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India’s Supreme court errs on dowry, okays customary practices

March 4, 2008 posted by indiatime |

20 Comments so far

1. Ashvini on March 4, 2008 2:15 pm

   Agreed this is a bad move.

   Dowry law is not serving its purpose. As people are grossly mis-using the law. Majority of citizens are using it to threaten in-laws or to get even with them by slapping a dowry case and getting them jailed!

2. Customary Payments Now Allowed | DesiPundit on March 4, 2008 10:05 pm

   [...] is shocked by the Supreme Court decision and lists other ‘customs’ or ‘customary payments’ that can be overlooked under this [...]

3. Pilid on March 5, 2008 3:52 am

   Read the law carefully before you criticize the court. The key words in the Dowry Prohibition Act, 1961 are not customary payments, it is the definition of dowry which limits its meaning to payment ‘in connection with the marriage’, not ‘in connection with birth of a child’, etc. The opinion is correct and precisely as the law states. If one were to expand its meaning beyond those contours, virtually any gift given from any time after marriage until death could be considered dowry and punished for the same, an entirely absurd construction!

4. indiatime on March 5, 2008 5:17 am

   Pilid,

   Here is the actual dowry law of 1961. The item 2, explicitly defines dowry as any property or valuable given before, during or after the marriage. Birth of a child can definitely be considered a time-frame after the marriage and it is definitely related to the marriage, since the parties that were accused of harassment were harassing the victim out of her relation as a daughter-in-law through marriage, not as a mother of their grandkid.

   What the supreme court erred on is while trying to pick apart the literal meaning of the word dowry, the court’s academicians, sitting in their ivory towers, forgot about the actual victims of dowry and post-marital harassment, those thousands of women who are burnt and killed by the families they marry into. Such dowry-related harassments begin with the act of marriage and continue for years after marriage.

   The court erred by wasting this opportunity to deliver justice to those whom it is denied and to those who need the court’s utmost and urgent attention. The court, when it delivers judgements about the real lives of real people, must act with caution and compassion, by looking beyond mere verbiage. The reason victims of crime seek help from the court is not to be dazzled by the court’s erudition, but to seek justice and fairness.

   If the justice system cannot perform the simple act of protecting helpless victims, then the Dickensonian characterization of the law as an ass will also apply to those who pratice and rule upon it.

5. Pilid on March 5, 2008 8:24 am

   As you point out, dowry refers to payment any time before, during or after the marriage ‘in connection with the marriage of the said parties‘ - the word ‘marriage’ can be reasonably construed to refer only to matters in connection with the conclusion of the marital contract, not all the consequences of marriage such as birth of children, education of children, marriage of children, birth of grandchildren and so forth. If we accept your interpretation, then grandparents have no legal way of showing their love for their grandchildren at all. It was precisely to avoid such absurd possibilities that those words were included to circumscribe the meaning of dowry. It is possible, as you say, that a gift at the time of the birth of a child may indeed have been in connection with the marriage, albeit belatedly, but that cannot be the presumption under the law and the burden of proving such a claim must properly rest entirely with the one making it.

   You talk of how such an interpretation would be unjust to women. The alternative that you propose will likewise be unjust to all the men who are implicated in false dowry cases for harassment and blackmail by unscrupulous women and their relatives as a direct result of such an open-ended definition. There are always costs in the real world associated with any legal position, many of which it is impossible for the court to predict or comprehend. The best thing the court can therefore do is not to try to legislate from the bench in the name of sympathizing with one or the other side but to simply interpret the text as it exists in the statute. If women’s groups are outraged, the proper forum to approach is the legislature to get the law amended to meet their concerns.

6. indiatime on March 5, 2008 9:44 am

   Well said and you do have a great point about the appearances of the court legislating from the bench. But I don’t think it’s a very difficult balancing act with the huge problem of dowry on one side and comparatively much smaller number of false positives on the perpetrators’ side.

   Plus, the perception of legislating from the bench has an entirely different context in a country where legislators aren’t really the most promising bunch and probably can’t be trusted to do the right thing.

   But you bring up some very good points.

