CHAPTER – II

DOWRY UNDER DOWRY PROHIBITION ACT

A. General Introduction

Dowry is one of those social practices which no educated

Indian would own up with pride, although many still adhere to

this much deplorable practice. Dowry continues to be given a nd

taken. Even among the educated sections of society, dowry

continues to form an essential part of the negotiations that take

place in an arranged marriage. During the marriage ceremony the

articles comprising the dowry are proudly displayed in the

wedding hall. Dowry is sti ll very much a status symbol. A

number of marriage-negotiations break down if there is no

consensus between the bride's and groom’s families. Dowry

deaths of a newly married bride are still regularly in the news.

Although the practice of dowry exists in many countries, it

has assumed the proport ion of a challenge to the force of

modernity and change only in India. Many reasons are put

forward for explaining this practice. It is said that a dowry is

meant to help the newly-weds to set up their own home.

That Dowry is given as compensation to the groom's

parents for the amount they have spent in educating and

upbringing their son. These explanations may seem logical in the

present day context, but they cannot explain how this practice

originated. A search for the origins of dowry would have to move

backwards into antiquity. Discussion about dowry has to take

into account the less prevalent practice of bride p rice, which is

but a reversal of dowry. Although it may not be possible to

ascertain when and where these practices originated, it can be

supposed that dowry and bride price are posterior to the

9

institution of monogamy. This is the same as saying that dowry

and bride price came into being after the practice of

monogamous marriage had become prevalent.

But monogamous marriage is i tself a culmination of the

human adaptation of animal promiscuity. Man's is the only

species practicing monogamy, all other species are promiscuous.

Thus it is a logical corollary that Man's institution of monog amy

came into being at sometime in the long evolution of his species.

The practice of monogamy itself evolved in stages as is evident

from historical anecdotes as in the Mahabharata where the five

Pandava brothers have one wife.

Promiscuity gave way to Polygamy/polyandry, and after

various permutations and combinations, monogamy became the

established system. As long as promiscuity existed there was no

question of dowry or bride price. The origin of these two

practices could be linked up with the discardin g of promiscuity

in favour of Polygamy and Polyandry. These two forms of

marriage are themselves mutual opposites. While in polygamy

there is pairing between one male and multiple women and

polyandry is the pairing of one woman with multiple men.

The existence of the diametrically opposite practices of

dowry and bride price, possibly owe their origin to polygamy and

polyandry. The formation of polygamous and polyandrous forms

of marriage could have been made necessary by changes in the

demographic balance between the sexes. A rise in the number of

females as compared to that of males is a congenial situation for

the emergence of polygamy. Here the chances of more than one

female member of society being in wedlock with one male

member are more.

In absence of polygamy, in a society having a larger

number of females as compared to males, many female members

10

would have to be deprived of marital l ife. The obligation to get

more than one female member into wedlock with one male

member could have been the situation which gave birth to dowry

as a price exacted by the male and his family from the female's

family.

The origin of bride-price could have taken place in

opposite circumstances where the sex ratio favored females and

as there were a large number of males for every female,

polyandry and bride-price could have been the result .

Along with this generalised hypothesis there were many

factors specific to different situations which gave birth to dowry

and bride-price. These factors can be identified with more

certainty. In India’s context, these practices can be seen to be a

result of the dialectics of our caste system. The conflict of

opposing tendencies of the caste hierarchy, as we know has

resulted in endogamy, preventing inter -marriage between

members of different castes. A reason for the origin of dowry

and bride-price can also be seen in the same conflict. Hence

discussion on these two practices would have to be intertwined.

Dowry (Dahej/Hunda) as we all know is paid in cash or

kind by the bride's family to the groom’s family along with the

giving away of the bride (Kanyadanam). The ritual of Kanya -

danam is an essential aspect in Hindu marital rites: Kanya =

daughter, danam = gift . A reason for the origin of dowry could

perhaps be that the groom and his family had to take up the

'onerous' responsibility of supporting the bride for the rest of her

life.

Bride-price on the other hand involves the receipt of

presents, in cash or kind, by the bride's family in return for

giving away of the bride. Hence bride -price has the character of

an exchange.

11

One feature about bride-price and dowry that is

conspicuous is that the former was prevalent among the tribal’s ,

Vaishyas and Shudras whereas later was prevalent amongst

Brahmins and Kshatriyas. We can only conjecture as to why this

curious combination could have come into being.

In ancient t imes, the Vaishyas and Shudras did most of

the physical labour and menial work. The coming of a bride into

the family meant an increase in the number of members who

could work along with other members and become a source of

income for the family. While the family from where the bride

came suffered the loss of one earning member. Hence a bride -

price was paid to the bride's parents to compensate for this loss.

The Brahmins and Kshatriyas had only priestly and martial

duties allocated to them and no manual labour was assigned. A

marriage meant an additional member who was to be supported

and hence was a burden on the groom's family as the bride did

not go out to earn and contribute t o the family income. Thus a

dowry was collected to provide the additional burden resulting

from a bride's entry into the groom's family.

B. Definition of Dowry

“Dowry” is now defined as any property or valuable

security given or agreed to be given, dir ectly or indirectly: (a) by

one party to the marriage to the other party to marriage, or (b) by

parents of either party to the marriage, or by any other person to

either party to the marriage or to any other person at or before or

at any time, after the ma rriage “in connection with the marriage

of said parties”. In Pawan Kumar v. state of Haryana,1 it was

held that agreement is not always necessary. Persistent demand

for T.V. and scooter were held to be demand in connection with

1 AIR 1998 SC 958.

12

marriage, hence such demand would fall within the definition of

dowry. It should be noticed that the Act uses the word “dowry”

not merely in the sense of what, bride’s parents give to the bride

and bridegroom, but also the other way round. In other words, if

property or valuable security is given by the bridegroom to the

bride or bride’s father in connection with the marriage of the

parties, it would also be covered in the definition of dowry. In

the definition as laid down in the original Act, the words were

“as consideration for marriage” which have been substituted with

words “in connection with the marriage”. The new definition

meets the objection of the Joint Parliamentary Committee and

also widens it , but then it is hardly a definition. This comes into

clear relief when one notes that wedding presents, whatever by

their value, are excluded from the purview of dowry. It would

have been better to say “whatever does not constitute wedding

presents constitutes dowry”. We have wasted too many words

without achieving much. It is true, s eemingly, two safeguards

against the abuse of “presents” are laid down:

(a) All presents made to the bride or bridegroom at the

time of marriage (but not those given before or after

marriage) are to be put in a list, and

(b) Such presents should be commensurate to the financial

status of the giver.2

One can be reasonably skeptical about the efficacy of

rigmarole language of this provision which claims to define

dowry.3

2 Section 3(2). 3 Section 2: See State of Karnataka v. M.V. Manjunathegowda, AIR 2003 SC 809.

13

C. Historical Background

An approved marriage among Hindu has always been

considered a kanyadan,4 be it a marriage in any form. According

to the Dharmashastra, the meritorious act of kanyadan is not

complete ti ll the bridegroom was given a dakshina . In the

Brahma form of marriage, this twin aspect of the meritorious act

of kanyadan and varadakshina found expression in the

enjoinment after decking his daughter with costly garments and

ornaments and honoring her with presents of jewels, the father

should gift the daughter to a bridegroom whom he himself has

invited and who is learned in Vedas and of good conduct. (Manu)

(The detailed qualifications and qualities and of the bridegroom

were laid down). There are no two opinions that whatever

presents were given to the daughter on the occasion of marriage

by her parents, relations or friends consti tuted her stridhan.

Since varadakshina included ornaments and clothes and cash,

one opinion was that this also constituted the property of the

bride, i .e. , stridhan. It was submitted that, that is an

unnecessary twist. In fact, the varadakshina was a present to the

bridegroom and obviously it constituted his property. It need not

be doubted that then the varadakshina was given out of love and

affection and with the feeling of honouring the groom, though its

quantum obviously varied in accordance with the financial

position of the father of the bride. It was given voluntarily and

no compulsion was exercised. It should also be clear that

presents given to the bride by way of ornaments, clothes and

other articles as well as cash from the side of her father an d

husband constituted her stridhan. They were given to the bride

by way of love and affection. These were probably meant to

provide her with a sort of financial security in adverse

circumstances. These two aspects of Hindu marriage, gifts to

bride and bridegrooms got entangled and later on assumed the

4 Manu Smriti, III, 27.

14

frightening name of dowry for the obtaining of which

compulsion, coercion, and, occasionally, force began to be

exercised, and ultimately most marriages became a bargain.

In course of time, dowry became a widespread evil , and it

has now assumed menacing proportions. Surprisingly, it has

spread to other communities, which were traditionally non -dowry

taking communities. Cases have come to public notice where

brides, on account of their failure to bring the pro mised or

expected dowry have been beaten up, kept without food for days

together, locked up in dingy rooms, tortured physically and

mentally, strangulated or burnt alive or been forced to commit

suicide. With a view to eradicating the rampant social evil o f

dowry from the Indian society, Parliament, in 1961, passed the

Dowry Prohibition Act which applies not merely to Hindus but

all people, Muslims, Christians, Parsis and Jews.

But the act did not prove effective, and the evil of dowry

continued to reign supreme. Several Indian states amended the

Dowry Prohibition Act, 1961 with a view to give it teeth,5 but to

no avail. These did not succeed in curbing, much less

eradicating, the dowry menace. The Joint Parliamentary

Committee on dowry in its report of 1982 has opined that for the

failure of the dowry prohibition law, there are two reasons: first ,

the explanation to Section 2 of the Act excludes all presents

(whether given in cash or kind) from the definition of dowry,

unless the same were given in conside ration of marriage, and it

is almost impossible to prove that gifts or presents given at,

before, or after the marriage were given in consideration of

marriage. The main reason is that no giver of the present will

ever come forward to say that he gave the se in consideration of

5 For instance see, Dowry Prohibition (Bihar Amendment) Act, 1975; Dowry

Prohibition (West Bengal Amendment) Act, 1975; Dowry Prohibition (Orissa

Amendment) Act, 1976; Dowry Prohibition (Haryana Amendment) Act, 1976;

Dowry Prohibition (Himachal Pradesh Amendment) Act, 1976; Dowry Prohibition

(Punjab Amendment) Act, 1976. Most of these statutes provide for enhanced

punishment for dowry offences; one or two years, imprisonment or fine of Rs. 5,000.

15

marriage, as giving of dowry is as much an offence as taking it .

