LAW RESOURCE INDIA

Misused anti-dowry laws in subcontinent

Posted in CRIME AGAINST WOMEN, DOMESTIC VIOLENCE, GENDER, HUMAN RIGHTS by NNLRJ INDIA on March 8, 2010
TAHIR MAHMOOD IN NEW INDIAN EXPRESS 08 Mar 2010

Whenever a law is made too stringent under the pressure of emotionally surcharged social reactions, there is the danger of its misuse” once observed a learned Supreme Court judge speaking on the anti-dowry legislation of India. The Dowry Prohibition Act of 1961, which made an outright declaration that ‘demanding, giving and taking’ of dowry would all be punishable offences, has been made truly stringent by repeated amendments and additions introduced in subsequent years not only in its own text but also in the Indian Penal Code of 1860, the Evidence Act of 1872 and the Code of Criminal Procedure 1973. And yet the social evil of dowry remains rampant throughout the country. Having its origin in an ancient custom widely prevalent among the Hindus, the canker has gradually percolated through the other communities of India too. Even the Muslims whose religious law has no space for dowry and regards it haram (absolutely prohibited, like alcohol and pork) have not remained away from this horrendous practice — constant preaching by their religious leaders regarding its wholly un-Islamic nature notwithstanding. The anti-dowry laws of India of course apply to the Muslims, as much as to all other citizens, but they have failed to discipline them and all other communities in this respect.The practice of dowry is in vogue among the Muslims in the entire subcontinent — no less in the so-called ‘Islamic Republic’ of Pakistan. The Dowry and Bridal Gifts (Restriction) Act enacted by the federal legislature in Pakistan in 1976 is more stringent than the Indian law but has hardly been successful in weeding out this social evil. In 1982 the other Muslim state of the subcontinent, Bangladesh, enacted a Dowry Prohibition Act based on a selection of provisions taken from the Indian law of 1961 and the Pakistan law of 1976. In all three countries these grandiose anti-dowry laws have remained mere showpieces having no noticeable impact on the society. Besides utter failure to achieve their actual purpose, their provisions are in fact being misused to settle personal scores and pressed into service to add fuel to family feuds.The dowry prohibition laws enacted in the three countries in the subcontinent exempt from their purview what is known in Islamic law as maher (translated somewhat inaccurately as dower) which is entirely different from — in fact diametrically opposite of — the concept of dowry. While dowry — called jahez by the Muslims and strictly disallowed by their religion — is demanded by the groom or his family from the bride’s side, ‘dower’ in Islamic law is property to be settled by the groom in cash or kind in favour of the bride. Meant to be a financial security for the bride, it is and always remains her absolute property which she can unconditionally use and deal with as she likes. Islamic law gives the parties to intended marriages freedom to settle between themselves the amount of dower and the time for its payment — both generally to be proposed by the bride’s family — and if no such agreement takes place, the law has its own rules for settling what is payable as dower, and when.Unfortunately, Muslims in this part of the world have distorted the Islamic legal concept of dower beyond recognition. The amount fixed here is often kept ridiculously low, on the pretext of following the Sunnat (Prophet’s practice) referring to the dower fixed by the Prophet for his beloved daughter Fatima over 1400 years ago. As regards the time for discharging the dower obligation, there is a terrible misunderstanding in the subcontinent that the liability arises only if and when there is a divorce. This is the widely prevalent misconception due to which dower has been listed among the ‘divorcee’s rights’ in the Muslim Women (Protection of Rights on Divorce) Act enacted in India in 1986 in the aftermath of the celebrated Shah Bano case. In actual practice, even in the cases of divorce the poor divorcee has to run from pillar to post and often fight a prolonged court case to realise her unpaid dower. And the widow’s dower, which legally becomes due the moment her husband breaths his last and is payable from his heritable estate, is never paid — she is always presumed to have magnanimously agreed to forego it in his last moments. In 1954 a Muslim judge of the Supreme Court of India had even ruled that the unpaid dower of a widow is an ‘unsecured debt’ and for its realisation she has no priority over the other debtors of the deceased husband — a wholly erroneous and unjust ruling indeed.Unfortunately, no law has ever been enacted anywhere in the subcontinent to implement the Islamic principles of dower in their correct perspective. On the contrary an old law in Kashmir, enacted in 1920 and still in force on both sides of the Line of Control, empowers the courts to slash the stipulated amount of dower if it appears ‘excessive’. The present practice regarding dower rights of divorced and widowed women militates against the letter and spirit of true Islamic law on the subject married Muslim women in the subcontinent are generally deprived of the financial security judiciously clubbed in Islamic law with the institution of marriage as its inseparable part. Sadly, the Muslims in the subcontinent have practically swapped the highly appreciable Islamic law on dower for the highly abominable custom of dowry. “The Prophet of Islam was so humane that his law if insightfully interpreted lends its weight to gender justice,” a great non-Muslim judge of India V R Krishna Iyer has once observed; but who cares to so interpret and practise that law?In all countries of the subcontinent the general anti-dowry laws are misconstrued and misused, while the Islamic law of dower is distorted and disused. Can, then, the subcontinent showcase them with some pride? Let us honestly answer the question on this International Women’s Day.

(The author is a senior professor of law and president, International Islamic Law Consortium)


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