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Daughter's Right of Inheritance in India: A Perspective on the Problem of Dowry

Published online by Cambridge University Press:  28 November 2008

Lucy Carroll
Lucy Carroll
Affiliation:
University of Texas
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Extract

One may argue that it [i.e., dowry] is nothing but a gift of love and affection by the bride's father who is not obliged to give any share to his daughter by birth. Now, however, the law of succession has been changed, giving equal right of inheritance to the daughter along with the son under the Hindu Succession Act, 1956.

Type
Articles
Information
Modern Asian Studies , Volume 25 , Issue 4 , October 1991 , pp. 791 - 809
Copyright
Copyright © Cambridge University Press 1991

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References

Paper presented at the University of Texas, Austin, April 2, 1986. I am indebted to the Center for Asian Studies, University of Texas, Austin, for appointing me Visiting Scholar in Residence, and to the staff and faculty associated with the Center for the gracious hospitality which was extended to me during my tenure.

1 Rao, R. Jaganmohan, ‘Dowry System in India–A Socio-Legal Approach to the Problem,’ Journal of the Indian Law Institute 15 (1973): 617–25, at p. 620.Google Scholar

2 Strictly speaking, the son takes an interest in the property from the moment of his conception, reckoned back from the date of his birth, at which time it becomes apparent that the fetus was male.

3 ‘But …the four generation rule of coparcenary rights and the right of partition granted members did produce the fission of the ideal corporation. When partition takes place the coparceners become independent owners and cannot any more exercise survivorship rights in respect of one another. The property must descend according to the ordinary rules of inheritance–to the issue of these separate owners.’ Tambiah, S. J., ‘Dowry and Bridewealth, and the Property Rights of Women in South Asia,’ in Goody, J. and Tambiah, S. J., Bridewealth and Dowry (Cambridge: C.U.P., 1973), p. 78, emphasis added.Google Scholar

To be sure, an individual can deal with the property he obtained on a partition as if he were an ‘independent owner’ as long as (1) he did not have a son at the time of the partition, or (2) a simultaneous partition took place between himself and his son or sons (partition during the father's lifetime is rare); but he may do so only until a postpartition son is born to him. (‘Son' here includes the son of a predeceased son and the son of a predeceased son of a predeceased son.) If he had a son at the time of the partition and if there were no simultaneous partition between himself and his son, the partition merely results in a smaller coparcenary being created; no ‘independent owner’ emerges, even temporarily. If he did not have a son or if a simultaneous partition did take place, a temporary situation of ‘independent ownership’ results. The moment a post-partition son is born to such an ‘independent owner’, a new coparcenary is created as respects the property which the ‘independent owner’ obtained on the partition and such property will pass by survivorship to the other coparcener(s) (i.e., the son or sons of the person who, temporarily being a sole coparcener, temporarily had rights of ‘independent ownership’), not by ‘the ordinary rules of inheritance’.

4 ‘Generally speaking, the normal state of every Hindu family is joint. Presumably every such family is joint in food, worship and estate. In the absence of proof of division, such is the legal presumption.’ Desai, S. T. (ed.), Mulla—Principles of Hindu Law (14th edn, Bombay: N. M. Tripathi, 1978), p. 284.Google Scholar

5 As to the son hypothetically born to B after the partition between B and B1, we may assume that B remarried and that the partition between B and B1 took place on B1's insistance because he realized that his father intended to remarry.

6 Daughter; widow; mother; daughter's son; daughter's daughter; son's daughter; son's widow; son's son's daughter; son's son's widow.

7 The complications which arise because of the presence of a mother or widow on the scene are as nothing compared with the complications arising from the fact that within any one coparcenary there can simultaneously be one or several smaller coparcenaries.

8 If S1 had kept the 1/12th share he received by inheritance to his father as his separate property, his sisters would share equally with the brother in this 1/12th. If he had merged this share with his coparcenary interest, it would pass as part of his coparcenary interest exclusively to his brother S2.

9 For a discussion of Muslim law of succession, see Carroll, Lucy, ‘The Hanafi Law of Intestate Succession: A Simplified Approach,’ Modern Asian Studies 17 (1983):629–70;CrossRefGoogle Scholar and Carroll, Lucy, ‘The Ithna Ashari Law of Intestate Succession: An Introduction to Shia Law Applicable in South Asia,’ Modern Asian Studies 19 (1985):85–124.CrossRefGoogle Scholar

10 A Muslim may dispose of more than one-third of his estate by will if such disposition is ratified by the heirs. The share of any heir ratifying the excess bequest is reduced, but the share of the non-ratifying heir is not reduced. For an example of the calculations involved, see Carroll, Lucy, ‘Sunni Testate Succession: Some Queries,’ Islamic and Comparative Law Quarterly 4 (1984): 204–9;Google Scholar and Kulay, F. M., ‘Rejoinder to Lucy Carroll,’ Islamic and Comparative Law Quarterly 6 (1986):92–5.Google Scholar

11 Supra note 4, p. 348; emphasis added. The passage continues: ‘Thenceforth the share of each member will on his death pass to his heirs. The members having separated, the principle of survivorship ceases to apply.’ These two sentences are very misleading in that the share each member takes on a partition is ancestral property in which his existing undivided sons and any subsequently-born sons possess coparcenary interests; as between and among such members of the smaller coparcenary created by partition of the larger coparcenary succession will be by survivorship and not by inheritance.

12 Quoted in Manushi, August–September. 1983, p. 8.

13 Nagpal, Ramesh Chandra, Modern Hindu Law (Lucknow: Eastern Book Co., 1983), p. 600.Google Scholar

14 Supra note 1.