Say 'no' to dowry

Bangladesh on 19 November 2013
Location : Bangladesh | Source : New Age Bd. Image Source: Flickr User Umjanedoan

A CONTEMPORARY liberal interpretation can be applied to numerous articles of the major international human rights treaties to argue that the prohibition of domestic violence is implied in those instruments and its violation will constitute the breach of the right to freedom from torture. For example, article 3 of the Universal Declaration of Human Rights 1948 provides for right to life, liberty and security. A violation of this article occurs when women experience domestic violence. This is because in that situation they suffer from an arbitrary deprivation of life, lose their liberty and lack security. Article 5 states that ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’ Further, article 7 of the International Covenant on the Civil and Political Rights 1966 requires state parties to protect an individual from these forms of violence. Read together, these provisions announce a legal framework for the prohibition of domestic violence. The implied sense and a close examination of objectives of these provisions essentially uphold the protection of women against violence regardless of the public or the private. ‘[No one] shall be subjected to torture…’ as specified in article 5 of the human rights declaration, neither belongs exclusively to any gender nor indicates any private or public.

Beyond these, domestic violence has dominated numerous resolutions, reports and recommendations of the convention and conferences respectively under the UN system that unequivocally recognise that it causes deprivation of women’s rights, and move the issue from the private to public responsibility. The following discussion explains how domestic violence shares a common experience with ‘torture’ and why it should thereby warrant similar legal weight and remedies as the officially recognised ‘torture’ does.

Although a number of statutes in Bangladesh recognise dowry as a crime, they fail to accord it the similar legal weight of the fundamental right to freedom from torture. The Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment 1984 is the most relevant international instrument, setting a definite criterion of torture. Under article 1 of CAT, four elements are necessary to constitute torture. These are: (i) an act that causes physical or mental severe pain or suffering; (ii) that act must be intentionally inflicted; (iii) there should be a specific reason; and (iv)that act involves some form of active or passive involvement of the government. In order to determine whether a particular form of deprivation should qualify as a breach of the right to freedom from torture, regard should be given to the effect of the deprivation. In the following ways, an application of the elements of torture to the dowry-related repression in Bangladesh can substantiate that domestic violence should be treated as torture.

Firstly, in most cases, verbal or physical assault ranging from swearing, beating, kicking and the infliction of pain (through various objects such as rods, sticks and knives) to death are repeatedly practised on women in Bangladesh who fail to meet the dowry demands of their in-laws. Such violence can reasonably be characterised as having the required severe physical or psychological pain and having similar effects on the victims of dowry. Forcing women to satisfy dowry in this manner creates a ‘state of panic’ in mind. This ‘state of panic’ keeps those women under constant mental pressure and in vulnerable situations, coupled with a fear of further physical assault. This particular state constitutes mental suffering. In a similar situation to dowry violence, it was found that ‘battering’ produced a state of depression, anxiety, dependency and passivity among victims when they felt helpless to leave abusive relationships. The repeated violence of domestic abuse gradually destroys the victim’s mental capability to function independently and to resist; that, in turn, increases their further vulnerability. This type of conduct produces the manipulation through ‘stress’ of mind in much the same way as torture.

Secondly, with the husband’s explicit desire to earn dowry money, threats and physical assault are recurrently committed on the unwilling women. Cruel treatment appears to be unnecessary where women deliberately want to help their domestic partners. Mental or physical assault thus implies the presence of some sort of undue force and that force exhibits an explicit intentional mala fides. Thirdly, the dowry-related repression originates with a specific purpose. The purpose is to obtain money or valuables, and the inability of the women to satisfy this purpose results in cruel treatment or death. Fourthly, in the present case, the state is actively involved through enacting, inter alia, the Dowry Prohibition Act 1980 to protect women against dowry violence. The state’s passivity results from its failure to implement the dowry law or to remove the flaws in the law as required, especially by the articles 4-5 of the CEDAW. It fulfils the requirement of the fourth element of ‘torture’. 

Furthermore, Culliton concludes that ‘even if a particular domestic violence case does not reach the level of “torture”, international legal instruments prohibit cruel, inhuman or degrading treatment or punishment. This prohibition is also part of fundamental human rights and customary international human rights law’. Thus, it can be summed up that the physical and emotional assaults involved in a dowry satisfy the standard of abuse required by ‘torture’. The following section further emphasises the issue to provide domestic violence with the explicit recognition of torture. 
In response to the growing incidence of dowry violence in Bangladesh, the government enacted the     Dowry Prohibition Act in 1980. This section examines whether this Act is effective to curb dowry and whether it subjugates or favours women to invoke judicial remedies. Then it considers the administrative and judicial efforts of the country to address dowry. It also provides suggestions as to how some of the legal flaws in the dowry legislation and prosecution policies can be overcome. Given the scope of the chapter, the discussion of this section primarily looks at the practices of India and the US for two reasons: (i) India experiences the similar problem of dowry; and (ii) although the US largely overlooked the gender-based violence until recently, it has made appreciable advancement in law towards the protection of victims against domestic abuse. The discussion begins with a survey of the socio-cultural context under which the recent concept of dowry has evolved and widely accepted in Bangladesh.

