The decline in moral values and the greed for consumer goods partly explains why dowry in the twentieth century has assumed such alarming proportions and has permeated even those communities and classes that traditionally did not accept the practice. Dowry has spread to all religious communities, including Christians and Muslims in India, as a means of achieving upward social mobility. [FN42] Dowry giving and taking *644 bears "little relation to class, caste, educational level or working status" and the "single underlying factor is the desire to 'keep up with the Jonases (sic)."' [FN43] In other words, the financial value of the dowry given or taken symbolizes the social status of both families, and dowry becomes the mechanism through which the two families exhibit their wealth in order to maintain their status with families living next door or in the same social circle or strata.
This link between dowry and financial and social status helps to explain why dowry is more prevalent in urban areas and among educated families. Urban and educated families are more likely to be conscious about their financial and social status, and to seek to maintain the status quo. Consequently, they view dowry wealth as a method of financing their sons' education or repaying debts already incurred for the education of sons. [FN44]
Although both the givers and takers of dowry view it as a symbol of social status and custom, the takers, the bridegroom's family, usually set the dowry rates. The bridegroom's family has greater bargaining power to set these rates because the bridegroom's economic value is associated with his education and earning potential, whereas the bride's level of education and earning potential are relevant only insofar as they make her a potentially better wife and mother. [FN45] Since Indian society views marriage as the ultimate goal for women, and since the social status of her natal family is associated with the social status of the family that she marries into, the bridegroom's family can increase the dowry rate in proportion to the level of education and employment of the bridegroom. [FN46]
Furthermore, the bridegroom and the in-laws can extract further dowry in indirect and underhanded ways. [FN47] For instance, they may change and increase the dowry rate well above the agreed amount after the bride is married. [FN48] The *645 woman becomes a continuous source of unearned surplus as the husband and in-laws extort more and more money and goods from the woman's parents over the course of many years by starving her, beating her, and ultimately by threatening to desert the woman upon failure to comply with their demands. [FN49]
Sometimes, the bridegroom and his family do not demand dowry at all prior to marriage, and the demands come later. [FN50] One Delhi study [FN51] showed that in sixty percent of the cases, dowry was not demanded until after marriage. [FN52] After marriage, dowry was demanded by the husband as a payment for not deserting the "highly dispensable" and "easily disposable" wife. [FN53] In eighty-five percent of these cases, the woman's parents voluntarily agreed to these demands. [FN54] They did so as most parents of daughters attempt to do in India, because they associate marrying their daughters and giving dowry as part of their duties as parents. [FN55]
Essentially, the husband and in-laws are able to extort dowry from the woman's parents because they are aware of the stigma that attaches to a woman and her natal family when a married woman "has been thrown out of the house." [FN56] Thus, the husband's family uses this social reality as a bargaining tool to meet its material demands.
*646 Even when the husband and in-laws do not explicitly demand cash and goods after the initial giving of dowry at the time of marriage, they implicitly expect it as a community tradition--as a token of respect, affirming the higher social status of the husband and his family over the inferior status of the wife and her natal family. [FN57] What was once a casual custom of giving gifts to the bride has become mandatory as the husband's family expects a renewed flow of gifts
when a child is born; when the child is named; when the new baby's face is shown to the maternal grandparents; when the baby first eats solid food; when his head is shaved off, etc. After the second child is born the whole unending cycle repeats itself with a renewed momentum. [FN58]
The husband, in-laws, and Indian society generally interpret the non- compliance of the woman's family with traditions as a sign of disrespect. [FN59] Therefore, the woman's parents attempt to meet the expectations of the husband and in-laws because they view gift-giving to in-laws as part of their duty to their daughters. [FN60] However, the decline in moral values and the greed for material objects only partly explains the emergence of dowry and the associated rise in the murders of young brides.
