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IT IS AND THE LAW IT OUGHT TO BE Authors: 1. Name: Upasana Garnaik Academic Year and Course: 5th Year, B.A., LL.B (Hons.) University: Rajiv Gandhi National University of Law, Punjab Date of Birth: 21st January, 1989 Address: D 1/12, Hauz Khas, Behind Hauz Khas main market New Delhi: 110016 Email: Telephone no: +919873836464 2. Name: Vishesh Arora Academic Year and Course: 2nd Year, B.A., LL.B (Hons.) University: Rajiv Gandhi National University of Law, Punjab Date of Birth: 25th July, 1990 Address: House no. 172, Street No. 9A, Prem Nagar Patiala, Punjab-147001 Email: Telephone no: +919899022663

It has undeniably become a part of Indian culture to harass a woman till death. a young woman in being burnt alive. Crime against women has become a part and parcel of the so-called happy married life.ABSTRACT In India it has indeed become fashionable to set a newly married woman on fire or inflict physical or mental violence on her. somewhere in India. Often domestic violence occurs in cases of dowry demands not being fulfilled. The most important persistent problem is that of domestic violence and dowry death. . for the law makers to make more stringent laws and for the law enforcers to apply them as stringently as possible to curb the menace. The dowry system has grown to be an evil in the Indian society as the definition of dowry changed from being a simple gift to extravagant demands. Almost every six hours. The dowry system was abolished by the Dowry Prohibition Act. There exists a growing need to change the mindset of the society. 1961 but is still widespread mostly in rural India but surprisingly even the modern India follows the system in a subtle way. beaten to death or forced to commit suicide. Domestic violence has served to maintain their subjugation as a class. Atrocious cases of domestic violence lead to dowry death. There has been a disturbing increase in the deaths of married women which are highly suspicious.

Ltd. beaten to death or forced to commit suicide.CULTURAL CRIMES: THE LAW IT IS AND THE LAW IT OUGHT TO BE 1.8 Dowry is a system of giving money or property given by a woman or her family to the husband upon getting married.J 481 (All HC) 5 LAW COMMISSION OF INDIA. 1984 Cri.3 Bride burning has become a quite a regular feature in the newspapers.ncw. Crime Against Women : Dowry. New Delhi 2006). The dowry system was abolished by the Dowry Prohibition Act. Divorce And Bride Burning. New Delhi 1999) 9 WERNER MENSKI.lawcommissionofindia. VIOLENCE AGAINST WOMEN 183 (Arihant Pubishers Jaipur 1990) 4 Subhash Chandra v S. LAW OF DOMESTIC 5-11(Universal Law Publication Co. SOUTH ASIANS AND THE DOWRY PROBLEM 72(Trentham Books Limited. a young woman in being burnt alive. Dowry Death-an approach THE INDIAN POLICE JOURNAL. New Delhi 2000) 3 Shah.nic. 91 REPORT ON DOWRY DEATHS AND LAW REFORM. CHOUWDHURY.1 Domestic violence can also been seen as a violation of the fundamental right to live with dignity. 1961 but is still widespread mostly in rural India but surprisingly even the modern India follows the system in a subtle way. violence starts from the time since they are born and carries on through their entire lifespan. For women in India.2 Seldom. 6 NATIONAL COMMISSION FOR WOMEN.M Aggarwar. BARAL.9 The dowry system has grown to be an evil in the Indian society as the definition of dowry changed from being a simple gift to extravagant demands. available at http://www. DOMESTIC VIOLENCE IN INDIA: WHAT ONE SHOULD KNOW? 9 (We the People trust. At least 20% of married women between the age of 15 and 49 have experienced domestic violence at some point in their lives. Staffordshire 1998) ST .nic. J. 7 Surat DOMESTIC VIOLENCE AGAINST WOMEN xxvi (Deep & Deep Publications Pvt. It had undeniably become a part of Indian culture to harass a woman till death. FAMILY IN TRANSITION.51-100/Report91. accessed on 30th November 2010 at 4:05 pm. L. 30-34(1983) 30(2) 8 SHALU NIGAM.pdf. A. New Delhi 2007) INDIRA JAISING. it is surprising how women have endured so many afflictions on their dignity and pride. 5 The largest number of complaints received by the National Commission for women numbering 2615 was regarding harassment for dowry/cruelty and cases of dowry death numbered 545. INTRODUCTION In India.7 The most important persistent problem is that of domestic violence and dowry death. Giriraj. she has to face the world of ridicule and humiliation. somewhere in India. POWER AND DEVELOPMENT 152 (Northern Book centre. 1983 available at http://www. Often 1 2 PREETI MISHRA. Almost every six hours. ANNUAL REPORT.6 Women in India till date are being treated as second class citizens. COMPLAINTS AND INVESTIGATION CELL.4 There has been a disturbing increase in the deaths of married women which are highly suspicious. Domestic violence has served to maintain their subjugation as a class. cases are brought to the notice of the Police. and of the right to equality and equal protection of the law guaranteed under the Indian Constitution.pdf. accessed on 28th November 2010 at 5:30 pm. It is surprising how they have stayed mum about the dreadful and atrocious acts of violence.

