This article is written by Ayush Agarwal.

Introduction

“A woman is protected by her father in childhood, by husband in youth and by son in old age; she is not fit for independence”.

This above quoted line is from the ancient text, Manusmriti. Since the earliest times, the Indian culture has restricted the Hindu women’s legal right to inherit property. In the patriarchal society, the Hindu women were denied the legal rights to inherit the ancestral and marital property. The only property which she was entitled to was Stridhan (property which she obtains at the time of her marriage). However, with the emergence of different schools, the plight of women was lessened up and she was granted more rights in certain properties. As the time passed, various legislations (concerning the rights of the Hindu women) were enacted which resulted in removing barriers and moved towards more equality in the field of property rights of Hindu women.

The author in this article will try to analyze the different phases of development in the aforementioned field and for this purpose the article is divided into three parts i.e. ancient, medieval and modern so as to critically examine different phases through which the barriers of inequality were diluted w.r.t. property rights.

The ancient period

In the earliest times women were considered unfit for independence. They were treated like an object which was to be preserved by the male guardians of the family. “Na stri swatantramarhati-‘Swatrantam Na Kachit Striyah”. This quote is nothing but the rule which was followed by our ancient society which means that you cannot allow women to be independent. 

If we look through our Indian ancient scriptures, then we can see that there is no mention of the property rights for an unmarried woman. She was only entitled to inherit property after marriage, and that too only Stridhan. However, she was never entitled the absolute ownership of that Stridhan. This was because of the rule followed by the society (as duly stated above) and also because of the teachings from Manusmriti.

This position started to evolve after the emergence of various schools of Hindu Laws. The Mitakshara and the Dayabhaga were the most prominent schools which are based on the different interpretation of the Yagnavalkaya Smriti. These schools of thoughts came into place when the commentaries on the Vedic literature were being written. The rules which were formulated by these two schools are regarded as most prominent and are used as basic principles governing the inheritance law.

Mitakshara School

This School of thought was followed mostly in every part of India except the eastern part. This school is further sub divided into four schools of thought i.e. Dravida, Banaras, Mithila and Maharashtra. The distinguished characteristics of this particular school are as follows-

1. The blood relation plays the most important role in the matters of inheritance.
2. Made a peculiar distinction between the male and female heirs.
3. What are the restrictions which should be placed on the coparceners in the matter of shares in the joint family.

The Mitakshara School stated that the women should not be allowed to become a coparcener and also the widow of the deceased coparcener should not have any right to enforce the partition of the property against the brother coparceners. However, she have every right to ask a share in the partition which is enforced by her husband or sons.

Dayabhaga School

It was another most prominent school of thought after the Mitakshara School. It was followed in eastern part and that too mainly in Assam and Bengal. Its distinguished characteristics are as follows-

1. The spiritual offerings given to the deceased ancestors give rise to the right to inheritance.
2. The right over the property arises on the death and not on the birth.
3. Every share in the Hindu family property is specific and each brother can see his specific share.
4. In the case non availability of male descendents, the widow has the right to enforce partition and can succeed the share of the husband.

The Mitakshara School is more conservative as compared to the Dayabhaga School of thought. It did not recognize the right of women to inherit the property from her husband’s family. They were only allowed to possess the Stridhan.

The concept of Stridhan was very ambiguous before the emergence of the schools as there was no clarity regarding the succession rules and the characteristics. But the Mitakshara School defined the legal and technical meaning of the Stridhan. Beside this, it expanded it to include nine types- 

1. Gifts and Partnership Bequests;
2. Offerings and legacies of strangers;
3. Land gained by self-effort and the mechanical arts;
4. Land acquired via Stridhan;
5. Land obtained by transaction;
6. Land gained by wrongful possession;
7. Land gained in lieu of maintenance;
8. Property received by inheritance; and
9. Share received by partition.

These successions were classified as Stridhan by the Mitakshara. But, the Privy Council differed from the ancient school of thought. In the case Bhagwandeen v. Maya Baeef it was held that when the women inherit any property from the male then it loses its characteristics of Stridhan and transforms into women’s estate.

If we look through the characteristics of every ancient school of thoughts, then we can come onto a conclusion that they differed on the topic of Stridhan but there was unanimity regarding the women’s estate i.e. when by the way of partition women inherit any property, then in that case that property does not come under the ambit of Stridhan but women estate. 

