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Nisha's Law

By Rajeev Dhavan

MAY 12 was not an ordinary day for Nisha Sharma. Instead of getting married, she called the police. It was not an easy decision for her. Some 2,500 guests were present at the wedding. Since a further dowry demand of Rs.12 lakhs was not acceptable to her family, the marriage was called off. The groom and his family went to prison. Nisha, a third-year college student, made history — to be feted for her example.

The next day, many young women spoke out. At least three from Delhi said that they would not permit `dowry' in their marriages. In Orissa, on May 13, young Bhagyabati refused to yield to a demand of Rs.50,000 and a motorcycle. The infuriated locals sided with her. On May 17, in New Delhi, a few hours after her marriage, 21-year-old Anupama Singh declined to accompany her husband whose family wanted Rs. 8 lakhs more. No formal complaint was filed. The matter was left to the panchayat which ensured that Anupama's family retrieved the money and the motorcycle which had already been given. Her father insightfully stated that he had "four children, no money to fight the dowry case and could not face the hardship of running to police stations and court hearings". Like Anupama, Farzana of Delhi's Walled City, too, declined the formal rukhsati (farewell) from her parents' house in the face of a demand for Rs.50,000 and a motorcycle. She had no local support like Bhagyabati. Nor did a panchayat sort out her problem. She was inspired and her source of inspiration was Nisha Sharma.

Pleased that Nisha had donned their mantle, the personnel of the Delhi Police's Crime Against Women cell said: "Girls should come out on their own to fight against the dowry menace and inform the police... (and obviate) dowry harassment". This is easier said than done. Nearly 80 per cent of women's complaints in Delhi relates to dowry. The large bulk of these are abandoned. In a sample of 106 out of 400 cases, the women complainants refused to appear. The woman risks everything — the ignominy of proceedings, the possible disgrace of not being believed, the stigma of unmarriageability; the cross accusation — as with Nisha Sharma — of other motives; the pressure of dismay faced with a society that is both hostile and uncaring; and the cruelty of legal processes which victimise her and test the tenacity of her courage.

Nisha's case reflects the unreal existence of laws in our society. Laws exist only on paper, and have little meaning for those for whom they are made. They are as fickle as society wants them to be. Laws are mobilised by people. Only the organised well off can play the legal game. But for the rest, `law' is a chimera; and litigation a devious evil which corrupts the soul, batters the mind, empties the pocket and destroys the working life of ordinary people. This is why Anupama's father ran away from the law to the panchayat.

But all this reflects on the fate of human rights and social justice in Indian society. Such rights are not won by great laws and grand judgments. Paper laws are just `bargaining endowments' — to be used if possible. Laws do not protect human rights, only people do. In fact, even in India's litigious society, there are too few human rights cases rather than too many. The correct test to gauge human rights quotients is to estimate the number of times the law is not mobilised at the expense of human rights lapses.

In significant research done in America, Europe and Australia, it has been shown that in most `serious' instance claims, the individuals simply `lump' the perpetrating ignominy without protest. There are no complaints, no cases and no redress. No research has been done in India on the `lump it' or abandoned claims. My hunch is that the `lump it' rate on human rights violations in India is astoundingly high. What human rights can we possibly speak of when faced with their continuous social abandonment? How, then, is the law to be mobilised? Not by others but by ourselves and the communities around us. This is all the more difficult when the community itself supports invidious practices. People are afraid of the police. Cells for women add a cosmetic aspect to humanity — sometimes effective to preserve the status quo. What is important is the `relevant' community. Nisha used her courage. Her family was with her. This is not always the case. Unless, pre-litigative support converts `grievances' into 'claims', the law is writ on water. We spend too much time enacting laws; and give little or no resources or thought to how to mobilise them into fruition.

Enacted in 1961 to criminalise giving or taking of dowry (Section 3), the Dowry Prohibition Act has failed. In 1986, the Union enhanced the term of imprisonment to 5 years, but this penalty was lessened in Bihar, Haryana and Himachal Pradesh to between 6 months and one year, with the maximum in West Bengal at 3 years. But, why punish for giving a dowry under coercion? The penalty for demanding dowry is imprisonment ranging from 6 months to 2 years (Section 4).

Since 1986, advertisements for dowry have been banned (Section 4A). Agreements for dowry are void (Section 5), yet valid to benefit the wife and her heirs (Section 7). The 1986 changes also enable State Governments to appoint Dowry Prohibition Officers (Section 8). Where are they? Why has no one heard of them?

The Dowry deaths law (Section 304A) of the Penal Code punishes husbands and in-laws for terms ranging from 7 years to life. The Judiciary goes soft in these cases. Husbands cannot subject wives to cruelty (Section 498A). A dowry demand is one such cruelty but not always so. Following Nisha's example, some potential defence lawyers scoffed at the anti-dowry law. No doubt, the punishment thresholds are low key — but not impossible as a deterrent or punishment. Judges are often sympathetic to dowry — perhaps, as part of the living practice of their social and family lives.

The law needs revision, especially on questions of bail, on making dowry a civil wrong, providing for interim compensation and having a single civil and criminal court to deal with the problem rather being piecemeal in different proceedings. We need courts of general jurisdiction. Dowry officers have proved to be a non-existent statutory joke.

Some judges, like Justice J. D. Kapoor, feel that `dowry laws' are being abused. In Savitri Devi's case (May 21, 2003), he rejected pleas to indict relatives other than the husband and his father in the dowry case. Anxious that children should not be dragged to court, he wanted high-ranking police officers to investigate and experienced judges to hear these cases, amidst other reforms. But, his basic premise that the law is abused appears to be grossly wrong. In fact, these laws are grossly unused. Dowry as a social evil survives in a greedy, consumer and commoditised society in which well-placed human beings are willing to harass and even kill for a motorcycle, a TV or Rs. 10,000. No doubt, a dowry case destroys a marriage. In fact, such marriages die the day dowry is demanded under threat of assault and blackmail. Through Nisha we re-learn the law. Never a self-fulfilling prophecy, law preserves status quo and cloaks injustice.

But Nisha's case shows it can be the site of struggle. Law can be used with courage and caution against dowry. This will not destroy patriarchy, but may go some way to mitigate its evils and pain.