Dowry refers to property, cash or goods given to the bridegroom as a consideration of marriage. The Dowry Prohibition Act 1980 defines dowry as any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage by another party at any time before or after the marriage as a consideration of marriage. Originally, dowry is a concept of Hindu law. In Hindu law, unlike Muslim law, marriage is a sacrament instead of a civil contract. Under this law, women were not entitled to inherit property from their parents’ families. To compensate for this discrimination, at the time of marriage, women were voluntarily given some properties in kind or cash by their parents within their financial capacity. These properties constituted women’s ‘Stridhan’ (women’s property) and reverted back to them in the event of termination of the marriage.

Among the lower caste, the ‘bride price’, a small amount of money, was given to the bride’s family by the groom’s family as a compensation for the loss of their daughter. However, the contemporary perception of dowry as practiced in Bangladesh has no resemblance to the original concept. Over the course of time, its voluntary nature has been transformed into a ‘compulsion’ on the family of the bride. In recent years, dowry has become an essential part of nearly every marriage and is obtained through applying constant coercion or pressure on the newly wedded women. 

A number of factors such as traditional culture, an unequal power relation between men and women, the growing unemployment problem among young men and commercialisation of marriage contribute to the persistence of dowry despite legislative initiatives to eliminate it. The patriarchal society in Bangladesh acknowledges men’s superiority over women. To establish this superiority, men preferably receive family supports and attention in favour of developing their independent and productive careers. Consequently, the bargaining power and rating of dowry depend on the level of educational and occupational status of the groom. This social practice eventually creates economic dependence and powerlessness of women and portrays them as an ‘unproductive burden for the family’. Thus, women’s staying in the parental home at the marriageable age or after, is not welcome. 

Another concern is about the ‘virginity’ of women before they are married. Parents have to face a severe consequence with their adult daughters when scandal regarding their chastity ensues within the community. It becomes highly unlikely to find suitable grooms for those women. Within this social organisation, parents try desperately to arrange a marriage at any cost, even beyond their means, and to provide some sort of incentives to have a qualified son-in-law so that the daughter’s life is better provided for.

The special attention from both sides develops the ‘superfluous ego’, a feeling of ‘power’ among grooms’ families that help dowry transform into a demand. Apart from this, the decline in moral values and greed for the improved life make marriage a commercial transaction. In recent times, ‘marriage began to lose its sanctity’ and is used as a means of making money, in which more value is given to property and cash money than that of the bride herself. As one of the potential means to change fate, even a poor uneducated man may exploit a bride’s family. In numerous instances, the groom’s dowry demand does not match with the annual income and wealth of the bride’s father. On some occasions, a ticket to the Middle East to find a job is demanded as ‘dowry’. The richer section of the country has also made a significant contribution to the present dimension of dowry. It offers luxury items ranging from ornaments to land properties, from furniture and home appliances to arranging a grand formal gathering. It serves to display their wealth and status in the society on the one hand, and to encourage young men to nurture dowry, on the other. In this way, the socio-economic and cultural factors encourage the continuation of dowry in Bangladesh.

The Dowry Prohibition Act 1980 is the primary law of the country to deal with dowry. It makes dowry a criminal offence punishable with a maximum penalty of one year imprisonment or with a fine of Tk 500 ($8.3) or with both. The act is concerned with a series of issues including punishment for demanding or taking and giving dowry and its investigation and trial proceedings. Under section 7 of the act, a magistrate of the first class is empowered to try the dowry offence.

The act was amended on a number of occasions in attempts to redress certain deficiencies. For example, the Dowry Prohibition (Amendment) Ordinance 1982 enables an individual to file a dowry suit directly to the court. The amendment of 1986 extended the penalty for claiming dowry in any form after or before marriage up to a maximum of 5 years imprisonment, and made dowry a non-cognisable and non-bailable offence. The 1988 amendment broadens the scope of dowry by providing that: dowry ‘at the time of marriage or any time’ is illegal. Dowry is also a subject matter of other laws such as the Cruelty to Women (Deterrent Punishment) Ordinance 1983.

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