As the time passed, the concept of Stridhan got distinguished into two types- a. the sauadayika b. the non-sauadayika. In the first type of Stridhan, the women were given every right to dispose off the property according to her will. This property was acquired by her by the way of self exertion or by the way of mechanical arts during her maiden or widowhood. The second type of Stridhan is the one in which the women do not have any right to alienate the property without the consent of her husband. This property was acquired by her after her marriage. Also, in this type her husband too has the power to use that property but not in the first one.

So basically in the ancient period the rights of the Hindu women were only limited to that of Stridhan and many a things in relation to the property rights were also not clear at that period of time. She was restricted to the right of property in many a senses. She was thought to be inferior and was never recognized as a full owner of the landed property. The fight for their property rights gave birth to many socio-religious crimes which were given the status of legality in the name of protecting the landed property of the family. The socio-religious crimes were bigamy, female infanticide, remarriage of the male and many more such practices which were made acceptable in the situations when she was not able to give a male heir to the family. 

The medieval period

This period can be said to be darker than the ancient period. In this period, the Stridhan lost its implicit meaning i.e. ‘women’s property’ and was transformed into a status symbol. It slowly turned into a compulsion for the bride’s family to provide Stridhan, not to the bride but to the bridegroom. In literal sense, it became a amount which was given to the bridegroom so as to marry the bride. This was termed as Vara Dakhshina (Dowry), where Vara means Bridegroom and Dakhshina means payment. It became a forceful demand and was the birth of a new unprotected evil in the society. This was unprotected till the enforcement of Dowry prohibition Act (1961).

Now, major changes were seen in the field of women’s estate in this period as it obtained favorable recognition due to some of the social cultural reasons. When a woman used to receive a property by either of the means i.e. (i) by the way of inheritance by the male members of the family specially her husband or her father-in-law or (ii) by the way of partition of the property, then in that case she was made subject to the two limitations which are-

1. She does not have the right to ordinarily alienate the corpus.
2. It devolved on her death to the next successor of the last complete lord, also known as the reversioner.

Now, the customary laws gave three cases in which the women have the right to alienate the property. These cases are as follows-

1. When there arises a legal necessity which can be for herself need or can be a need of the dependants who are based on the last owner.
2. When it is a case in which the benefit of the estate is involved.
3. When she has to discharge some of her indispensable duties i.e. husband’s funeral rites, daughter’s marriage, and alienation of the estate when it’s the matter of spiritual offering of the last owner but it does not involve her own spiritual benefit.

If we visit the above points, then we can come onto a conclusion that the position which she use to obtain in the matter of landed property was of a mere caretaker which was for the sake of the male members and nothing else.

The major changes in the field of the women estate can be said to only develop limited ownership rights for the women which were also done for a purpose. This purpose was to save the ancestral Hindu properties from the Mughal rulers in the cases when the full owner of the property dies intestate. They were used as a mode of transfer for the transfer of the succession rights to the male member which was to be the closest to her husband. If the husband died intestate, then in that case the widow of that male member was declared to be the limited owner of that property whose owner was her husband. She was only allowed to wear white sari and all the ornaments were to be taken away from her (also forcefully).

During this period, one of the prominent socio economic crime which took birth was Sati. It is a practice in which the young widows were burnt alive (in most of the cases forcefully) when her husband used to die intestate. This socio economic crime took birth so that the widows do not ask the limited ownership rights in the landed property of her husband. This was used to practice on the young widows and the old widows were left to beg i.e. they were not forced as compared to the young ones. 

By the way of above discussion we can comprehend that the Hindu women were continued to be tortured even in this period. They were tortured for being born as a girl child who were able to demand a limited ownership in landed properties, can demand a share in the property in the name of Stridhan, has to be given some form of wealth as dowry at the time of marriage and many more.

The modern period

The medieval period was till the Mughal rulers were in power. The Modern period starts after the invasion of the British rulers. Hindu family and customary laws continued to be practiced under their ruler ship. They even introduced many uniform laws in the field of family law and also recognized various distinctive Hindu laws for several cultural and religious groups. Hence the succession and inheritance laws were governed by the two prominent schools of thought i.e. Mitakshara and Dayabhaga till the end of the 20th century.

The British ruler’s first attempt in the field of uniform laws for the succession rights of the Hindu women was the act namely Hindu Women’s Right to Property Act (1937). This act basically emphasized the women’s estate. This act was the very first one in the field of uniform laws which ended a long standing controversial debate over the topic of Stridhan (basically the characteristics). It established some permanent degree of the rights for the Hindu women on the topic of landed property (though limited) which they acquire from the male members of her family, especially by her husband.

This act documented three types of widows-

1. A widow whose husband has died intestate.
2. A widow of the pre-deceased son.
3. A widow of the pre-deceased grandson whose father is pre-deceased.

