Wednesday , 19th December 2018



Wednesday , 19th December 2018

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Seema Pandey*

A Strategy to End Dowry Practice: Intertwining Property Rights, Dowry System and Civic Responsibility Act

Dowry system is not an uncommon or unheard issue globally given that all the religions and cultures around the world had practiced it at some point of their history. The dowry has a long history in Europe, South Asia and Africa, and other parts of world. Women’s status as a dependent being was upheld in most of the societies, mostly viewed as a homemaker and care taker in the roles of wife, daughter, daughter-in-law and a mother. Dowry in literal sense meant to be a conditional gift to help husband undertake the responsibilities of marriage, intending to help set up a new family life of the bride and groom. In patrilocal societies, where brides join the household of their grooms, parents give resources to their daughters upon marriage[i]. Dowry in form of money, estate, jewels or any transfers follow the bride into her new household and potentially contribute to the conjugal fund. However, groom’s family, rather than the bride, enjoys the rights over the payments.

Interestingly, in Europe the dowry system served to build the power and wealth of great families and plays a role in the politics of great alliances in the 19th and 20th century, for example in 1661, Bombay was given by King John IV of Portugal to Charles II of England for the marriage with Catherine as a dowry. Since ancient Rome, dowry has served as a pre-mortem inheritance to daughters[ii].

The giving of a dowry seemingly disappeared in Europe in the 19th and 20th centuries. But the practice expanded in South Asia. The dowry paying societies are highly stratified and endogamous, i.e., most often men and women of equal status marry.[iii] In Hindu religion, according to the holy text “The Laws of Manu”, one of the 10 paths to reach moksha or enlightenment is kanyadana, the act of giving a virgin bride to the groom along with financial and/or other gifts that is known as dakhshina or dowry[iv].

Considering that women had no equal rights over parental property, dowry seemed as a thoughtful attempt to provide a pre-mortem inheritance for daughters so that she can enjoy a better status in the house of her in-laws, where she belongs after her marriage. While sons inherited parent’s property, daughters were rendered some gifts and properties in the form of dowry. Somehow, dowry may also seem like a way to attract better quality groom or bride to choose the most potential candidates in the marriage market. There may be some more desirable characteristics in the marriage market, and in general those possessing the desirable traits, may call for higher price, or the other way. Brides may be willing to pay higher price for the deserving candidate, and similarly, if the bride is more desirable in the market, the bride’s family may not need to pay a substantial amount of dowry to marry off their daughters. Thus, there are important characteristics or qualities of the bride and the groom that plays crucial role in determining the amount of marriage transaction that is paid either in cash or kind from one family to the other.

A rather thoughtful attempt of dowry started turning ugly determining the status of bride and her likability in her husband’s family on the amount and property she brought at her wedding. Consequences are faced by brides due to unsatisfied dowry needs, and they often make headlines of the newspapers – suicide, mental and physical torture, bride-burning, wife battering, and so on. Dowry is quite a controversial issue. For men, it seems some kind of financial assistance for undertaking lifetime responsibility of someone else’s daughter. For human right activists dowry is a practice spreading social evils and violence against women. Dowry is much a disaster largely in the Madhesh region of Nepal, it is practiced as an integral part of a wedding ceremony irrespective of caste, class, and religion.

In the following article, we discuss a strategy to end dowry practice, placing dowry and women’s right to parental property at par, and the relation between them and ineffectiveness of women’s inheritance right to curb down the dowry practice. Change in women’s inheritance right, a grand step to ensure gender equality, has brought new hopes for women in Nepal, however we discuss why inspite of securing women’s inheritance right and banning dowry practice legally (subtly than strongly), the practice and violence related to it is remain widespread.

Women’s Inheritance Right
After the promulgation of the Constitution of Kingdom of Nepal 1990, new dawn on the elimination of discriminatory legal provision against women’s rights, including property right had begun. After a series of struggle led by women rights activists, 11th Amendment in General Code-2020 (1963) was introduced establishing women’s right to parental property, however this right was assured only until the marriage, and when they marry, it was to be returned back to the family. This was declared unsatisfactory by women right activists, as it continued discrimination against women.