Secondly, the Act did not have an effective enforcement

instrumentality. No court can take cognizance of a dowry offence

except of complaint, made by a person within on e year from the

date of the commission of a dowry offence. It is unrealistic to

expect the bride or bride’s parents or other relations to go to

lodge a complaint. The parents are usually the victims of dowry.

They are unwilling (and certainly reluctant) to come forward

because of their apprehension that it may lead to th e

victimization of their daughter.

Unfortunately, the spread of education has not helped in

curbing the social evil of dowry, rather the educated youth has

become more demanding as he along with his parents want to

recover every paisa spent on the education of youngman- some

often demand expenditure for sending the youngman abroad for

higher education! In fact, in some communities marriage is

becoming a big source of exploitation and of get ting rich of

fulfilling all their unfulfilled and unsatisfied (and probably

unsuitable) material wants. The, more highly educated is the

youngman, higher are the demands for dowry. Thus, the law was

found to fail to stall this evil. We may recall the word s of Pt.

Jawaharlal Nehru:

“Legislation cannot by itself normally solve deep rooted

social problems. One has to approach them in other ways

too, but legislation is necessary and essential, so that i t

may give that push and have those educative factors as

well as the legal sanctions behind it which help public

opinion to be given a certain shape.”6

6 Speaking from the floor of Parliament in the Joint sitting of both Houses of Dowry

Prohibition Bill, 1961 on May 6, 1961.

16

With a view to giving teeth to the law, the Joint

Parliamentary Committee on Dowry has made some

recommendation, most of which have been accepted by

Parliament pursuant to which the Dowry Prohibition

(Amendment) Act, 1984, and the Dowry Prohibition

(Amendment) Act, 1986 were passed.

Keeping all this in view, the Supreme Court has observed

in Vakas v. State of Rajasthan,7 that the receipt and payment of

dowry has to be controlled not only be effective implementation

of the Act but by society also. Society has to evolve ways and

means to curb this menace.

D. Causes and Effect of Dowry

Taking or giving of dowry or abetting to give dowry or

abetting to take dowry continues to be offences.8 Similarly,

demanding of dowry by any person, directly or indirectly from

parents or guardian of bride or bridegroom is also a dowry

offence.9 Under the original Act, the punishment for these

offences was mild: the maximum pun ishment was six months’

imprisonment, or a fine which could not be beyond a sum of Rs.

5,000; both the punishments could also be awarded. But now the

punishment has been enhanced and minimum and maximum

punishments have been laid down. The Amending Act of 1986

provides a punishment which shall not be less than five years’

imprisonment with fine which shall not be less than Rs. 15,000

or the amount of the value of such dowry whichever is more.10

In

regard to the punishment of inflicting fine, if the value of dowry

is more than the sum of Rs. 15,000 or vice versa, then the

amount which is more is to be awarded as punishment.11

If these

7 AIR 2002 SC 2830. 8 Section 3. 9 Section 4. 10 Section 3(1) and Section 4. 11 Proviso to Section 3(1) and Proviso to Section 4.

17

provisions are considered to have teeth, then the same are

blunted by another provision which confers discretion on the

court to impose a sentence of imprisonment for a term of less

than five years. In awarding smaller punishment, the court is

required to record in writing the adequate and special reasons for

doing so.12

The Joint Parliamentary committee on Dowry has opined

that the giver of the dowry should not be treated as an offender

as he is more a victim than an offender and further, when the

giver of the dowry is considered to be as much an offender as

offender as the taker to dowry, the prosecution of the taker or

demander of dowry becomes difficult . In the words of the

Committee:

“The parents do not give dowry out of their free will but

are compelled to do so. Further, when both the giver and taker

are punishable, no giver can be expected to come forward to

make a complain t .”

There is much substance in the above observation. It is a

unique law which considers the person who commits the act as

well as the person against whom the act is committed as

offenders; how can the punishment of the offender succeed if

along with him the victim may also be punished.

Transfer of dowry to the bride

It may be that dowry has actually been received but its

receiver is not the bride, but either the husband or some other

person or someone from among the in -laws. In such a case the

Act lays down that dowry has to be transferred to the bride.13

When any person has received dowry at, before, or after the

marriage, he must transfer the same to the bride within three

12 Ibid. 13 Section 6.

18

months of i ts receipt.14

If dowry was received when the bride was

a minor then it must be transferred to her within three months of

her attaining majority.15

Pending such transfer, he would hold the

dowry as a trustee for the benefit of the bride.16

The failure to

transfer the dowry to the bride within the stipulated period

constitutes a dowry offence, for which the offender is l iable to

be awarded the same punishment as the taker of dowry,17

and in

his case the court has no discretion to reduce the punishment

below the minimum under any circumstances whatever. This

punishment will be in addition to the one which may be awarded

to him as taker of dowry, since both are separate offences. If the

bride dies before the transfer of dowry is affected, her heirs will

be entitled to it.18

I t the woman dies within seven years of her

marriage, the property will go to her children, and, in their

absence, to her parents. Probably, the awarding of punishment to

the offender may meet the ends of justice so far as the individual

offender is concerned, but it may not provide any remedy to the

bride. To meet this situation the Act provides that the court will

make an order directing the offender to transfer the dowry to the

bride, or her heirs, as the case may be, within the time specified

in the order.19

If the offender still fails to comply with the order,

the court is required to pass an order directing that an amount

equal to the value of dowry should be recovered from the

offender as if it was fine imposed by the court and should be

paid to the bride or her heirs, as the case may be.20

14 Section 6(1). 15 Section 6(1) (c). 16 Ibid. 17 Section 6(2). 18 Section 6(3). 19 Section 6(3A). 20 Ibid.

19

E. Difference between Dowry and Stridhan

Section 14, Hindu succession Act, 1956, has introduced

fundamental changes in the Hindu law of woman’s property.

Before 1956, the property of woman was divided into two heads:

(a) Stridhan, and (b) woman’s estate. The Hindu Woman’s Right

to Property Act, 1937 conferred some new rights of inheritance

on certain Hindu females which had the effect of increasing the

bulk of woman’s estate, but apart from its side repercussions on

the joint family property, i t did not alter the basic divi sion of

woman’s property into Stridhan and woman’s estate. Section 14

of Hindu Succession Act, 1956 has abolished woman’s estate and

has virtually introduced Vijnaneshwara’s interpretation of

Stridhan .21

In this chapter, it is proposed to give the summary of the

old Hindu law of Stridhan and woman’s estate in Part I and of

the Hindu Woman’s Right to Property Act, in Part II, Part III is

devoted to Section 14 of the Hindu Succession Act.

(a) Stridhan and Woman’s Estate

Literally, the word stridhan means ‘woman’s property’.

But in Hindu law it has, all along, been given a technical

meaning. In the entire history of Hindu law, woman’s right to

hold and dispose of property has been recognized. At no time

whether as a maiden, wife or widow, has the woman been denied

the use of her property as an absolute owner (apart from the

husband’s dominant position in respect of certain type of

stridhan).22

I t is also true that at no time the quantum of her

property has been anything but meager. The Smritikars differ

from each other as to what items of property constitute stridhan.

Gooroodass Benerjee very aptly said:

21 Mitakshara’, II, ix, 2, 22 Mitakshara, II, ix, 2.

20

The difficulties besetting an enquiry into the question what

constitutes stridhan, arise from the fact that majority of sages

and commentators give neither an exact definition of stridhan,

nor an exhaustive enumeration, and if the Mitakshara gives a

simple and intelligible definition, that definition has been

qualified and restricted in its application by our courts, in

consequence of its disagreement with the view of other

authorities.23

According to the Smritikars, the stridhan constituted those

properties which she received by way of gift from relations

which included mostly movable property (Though sometimes a

house or a piece of land was also given in gif t24

), such as

ornaments, jewellery and dresses. The gift made to her by

strangers at the time of the ceremony of marriage (before the

nuptial fire), or at the time of bridal procession also constituted

her stridhan. Among the Commentators and Digest -writers, there

is a divergence of opinion as to what items of property constitute

stridhan and what do not. Vijnaneshwara commenting on the

words “and the like” in Yajanavalkya’s text expanded the

meaning of stridhan by including properties obtained by

inheritance, purchase, partition, seizure and finding. (This

expansion was not accepted by the Privy Council which resulted

in the emergence of the concept of woman’s estate).

Jumutvahana gave a different enumeration of Stridhan, so did

the sub-schools of the Mitakshara.

Whether the property is stridhan or woman’s estate mostly

depends upon the source from which it has been obtained.

(b) Enumeration of woman’s property

1. Gift and bequests from relations. - From the early time

this has been a recognized head of t he stridhan. Such gifts may

be made to woman, during maidenhood, covertures or

23 Hindu Law of Marriage and Stridhan, (3rd Ed.) 280. 24 See Chapter XII, Part II, Gifts of Love and Affection.

21

widowhood, by her parents and their relations, or by the husband

and his relations. Such gifts may be made inter vivos or by will.

The Dayabhaga school does not recognize gifts of immovable

property by husband as stridhan. The property coming under

this head was technically known as stridhan.25

2. Gifts and bequests from Strangers.—Property given by

gift inter vivos or by will by strangers (i .e. , other than relations)

to a woman, during maidenhood or widowhood, constitutes her

stridhan. The same is the position of gifts given to a woman by

strangers before the nuptial fire or at the bridal procession

property given to a woman by a gift inter vivos or bequeathed to

her by strangers during cover ture is stridhan according to

Bombay, Benares and Madras schools, but not according to the

Mithila and the Dayabhaga schools. The position before 1956

was that the gifts received from strangers during coverture were

stridhan, but these we re during her husband’s life time under the

husband’s control. On his death these became her full fledged

stridhan.

3. Property acquired by self -exertion and mechanical

arts.—A Woman may acquire property at any stage of her life by

her own self-exertion, such as by manual labour, by employment,

by signing, dancing, etc., or by any mechanical art . According to

all schools of Hindu law, the property thus acquired during

widowhood or maidenhood is her stridhan. But the property thus

acquired during coverture does not constitute her stridhan

according to the Mithila and Bengal schools, but according to

rest of the schools it is stridhan. Again, during the husband’s

life-time it is subject to his control.

4. Property purchased with stridhan.—In all schools of

Hindu Law, it is a well settled law that he properties purchased

with stridhan, or with the savings of stridhan, as well as all

25 For details, see Banerjee, Hindu Law of Marriage and Stridhan, 321.

22

accumulations and savings of the income of stridhan, constitute

stridhan.

