Wife Can Claim Return Of Gold Ornaments Under Prevention of Dowry Act Only If She Proves Entrustment To Husband: Kerala High Court

The Kerala High Court on Tuesday observed that gold ornaments kept in a locker in the wife’s name cannot amount to the entrustment of the ornaments to the husband or the husband’s family and thus recovery of the same cannot be initiated along with divorce proceedings.

A division bench of Justice Anil K Narendran and Justice P.G. Ajithkumar said that in the absence of enough evidence that the gold ornaments given to the wife at the time of marriage was entrusted by her to her husband or her in-laws, it would not be possible to recover the same under the Prevention of Dowry Act, 1961.

The court was hearing an appeal against the order of a family court where the wife had filed a petition for recovery of money and gold ornaments after the marriage between the couple had been dissolved. The family court had held that there was insufficient evidence to show appropriation or entrustment of gold for it to be considered dowry.

The counsel for the appellant argued that since the money and ornaments were handed over in connection with the marriage, it would amount to dowry. The evidence for this would be scanty as such exchange would not happen publicly since the practice is prohibited by law, the petitioner contended.

The court first delved into the question of whether a decree can be sought for recovery of money and gold ornaments given as dowry, as such a transaction would be void when this practice is forbidden by law. Under Section 7 of the Dowry Prohibition Act, the taking or giving of dowry is prohibited. However, under Section 6 of the Act there is an obligation on those who receive dowry to transfer the same back to the beneficiary. The court observed that the legislative intent of Section 6 of the Act, was for the woman to be able to recover the money/gold from the person who was entrusted with the dowry.

The court observed that once it is established that the gold ornaments had been entrusted by the wife to the husband or his family, the burden of proof will be on the latter to explain what happened to it. However, in the present case, the gold ornaments were kept in a locker in the name of the wife. The contention of the wife was that this was later appropriated by the husband. However, the court refused to accept this contention due to lack of evidence.

The court remarked that it is common for the bride to take her gold ornaments to her husband’s house and entrust the same, to her husband or in-laws, barring a few ornaments for daily wear. This entrustment could be established by the testimony of the wife alone. However, only if this entrustment is made, a trust is said to be created and an obligation is placed on the husband and the in-laws to return the same. In such a case, the wife would succeed in recovering the gold ornaments entrusted under Section 6 of the Act. In the present case, the court observed that this entrustment was lacking.

Keeping the ornaments of the appellant in a locker in her own name cannot amount to the entrustment of the same to the respondent. In the nature of the said evidence, it is not possible to find that the ornaments; whole or any part, were entrusted to the respondent. Only if the fact of entrustment of the gold ornaments to the respondent is proved, the appellant can claim return of such ornaments.

The court refused to interfere with the findings of the family court, and concurred with its view that there was lack of evidence to show entrustment of gold ornaments and hence it could not be recovered by the wife under the Dowry Prevention Act.

Case Title: B v. H

Citation: 2023 LiveLaw (Ker) 70

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