It can consist of psychological. 1860 http://www.11 Domestic violence is the most 10 11 Section 304B. accessed on 30th November 2010 at 4:15 pm. Violence can be criminal which includes physical assault or injury and sexual abuse. it takes into account all forms of abuses. After her death. They said that it is better to have a boy child because a boy can get away with whatever he does in the society but any wrong that a girl does is termed as sin. girls started discussing whether it was preferable to have a girl or a boy child. The society will never change until and unless the women race comes together and fights for their rights I have heard stories of married women who do not retaliate against cruel and inhumane treatment. I have come across a lot of educated women who do not respect their own race. I tried to explain that we were also a part of the society and it was our thinking could make an impact and change the existing conditions but none agreed. Their answers shocked me. . I have realized that women mostly are conditioned and brought up in a way to believe that they are supposed to be looked down upon. the Police refused to register a First Information Report due to political influence of her in-laws.10 It is true that if one looks at the legislations. Indian Penal code.htm. social. financial abuse. Atrocious cases of domestic violence lead to dowry death as defined under the Indian Penal Code as the death of a married woman within seven years of marriage and there have been instances of harassment and cruelty in connection with dowry demand. while deciding the case forbid her to talk or keep in touch with her parents. Domestic violence is not limited to only physical violence. DOMESTIC VIOLENCE Domestic violence does not cover a definite area of acts which can be considered as acts of violence. dowry is prohibited but the problem lies deep within where legislations are amended to fulfill the contemporary needs but what does not change with the legislation is the mind set of people. She was made to survive on stale bread for months. The Panchayat. I will give an example of my own classmates.indianchild. be dominated and mistreated by men. I got baffled and asked for a reasonable explanation. Recently my classmate’s sister was subjected to cruel treatment by her in-laws while she was pregnant leading to immediate death after she delivered the baby.domestic violence occurs in cases of dowry demands not being fulfilled. Till now the case has not been registered and the story will be soon forgotten without any justice being imparted. At the dinner table one day. Most of the girls at the table said they would prefer a boy child.