5. Property acquired by compromise.—When a person

acquires property under a compromise, what stake he will take in

it , depends upon the compromise deed. In Hindu law there is no

presumption that a woman who obtains property under a

compromise takes it as a limited estate. Property obtained by a

woman under a compromise where under she gives up her rights

to her stridhan will be stridhan. When she obtains some property

under a family arrangement, whether she gets as stridhan or

woman’s estate will depend upon the terms of the family

arrangement.

6. Property obtained by adverse possession.—In all

schools of Hindu law, it is a settled law that any property that a

woman acquires at any stage of her life by adverse possession is

her stridhan.

7. Property obtained in lieu of maintenance.—Under all

schools of Hindu law, the payments made to a Hindu female in

lump sum or periodically for her maintenance and all the arrears

of such maintenance constitute her stridhan. Similarly, all

movable and immovable properties transferred to her by way of

an absolute gift in lieu of maintenance constitute her stridhan.

8. Property obtained by inheritance. –A Hindu female may

inherit property from a male, or a female. She may inherit it

from her parent’s side or from husband’s side. The Mitakshara

considered all inherited property as stridhan. But the Privy

Council in a series of decisions held such property as woman’s

estate. In one set of cases, the Privy Council held that property

inherited by a female from males, is not her stridhan but

woman’s estate.26

In another set of cases, it took the same view

in respect of property inherited from the females. This is the law

26 Bhagwandeen v. Maya Baee, (1867) 11 M.A.I. 487; Thakur Dayhee v. Raj Baluk

Ram, (1966) 11 M.I.A. 140.

23

in all the schools except the Bombay school.27

According to the

Bombay school, the property inherited by a woman from females,

is her stridhan ,28

as to the proper ty inherited from a male, the

female heirs are divided into two : (a) those who are introduced

into the father’s gotra by marriage, such as intestate’s widow,

mother, etc., and (b) those who are born in the family, such as

daughters, sisters, brother’s daughters, etc. in the latter case the

inherited property is stridhan, while in the former case it is

woman’s estate. After the coming into force of the Hindu

Succession Act, 1956, she takes all inherited property as her

stridhan.

9. Share obtained on partit ion.— When a partition takes

place, except in Madras, father’s wife, (not in the Dayabhaga

school) mother and grandmother take a share in the joint family

property. In the Mitakshara jurisdiction, including Bombay29

and

the Dayabhaga School, it is an establ ished view tha the share

obtained on partition is not stridhan but woman’s estate.30

This

property is also now her absolute property or stridhan afte r the

coming into force of the Hindu Succession act, 1956.

(c) Characteristic features of stridhan

The property falling under heads (1) to (7) is Stridhan

property, in a Bombay school, certain categories of inherited

property are also Stridhan.

The pre-1956 Hindu law classified stridhan from various

aspects so as to determine its characteristic features; s uch as

source from which the property was acquired, the status at the

27 Sheo Shanker v. Devi Saha, (1903) 25 All. 468; Sheo Partap v. The Allahabad Bank,

(1903) 30 I.A. 209; See also Gayadin v. Badri Singh, (1943) All. 230. 28 Kasserbai v. Hunsraj, (1906) 30 Bom. 431; Gangadhar v. Chandrabhagabai, (1983)

17 Bom. 690 (F.B.). 29 The Vyavahara Mayukha takes the view that such property is stridhan, but the Privy

Council ‘Legislated’ and held that such property is woman’s estate; Devi Mangal

Prasad v. Mahadeo, (1919) 39 I.A. 121. 30 Devi Prasad v. Mahadeo, (1912) 39 I.A. 121.

24

time of acquisition, i .e. , whether the female was maiden, married

or widow, and the school to which she belonged. Without going

into details, broadly speaking, the stridhan has all the

characteristics of the absolute ownership of property. This

implies two features:

(1) The Stridhan being her absolute property, the female

has full rights of its alienation. This means that she can sell ,

gift , mortgage, lease, exchange or if she chooses, she can put i t

on fire. This is entirely true when she is a maiden or a widow.

Some restrictions were recognized on her power of disposal, if

she was a married woman. If she was a married woman, the

stridhan was classified under two heads:

(a) the saudayaka (li terally it means gift of love and

affection), i .e. , gifts received by a woman from

relations on both sides (parent’s and husband’s), and

(b) the non-saudayaka, i.e. , all other types of stridhan

such as gifts from stranger, property acquired by self -

exertion or mechanical art . Over the former she had full

rights of disposal, but over the latter she had no right

of alienation without the consent of her husband. The

husband also had the power to use it .

(2) She constituted an independent stock of desc ent. On

her death all types of the stridhan passed to her own heirs.

The pre-1956 Hindu law laid down a different law of

succession to stridhan. The law was different in different schools

and it was different for different kinds of the stridhan.

The old law of succession to stridhan has been abrogated

by the Hindu Succession Act, 1956. The new law of succession

to woman’s property has been laid down in Sections 15 and 16 of

the Hindu Succession Act, 1956.

25

(d) Characteristic features of woman’s estate

Of the above enumerations of woman’s property, the last

two heads, (8) and (9) constituted the Hindu female’s limited

estate, known as woman’s estate, sometimes also called as

widow’s estate. The characteristic feature of woman’s estate is

that the female takes it as a limited owner. However, she in an

owner of this property in the same way as any other individual

can be owner of his or her property, subject to two basic

limitations: (a) she cannot ordinarily alienate the corpus, and (b)

on her death it devolves upon the next heir of the last full

owner.31

In Janki v. Narayanasami ,32

the Privy Council very

aptly observed : “Her right is of the nature of right of property,

her position is that of owner; her powers in that character are

however, limited. So long as she is alive, no one has vested

interest in succession.”33

Kerry,34

the Privy Council said : “The

whole estate is for the time vested in her.”

Her powers of disposal over the property are limited and it

is these limitations which go to define the nat ure of her estate.

These limitations are not imposed for the benefit of the

reversioners. Even when there are no reversioners, the estate

continues to be a limited estate.

Power of management.—Like the Karta of a Hindu joint

family, she has full power of management. Her position in this

respect is somewhat superior to the Karta. The Karta is merely a

co-owner of the joint family, there being other coparceners, but

she is the sole owner. Thus, she alone is entitled to the

possession of the entire estate and she alone is entitled to its

entire income. Her power of spending the income is absolute.35

31 Bijay v. Krishna, 44 I.A. 87. 32 (1916) 43 I.A. 20. 33 See also Moni Ram v. Kerry, (1889) 7 I.A. 115. 34 Ram Sumran v. Shyam, P.C. 356; Hurrydas v. Uppoonaa, (1856) 6 M.I.A. 433. 35 Ramsumran v. Shyam, 1922 P.C. 356 Hurrydas v. Uppoornaa, (1856) 6 M.I.A. 433.

26

She need not save, and if she saves, i t will be her stridhan.36

She

alone can sue on behalf of the estate, and she alone can be sued

in respect of i t .37

She continues to be its owner until the

forfeiture of estate, by her re -marriage, adoption, death, or

surrender.

Power of alienation .—The female owner being a holder of

limited estate has limited powers of alienation. Like the Karta

her powers are limited and she can like the Karta alienate

property only in exceptional cases. The principle on which

restrictions have been placed on woman’s power of disposal was

thus explained by the Privy Council: “It is admitted on all hands

that if there be collateral heirs of the husband, the widow cannot,

of her own will, alienate the property except for special

purposes. For religious and charitable purposes or those which

are supposed to conduce to the spiritual welfare of her husband,

she has larger powers of disposal than that she possesses for

purely worldly purposes. On the other hand, it may be legitimate,

may become so if made with the consent of her husband’s

kindred. But, it surely is not the necessary or logical

consequence of this latter proposition, that in the absence of

collateral heirs of the husband, or on their failure, the fetters on

the widow’s power of alienation altogether drop.”38

She can alienate the property for: (a) a legal necessity,

i .e. , for her own need and for the need of the dependents of the

last full owner, (b) for the benefit of the estate, and (c) for the

discharge of indispensable religious duties such as marriage of

daughters, funeral rites of her husband, his sraddha and gifts to

Brahmans for the salvation of his soul. In short, she can alienat e

her estate for the spiritual benefit of the last full owner, but

more or less the same as that of the Karta. The rule in Hanooman

Prasad applies to her alienations also. If need be, she can

36 Sitaji v. Bijendra, AIR 1954 S.C. 601. 37 Radharani v. Brindarani, 1936 Cal. 392; Viraraju v. Venkataratnam, 1939 Mad. 98. 38 Collector of Musulipatam v. Covery Venkata, (1861) 8 M.I.A. 529.

27

alienate the entire estate. Restrictions on her power of alienat ion

are an incident of the estate, and not for the benefit of

reversioners.39

She can alienate the property with the consent of

presumptive reversioners.40

As to her power of alienation under

the third head, a distinction is made between the indispensable

duties for which the entire property could be alienated41

and the

pious and charitable purpose for which only a small portion of

property can be alienated. She can make an alienation for

religious acts which are not essential or obligatory for the

salvation of husband’s soul.42

An improper alienation made by her is not void but

voidable in any case, an alienation made by her is binding on her

during her life time, as a grantor cannot derogate from her own

grant. As the reversioners have no right to get i t s et aside until

the estate devolved upon them, an improper alienation is valid

and binding on her for the duration of her life.43

When a female holder of a limited estate enters into a

family arrangement or into a compromise with the consent of

presumptive reversioners or when reversioners are party to it,

even if it amounts to alienation of property, it will be binding on

the reversioners and their descendants.44

She can also acknowledge liability in respect of the

estate.45

Surrender.—Surrender means renunciation of the estate by

the female owner.46

She has the power of renouncing the estate in

favour of nearest reversioners.47

This means that by a voluntary

act, she can accelerate the estate of the reversioner by conveying

39 Jaisri v. Rajdewan, (1962) S.C.J. 578. 40 Sahu v. Mukand, 1955 S.C. 481. 41 See the case cited in footnote 21. 42 Kamla v. Bachulal, 1957 S.C. 434. 43 Kalishander v. Dhirendra, 1954 S.C. 505. 44 Ramgonnda v. Bhasahed, 1927 I.A. 396. 45 S. 3, Limitation Act. 46 Dayabhaga, XI, I, 56-57. 47 Devi Prasad v. Gopal, (1913) 40 Cal. 721 (F.B.) Per Mukherjee, J.

