Asian Marriage Dowry Claims
When Asian marriages break down there is inevitably a claim by the wife for the return of her ‘Dowry’ We at Lovell Chohan have considerable experience in dealing with these claims and set out below is some general information about dowry claims within ancillary relief proceedings and or possibly under the Married Women’s Act.
The Hindu Succession Act in 1956
Prior to the passing of the Hindu Succession Act in 1956 a daughter enjoyed no rights of inheritance in her father’s estate in the event of him dying intestate although it was permissible for him to make express provision under a will (this was rarely done due to illiteracy). The dowry had all the hallmarks of a “premature bequest” utilised by a bride’s father to make provision for his daughter during his lifetime rather than upon his death ensuring that the “family property” is preserved intact for male heirs and descendants.
The Hindu Succession Act 1956 provided women with rights of inheritance and was the first legislative provision which sought indirectly to eradicate the abuses and excesses of the dowry system and to obviate the need to provide a dowry. The 1956 Act proved unsuccessful in its objective resulting in the passing of the Dowry Prohibition Act 1961 (subsequently amended by the Dowry Prohibition (Amendment) Act 1986) which made it a criminal offence to provide or receive a dowry. However, the dowry has proved difficult to eradicate and the tradition continues under the guise of “wedding presents” which are not prohibited by legislative provision. The provision of a dowry is akin to the importance attached to “status” by Asian families raising the family in the community’s esteem – this entrenched practice is as prevalent today as it was historically.
In dowry cases, the following legal and evidential questions arise for consideration in the English Courts:
- Did the bride take a dowry with her?
- What is the legal position in relation to jewellery and/or clothes and/or money given to the bride on the celebration of the marriage emanating from the bride’ s family and the bridegroom’s family?
- What is the legal effect of jewellery and/or clothing which passed from the bride’s family for the groom and his family?
- How does the bride get her jewellery back?
- Whether the Court is satisfied on the evidence on a balance of probabilities that all items forming part of the “dowry” have been returned by the bridegroom and/or his family on the breakdown of the marriage to the bride?
- If the Court is satisfied that the bridegroom and/or his family have retained the “dowry” and/or parts of the “dowry” whether it is satisfied as to its value thereof for the purposes of a lump sum order and/or to grant an order for its return to the bride?
The legal and evidential burden of proving not only that she was given a dowry but also what she was given rests on the bride. How can the burden be discharged?
The burden of proof
It is the usual practice to video the wedding ceremony including the traditional ceremonies at which gifts are exchanged: the engagement ceremony (karmi or sagan) and the first visit of the bride and groom to the bride’s parents’ home after the wedding ceremony (milni).
In addition, photographs are taken of the jewellery and all gifts are openly displayed including the gifts emanating from the bridegroom’s family.
The marriage mediator (barchola,barchole) would have played a pivotal role in the negotiations as to what gifts should be given usually with the provision of lists. The mediator’s evidence is relevant in the event that it is alleged that the bride was not provided with a dowry and/or the dowry’s composition. Receipts recording purchases should be sought and/or an expert jeweller’s opinion obtained on possible valuation of jewellery where no receipts are in existence. These are not required as “essential documents” in the Form E under the Ancillary Relief Rules but a District Judge may order a short narrative Affidavit in the event of a “dowry” dispute if a Final Hearing is necessary where negotiations and/or attempts to settle at a FDR hearing prove fruitless.
To deal with the legal position pertaining to dowries it is relevant to consider the English law governing wedding presents and on paraphernalia as well as Commonwealth Indian cases which are of persuasive authority insofar as they shed any light on how an English court should resolve and/or adjudicate on dowry cases.
It is a principle of law that a gift must be considered by reference to the intention of the donor but there is no principle of law applicable to wedding presents that they become the joint present of the spouses.