By Imtiaz Ahmad

If the anti-dowry legislation was serious about curbing dowry, it should have ensured that women received a share in the family property.

TWO SETS of questions have been raised by a few recent instances of girls, who either refused to go through marriage or called it off because their in-laws demanded dowry beyond their parents' paying capacity.

One, why does the practice, four decades after the stringent anti-dowry law was enacted and a widespread social campaign launched, continue unabated? Why has the law not been able to curb the practice when there is general agreement that it should be stamped out? Second, is the law susceptible to gross misuse in marital discord and what might be done to clog this possibility?

To the first question the answer is simple. It is that there is a great deal of social hypocrisy as a result of which we publicly condemn it but at the same time accept and demand dowry.

The principal reason for this anomaly is that, while the burden of public opinion expects us to eschew giving or taking dowry, the social arrangements in which we operate continue the practice. There are many dimensions to this: the patriarchal character of society which devalues women so that their acceptance in marriage ought to be compensated materially, the consumerist ethos that is a compelling force to get rich at one stroke rather than slog for life and the ostentatious display of wealth in an effort to demonstrate social standing.

One reason behind such considerations is that dowry functions as a form of moveable assets in a society where land has been the chief property resource.

Parents, according to customs which operate even after the enactment of modern legislation, do not give their daughters a share in landed property. Instead, they prefer to given them tangible assets in the form of dowry. This becomes a source of bickering and bargain wherein each party ends up trying to negotiate the best bargain. The terms are negotiated on the estimate the groom's family has of the worth of the bride's family.

Where the negotiations are fine-tuned, the marriage goes through smoothly and dowry is happily exchanged. It is only where there is a wide gap between what the groom's family estimates the bride's family can pay and what the latter feels it can conveniently part with that trouble arises.

Marriage negotiations simply break down in such cases. However, if the demand is hiked at the time of the marriage ceremony or just before the girl is sent off, as happened in the recently reported cases, the dispute comes into public view and has to be settled one way or the other through mediation by relatives and friends.

Where such mediation is not used the matter becomes one of law and order. Families usually avoid such situations either to escape being drawn into public controversy or to avoid marring their daughter's future marital prospects, both of which reasons are easily understandable. It is in this respect that the recent cases are commendable in that in all these cases the girl rather than her family took the initiative to bring the issue to public attention.

If the much-flogged Dowry Prohibition Act, 1961, was intended to curb the practice of dowry it should have not stopped at merely making the giving and taking of dowry a cognisable and non-bailable offence and providing for stringent punishment. It should have gone beyond tokenism and assailed the very social arrangements which constitute the backbone of this practice.

Considerable historical and sociological evidence exists to show that the practice of dowry crept into Indian society out of the necessity to keep women out of property so that family wealth would remain within the patrilineal group. This is a universal stratagem societies have adopted to maintain the continuity and stability of the patrilineal group.

Where the law allows women a share in the family property, other stratagems are adopted. For example, Muslim societies follow the principle of parallel-cousin marriages to keep family property within the patrilineal group because Muslim law allows women the right to inherit family assets including land. South Asia is an exception in this respect because the enactment of the Shariat Act, 1937, disallowed women a share in arable land.

If the anti-dowry legislation was serious about curbing the practice of dowry, it should have ensured that women received a share in the family property, which continues to be denied to them even after substantial legal reforms were brought about. If women were guaranteed property rights there would be no reason for substantial marriage transactions as a woman's husband and his parents would know that at the appropriate time she would secure her share of the family property. Since the social arrangements in place at the moment deny women that right, a woman's in-laws demand a share of the family property in the form of dowry and many women themselves desire that they be given a good dowry.

Academic research on women's rights on land shows that one of the reasons offered by women for not preferring a claim to the family property is that they feel that if they did so they would be demanding two shares, one at the time of their marriage and another after the death of their parents.

Yet another stratagem the law could have contemplated was to bring marriage transactions within the net of income and wealth tax as it applies to gifts. Because none of these provisions was contemplated, it is hardly surprising that the law has proved to be ineffective.

This brings us to the second question. Conflict is endemic to marital life. Family sociology offers no clues as to the level of friction found among married couples, nor about the means employed to deal with marital discord.

Evidence exists, however, that a newly-wedded woman is usually subjected to taunts and bickering. Such bickering may relate to dowry, division of household chores or even the social and economic background of the woman and her natal family. Such bickering usually stops a few years after the marriage, particularly after the couple has a child.

Traditionally, women endured such bickering until they consolidated their position. Nowadays, some women brought up on notions of personal autonomy and nuclear living sometimes take resort to legal action to teach a lesson to their erring in-laws, to get even for harassing them or to negotiate a nuclear living arrangement in the bargain. When this course is taken, provisions of the Dowry Prohibition Act are often used.

A well-worked network is in place in cities and district towns to turn and twist incidents, represent them as instances of dowry-related violence, arrange a medical examination and file a petition.

Money easily passes hands at every stage and, ultimately, more than the woman, it is those whose favour has to be invoked in order to get the case instituted who seem to be the greatest beneficiaries.

Both legal loopholes need to be plugged.