28

absolutely the estate and thereby destroying her own estate. This

is an act of self-effacement on her part and operates as her civil

death. In Natwar v. Dadu ,48

the Supreme Court held that i t is the

self-effacement by the widow that forms the basis of surrender

and not the ex facie transfer by which the effacement is brought

about.49

For a valid surrender, the first condition is that it must

be of the entire estate,50

though she may retain a small portion

for her maintenance.51

The second condition is that it must be

made in favour of the nearest reversioner or reversioners, in case

there are more than one of the same category, Surrender can be

made in favour of female reversioners. The third and the last

condition is that surrender must be bona fide, and not a device of

dividing the estate among the reversioners.52

When a Hindu

female surrenders her estate, the estate vests in the reversioners

by the operation of law, and no act of acceptance by the

reversioner is necessary. No formalities are necessary.53

A sale

of estate for consideration to the reversioners cannot be regarded

as surrender.54

Estate reverts to next heir of the last full owner

reversioner .—The second characteristic feature to the woman’s

estate is that the female owner does not form an independent

stock of descent in respect of i t . On her death, the estate reverts

to the heir or heirs of the last full owner as if the latter died

when the limited estate ceased.55

Such heirs may be male or

female. They are known as “reversioners”. It should be noted

that so long as the estate endures, there are no reversioners,

though there is always a “Presumptive reversioner” who has only

48 1954 S.C. 61. 49 Behari v. Madho, (1891) 19 I.A. 30. 50 Natwar v. Dadu, 1954 S.C. 61. 51 Chinammarappa v. Nerayamal, 1966 Mad. 169. 52 Bhagwan Kaur v. Dhanukdhari, 1919 P.C. 75. 53 Ibid. 54 Sureshwar v. Maheshrani, (1920) 47 I.A. 233. 55 Moni Ram v. Merry, (1880) 7 I.A. 115.

29

a spes successions (an expectation).56

The reversioners are also

not l ike the remainder man of a life estate. The powers of Hindu

female holding woman’s estate are more comprehensive than that

of a life tenant.

The reversioner takes the property of the femal e when her

estate terminates. Her estate terminates on her death. But it can

terminate even during her life time. By surrendering the estate

she can terminate it . There were other modes of termination also.

Before 1956, a posthumous son divested a widow of dau ghter; an

adoption made by the widow of a coparcener divested the widow

of the sole surviving coparcener . On her own adoption, she was

divested of the half of the property, if she had inherited it from

the husband. In certain circumstances, her remarriage led to

forfeiture of estate (if she got the right of remarriage by virtue

of the Hindu Widow Remarriage Act, 1956). In such cases the

property passed to the reversioners.

Right of reversioners.—The cases of improper handling of

estate are mainly two: (a) she may use the a property wastefully,

and (b) she may alienate it improperly. The allied question is:

have the reversioners a right to prevent her from doi ng any of

these acts during her life time? The answer is in the affirmative.

It was in this context that the expression, presumptive reversion,

came into vogue. The reversioners have mainly the following

three rights:

(1) They can sue the woman holder for an injunction to

restrain waste. However, the right cannot be used to

harass or to prevent the female from using and

enjoying the property.

(2) They can, in a representative capacity, sue for a

declaration57

that an alienation by the widow is null

and void, and will not be binding on them after the

56 Kalippa v. Palani, 1953 S.C. 195. 57 Shula v. Mohan, 1987 S.C. 1072.

30

death of the widow. However, i t should be noted that

by such a declaration, the property does not revert to

the woman nor do the reversioners become entitled

to it. The alienee can still retain the property so long

as the widow is alive.

(3) They can, after the death of the woman or after the

termination of the estate, if earlier, file a suit for

declaration (or possession or both) that an alienation

made by the widow was improper and did not bind

them.58

The Supreme Court said that when a Hindu

female holder of woman’s estate makes improper

alienation, the reversioners are not bound to

institute a declaratory suit during the life time of the

female holder. After the death of the woman, they

can sue the alienee for possession of the estate,

treating the alienation as a nullity.

Section 14, Hindu Succession Act, 1956, has abolished woman’s

estate, yet reversioners are still relevant in respect of woman’s

estate alienated by her before June 17, 1956.59

The Hindu Woman’s Right to Property Act, 1937 which

has been repealed by the Hindu Succession Act, 1956, recognized

the three widows: viz., intestate’s widow, widow of a

predeceased son and the widow of a pre -deceased son of a pre -

deceased son as heirs of a Hindu male, though it gave them only

limited estate. It also gave these widows a share in the undivided

interest of a Mitakshara coparcener . The Act was not applicable

if the deceased had disposed of his property by will. It was also

not applicable to agricultural lands.

58 See Bijoy v. Drishna, (1907) 34 I.A. 87. where the alternative remedies of

reversioners are set

out. 59 Radha v. Hanuman, 1966 S.C. 216.

31

(e) The Hindu Women’s Right to Property Act, 1937

Its effect on law of succession.—In respect of separate

property of a Mitakshara Hindu and in respect of all properties

of a Dayabhaga Hindu, the Act introduced three widows, viz.,

intestate’s own widow, his son’s widow and his son’s widow as

heirs along with the son, grandson and great grandson, as also in

their default . The widow took a share equal to the share of a son

and, in default of the son took the entire property. If there were

more than one widow, al l of them together took one share. In the

case of the Mitakshara joint family property, the widow of a

deceased coparcener took the same interest in the property which

her deceased husband had in the joint family property at the time

of his death. In all cases, the widows took a woman’s estate in

the property.

For instance, if a Hindu dies leaving behind his separate

property and his own widow, son’s widow and grandson’s

widow, each of the widow will take 1/3 share in the property.

Or, take another example, P dies leaving behind two

widows, W1 and W

2 and two sons S

1 and S

2. He leaves behind

separate property, S1 and S

2 each will take 1/3 and W

1 and W

2

each will take 1/6 (both widows together taking one -third share).

The deceased coparcener’s interest taken by widow, after

her death, reverted to the heirs of the last male holder.60

Its effect on the Mitakshara coparcenary .—The Act

affected the Mitakshara coparcenary fundamentally and

introduced for reaching changes in its structure. Section 3(2) laid

down that in the joint family property, the widow of the deceased

coparcener would have “the same interest as he himself had”.

This was irrespective of the fact whether the deceased

coparcener left behind a son or not. This virtually means

60 Radha v. Hanuman, 1966 S.C. 216.

32

abrogation of the rule of survivorship. Section 3(3) gave her the

same right of claiming partition as a male owner.

These provisions led to some controversy among the High

Courts. The Supreme Court has now resolved the controversy.61

As to whether the interest of the widow arose by inheritance or

by survivorship or by statutory substitution, the Supreme Court

held that it came into existence by the statutory substitution.62

She was given the same power of partition as any coparcener

had, but thereby introduced into the coparcena ry, and between

the surviving coparceners of her husband and the widow so

introduced, there arises community of interest and unity of

possession. But the widow does not, on that account, become a

coparcener. Though invested with the same interest, which he r

husband had in the property, she did not acquire the right which

her husband had in the property, she did not acquire the right

which her husband could have exercised over the interest of the

other coparceners. Because of statutory substitution or her

interest in the coparcenary property in place of her husband, the

right which the other coparceners had under the Hindu law of the

Mitakshara school of taking that interest by the rule of

survivorship remains suspended so long as that estate endures.

But on the death of the coparcener there is no dissolution of the

coparcenary so as to carve out a defined interest in favour of the

widow in the coparcenary property.63

Since a widow took the same interest as her deceased

husband had, her interest was subject to all the incidents of

coparcenary interest. If she did not ask for partition, her interest

was subject to fluctuations, and, on her death, passed by

61 Bakshri Ram v. Brij Lal, 1995 S.C. 395.

62 Lakshmi v. Krishanvenamma, 1965 S.C. 825: Satrughan v. Sabjpuri, 1967 S.C. 272. 63 Satrughan’s case, 1967 S.C. 272; per Shah, J. at 275; Padmanabha v. Harsamoni,

(1972) 1 C.W.R. 775.

33

survivorship to other coparceners.64

An alienation made by the

Karta for legal necessity was binding on her share.

When she asks for partit ions, her husband’s interest should

be worked out having regard to the circumstances obtaining in

the family on the date of partition.65

Once she demanded

partition, severance of status took place irrespective of the fact

as to whether she got or did not get the possession of her share

of properties. If severance took place, the succession would be

traced to her husband on her demise, on the basis that the

property was his separate property.66

Shah, J. said that “to

assume that the right of the coparceners to take her interest on

determination of the widow’s interest survives even after the

interest has become definite, because of a claim of partition, is

to denude the right to claim partition of all reality.”67

The woman’s esta te has now been converted into stridhan

by S. 14, Hindu Succession Act, 1956. Any property that a Hindu

female will get after June 17, 1956, will be her absolute property

unless specifically given to her with limitation.68

The woman’s

estate over which she has possession when the Act came into

force (June 17, 1956) is converted into her absolute estate. The

old Hindu law of woman’s estate and reversioners is stil l

relevant in respect of property over which she had no possession

when the Act came into force.

(f) Section 14, Hindu Succession Act, 1956.

Sub-section (1) of S. 14 of the Hindu succession Act runs

as under:

64 Laxmi v. Krishnavenamma, 1965 S.C. 825: D.P. Raj v. Rameshwar, 1971 Raj. 269;

Fatimanisa v. Tamirsa, 1977 A.P. 24. 65 Parappagari v. Parappagari, 1954 Mad. Per Subha Rao, J; see also Laxmi’s case,

1965 S.C. 825 (most of the decisions of the High Courts have been referred to). 66 See Parappagari’s case, Laxmi’s case and Satrughan’s case referred to in the

preceding footnote and in footnote 44. 67 Satrughan’s case, at 175. 68 See sub-section (2) Section 14, Hindu Succession Act, 1956.

34

“Any property possessed by a female Hindu, whether

acquired before or after the commencement of this Act,

shall be held by her as full owner thereof and not as a

limited owner.”

Explanation to Section 14 explains the meaning of the term

‘property’ in this context. The explanation runs as follows:

“In this sub-section ‘property’ includes both movable and

immovable property acquired by a fema le Hindu by

inheritance or devise, or at a partition or in lieu of

maintenance or arrears of maintenance, or by gift from any

person, whether a relative or not, before, at or after her

marriage, or by her own skill or exertion, or by purchase

or by prescription or in any other manner whatsoever, and

also any such property held by her as stridhan immediately

before the commencement of this Act.”