As Supreme Court was empowered to test the constitutionality of any legal provision that is inconsistent with the provision of Constitution of Kingdom of Nepal, 1990 under Article 88 (1), any citizen of Nepali citizen may file a writ petition before the Supreme Court on the ground of violation of his/her fundamental rights. A writ was filed against the amendment, that arguing that the amendment still contradicted the constitutional right of equal treatment of gender, and Nepal’s commitment to other international conventions on human rights. The court declared the inequality on women’s right to inheritance, playing an important role for the elimination of discriminatory laws on women’s property right[v]. Henceforth, women’s right to parental property even after marriage was declared. However, the established right has been largely only on papers than in practice. The incapability of the law to proliferate in practice comes mainly from two reasons: women’s access to knowledge of their rights and lack of empowerment of women to act on behalf of their rights.

Women’s Access to Knowledge of Their Rights
Law itself cannot work miracles without having mechanisms to implement[vi] and make the knowledge about it accessible. Clear and concise methods of communication and awareness about the changed laws are essential to ensure the illiterate Nepali populations have access to the knowledge about their rights. Undoubtedly, the reformed law is not easily accessible or understandable, nor there have been any serious attempt to make them so. The language used is generally too legal and judicial in terms posing substantial difficulties in understanding it clearly. It sounds more like information targeted to the limited audiences of lawyers, not the population in general. It is disappointing to note that except for the human rights organizations, activists and lawyers, very few are indeed aware about the change in women’s right to parental property. It was found that the state mechanisms and women rights organizations too have not been launching effective campaigns against the dowry system as per the sample of Rautahat district[vii].

Interestingly, according to law it is obligatory for its citizens to make themselves informed about the laws as one may not claim to have committed a crime without prior knowledge about the criminality of that action. It is ironic to find such obligation especially without building an environment to do so in a country with only 57.4% of literacy rate (total) and only 46.7% of female literacy[viii]. It was found that in Madhesh, dowry incidents are not frequently reported to the police due to the lack of awareness.[ix]

For the law to be realized in practice, a countrywide information campaign and mechanisms to monitor the implementation are crucial. Perhaps the Right to Information Act (2008) could play an important role after the election of the local bodies. Sensitization and facilitating access to information are the major responsibility laid down by the Right to Information Act (2008), which had high potentiality when realized in practice. At present, as for now the All-party-Mechanism not being the chosen representatives of people through a democratic process to undertake such responsibilities does not seem to be accountable.

Empowerment to Act on Behalf of Their Rights
Economic empowerment and independence is central to the overall project of women’s empowerment. The root cause of women’s subordinated status comes from the deep-rooted and “imposed” mentality of women as a dependent being. The economic dependence plays a convincing role in subjugating females. It is reasonable to contend that economic empowerment and mental empowerment are closely intertwined.

Nepali society is compact, with traditional family values, norms and customs, and women of this generation have learnt to live as a liability, a concept that has been embedded in their deep instincts. It may sound over-ambitious to expect women to act for their property rights so quickly. In a society where claiming rights over women’s own body is a challenge, claiming parental property right, must be frightening. Individuals’ upbringing highly molds ones’ personality, behavior and attitude, and the patriarchal society that we live in have produced women most with unsecure mentality. While a son grew up with pride and security of possessing inheritance from their parents, free to imagine that regardless of succeeding in professional life or making a fortune, he would have a shelter of his parent’s property, a girl was brought up invoking the idea of being a liability to be passed on to her husband, where she would toil to win hearts and establish her rights. Mind and attitude overwhelmed with insecurities cannot instantly become an agency to act for their rights. Mental empowerment is therefore essential to facilitate women start feeling equal as an inheritance right-holder instead as only a duty-bearer.

