The Dowry in law
In recent years there has been a proliferation of cases in the English courts on the issue of Indian dowries particularly in areas of high Asian population. The Oxford English Dictionary broadly defines dowry as encompassing 'money or property the wife brings with her to the husband's home; the portion given with the wife; a present or gift given by a man to or for his bride'. The Chambers English Dictionary provides 'the property which a woman brings to her husband at marriage; sometimes a gift given to or for a wife at marriage'. These definitions provide that dowry has two constituents- the giving of property to the bride from parents and kin and the giving of jewellery from the in-laws.
Patrimony and inheritance
In India 'status' and 'standing in the community' have historically been ideals which Asians have devoutly revered. One way of achieving this objective was by limiting the number of heirs who would share in the inheritable property, therefore confining it within the family. The classical Indian legal treatises, known as dharnrashastras ('the science of righteousness'), identified that the Indian legal conception of joint family incorporated both males and females. Some members were entitled, on partition, to a share in the patrimony whilst others, ie daughters, were entitled only to maintenance. Prior to 1956, a daughter enjoyed no rights of inheritance. It was permissible for a father to make express provision for his daughter in a will, but few made wills due to illiteracy.
The dowry had all the hallmarks of a form of compensation availed by afather to make provision for a daughter. This endowment (known as stridhanam)was recognised in dhannashastric works as a form of 'female property' which abride took away with her to her new home. Today, stridhanam forms the bulk ofdowry composed of jewellery, clothing, household effects, houses, cars, etcreceived by the bride at various stages of the wedding festivities. Since thepassing in India of the Hindu Succession Act 1956, a. woman enjoys rights ofinheritance. The Act is aimed at making dowry otiose, allowing a daughter toreceive a share in her father's property on his death. The Act provedunsuccessful. For practical reasons, a daughter relinquishes her right (whichshe could choose to exercise if no will existed), being desirous that theestate should remain intact for future male generations hence preserving of'status'. The dowry as a form of compensation does have relevance today inresembling a premature 'bequest'.
The Dowry Prohibition Act 1961 made it a criminal offence to give orreceive a dowry. The Act sought to remedy the failings of the 1956 Act bydirect prohibition. But the tradition is so entrenched that its eradication hasproved difficult. The dowry has two constituents in addition to receivingproperty from her parents and kin, the bride received sulkam from her in-laws.This was usually ornate and expensive jewellery (haar). Historically, this wasthe 'price' paid to the bride's parents to induce them to give their daughterin marriage.
Indians placed great value on 'purity', hence the offering to thebride's parents. But owing to the ignominy attached to 'selling a daughter',anything received was converted into dowry and became the bride's property. Thehaar was a means of showing to the family and the community what they couldafford to expend on their prospective daughter-in-law on the occasion of theirson's marriage.
The majority of Asian marriages in England today are still arranged,with parents relying on the expertise and knowledge of family and friends intheir search for an 'ideal' partner. The parents assess the details and maysignal to a 'mediator' the instigation of negotiations. If the parties aresatisfied with the union, wedding preparations commence. The mediator(barchola, barclrole) plays a prominent role, not only at the negotiationstage, but also in the wedding preparations. By custom, the respective parentsnever (or rarely) meet, their wishes being conveyed through the mediator. Themediator is usually rewarded with a garment or gold jewellery.
An engagement ceremony follows (known as karmi or sagan) at which thebride's father, together with a group of his male relatives, pays homage to thebridegroom and his family at the bridegroom's father's home. The mediator wouldhave informed the bride's father of what 'gifts' should be offered following ameeting with the bridegroom's parents. These may include gold bracelets, goldrings, etc for the nearest and most important of the groom's male relatives.
There are a number of reasons why the bride's parents comply with thedictates of their daughter's prospective in-laws. First, the father is awarethat another 'ideal' partner may be hard to find. Secondly, they are desirousof establishing ties with a new and possibly more socially prestigious family.They may be overwhelmed with emotion at the imminent departure of their 'girl'coupled with their desire that she should begin married life with 'essentials'.The occasion is also an opportunity to raise the family in the community'sesteem.
The bridegroom's family are also aware of 'status'. In the majority ofcases, they adorn their new daughter-in-law with jewellery to display theirwealth. On the day following the religious ceremony, milni, takes place at thebride's parents' home, which is the first visit to the daughter-in-law's homefollowing the wedding. The mediator would have notified the bride's parents ofthe requisite offerings which may include jewellery and clothing requested bythe groom's parents. Practices and quantities vary from family to family; somefamilies Only request the daughter, considering her their most precious jewel.
The Asian dowry tradition in England is more prevalent amongst the Sikhcommunity. In the Gujarati community it seems to be the exception rather thanthe rule. In the Muslim community the bridegroom's family provide gifts for thebride that are not usually reciprocated. Historically inhabitants of thePunjab, one of the most prosperous and fertile states in India and with a highSikh population, enjoyed a high standard of living, irrespective of their casteand religion, and could afford to give a dowry. Today in the Punjab land pricesare high, hence the importance of keeping the land within the family andavoiding its dissipation through the operation of the inheritance laws. InEngland, as Asians' standard of living has risen, coupled with their desire toadvance in their community, the dowry has remained intact.
If practitioners have knowledge of possible legal outcomes, longdrawn-out arguments in court can be obviated. English courts are often asked toadjudicate on contentious issues such as the following.