It may be seen that the above definition of property

includes all the heads of Vijnaneshwar’s enumeration of

property.

Sub-Section (2) of S. 14 retains the power of any person or

court to give limited estate to a woman in the same manner as a

limited estate may be given to any other person. [See infra,

under the head, Property given with Limitations, S. 14(2)].

Under S. 14(1), any property acquired by a Hindu female,

except that which is covered by sub-section (2), before the Act

came into force and which is in her possession when the Act

came into force will become her absolute property, and the

property acquired by a Hindu female, except that which is

covered by sub-section (2), after the commencement of the Act,

will be her absolute property. Once her limited estate becomes

35

her full estate by virtue of S. 14, a Hindu female can alienate it

by gift or otherwise.69

In Jose v. Ramakrishnan Nair,70

it has been observed that

expression “female Hindu” and “any property” would mean a

daughter also. Therefore, limited interest of daughter in the

property would also get enlarged to full right after coming in

force of this section.

(g) (i) Pre-Act woman’s estate

Section 14 has been given retrospective effect.71

I t

converts existing woman’s estate into stridhan or absolute estate.

Two conditions are necessary: (a) ownership of property must

vest in her, and (b) she must be in possession of the estate when

the Act came into force.72

But she has no right in her deceased

husband’s property, except the right of maintenance that property

cannot become her absolute property.73

She must be owner of the property.—It is well settled that

if a Hindu female has no title to the property, she will not

become its absolute owner, even though she is in its possession.74

The Supreme Court said: “The word ‘Possessed’ in S. 14 is used

in broad sense and in the context means the state of ownin g or

having in one’s hand or power.”75

Thus, if a female cannot claim

any tit le to the property, then merely by virtue of her possession,

she cannot become its absolute owner. For instance, a Hindu

female, having a right of maintenance against the joint fam ily

property, is in possession of some items of joint family property

(property having not been given to her in lieu of maintenance),

69 Mahabir v. Shashi Bhushan, 1981 cal. 74; Dalip Singh v. Jaisi Ram, 1981 49. 70 AIR 2004 Ker. 16. 71 Jamunabai v. Bholaram. AIR 2003 M.P. 40. 72 See Deendayal v. Raju Ram, 1970 S.C. 1019; per Hegde, j. 73 Suraj Mal v. Babu Lal, 1985 Del. 95 ; A. Venkataraman v. S. Rajalakshmi, 1985

Mad. 248. 74 Krishna v. Akhil, 1958 cal. 671; Harak Singh v. Kailash, 1958 pat. 581 (F.B.); Amar

Singh v. Sewa Ram, 1960 Punj. 530 (F.B.); Rajkumar v. Sardarni, 1972 P. & H, 438

(meaning of ‘acquired’ explained); Raoraja v. Hastimal, 1972 Raj. 191. 75 Gummalappura v. Setra, 1959 S.C. 577; Eramma v. Veeruppa, 1966 S.C. 1879;

Annapurna v. Kalpana, 1972 Gauhati 107.

36

she cannot claim to become the absolute owner of it by virtue of

S. 14.76

The property possessed by a female Hindu, as

contemplated in the section, is clearly the property to which she

has acquired some kind of title whether before or after the

commencement of the Act. Section 14 does not in any way confer

a title on the female Hindu where she did not, in fact, possess

any. Thus, S. 14 cannot be interpreted so as to validate the

il legal possession of a female Hindu, nor does it confer any title

on a mere trespasser.77

Interest acquired under the Act of 1937.—When a

Mitakshara coparcener’s widow acquired the interest of her

deceased husband under the Act of 1937 and she had not

exercised her right to partit ion, does this interest become her

absolute estate by virtue of S. 14(1), Hindu Succession Act,

1956? in Suharam v. Gauri Sankar,78

in 1952, a widow took the

interest of her deceased husband who was a coparcener with his

brother. In December, 1956, she sold a portion of the joint

family property. Shah, J., observed, that “undoubtedly the

coparcener’s powers of alienating his interest in that property by

virtue of the Hindu Succession Act is not subject to any such

restrictions.” His Lordship further said that interest acquired by

a widow under S. 3(3) of the Act of 1937 was indisputably her

property within the meaning of S. 14 of the Act of 1956, and by

virtue of the latter provision she became its full owner. Again,

the question came before the Supreme Court in Badri Prasad v.

Kanso Devi,79

wherein a partition had taken place between the

parties and the widow was allotted her share of properties. She

took a limited estate. Since the partition was embodied in a

decree of the court, the main argument before the court was that

sub-section (2) of S. 14 of the Hindu Succession Act applied and,

76 Bindroo v. Munshi, 1971 J. & K 142. 77 Eramma v. Verrupana, 1966 S.C. 1879. 78 1968 S.C. 365. 79 1970 S. C. 1963.

37

therefore, her estate did not become her absolute property. It was

held that her estate became absolute by virtue of sub-section (1)

of S. 14, and the sub-section (2) did not apply.80

In Soltappa v.

Meenakshi,81

it was held that as the interest obtained under S.

3(2) of the Act of 1937 becomes her absolute property, it will

pass, on her death, to her heirs, even if partition has not taken

place.82

Woman’s estate and Widow Remarriage Act, 1856. —

Section 2 of the Hindu Widow’s Remarriage Act, 1856 provides

that the rights and interests in certain properties which a widow

get from her husband as limited estate, shall cease upon her

remarriage and shall devolve as if she had died. Does this

property also become her absolute property? And if so, will her

remarriage afterwards lead to its forfeiture? The Rajasthan High

Court in Bhuri Bai v. Champi Bai ,83

held that her estate even as

referred to in S. 2 of Hindu Widow’s Remarriage Act, 1856,

becomes her full estate by virtue of S. 14, Hindu Succession Act,

1956. The court held that even if there is some in consistency

between the provisions of two enactments, the Act of 1956 will

have overriding effect. The court further held that if she

remarried after coming into force of the Act of 1956, she will

incur no disqualification and her estate cannot be forfeited as

contemplated by S. 2 of the Act of 1856.84

The Madras High

Court observed that on the date of the commencement of the

Hindu Succession Act, a Hindu female is in possession of any

property as a limited owner, the estate would be converted into

full ownership. There in nothing in S. 14(2) or any other sect ion

80 See also Nirmal v. Vidhya, (1963) 3 S.C.C. 628; Punithavall v. Ramalingam, (1970)

S.C.C. 570; Rajendra v. Shivanath, 1971 All 448; Bapusahab v. Gangabai, 1972

Bom. 16. 81 (1970) 1 M.L.J. 383; see also Maichiah v. Panavva, 1973 Mys. 1. 82 M.V. Chocklingam v. Alamelu Ammal, 1982 Mad. 29. 83 1968 Raj. 139. 84 The same vie was taken in Salunke v. Sindhu, 1971 Bom. 413; Jagdish v.

Mohammand, 1973 Pat. 170; Annapurna v. Kolda, 1972 Gau. 170; Piari v. Board of

Revenue, 1972 All. 492; Sankaribala v. Asita, 1977 Cal. 289; Chando Mohtain v.

Khublal, 1983 Pat. 33.

38

to qualify the absolute ownership or lead to forfeiture of the

estate on her remarriage. Section 4(1) (a), Hindu Succession Act,

1956, makes it clear that ‘any other law in force immediately

before the commencement of the Act shall cease to apply to

Hindus in so far as it is inconsistent with any of the provisions

contained in this Act’. Since S. 2, Hindu Widow’s Remarriage

Act, 1856 is in conflict with S. 14(1 ) Hindu Succession Act, it

will not prevail .85

The Supreme Court in Punithavalli v.

Ramalingam,86

held that the right conferred by S. 14(1) on a

Hindu female constitutes a clear departure from Hindu law, texts

or rules, and that it is clear that the estate taken by Hindu

female under it is an absolute one and is not defeasible under any

circumstances. However, in Velamure Venkata Sivaprasad v.

Kothuri Venkateswarlu ,87

it has been held that where a Hindu

widow had married prior to 1956 and her limited estate was

divested, such estate shall not convert into full estate after the

coming into force of the Act of 1956. That has been held so in

spite of the fact that such marriage was declared void under

Madras Hindu Bigamy Prevention Divorce Act, 1949.

The property must be in her possession.—The section

condition for the applicability of S. 14(1) is that when the Act

came into force, the Hindu female must be in possession of the

property. In a series of cases the High Courts and the Supreme

Court have held that both the expressions, ‘property’ and

‘possession’ are to be given widest possible interpretation. In

Dwarkadas v. Sholapur Spinning and Weaving Co.,88

(a case

under the Constitution of India) the Supreme Court observed that

the expression ‘property’ must be construed in the widest sense

as connoting a bundle of rights exercisable by the owner in

respect thereof and embracing within its purview both corporeal

85 Chinnappa v. Meenakshi, 1971 Mad. 453. 86 1970 S.C. 1730; See also Sulochana v. Kheli, 1987 Ori. 11. 87 2000 SC. 434. 88 1954 S.C. 119.

39

and incorporeal rights. In the absence of a restrictive definition

in the relevant statute, it is not proper to restrict its scope and

comprehensiveness. It is in this sense that the term ‘propert y’

has been interpreted under S. 14(1) of the Hindu Succession

Act.89

The words used S. 14(1) is “any property possessed by a

female Hindu” and it does not say that possession must be actual

or physical. Thus, the term ‘possession’ has very wide

connotation. It includes actual as well as constructive

possession. Even when she is entitled to the possession of

property, such as when the property is in the possession of a

trespasser, it has been held that she is in its constructive

possession.90

Similarly, if the property is in the actual possession

of a mortgagee, lessee or licensee, the female has the

constructive possession. In the broader sense, the term

‘possession’ is co -extensive with the ownership.91

Thus,

whenever the woman has the ownership of property vested in hre,

she will be deemed to be in its possession, and if the ownership

does not vest in her, even if she is in actual or physical

possession, she will not be deemed to be in its possession within

the meaning of the section.92

In Mangla’s case,93

a Hindu widow,

who had entered into possession of land belonging to her

deceased husband in 1917 and had been illegally dispossessed by

the collaterals of her husband in 1954, brought a suit for

possession. During the pendency of the suit , the Hindu

Succession Act, 1956, came into force, and subsequently in 1958

the widow died and her legal representative was possessed by the

widow when she died in 1958, her legal representative must be

89 See also Munnalal v. Raj Kumar, 1962 S.C. 1493; Seth Bodri v.Kansa, (1969) 2

S.C.C. 586; Ram Sarup v. Patto, 1981 P. & H. 68. 90 Mangal v. Rattno, 1967 S.C. 1786; Madhab v. Joahab, 1976 Gau. 10; Mahesh v. Raj

Kumari, 1996 S.C. 869. 91 Kotturswami v. Vieravva, (1956) S.C.J. 437; Vijai Pal v. Dal. Consolidation, 1996

S.C. 146. 92 Eramma v. Verupanna, 1966; Mangal Singh v. Rattno, 1967 S.C. 1786; Naraini v.

