1ST GURCHARAN SINGH TULSI NATIONAL LEGAL ESSAY WRITING COMPETITION, 2010 Title- CULTURAL CRIMES: THE LAW

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: upasana.garnaik@gmail.com 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: vishesh90@in.com Telephone no: +919899022663

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

CULTURAL CRIMES: THE LAW IT IS AND THE LAW IT OUGHT TO BE 1. INTRODUCTION In India, it is surprising how women have endured so many afflictions on their dignity and pride. It is surprising how they have stayed mum about the dreadful and atrocious acts of violence. For women in India, violence starts from the time since they are born and carries on through their entire lifespan. It had undeniably become a part of Indian culture to harass a woman till death. Almost every six hours, somewhere in India, a young woman in being burnt alive, beaten to death or forced to commit suicide. At least 20% of married women between the age of 15 and 49 have experienced domestic violence at some point in their lives. Domestic violence has served to maintain their subjugation as a class.1 Domestic violence can also been seen as a violation of the fundamental right to live with dignity, and of the right to equality and equal protection of the law guaranteed under the Indian Constitution.2 Seldom, cases are brought to the notice of the Police.3 Bride burning has become a quite a regular feature in the newspapers.4 There has been a disturbing increase in the deaths of married women which are highly suspicious. 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 545.6 Women in India till date are being treated as second class citizens; she has to face the world of ridicule and humiliation.7 The most important persistent problem is that of domestic violence and dowry death.8 Dowry is a system of giving money or property given by a woman or her family to the husband upon getting married.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. The dowry system was abolished by the Dowry Prohibition Act, 1961 but is still widespread mostly in rural India but surprisingly even the modern India follows the system in a subtle way. Often
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PREETI MISHRA, DOMESTIC VIOLENCE AGAINST WOMEN xxvi (Deep & Deep Publications Pvt. Ltd, New Delhi 2007) INDIRA JAISING, LAW OF DOMESTIC 5-11(Universal Law Publication Co. New Delhi 2000) 3 Shah, Giriraj, Crime Against Women : Dowry, Divorce And Bride Burning, VIOLENCE AGAINST WOMEN 183 (Arihant Pubishers Jaipur 1990) 4 Subhash Chandra v S.M Aggarwar, 1984 Cri. L.J 481 (All HC) 5 LAW COMMISSION OF INDIA, 91 REPORT ON DOWRY DEATHS AND LAW REFORM, 1983 available at http://www.lawcommissionofindia.nic.51-100/Report91.pdf, accessed on 28th November 2010 at 5:30 pm. 6 NATIONAL COMMISSION FOR WOMEN, ANNUAL REPORT, COMPLAINTS AND INVESTIGATION CELL, available at http://www.ncw.nic.in/AnnualReports/200708/Eng/CandICell.pdf, accessed on 30th November 2010 at 4:05 pm. 7 Surat Mishra, Dowry Death-an approach THE INDIAN POLICE JOURNAL, 30-34(1983) 30(2) 8 SHALU NIGAM, DOMESTIC VIOLENCE IN INDIA: WHAT ONE SHOULD KNOW? 9 (We the People trust, New Delhi 2006); J.K. BARAL, A. CHOUWDHURY, FAMILY IN TRANSITION, POWER AND DEVELOPMENT 152 (Northern Book centre, New Delhi 1999) 9 WERNER MENSKI, SOUTH ASIANS AND THE DOWRY PROBLEM 72(Trentham Books Limited, Staffordshire 1998)
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domestic violence occurs in cases of dowry demands not being fulfilled. 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.10 It is true that if one looks at the legislations, 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. I have come across a lot of educated women who do not respect their own race. I will give an example of my own classmates. At the dinner table one day, girls started discussing whether it was preferable to have a girl or a boy child. Most of the girls at the table said they would prefer a boy child. I got baffled and asked for a reasonable explanation. Their answers shocked me. 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. 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. 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, be dominated and mistreated by men. 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. Recently my classmates sister was subjected to cruel treatment by her in-laws while she was pregnant leading to immediate death after she delivered the baby. She was made to survive on stale bread for months. The Panchayat, while deciding the case forbid her to talk or keep in touch with her parents. After her death, the Police refused to register a First Information Report due to political influence of her in-laws. Till now the case has not been registered and the story will be soon forgotten without any justice being imparted. 2. DOMESTIC VIOLENCE Domestic violence does not cover a definite area of acts which can be considered as acts of violence. Domestic violence is not limited to only physical violence; it takes into account all forms of abuses. It can consist of psychological, social, financial abuse. Violence can be criminal which includes physical assault or injury and sexual abuse.11 Domestic violence is the most
10 11

