After research of nearly 10 months from October 2018, my first PIL has taken a very good shape and has received constructive review comments/ positive feedback from various eminent MRAs and Organizations to include more relevant aspects to strengthen the prayers of the PIL. That feedback is being integrated into the PIL petition.
Meanwhile, the ideation for second PIL has begun few days back and on this page I will present the current status of the contention points being raised in this PIL supported by the legal grounds.
PIL : Public Interest Litigation
PMD Act: The Parsi Marriage and Divorce Act, 1936
HM Act: Hindu Marriage Act 1955
SM Act: Special Marriage Act 1954
DP Act: Dowry Prohibition Act 1961
Background (Once Upon A Time)
Parsi Marriage and Divorce Act, 1936
Hindu Marriage Act, 1955
The sum total essence of the Hindu marriage traditions and customs are legalized under the Hindu Marriage Act, 1955, the inaugural bare act passed on 18 May, 1955 here. This page also has the latest amended Hindu Marriage Act, 1955 modified as on 14 May, 2019.
Interesting thing to note is there is not one instance of word DOWRY in the entire Hindu Marriage Act !!! VERY CRUCIAL POINT
Special Marriage Act, 1954
This Act caters to a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce.
Again not one instance of word DOWRY in the entire Special Marriage Act !!! VERY CRUCIAL POINT
The Dowry Prohibition Act, 1961
In India, like many other countries like Bangladesh, there is a societal menace called as Dowry. There were (and are) many crimes happening around the central issue of Dowry. Dowry Demand, Dowry harassment, Dowry Death etc. Since such societal problems are to be dealt at the highest level, Legislature jumped in to outlaw/criminalize all aspects of and around Dowry in India. Thus came the Dowry Prohibition Act, 1961. Read the inaugural Bare Act as well as the latest amended one as on 3rd December, 2018 here.
Along came the Central Rules to support the Act styled as the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985 by clicking here.
There there were Two amendments to this Act one in 1984 here and another in 1986 here.
On a comparable note, even our friendly neighbor, Bangladesh also suffers from Dowry issues in their society and they have also adopted a law prohibiting all aspects of and around Dowry here and they recently, in 2018, came out with a ground-breaking amendment to the Dowry Prohibition Act. Read the same here. Unfortunately, no english version with me.
The States have passed State Rules u/s 10(1) of the Central Act. All available are posted here.
Summary of Offences from DP Act (The AS IS)
Salient Features and Criminalized/De-criminalized acts from DP Act, along side their Legislature-proposed punishment and fine.
- Section 3-Penalty for giving dowry (shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more) VERY CRUCIAL POINT
- Section 3-Penalty for taking dowry (shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more)
- Section 4-Penalty for demanding dowry (he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees)
- Section 4A-Ban on advertisement (shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to five years, or with fine which may extend to fifteen thousand rupees)
- Section 6-Dowry to be for the benefit of the wife or her heirs. (shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years or with fine which shall not be less than five thousand rupees, but which may extend to ten thousand rupees or with both)
- Section 7-Cognizance of offences (Notwithstanding anything contained in any law for the time being in force a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act) VERY CRUCIAL POINT
- Section 7-Cognizance of offences (Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to any offence punishable under this Act) No Limitation Sections apply from CrPC !!! VERY CRUCIAL POINT
- Section 8A-Burden of proof in certain cases.—(Where any person is prosecuted for taking or abetting the taking of any dowry under section 3, or the demanding of dowry under section 4, the burden of proving that he had not committed an offence under those sections shall be on him) This doesn’t absolve Prosecution from establishing that Dowry is given in the first place, then the Proof of burden shifts to Accused to prove that the Money taken is NOT towards Dowry.
Now, What is the Contention Point? (The Why this PIL)
Despite making a law in 1961, prohibiting above acts, along side the Legislature proposed sanctions of punishment and fine, Dowry Menace in India has NOT come down a bit.
Sources for above conclusion and innovative and proposed (meaning not-yet-implemented) solutions till date
NCRB Data Goes here.
