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Property Rights of Hindu Women: A Feminist Review of Succession Laws of Ancient, Medieval, and Modern India

Published online by Cambridge University Press:  24 April 2015

Debarati Halder  and
K. Jaishankar
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Hindu women's legal right to inherit property has been restricted from the earliest times in Indian culture. In the ancient text Manusmriti, Manu writes: “Her father protects her in childhood, her husband protects her in youth and her sons protect her in old age; a woman is never fit for independence.” However, women were not always excluded from inheriting movable or immovable property from ancestral and marital families. But their proportion of share in the property was far less than that of their male counterparts.

Throughout history, restrictions on Hindu women's property rights have undergone change, and current laws governing these rights are more liberal than those of ancient Hindu society. Patriarchal Hindu society provided women with property known as stridhan (literally, women's property or fortune), and it mainly came from marriage gifts (clothes, jewelry, and in some rare cases, landed properties). However, women were denied property rights to the ancestral or marital landed property, and their right over succession of the landed family property was limited. With the emergence of different schools of Hindu law, the concept of stridhan started expanding its literal and legal meaning, granting women more rights to certain forms of property. Later, the nineteenth and twentieth centuries witnessed the passage of several pieces of legislation that were intended to remove more of the barriers to full and equal property rights for Hindu women. Most recently, sexual discrimination in Hindu succession rules was mostly discontinued by the recent Hindu Succession (Amendment) Act (2005).

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Articles
Information
Journal of Law and Religion , Volume 24 , Issue 2 , 2008 , pp. 663 - 687
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2008

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References

1. This author has previously defined the Manusmriti:

The Manusmriti is the Hindu code of ancient India, which dealt with the relationships between social and ethnic groups, between men and women, the organization of the state and the judicial system, reincarnation, the workings of karma, and all aspects of the law. This Hindu Code is important for its classic description of so many social institutions that have come to be identified with the Indian society. Even after several centuries, it still generates controversy, with Manu's verses being cited in support of the oppression of women and members of the oppressed castes.

Jaishankar, K. & Haldar, Debarati, Mamismriti: A Critique of the Criminal Justice Tenets in the Ancient Hindu Code, 1 ERCES Online Q. Rev. no. 3 (2004), www.erces.com/journal/articles/archives/v03/v03_05.htm (accessed May 22, 2009)Google Scholar.

Hindu orthodox families discriminate against female children, from the time of their birth, in education, health and hygiene. Hence, girls remain ignorant of their basic rights.

2. Manu IX.3: Manusmriti: The Laws of Manu, in Sacred Books of the East 56 (Buhler, G. trans. 1886) (available at http://www.hinduwebsite.com/sacredscripts/laws_of_manu.htm) (last updated 2007)Google Scholar.

Even though laws are made to prevent child marriages, such acts still prevail in many villages of India. Once a girl is married as a child, she never returns to ask for the share of her ancestral property, nor are such demands entertained by her parental family. The main reason for this is that, once married, she introduces a new member to the coparcenery property—her husband.

3. Stridhan (stri, meaning women, and dhan, meaning fortune or property in Sanskrit) literally means property of a woman. The Manusmriti first used the term stridhan to denote portions of property that can be owned by women alone. Women are regarded as a means of bringing more property to in-laws’ families by way of dowry. The language of the Dowry Prohibition Act (1961), India Code Act No. 28 of 1961, gives enough scope to convert stridhan into dowry in camouflaged ways. The text of all Central Acts of the Indian Parliament are available at http://indiacode.nic.in. The Acts can be searched by their popular names or Act numbers presented in this article.

4. India Code Act No. 39 of 2005.

5. Bhattacharjee, A.M., Hindu Law and the Constitution 120 (2d ed., House, E.L. 1994)Google Scholar.

6. The Puranas are the richest collection of mythology in the world. Most of them attained their final form around 500 A.D. but they were passed on as an oral tradition since the time of Krishna (c. 1500 B.C.). There are eighteen major Puranas and a few minor ones. The most important Puranas are the Vishnu, Siva and Markandaya Purana. They are believed to be written by Vyasa. All the Puranas belong to the class of Suhrit-Sammitas, or the Friendly Treatises, while the Vedas are called the Prabhu-Sammitas, or the Commanding Treatises with great authority.