. there was a need felt to implement a separate Act WHICH could exclusively deal with this atrocious crime. 2008) 2 . 2005 Section 3 of the Domestic Violence Act. VIOLENCE AGAINST WOMEN AND CHILDREN 19 (Council Of Europe Publishing. emotional or economic violence. sexual. New Delhi 2008) 18 http://www. Violence Against Women: International And National Human Rights Jurisprudence. BEHIND CLOSED DOORS: DOMESTIC VIOLENCE IN INDIA 21 (Sage Publications India Pvt. verbal. There are certain factors to bring an act within the purview of domestic violence under Section 3. BLACK’S LAW DICTIONARY 1564 (VIIth Ed. and forced sex.womenwatch/daw/cedaw. Patel. Domestic Violence Act.18 2.14 In domestic violence case. accessed on 1st December at 5:39 pm. New Delhi. the victim may want to leave her partner but encounters powerful resistance from within her family.13 According to a UN Press report two third of married women are victim of domestic violence. beating. 2004) 16 Supra note at p.16 Though there are provisions laid down in 304B and 498A of the Indian Penal Code.1.12 Domestic violence is the most brutal form of abuse which happens within the four walls whose detection is often constrained therein.19 It also includes any act which harasses harms or injures the aggrieved person in order to coerce her to meet any unlawful demand for any dowry or other property or any valuable security. Netherlands.15 2. an assault or other violence act committed by one member of a household against another. Seventy Percent of married Indian women between the ages of fifteen and forty nine were proven to be victims of dreadful incidents like rape. Even in a life threatening situation a woman’s motives to leave the husband are questioned in the severest manner. Ltd. there was no separate law for protection of women against violence at the domestic threshold.17 The Convention on the Elimination of All Forms of Discrimination of Women has also enumerated the states responsibility to shield women from violence at domestic level.1 Section 3. injures or endangers health and safety. Stasbourg Cedex 2003) BRYAN A.1 The law encompassing domestic violence Before the coming in force of the Domestic Violence Act. usually 19 Bimal N. accessed on 1st December 2010 at 5:30 pm.domesticviolence. It brings under it any act which harms. Threatening or any other act which causes physical or 12 13 LIZ KELLY.serious violation of all basic rights that a woman suffers in her own house at the hands of members within her own family. Domestic violence means violence between members of the household.346 17 SUSHMA PANDEY. GARNER. 15 RINKI BHATTACHARYA. volume 441(Martinus Nijhoff Publishers. 2005. West Group Publishing 1999) 14 http://www. INDIA AND INTERNATIONAL PSYCHO-SOCIAL ASPECTS OF DOMESTIC VIOLENCE 39 (Concept Publishing Company. 2005 describes domestic violence to include actual abuse-physical.

. Kanniammal & Anr. 23 State of West Bengal v. D. 1806 The term under Section 498A of the Indian Penal Code includes both mental and physical cruelty. Washington. where the lower middle class housewife spends a large amount 20 21 Supra note 1 at p. Definitions of domestic violence rest upon not only the nature of the relationship between the perpetrator and the victim but also upon norms of acceptable behavior.2 Section 498A.1..24 3.20 The Supreme Court has explained the intention of the legislation to not mean any live in relationships but to include live in relationships which fulfill some of the basic characteristics of a valid marriage. Khushboo vs. is perhaps more appalling than the less sensational ways of doing her in like poisoning or drowning but is chosen chiefly for the forensic advantage it has over the others. including harassment due to dowry and causes like inability to bear a child or a male child.58 S. It may be noted that violence is not restricted to marital relationships but is extended to relationships having the nature of marriage. AL.. Ordinarily. it is not expected that physical torture or abuses hurled to the woman would be noticed by the neighbors23. This landmark legislation seeks to deter domestic violence in all forms against 2. Burning a wife.C.25 It is also relatively simple to commit. Indian Penal Code. It virtually destroys evidence of murder along with the victim and can easily be made to look like an accident or a suicide. It can be termed as a terrible and inhumane consequence and combination of severe domestic violence and dowry demand. (2010) 5 SCC 600 22 Shobha Rani v. accessed on 1st December at 5:50 pm. A definition that acknowledges these multiple possibilities would lead to intervention that is more inclusive of the experiences of all women. Jaiswal. USAID. India) 25 http://findarticles.mental abuse to the aggrieved person is also included. Madhukar Reddi (1988) 1 SCC 107. It occurs in the kitchen. DOMESTIC VIOLENCE IN INDIA (ICRW. Cruelty means any willful conduct that is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury to life or to harass or coerce her or any person related to her to meet such a demand. therefore direct evidence is not available. a ritually auspicious person. DOWRY DEATH There is an obvious connection between domestic violence and dowry death. (1994)1 SCC 73 24 LEELA ET.22 The offences against women are committed generally committed normally within their homes.