Ramo, , 1976 S.C. 2198. 93 AIR 1967 S.C. 1786.

40

deemed to have succeeded to those rights.94

But if her possession

over the property is that of a trespasser, or of a licensee, she

cannot be said to be in possession of property.95

Her possession

must be legal. It is immaterial that she acquired the possession

by inheritances, devise or partit ion.96

Explanation to S. 14(10 has

expanded the notion of ownership and includes all types of

property acquired by any method it mentions.97

However, it was held in Gulabrao Balwantrao Shinde v.

Chhabubai Balwantrao Shinde, that though the widow was in

possession of ancestral property but whe re pleadings to the

effect that it was given to her in lieu of maintenance were

absent, such mere possession would not enlarge the property into

full estate.98

Enlargement of Limited interest.—When a widow holds an

estate as an heir of her husband, on the coming into force of the

Act, i t becomes her absolute property.99

If the property is not in possession when the Act came into

force.—A Hindu female has no possession over the property

when the Act came into force, does that property retain the

character of woman’s estate or does that also become absolute

estate: for instance, a Hindu died in 1940 leaving behind his

widow W and a brother B. W succeeded to the property and took

a limited estate. B was then the presumptive reversioner. W sold

the properties in 1950 to A. In 1954, B brought a suit against A

for a declaration that alienation was invalid. When the suit was

pending before the court, the Hindu Succession Act, 1956 came

into force. There may be yet another situation, suppose B did not

file the suit in 1954, but he filed it in 1960, when the widow had

94 See also Bhushan v. Suresh, AIR 1987 All. 25. 95 Dindayal v. Rajaram, AIR 1970 S.C. 1019; Ram Pakhi v. Amar Singh , 1983 P. & H.

156; Sumer Chand v. Sardha Ram, AIR 1991 P. & H. 103. 96 Dharmawati v. Shivsingh, 1991 M.P. 18. 97 Tulsamma v. Shesha, AIR 1977 S.C. 1944: Ram Chandra v. Savitri, 1978 Bom 212. 98 AIR 160. 99 Brajabanjhu v. Lubarani, 1996 Ori 50.

41

died. In both the cases the question is : has B, as reversioner, a

right to file the suit under the old law ? Or, can B file a suit after

the coming into force of the Act?

Before the Supreme Court decision in Radha v.

Hanuman,100

there was an acute controversy among the High

Courts. The Allahabad High Court and some other High Courts101

took a view which was attractive for its utter simplicity. It was

said that S. 14 has been given a retrospective effect with the

result that after 17-6-56, there was nothing like women’s estate,

and there is nothing like reversioner after that date. Accordingly,

the answer to both the questions was given in the negative;

neither the 1956 suit could be continued nor could a fres h suit be

filed after 1956. In its actual application this view benefited the

alienee and not the Hindu female.

The other High Courts took a different view and it is this

view which has been confirmed by the Supreme Court is Radha.

This basis assumption underlying S. 14 is that the provision is

meant to confer a benefit on the Hindu female and not on the

alienee.102

Keeping this in view, the word ‘possessed’ was

deliberately used in S. 14(1). Only that woman’s estate stands

transformed into stridhan over which the Hindu female has

possession when the Act came into force. If S. 14 does not apply,

then the old Hindu law continues to apply. Thus, the answer to

both our questions will be in the affirmative: a suit filed before

17.6.56 can be continued and a fresh suit can be filed after

17.6.56. The present position is:

(1) Section 14 has qualified retrospective application: it

converts only those women’s estates into full estates

over which she has possession (possession is used in

100 AIR 1966 S.C. 216. 101 Hanuman v. Lidrawati, AIR 1958 All. 304: Misser v. Raghunath, AIR 1957 Pat. 480. 102 Amar Singh v. Sewa Ram. 1960 P.& H. 530: Ananth v. Chanchala, 1976 Cal. 303;

Parmeshwari v. Santokhi, AIR 1977 P.&H. 141 (F.B.) Also see Nallan Alias

Karimuthan v. Veiloiyankndym, 2001 Mad 6.

42

the widest possible sense, includ ing actual and

constructive possession) when the Act came into

force.

(2) Section 14 does not apply to those women’s estates

over which a Hindu female has no possession when

the Act came into force; in such case the old Hindu

law continues to apply.

In a case where a Hindu female alienates, the properties

before that Act came into force, bu t the alienation is held invalid

consequent to which the possession is reconveyed to her, then S.

14(1) will apply and the property will become stridhan.103

Who are reversioners after 17.6.56 .—The question that

arises is: where the reversioners have a right to file a suit , under

which law are they to be reckoned with, under the old Hindu law

of succession or under the new law i.e., Hindu Success ion Act.

the Patna, Madras and Orissa High Courts104

subscribe to the

should continue to be governed by the old law. The Andhra

Pradesh, Himachal Pradesh, Madras and the Punjab High Courts

subscribe to the latter view.105

Mahajan, J. of the Punjab High

Court held that it is well settled tha t the law prevailing at the

date of succession governs the succession. The settled rule of

Hindu law, prior to the Hindu Succession Act, was that wherever

a widow succeeded to the property, she succeeded as

representing her husband and the husband was deem ed to die

when the widow died. In other words, succession opened on the

death of the widow and the heir to the husband succeeded to the

property left by the limited owner according to the law as it

stood when the succession opened. It is submitted that thi s is a

103 Chinna Kolandi v. Thanji, 1965 Mad. 497; Teja Singh v. Jagat, 1964 Punjab 493; Bai

Champa v. Chandrakant, 1973 Guj. 227; right of ownership in the property. 104 Karuppudayar v. Periathambi, 1966 Mad. 165; Chattererbhuj v. Sarbeshwar, AIR

1967 Pat. 138; Jandevi v. Upendra,|AIR 1968 Ori. 187. 105 Ramula v. Venkanna, AIR 1965 A.P. 466; Harbhaj v. Mohan, 1967 Punjab 184;

Satyanarayan v. Sethamma,AIR 1972 Mys. 247; Lachman v. Thannia,AIR 1972 H.P.

62 (F.B.); Ratan KUmari v. Sundar, AIR 1959 Cal. 787; Anthony v. Pethi, (1974) II

M.L.J. 19.

43

practical view and will work well in most situations. This view

has been approved by the Supreme Court.106

(ii) Post-Act Women’s Property

Any property that a Hindu female acquires after the

coming into force of the Act will be her absolute propert y unless

given to her with limitations. Thus, property obtained on

succession or on partition is now her absolute property.107

Sub-

section (2) of S. 14, Hindu Succession Act, 1956 lays down the

limitations. The sub-section runs : “Nothing contained in sub -

section (1) shall apply to any property acquired by way of gift or

under a will or any other instrument or under a decree or order of

civil court or under an award where the terms of the gift , will or

other instrument or the decree, order or award prescribe a

restricted estate in such property”. This sub -section enacts a well

established principle of law, viz., if grant is given subject to

some restrictions, the grantee will take the grant subject to t hose

restrictions. Section 14(2) lays down that if the gif t will or any

instrument, decree or order of a civil court or award grants only

a restricted estate to a Hindu female, she will take property

accordingly. In the absence of such an intention, the woman’s

grant will be her absolute property. The object of S . 14 is to

remove the disability of Hindu woman and not to interfere with

contracts, etc. Sub-section (2) is based on the principle of

sanctity of contracts and grants.108

In Sumeshar v. Swami109

The

Patna High Court, explaining the distinction between sub -section

(1) and sub-section (2) of S. 14, held : “If the acquisition of the

property by a female Hindu can be related to her antecedent right

106 Daya Singh v. Shan Kaur, AIR 1974 S.C. 665; Tulsamma v. Sesha, AIR 1977 S.C.

1944, (Naraini v. Ramarao, AIR 1970 S.C. 2198 overruled); See also Baija v.

Gopikabai, 1978 S.C. 973; Munnusamy v. Rajambal, 1977 Mad. 228; Atva v.

Gajjeta, 1995 AP 166; Bashi v. Brij Lal, 1995 S.C. 395. 107 Panchi v. Cumaran, 1982 Ker. 137. 108 Veddeboyina v. Veddeboyina, 1977 S.C. 1944 (entire case law has been reviewed);

See also Champa v. Madho, 1981 Pat 103. 109 1970 Pat. 348.

44

or interest in the property, such an acquisition, although as a

limited owner or an acquisitions of property in a lim ited sense,

will confer absolute ownership on the widow on and from the day

of coming into force of the Act. If, however, acquisition of

property cannot have any connection or relation to any of the

antecedent right or interest in the property of the femal e Hindu

and the acquisition is conditioned by a restrictive clause, she

will not become absolute owner but will be governed by the

restrictive clauses mentioned in the gift, will , instrument, decree

or order of a civil court or an award.” The Supreme Court also

takes this view.110

Therefore, property given by Will as limited

estate and in lieu of maintenance would not enlarge into full

estate.111

Property given in lieu of maintenance :—The Karta can

grant some property to a member of the family for his or her

maintenance. He has the power to grant absolutely some property

to a female in the satisfaction of her claim of maintenance. A

Hindu female can also be granted property for hr maintenance

under a family arrangement, or under a partition. “The right of a

Hindu widow to get maintenance out of the joint family property

is an indefinite right, yet it is a right and she does not get

maintenance gratis or by way of charity. She gets it is her right

under Hindu law. Where property was given to the woman by

way of maintenance over which she had a right, her possession

was accepted, it becomes her absolute property.112

If she is put in

possession of certain properties in satisfaction of that right for

her life, she is not a trespasser of property.113

If there are some

restrictive clauses in the instrument conferring limited right on

her, by virtue of Section 14(1), she becomes its absolute

110 Badri v. Kanso, 1970 S.C. 1963m See also Jaswanit kaur v. Harpal, 1977 p. & H.

341 (F.B.), Jinappa v. Kallavva, 1983 Kant, 67. 111 Sarad Subramanyan v. Sumi Mazumdar, 2006 SC 1993. 112 Santosh v. Saras Wathibai, 2008 S.C.500. 113 Sumeshwar v. Swami, 1970 Pat. 348.

