Sunday, 26 July 2015

Whether money given at the time of engagement amounts to dowry?

In my humble opinion, the bare reading of
Section 2 of the Dowry Prohibition Act, 1961 indicates
that if parties have agreed to enter into the marriage
on the future date, they shall be known as “parties to
a marriage” for the reason that any item or valuable
security given or agreed to be given either before the
marriage or at the time of marriage or after the
marriage shall be “dowry”.
It is nowhere denied by the defendant either in
this petition or in the application moved under Order
7 Rule 11 CPC that Rs. 2 lakhs were not given to him
by way of bank draft by the plaintiff/respondent,
herein to purchase the car so that car may be used by
them after the marriage. It is also not denied that
marriage was fixed between the parties to be
solemnized on 20.11.2003. Therefore, in my humble
opinion, parties to the plaint are parties to a marriage. 9
Since, as per the contents of the plaint, Rs. 2
lakhs were given by one of the parties to the marriage
i.e. the plaintiff in favour of another party to the
marriage i.e. defendant, therefore, for the recovery of
the amount, suit under Section 7, Explanation (c) of
the Family Courts Act is very well maintainable.
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
WRIT PETITION (M/S) No. 1277 of 2005
Uma Shanker Sharma ….. Petitioner
Versus
Principal Judge, Family Court, Rudrapur
and another