Laws against Dowry Practice
Nepal prohibits dowry practice. The Social Improvement Act 1976 section 5(2), allows dowry to be taken up to Rs 10,000 additional to the jewelry worn on the wedding day. Although it doesn’t sound like a clear instruction of dowry being illegal, but an attempt to curb down the practice to a reasonable extent in line with the inherited customs and norms of Nepali society wherein exchanging gifts make central part of wedding ceremonies. However, inability to abandon the word “dowry” (instead introducing it as a possession) from the act may reflect ambiguity of the Act, communicating doubts on its legality or illegality[x]. It is crucial for law to be unambiguous to ensure that it doesn’t create doubts on its intention.

Undoubtedly, at that particular time period 1976, the law rather imposed discrimination against women and clearly seem like a product of patriarchal mindset, mainly because women’s right to parental property was not yet guaranteed by law, and the prohibition of dowry even more victimized women as they neither had right to inheritance, nor the minimal economic support as received in a form of dowry. It is considering that dowry system in a traditional way was to ensure women’s economic security after marriage, not to forge that wives had control over them, rather has been contrary. In simpler terms the prohibition of dowry literally meant no right at all over parental property, neither in the form of right, nor as a gesture of dowry, a distinguishable reason for the act to not become an effective tool to end dowry practice in Nepal.

Countering the Social Improvement Act 1976, section 5 (2), a new bill on Social Practice Reform Act-2014 in Parliament has been tabled[xi]. Differing the previous Act, the bill raises the amount of dowry that can be given by free will, and accepted, to Rs 100,000 or something of equivalent value, and suggests penalization of both, the giver and the taker. However, failure to rectify the use of the term ‘dowry’ may continue to cause deception. Nevertheless, in the present context, prohibition of dowry is legitimate as (unlike before) women’s equal right to parental property is ensured.

The Act appears to be resigned to the reality of the social customs and practices of Nepali weddings. It can be seen as an attempt to set instruction and criteria on celebrating weddings or other ceremonies while stressing that dowry is prohibited. The bill treats everyone as equal, irrespective of class, income, and capacity to spend. It provides indicators to measure and control the giving and receiving, attempting to differentiate between the dowry and the gifts during the wedding ceremony. It carries an ambitious goal of avoiding manipulation of the law. However, the use of the term ‘dowry’ may prove hazardous. Furthermore, the bill could be seen also as an attempt to curb down the show-off biz that is getting hold on societies’ way of celebrations of festivals and ceremonies. It is legitimate if seen as a strategy to maintain social harmony by bringing down the inequality that is demonstrated through such ceremonies. It reminds of an example of the European society rules of residence, the housing designs and size cannot vary enormously in the residence areas, aiming to ensure that equality is demonstrated as an example to maintain social harmony.

Anti-Dowry Campaigns and Implementation of Women’s Right to Parental Property
The Social Reform Act 1976 clearly did not guarantee abolishment of dowry in practice indeed, which could be attributed to the absence of women’s inheritance right during that period of time. However, in present context when the inheritance right of women is ensured by the law, while prohibition of dowry through the new bill is on the table, it may surprise individuals and build skepticisms on the effectiveness of the idea of securing women’s property rights to end dowry practice. This skepticism arises due to the prevalent cases of bride-burning, mental and physical tortures over dissatisfaction on the dowry often making the headlines of newspapers.

However, as argued before, neither implementation has been effective on the part of women’s inheritance right (largely limited on papers), nor mechanisms has been developed to implement them and empower women to act on behalf of their rights. Strong mechanisms for monitoring, evaluation and institutional accountability for an effective implementation of the law is frail, and there is an absence of a joint strategy intertwining dowry practice and women inheritance right.

