Unjust partition: Dowry inclusion in partition claims

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 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 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 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.