By the virtue of this act, the widows were given a share in the landed property like a Mitakshara coparcener. This act was come into power so as to improve the situation of the Hindu women and it was especially directed towards the young widows. The pressure for this social reform came from the combined efforts of the Indian and European social reformers, in that too the most prominent figure of this social reform was Raja Ram Mohan Roy.

Despite being a noble step towards the reforms, it did have some flaws which are as follows-

1. It failed in giving the guarantee for any rights to the women successors in the case when the deceased disposed off his property by the way of will.
2. The act did not mention anything about the shares of the Hindu women in the landed property which was in the field of agricultural lands.

Now, there limited interest in the property still continued after the India got Independence. During the legislative debate in the year 1948, Dr. B.R. Ambedkar pointed out the disadvantages of the existing laws and suggested some reforms (a new Hindu code bill) in that field. These reforms are as follows-

1. A daughter, a widow or a widow of the pre deceased son should be given an equal share or an equal rank to that of the son in the matter of inheritance.
2. A daughter should be given some share in the property of her father and her share should equal to half of the son’s share.
3. The female heirs in the family ought to be recognized more than under Mitakshara or Dayabhaga.
4. Under the guise of old law, some discrimination was made against the women on the basis that she is rich or poor, married or unmarried, she is with or without any cause. All these discriminations were meant to be abolished by virtue of this Hindu code bill.
5. The father was the one who used to succeed before mother in preference under the Dayabhaga law. This position was meant to be altered by the way of this Hindu code bill.
6. It recommended consolidating every type of Stridhan so as to bring some uniformity in the field of succession.
7. The son was also allowed or can be said to be given some rights in the matter of Stridhan. He can able to possess half the share of the Stridhan which the daughters inherit.
8. The concept of limited ownership was changed to the absolute ownership.
9. This bill abolished the reversioner’s right to claim property after the widow.

These were the major reforms which were suggested by the way of this new Hindu code bill. It can be said to take the first step so as to make the limited ownership to absolute ownership rights.

Now, on the suggestions which were based on the Hindu code bill, the Hindu Succession Act (1956) was adopted which was basically enacted so as to end the practice that did not allowed the women to inherit property from the male heirs of the family. By the virtue of this act, the women’s estate was converted into Stridhan (according to article 14 of this particular act). It said that the property acquired by a Hindu woman after June 17, 1956, will be termed as an absolute property.

But if we look through the act, we can comprehend that the act was meant for the unmarried females or daughters to claim the inheritance rights and it fails to give a full ownership over the property. The Section 14(2) states that any or person or the court has the retaining power to give a limited share in the property as in the manner it may be given to any other person. This section only converted the limited ownership to absolute ownership only on the two given situations- (a) The ownership should vest in her and that ownership shall not be limited in any case. (b) She should have been in the possession of that property before this particular act came in force. This act was also silent on the matters in which the women’s husband dies intestate, than what will be the rights of the widow towards that property. Except maintenance, she was having no right to claim that property as an absolute.

Even though there were some minor changes through the act, but it was not completely flawless. There were several issues which were continued through this act which represents the discrimination between the male and female heirs of the family. One of which was the partition of the dwelling house. Section 23 of the act clearly discriminates the female heir by stating that she has no right or she should not be considered a successor in the partition of the dwelling house. She has mere right of residence and that too only when she is unmarried. Hence it can be aid that the act was not able to do away will all the age old discrimination processes.

Now, after this act, many a states started adopting some unbiased succession rules so as to do some sort of development which the act of 1956 failed to do. The Hindu Succession (Andhra Pradesh) Amendment Act in the year 1985 can be said to make a remarkable development. This law stated that Mitakshara law was in violation of right of equality and stated that the daughter should have the rights equivalent to that of son in all the circumstances. Many a states have made amendment in their respective states stating women to be among the members of coparceners. But there were many states too that were reluntant on this matter and refused to adopt it.

The 174th law commission was the one which took some measures so as to end this discrimination. It particularly stated that it was not right to discriminate the daughter and women just because of sex. It was the demand of the social justice that women be treated as an equal in the economic as well as the social sphere. The law commission took into consideration of the laws which were formulated by the states and took some revolutionary steps by bringing some changes in the ancient laws of Mitakshara and Dayabhaga by stating that the Hindu women should also be given an equal share in their ancestral properties, thus amending the Hindu Succession act (1956).

