This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed analysis of how gifts that fall beyond ‘reasonable expenditure’ constitute dowry and how much the said legislation is responsible for creating confusion in the minds of a layman with respect to legal gifts and dowry.
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The practice of paying dowry in Indian marriages is a deeply rooted cultural phenomenon that has been dubbed as one of India’s most significant roadblocks on the path to economic and social justice. The Dowry Prohibition Act of 1961, which prohibits the practice, has been mostly ineffective in diminishing its prevalence. Not only has the demand for dowry remained, but also it has grown in popularity among the top echelons of Hindu society, where it began, and has expanded throughout India among numerous populations including Muslims, Christians, and tribal tribes. While on one hand, the Act holds ‘dowry’ as an illegal act, it legalizes offering and receiving gifts or presents by the groom and the bride. But, if the latter is beyond the ‘reasonable expenditure’ of the party offering it, the same will fall under the category of ‘dowry’. This article provides a detailed analysis of how gifts that fall beyond ‘reasonable expenditure’ constitute dowry and how much the said legislation is responsible for creating confusion in the minds of a layman with respect to legal gifts and dowry.
Dowry under the Dowry Prohibition Act, 1961
The Dowry Prohibition Act (originally passed in 1961 and amended twice in the 1980s) defines dowry as “any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to a marriage, or by the parents of either party to a marriage, or by any other person, to either party to a marriage at or before [or any other time after the marriage] in connection with the marriage.” Gifts of jewellery, clothing and money usually provided by the groom’s family would be covered by the anti-dowry statute and so deemed unlawful under this definition. Therefore, in order to frame a case under the legislation of 1961, it is necessary to establish a link between the giving or taking of property or valued security and marriage.
Dowry giving and receiving became a cognizable offence by the two amendments passed in 1984 and 1986. This means that a court can begin procedures based on its own information or a police report, even if the offended party has not filed a complaint. It is to be noted that although dowry is prohibited under the aforementioned statute, gifts are permitted. The Anti-Dowry Act cannot be used to prevent the bride from receiving gifts at the time of her marriage if no demand has been made, provided that such items are included in a list maintained in conformity with the requirements, as outlined by the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985. One should note that the term ‘gifts’ is nowhere used in the 1985 Rules. Instead, the term ‘presents’ is used which is synonymous with the term ‘gift’.
Section 3 of the Dowry Prohibition Act, 1961
Section 3 of the Dowry Prohibition Act, 1961 lays down the provision for a penalty to be awarded for giving or taking dowry. While Section 3(1) lays down deterrence to curb dowry practice, Section 3(2) lays down the defence that can be resorted to in any dowry case. Clause (2) erases the scope of application for Clause (1) by providing that presents which are given at the time of a marriage to the bride and the groom, without any demand having been made on that behalf, provided that such presents are entered in a list maintained in accordance with Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985 made under this Act, will not be considered as a dowry.
It is extremely important to note the proviso laid down under the aforementioned provision as it clarifies that presents given by or on behalf of the bride or any person related to the bride, being of customary nature, should not be excessively valuable with regards to the financial status of the person by whom, or on whose behalf, such presents are given. Put simply, although presents in accordance to the 1985 Rules does not amount to dowry, presents of excessive value which forces the one offering the same to go beyond their financial capability will no more be considered as a present instead will fall under the offence of ‘dowry’.
What constitutes ‘reasonable expenditure’
Sub-rule 2 of Rule 2 of the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985 provides that the ‘approximate value of the present’ which will be received by the bride and the groom or both at the time of their marriage from their respective families or relatives. Although the value within which presents are acceptable under the said Rules has not been specified, it is presumed that the amount for such presents should not be exceeding a reasonable expenditure.
Therefore, reasonable expenditure will be depending on the financial capability of the bride’s family during the time of marriage and any amount which appears to be exorbitant in comparison to the bride’s family’s financial limits but is still demanded by the groom’s family will no more be within the ambit of ‘reasonable expenditure’. And thus will amount to dowry.
The three judgments that have been discussed hereunder highlights how Indian courts have maintained the thin line existing between voluntary gifts given during marriage and gifts demanded by the groom’s family on account of the marriage. Many times even stridhan which the female acquires during her marriage and which solely belongs to her takes the shape of a dowry as perceived by the groom’s family. This is another issue in light of the present discussed subject matter. Discussion regarding the same has also been put forth under this head.
Netai Ghosh v. State of West Bengal (2021)
Justice Bibek Chaudhuri of the Calcutta High Court while hearing the case of Netai Ghosh v. State of West Bengal (2021), stated that traditional gifts are given to the bride or bridegroom, as the case may be, at or before or after the marriage, which are given not as a consideration for marriage but out of love, affection, or regard, would not fall within the mischief of the term ‘dowry,’ which is punishable under the Dowry Prohibition Act, 1961. Further elaborating on the definition of ‘dowry’ under the legislation, the Single-Bench Judge observed that any demand for money, property, or valuable security made by the bridegroom or his parents or other relatives from the bride or her parents or other relatives, or vice versa, would be considered ‘dowry’ under the Act if it is not properly related to any legally recognized claim and is only related to the consideration of marriage.