Section 304B, Indian Penal code, 1860 http://www.indianchild.com/domestic_violence_in_india.htm, accessed on 30th November 2010 at 4:15 pm.

serious violation of all basic rights that a woman suffers in her own house at the hands of members within her own family.12 Domestic violence is the most brutal form of abuse which happens within the four walls whose detection is often constrained therein. Domestic violence means violence between members of the household, usually spouses, an assault or other violence act committed by one member of a household against another.13 According to a UN Press report two third of married women are victim of domestic violence. Seventy Percent of married Indian women between the ages of fifteen and forty nine were proven to be victims of dreadful incidents like rape, beating, and forced sex.14 In domestic violence case, the victim may want to leave her partner but encounters powerful resistance from within her family. Even in a life threatening situation a womans motives to leave the husband are questioned in the severest manner.15 2.1 The law encompassing domestic violence Before the coming in force of the Domestic Violence Act, 2005, there was no separate law for protection of women against violence at the domestic threshold.16 Though there are provisions laid down in 304B and 498A of the Indian Penal Code, there was a need felt to implement a separate Act
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could exclusively deal with this atrocious crime.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.18 2.1.1 Section 3, Domestic Violence Act, 2005 Section 3 of the Domestic Violence Act, 2005 describes domestic violence to include actual abuse-physical, sexual, verbal, emotional or economic violence. There are certain factors to bring an act within the purview of domestic violence under Section 3. It brings under it any act which harms, injures or endangers health and safety.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. Threatening or any other act which causes physical or
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LIZ KELLY, VIOLENCE AGAINST WOMEN AND CHILDREN 19 (Council Of Europe Publishing, Stasbourg Cedex 2003) BRYAN A. GARNER, BLACKS LAW DICTIONARY 1564 (VIIth Ed., West Group Publishing 1999) 14 http://www.domesticviolence.in/category/domestic-violence-in-india, accessed on 1st December 2010 at 5:30 pm. 15 RINKI BHATTACHARYA, BEHIND CLOSED DOORS: DOMESTIC VIOLENCE IN INDIA 21 (Sage Publications India Pvt. Ltd, New Delhi, 2004) 16 Supra note at p.346 17 SUSHMA PANDEY, PSYCHO-SOCIAL ASPECTS OF DOMESTIC VIOLENCE 39 (Concept Publishing Company, New Delhi 2008) 18 http://www.un.org.womenwatch/daw/cedaw, accessed on 1st December at 5:39 pm. 19 Bimal N. Patel, Violence Against Women: International And National Human Rights Jurisprudence, INDIA AND INTERNATIONAL LAW, volume 441(Martinus Nijhoff Publishers, Netherlands, 2008) 2

mental abuse to the aggrieved person is also included. It may be noted that violence is not restricted to marital relationships but is extended to relationships having the nature of marriage.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.21 2.1.2 Section 498A, Indian Penal Code, 1806 The term under Section 498A of the Indian Penal Code includes both mental and physical cruelty. 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.22 The offences against women are committed generally committed normally within their homes; therefore direct evidence is not available. 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 women, including harassment due to dowry and causes like inability to bear a child or a male child. 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. A definition that acknowledges these multiple possibilities would lead to intervention that is more inclusive of the experiences of all women.24 3. DOWRY DEATH There is an obvious connection between domestic violence and dowry death. It can be termed as a terrible and inhumane consequence and combination of severe domestic violence and dowry demand. Burning a wife, a ritually auspicious person, 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. It virtually destroys evidence of murder along with the victim and can easily be made to look like an accident or a suicide.25 It is also relatively simple to commit. It occurs in the kitchen, where the lower middle class housewife spends a large amount
20 21

