held that the demand for ornaments worn by wife for the purpose
of sale will not come within demand of dowry. Therefore, suicide by the bride consequent on
demand of ornaments for the purpose of sale will not come within the offence punishable
under Section 304B I.P.C.17

In another case decided by Hon’ble Supreme Court, it has been observed by the Apex court
that the deceased had been harassed due to demand of dowry. About six months prior to the
occurrence, the appellant husband demanded Rs. 80,000/- for purchase of tractor.
However, the brother of the deceased could not fulfil the demand of money. Surender, the
deceased husband started beating the deceased and ultimately she was turned out of the
matrimonial house and went to her parent’s house. Thereafter, she was taken aback by the
appellant, but 10 days after she committed suicide. Accused are convict ed for cruelty and
dowry death.18

Legitimacy of marriage for affixing liability for dowry death:

What would be the liability of a husband in cases where the validity of the marriage itself was
disputed? In Reema Aggarwal v. Anupam19 the Supreme Court discussed the applicability of
anti dowry laws to cases where the validity of the marriage itself was in question.

Justice Arijit Pasayat stated that “the concept of ‘dowry’ is intermittently linked with a
marriage and if the legality of marriage itself is an issue, further legalistic problems do arise.
Even then, the purpose for which Sections 304-B and 498-A of the IPC and Section 113-B of
the Evidence Act were introduced cannot be lost sight of.

16
Appasaheb & Anr. v. State of Maharashtra, AIR 2007 SC 763
17
Babu v. Padmanabhan, 2005 (1) RCR (Criminal) 373 (Ker.)
18
Surender v. State of Haryana, 2007 Cr. L.J. 779(SC)
19
(2004 Cr.L.J.892 SC)

23
The obvious objective was to prevent harassment to a woman who enters into a marital
relationship with a person and later on becomes a victim of the greed for money.
Can a person who enters into a marital arrangement be allowed to take shelter behind a
smoke screen to contend that since there was no valid marriage the question of dowry does
not arise? Such legalistic niceties would destroy the purpose of the legislation.

The legislative intent is clear from the fact that it is not only the husband but also relatives of
the husband who are covered by Section 498-A. Legislature has taken care of children born
from invalid marriages and Section 16 of the Hindu Marriage Act, 1955 accords legitimacy to
the children of void and voidable marriages.

If such restricted meaning is given it would not further the legislative intent. On the contrary
it would be against the concern shown by the legislature for avoiding harassment to a woman
over demand of money in relation to marriages.
The expression ‘husband’ should be construed to cover a person who enters into a marital
relationship and, under the colour of such proclaimed or feigned status of husband, subjects
the woman concerned to cruelty or coerce her in any manner or for any of the purposes
enumerated in the relevant provisions i.e. section 304-B and section 498-A.

Whatever be the legitimacy of marriage, in cases of this nature statutes have to be purposively
construed so as to give effect to the legislative intent and fulfil the purpose with which such
provision was enacted.

Punishment for Dowry Death:

Generally, the legislature prescribes the maximum punishment that can be awarded in case of
a particular crime and the judges have a discretion to award lesser sentence, if they deem it
appropriate to do so, but in case of Dowry death, the minimum punishment to be awarded has
been laid down as 7 years and the judges have liberty to award higher sentences.

Although the 18th Law Commission has recommended increasing the minimum sentence in
dowry death cases to ten years from the present term of seven years but the suggestion to
increase the maximum punishment from life imprisonment to death sentence was turned
down. The report on 'Dowry Death' was handed over by the chairman of the commission,
Justice A.R.Lakshmanan, to the Union Law Minister, HR Bhardwaj, on 10th October, 2007.

24
The report looked into the feasibility and desirability of awarding death penalty in dowry
death cases and finally submitted that, “It may be pertinent to point out that where a case of
dowry death also falls within the ambit of the offence of murder, awarding death sentence
may be legally permissible.

The guidelines laid down by the Supreme Court for award of death sentence, especially the
dictum of the ‘rarest of rare cases’, will, however, have to be adhered to in such cases. There
are misgivings & misapprehensions associated with dowry death. It is quite often confused
with the offence of murder. There may be instances where the two overlap. This gives rise to
the demand for parity in the matter of sentence in both cases. Nevertheless, the two offences
are distinct & independent offences”

25
SUGGESTIONS :
The need of the hour is to replace hatred, greed, selfishness and anger by mutual love, trust
and understanding and if women were to receive education and become economically
independent, the possibility of this pernicious social evil dying its natural death may not be a
dream.
The fact remains that dowry being a socio-legal problem, it cannot be tackled by law alone
unless members of the society come forward and actively cooperate with the law-enforcement
agencies to abate this menace.

There is also need to create social awareness and mobilise public opinion against dowry
through an intensive educational programme at all levels, particularly in the rural pockets.
More recently, a number of voluntary non-governmental agencies and social organisations are
doing a commendable work in helping the dowry victims and exposing the perpetrators of
dowry crimes with the help of community assistance and guidance, the legal aid workers
including the law teachers and students should also take initiative in dowry eradication
campaign through an intensive legal literacy programme not only in urban cities and towns
but in remote village areas as well.

1) Appointment of Dowry Prohibition officer-

Preventive steps like appointing Dowry Prohibition Officer should be immediately undertaken by all
the State Government. The duty of the officer should also include creating awareness against the
practice of dowry among the public by conducting seminars, etc. Some state government had created
the institution of Dowry Prohibition Officers, to prevent giving or taking of dowry, but in several
states not a single case has ever been reported by DPOs.