7. Pilid on March 5, 2008 11:33 am

   There are good reasons not to adopt the balance-of-consequences approach that you suggest but it is a long one and I will save it for another day. I am writing this only to point out that while it is true that we no longer have quality debates during legislative sessions, it is not true that legislators are indifferent to popular concerns and legislative priorities. If you look at the legislative business transacted (you can find it on prsindia.org), you will find a number of pieces of legislation in various stages of passage. You will also find that Parliament does function, only mostly in the standing committees which examine individual bills in detail and submit reports with their recommendations. If you read them, you will find that there is a lot of back and forth dialogue amongst the MPs, ministry officials and various outside groups including industry representatives and NGOs. Bills submitted for their review often get amended significantly in response to their suggestions. So the popular perception of MPs is not entirely correct.

   Also some of the recent enactments have come about due to pressure from various groups - the passage of the forest bill, the RTI act and the Domestic Violence Act are all examples. It is therefore a misconception that the legislators are somehow unresponsive to popular demands.

8. indiatime on March 5, 2008 12:08 pm

   Unfortunately the legislative action can leave gaps and holes in the law, sometimes inadvertently, but intentionally at times, and leave it to the bench to interpret it later. The whole dowry issue would not be in front of the court had it not been for the vagueness of the original 1961 legislative action. And we did have one of the best bunch of parliamentarians and debaters in the nation’s history back then.

9. IndianBytes.com on March 5, 2008 11:29 pm

   IndiaÂ’s Supreme court errs on dowry, okays customary practices like suttee (sati)?…

   posted at IndianBytes.c…

10. Indian government decides against tougher Sati law : It’s Indiatime on April 23, 2008 8:23 am

    [...] India’s Supreme court errs on dowry, okays customary practices [...]

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13. Manindra Singh on January 8, 2009 9:45 pm

    The marriage in India in almost all the societies Hindus or Muslims is more a marriage of the families rather than the marriage between individual male and female.Dowry as such is a fortune for the family of the groom and misfortune for the brides family.Originally the wealth brought by the bride is a gift of love and affection of the parents but it has been distorted to mean penalty for salvaging a woman on compassion.If it is a customery paymentit would be nothing short of institutionalising dowery as an incident to the marriage.

14. Mrs Gouri Sinha on January 9, 2009 8:41 pm

    The words ‘customery payments’used by the apex court appears to be outrageous as the same connote commercial transaction in a marriage.Dowery as payment by the bride party whether would constitute consideration for sale and purchase of a daughter?The judgement sends a wrong message to the society at large and women in particular.In my view the words should be scrapped in due course of law and as such should be rexamined by a larger Bench .

15. Mrs Gouri Sinha on January 9, 2009 8:55 pm

    The words ‘customery payments’used by the apex court appears to be outrageous as the same connote commercial transaction in a marriage.Dowery as payment by the bride party whether would constitute consideration for sale and purchase of a daughter?The judgement sends a wrong message to the society at large and women in particular.In my view the words should be scrapped in due course of law and as such should be re-examined by a larger Bench .

16. The dowry gazette - January 17, 2009 : It’s Indiatime on January 17, 2009 6:54 pm

    [...] India’s Supreme court errs on dowry, okays customary practices [...]

17. david boots on February 27, 2009 7:42 am

    I disagree with you Pisid, it appears that this ‘reading down’ has lead to an absurd construction.

18. A Sane opinion on February 27, 2009 8:30 am

    A dowry is any property or valuable security given or agreed to be given either directly or indirectly.
    The original act is very broad with only 3 constraints to the above definition:
    1. the parties
    2. time
    3. mahr where Shariat applies.

    Was the act satisfied in this case?
    1. the parties - yes!
    2. time - ‘at or before or any time after the marriage in connection with the marriage’ - so yes again! The court defined marriage as a single event (absurd) rather than the lifelong relationship - an appalling construction.

    I am afraid the court’s reading down is patently incorrect and has led to an absurd result.

    Any defence is mere rationalisation.

19. prince ufere on April 12, 2009 12:12 am

    in speaking my mind,it’s pertinent to point out here that the pamentof dowry either from the groom or from the bride’s famil is an abuse of human right and more so now ie era of human right since no amount of mone or gift can ever be quantifief with a human being
    similarly,female feticide should be abollished in totality as it encroaches and affect the right of the wommon and more so, its an abuse on womanhood.

20. manpreet kaur on September 3, 2009 4:41 pm

    every unnatural death with in seven year of marriege of married woman is not a dowry death
    there are so many girls who apears in board exams some of them failed to pass the exams one or two commit suicide, is examination board is criminal
    rules are made to fasilitate to people but it is misused by people.