Drafting Laws on Dowry-Related Violence

Last Updated May, 2010

In partnership with UNIFEM, The Advocates for Human Rights created the following section for UNIFEM’s Virtual Knowledge Centre to End Violence against Women and Girls. This section, along with sections addressing other forms of violence against women and girls, may be found under Legislation at www.endvawnow.org.

Throughout this section on Drafting Laws on Dowry-Related Violence, reference to certain provisions or sections of a piece of legislation, part of a legal judgment, or aspect of a practice does not imply that the legislation, judgment, or practice is considered in its entirety to be a good example or a promising practice.
 
Some of the laws cited herein may contain provisions which authorize the death penalty. In light of United Nations General Assembly resolutions 62/149 and 63/168 calling for a moratorium on and ultimate abolition of capital punishment, the death penalty should not be included in sentencing provisions for crimes of violence against women and girls. 

 

Definition of Dowry-related Violence

The violence and deaths associated with dowry demands constitute domestic violence. Similar to acts of domestic violence, the acts used in dowry-related offenses include physical, emotional, and economic violence, as well as harassment as means to exact compliance or to punish the victim. Victims will be best served when protected by an expansive domestic violence legislative framework that encompasses dowry-related violence. Drafters should define the scope of prohibited acts within a domestic violence framework, taking into account the dynamics of dowry-related violence. See: What Is Domestic Violence, StopVAW, The Advocates for Human Rights. Lawmakers should include violence and harassment related to dowry demands in a definition of domestic violence. Demands for dowry should not be a requisite element in domestic violence laws, however, because of their subtle and often implicit nature.

Promising practice: India’s civil law, Protection of Women from Domestic Violence Act, includes dowry-related harassment as a form of domestic violence (Section 3(b)). http://www.apwld.org/pdf/India_ProtectionDVact05.pdf. It is important dowry-related violence and deaths be prohibited under criminal laws, as well. See Harmful practices against women in India: An examination of selected legislative responses, p. 10.  The Protection of Women From Domestic Violence Act (2005) of India defines domestic violence as follows:

 3. Definition of domestic violence.-For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it -

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any

conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Explanation I.-For the purposes of this section,-

(i) "physical abuse" means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) "sexual abuse" includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) "verbal and emotional abuse" includes-

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) "economic abuse" includes-

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

Explanation II.-For the purpose of determining whether any act, omission, commission or

conduct of the respondent constitutes "domestic violence" under this section, the overall facts and circumstances of the case shall be taken into consideration. Chapter II, 3

In 2008, a group of experts at meetings convened by the United Nations recommended that “It is therefore essential that any definition of domestic violence that includes psychological and/or economic violence is enforced in a gender-sensitive and appropriate manner.  The expertise of relevant professionals, including psychologists and counselors, advocates and service providers for complainants/survivors of violence, and academics should be utilized to determine whether behavior constitutes violence.” See: UN Handbook, 3.4.2. See: UN Model Framework, II 3, which urges States to adopt a broad definition of the acts of domestic violence, in compatibility with international standards; and Gender-Based Violence Laws in Sub-Saharan Africa, (2007), p. 52. In 2008, United Nations experts recommended that the definition of domestic violence include economic violence as well as physical, psychological and sexual violence. See: United Nations Handbook for legislation against women, p. 25. The group of experts issued a caveat that by including psychological and economic violence in the definition of domestic violence, drafters and legislators may be creating opportunities for perpetrators to counter-claim psychological or economic abuse against those to whom they are violent. For example, a disgruntled violent abuser may seek protection measures against his wife for using property owned by him. Placing physical abuse on par with economic abuse may lead a perpetrator to claim that physical violence is an appropriate response to an act he sees as economically disadvantageous to him. In the case of dowry-related violence, the husband may argue that the failure to meet dowry remands, such as funds for a family business or the household, constitutes economic abuse against him. Claims of psychological and economic violence may be very difficult to prove in legal proceedings, as well. 

The Violence Prevention Alliance of the World Health Organization defines violence as “the intentional use of physical force or power, threatened or actual, against oneself, another person, or against a group or community, that either results in or has a high likelihood of resulting in injury, death, psychological harm, maldevelopment, or deprivation.” If drafters choose to include economic violence, they may consider drawing upon the definition from the Violence Prevention Alliance, focusing economic violence on the intentional use of power, whether threatened or actual, that results in or is likely to result in maldevelopment or deprivation of another person. Drafters should issue legal commentary clarifying that economic deprivation applies to those staples necessary for an adequate standard of living, such as adequate food, clothing and housing, but not material goods nor unsatisfied dowry demands. Drafters may wish to specify in dowry-related domestic violence laws that economic deprivation for dowry-related violence purposes is defined as that aimed at women and girls (See: Article 4(1), CEDAW). The implementation of such legislation that includes the broader definition of domestic violence should be carefully monitored for abuse of process or retributive counterclaims, and if such abuse occurs, the law should be amended. See: Monitoring of Laws on Violence against Women and Girls

Drafters should carefully consider the types of violence described in the statutory definition. Many experts believe that the definition should include all acts of physical, psychological and sexual abuse between family and household members or intimate partners, as well as in-laws. Drafters should take into account the specific forms of violence perpetrators use in dowry-related crimes and deaths. For example, offenders may use violence disguised as suicides or accidents, such as stove or kerosene disasters, to burn or kill women for failing to meet dowry demands. See: Shahnaz Bokhari, Good practices in legislation to address harmful practices against women in Pakistan, at 9. Acid attacks. Offenders may also use more insidious means to demand dowry, such as starvation, deprivation of clothing, evictions, and false imprisonment. In addition, drafters should ensure that other acts common in these cases, such as extortion, constitute criminal offenses when they occur between a woman/her family and her groom/fiancée/in-laws.  

