Dowry, and the Dowry Prohibition Act 1961

Mahr is excluded. Dower or mahr under Muslim personal law is not dowry. It is a right of the wife against the husband, not a payment to him, and the Act says so expressly.

The three offences

Section 3: giving or taking

Section 3(1) provides that if any person gives or takes, or abets the giving or taking of, dowry, he shall be punishable with imprisonment for a term not less than five years and with fine not less than fifteen thousand rupees, or the amount of the value of such dowry, whichever is more. The proviso allows the court, for adequate and special reasons recorded in the judgment, to impose a term of less than five years.

Note that the giver is guilty too. The bride's father who pays is committing the same offence as the groom's family who receive. That is a real difficulty in enforcement and it is the reason section 7(1)(b) had to be written as it was.

Section 3(2) carves out presents. Nothing in sub-section (1) applies to:

• (a) presents given at the time of a marriage to the bride, without any demand having been made, provided they are entered in a list maintained under the rules; and
• (b) presents given at the time of a marriage to the bridegroom, without any demand having been made, provided they are entered in such a list, and provided further that where they are made by or on behalf of the bride or a person related to her, they are of a customary nature and not excessive having regard to the financial status of the giver.

Read the two clauses against each other. Presents to the bride need only be undemanded and listed. Presents to the bridegroom need that, and must also be customary and not excessive. The Act is harder on gifts flowing towards the husband, which is the direction the abuse runs in.

Section 4: demanding

Section 4 provides that if any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, any dowry, he shall be punishable with imprisonment for a term not less than six months, extending to two years, and with fine which may extend to ten thousand rupees. The proviso again allows a lesser term for adequate and special reasons mentioned in the judgment.

The offence is the demand alone. Nothing need be given, nothing need be received, and the marriage need not take place. This section was substituted wholesale by the 1984 amendment, and it is the section MU asks about most often, usually in the form "what is the punishment for demanding dowry".

Section 4A: the advertisement ban

Section 4A, inserted in 1986, makes it an offence to offer, through an advertisement in any newspaper, periodical, journal or other media, any share in property or money or any share in a business as consideration for the marriage of a son, daughter or other relative; and equally an offence to print, publish or circulate such an advertisement. The punishment is imprisonment not less than six months, extending to five years, or fine up to fifteen thousand rupees, with the usual proviso.

Section 5: agreements are void

Section 5 is one sentence: any agreement for the giving or taking of dowry shall be void.

It follows that no suit lies to enforce such an agreement, on either side. A family that promised dowry and did not pay cannot be sued for it; a family that paid cannot sue to recover it under the agreement. Recovery, where it is available at all, comes from section 6.

Section 6: dowry is for the wife

This is the section that turns a criminal statute into a property remedy, and it is worth learning properly.

Section 6(1) provides that where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman:

• (a) if received before the marriage, within three months after the date of marriage;
• (b) if received at the time of or after the marriage, within three months after the date of its receipt; and
• (c) if received when the woman was a minor, within three months after she attains the age of eighteen.

And pending transfer, that person holds it in trust for her benefit. The three-month periods were substituted for "one year" by the 1984 amendment.

Section 6(2) makes failure to transfer an offence: imprisonment not less than six months, extending to two years, or a fine not less than five thousand and not more than ten thousand rupees, or both.

Section 6(3) provides that where the woman dies before receiving the property, her heirs may claim it from whoever holds it. The proviso, inserted in 1986, is the important one: where the woman dies within seven years of her marriage otherwise than due to natural causes, the property goes to her parents if she has no children, and to her children if she has, being held in trust for them pending transfer.

That proviso exists so that a family suspected of causing a young wife's death cannot inherit what they took from her. It is the civil counterpart of the seven-year presumption that Indian criminal law applies to dowry deaths.

Section 6(3A) adds teeth. Where a person convicted under sub-section (2) has still not transferred the property, the court must, in addition to punishing him, order the transfer within a specified period; and if he does not comply, an amount equal to the value of the property may be recovered from him as if it were a fine and paid to the woman or her heirs, parents or children.

Section 6(4) preserves sections 3 and 4. Handing the property over does not undo the offence of giving, taking or demanding it.

Sections 7 to 10: how the Act is enforced

Section 7 deals with cognizance, and each limb answers a practical problem.

• (a) No court inferior to a Metropolitan Magistrate or a Judicial Magistrate of the first class may try an offence under the Act.
• (b) No court may take cognizance except upon its own knowledge, or a police report of the facts, or a complaint by the person aggrieved, or by a parent or other relative of that person, or by a recognised welfare institution or organisation.
• (c) Such a Magistrate may pass any sentence authorised by the Act.

The Explanation defines a recognised welfare institution or organisation as one recognised in that behalf by the Central or a State Government.

Clause (b) is the answer to the difficulty created by section 3. Because the bride's father is himself an offender when he pays, he is not a willing complainant. So the Act lets the court act on its own knowledge, and lets a welfare organisation complain, and does not require the aggrieved woman to move first.

Section 8 makes offences under the Act cognizable for certain purposes, and provides that every offence under the Act shall be non-bailable and non-compoundable. The word was "bailable" until the 1986 amendment substituted "non-bailable". Non-compoundable matters just as much: the parties cannot settle a dowry prosecution between themselves and have it dropped, which is precisely what pressure on a young wife's family would otherwise achieve.