Hon’ble Alok Singh, J. R
Citation; AIR 2015(NOC)855UTR


Petitioner has invoked supervisory jurisdiction of
this Court under Article 227 of the Constitution of
India assailing the order dated 19.7.2005, Annexure
No. 5 to the petition, whereby application of the
defendant/petitioner, herein, for rejection of the plaint
was dismissed.
Brief facts of the present case, inter alia, are that
respondent no. 2 has filed suit No. 126 of 2004, Raj
Kumari v. Uma Shanker Sharma, in the Family Court,
Rudrapur, District Udham Singh Nagar under Section
7, explanation (c) of the Family Courts Act stating
therein that marriage between the parties was to be
solemnized on 20.11.2003 at the matrimonial house of
the plaintiff; engagement ceremony was held on
8.8.2003 and before the engagement ceremony, as per
their custom, Var Raksha ceremony was held at
matrimonial home of the plaintiff on 27.7.2003; at the
time of both the ceremonies held on 27.7.2003 and
8.8.2003, valuable gifts were given by the family
members of the plaintiff to the defendant and his
family members; after the engagement and settlement
that marriage would be solemnized on 20.11.2003, 2
defendant/prospective husband approached the
plaintiff and stated that after marriage they would visit
few places in the car, therefore, he wanted to purchase
car and, hence, plaintiff should ask her father to
contribute Rs. 2 lakhs for purchasing the car; having
believed the defendant/prospective husband, plaintiff
spoke to her father requesting him to make
arrangement of Rs. 2 lakhs so that they could
purchase the car, whereupon father of the plaintiff
having withdrawn Rs. 2 lakhs from his GPF account
deposited the same in the saving bank account of the
plaintiff; thereafter, plaintiff got prepared bank draft
bearing No. 712390 of Rs. 2 lakhs in the name of
defendant on 7.8.2003 from State Bank of India,
Branch Pant Nagar, District Udham Singh Nagar and
handed over the same to the defendant; defendant has
deposited the Demand draft in his account, which was
encashed; thereafter, defendant and his family
members started demanding dowry of Rs. 5 lakhs;
family members of the plaintiff were not in a position
to give Rs. 5 lakhs more and have shown their
inability in paying Rs. 5 lakhs to the defendant and
his family members; ultimately, engagement of the
plaintiff and the defendant was broken and marriage
could not take place on the date fixed i.e. 20.11.2003;
plaintiff has filed the suit in question under Section 7,
explanation (c) before the Family Court, Rudrapur,
District Udham Singh Nagar for recovery of Rs. 2
lakhs along with interest, on 27.9.2004.
After service of the notice of the suit, defendant
appeared and moved an application under Order 7
Rule 11 CPC saying that since suit was filed for
recovery of Rs. 2 lakhs, therefore, same was not
maintainable under Section 7 (c) of the Family Courts 3
Act; consequently; suit ought not to have been
entertained and the plaint should be rejected.
Learned Trial Court having heard both the
parties was pleased to reject the application moved by
prospective husband/defendant/petitioner, herein,
under Order 7 Rule 11 CPC, by the impugned order
dated 19.7.2005. Feeling aggrieved, defendant has
invoked the supervisory jurisdiction of this Court
under Article 227 of the Constitution of India.
I have heard Mr. Vivek Shukla, learned counsel
for the defendant/petitioner, herein, and Mr. Sudhir
Kumar, learned counsel for the plaintiff/respondent
no. 2, herein, and have carefully perused the record as
well as the prevailing law.
Mr. Vivek Shukla, learned counsel for the
defendant/petitioner, herein, while referring to Section
7 of the Family Courts Act, contends that suit under
Section 7, Explanation (c) would be maintainable if
dispute is in regard to the property between the
“parties to a marriage”. Mr. Vivek Shukla further
contends that since admittedly marriage was
scheduled to be held on 20.11.2003 and it was not
held and engagement between the parties was broken
before 21.11.2003, therefore, parties to the suit
cannot be termed as “parties to a marriage”;
consequently suit is not maintainable before the
Family Court.
In support of his argument, Mr. Vivek Shukla
has placed reliance on the judgment of Division Bench
of the Kerela High Court in the case of Suprabha Vs.
Sivaraman K.K. & another, reported in AIR 2006
Kerala 187.
In the case of Suprabha (Supra), suit was filed
by the wife for the recovery of Rs. 9,55,160/- being the 4
values of gold ornaments, cash paid and other
movables given at the time of marriage of Suprabha
with Santosh, against the parents of Santosh after the
death of Santosh (husband). Division Bench of Kerala
High Court, in the peculiar facts and circumstances of
the case, has held that parents of the husband after
the death of the husband cannot be termed as “one of
the parties to a marriage”.
Section 7 of the Family Courts Act, 1984 reads
as under:-
“Section 7 - Jurisdiction
(1) Subject to the other provisions of
this Act, a Family Court shall--
(a) have and exercise all the jurisdiction
exercisable by any district court or any
subordinate civil court under any law for the
time being in force in respect of suits and
proceedings of the nature referred to in the
Explanation; and
(b) be deemed, for the purposes of
exercising such jurisdiction under such law,
to be a district court or, as the case may be,
such subordinate civil court for the area to
which the jurisdiction of the Family Court
extends.
Explanation.-The suits and proceedings
referred to in this sub-section are suits and
proceedings of the following nature namely :
(a) a suit or proceeding between the
parties to a marriage for a decree of nullity
of marriage (declaring the marriage to be null 5
and void or, as the case may be, annulling
the marriage) or restitution of conjugal rights