Although campaigns of civil society organization are effective to fight the dowry system, they are not sufficient and complete, a joint campaign is deemed necessary mainly a joint strategy intertwining dowry system and women’s inheritance right consistently. Moreover, dependence only on the civil societies to raise anti-dowry and gender-awareness campaigns makes the attempt fragile. A more rigorous approach may be perceived necessary to build a sensitive and responsible society to end social malpractices. A Civic Responsibility Act, for instance, could be an effective tool to do so, by accounting individual citizens responsible for the inhumanity of the society by obliging them to undertake responsibility to respond and reject the social evils prohibited by law.

Civil Responsibility Act
A collective effort to fight social evils by formulation of an act like a Civic Responsibility Act could mark a beginning of building responsible society by balancing, individual rights and at the same time duties to undertake responsibilities. There are numerous examples around the globe enforcing civic responsibility, like in Europe and America, every citizen has a responsibility to call for help if unusual activities or violence incident is assumed to be taking place. In Europe for instance, it is your moral obligation to stop your vehicle at the sight of accident as the first person passing the site, if not, such may lead to certain penalization.

In the western world, civic responsibility dates to ancient Rome whose citizens wanted to contribute to Roman society. In United States of America, it was officially sanctioned as an outline for democracy in 1787 by the ratification of the constitution of the United States. The Constitution declared, “We the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States[xii].”

In Hindu scriptures, responsibility of citizens was largely communicated through Dharma Shastra, duties of the ruler and the ruled. In the constitutions of Nepal (1990 and 2007), there is only one article, which softly invokes to the idea of civic responsibility, article (2), Preliminary Part (I), states that “it shall be the duty of every person to uphold this Constitution”. It is vague but somehow suggests, apart from the rights, every person has a responsibility to uphold the constitution. However, the constitution of Nepal doesn’t hold its citizens responsible. Rights are relatively well-described while duties are not.

It is needless to point out that for a civilized society, along with rights, delegations of responsibilities are equally important. Narrowing down to the dowry system, it is clear that it is inherited in the social practice and expands through societal validation. Thus, a way to forbid such action may come from the society itself. An act to build civic responsibility sense could oblige people to react and respond to the illegal social practices. An act of such could hold citizens responsible for not acting in a civilized manner for the cause of human welfare, by enforcing penalization for not responding to the malpractices taking place in their neighborhoods. To exemplify, for instance in the cases of giving-taking of dowry, or physical and mental torture, wife-battering, bride-burning, a cautious reaction from a neighbor or a relative could prevent such crimes and demotivate such actions through peer pressure. A real example occurred recently during the month of June in Nepalgunj, a woman was rescued by a neighbor from being burnt-alive by her husband. Similarly, in another case of bride-burning for dowry, during the month of April, although neighbors were aware about the continuous mental and physical torture faced by her (according to the survivor)[xiii] before she was burnt alive, they didn’t take any action, and insensitivity of the neighbors led the woman to a life time trauma.

Considering such examples, an act obliging individuals to respond to social malpractices, could prevent violence against women, and rectify societal evils. It may act as citizen policing, a pressure to its citizens to act appropriately in line with the law and for the welfare of human. It carries potential to eliminate malpractices in the society. The act as such could hold every citizen involved in such acts, a family member, relatives, a neighbor, police or anyone else responsible in the struggle to end of all forms of gender violence including social discriminations (racism, casteism etc.). Adhering to the fact that during incidents of most gender-violence, victims in particular do not have a medium or an opportunity to seek for help, the spectators and those who are aware about the situations may thus play an important role. Imposing fear of bearing consequences for not acting humanely and responding to the crisis of the fellow citizens seems quite a legitimate way to go.

Nevertheless, some may argue that since the protection mechanisms for the victims themselves are frail, it is unfair to oblige society to take the burden of helping and protecting others. A careful attention must be paid to the context, however, doesn’t mean that such an act couldn’t be pursued with cautious attention, for example, maintaining some form of anonymity, and building some protection mechanism for the victims, the rescuers and the witnesses. It seems agreeable that by formulating some penalization for those who don’t respond to the call of a victim in crisis or of the perceived threat to a possible victim could play an important role in molding societal perception and reaction to social malpractice. To exemplify, in the latter case discussed above, the neighbors who were aware about her domestic situation and did not take an action to protect her, only a call to a police informing about her situation could have saved her from being burnt alive with seven months baby in her womb.