7. Sudras were the lowest class and mainly served the other three higher classes of the Varna system, namely the Brahmins (priestly), Kshatriyas (princely) and the Vaisyas (commercial). They had no particular profession but many historians described them as slaves.

8. The word Varna is derived from the root “VR” to screen, veil, covering, external appearance-Varna also means color. Varna was used to denote groups having different skin coloration. The Aryans were fair skinned and the Dravidians black skinned. Apart from the skin color the four varna's applied specific color marks on their fore head (called chandan or kumkum) to identity themselves differently (The color difference may also be in their dress.). The brahmin applied a white chandan mark signifying purity, as his profession was of a priestly or academic nature. The kshatriya applied a red kumkum mark signifying valor as he belonged to warrior races. The vaishya wore a yellow kesar or turmeric mark signifying prosperity, as he was a businessman or trader devoted to creation of wealth. The sudra applied a black bhasma, kasturi or charcoal mark signifying service as he supported the work of the other three divisions.

But color is only one of the many aspects of the term. Varna also denotes species, kind, character and nature. Racial, tribal and familial solidarity also had a part to play in the origin of the Varna system. The divisions may have been made based on religious beliefs, cult practices, and even eating habits. Above all, there is the theory that the Varnas derived their basis from the Purushasukta (Rig Veda 10.90) in dividing mankind into four socially separate interdependent categories and this was incorporated in the Manu Dharmasastra.

9. Smriti (“that which is remembered”) refers to a specific body of Hindu religious scripture. Smriti also denotes non-Shruti texts generally, seen as secondary in authority to Shruti.

10. Śruti (“what is heard”) is a canon of Hindu sacred texts. They do not date to a particular period, but span the entire history of Hinduism, beginning with the earliest texts known, with some late Upanishads reaching down into modern times.

11. One of the prominent commentaries of Smritis, and it is divided into four sub-schools on the basis of geographic region, namely the Dravida, Maharshtra, Banaras and Mithila schools.

12. See Nair, Janaki & Natl. L. Sch. of India U., Women and Law in Colonial India: A Social History 196 (Kali for Women in collaboration with the Natl. L. Sch. of India U. 1996) (discussing the Mitahkshara generally)Google Scholar.

13. See id.

14. Diwan, Paras, Modern Hindu Law Codified and Uncodified 346–347 (10th ed, Allahabad L. Agency 1995)Google Scholar.

15. Id.

16. Bhagwandeen v. Maya Baee, 11 M.I.A. 487 (1867).

17. Sheo Shankar v. Devi Sana, 25 All. 468 (1903).

18. Kaseerbai v. Hunsraj, 30 Bom. 431 (1906).

19. Id.

20. Devi Prasad v. Mahadeo, 39 I.A. 121 (1912).

21. Vibha Sirothyia, Student Author, Stridhan And Womans' Estate Under Section 14 of Hindu Succession Act 1956, http://www.indlaw.com/publicdata/articles/articlel89.pdf (accessed Feb. 23, 2009).

22. DeviPrasadv. Mahadeo, 39 I.A. 121 (1912).

23. Diwan, supra n. 13, at 346-348.

24. Bijay v. Krishna, 44 I.A. 87 (1907).

25. 43 I.A. 207 (1916).

26. However, post independence, Hindu Succession Act (1956), India Code Act No. 30 of 1956, abolished the concept of woman's estate and conferred full rights to women over all types of property that have been discussed here. The broad discussions of the Hindu Succession Act (1956) are done below.

27. Katyana was an ancient Hindu legal text writer. See http://www.legalserviceindia.com/articles/kar.htm (accessed May 19, 2009).

28. Smriti Chandrika is a Hindu legal text written to supplement Mitakhshara, the ancient Hindu text for inheritance. It is more a sort of digest of ancient texts dealing with inheritance than a commentary. Bhatta, Devanna, Smritichandrika (Vyavaharakanda) (Pandit, L. Srinivasacharya ed., Gov. Oriental Lib. 1914)Google Scholar.

29. Bhavasvamin was an ancient Hindu legal text writer.

30. Smriti by Sage Yagnavalka, an ancient legal text writer.

31. Garg Manisha & Nagar Neha, Student Authors, Can Women be Karta?, http://www.legalserviceindia.com/articles/kar.htm (accessed Feb. 22, 2009).

