Dowry claims exist mainly for clients originating from the South Asian sub-continent. It has its origins from the Hindu faith. Parents in India would provide their daughters with gifts before they got married. This practice has spread to other parts of the Asian sub-continent and families of other faiths namely, Sikhs and Muslims and for those originating from Pakistan and Bangladesh.

A dowry dispute will often involve valuable gifts which had been given to the wife either before, during or after her marriage. The gifts will typically include money, jewellery, clothes and household items intended to furnish her home. Under Indian law, these gifts known as ‘stridhan’ (‘women’s property’) remain the wife’s property, and if utilised by the husband during times of hardship, he is to compensate her for the same.

Dowry claims, are not always limited to gifts given to the wife by her family, which can be provided following high demands by the husband or his family. The wife’s family can feel compelled to give in to claims for ‘a high dowry’ out of fear that the marriage will not otherwise take place. In addition, the dowry dispute can be in relation to gifts such as jewellery or clothes from the husband or the husband’s family to the wife.

Historically in India, the issue of ‘stridhan’ “women’s property” was given by the wife’s family to the wife in an attempt to compensate her in the absence of not inheriting from her father . This changed by the passing of the Hindu Succession Act 1956 and a woman now enjoys rights of inheritance. This, it is said, made dowry payments otiose because she could receive a share in her father’s property upon his death and furthermore, the Dowry Prohibition Act 1961 has made it a criminal offence in India to give or receive a dowry. However, the tradition remains alive.

Issues often raised by the husband in dowry disputes

If the wife has already left the marital home, the husband’s family will often claim that the wife took all her dowry items with her. In the alternative, he may state that the dowry items as alleged by the wife’s family or the wife herself are entirely fabricated.

In addition, the husband might assert that the jewellery was to be used by the wife only while she is “a wife”. If she is no longer a wife, the jewellery is to revert to his family. This assertion could be supported by evidence that the jewellery and other expensive items were always kept in a safe controlled by his family.

In a dowry dispute, if the wife intends to reclaim her dowry/gifts under the Matrimonial Causes Act 1973 she has to satisfy the court that she was given a dowry, what she was given and the fact that it remains within the control of the husband or his family.

This can be evidentially satisfied by exhibiting photographs or video footage of the gifts given to the wife’s family by the husband’s family. For gifts given to the bride by her family, she should where possible exhibit copies of the actual receipts. If a receipt is not available, an expert opinion can be obtained from an experienced jeweller as to the value of the gold/jewellery in question. This will be important if the wife is seeking a lump sum in the absence of the return of the disputed items. The wife must provide a detailed list and description of the items she is seeking.

If a third party was involved in the arrangements of the marriage, consideration should be given to obtaining a statement from the third party. The third party might be aware of what was actually given when arrangements were being made for the marriage.

What is the legal effect of the dowry?

There is no specific piece of legislation under English law to settle dowry disputes. Reported cases under English law mainly concern Muslim marriages. There is no specific reported case concerning the return of dowry concerning an individual from the Hindu or Sikh community.

In Islam a marriage is a contract and quite often there will be a written marriage deed, known as the nikah. In such cases, a wife has the option of issuing a claim for breach of contract. This happens if the ‘dowry’ issue primarily concerns the unpaid/non returned mahr. This has been defined to mean a sum of money or property given absolute to the wife by the husband. The mahr is either promptly given upon the marriage taking place or is deferred to an agreed time in the future, usually upon the husband’s death or divorce. The wife can claim breach of contract for its return or payment and in particular, in situations where the marriage is deemed to be a ‘non-marriage’.

In the absence of specific legislation, the law on wedding presents should be undertaken. In the case of Samson and Samson [1960]1ALL ER 653 it was held “where there is evidence of intention on the part of donor a wedding present may be found to have been given either to one spouse or to the other, or to both; where no intention is clear, the inference may be drawn that gifts originating from the husband’s family and friends were intended for the husband and that gifts originating from the wife’s family and friends intended for the wife”.

On this basis, all of the gifts given to the wife by her family which she had taken to her matrimonial home should be returned to her or in the alternative, she should be compensated for the same. However, on the flip side, this principle can be used by the husband and therefore, it is important to establish that the intention of the dowry given by the husband’s family to the wife was with the intention that the dowry/gifts were to remain the wife’s completely and in the event of the marriage breaking down the gifts remain hers.