Jivendra Kumar v. Jaidrath Singh & Ors (2015)
The Supreme Court has declared that any demand made by the husband or his family before or after the marriage falls within the concept of dowry, putting an end to the judicial trend to construe dowry in a restricted manner. While deciding on the case of Jivendra Kumar vs Jaidrath Singh & Ors (2015), the Apex Court expanded the definition of dowry thereby overturning previous rulings that indicated a demand for money to satisfy some essential home costs could not be considered dowry. Observing that the Dowry Prohibition Act, 1961 should be provided with fair, pragmatic, and common sense interpretation in order to achieve the goal set out by Parliament, the Court aimed to put an end to the social evil that still remains prevalent in our society in the form of dowry.
This judgment holds significance as it specified that ‘any demand before or after marriage’ would amount to dowry and therefore, if also any ‘gift’ is provided to the bride and the groom, which is not voluntary in nature the same will be called as a ‘demand’ and would fall under the offence of ‘dowry’ as viewed by the Bench of Justices T.S. Thakur, Rohinton Fali Nariman and Prafulla C. Pant in the present case.
Pratibha Rani v. Suraj Kumar & Anr (1985)
Justices S. Murtaza Fazal Ali, S. Mukharji, and A. V. Varadarajan of the Supreme Court of India while deciding on the case of Pratibha Rani v. Suraj Kumar & Anr (1985) observed that, gifts of cash, ornaments, silver, clothing-or anything that constitutes dowry-may is entrusted by the wife to the husband to keep but he would be deemed “guilty of criminal breach of trust” if he either misappropriates or refuses to return what the court regards “as the absolute and personal property of his wife”. With respect to the stridhan of a female, the Apex Court viewed that a female is the absolute owner of such property and can deal with it in any way she wishes. She may spend the entire amount or give it away at her leisure by gift or will without consulting her husband. The entrustment of the stridhan property to the husband is similar to a bank account that the woman maintains and from which she can take any amount she desires at any time.
The decision, according to Kanwaljeet Deol, Deputy Commissioner in charge of the anti-dowry unit in the capital’s police force, will help females extricate their property from hesitant husbands who tend to cling on to it after abandoning their wives and instead of taking them to court to light it out.
The flawed Indian legislation creating confusion
The four major questions which come in a layman’s mind with regards to the thin line of difference existing between ‘reasonable expenditure’ and ‘dowry’ are:
- Who defines what constitutes a “free gift” and what is offered in response to demand? The same family that claims to solely provide ‘voluntary presents’ to the groom’s family at the time of the wedding is quick to blame all of their ‘gift-giving’ on extortionist demands if the marriage becomes sour and on the verge of disintegration. Thus, even when marital problems are not related to dowry disputes and the marital strain is due to mutual incompatibility rather than the husband’s violence or abuse, many women’s families seek an advantage in registering cases using the anti-dowry law’s draconian provisions when the marriage is on the verge of breaking down.
- How do you determine what is “excessive” in terms of gift income in India, when only around 3% of people declare their incomes, and even those are significantly underreported? How do you assess a family’s tax-paying status when the majority of their wealth is held in ‘black’ money and property is held in fictitious names to avoid taxes?
- The burden of proof has been transferred to the accused, making this statute particularly harsh. Because the huge dowry providers also put together their daughter’s dowry from black money and don’t want it reported, the bride’s parents seldom wish to reveal the real worth of items donated.
- Why would a groom or the bride’s family sign a list of goods being presented when dowry giving is illegal?
These questions hold immense relevance in today’s time and therefore the lawmakers should consider them while modifying and amending the existing anti-dowry legislation. These questions also raise concern on the perception of ‘dowry’ by the Indian people, specifically those belonging from a backward or a rural area. Law-makers should keep in mind how the impact of the implementation of the dowry legislation looks like when in the name of ‘gifts’, heavy demands are placed before the bride’s family.
According to a World Bank report, dowry payments in India’s villages have remained relatively steady over the last few decades. Even though the dowry has been prohibited in India since 1961, the report discovered that it was paid in 95% of weddings. The practice, which is sometimes referred to as a societal evil, persists and exposes women to domestic abuse and even death. Economists S Anukriti, Nishith Prakash, and Sunghoh Kwon used data on the value of monetary and in-kind gifts received or provided at the time of marriage to calculate ‘net-dowry’. The difference between the value of presents provided by the bride’s family to the groom or his family and those given by the groom’s family to the bride’s family was used to determine “net dowry.” In a tiny number of weddings, the groom’s family had paid more to the bride’s family. While we can see where we are heading to in the 21st century, it is time for the bride’s family to start refusing the burden of filling the groom’s bag with gifts and money and for the groom’s family to stop accepting gifts offered to them by the bride’s family on the occasion of marriage.
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