3. The Resilience of Dowry as a Reflection of Deeply Embedded Patriarchal
The emergence of dowry also reflects the views of a deeply rooted patriarchal society that the daughter is a special gift to be given away at the time of marriage. [FN61] The gift of the daughter does not necessarily reflect her subjugation in a patriarchal society, but rather reflects the family's sacred duty to society to give the girl-child to another family for whom she will bear the valuable gift of a new generation. [FN62]
Nevertheless, the premium placed on marriage as the *647 ultimate goal for the daughter perpetuates the societal view of women as economically and emotionally dependent beings who need to be protected and sheltered so that they can assume their reproductive functions. Within this context, dowry reflects the price that the bride's parents must pay to the bridegroom's family to maintain the woman. The giving and taking of dowry reflect patriarchal values and subjugates women.
These patriarchal values are deeply entrenched in Indian society, as they are passed down through generations in the form of myths. [FN63] Indian mythology portrays women as economically and emotionally dependent on men as wives, mothers, sisters, and daughters. [FN64] Myths that portray women with intelligence, vision, and wisdom simultaneously exhibit the desire of women to be protected and sheltered. [FN65] Men expect women to embody this definition of womanhood, and women attempt to meet these standards. [FN66] Thus, dowry is
(the) manifestation of the political, economic and cultural insignificance of women both in her natal family and in the family in which she enters in marriage. Having always been considered an economic liability within her natal home, she is considered a temporary visitor until she departs in marriage to her husband's home. Dowry has to be given so as to compensate this non- productive being, even when the woman is educated and has her own job and is not economically dependent on her husband. [FN67]
This explanation for the emergence of dowry and its persistence in the late twentieth century holds great weight since a woman's acquisition of higher education and earning potential does not necessarily lower or eliminate the dowry rate demanded by the in-laws. As one Delhi study [FN68] indicates, husbands have little respect for the education of their wives, who can also contribute to family income. [FN69] Moreover, the husband and in-laws might still expect and demand dowry despite the *648 woman's education and working status. [FN70]
In fact, a woman's education may actually increase the dowry rate instead of reducing or eliminating it, because a higher level of education implies that the woman has been kept unmarried for a longer period of time. [FN71] Advanced age and education may reduce her desirability in the marriage market because they may be perceived as making her less physically attractive or less likely to be fair, shy, chaste, or obedient--qualities that are viewed as desirable in a woman. [FN72]
The social undesirability of postponing marriage for a woman beyond her late teens or early twenties reinforces the low value accorded to the education and economic self-sufficiency of women in Indian society. Frequently, a woman is encouraged to pursue an education only to the extent that it places her "in the social strata of men who may be likely candidates for marriage." [FN73] A woman who acquires an education with the goal of becoming economically self- sufficient is generally viewed as being either licentious or arrogant. [FN74] Thus, she is still discouraged, and often prohibited, by her family and in-laws from earning an independent income. [FN75]
When the husband and in-laws allow the woman to work, they usually expect her to give her salary to them. [FN76] Essentially, her salary acts as a method of compensation for the insufficient or inadequate dowry that she brings with her to the marriage. Thus, the woman's economic dependence on men is part of the social definition of womanhood, and the system of dowry thrives despite the increase in the education of women. [FN77]
*649 C. The Nature of Dowry Violence and the Urgency of Effective Legislation Prohibiting Dowry and Dowry-Related Violence
Dowry violence occurs when the husband and in-laws are dissatisfied with the amount of cash, ornaments, and consumer goods that the woman's family presents to them during the first few years of marriage. [FN78] Usually, it comes to light only
when there is a violation of the customary arrangements and expectations concerning a particular marriage. We only come to know of dowry problems when one side refuses to honour its part in the arrangements or when the other side exploits its assumed position of strength and superiority by demanding more and more. [FN79]
This is because dowry is socially acceptable, and the woman's parents themselves concede to the demands that fall within their capacities. [FN80]