Section 8A reverses the burden of proof, and it is the provision students most often miss. Where a person is prosecuted for taking or abetting the taking of dowry under section 3, or for demanding dowry under section 4, the burden of proving that he had not committed the offence is on him.

Read the section carefully before writing about it, because it does not reverse the burden for everything. It applies to taking and to demanding. It does not by its terms extend to giving under section 3, which is the limb the bride's family would be prosecuted on. So the reverse burden runs only against the side the Act is aimed at, and a student who says "the Act reverses the burden of proof" without that qualification has overstated it.

Section 8B provides for Dowry Prohibition Officers. Sub-section (1) lets the State Government appoint as many as it thinks fit and specify their areas. Sub-section (2) gives them four functions: to see that the Act is complied with; to prevent, as far as possible, the taking or abetting of the taking of, or the demanding of, dowry; to collect such evidence as may be necessary for prosecution; and to perform such additional functions as are assigned to them. Sub-section (3) lets the State Government confer specified powers of a police officer on them. Sub-section (4) allows the State Government to appoint an advisory board of not more than five social welfare workers, of whom at least two must be women, to advise and assist them.

Sections 9 and 10 are the rule-making powers of the Central Government and the State Governments respectively. The list of presents required by section 3(2) is maintained under rules made in exercise of these powers.

A worked example

Before Neha's marriage her father-in-law demanded a car and five lakh rupees from her father, who paid. The gifts were received by the groom's mother, who kept them. Two years later Neha died of burns in her husband's house.

Is what was paid dowry? Section 2: dowry means any property or valuable security given or agreed to be given directly or indirectly by one party to a marriage to the other, or by the parents of either party or by any other person, at or before or any time after the marriage in connection with the marriage. It excludes dower or mahr in the case of persons to whom the Muslim Personal Law applies.

Who is punishable? Section 3 punishes giving or taking dowry with imprisonment of not less than five years and a fine of not less than fifteen thousand rupees or the amount of the value of the dowry, whichever is more. So Neha's father is within the section as well, subject to the exceptions for presents.

And the demand? Section 4 punishes demanding dowry with imprisonment of not less than six months extending to two years and a fine up to ten thousand rupees.

And an advertisement offering a share in property in consideration of marriage? Section 4A: six months to five years, or a fine up to fifteen thousand rupees.

Was the payment agreement enforceable? No. Section 5: any agreement for the giving or taking of dowry is void.

Who is entitled to what was given? Section 6: a person other than the woman who receives dowry holds it in trust for her and must transfer it to her, within three months of receipt or of the marriage or of her attaining eighteen, as the case may be. Where she dies otherwise than by natural causes within seven years of the marriage, it passes to her children, or if none, to her parents.

How is the Act enforced? Offences are cognizable, non-bailable and non-compoundable; a court may take cognizance on a police report, on its own knowledge, or on a complaint by the aggrieved person, a parent or relative, or a recognised welfare institution or organisation; and the burden of proving that he did not demand dowry lies on the person charged.

What it does NOT mean

Dowry is not a gift. Customary presents given without demand, and of a value not excessive having regard to the giver's means, are outside the definition.

It is not limited to what is given before the marriage. The words are "at or before or any time after the marriage".

It is not confined to what passes between the spouses. Parents and any other person are within the definition.

Only the taker is not punished. Section 3 punishes giving as well as taking.

Section 6 does not give the property to the husband's family. They hold it in trust for the wife.

The Act does not require the wife to prove the demand. The burden of proving that he did not demand it lies on the person charged.

Quick revision

• s.2: dowry is property or valuable security given or agreed to be given, directly or indirectly, by a party or a parent or any other person, at, before or any time after the marriage, in connection with it; dower or mahr is excluded.
• s.3: giving or taking dowry: not less than five years and a fine of not less than fifteen thousand rupees or the value of the dowry, whichever is more; customary presents are excepted where they are entered in a list and are not excessive.
• s.4: demanding dowry: six months to two years and a fine up to ten thousand rupees.
• s.4A: advertising a share in property or money in consideration of marriage: six months to five years, or a fine up to fifteen thousand rupees.
• s.5: an agreement for the giving or taking of dowry is void. s.6: dowry received by anyone else is held in trust for the woman and must be transferred within three months; if she dies unnaturally within seven years, it goes to her children, or else her parents.
• ss.7 to 10: offences are cognizable, non-bailable and non-compoundable; cognizance may be taken on a complaint by the person aggrieved, a parent or relative, or a recognised welfare institution; the burden of proof is on the person charged; Dowry Prohibition Officers; and rules.

Test yourself

1. Define dowry. Any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party, or by the parents of either party or by any other person to either party or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties. It does not include dower or mahr in the case of persons to whom the Muslim Personal Law applies.

2. What is the punishment for giving and taking dowry? Imprisonment for a term which shall not be less than five years, and a fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more, under section 3.

3. What is the punishment for demanding dowry? Imprisonment for a term which shall not be less than six months but which may extend to two years, and a fine which may extend to ten thousand rupees, under section 4.

4. Who is entitled to dowry received by somebody other than the wife? The wife. By section 6 the recipient holds it in trust for her and must transfer it to her within three months. If she dies otherwise than by natural causes within seven years of the marriage, the property passes to her children, and if she has none, to her parents.