Supra note 1 at p.58 S. Khushboo vs. Kanniammal & Anr. (2010) 5 SCC 600 22 Shobha Rani v. Madhukar Reddi (1988) 1 SCC 107. 23 State of West Bengal v. Jaiswal, (1994)1 SCC 73 24 LEELA ET. AL., DOMESTIC VIOLENCE IN INDIA (ICRW, Washington, D.C., USAID, India) 25 http://findarticles.com/p/news-articles/times-of-india-the/mi_8012/is_20101029/passing-dowry-death-suicidedraws/ai_n56156340/, accessed on 1st December at 5:50 pm.

of time each day. Pressurized kerosene stoves are in common use in such homes; a tin of fuel is always kept in reserve. It is easy to pass off the event as an accident because these stoves are prone to explode, and now the ubiquitous but highly inflammable nylon sari easily catches fire and engulfs the wearer in flames. Dowry serves as a foundation on which explanation for discrimination against women have been built; it has the conceptual richness to satisfy a variety of analytical tastes over time.26 Today, the dowry system is seen as the prime motive for two other crimes akin to infanticide widely prevalent in the subcontinent. The cause of brideburnings or dowry death in India was, indeed dowry and indubitably a cultural problem. This alleged fact has found wide support expressed in both detailed historical and anthropological analysis of female infanticide, the oldest and the most widespread form of murder believed to be related, even in other cultures, to the practice of dowry.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.28 Insults and constant criticism can reach intolerable heights whether sexual taunts, or accusations of being a bad wife and mother.29 When it goes on for hour after hour, the woman is as bemused by it as after physical battering. She loses her confidence in herself and her ability to cope.30 3.1 Dowry Prohibition Act, 1961 The object of this bill is to prohibit the evil practice of giving and taking of dowry. 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, 1961 defines dowry to mean property or valuable security given or agreed to be given in connection with the marriage.32 It is clear that for bringing a case under section 4, there must be a demand for dowry33. Inspite of taking a number of preventive measures by the Indian Government the dowry menace remains almost as usual. The Dowry prohibition
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MEREDETH TURSHEN, BRIAVEL HOLCOMB, WOMENS LIVES AND PUBLIC POLICY: THE INTERNATIONAL EXPERIENCE 146 (Greenwood Publishing Group, Westport 1993) 27 KALPANA ROY, ENCYCLOPEDIA OF VIOLENCE AGAINST WOMEN AND DOWRY DEATH IN INDIA 601 (Anmol Publications pvt ltd., New Delhi 1999) 28 DOEL MUKHERJEE, WOMEN AND URBAN CRIMES 251( Kalpaz Publications, Delhi 2005) 29 Mohd. Umar, Dowry- A Security For Standard Living, LAW REVIEW 194 (1990) 14(2) 30 JOY MELLUILLE, VIOLENCE IN THE FAMILY 305 (John Weley and Sons, New York 1978); MOHD UMAR, BRIDE BURNING IN INDIA: A SOCIO LEGAL STUDY 5(A.P.H. Publishing corporation, New Delhi 1998) 31 ISH KUMAR MAGOO, DOWRY DEMAND CRUELTY & DOWRY DEATH 264(Capital Law House, New Delhi 2004) 32 Section 2, Dowry Prohibition Act, 1961 33 LAXMI DEVI, CRIME, ATROCITIES AND VIOLENCE AGAINST WOMEN AND RELATED LAWS & JUSTICE 204 (Anmol Publications Pvt Ltd., New Delhi 1998)