Ordinarily, the woman endures the violence and remains in the in-laws' home in order to live up to the "respectable position of wife or daughter-in-law in society" and upon the urging of her parents. [FN81] The woman's parents usually encourage her to endure the violence with "silent courage" and advise her to adjust to her new family, [FN82] primarily because they fear the stigma of a married daughter leaving the home and returning to her parents. [FN83] Their way of protecting her from abuse is to succumb to the demands of the husband and in-laws because *650 they measure her well-being in terms of remaining married. [FN84] The daughter feels duty-bound to preserve the marriage because of the huge expenditures incurred by her parents. [FN85]
Because there is a socio-cultural emphasis on marriage as the ultimate goal for women, a woman's education and her ability to earn an independent income do not make her less susceptible to dowry-related violence and murder. In fact, her economic independence may become another vehicle through which the husband and in-laws can extract money from her. Any defiance on her part may heighten the abuse. For instance, Tripta Sharma was physically and mentally harassed and tortured by her husband and in-laws for not giving her full salary to them until one day she was burned to death in the house of her in-laws under mysterious circumstances. [FN86]
Even when the woman gives her earnings to her husband or her in-laws or both, they may still physically and emotionally abuse her for not bringing sufficient dowry to the marriage. [FN87] Despite her economic self-sufficiency, she may choose to live with the violence until her husband or in-laws murder her as did the in-laws of twenty-seven-year old Usha. [FN88] In a letter to a friend, she wrote: "When I go back from work no-one speaks to me. They don't offer me tiffin or coffee. My husband is a coward and I am giving all my earnings to him." [FN89] Within one year of marriage, Usha was dead. [FN90]
Other times, educated and economically self-sufficient women falsely believe that they can control the abuse by using their own salaries to buy things the in-laws want, as did Ph.D. graduate of physics Sangeeta Goel. [FN91] Sangeeta was acting like a "dutiful" daughter when she told her parents that they should not worry about her and that she would win the hearts *651 of her in-laws. But her salary did not meet the demands of her in-laws and five months into the marriage, on April 14, 1994, she was found poisoned in the house of her in-laws under mysterious circumstances. [FN92] These tragic deaths support the conclusion that the woman usually perceives two options: living with the abuse until her husband or in-laws kill her; or committing suicide when the abuse becomes unbearable.
D. Why Prohibit Dowry? Why Education and Inheritance Rights Will Not Dismantle the Dowry System and Dowry Violence
The social acceptance of violence against women in connection with dowry, and the loyalty of women and their families to the institution of marriage, suggest that simply expanding the educational and economic opportunities for women will not dismantle the system of dowry and dowry-related violence. Women are likely to stay in violent marriages despite their educational and employment status, as the cases of Usha, Tripta Sharma, and Sangeeta Goel indicate. [FN93] Their assertions of economic independence threaten the stability of the power structure in the in-laws' home and makes them vulnerable to death by murder or suicide.
Similarly, giving inheritance rights to women in place of dowry does not necessarily suggest the conclusion that the practice of dowry and dowry-related violence will disappear. While giving inheritance rights to women is desirable because such rights provide women with economic security, a woman's assertion of these rights may also pose a threat to the stability of the power structure in the in-laws' home and make the woman vulnerable to violence in the absence of social support from her parents and brothers.
Furthermore, a woman's inheritance may only disguise the practice of dowry since the bridegroom and his family may then seek the bride who inherits the greatest amount of property. [FN94] Consequently, the bride's life may still be in danger if her husband or in-laws decide at some point during the marriage that the value of the property or income derived from the *652 property is insufficient. Or, if the husband or in-laws find the income potential of the property to be insufficient, they may still demand dowry to compensate for the shortfall; if the woman's parents refuse or are unable to meet the demand, the woman would remain vulnerable to cruelty, harassment, and murder by her husband and in-laws. Thus, giving inheritance rights to women might transform the nature of dowry without eliminating it and without offering real protection to women.
