Dowry and gifts or presents are customarily the two valuables shared with the couple by society. Society means anyone, the bridegroom's family, the bride's family, the friends and relatives of both families. There is no difference in objects but for same object the nomenclature may differ. For instance as dowry one can give money (cash/cheque), jewellery, sarees, bangles etc. The same items can be classified as gift or present (as named in DP Act), if they are given as gifts. What is dowry and what is gift is not decided by showing the difference between items, like all the cash given is dowry, all items other than cash is gifts. That is not correct way of looking at dowry and gifts. The maternal uncle of girl gave a gift of Rs.1116/- to the girl. Though it is cash, it will be called gift. He had given it exclusively to girl without naming boy. It is entirely the stridhan of girl according to Indian law.
It it is given in the name of both, half of it will become Stridhan for the purpose of Indian laws. Broadly we can say dowry is something that is given by family of bride to the family of bridegroom and gifts are valuables given by the society to couple. There are no hard and fast rules here. The maternal uncle may add his money to the dowry given by the father of the bride, that is not gift that becomes part of dowry. The members of society of bridegroom’s family may be impressed with the girl and offer gifts to her. That may be anyone, the father of bridegroom, his brother, sister, mother, some friend or relative. If that is given exclusively in the name of girl, it becomes part of her Streedhan as defined by family laws.
Here the problem with some people who are harassed by dowry cases is that there is no well defined procedure for identifying what is Stridhan and what is Dowry because these transactions do not take place on paper. Neither the people who receive dowry give a receipt for what they have received, nor the couple that receives gifts would give receipts to people who offer them gifts. That being the case, how when a dispute arises during course of conjugal life between husband wife, these things are claimed? In the absence of formal procedures of identifying the gifts and dowry whose claim shall be entertained with regard to dowry and gifts? These are the questions that disturb the minds of some people who are harassed by dowry cases.
So they propose to formalize the procedures relating to acceptance and giving of dowry and gifts during marriage. But we lose the human touch in marriage if we formalize these procedures in anticipation of some false dowry cases that may be filed by bride against the family of bridegroom. Gifts are given with a token of love and affection, nobody thinks during marriage that this may be broken and so with a view to ensure who shall be eligible for what we should formalize procedures. It is like keeping an account for the money spent on a child so that when he grows up you show that account to him and ask him to repay from his earnings. Now comes the important aspect relating to evidences because in the absence of formal procedures guiding the assessment of who received what and in what form and who had given what, it is possible the law may be abused.
That is why the Family Courts Act S.13 says the Advocates are barred from representing cases of the parties to case in a marital dispute.
Sec.13 of Family Courts Act. Right to legal representation. Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall he entitled, as of right, to be represented by a legal practitioner: Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae.
This is because the judge has something to assess even seeing the faces of husband and wife. Every party has a right to make averments in their petitions and written statements. But they need not be conclusively proved as it happens in criminal law. When the petition is read as a whole it should make sense and having seen the petitioner and respondent directly and heard them face to face the judge will be in a much better position to arrive at his conclusions.
S.14 of Family Court Act says, A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872. Here you can see the Family Court Act seems to opt for a less formal procedure. The family court will look into the dispute with an angle to resolve it and not with the technicalities of law. Though this Act does not speak it impliedly speaks of principles of natural justice. Even in the departmental inquiries made against employees in government, public sector and private sector evidence is not strictly in accordance with the provisions of Evidence Act, sometimes even hearsay evidence will be taken into confidence by court.
So, as these proceedings are not strictly based on technicalities of law, the Family courts act rightly prevents Advocates to enter and make the dispute an issue of technicalities because the Advocates having possessed with legal knowledge would complicate the issue and make it into a issue involving legal technicalities. That is why you have wrongly quoted the SC judgment regarding admissibility of tape recorded conversation because you have a tendency to make it an issue of legal technicalities. That is why Advocates are rightly barred by the legislation to be party to these disputes. The judge can decide better if the parties appear before him rather than Advocates taking him for a ride with their abilities and skills. However there are some exceptions that is not relevant here. What is needed to be understood is, that in family the transactions between husband and wife or during marriage the transactions between family of bride and bridegroom do not take place on paper.