- Per the Statistical Data from National Crime Records Bureau (hereinafter ‘NCRB’), the report titled, “Crime in India – 2016”, Table 1.3/SLL Crimes – 2014-2016, there were 10050, 9894 and 9683 incidents reported against DP Act for the years 2014, 2015 and 2016 respectively. State-wise breakup of incidents reported under DP Act, for year 2016 given in Annexure – C.
- Similarly, the recently released data for the year 2017 in the report titled, “Crime in India – 2017” Table 1.3/SLL Crimes – 2015-2017, 10189 incidents were reported against DP Act. State-wise breakup of incidents reported under DP Act, for year 2017 given in Annexure – D.
- In all of these 9683 cases filed in 2016 or the 10189 cases filed in 2017, across the length and breadth of our great nation, not one of the Dowry giver was prosecuted. When there is crime comprising of two persons, how can only one person in the crime be prosecuted against and the other person let go Scott-free is first question this petitioner raises.
- Per the NCRB report (supra), table titled, Table 3A.9/ Disposal of Persons Arrested For Crime Against Women (Crime Head-wise) – 2016, of the total people 25,063 arrested in 2016 of which 20,400 were charge sheeted, not one of them is a Dowry giver! Moreover, the Acquittal rate in 2016 was 84.7%, which implies that many motivated and/or ill-investigated cases are put to Courts. Similarly, from 2017 statistics, it can be observed that, of the total people 19,068 arrested of which 17,789 were charge sheeted (a 93.29% rate of charge-sheeting), not one of them is a Dowry giver! The Acquittal rate even though reduced from 2016, was at 76.8%, which implies that many motivated and/or ill-investigated cases are put to Courts!!
Law Commission Reports (if any) go here.
Compulsory Registration of Marriages, 270th Report of Law Commission of India, published on 4 July, 2017
Judgments crying about continuing/increasing Dowry Menace go here.
Eminent Think tanks/Feminist rotting sinks’ conclusions go here.
My Solution (The How; The TO BE; The Eureka)
FIRST ATTACK VECTOR
My belief is that majority of false dowry cases aver that Dowry is given during/before the marriage and that is exactly the first specific aspect this PIL targets, by linking the Registration of Marriage with The Section 2 of DP Act.
As mentioned in Background section, Marriages, irrespective under which custom or tradition performed, get legal status only when they are registered with Registrar of Marriages. Section 8 of HM Act (Registration of Hindu Marriage) provides for this purpose. Similarly, under SM Act, Section 15 provides for the registration of marriages. In PMD Act, Section 6 provides for registration of marriage.
The Government also made registration of all marriages compulsory (Source here).
Now, a careful perusal of the Form-A (Application for registering a marriage with a Registrar of Marriages) indicates that there are some fields that are directly associated with the HM Act. Case in point here is some columns/fields same or similar to below.
- Whether Bride or Bridegroom is a divorcee
- If yes, Date of the decree in the Court of the first instance
- Whether period of one year has elapsed from the date noted in the above Col to the date of the application
The above fields are in the FORM-A because as part of FULL-Disclosure, both parties declare about their status, if divorced and if they can marry. See Section 15 of HM Act which is the source of these fields. Same is covered in Section 30 of SM Act and Section 4 of PMD Act.
Similarly, other fields on this form are in compliance of various provisions of HM Act or SM Act or PMD Act.
If Divorce aspect can be linked to this form via HM, SM and PMD Acts, the Dowry aspect can and should be linked to this form via DP Act and the DP Rules.
A) A new field/column to be introduced into the Marriage Application Form-A such as:
Whether any lists of presents given to bride/groom made as per Rules 2(1)/2(2) as prescribed in the the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985 until the date of the application?
Documents to submit to Registrar:
Duly filled and signed Original lists of presents given to bride/groom made as per Rules 2(1)/2(2) as prescribed in the the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985.
B) A new field/column to be introduced into the Marriage Application Form-A such as:
Whether any dowry given to bride/groom or parents of bride/groom or guardian/relative of the bride/groom as prescribed in Section (2) of the the Dowry Prohibition Act, 1961 until the date of the application?
Documents to submit to Registrar:
Duly filled in declaration/affidavit admissible in a Court
C) A new field/column to be introduced into the Marriage Application Form-A such as:
Whether any demand was made for dowry by the bride/groom or parents of bride/groom or guardian/relative of the bride/groom until the date of the application?
