There appears to be a certain amount of confusion over the terms “dowry” and “Stridhan”. “Stridhan” as a concept of Hindu law has arisen from the concept of “Varadakshina” which is associated with an approved Hindu Marriage practice of “Kanyadaan”. Kanyadaan being the gifts which the father of the bride gives to the father of the groom. “Varadakshina” was the presents in cash or kind which were to be given to the bridegroom. Both kanyadaan and varadakshina were considered meritorious acts and were voluntary in nature. Presents, given to the daughter on the occasion of the marriage constituted her “Stridhan” i.e. her separate property.
The term “Stridhan” literally means the “woman’s property”. According to the Smritika, the Stridhan constituted those properties which she received by way of gifts from her relatives, which included mostly movable property such as ornaments, jewellery, dresses. Sometimes even land or property or even houses were given as gifts. The purpose behind deeming properties as “Stridhan” was to ensure that "The woman" had full right over its disposal or alienation. On her death, all types of Stridhan, devolved upon her heirs.
The husband of the woman had the limited power to use or alienate the “Stridhan” and that too only in cases of distress or emergency and even in such cases, he was obligated to return the same once the emergency period was tided over. Thus the conclusion is that all types of Stridhan are properties given to her by way of gifts and without any “demand, coercion, undue influence or even pressure”.However in the past there have been a catena of cases where the distinction between dowry and Stridhan has been misunderstood .In the case of Kailash Vati v. Ayodhya Prakash, Chief Justice Sandhawalia, while recognizing the distinction between stridhan and dowry, used both the words interchangeably as if one meant the other .He opined as follows:
“The Dowry Prohibition Act 1961 does not bar traditional giving of presents at or about the time of wedding . Thus such presents or dowry given by the parents is therefore not at all within the definition of the statute”.
He further went on to state that:
“Law as it stands today visualizes a complete and full ownership of her individual property by a Hindu wife and in this context the factum of marriage is of little or not relevance and she can own and possess property in the same manner as a Hindu male …Once it is held that a Hindu wife can own property in her own right , then it is purely a question of fact whether the dowry or traditional presents given to her, were to be individually owned by her or had been gifted to the husband alone…..Once it is found that as a fact that these articles of dowry were so given to her individually and in her own right , then I am unable to see how the mere factum of marriage would alter any such property right and divest her of ownership either totally or partially”.
Here the presumption is that whatever property the bride receives as “gifts” stays under her control in the matrimonial home and that she can share it with her husband or the rest of the family by exercising her discretion. This is contrary to what happens in reality where the bride does not have any control over her belongings or her essentials.
It was only in the case of Pratibha Rani V. Suraj Kumar, the Supreme Court tried to arrive at a definition of “Stridhan” by enlisting the following exchanges as constituting stridhan
(ii) gifts made before the nuptial fire
(iii) gifts made at the bridal procession, i.e. while the bride is being led from her residence of her parents to that of her husband.
(iv) Gifts made in token of love, that is, those made by her father-in-law and mother-in-law and those made at the time of the bride making obeisance at the feet of elders.
(v) Gifts made by the father of the bride
(vi) Gifts made by the mother of the bride
(vii) Gifts made by the brother of the bride.
This judgment further clarified that 3 AIR 1985 S.C 628 “The Hindu married woman is the absolute owner of her Stridhan property and can deal with it in any manner she likes .Ordinarily the husband has no right or interest in it with the sole exception that in times or extreme distress but he is morally bound to restore it or its value when he is able to do so” where Fazl Ali J further observed that
“I am amazed to find that so deeply drowned and inherently are some of the High Courts concept of matrimonial home qua Stridhan property of married woman that they refuse to believe that such properties which were meant for exclusive use of the wife , could also be legally entrusted to the Husband and his relations. He specifically stated that the concept that the “Stridhan” of the woman becomes the Joint property of the two houses as soon as she enters her matrimonial house is in direct Contravention of Hindu law.”
The differentiation of the two terms is towards ensuring that in case of the future breakdown of marriage the woman can at least retrieve gifts received as Stridhan. Thus even if at the time of marriage or during the marriage “gifts” should be given under the cover of “Stridhan” so that she will at least have a right to claim them back.
