5/13/22, 3:06 PM Unjust partition: Dowry inclusion in partition claims

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Unjust partition: Dowry inclusion in partition

claims
A recent Karnataka High Court decision shockingly normalises dowry donations as
a legitimate claim that male coparceners can put forth before courts in order to
enlarge their partition claims.

Karnataka High Court

Pooja Upadhya
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5/13/22, 3:06 PM Unjust partition: Dowry inclusion in partition claims
j p y

Published on : 07 May, 2022, 5:05 pm 6 min read

On February 16, 2022, the Karnataka High Court in Smt Hemalatha v. Sri Venkatesh
decided a pertinent point of law under the Hindu Succession Act, 1956. It held that
properties given as dowry/gifts to a female should also be included with the joint
family properties in partition suits.

The factual background in this matter concerned a partition suit filed by Hemalatha,
claiming interest in the joint family properties as a coparcener by virtue of Section 6 of
the Hindu Succession Act. During the pendency of the partition suit, her brother filed
an application seeking the addition of two extra properties that were handed as dowry
during her marriage, to be merged with the remaining joint family properties that
needed to be partitioned. The brother claimed that the said dowry properties were
transferred in the name of Hemalatha, her husband, and her father-in-law at the time
of her wedding through nominal sale deeds as dowry.

The civil court decided to include the dowry properties. Aggrieved by this decision,
Hemalatha challenged it before the Karnataka High Court. The Court decided as

follows:

“16. ….I am of the considered opinion that a beneficiary of Section 6 of the Hindu
Succession Act cannot claim a benefit by way of partition as regard to joint family
properties without reference to the properties already received by her at the time of
marriage as dowry/gift or otherwise. The said properties at an undisputed point of
time forming part of the joint family property and the plaintiff having received it, the
same would also have to be made part of the partition suit in order for the partition to
be equitable hence, those properties would also be amenable to partition.”

In the present article, we are concerned with the analysis of the reasoning employed
by the Karnataka High Court to decide the issue in hand while placing emphasis on the
institutional hesitation in granting female members fair treatment when it comes to
their property rights.

Historically women have undergone long drawn battles to be declared equal and
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Historically, women have undergone long-drawn battles to be declared equal and
entitled to their property rights as their male counterparts. Even after the fruition of
the much-delayed Hindu Succession (Amendment) Act, 2005, which granted equal
property rights to female members, there were several confusing and conflicting
judicial pronouncements on questions such as: Is a female born prior to the
commencement of the amendment eligible to claim equal rights? is a female who has
lost her father prior to the commencement of the amendment eligible to claim equal
rights? Is the amendment to be applied prospectively or retrospectively?

It took 15 years from the date of amendment for the Supreme Court to finally overrule
all such issues and hold that females are entitled equally to property rights since their
birth, barring no exceptions. After overcoming several legal obstacles thus far, through
the latest interpretation by the Karnataka High Court, the issue of female property
rights has taken a turn for the worse.

At the outset, the decision shockingly normalises dowry donations as a legitimate

claim that male coparceners can put forth before courts in order to enlarge their
partition claims, despite being illegal. While on the one hand, the Court accepts that
properties given as dowry need to be added in partition suits, on the other hand, it
writes off the existence of an offence in this case, since no formal complaint was filed
by the parties, thus making an unnecessary and erroneous classification on dowry
donations.

While Section 3 of the Dowry Prohibition Act, 1961 penalises persons who give or
take dowry, attracting imprisonment for not less than five years, Section 5 holds any
agreement for giving or taking dowry to be void under law. Section 7 permits any court
superior to a Metropolitan Magistrate or a First-Class Judicial Magistrate to take
cognisance of the offence ‘upon its own knowledge’. The Karnataka High Court was
well within jurisdiction to inform the concerned court to take cognisance of the
offence admitted by the entire family. However, no such reference was made and the
High Court chose to restrict itself to the immediate matter before it.

It can be argued that that the implication of such a decision may be beneficial to
female coparceners as it takes such dowry properties back from the hands of her
husband’s family and redistributes it. However, to achieve such a proposition, a female
coparcener would be at the mercy of the facts in her individual case. She would have
to be sure that the husband’s family has not spent or alienated such
movable/immovable dowry properties The time period between her wedding date
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5/13/22, 3:06 PM Unjust partition: Dowry inclusion in partition claims
movable/immovable dowry properties. The time period between her wedding date
and the filing of the partition suit years later is so large, that invariably, the dowry
properties, especially those in the nature of money, gold, motor vehicles, would have
been easily disposed of by the husband’s family. In such cases, her partition claim
would merely be notional in nature.

Even though the court may hold her claim valid, in reality, the alienated/spent dowry
properties would vest to her only on paper without her ever benefitting the absolute
ownership and enjoyment of the property. The loss incurred due to alienation of the
dowry properties would most definitely have to be absorbed by her. In a worst-case
scenario, if the dowry properties alienated by her husband’s family exceed her
partition claim, will she be made to compensate her other male coparceners?

The Court’s failure to distinguish as to who the actual beneficiary of dowry is, led to
this erroneous decision to add dowry properties in partition suits. While, the Court
continuously referred to the dowry properties as Hemalatha’s, one could not help but
question whether the Court merged a woman’s agency with her husband’s and denied
her the opportunity to singularly and absolutely enjoy her property, due to her family’s
decision to part with her share in favour of her husband. Dowry contributions made to
help the husband or his family should never have been assumed to be her property.

Further, the Karnataka High Court erroneously clubbed dowry and gifts given to a
female during marriage in the same bucket, to be returned to the partition hotchpotch.

While dowry are donations made in favour of the husband’s family on their demand,
gifts are voluntarily given in favour of female coparceners during her wedding. Such
gifts are commonly known as ‘Stridhan’ under Hindu law and are recognised to be her
absolute property. The former is a criminal offence and the latter is a gift recognised
by law. As seen in Section 14 of the Hindu Succession Act, a gift from any person,
whether a relative or not, before, at or after her marriage shall be held by her as the
full owner. When Hindu law never conceived the return of Stridhan for partition
claims, the Court has erroneously and unfairly gone beyond succession laws by
making a female coparcener return her property, in order to claim her right to
partition.

Practically, if one tries to understand the implication of this decision, in a partition suit,
the male coparcener would first have to get the transfer of dowry to be declared as
void and cancel the conveyance deed/s made in favour of the husband/or his family in
a partition suit At this point should the family members not be made subject to the
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a partition suit. At this point, should the family members not be made subject to the
Dowry Prohibition Act in order to seek cancellation of such agreements? Will the
Court also seek for arrest of the family members admitting to donating and receiving
dowry? Will bona fide third-party purchasers of dowry properties or Stridhan
properties be added to partition suits, and their respective sale deeds be cancelled by
virtue of this decision? Who will be responsible for the return of the sale consideration
paid by those bona fide third-party purchasers? Will it ultimately be the responsibility
of female coparcener to make good the loss? The above questions go to show that an
unnecessary complication seems to have been created out of thin air.

In conclusion, the lowest hanging fruit of this decision is a ready-made defence to all
male coparceners to defeat legitimate property claims made by female coparceners.
While the Karnataka High Court's intention was to create a legal principle that
enables equitable distribution of properties, it may have created a perfect deterrent
against female coparceners to claim their property rights from her family.

Pooja Upadhya is a Legal Counsel for an asset reconstruction company.

Bar & Bench

@barandbench

Unjust partition: Dowry inclusion in partition claims

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Unjust partition: Dowry inclusion in partition claims

6:46 AM · May 9, 2022

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Karnataka High Court Dowry Partition suits

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