Based on the recommendations of 174th Law Commission comes the Hindu Succession (Amendment) Act 2005 which entitled Hindu women to be the coparceners in the property of their ancestors. Section 6 went under a major amendment, through which the daughters got the equal rights over the ancestral property. It basically told that the daughters have a right to be a coparcener since birth which cannot be taken away. And also she has equivalent rights as that of the son. It basically ended the age old tradition of giving the property only to the male heirs when the owner dies intestate. The effect of this act was that women were now able to become the karta of the family and enjoy the right of the partition. Also, now she can be entitled to enjoy the property as an absolute. 

After the enactment of the abovementioned act, there arose a problem w.r.t. enforcement of the amendment. The SC tried to solve the problem in three different cases. The first case was Prakash v. Phulavati (2016) in which the court opined that father should have to be alive on the date when the act was enforced, thus the daughters were only able to claim the benefit if the father died after the enforcement of the act. After this judgment, in the year 2018, in the case namely Danamma v Amar Singh the court held that if the father may have died before 2005, then also the daughter can be benefited from this amendment. This judgment caused a lot of chaos because both the cases were decided by 2 judges’ bench and created a lot of confusion (as to which case should be followed). So finally in the year 2020, in the landmark judgment in the case Vineeta Sharma v Rakesh Sharma, the court resolved a long standing confusion and held that Father need not be alive till 2005. The daughter has the coparceners right since birth and hence can be entitled to the property of the father who may be alive or not.

Conclusion

The fight for the equal property rights has a very long history of its own. The women were subjected to various socio-economic problems and were treated like an object. They were tortured for being born as a daughter. But as the time passed, the socio-economic problems were realized and were worked upon which resulted in the equality of rights. The Hindu Succession (Amendment) Act, 2005 brought a revolutionary change in the history of succession and inheritance law by making the women karta of the family, ending the long standing discrimination.

But still there are cases of forceful demand of Stridhan, female infanticide and various such social issues regardless of presence of several criminal laws. All these matters (whether directly or indirectly) are linked to the property matters. The punishment for the aforesaid crimes should be made more stringent and also we should look out for the ways so as to adopt a better moral policy for the women which can result into lessening of the abovementioned crime towards women.

Bibliography

STATUTES-

1. The Dowry prohibition Act, 1961.
2. The Hindu Women’s Right to Property Act, 1937.
3. The Hindu Succession Act, 1956.
4. The Hindu Succession (Andhra Pradesh) Amendment Act, 1985.
5. The Hindu Succession (Amendment) Act, 2005.
6. Law Commission of India, “Property rights of Women: Proposed reforms under the Hindu Law, Report No.174 (May 2000).

CASES-

1. Bhagwandeen v. Maya Baee
2. DeviPrasad v Mahadeo
3. Bioy Gopal Mukherji v. Krishna Mahishi Debi
4. Prakash & Ors. v. Phulavati & Ors.
5. Danamma v Amar Singh
6. Vineeta Sharma v Rakesh Sharma.

ONLINE RESOURCES AND MATERIALS-

1. George Buhler, Manusmriti, The Laws of Manu- Part I, available at https://www.hinduwebsite.com/sacredscripts/hinduism/dharma/manusmriti_1.asp (Last visited on September 9, 2020).
2. Milind Rajratnam, Hindu Succession Act: Demystifying Stridhan and Women’s Estate, April 23, 2020, available at https://www.latestlaws.com/articles/hindu-succession-act-demystifying-stridhan-and-women-s-estate-by-milind-rajratnam/#:~:text=Stridhan%20is%20the%20property%20that,the%20time%20of%20bridal%20procession. (Last visited September 9, 2020).
3. A.M. Bhattacharjee, Hindu Law and the Constitution, Eastern Law house Pvt. Ltd. (1994).
4. Janaki Nair, Women and Law in Colonial India: A Social History (1996).
5. Available at http://www.differencebetween.net/miscellaneous/religion-miscellaneous/difference-between-dayabhaga-and-mitakshara-in-hindu-law/ (Last visited September 9, 2020).
6. Paras Diwan, Modern Hindu Law Codified and Uncodified, Allahabad L. Agency (1995).
7. Vibha Sirothyia, Stridhan And Womans’ Estate, available at www.indlaw.com/publicdata/articles/article189.pdf (Last visited on September 9, 2020).
8. Jaishankar Karuppannan and Raksha Shakti University, Property Rights of Hindu Women: A Feminist Review of Succession Laws of Ancient, Medieval and Modern India, Journal of Law and Religion (January, 2008).
9. Narendra Subramaniam, Family Law and Cultural Pluralism, Stanley Wolpert ed., Charles Scribners Sons: Thomson Gale (2006).

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