If a domestic violence law contains a detailed description of prohibited behaviors, it may limit judicial bias.  See:  Domestic Violence Legislation and its Implementation:  An Analysis for ASEAN Countries Based on International Standards and Good Practices, UNIFEM, June 2009. Drafters should consider, however, that when a detailed list of acts of abuse is included in legislation, it may also have the effect of excluding some unanticipated abusive behavior from legal sanctions. If drafters choose to list forms of violence, the law should specify that the list is not inclusive of all forms of violence. 

Legislation should include the following provision in a definition of domestic violence:  “No marriage or other relationship shall constitute a defence to a charge of sexual domestic violence under this legislation.” See: UN Handbook, 3.4.3.1.

Drafters should consider including a definition of domestic violence as a course of conduct.  For example, The Domestic Violence Act (2007) of Sierra Leone (hereinafter the law of Sierra Leone) contains the following provision: 

4. (1) A single act may amount to domestic violence.

    (2) A number of acts that form a pattern of behaviour may amount to domestic violence even though some or all of the acts when viewed in isolation may appear minor or trivial. Part II 4

See: the Combating of Domestic Violence Act (2003) of Namibia (hereinafter law of Namibia) Part I 2 (3) and (4). 

Legislation should include certain acts which have only recently come to be recognized as serious threats to the complainant/survivor, and which may not be included in criminal law provisions, such as stalking, sometimes called harassment, and acts involving the latest forms of technology. See: Domestic Violence; :  Stalking, StopVAW, The Advocates for Human Rights. See: Bortel, Angela, “Technology and Violence against Women,” StopVAW, The Advocates for Human Rights;   Minnesota, USA Statute 609.749; Lemon, Nancy K.D., “Domestic Violence and Stalking: A Comment on the Model Anti-Stalking Code Proposed by the National Institute of Justice (1994); and Minnesota Coalition for Battered Women, “Facts About Intimate Partner Stalking in Minnesota and the United States” (2009).

Defining dowry-related violence and dowry:

Legislation should provide a definition for dowry-related violence. The UN DAW Expert Group Meeting defines dowry-related violence or harassment as “any act of violence or harassment associated with the giving or receiving of dowry at any time before, during or after the marriage.” See: http://www.un.org/womenwatch/daw/egm/vaw_legislation_2009/Report%20EGM%20harmful%20practices.pdf, Section 3.3.4.1.

Laws should expansively define dowry in terms of its form and when it is demanded, given or received. Dowry should include gifts, money, goods, or property given from the bride/wife’s family to the groom/husband/in-laws before, during or anytime after the marriage. Laws should frame dowry expansively as a response to explicit or implicit demands or expectations. Laws should omit reference to “in connection with” or “in consideration of” the marriage, to ensure the scope includes all dowry demands whether explicitly connected to the marriage or not.

For example, the following definition will likely prove problematic as it may pose problems of proof. The Parliament of Bangladesh defines dowry as “money, goods or any property which has been given or agreed to give to the bride-groom or his father or mother or any person on his behalf, directly or indirectly, at the time of marriage or before marriage at any time after marriage in condition with the smooth continuation of marital life or as a consideration given by the side of the bride and the money, goods or property which has been demanded from the bride or her father or mother or any person on her behalf, by the bride-groom or his father or mother or ay other person on his behalf as the above mentioned condition or consideration.” See: Prevention of Oppression of Women and Children Act (2000), Parliament of Bangladesh, Art. 2(j) (unofficial translation). Laws should not require dowry be given as a condition for the smooth continuation of marital life or as consideration. Such a requirement may prove challenging to prove because of the covert or implicit nature of dowry demands and expectations.

India defines dowry as: 

“any property or valuable security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person; at or before [or any time after the marriage] [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

See: Dowry Prohibition Act, India, 1961, Art. 2. 

See: Domestic Violence, StopVAW, The Advocates for Human Rights 

Specific Legislation on Dowry-related Violence

Dowry-related violence may be addressed in the constitutions of states, in criminal codes, civil codes, in administrative provisions, in gender equality provisions, and many other contexts. Lawmakers are encouraged to provide protection against dowry-related violence within domestic violence civil and criminal laws that take into account the dynamics of dowry-related violence, including the scope of possible perpetrators, the repeat, low-level injuries, murders disguised as accidents or suicides, the connection between harassment/violence and dowry demands, the explicit or implicit nature of dowry demands, and the need for urgent protective remedies.