32. The Muslim conquest in the Indian subcontinent mainly took place from the 11th to the 17th centuries, though earlier Muslim conquests made limited inroads into the region, beginning during the period of the ascendancy of the Rajput Kingdoms in North India, from the 7th century onward. Mahajan, V.D., History of Medieval India (Chand, S. 2004)Google Scholar.

33. The code of law derived from the Qur’an and from the teachings and example of Mohammed.

34. Originally a woman received gifts from her family during her marriage as a form security also, but slowly it turned into a compulsion for the bride's family to gift the Stridhan not to the girl but to the bridegroom, which was termed as Vara (bridegroom) dakhshina (payment) or payment to the bridegroom for marrying the daughter. This forceful demand of Stridhan remained an unprotected social evil until the creation of the Dowry Prohibition Act (1961)which defined Vara Dakhshina or “dowry” as

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 parents 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 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 (Shariai) applies.

Dowry Prohibition Act (1961), Act No. 28 of 1961, available at http://wed.nic.in/dowryprohibitionact.htm.

35. In the Mitakhshara jurisdiction, including Bombay and the Dayabhaga School, the legal commentators finally dictated that the share obtained in partition is not stridhan in its true sense. It was given the Colonial legal recognition as “women's estate” in Devi Prasad v. Mahadeo, 39 I.A. 121 (1912).

36. 34 I.A. 87 (1907).

37. Sirothyia, supra n. 20, at 4.

38. Sati is the practice of burning the Hindu widows alive with their husbands. This practice became more common during the Muslim rule in northern India to protect the chastity of Hindu women from the Muslims. But this heinous practice became more in vogue in northern, western and eastern India in the 17th and 18th centuries, mainly to kill the widows so that they could not claim the property of their deceased husband. By the end of 18th century, the British rulers in India, along with the social reformers like Raja Ram Mohan Roy, made strict rules preventing the practice of Sati. In modern India the practice of Sati is considered to be a criminal act and punishable by both the Sati Prevention Act and the Indian Penal code, along with the Criminal Procedure Act. But unfortunately still in interior parts of Northern India, the ritual of Sati is practiced, even though very rarely. Arvind Sharma, Sati: Historical and Phenomenological Essays (Motilal Banarsidass 1988).

39. Basu, Srimati, Dowry and Inheritance: Issues in Contemporary Indian Feminism 318 (Zed Books 2005)Google Scholar.

40. Subramaniam, Narendra, Family Law and Cultural Pluralism, in Encyclopedia of India 55–58 (Wolpert, Stanley ed., Charles Scribners Sons: Thomson Gale 2006)Google Scholar.

41. Diwan, supra n. 13, at 352.

42. Raja Ram Mohun Roy (Aug. 14, 1774-Sept. 27, 1833) was best known for his efforts to abolish the practice of sati, the corrupted Hindu funeral practice in which the widow was compelled to sacrificed herself on her husband's funeral pyre. It was he who first introduced the word “Hinduism” (or “Hindooism”) into the English language in 1816. For his diverse contributions to society, Raja Ram Mohan Roy is regarded as one of the most important figures in the Bengal Renaissance and is hailed as “the father of modern India.”

43. B.R Ambedkar, Law Minister of India, Remarks on the Hindu Code Bill 599 (C.A. (Leg.)D., Vol. IV, 9,b April 1948, pp. 3628-3633) (available at http://www.ambedkar.org/_ambcd/) (To locate Remarks on site: 1) click on Debates/Interviews, 2) click on “8.” On the Hindu code Bill: Part I,” 3) scroll to Section I, [f4] Hindu Code, ¶¶6-11) (The quoted material is extracted and reformatted for ease of understanding.).