ENCYCLOPEDIA OF VIOLENCE AGAINST WOMEN AND DOWRY DEATH IN INDIA 601 (Anmol Publications pvt ltd. The cause of brideburnings or dowry death in India was.P.26 Today.30 3.. VIOLENCE IN THE FAMILY 305 (John Weley and Sons. DOWRY DEMAND CRUELTY & DOWRY DEATH 264(Capital Law House. or accusations of being a bad wife and mother. a tin of fuel is always kept in reserve. This alleged fact has found wide support expressed in both detailed historical and anthropological analysis of female infanticide.. The Dowry prohibition 26 MEREDETH TURSHEN. the oldest and the most widespread form of murder believed to be related. Umar.28 Insults and constant criticism can reach intolerable heights whether sexual taunts. Inspite of taking a number of preventive measures by the Indian Government the dowry menace remains almost as usual. New Delhi 2004) 32 Section 2. ATROCITIES AND VIOLENCE AGAINST WOMEN AND RELATED LAWS & JUSTICE 204 (Anmol Publications Pvt Ltd. Publishing corporation. Westport 1993) 27 KALPANA ROY. WOMEN’S LIVES AND PUBLIC POLICY: THE INTERNATIONAL EXPERIENCE 146 (Greenwood Publishing Group. Delhi 2005) 29 Mohd. Dowry serves as a foundation on which explanation for discrimination against women have been built.32 It is clear that for bringing a case under section 4. New Delhi 1998) . 1961 33 LAXMI DEVI. New York 1978). BRIDE BURNING IN INDIA: A SOCIO LEGAL STUDY 5(A.A Security For Standard Living. even in other cultures. LAW REVIEW 194 (1990) 14(2) 30 JOY MELLUILLE. and now the ubiquitous but highly inflammable nylon sari easily catches fire and engulfs the wearer in flames. 1961 The object of this bill is to prohibit the evil practice of giving and taking of dowry. New Delhi 1998) 31 ISH KUMAR MAGOO. indeed dowry and indubitably a cultural problem.29 When it goes on for hour after hour. it has the conceptual richness to satisfy a variety of analytical tastes over time. Dowry Prohibition Act. The omission of the words “in consideration for marriage” and their substitution with “in connection with the marriage” has made the definition of the dowry wide and drastic.31 Dowry Prohibition Act. there must be a demand for dowry33. WOMEN AND URBAN CRIMES 251( Kalpaz Publications. 1961 defines dowry to mean property or valuable security given or agreed to be given in connection with the marriage. the woman is as bemused by it as after physical battering.H.27 A large number of dowry deaths are actually cases where the victim is forced to take the ultimate step of killing herself to end all misery. Pressurized kerosene stoves are in common use in such homes. Dowry. the dowry system is seen as the prime motive for two other crimes akin to infanticide widely prevalent in the subcontinent. It is easy to pass off the event as an accident because these stoves are prone to explode.1 Dowry Prohibition Act. CRIME. to the practice of dowry.of time each day. BRIAVEL HOLCOMB. MOHD UMAR. She loses her confidence in herself and her ability to cope. New Delhi 1999) 28 DOEL MUKHERJEE.

It was held that the conduct of the husband in not trying to put out the flames and not taking her to the hospital will be taken as circumstance against the husband. State of Karnataka. Section 304B dealing with dowry death has been inserted and has attempted to be defined by giving there under the relevant ingredients of the offence. 1986. lack or inadequate investigation of dowry violence by the police leads to the disturbance in imparting justice. 275 36 Satvir Singh v State of Punjab and another. Dowry Deaths. Also it has also been pointed out that the burn victims often do not realize that they have suffered severe burns as they feel no pain.2 Provision in the Indian Penal Code. many dowry murder cases indicate that woman is pressurized to give contradictory dying declarations. because of the complete dependence of a young married woman on her husband and in-laws. 1860 to tackle dowry death There had been no improvement in the condition of the women even after section 498A dealing with cruelty was inserted. 35 These provisions deal with two distinct offences. The legal equality of sexes cannot be achieved until and unless the support rights and duties are drastically altered. The court only have to examine as to who translated it into action. The present Act has several loopholes. 1989 (1) HLR 90 . as motive for dowry death is not of the individual but that of the family. it is inherent. The perpetrators of crime 34 35 Justice Krishna Iyer. State. “in connection with marriage” but they continue long after the event is over. The framers of the Act have failed to appreciate that dowry demands are not made only.37 Motive for murder may or may not exist but in dowry deaths. If she thinks that she may survive. Section 304B applies to cases of suicide.(Amendment) Act. COMMERCIAL LAW GAZETTE 12 (1983) Supra note 30 at p. direct evidence can be rarely found and hence the court has to rely on circumstantial evidence. AIR 2001 SC 2828 37 Govindappa v.315 39 Rajpal v.36 3.38 In India. which she changes when she realizes that death is imminent. (1998) 2 SCC 763 38 Supra note 1 at p. and therefore do not believe that they may not survive. has proved to be totally ineffective. she gives a statement in favour of her husband. 39 In most of the cases.34 3.3 Problems of evidence in dowry death cases In most of the cases regarding dowry death. Both the offences under sections 304B and 498A cannot be held to be mutually exclusive. whether it is a sequel to cruelty or harassment with the demand of dowry or not.