Dowry issues before the English court

In the case of Shahnaz v Rizwan [1965] 1 QB 390 the wife, in a breach of contract matter claimed the payment of £1,400. This represented the amount she claimed representing her deferred mahr which was stated in her marriage contract and payable upon the marriage breaking down since her husband had divorced her by talaq. It was held that the wife was entitled to the payment as a recognised contractual obligation imposed upon the husband.

In the later case of Otobo v Otobo [2002] EWCA CIV949, it was held that when conducting the exercise required under section 25 of the Matrimonial Causes Act 1973 which involved a family with a secondary attachment to the jurisdiction of the English court and culture, an English judge should give due weight to the primary cultural factors. The judge should not ignore the difference between what a wife might anticipate from a decision in England as opposed to a decision in the alternative jurisdiction. This should be taken into account as one of the “the circumstances of the case”. This particular case involved a couple originating from Nigeria.

A and T (Ancillary relief: Cultural Factors) [2004] EWHC 471 (FAM), [2004]1FLR977.

The parties in this matter were Iranian nationals and the husband had been living in the United Kingdom for over 25 years. Both parties were Muslim and as part of the marriage contract, it was agreed that upon divorce the wife would receive gold coins which equated to £60,000 at the time of the hearing. The parties were married in Iran in July 1998 and the wife arrived in England in December 1998. Following only seven weeks of cohabitation, the wife returned to Iran in February 1999 and stated that her marriage was over.

The wife started court proceedings in Iran claiming her marriage portion (i.e. deferred mahr) in full and placed a charge on a property in Iran which the husband had inherited a share in. In July 1999 the Iranian court made an order that the husband must pay the marriage portion. However in relation to the divorce proceedings in Iran, the wife was unable to satisfy the necessary grounds to obtain a divorce by consent (a Khula divorce) since the husband refused to provide his consent. Following this, the wife issued proceedings in England which included an application for financial remedies in the full sum of the marriage portion which she stated she was entitled to.

The English court’s view was that the proper lump sum amounted to £35,000 providing the wife obtained a religious divorce and was wholly independent. The wife also had to drop all proceedings that were taking place in Iran and to remove the charge on the husband’s property. Upon this happening, the husband was to then grant the wife a religious divorce by talaq. If the husband failed to do so, the court was of the clear view that in Iran the wife would have been entitled to the full amount of her marriage portion.

Of significance, was the consideration of the wife’s needs by the English court. The judge stated that if the husband failed to grant the wife a religious divorce within three months of the date of the order, that it was only right that the wife would be entitled to the whole of her marriage portion i.e. £60,000. Furthermore, an additional £25,000 would become due and payable in the event the husband failed to provide the wife a religious divorce. This took into account an earlier case of Brett and Brett [1969] 1AER1007, in which it was decided by the court that the court did have jurisdiction to make an additional capital order in circumstances where a wife would be disadvantaged by the failure of a husband to grant a religious divorce.

Lastly, the case of Uddin and Choudhury [2009] EWCA CIV1205, concerned a breach of contract claim based on a marriage contract between the parties to a religious Muslim marriage. The dispute concerned the return of the mahr/dowry to the wife’s family and whether gifts that had been given to the wife by the husband’s family should be returned to his family. The judge found as a matter of Shariah law (having heard expert evidence, in this particular case) that gifts given by the husband’s family were absolute and non-returnable and furthermore, not to be deducted from the mahr/dowry. The mahr/dowry was still payable to the wife by the husband.

Going forwards

There must be a clear recording of the intention on the part of the donor of the gift.

This should not be too difficult to achieve. Marriages that take place with origins from the Asian sub-continent will often involve arrangements between both families. This usually includes discussions on the marriage gifts by both families. In the Muslim community this could be recorded in the actual marriage contract (the nikah). In the Sikh and Hindu communities, a specific recorded agreement during the arrangements for the marriage should be created in the absence of a prenuptial agreement.

For all communities, the issues that arise as highlighted above underlines the importance of a prenuptial agreement. For couples who choose not to have a civil registration and live as husband and wife in a ‘non-marriage’, a cohabitation agreement is highly advised. With cutbacks to legal aid to pursue claims and in the absence of specific legislation on dowry claims, communities must be educated upon what can be done before the parties marry or start living together to assist individuals, and in particular the financially weaker party, in the unfortunate event that their marriage breaks down.