44. Hindu Succession Act § 14(1) (1956).

45. Id. at § 14(2) (discussing property given with limitations).

46. Diwan, supra n. 13, at 354.

47. Deenadayal v. Raju Ram, 1970 S.C.R. 1019 (1970) (Hedge, J.).

48. Suraj Mal v. Babulal, 1985 Del. 95 (1985).

49. Kailash v. Kishan, Pat 154.

50. Id.

51. Id.

52. Sripatinath v. Ira Ram, 1992 Cal. 60 (1992).

53. Kalamma v. Veeramma, 1992 Kant. 362 (1992).

54. Usha v. Smriti, 1988 Cal. 115 (1988).

55. In the Marumakkattayam law, which prevailed in Kerala wherein the families were joint families, a household consisted of the mother and her children with joint rights in property. The lineage was traced through the female line. Daughters and their children were thus an integral part of the household and of the property ownership as the family were matrilineal. It is applicable to a considerable section of people in Travancore-Cochin and districts of Malabar and South Kanara. It is followed by non Brahmin castes, Nairs and Thyas, other cognate castes and Payyannur Graman of North Malabar. Under the Marumakkattayam system of inheritance, descent and succession to the property was traced through females. The mother formed the stock of descent and kinship as well as the rights to the property was traced through females and not through males. Marumakkattayam literarily meant inheritance by sisters' children as opposed to sons and daughters. Word “Marumakkal” in Malayalam means nephews and nieces. It is generally agreed by scholars that matrilineal system was the direct result of some system of polyandry that existed among ancient races. Descent through females indicated uncertain paternity. It has been unanimously agreed by the historians that the origin of this system is traceable to polyandry prevalent in ancient Malabar.

S.J. Prasanth & Shastri Shivani, Student Authors, Should Women be Given Coparcenary Rights?, http://www.manupatra.com/PopUp/PopOpenArticle.aspx?ID=afd18f30-7d79-477e-8271-44b5ed62f8dl&a=08518b77-12a6-4d60-8f8e-08e494e015d6 (accessed Feb. 23, 2009) (subscription required for access). 56.

This system is applicable in South Kanara. The Bunts, the Billawas and the non Priestly class among the Jainas in Kanara are governed by this system. This tradition came into practice and was followed by every one in the Bunts' community with the belief that it was an ancient practice. Bunts still believe that this tradition was inherited from a King Bhutala Pandya who ruled Tulunaadu and introduced this system in 77 A.D. The Aliyasantana system is the system of inheritance through female line which gives property rights to the lady and all rights are centralized on her, example: Some of the surnames of Bunts come from the mother side; the name of the mother's ancestral house normally became the prefix or suffix of one's name. This may be because when men went to the battlefield, the wife took the whole responsibility of the family and became the decision-maker. So in the Aliyasantana system more importance is given to the mother's side of the family. More respect is given to maternal uncles than to the paternal uncles.

Doshi Manita, Student Author, The Marumakkattayam and Aliyasantana System, http://www.legalserviceindia.com/articles/mds.htm (accessed Feb. 23, 2009).

57. Law Commission of India 174th Report, Property Rights of Women: Proposed Reforms under the Hindu Law, D.O. No.6(3)(59)/99-LC(LS) (May 5, 2000), available at http.V/www.lawcommissionofmdia.nic.in/kerala.htm (emphasis added).

58. Sec. 3 of the Dowry Prohibition Act makes taking, giving or abeting the act of dowry a penal act with imprisonment for five years and a fine of fifty thousand rupees. The Dowry Prohibition Act § 3 (1961), http:wcd.nic.in/dowryprohibitionact.htm (accessed Jan. 5, 2009).

59. Id. at §2.

60. 1985 S.C.R. 628.

61. Prativa Rani v. Suraj, Kumar 1985 S.C.R. 628 (emphasis in original).

62. Subhamoy Das, Hindu Succession (Amendment) Act (2005): Equality for Women (Sept. 10, 2005), http://hinduism.about.eom/od/history/a/successionact.htm (accessed May 22, 2009).

63. The word Karta denotes Lord in Sanskrit. In ancient Hindu codes the word Karta has been used to depict the main owner or the Lord of the property who is usually the male descendant. The modern Hindu Succession Laws in India also use the word to denote the main owner of the property.

64. Garg Manisha & Nagar Neha, Student Authors, Can Women be Karta?, http://www.legalserviceindia.com/articles/kar.htm (accessed Oct. 19, 2008).

65. Id.

66. Diwan, supra n. 13, at 345 n. 2.

67. The lawmakers.

68. Sakti means the ultimate power. The Ancient Hindu mythology describes Sakti as a female goddess in the forms of Durga, Kali and Chandi.

69. Ardhangini means the other half. In the Sanskrit language it denotes wife.