Civil Responsibility Act will establish an obligation of the society to treat social issues as their personal matter that can play a significant role in the transformation of a society to a more civilized and sensitive one. Given an example of a case mentioned above, wherein a neighbour played an important role in saving a woman from a death-row, proving role of an individual in ending social malpractice and other forms of gender-violence.

It is possible to hear that Nepal may not be ready for any such Act, and literacy would automatically raise human sensitivity to undertake moral responsibility of human welfare. Literacy in itself cannot create responsible and sensitive citizens striving for human welfare. It largely depends on individuals’ morality, integrity and ethics. Literacy alone may not play much significant role as it may not be guaranteed that granted by their university degrees individual act with higher level of morality and sensitivity to the social issues. All humans may not deem necessary to participate in social issues, however if enforced through law they are obliged to law and act morally for the welfare of its fellow citizens.

Additionally, hand in hand endorsement of the very concept of civil responsibility in the academic curriculum would be highly relevant. However, embracing the civic responsibility in constitution of Nepal would be central to mark the mindset of Nepali people as duty-bearers and not only the right-holders. It can be rightly said that importance of civic responsibility is utmost to the success of democracy. By engaging in civic responsibility, citizens ensure and uphold certain democratic values and duties, which include justice, freedom, equality, diversity, authority, participation, truth, patriotism, human rights, rule of law, tolerance, mutual assistance, self-restraint and human integrity[xiv]. Cultivation of civic sense of responsibility needs establishment through the constitution of Nepal firstly by imparting a section on civic responsibility.

Conclusion
Dowry practice cannot be eradicated without strengthening the implication of the women’s right over parental property, and the anti-dowry campaigns, which strives to end dowry without ensuring this right can be faulted of being influenced by the patriarchal mindset. Strengthening a mechanism to monitor women’s equal property rights in practice, strengthening women’s access to information and knowledge of women regarding their rights, and creating an environment for women for their rights are key aspects to stimulate an end to dowry practice in Nepal.

It is pointless to contend that women’s property right has not yet brought the practice to an end. It is rather the non-implementation of property rights in practice that is the major cause of the expansion of the dowry system. Moreover, a collective effort from the society itself to end the social malpractice as such is essential, which has to be enforced through law. Civil Responsibility Act could work miracles to end social malpractices, considering that such practices expands from and in the society, a cure has to emerge within the society itself. An Act holding individuals responsible for their indifferences to the violence against women or giving-taking of dowry could play a substantial role in curbing such practices.

A Civic Responsibility Act could hold neighbors, family members, relatives, police or local bodies and others for not acting sensitively and responsively to the malpractices they witnessed. In other words, a relative is held responsible for not complaining against the dowry-giver and the taker, a neighbor is obliged to call for help at incident of wife-beating, bride-burning, physical and mental torture etc. Since an individual may or may not perceive relevance to respond to the malpractices in society, a law is essential to be enforced to make citizens act in a moral, sensitive and civilized manner. Furthermore, endorsement of a section on citizens’ responsibility, additional to the substantially elaborated ‘rights’ is a way to go. Embedding responsibility and duties in the citizens’ conscience can be best of answers to end various forms of social discriminations including all forms of violence against women.

In conclusion, without an intertwined strategy to ensure that women’s inheritance rights are implemented, along with the formulation of true sense of civic responsibility through enforcement of an Act, ending dowry system or any such social malpractices is unlikely to be accomplished.

* The writer is a Master graduate in International Relations and Political Science from the Universidade Fernando Pessoa from Portugal

This article first appeared in July 2014 issue of INFORMAL and is available at the link below.
http://www.insec.org.np/new/pics/publication/1407234555.pdf

Publish Date :September 3, 2014 

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