In addition, if the woman is the sole benefactor of the inherited property, the husband and in-laws might still demand dowry because they would not reap the benefits of the property. [FN95] Although the woman may acquire financial security through her share of inherited property, she may be reluctant to fight for her inheritance rights at the cost of alienating her brothers who customarily inherit all of the parents' property. [FN96]
Thus, the only real and practical solution to reducing and eliminating the practice of dowry and dowry-related violence is to create a social environment for women in which they can enjoy the expansion of educational and economic opportunities and the inheritance rights that should be given to them as equal members of society. To create this social environment, the legal system should aggressively condemn the practice of dowry and dowry-related violence, since the violence against women is intimately related to property and the rights of women over their personal property.
III. India's Legislative Response to the Dowry Practice and to Dowry-Related Violence
India has taken steps to penalize violence against women and to acknowledge the intimate relationship between violence and property. In 1961, India passed the Dowry Prohibition Act, [FN97] the first systematic law to prohibit dowry [FN98] and the *653 demand for dowry. India amended this Act twice, once in 1984 and again in 1986, in order to rectify several inherent weaknesses and loopholes in the Act. [FN99] Nevertheless, the ambiguity in the definitions of "dowry" and "demand for dowry," along with weak enforcement mechanisms, continue to limit the Act's effectiveness in curbing the practice of dowry. [FN100]
In 1986, an amendment to the Dowry Prohibition Act introduced the offense of dowry death into the Indian Penal Code. [FN101] This offense deems the husband or his relatives to have caused the woman's death in cases where the woman dies of burns or bodily injury under unnatural circumstances within seven years of marriage andwhere there is evidence that she suffered cruelty and harassment in connection with dowry. [FN102] Nevertheless, the ambiguity in the definitions of "dowry" and "cruelty," and the requirement of proof of the link between the two, pose an onerous evidentiary burden for the prosecution. [FN103]
To address the problem of proof in dowry murders, the Dowry Prohibition (Amendment) Act of 1986 introduced section 113B into the Indian Evidence Act. [FN104] Section 113B creates *654 the presumption that the husband and in-laws committed the dowry death if the woman was subjected to harassment in connection with dowry before her death. [FN105] Nevertheless, the seven-year limitation imposed under the dowry death offense provision enables perpetrators to wait to murder their wives until the seven-year limitation has expired.
The Criminal Law (Second Amendment) Act of 1983 introduced section 113A into the Indian Evidence Act. [FN106] Section 113A creates a presumption of abetting suicide by a married woman if the suicide occurs within seven years from the date of her marriage and if the husband or his relatives had subjected her to cruelty. [FN107] This provision is desirable because it recognizes the social reality of the cruelty and the abuse of married women that drives them to suicide and the active role of the husband and in-laws in assisting the woman's suicide. However, the seven-year limitation allows offenders to escape penalty for the crime of the abetment of suicide when the seven-year limitation has expired.
Furthermore, the Criminal Law (Second Amendment) Act of 1983 addresses dowry violence short of murder or suicide through the insertion of section 498A into the Indian Penal Code. [FN108] Section 498A makes physical and mental cruelty to the woman by her husband and in-laws an offense. [FN109] The intent *655 of this legislation was to bring domestic violence, which was largely considered a private affair, under public scrutiny and state action. [FN110] However, the ambiguity in the definition of cruelty, and the immense burden of proof required to prove cruelty, make this provision of limited value to victims. [FN111]
In addition to the above legislation, which attempts to reduce the practice of dowry and dowry-related violence, a provision of the Indian Penal Code [FN112] enables a woman to make a case of criminal breach of trust. [FN113] It offers women a criminal remedy for the misappropriation of their personal property, or stridhan, by their husbands or in-laws. [FN114] Nevertheless, the general nature of the provision and the "trust" terminology have made lower courts reluctant to apply it to the marital relationship. [FN115] Consequently, the effectiveness of this provision to protect women's access to property is very limited.