Did a bride take a dowry with her? Often the woman's husband in his defence refutes all knowledge and possession of any property, possibly arguing that she came empty-handed. The bride bears the legal burden of satisfying on a balance of probabilities not only that she was given a dowry, but also what she was given, if she is to avail herself of the courts' powers under the Matrimonial Causes Act 1973. How can she discharge the evidential burden?
Usually anything that a women takes to her new home is recorded either on video or photographed by her family. They may also have kept receipts. If so, photographs and/or receipts should be exhibited to the affidavit. If receipts have been lost, for instance in the case of jewellery, but photographs or video tapes are available, an experienced jeweller's opinion should be obtained as to the possible value on inspection of the video and/or photographs. Any opinion sought cannot be conclusive, but will offer some assistance. The jewellery's value will be important if the court is considering the making of a lump sum order.
The possibility of the mediator giving oral or affidavit evidence should be explored by the parties, as he or she would have been privy to the finer details of the wedding arrangements. The mediator may share closer links with one of the parties and therefore his or her evidence may be biased. On the other hand, this could corroborate the notion that he or she had the other party's interests at heart and was prepared to coerce the other party into action. The possibility of the bride's father or someone who assumed the father role giving evidence should be explored. He would be in a position to confirm the composition of the dowry, the stages at which it was given and of his intention under pinning its provision. What is the legal effect of the dowry? The answer is amply embodied in English law by reference to the rules governing wedding presents, for in essence that is precisely what dowry is. In Samson v Samson 119601 1 All ER 653 Hodson LJ noted: 'Where there is evidence of intention on the part of the donor a wedding present may be found to have been given either to one spouse or to the other, or to both; where no intention is clear, the inference may be drawn that gifts originating from the husband's family and friends were intended for the husband and that gifts originating from the wife's family and friends intended for the wife.'
Today, even in England, particularly amongst the Sikh community, a father's property still passes to his male descendants. The bride's father may be motivated by customary factors in providing a dowry. It could be argued that this proves his 'intention'. Therefore, all property that the bride proves that she took to her new home as part of her dowry should be returned or made the subject of a lump sum order.
The husband's family may wish to pursue the following line of argument. Although the dowry was intended for the woman, it has become joint property due to subsequent conduct (see Newgrosh v Newgrosh (1950) 210 LT Jo 108). For example, the woman or her father may have intimated in the clearest terms that the property would be theirs jointly or that it was utilised by both over a considerable period of time. However, this is a very tenuous argument and will probably prove unsuccessful in court. How does a bride get her dowry back? A bride usually leaves the former matrimonial home with little, if anything, of her dowry. On a practical basis, negotiations should commence for the dowry's return at an early stage. if either part proves obstructive, then the issue will have to be resolved at the ancillary relief stage and such behaviour could be taken into account by a judge when determining who should pay costs. There is a duty on the parties and their advisers to negotiate in an attempt to settle the case (Gojkovic v Gojkovic (No.2) (1991] 2 FLR 233). It the bride succeeds at the first three hurdles, the district judge can make such order as he or she thinks fit (see r.2.64 of the Family Proceedings Rules 1991). If he or she is satisfied that what formed the dowry is still in the husband's possession, he or she can make an order for its transfer scheduling the items in the order (s.24 of the Matrimonial Causes Act 1973). If he or she is satisfied that it has been disposed of or otherwise dealt with by the husband, a lump sum order would be appropriate (s.23 of the Matrimonial Causes Act 1973).
If a bride is convinced that jewellery, which from the time of her marriage was retained by her mother-in-law, has been disposed of, she may want to consider legal proceedings against her in-laws for conversion. These proceedings would have to be independent of the matrimonial matters, as the latter only deal with issues arising between husband and wife. Furthermore, if this course is followed, any proceeds would not carry the E2500 exemption from the statutory charge as in matrimonial cases. What is the legal effect of jewellery passing from the bridegroom's family to the bride? Although practices vary, the groom's family provides by custom a trousseau (as well as jewellery for the bride). This is usually displayed either on the wedding day at the reception or at the bride's home the day before. The items will probably be photographed and/or video-taped. The photographs should be exhibited to affidavits, These items are the bride's for two reasons. First, the groom's parents are prompted by customary and status considerations to make some 'gift'. Secondly, the nature of the gift reveals the intention of the donor (see M'Donald v M'Donaldd [19531 SLT (ShCt) 36).
There are two lines of argument that the groom may wish to raise. First, the jewellery may have been given on the express terms that it would be returned if the marriage was dissolved. Such a condition may be held to be 'void' as being contrary to public policy for it could never be fulfilled until the death of one of the parties. Secondly, the bride was only allowed the 'use' of the jewellery in her capacity as a wife, as they were 'family jewels' and not hers absolutely. This may be supported by the fact that they were kept in a bank safety deposit box with the other 'family jewels' and were only worn on special occasions with the husband's or mother-in-law's permission. There would have to be clear evidence for the operation of this old rule of 'gift of paraphernalia' to succeed Tasker v Tasker [18951 p 1). The success of the above may rest on the credibility of the witnesses in giving evidence in court. Finally, what is the legal effect of jewellery and/or clothing which passed from the bride's family for the groom and his family? Relying on Samson u Samson I would submit that the bride's family should be the recipient. The return of the dowry is not only the return of material items; more importantly it is the restoration of the bride's dignity.