45

owner.114

The Supreme Court has confirmed this view.115

in

Palchuri Henumayyayya v. Tadikamalla Kotlingam,116

the testator

had settled property on his wife in lieu of her maintenance. The

recital in the will stated that the wife shall enjoy all his

properties til l death and after her death the property be divided

between his daughters. It was held by the Supreme Court that

will did not create any right in the daughters and it was in lieu of

wife’s right to maintenance, hence it would enlarge into her

absolute property by virtue of Section 14(1). In Chinnappa v.

Valliammal,117

the question came in a different form before the

Madras High Court. A father-in-law gave some properties for the

maintenance of his widowed daughter -in-law gave some

properties for the maintenance of his widowed daughter -in-law,

under a maintenance deed. Subsequently in 1960 he died. Since

he died leaving behind the daughter -in-law, his interest devolved

by succession. The daughter-in-law sued for partition so as to get

her share of inheritance. Other members said that she could get

her share only if she agreed to include the properties given to her

for maintenance in the suit p roperties. The court held that she

need not surrender the properties held by her under the

maintenance deed. It is submitted that the judgment is correct.

She claimed her inheritance and her claim of maintenance was a

separate question.

In Suba v. Gauranga,118

a Hindu female was given a life

estate in lieu of maintenance under a family arrangement. The

instrument of family arrangement specifically gave her a limited

114 See also Binbasi v. Sheorati, 1971 Pat. 108; Channamma v. Lingamma, 1972 Mys.

333; Kempara v. Shantarajah, 1973 Mys. 55; Muttu v. CHokku, 1976 Mad. 8;

Padma v. Dosaundhi, 1986 P.&H. 155; ; Jasjit v. Charanjeet Kaur, 1995 P.& H. 177;

Lal Chand v. Kali Bai, 2004 P.& H. 173. 115 Santharam v. Subramanya, 1977 S.C. 2024l Tulsamma v. Sesha, 1977 S.C. 1944;

Krishna Das v. Venkayya, 1978 S.C. 361; Vijya v. Thakkarbhai, 1979 S.C. 993; See

also Tirath Kaur v. Manmohan Singh, 1981 P. & H. 1974; Angammel v. Ramalinga,

1992 Mad. 246; Lallappa v. Shirappa, 1995 Kant 238. 116 2001 SC 3062; 2006 Kant. 85 2007 M.P. 72. 117 1969 Mad. 187. 118 1971 Ori. 242.

46

estate. The court held that the case came under sub -section (2) of

S. 14, and therefore her l imited estate would not be converted

into an absolute estate by virtue of S. 14(1). In Kunji v.

Meenakshi,119

under an agreement the widowed daughter -in-law

took a share in the estate of her father -in-law, not as a woman’s

estate but as an estate for life wi th a vested remainder in favour

of others, and there was no evidence to show that she took these

properties for her maintenance. The court said that the case fell

under S. 14(2). But where a settlement deed was executed by the

father-in-law of the widow in lieu of her maintenance and who

had succeeded to the properties of her deceased husband, such

property would enlarge into her full estate.120

It is submitted that the difficulty arises on account of the

use of the words in the Explanation: “Property includes the

property acquired by a female Hindu in lieu of maintenance or

arrears of maintenance”. Under the old law, ordinarily, she stood

such property as a limited holder, unless it was specifically

given to her absolutely. It is submitted that the test evo lved by

the Patna High Court in Sumeshwar should apply. If the female

has no right or interest in the property prior to the grant, she will

take it is accordance with the grant, but if she had an interest or

right in the property prior to the grant and gra nt merely

embodies that interest, S. 14(1) will make that grant an abso lute

estate. The Supreme Court has also pronounced this

proposition.121

Where in a partition the brother’s mother was

allowed to reside in the house for life time. This will not convert

the house into her absolute estate.122

If a Hindu female is in

possession of properties other than as a limited owner, her estate

cannot become full estate after the coming into force of the

119 1970 Ker. 284. 120 V. Muthuswami v. Angammal, 2002 S.C. 1279. 121 Sellammal v. Nellammal, 1977 S.C. 1265; Nazar Singh v. Jagjit, 1996 S.C. 855. 122 Chinnammal v. Kannaji, 1989 Mad. 185; Chandriah v. Chandraih, 1992 Kant 153.

47

Hindu Succession Act.123

Where no property is given in lieu of

maintenance and only a sum of money is given, and then

section14 does not apply.124

If she has only a charge on the

property, that property does not get converted into her full

estate.125

Under an award or decree.—Under what circumstances

will the Hindu female’s es tate acquired by her under a decree or

award, be converted into full estate, and in what circumstances

will it not? In Seth Badri v. Kanso,126

where in a partition under

an award which was subsequently embodied in a decree, certain

properties were allotted to a Hindu female as her share, the

Supreme Court said that S. 14(2) did not apply. Their Lordships

said S. 14 should be read as a whole. It would depend on the

facts of each case whether the same is covered by sub-section (1)

or sub-section (2). These crucial words in sub-section are

‘possessed’ and ‘acquired’. The former has been used in the

widest possible sense and in the context of S. 14(1), it means the

state of owning or having in one’s hand or power. Similarly, the

word ‘acquired’ has also to be given widest possible meaning.127

The Supreme Court was of the view that a share obtained by a

Hindu female in a partit ion is a type of property falling under S.

14(1) even though her share is described as a limited estate in

the decree or award. The Supreme Court took the same view

earlier in Munna Lal v. Raj Mumar, where a share was declared

in favour of a Hindu female by a preliminary decree passed in a

partition suit before 17-6-56. Explaining the context of S. 14(2),

Palekar, J. of the Bombay High Court said that sub-section (2) of

S. 14 covers those cases of grants where the interest in the

grantee is created by the grant i tself, i .e., where the gift , will,

123 Thayyammal v. Salammal, 1972 Mad. 83; See also Santharam v. Subramania, 1972

Mad. 279. (under a compromise decree); Subba Naidu v. Rajammal, 1977 Mad. 64. 124 Sulabha v. Abhimanyu, AIR 1983 Ori. 71. 125 (1972) 2 S.C.C. AIR 586. 126 This is in accordance with the language of the Explanation to S. 14. 127 AIR 1962 S.C. 1493.

48

instrument, decree, order or award is the source or origin of the

interest created, in the grantee.128

But if the grant is not the

source of the interest created, but merely declaratory or

definitive of the right to property antecedently enjoyed by the

Hindu female S. 14(2) has no application, whatever be the

limitations contained in the grant.129

The decree contemplated by

S. 14(2) appears to be a decree finally adjudicating the merely a

declaratory decree.130

Under an agreement or compromise .—The same test will

be applicable when a Hindu female acquires the property under

an agreement or compromise. This disti nction is clearly brought

out by Mahadeo v. Bansraj131

and Laxmi v. Sukhvedi.132

In the

former case, a widow inherited some properties f rom her

husband. Subsequently, she entered into a compromise with some

reversioners that she would hold the estate as limite d owner and

would not cut the trees on the land. After the Hindu Succession

Act came into force, the widow started constructing a house and

cutting the trees. The reversioners brought a suit to prevent her

from doing so. It was contended on behalf of the r eversioners

that the case fell under S. 14(2). The court said that the

compromise acknowledged what was laid down in law, and

therefore, it cannot undo the effect of S. 14(1) which converts

her woman’s estate into full estate as she did not acquire any

right under the compromise.133

In the latter case a Hindu widow,

having no right to any share in the property, except her right of

maintenance and residence, was allotted some property for her

128 Bapusaheb v. Gangabai, AIR 1972 Bom. 16. 129 See also Pattabiraman v. Parijathan, 1970 Mad. 257; Saraswati v. Anantha, 1966

Ker. 66; Ude Chand v. Raja, 1966 Punj. 329; Lachhia v. Ram Shanker, 1966 Pat.

191. 130 Rampali v. Chando, 1966 All, 584; see also Patinramma v. Krishan, 1961 Ker. 247;

Venkamma v. Venkatareddi, 1959 A.P. 158; Annapuranama v. Bhima, 1960 A.P.

359; Janak v. Distt. Judge, Kanpur, 1961 All. 294; Uddav v. Gahgawane, 1968 Bom.

308 (a decree in a partition suit); Chhajju v. Bhuri, 1969 Delhi 273. 131 AIR 1971 All. 515. 132 AIR 1970 Raj 285. 133 See also Vaddeboyina v. Vaddeboyina, AIR 1977 S.C. 1944.

49

residence and maintenance during her life time under an

agreement. The agreement specifically prohibited her from

alienating properties during her life time. She was in possession

of properties when the Act came into force. It was held that her

case was covered under Sec. 14(2) and not under Sec. 14(1).

In Smt. Himi v. Smt. Hira Devi ,134

equal share was

granted to a stepmother and a stepdaughter. Under a compromise

decree between the two, the stepmother recognized the ownership

of the stepdaughter and was allowed to retain the possession of

the entire property during her li fe time. Since her right was not

in lieu of any pre-existing right, she did not become absolute

owner of the stepdaughter’s share.

A widow was allowed a share in her husband’s property

under compromise. On a subsequent compromise decree, her

rights were not secured. On her death, her daughter could get

into claim to represent her.135

Under a will.— The question whether a limited estate

conferred under a will becomes a full estate by virtue of S.

14(1), came for consideration before the Supreme Court in Karmi

v. Amru.136

A Hindu, under a registered will , conferred a life

estate on his wife Nihali , with the direction that after the death

of Nihali , the properties would devolve on Bhagtu and Amru,

two of his collaterals. Nihali took possession of the properties

and died in 1960. On her death, her heir claimed properties on

the assertion that after the coming into force of the Hindu

Succession Act, Nihali’s life estate became her full estate. It was

held that where only life estate is conferred under a will , S.