MUMTAZ ALI KHAN. accessed on 5th December 2010 at 5:30 pm. There is a lack of trained personnel and psychiatrists. 42 http://timesofindia. where capitalism has fashioned out of the traditions of dowry a particularly naked nexus between marriage and money.php?option=comcontent&view=article&id=3557:uttar-pradesh-bihar-madhyapradesh-report-most-dowry-deaths&catid=125:general-news&Itemid=400. WOMEN AND SOCIAL TRANSFORMATION 47 (A. AIR 1988 SC 1785 41 http://www. THE SOCIOLOGY OF EDUCATION 137 (The Dorsey Press Illinois 1975).shtml. the reported number of dowry deaths was 7456 which means that every hour a woman becomes the victim of this crime.P. the violence takes correspondingly brutal and grotesque forms. available at www. A panel of doctors and Psychiatrists should be appointed to deal with the miseries of women due to such atrocities.G. accessed on 6th December 2010 at 5:45 pm. LAW AND WOMEN’S RIGHTS IN SOUTH ASIA 154. CHITKARA. CONCLUSION In 2009. The Supreme Court has taken a view that only in rare cases life imprisonment should be awarded to those convicted for causing the death of women in dowry-related cases. It is astonishing to see the lenient view of the Supreme Court in such a gruesome crime.cms.H Publishing House. The greed for dowry system calls for the severest condemnation. Shri Bhagvan Singh v.frequently escape from the nemesis of the law because of inadequate police investigation. Special awareness programs should be launched focusing on rural areas on rights of women. Educating women and changing the mindset is the most effective solution. commissioner of Delhi.43 The most effective solution to this menace would be to change the mindset of people especially the women.45 Special women protection cells should be set up to adhere to the problems relating to dowry and domestic violence. accessed on 6th December 2010 at 5:30 pm. 40 SAVITRI GOONESEKERE.41 Deaths in India related to dowry demands have increased 15fold since the mid 1980s from 400 a year to more than 7000 presently.wsws. State of Rajasthan. In India. and where the stresses of everyday life are being heightened by widening polarization.42 The courts should be stringent in such cases as leniency would only heighten the number of crimes against the New Delhi 1982) 45 Hence the women are compelled to withdraw their petitions as no one is ready to guide them and ensure their protection during the trial. Education is a major avenue of upward social mobility. 44 R HOLGER STUB. AIR 1983 SC 826.44 Education is the key that opens the doors to life which is essentially social in character.40 4.indiatimes. STATUS OF RURAL WOMEN IN INDIA 7(Uppal Publishing House. Licchamani v. Rising number of dowry deaths in India. New Delhi 2001) . 43 Amanda Hitchcock.

It is high time they realise their own worth. in both urban and rural societies. With women. There should be special gender equality classes for both men and women. Women should take an active part in the implementation process. . A drastic change in the outlook of the men is needed.Today it is also very important for a woman to be financially independent before she gets married as financial dependency adds to the state of helplessness. Unfortunately the society detests questioning of the rigidly followed system by the women but that should not deter the women. Women should question the system for their own well-being. because if they don’t respect themselves. there is also a need for counseling the society especially the men in the society. they would always be the target of unfair treatment and cruelty. Women should realise that it is not their duty to be naïve and to be mistreated but it is their right to fight against atrocities. Gender equality and crimes against women should be made a full-fledged subject at High school level so that such morals are engraved in the minds of young students at an early stage.