2) Legal help to victims-

Since most victims cannot interpret the law, while many accused had not even ‘heard of’ 498 A &
304B till they found themselves behind bars. Legal help may be provided to protect the interest of
thousands of accused and arrested men and their family members.

3) Creating awareness about penal provisions-

It has suggested that there is a dire need to create awareness about the penal provisions of the section
amongst the poor and hapless rural women ‘who face quite often the problems of drunken
misbehaviour,’ by having ‘easy access’ to the Taluka and District level Legal Services Authorities

26
and/or credible NGOs. The lawyers and the police should also be reminded what is expected of them
‘morally and legally.’

4) Education of women to curb dowry deaths-

A social movement of educating women of their rights particularly in rural areas is needed. It also
seems that once education and economic independence for women are achieved, the evil of dowry
would vanish itself .For better results a publicity drive should also be started to inform people at every
level about the nature of legal control of dowry. A major thrust to enforcement schemes should also
be given. Awakening of the collective consciousness is the need of the day.

5) Appointing an advisor to the police department to handle women's issues-

At present the police department is primarily dominated by men; women are sidelined to occupy
subsidiary positions. Even though senior lady police officer behaves and acts 292 professionally,
objectively and in a socially acceptable manner.

6) Deterrent Punishment for Dowry Deaths-

Amendment should be made in section 304B of the Indian Penal Code for providing deterrent
punishment of Death Penalty in dowry death cases.

7) NGO and Police Partnership-

Dowry deaths happened when suffering of women crosses the limit of tolerance. In view of the
growing cases of domestic violence against women, the police leadership at the state level should take
adequate measures to sensitize and to motivate the police staff at district level and to co - ordinate
with local NGO's. Govt. should not interfere in the working of their NGOs and these NGOs may be
given legal status for the purpose of providing helping hand to women.

8) Responsibility of courts-
Courts have to assume a greater responsibility and it is expected that the courts would deal with such
cases in a more realistic manner and would not allow the criminals to escape on account or procedural
technicalities.

9) Speedy clearance of Dowry cases-

Under the directive of the Supreme Court, these cases should be cleared within six months. Instead,
some of the cases have been lingering for 12 to 16 years, since the arrests made under dowry related
sections are non bailable. Those who lack resources to get legal aid remain locked in jail for years.
Most of these victims are senior citizens.

27
10) Videography of the dying declaration-
Videography of the dying declaration is strongly recommended. The Dowry (Prohibition) Act does
not take into account the social realities of a woman's life. The procedural law should be changed to
make it compulsory to record the statement of a victim of bride burning immediately. The dying
declaration should be recorded by the Superintendent of Police, in case the magistrate does not reach
in time

28
 CONCLUSION

In a society which is highly divided into social stratification, wiping out custom which is so
deeply rooted is not an easy task and will require many more years for it to be completely be
gone from the society. Dowry is a social evil which is ‘hated’ by most of the ‘educated’
Indians but ‘practiced’ very proudly in their own lives.

Dowry as well as bride price humiliate and dehumanize women in India. It is true that the
increasing coercive character of dowry has led to a decline in the status of women. Though
laws are necessary to provide basic rights and to punish offenders, what is more required is an
approach and awareness among the members of society to stand against such practises and
make them aware about the consequences trough other mediums.
Though, it is clear that ignorance to law is no excuse but as half of the population in India is
still below the poverty it is not possible for them to be well aware about all the laws and
procedures involved.

Dowry death, murder, suicide, and bride burning are symptoms of peculiar social malady and
are an unfortunate development of our social set up. During the last few decades India has
witnessed the black evils of the dowry death system in a more acute form in almost all parts
of the country since it is practised by almost every section of the society.

As regards the implementation of the dowry prohibition laws, it is often alleged that anti-
dowry legislation is observed more in breach than in implementation. Be that as it may, but
the fact remains that dowry being a socio-legal problem, it cannot be tackled by law alone
unless members of the society come forward and actively cooperate with the law-enforcement
agencies to abate this menace

Hence, laws alone cannot cure the social maladies, there has to be a strong campaign for
creating awareness among young men and women and society. Women need real social,
political, financial and moral support in their fight against the system. They have to be
empowered so that they can take their decisions about their own life by refusing the dowry
system. Above all the social attitudes and mindsets of society and people should change first.

29
The menace of dowry can be tackled only if there is a change in the mindset of people and
society.

Dealing with the phenomenon of violence against women, particularly in Dowry and Bride
Price.. The practice of dowry abuse is rising in India. The most severe in ―bride burning, the
burning of women whose dowries were not considered sufficient by their husband or in-laws.
Most of these incidents are reported as accidental burns in the kitchen or are disguised as
suicide. It is evident that there exist deep rooted prejudices against women in India. Cultural
practices such as the payment of dowry tend to subordinate women in Indian society

30
 BIBLIOGRAPHY

A. BOOKS
1. P D Mathew, Law Related to Dowry Offences Author: Publisher: Indian
Social Institute New Delhi
2. N.R.Madhav Menon : The Dowry Prohibition Act, Indian Bar Review, 1987

B. STATUTES

1) Code of Criminal Procedure, 1973.

2) Indian Penal Code, 1860.
3) Dowry Prohibition Act, 1961.

C. WEBLNKS:
1) http://shodhganga.inflibnet.ac.in/bitstream/10603/7838/7/07_summary.pdf
2) http://www.jagori.org/wp-content/uploads/2009/07/dowry_infopack.pdf
3) http://vle.du.ac.in/mod/book/print.php?id=9199&chapterid=13318
4) http://shodhganga.inflibnet.ac.in/bitstream/10603/7838/13/13_chapter%206.pdf