After 1956: Stridhan: The majority of sages and commentators have no definition for stridhan. Ornaments, jewellery, dresses or any movable gifts given by relations parents & husband side and also gifts given by strangers at time of marriage. Gift and bequests from relation, Gift and bequests from strangers . During coverture gifts are stridhan under husband control. These gifts can be given with the exception of immovable property. Any gifts given during maidenhood or widowhood constitutes her stridhan. Before 1956 property aquired by mechanical arts (Singing & Dancing) or self exertion upon death of husband constituted her stridhan according to Mithila and Bengal schools of Hindu Law. All other schools also it constituted her stridhan immediately.
Property purchased with savings or accumulations of stridhan is stridhan. Under compromise it constitutes her limited estate and gives up her stridhan under arrangement or compromise. If she accumulates by adverse possession it constitutes her stridhan. Maintenance & property transferred to her by way of gift is stridhan. By inheritance if she succeeded to any immovable property, it is not her stridhan but constitutes her limited estate. Both from parents side as well as husband side.
When partition takes place under Mitakshara Rule share obtained from partition is her limited estate or womans estate or widow estate (not stridhan) and she is absolute owner of property. On property acquired from Inheritance or partition she cannot ordinarily alienate the property or corpus and on her death it devolves to next heir. All other property except from partition or inheritance she has full rights to mortgage, exclusion and even put it in fire for all she cares.
Stridhan is classified into 2 types:
1. Gifts received from parents and in -laws out of love and affection.
2. All other gifts from strangers(Here husband has power to use this stridhan equally). On her death it passes to her heirs.
After 2005, The Hindu Succession Act: Now she can claim for immovable property alongwith above also. She now has full powers to alienate property like the Karta of the family. She can do this in 3 situations. For fulfilling husbands funeral rites, legal necessaries, benefit of estate, gifts to brahmins to satisfy husband last rites, dispense of religious and moral duties. In all these cases only small portion can be alienated. Alienation made is not void but voidable if party affected and filed by party affected. Reversioner(Heirs) can file. Reversioner can sue for injunction or declaration(possession); after her death for nullity also.
A wife can by statutory substitution makes her get a part of her husbands co-parcenary property but doesnot entitle her to other co-parceners interests of joint family property. Dowry and gifts given during or at the time of marriage and thereafter is her stridhan and if she demands and doesnot get it back - she can take refuge in law which provides a relief. Check out Section 14 HSA and sub sections to know consequences.
The difference is taking, giving and abetting dowry is not a crime if done voluntarily and situation does not arise and differences amongst are merely words - but once a complaint is instituted that force or against will or pressure then her parents who have given dowry to her is not a crime (they can call it gift or presents w.r.t movable and immovable property). But husband & in-laws asking or demanding dowry(including gifts or presents or in any name) with an intention to coerce her and make an unlawful gain taking advantage of the relationship is a crime.
The Hindu Succession (Amendment) Act, 2005 (39 of 2005) comes into force from 9th September, 2005. The Government of India has issued notification to this effect. The Hindu Succession (Amendment) Act is to remove gender discriminatory provisions in the Hindu Succession Act, 1956 and gives the following rights to daughters under Section 6:
-The daughter of a coparcener cell by birth become a coparcener in her own right in the same manner as the son;
-The daughter has the same rights in the coparcenary property as she would have had if she had been a son;
-The daughter shall be subject to the same liability in the said coparcenary property as that of a son; and any reference to a Hindu Mitakshara coparceners shall be deemed to include a reference to a daughter of a coparcener;
-The daughter is allotted the same share as is allotted to a son;
-The share of the pre-deceased son or a pre-deceased daughter shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter;
-The share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter.
After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognize any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt.
An aam adami's Illustration: Another mode of fighting this injustice and sham complaints for extortion:-
Wife has submitted a list of stridhan which is not as per Rule 2 of Dowry Prohibition Act and her application may be rejected in view of Delhi Police Circular no. 07/2007 and other circulars [as per State Police you may check in your respective State on existence of such Circulars] she may be asked to furnish "valid bills" as well as "cash flow" details in view of para 7 of Circular no. 459-66/P.Sec/ Addl.CP/CAWC dated 29/03/2009 [this applies to Delhi State].
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