Present provisions for dowry prohibition and proposed amendment: A comparative legal study Advocate Md. Shahabuddin Molla (Sabuj) LL.B. (Hons.) ; LL.M.
Dower and dowry is the most relevant and commonly known word in our conjugal life. Getting dower is the legal right of a Muslim married woman. On the other hand, giving, taking or demanding dowry is a criminal offence which is usually committed by the bridegrooms or their family. The evil of dowry has been most remarkably increased during last sixth decades. To prevent this curse of dowry, Bangladesh has made a statutory law namely the Dowry Prohibition Act, 1980.
According to section 2 of the said Act, dowry means any property or valuable security given or agreed to be given either directly or indirectly at the time of marriage or at any time before or after the marriage –
(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.
Lacking and ambiguity of the Dowry Prohibition Act, 1980: The offence of giving, taking or demanding dowry is a non-cognizable offence as per provisions of section-8 of the said Act. Consequently, the victim cannot get immediate support or file any complain to the nearest police station. She has to file a complaint petition to the concerned cognizance court which is very crowd and harassing for her.
This Act only deal with the offence of only giving, taking or demanding dowry. This is very minor part of the victimization of dowry. In most of the case, the bride is tortured physically or/and mentally. Sometime she is forced to commit suicide or she is killed by brutal torture. This more important part is not covered by the present Dowry Prohibition Act, 1980. However, it is covered by the Nari O Shishu Nirjatan Daman Ain, 2000 (Prevention of Repression of Women and Children Act, 2000). Section 11 says that if the husband of a woman or husband’s father, mother, guardian, relatives or any other person of the husband’s side causes death or attempt to cause death to that woman for dowry or causes grievous hurt or simple hurt to that woman that husband, husband’s father, mother, guardian, relatives or persons –a) shall be sentenced to death for causing death or shall be sentenced to imprisonment for life for attempting to cause death and in both cases shall also be liable to fine, b) shall be punishable with lifelong rigorous imprisonment or maximum twelve years or minimum five years rigorous imprisonment and shall also be liable to fine for causing grievous hurt, c) shall be punishable with maximum three years, but minimum one year rigorous imprisonment and shall also be liable to fine for causing simple hurt.
So, we can say that if any person only takes or claims dowry then he will be liable under Section 3 or 4 of the Dowry Prohibition Act, 1980 which is punishable with imprisonment which may extend to five years and shall not be less than one year, or with fine, or with both and if any person causes death or grievous hurt or simple hurt for dowry then he will be liable under section- 11 of the Nari O Shishu Nirjatan Daman Ain, 2000.
As per the personal opinion of some practicing lawyers and sitting magistrate and judges, it is very common practice in the lower court that a divorced wife filed civil suit for dower and maintenance against her husband before the Family Court as well as a criminal case for dowry against her husband & other family members of her in laws before the Magistrate court. Usually summon is issued to the accused in dowry case and the accused person appear before the court by submitting bail petition. The learned Court grants bail to all accused except the husband. The husband is sent to jail custody so that his guardian may contact with the guardian of the bride and makes a negotiation in respect of dower and other post divorced matter. Later date, the husband is granted bail on condition of compromise. This is also frequently happened when a married woman goes to her father house after quarrelling about some conjugal matter. But it is a great matter of sorrow that there is no element of committing dowry related offence and it is totally abuse of the process of the court. On the other hand, majority of the real victim of dowry related offence sustains their pain silently in considering her socio-economical conditions.
The above mentioned false implications are happened because there is no specific provision for punishment for false and vexatious case in the Dowry Prohibition Act, 1980. Although Section-211 of the Penal Code, 1860 provides that whoever with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. But the Penal Code, 1860 is an ordinary law. In this regard, section- 17(1) of the Nari O Shishu Nirjatan Daman Ain, 2000 clearly prohibits about false case or complaint by prescribing punishment of rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine. The legislatures should incorporate such kind of provision in the Dowry Prohibition Act, 1980.
Expansion of the Dowry Prohibition Act, 1980: As per section – 2 of the Dowry Prohibition Act, 1980, any property given by one party to a marriage to the other party to the marriage is simply called dowry. It is not specifically mentioned that which party (bride or bridegroom) would give the property to constitute an offence of dowry. So, the bride or bride’s relative may be offender of taking dowry.
For instance, bride’s father claims that 10 decimal lands (in addition to prescribed dower) should be given to his daughter because the bridegroom is unemployed or uneducated. This is the claiming of dower by bride’s father.
As per explanation-1 of section – 2 of the said Act, 1980, any presents made at the time of a marriage by any person other than a party to the marriage to either party to the marriage in the form of any articles the value of which exceed five hundred taka, shall be deemed to be dowry. So, the offence of dowry may also be committed by the invited guest of marriage ceremony.
For instance, an invited rich guest of marriage ceremony gives an ornament of gold (valued at Tk. 10,000) to bride. Here, he also commits an offence of giving dowry. This is very common incident in our society.
The Act provides the same punishment for dowry givers ignoring the social reality of women in Bangladesh. Parents of brides are, very frequently, compelled to give dowry to arrange their daughter’s marriage. The Act should identify this reality and be amended so that only dowry takers or abettors are punished.
The old law (section 3 & 4) did not mention any amount of fine. But in the proposed draft amendment, Tk. 50, 000 is fixed as fine for giving or taking dowry in marriages besides imprisonment which may extend to 5 years as maximum punishment.
The draft bill incorporated a new provision stipulating maximum five-year jail sentence along with a fine of Tk. 50, 000 for filing a false case over dowry.
Necessity of proposed amendment:
The draft new law fixes the amount of fine for dowry offence which was not specifically determined. It is a good initiative but not a new invention because section 63 of the Penal Code, 1860 provides that where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited, but shall not be excessive. So, the concerned court can impose any amount of fine over the accused; however after the amendment, the Court can imposed fine up to Tk.50, 000.
Punishment for filing a false case over dowry is a new addition because there is no specific punishment in the Dowry Prohibition Act, 1980 at now. But a victim of false case may file a Complaint Registered (C.R.) case under section 211 of the Penal Code, 1860 for which the offender shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. The new addition will increase the severity of punishment for filing a false case over dowry.
Probable difficulties which may be arisen:
There are so many women who are victim of dowry offences. But in most of the cases real victim does not want to file any case against the culprit because she wants to continue their conjugal life with her husband. Besides this, most of the women and their relatives want to avoid the procedural harassment of court. Moreover there is very little chance to convict a criminal because of common law principle of standard of proof i.e, beyond all reasonable doubt. The proposed changes, in our opinion, will discourage even the most affected victims to file cases in many circumstances. It will be worse for the society. On the other hand, it is also true that the rapidly increasing rate of false case over dowry cannot be controlled without making hard laws.
So, we may conclude that the new amendment of punishment for filing a false case over dowry should be applied very cautiously so that no innocent person could be harassed by filing false case as well as the real victim of dowry should be encouraged to take legal step against the culprit to curtail the curse of dowry. We should remember that who does and who sustains any wrong, both are hatred.