or judicial separation or dissolution of
marriage;
(b) a suit or proceeding for a
declaration as to the validity of a marriage
or as to the matrimonial status of any
person;
(c) a suit or proceeding between the
parties to a marriage with respect to the
property of the parties or of either of them;
(d) a suit or proceeding for an order or
injunction in circumstances arising out of a
marital relationship;
(e) a suit or proceeding for a declaration
as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the
guardianship of the person or the custody of,
or access to, any minor.
(2) Subject to the other provisions of this Act,
a Family Court shall also have and exercise-
(a) the jurisdiction exercisable by a
Magistrate of the first class under Chapter
IX (relating to order for maintenance of wife,
children and parents) of the Code of Criminal
Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be
conferred on it by any other enactment.” 6
 As per sub-section (1) of Section 7 of the Act,
the Family Court shall be deemed for the purposes of
exercising such jurisdiction under such law, to be a
district court or, as the case may be, such
subordinate civil court for the area to which the
jurisdiction of the Family Court extends and Family
Court shall have and exercise all the jurisdiction
exercisable by any district court or any subordinate
civil court under any law for the time being in force in
respect of suits and proceedings of the nature referred
to in the Explanation.
 As per sub-section (2) of Section 7 of the Act,
Family Court shall also have the jurisdiction
exercisable by a Magistrate of the first class under
Chapter IX (relating to order for maintenance of wife,
children and parents) of the Code of Criminal
Procedure, 1973 (2 of 1974) and such other
jurisdiction as may be conferred on it by any other
enactment.
 Before the enactment of the Family Courts
Act, 1984, all the suits between the parties to a
marriage used to be filed before the ordinary Civil
Court having jurisdiction over the matter and after
enforcement of Family Courts Act, Family Court is
vested with the jurisdiction over all the suits, between
the parties to a marriage which were being filed before
the ordinary Civil Court having jurisdiction over the
territory.
 The perusal of Explanation (a) and (b) of
Section 7 of the Act would demonstrate that all the
suits for dissolution of marriage, judicial separation,
restitution of conjugal rights or for declaration
declaring the marriage nullity or to establish the 7
matrimonial status of any person would be
entertained or decided by the Family Court.
 As per Explanation (c) of Section 7 of the
Act, a suit or proceeding between the parties to a
marriage with respect to property of the parties or
either of them shall also be entertained and decided
by the Family Court.
 “Parties to a marriage” is not defined under
the Family Courts Act.
 Section 2 of the Dowry Prohibition Act,
1961 reads as under :
“Section 2 - Definition of 'dowry'
In this Act, "dowry" means any
property or valuable security given or
agreed to be given either directly or
indirectly--
(a) by one party to a marriage to
the other party to the marriage; or
(b) by the parent of either party to
a marriage or by any other person, to
either party to the marriage or to any
other person,
at or before [or any time after the
marriage] [in connection with the
marriage of the said parties, but does
not include] dower or mahr in the case
of persons to whom the Muslim
Personal Law (Shariat) applies.
Explanation II.--The expression
"valuable security" has the same 8
meaning as in section 30 of the Indian
Penal Code (45 of 1860).”
The perusal of Section 2 of the Dowry Prohibition
Act would demonstrate that “dowry” means any
property or valuable security given or agreed to be
given either directly or indirectly by one party to a
marriage to the other party to a marriage; or by the
parent of either party to a marriage or by any other
person, to either party to the marriage or to any other
person, at or before [or any time after the marriage] [in
connection with the marriage of the said parties, but
does not include] dower or mahr in the case of
persons to whom the Muslim Personal Law (Shariat)
applies.
In my humble opinion, the bare reading of
Section 2 of the Dowry Prohibition Act, 1961 indicates
that if parties have agreed to enter into the marriage
on the future date, they shall be known as “parties to
a marriage” for the reason that any item or valuable
security given or agreed to be given either before the
marriage or at the time of marriage or after the
marriage shall be “dowry”.
It is nowhere denied by the defendant either in
this petition or in the application moved under Order
7 Rule 11 CPC that Rs. 2 lakhs were not given to him
by way of bank draft by the plaintiff/respondent,
herein to purchase the car so that car may be used by
them after the marriage. It is also not denied that
marriage was fixed between the parties to be
solemnized on 20.11.2003. Therefore, in my humble
opinion, parties to the plaint are parties to a marriage. 9
Since, as per the contents of the plaint, Rs. 2
lakhs were given by one of the parties to the marriage
i.e. the plaintiff in favour of another party to the
marriage i.e. defendant, therefore, for the recovery of
the amount, suit under Section 7, Explanation (c) of
the Family Courts Act is very well maintainable.
For the reasons stated hereinbefore, judgment of
the Kerala High Court in the case of Suprabha (supra)
has no application in the present case and the same is
hereby distinguished.
Consequently, no interference is called for in the
impugned order. Present petition, thus, fails and is
hereby dismissed.

 (Alok Singh, J.)
Dated: 21st April, 2015
Avneet/ 
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