Documents to submit to Registrar:
Duly filled in declaration/affidavit admissible in a Court
SECOND ATTACK VECTOR
Section 3 of DP Act requires amendment in the view of the bar imposed by Section 7(3) DP Act.
Section 3. Penalty for giving or taking dowry.—
(1) If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more:
Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years.
Section 7. Cognizance of offences.—
(3) Notwithstanding anything contained in any law for the time being in force a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act.
By a combined reading of provisions of Section 3 with Section 7 as highlighted above, a person who gives dowry can never be prosecuted by Courts. Legislature, in their immense wisdom, may have come to the conclusion, the dowry-giver (In 99.9% of Dowry cases, Dowry-giver is the person aggrieved and the one who gives witness statement to Police u/s 161 CrPC) is an innocent person who cannot marry off his girl child, without giving dowry. Moreover, there is not one single case in India where a person was convicted and imprisoned for giving dowry.
Unless the Legislature meant any person who becomes aware of the Dowry being exchanged, becomes aggrieved by such offence, and such Person/Good Samaritan shall not be subjected to a prosecution under this Act. If it is the former understanding, as held in landmark judgments, that the one person coming forward complaining about Dowry is the father/relative of bride, then that person shall not be subjected to any prosecution, that, to my limited knowledge of DP Act and its Objects and Reasons, is a utterly wrong interpretation. If we consider that the later interpretation is what the Legislature had in mind, then that is correct interpretation of Law. This is also in sync with Section 7(1)(b) which postulates that, a complaint by a person aggrieved by the offence is NOT same as parent or other relative of such person. Here the person could be the bride or groom themselves.
(b) no court shall take cognizance of an offence under this Act except upon—
(ii) a complaint by the person aggrieved by the offence or a parent or other relative of such person, or by any recognised welfare institution or organisation;
A third-party to both parties/families coming together in a said marriage can be excluded from prosecution in case he/she makes a complaint. Exactly, as is held in case of Accidents, a good samaritan who helps accident victims with no fear of legal prosecution.
It is clear that person mentioned in entire Section 7 refers to either bribe or groom only. A father or relative of bride who comfortably/under duress gives dowry to other party, shall be liable to prosecution u/s 3 of DP Act, as much as the receiver of dowry. [From Collective reading of Section 7(1)(b) and Section 7(3)]
Under the above circumstances, the words ‘gives’ and ‘the giving’ are otiose and have become infructous and ripe for omission by Legislature and in the interest of Justice and in the spirit of Doctrine of Separability, striking off by Hon’ble Courts.
THIRD ATTACK VECTOR
Section 2 of DP Act provides for perpetualily to the definition of Dowry by stating,
Section 2. Definition of “dowry”.—In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly—
(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 dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
This perpetuity is disturbed by the time limits setup by Various State Rules framed by the State Legislatures u/s 10(1) of DP Act as well as Section 7 of DP Act.
AP DP Rules 1998 has Rule 5. which states:
(c). Any complaint shall be made either on the demand of dowry or accepting dowry within a period of one year.
Section 7. Cognizance of offences.—
(2) Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to any offence punishable under this Act.
Another rule is as follows:
10. Time for settlement of disputes: – Any offence under section 3 and section 4 or any dispute under section 6 of the Act shall be filed before expiry of one year and the same shall be finalized within two years from the date of filing.
Under the above circumstances, either the time-limiting State rules that are in violation of the section in DP Act deserves striking down and the Section needs to disallow perpetuity,
How is this Solution supported (The Thought Process)
A detailed psycho-analysis of the psyche of people who deal in Dowry is performed resulting in the following “What-if” scenarios and their consequences.
1. What if the father of bride gives dowry (Sec 3 of DP Act) but lies on the Form-A?
This should be an alert to the father of groom of possible false criminal cases u/s cruelty to wife for dowry harassment (498A IPC) and taking dowry (Sec 3 of DP Act) on immediate and distant family members and separately-living and abroad-residing relatives
2. What if the father of groom demands dowry (Sec 4 of DP Act) but lies on the Form-A?
This should be an alert to the father of bride of possible future demands for more dowry
3. What if the father of groom takes dowry (Sec 3 of DP Act) but lies on the Form-A?
This should be an alert to the father of bride of possible future demands to bring more dowry
4. What if the father of groom as well as the bride together lie on the Form-A, even in reality there is Dowry exchanged between them?