(Amendment) Act, 1986, has proved to be totally ineffective. The present Act has several loopholes. The framers of the Act have failed to appreciate that dowry demands are not made only, in connection with marriage but they continue long after the event is over. The legal equality of sexes cannot be achieved until and unless the support rights and duties are drastically altered.34 3.2 Provision in the Indian Penal Code, 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. 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. Both the offences under sections 304B and 498A cannot be held to be mutually exclusive. 35 These provisions deal with two distinct offences. Section 304B applies to cases of suicide, whether it is a sequel to cruelty or harassment with the demand of dowry or not.36 3.3 Problems of evidence in dowry death cases In most of the cases regarding dowry death, direct evidence can be rarely found and hence the court has to rely on circumstantial evidence. 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.37 Motive for murder may or may not exist but in dowry deaths, it is inherent. The court only have to examine as to who translated it into action, as motive for dowry death is not of the individual but that of the family.38 In India, because of the complete dependence of a young married woman on her husband and in-laws, many dowry murder cases indicate that woman is pressurized to give contradictory dying declarations. If she thinks that she may survive, she gives a statement in favour of her husband, which she changes when she realizes that death is imminent. 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, and therefore do not believe that they may not survive.
39

In most of the cases, lack or inadequate investigation of dowry

violence by the police leads to the disturbance in imparting justice. The perpetrators of crime
34 35

Justice Krishna Iyer, Dowry Deaths, COMMERCIAL LAW GAZETTE 12 (1983) Supra note 30 at p. 275 36 Satvir Singh v State of Punjab and another, AIR 2001 SC 2828 37 Govindappa v. State of Karnataka, (1998) 2 SCC 763 38 Supra note 1 at p.315 39 Rajpal v. State, 1989 (1) HLR 90

frequently escape from the nemesis of the law because of inadequate police investigation. The greed for dowry system calls for the severest condemnation.40 4. CONCLUSION In 2009, the reported number of dowry deaths was 7456 which means that every hour a woman becomes the victim of this crime.41 Deaths in India related to dowry demands have increased 15fold since the mid 1980s from 400 a year to more than 7000 presently. 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.42 The courts should be stringent in such cases as leniency would only heighten the number of crimes against the women. In India, where capitalism has fashioned out of the traditions of dowry a particularly naked nexus between marriage and money, and where the stresses of everyday life are being heightened by widening polarization, the violence takes correspondingly brutal and grotesque forms.43 The most effective solution to this menace would be to change the mindset of people especially the women. 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. Education is a major avenue of upward social mobility.44 Education is the key that opens the doors to life which is essentially social in character.45 Special women protection cells should be set up to adhere to the problems relating to dowry and domestic violence. A panel of doctors and Psychiatrists should be appointed to deal with the miseries of women due to such atrocities. There is a lack of trained personnel and psychiatrists. Hence the women are compelled to withdraw their petitions as no one is ready to guide them and ensure their protection during the trial.

40

SAVITRI GOONESEKERE, VIOLENCE, LAW AND WOMENS RIGHTS IN SOUTH ASIA 154; Shri Bhagvan Singh v. commissioner of Delhi, AIR 1983 SC 826; Licchamani v. State of Rajasthan, AIR 1988 SC 1785 41 http://www.indiatribune.com/index.php?option=comcontent&view=article&id=3557:uttar-pradesh-bihar-madhyapradesh-report-most-dowry-deaths&catid=125:general-news&Itemid=400, accessed on 6th December 2010 at 5:30 pm. 42 http://timesofindia.indiatimes.com/india/Life-imprisonment-for-dowry-death-only-in-rare-casesSC/articleshow/5544318.cms, accessed on 6th December 2010 at 5:45 pm. 43 Amanda Hitchcock, Rising number of dowry deaths in India, available at www.wsws.org/articles/2001/jul2001/ind-j04.shtml, accessed on 5th December 2010 at 5:30 pm. 44 R HOLGER STUB, THE SOCIOLOGY OF EDUCATION 137 (The Dorsey Press Illinois 1975); MUMTAZ ALI KHAN, STATUS OF RURAL WOMEN IN INDIA 7(Uppal Publishing House, New Delhi 1982) 45 M.G. CHITKARA, WOMEN AND SOCIAL TRANSFORMATION 47 (A.P.H Publishing House, New Delhi 2001)

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. With women, there is also a need for counseling the society especially the men in the society. A drastic change in the outlook of the men is needed. There should be special gender equality classes for both men and women, in both urban and rural societies. 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. Women should take an active part in the implementation process. 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. Women should realise that it is not their duty to be nave and to be mistreated but it is their right to fight against atrocities. It is high time they realise their own worth, because if they dont respect themselves, they would always be the target of unfair treatment and cruelty.