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COMMENT: Victoria doesn't need an anti-dowry legislation

Source: Supplied

Considering that the Family Violence Act safeguards the victims, duplicating the legislation in Victoria will only serve to add more legal clauses and create more confusion, argues Muktesh Chibber.

I have been working with families for the last 25 years in Victoria and have been intensively involved with the Australian Indian community in Victoria. The issues encountered range from those specific to individuals, to those involving the extended families. Interference from family members living overseas has been detrimental in some cases, and supportive in some.

One of the issues that have more recently surfaced in cases of family violence is the dowry claim. It is a common practice for Australians of Indian origin to seek a partner from India. Many of these marriages are arranged by the close family members. Families in India are attracted to proposals from overseas presuming their child will have better opportunities, especially in western countries. Thus, at times, a considerable amount of money is spent on celebrating these marriages. During the several rituals and ceremonies performed as part of the wedding, exchange of gifts from both sides is considered auspicious.

Historically parents of a bride followed the custom of gifting "stridhan", i.e. property of the woman which represents her share of her parent's wealth. Stridhan literally translates to “woman’s money”, and is, generally speaking, something that a woman can claim as her own property within a marital household. It may include her jewelry (gifted by either side of her family) and gifts presented to her during or after the wedding. Overtime Stridhan evolved into the ancient old custom called ‘dowry.’

The spirit or intent of ‘dowry’ was to assist the young couple to start their marital life. However, the term ‘dowry’ in India becomes a social evil and a crime if one party makes demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom. In 1961, the Government of India criminalised dowry by introducing the Dowry Prohibition Act. Despite the introduction of the Act this evil has not been mitigated in India, in fact, subsequent changes have further complicated the situation.

At the time of marriage, parties that demand dowry have committed a crime according to the Indian Dowry Act 1961 and parties that fulfil the demand of dowry are also at fault. If one spouse continues to make demands on the other for gifts or money after the marriage, it is regarded as a crime according to the Act.

Breakdown of relationships is indeed painful and traumatic. In such situations, it is not unusual for the wife and husband to seek the return of expensive gifts that were exchanged at the time of their marriage. However when there is a total breakdown of a relationship and when there is no space or possibility of any mitigation, it is not unusual that it results in bitterness and vindictiveness. One of the issues that surface is that of dowry which during the relationship has been considered as an exchange of gifts by mutual consent. In marriages where one spouse is from India, it is not unusual for issues arising along with the rituals or customs of the country of origin to be brought across into the relationship when one migrates.

Whilst the Dowry Prohibition Act in India is absolutely imperative to safeguard and to protect the harassed and helpless women and punish the perpetrators, there is documented evidence that it has not mitigated or constrained the evil of giving and taking of dowry. Every case comes with an emotional, psychological and economic scar. Unfortunately, the dowry and cruelty law in India (Indian Penal Code Section- 498a – Dowry and Cruelty laws) is being misused even before the trial in the court of law. This has led to emotional psychological and financial strain of the innocent people undergoing stigmatization and hardship with some of the falsely accused committing suicide after being jailed.

The Supreme Court of Indian has asked the Indian government to plug the loopholes in IPC498a which are yet to be fully resolved. The court has famously said in a ruling, “But by misuse of the provision (IPC 498a - Dowry and Cruelty Law) a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon”.

In Australia, the Family Violence Act covers economic abuse as behavior by a person that is coercive, deceptive or unreasonably controls another person, without their consent. When the family violence act already covers economic abuse, is there a need to re- define the law? Is there a need to create community-specific legislations in Victoria and set a precedent for other communities to demand legislations which are specific to their particular ethnic backgrounds?

Considering that the Family Violence Act safeguards the victims, duplicating the legislation in Victoria will only serve to add more legal clauses and create more confusion, for issues that have already been legislated against in other countries where migrants come from. Rather than spend the scant resources available to the Victorian government on duplicating existing laws, an investment in educating the community regarding respectful relationships will be a much better and fruitful investment. Whether an anti-dowry legislation will decrease instances of family violence in Victoria is anybody's guess, but a better and surer way to achieve that outcome would be to inform the community of existing laws, the safeguards and the options available so that we help the current and future generations. In my opinion, a dowry-specific law isn't needed in Victoria, since existing laws already provide safeguards. A dowry specific law will set the wrong precedent, opening the door for other communities to advocate for laws against other country-specific practices. It will merely duplicate the existing laws and make the task of enforcement even more onerous.