14(2) will apply, and the estate will not become full estate.137

Where husband given a life interest in his self acquired property

134 1977 SC 83. 135 Rajeshwari Pd. V. Shashi Bhushan, AIR 1996 S.C. 481. 136 191 S.C. 745. 137 See also Appasami v. Sarangapani, 1978 S.C. 1051; Poosarla v. Union of India,

1977 A.P. 237; Kashiram v. Bhura, 1981 M.P. 236; Chanan Singh v. Balwant

Kaur, 1984 P.& H. 203; K.S. Subramani v. E.S.R. Packrisami, 1989 Mad. 69.

50

by a way of will, she does not become absolute owner of the

same.138

But if a will confers on her full estate, she will take

absolutely.139

Where under a settlement properties were given to the

widow which were to revert to the settler or his brother on her

death, do not get enlarged into full estate.140

When a female Hindu sells her property, the right of pre -

emption is available. Under the Punjab Pre-emption law, the

persons who are entitled to pre -emption are those mentioned in

S. 15(1), Punjab Pre-emption Act, 1913-1964.141

Dowry .—Dowry and traditional presents made to the wife

at the time of the marriage constitute her Stridhan,142

and if the

husband or her in-laws refuse to give it back to her, on her

demand, they would be guilty of criminal breach of trust.143

Similarly, if any item of stridhan is entrusted to them at the time

of the marriage or thereafter and if they r efuse to give it to her

on demand, they would be guilty of criminal breach of trust

under Section 405, Indian Penal Code.144

Succession.—A Hindu female succeeding to the property

takes it absolutely.145

Hindu widow’s right to property.—There was

entrustment of suit property to wife by husband after its purchase

towards maintenance prior to the enforcement of the Act by way

of family settlement. Subsequent possession and enjoyment by

her after the death of the husband was corroborated by oral and

138 T.K. Shubhash v. Kamla Bai, 2008 A>P. 169. 139 Lalit Mohan v. Profulla, 1982 Cal. 52; Bholla Ram v. Madan Lal, 2000 P.& H. 55. 140 K. Satyanarayan v. G. Sithayya, 1987 S.C. 353; Bhura v. Kashiram, 1994 SC 1202;

Valluri v. Kapparthi, 1994 AP 284. 141 Prithipal v. Milkha Singh, 1976 P. & H. 157 (F.B.). 142 Vinod Kumar v. State of Punjab, 1982 P.& H. 372 (B.B.). 143 Pratibha Rani v. Suraj Kumar, 1985 S.C. 628; overruling Vinod Kumar v. State,

1982 P.&H. 373. 144 Ibid. 145 Monomoyee v. Upeswari, AIR 1994 Gau 18.

51

documentary evidence. Sui t properties had been for both

agricultural purpose and for running a cinema theatre. She

should have pre-existing right in property and, as such, after

coming into force of the Hindu Succession Act, she would

become full or absolute owner of that property .146

After the widow becomes the absolute owner, subsequent

remarriage would not divest her.147

F. Dowry and Wedding Presents

The wedding presents by parents, relatives, friends and

close acquittances at or about the time of marriage do not come

in the definition of dowry, unless there were demanded or agreed

to be given in connection with the marriage. Voluntary and

affectionate presents are not caught in the definition of dowry

and giving and taking them do not constitute dowry offence. The

Joint Committee also recommended that i t is neither desirable to

put a complete ban on these presents nor does it seem reasonable

to prescribe a standard ceiling thereon for different sections of

the society for the reasons that it would be neither possible to

implement it nor would it be acceptable to the society.

G. Application of Dowry Prohibition Act to all

communities

The evil of dowry may be rampant among Hindus, but it

does not mean that it does not exist among others. The Joint

Committee of both the Houses of Parliament has observed : “It is

equally prevalent among the Muslims and Christians. Among the

Muslims in many parts, there is a custom of giving cash to the

bridegroom (popularly known as salami). The Christians of

Mangalore follow their pre-conversion custom of Kanyadaan.

146 Pappayammal v. Palanisamy, AIR 2005 Mad. 431. 147 Cherotte Sugathan v. Cherotte Bharathe, AIR 2008 S.C. 1467.

52

H. Dowry Subsequent to Marriage

The Joint Committee observed that dowry is not one

isolated payment initially made at the time of marriage but a

series of gifts given over a period of time before and after the

marriage. There is no disputing the statement of the Committee,

but the real difficulty arises as to how to make a distinction

between genuine gifts and extorted gifts between what is

voluntarily given and what is not given voluntarily. It is true

that in some cases, even after the marriage demands for dowry

are continuously made on the father of the girl , and when they

are not met, cruelty and harassment is purported on the girl , and

when they are not met, cruelty and harassment is purported on

the girl , to force her present to meet the demand and it is this

which results in worst, wife battering and dowry death too.

I. Dowry offences are to be non-bailable and non-

compoundable

There has been a strong public opinion in favour of making

dowry offences as cognizable offences. The Joint Parliamentary

Committee observed:

“The committee feels that they are in favour of the

offences under the Act, being made cognizable, but there

is an apprehension that it may lead to some harassment,

particularly at the time of the so lemnization of marriage,

as the police will have power to make arrest without

warrant is such cases. The Committee are, therefore, of the

opinion that in order to ensure that no harassment is

caused to the parties involved, the offence should be made

cognizable subject to the condition that no arrest shall be

made by the police without a warrant or an order of the

magistrate.”

53

The Committee was in favour of making the offence

compoundable.

Dowry offences are not cognizable; they are cognizable for

the purpose of investigation.148

This is a welcome provision,

since in the case of non-cognizable offences the police make the

investigation only when a complaint is lodged. Now the police

have the freedom to make investigation of its own, and if it

comes to the conclusion that an offence has been committed, it

can approach the court. The Act lays down that no person

accused of dowry offence can be arrested without a warrant or

without an order of the Magistrate of the First Class.149

The dowry offences are non-compoundable offences. This

means once a case goes to the court, the parties are not free to

compromise.150

The offences relating to dowry are non-bailable.151

An agreement for giving or taking dowry is void, i .e. , it

cannot be enforced in a court of law.152

(a) Trial of dowry offences

The Dowry Prohibition Act gives jurisdiction to try dowry

offences only to the Metropolitan or the Magistrate of the First

Class.153

No other court is competent to try these offences.

Cognizance of dowry offences can be taken by th e Magistrate

himself or on the basis of a police report of the fact which

constitute a dowry offence, or on a complaint lodged by a parent

or other relation of such person, or by a recognized welfare

institute or organization.154

That now the court can be moved on

the complaint of a social organization or institution is a welcome

148 Section 8(1). 149 Section 8(1)(ii). 150 Section 8(2). 151 Ibid. They have been made non-bailable to the amending Act. of 1986. 152 Section 5. 153 Section 7(1)(a). 154 Section 7(1)(b).

54

provision. The fact of the matter is that practically no

prosecution of any dowry-offender could take place under the

original Act as neither the aggrieved party nor her or his paren ts

or relation came forward to lodge the complaint to the Magistrate

or to the police, as they did not want to land into any

complications, particularly when the welfare of the bride was

involved. They apprehended that whether the offender was

brought to book or not, the victimization of the bride would have

begun. This seems to be the justification of conferring a power

of lodging complaint on the welfare organization. However, with

a view to preventing abuse of the provision as any Tom -Dick-or-

Harry may rush to lodge a complaint about dowry offences on the

slightest suspicion or with a malicious intention, the right to

lodge the complaint has been conferred only on the recognized

welfare organizations or institutions.

Under the original Act, no cognizance of the offence could

be taken by a Magistrate if the complaint was made after one

year of the commission of the offence. Probably, the framers of

the Act then did not realize that offences relating to dowry are

offences of a totally different type; they are not like ordinary

offences of theft, extortion or dacoity. The fact of the matter is

that no one is likely to come forward to lodge a complaint

immediately after the commission of the offence. Such offences

are brought to light after the lapse of consi derable period after

the solemnization of the marriage, when continual harassment

and torture of the bride compels her to take her parents, relatives

or a friend into confidence and expose her husband and in -laws.

The Amending Act has removed this limitati on. Now complaint

can be made at any time after the commission of the offence.

But, of course, if a complaint has been lodged after considerable

delay amounting to laches, the court may not entertain the

complaint if no reasonable explanation for the delay is

forthcoming.

55

(b) Punishment of husband for cessation of cohabitation

It happens more often than not that a husband, who feels

that his wife had not brought the promised or expected dowry,

and with a view to exerting pressure on her or his in -laws to

extort dowry, or with a view to punishing her, ceases to have

cohabitation with her and ultimately snaps all relations with her.

It is now a notorious fact that a bride who fails to bring the

desired or expected dowry is subjected to physical and mental

torture, and suspension of marital rights, which ultimately leads

to bride-burning or bride-suicide. In such a case, the Joint

Parliamentary Committee suggested that a husband who suspends

or ceases to have marital relations with his wife should be

punished with imprisonment which may extend upto one year

along with a fine which may extend upto Rs . 10,000. Parliament

has, in my submission rightly, rejected this suggestion.

J. Appointment of Dowry Prohibition Officers

It is now accepted that one of the r easons for the failure of

the Dowry Prohibition Act, 1961 has been the absence of any

proper and effective enforcement agency. The Committee also

noted this fact, and suggested that there should be some

machinery which can intervene whenever necessary and help in

averting dowry tragedies by helping the dowry victims, as well

as by helping otherwise in the enforcement of the provisions of

the Act. It suggested appointment of Dowry Prohibition Officers

in different areas of each State whose responsibility wou ld be to

take appropriate steps for enforcing and preventing the

contravention of the provisions of the Act. In cases where

contravention of the Act has taken place, they should collect

evidence for the effective prosecution of the offenders. These

officers would also render all possible aid and advise to persons

who are subjected to the demand of dowry or who are tortured or

56

otherwise harassed for not bringing proper dowry. Such officers,

the Committee suggested, should be associated with a non -

official advisory body of five social workers of the area. The

Dowry Prohibition (Amendment) Act, 1986 has accepted this

suggestion and new Section 8B stipulates for the appointment of

Dowry Prohibition Officers of the State Government. Dowry

Prohibition Officers have been appointed in each district by the

state of Haryana.

In developing countries it is a unique paradox that social

progress lags behind the law. Dowry is a deep rooted social evil

and legislation alone cannot eradicate it . Legislation can only

help the social movement for the eradication of dowry. It is

unfortunate that most of our social legislations are no more than

half-hearted efforts. Social legislation should not merely bark,

but should be able to bite. It does not appear that the dowry

prohibition law is a biting law.