So it is not possible to strictly put them to the test of evidence. A wife says I have received so and so gifts during marriage. Who has to give evidence to it? Suppose there are 10 people from wife’s side saying yes she had received those gifts and 10 people from the side of husband to deny the same whose evidence should be taken as true? So the family courts act S.14 accepts any kind of evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute as it happens in Domestic Inquiry in departmental proceedings to arrive at its conclusions as to the veracity of averments made by husband and wife.
Advocates are avoided so that the judge forms his opinions about the parties seeing them face to face and also, for the reason that they do not transform the dispute and proceedings into mere technicalities of law. The Family court judge according to S.27 of Hindu Marriage Act has the power to decide about the Stridhan of woman and issues relating to the joint property of husband and wife. For that he will not strictly rely on clinching evidences but he will take into account the dispute as a whole and decide who has to get what.
S.27 of Hindu Marriage Act. Disposal of property. In any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, Which may belong jointly to both the husband and the wife.
For instance, the wife is poor and husband is rich. And wife claims, certain things as her stridhan. No clinching evidence is there. The judge keeping in view the poverty of the wife can take that averment made by wife as true and reasonable in the light of facts and circumstance of the case and decide accordingly to do justice to the wife. However on the other side, criminal cases are also filed for recovery of Stridhan. There the judge needs conclusive evidences. He does not have freedom to decide about the evidences as freely as a Family court judge can. A criminal court judge needs conclusive evidences. Here the malpractice that generally takes place is, as dowry giving and taking is prohibited by DP Act, the dowry is also claimed as Stridhan by the girl’s family because there is no formal procedure evolved to identify what constitute dowry and what constitute Stridhan.
Whether their claim is just or not no one knows. The claim is put to test of evidences strictly in criminal courts and many a time, the bride’s side is unable to prove that they have given such things and the bridegroom is discharged. It may be legally wrong to claim what is defined as dowry in the DP Act as Stridhan, but not morally wrong if the bridegroom had truly received dowry. So the girl’s family does not believe their claim as unjust and only for the purpose of legal technicalities certain valuables are defined as Stridhan and certain valuables are defined as Dowry, the point is whether it is dowry or stridhan whatever be the name given to it, it is construed ultimately as some valuables given and that must be recovered in the eventuality of marital dispute.
Here anyone can play foul. Even the husband can deny having received dowry, as dowry is prohibited according to DP Act, he will argue the girl’s side cannot claim it. It is legally correct but not morally. As dowry cannot be claimed legally he will say, the wife is only eligible to receive her streedhan legally I am prepared to give it. But the wife and her family is not willing to buy that argument. It is different aspect if law does not identify dowry as some valuable that can be recovered from the husband, but it is true we have given it and so we are eligible to receive it whatever be the name given to it. So they put an excessive list of items relating to Stridhan with a motive to include dowry also. The husband calls it fraud because the evidences given by the people show that only few items in that list are given as Stridhan.
For rest of items there is no evidence hence they cannot be recovered or the inference is as it is proved that the claim made by wife is in excess of what is actually proved as Stridhan, they are filing a false criminal case. But you see the moral fallacy of the above argument made by husband. So there is possibility of anyone playing foul in a given situation not necessarily the wife.
However I believe the criminal courts shall be barred from deciding about the Stridhan they shall only be given powers to decide about punishment for any wrongs related to dowry harassment or any harassment related to demand of any valuable security during the course of marital life. The aspects relating to Stridhan, joint properties or valuable securities forcibly taken by husband from wife and her family should be decided either by Civil court/Family court exclusively because these are not the aspects where people can lead clinching evidences. Wife’s financial status shall be the primal concern in deciding about the claims made by her against husband. Then most of the harassment will come to an end.
