Dubai: Dowry is a despicable word. Dowry is an offence. And we all shun dowry, right?
But what about gifts? Now, that should be fine, right?
Well, like it or not, it is this dichotomy that is at the root of a continuing custom in the Indian wedding context: The exchange of property, cash, jewellery and other valuables between wedding couples and their families - without actually calling it dowry.
The dirty ‘D’ word, which has raised its ugly head again after the death of a 24-year-old Indian student at her husband’s house in Kerala last week, begs a relook because it can sometimes disguise itself as a gift and even escape legal ramifications.
Burden of expectations
In many cases, it’s not about a deal being negotiated or spelt out. It’s about coping with the burden of expectations. Forget what the groom and his family may expect, the bride's own family traditions, besides societal customs also come into play. So much so that some families go out of their way, even run into debt if necessary, to try and meet these expectations. Commonly enough, that would include organising a lavish wedding and providing an elaborate bridal trousseau. There’s no limit to what the bride can take with her: From cash, gold and silver to a new car, home and branded luxury items.
Ironically, all this and more are passed off as gifts. But where expectations are not fully met, there’s disappointment; and where there’s disappointment, there’s a problem.
Bindu Chettur, Senior Associate, Mohammed Salman Advocates & Legal Consultants and founder and MD of the legal consultancy Chanakya Tse, puts it in perspective.
Lack of clarity
“While legislation exists to prevent dowry and penalise those that give and take dowry, there is lack of clarity on what circumstances amount to dowry," she said.
"The Indian judiciary has sought to bridge the gap over the past 59 years to distinguish customary gifts given at the time of marriage from dowry."
As Chettur pointed out, the Indian law does not prohibit all “exchanges” at the time of a marriage. “The safeguards that the law and the judiciary have envisioned ensure that presents given in connection with the marriage are voluntary and not pursuant to any demands or coercion.”
She said the law provides safeguards that exempt gifts given voluntarily to parties of the marriage or relatives, provided a list is maintained of all such presents. “Further, it has also mentioned various circumstances that would not come within the purview of dowry. Customary gifts given with love and affection, payments in connection with birth of a child, seeking money on account of financial stringency or to meet domestic expenses have all been ruled not to come within the purview of dowry,” she said.
“The defining difference is that these gifts must have been given voluntarily without explicit or implicit demands or coercion. An additional safeguard mandates that the value of the gifts are not excessive compared to the financial status of the gift giver,” she added.
Matrimonial disputes in UAE
In the context of the UAE, Chettur said, “Dowry is not considered here. But we do get cases of matrimonial disputes from the Indian community. Often, the disputes are of a monetary nature and a party wants the money, ornaments and other valuables given during the wedding back. We are able to pursue divorce, maintenance and child custody issues in the UAE. But with regard to dowry harassment and domestic violence, we direct the party to our team in India who evaluate the case and if it warrants, invoke Section 498A of the Dowry Prohibition Act. That case runs in parallel in India. There are instances where the law is misused too, but that is another matter.”
In cases which are pursued in India, there is a mandatory requirement for the petitioner to be present in the home country for a certain time period. But in cases of domestic violence, the petition can be moved through lawyers, she added.
According to Chettur, “There still remains ambiguity in the law on what amounts to indirect demand for dowry. Based on judicial precedent, intention of the giver, and existence of direct or indirect demand or coercion for giving the property or valuable security are crucial factors in determining whether it is dowry or not.”
She said, “Despite safeguards, the ambiguity in the law and inherent social customs have failed to ensure required protection to fully check the practice of dowry in India.”
What’s dowry and what’s not: Some landmark Indian court rulings
Chettur cited some well-known cases in which Indian courts have made the following rulings:
Satvir Singh vs State of Punjab case: The concerned court held that there are three occasions related to dowry – before marriage, at the time of marriage and any time after marriage. However, giving or agreeing to give any property or valuable security during any of the three stages in connection with the marriage of the parties amounts to dowry. Customary payments in connection with birth of a child or other ceremonies prevalent in different societies would not amount to dowry.
Appasaheb vs State of Maharashtra case: The concerned court held that dowry means any property or valuable security to be given or is agreed to be given either directly or indirectly at or before or any time after the marriage in connection with the marriage of the said parties. Thus, the crucial element is the correlation between the giving or taking of property or valuable security with the marriage of the parties. The court also clarified that demand for money on account of financial stringency or to meet urgent domestic expenses would not be termed as a demand for dowry.
S Reddy vs State of Andhra Pradesh case: The Supreme Court clarified that dowry as a quid pro quo for marriage is prohibited and not the giving of traditional presents to bridegrooms by friends and relatives.
Rama Shanker vs State of Uttar Pradesh case: The High Court of Allahabad noted that demand for an amount to enable the husband to do business would not come within the definition of dowry. The judgement places key importance on demand and coercion.
Ripu Biswas vs Badal Biswas case: The Guwahati High Court clarified that any property or valuable security given as a consideration or price for marriage would come within the purview of dowry. Other gifts given would not be considered dowry.
Netai Ghosh vs State of West Bengal case: The Calcutta High Court ruled that voluntary gifts given by relatives and friends before or after the wedding to the bride or the bridegroom and which are not given as a consideration for marriage but out of love and affection, will not fall within the definition of dowry under the Dowry Prohibition Act.