Both of them will have the consciousness that they lied on Legally admissible documents and a constant fear of no legal protection, What-If in the event there is a disruption to their wards relationship. Moreover, they will be more motivated to safe guard their side interest, by ensuring some kind of solid evidence exists (or created/manufactured) for giving/taking of dowry.
More What-If concerns, decimated:
1. What if there is a claim of dowry after the statutory limit as prescibed by the State Rules under DP Act or CrPC?
A. Courts would deem them as hopelessly barred by limitation and dismiss false/motivated cases
2. What if, a motivated Police Investigating officer files a false Charge sheet?
A. Since the IO will be bound to procure the Marriage application form as well as it’s annexures (Lists of Presents and No Dowry declaration) from the concerned Sub-registrar, he will NOT be able to file false Charge sheet, once the Form-A discloses No Dowry given/taken. The lack of evidence to support Dowry aspect itself removes any chances of allegations of 498A IPC, 304 IPC and provisions of DP Act, altogether.
3. What if, under such choking circumstances created by Legislature where Dowry taking or giving had to be reported, the parties decide to NOT register their marriage, after performing the marriage?
A. Such parties are left to their own fate and are left with no legal protections for their such acts. Not registering marriage after performing the marriage. They are a happy bunch, until the fateful event of arising of disputes between both the parties. Since the Government has mandated registration of all marriages, Courts shall take a narrow view at all the marriages claimed to have performed before certain date of notification of such mandate to be not valid marriages. Not giving any leeway or flexibility to parties coming to Court.
4. What if, Government can step in and make some stringent rules?
A. Alternatively and accommodatingly, Legislature can mandate all institutions of Marriage across religious as per their Laws, to report all marriages performed at their institutions and offices to Sub-registrar. Otherwise, no point in expecting citizens to follow the mandate of Compulsory registration of marriages and Clever citizens will bypass benevolent Laws easily, by NOT registering their marriages with Government. There is no breach of any fundamental rights here under any Articles of Constitution.
5. What if, there are no such precedents recently that say, Law should change with changing times and should reflect the sea-changes in the workings of society with such time.
A. There are recent precedents such as Striking down of 497 IPC, 494 IPC. If they can be struck down, DP Act made in 1961 can also undergo changes.
6. What if, there are no practical uses for this PIL?
A. This Act while ensuring all parties are adhering and fearing Dowry laws are left with no option but to comply with same also effectively, reduces false dowry cases filed under 498A 304B IPC and DP Act, if not brings it to zero, much to the relief of millions of Men and their families, who get routinely implicated in such false cases. This also could mean many men in armed forces can focus on their duty with out the constant nagging and panging of false criminal cases.
7. What if, a marriage is not registered, is there any issues to face? Like Nikhanama is not a valid marriage proof.
A. Passports, Visas, Joint Property Purchase, Addition to Family Ration Card, Voter ID, Aadhaar Card, child marriage, fraud, bigamy and husbands deserting their wives, women seeking their rights as wives, Universal traceability
8. What if, there are any ways to bypass tedious Marriage Registration process?
A. Notarized Affidavit+ Gazette Notification+ Property Purchase = New Identify so obtained can be used for all issues highlighted in Point 7 above.
9. What if, mandatory documents make the registration process tedious?
A. As per K. Puttaswamy judgment by Constitutional Bench of Supreme Court Aadhaar is not mandatory for registration of marriage. (1. https://indiankanoon.org/doc/116396036/ and 2. https://indiankanoon.org/doc/129590004/)
- A copy of custom made book with all relevant and up-to-date Marriage, Dowry and Divorce laws be presented to both parties so that they are aware of their legal rights. I can work on this post exams.
- A revised Form-A is in works.
- Is such cross-linking of statutes allowed per law? Yes.
IRDAI may soon link motor insurance premium with traffic violations; pilot project in Delhi
2. Soon, your bad road manners may increase your car insurance premium
STILL TO ADD
Want to read the final (supposedly!) version of PIL filed and withdrawn? Go here.