This article is written by Jannat, a law student from Chandigarh University, Mohali. The article examines the evolution of the rights of women in Hindu Law with special reference to the Hindu Succession Act.

Introduction

Gender inequality in India manifests itself in a variety of ways, but the most common is in the area of effective property rights. Various laws have been passed to eliminate women’s economic reliance and provide them high status and equality. In addition, the Constitution of India ensures equality, bolstering women’s property rights and access to economic resources. Despite all of this, women’s situation remains unchanged. Women’s deplorable condition is due to illiteracy, lack of knowledge, and non-implementation of women’s welfare law. Due to family standards, societal shame, and related expectations, even women themselves are less interested in enforcing their rights.

Historical fallacies

Ancient Hindu law is thought to have been particularly severe on women, denying them sexual and economic freedom. ‘A woman must be reliant on her father in childhood, upon her husband in youth, and upon her sons in old age,’ Manu, the arch lawgiver, stated in support of this assumption. “She should never be allowed to be free.” It’s also thought that the arrival of modernity during the colonial era aided in the loosening of this rigorous sexual control by providing women with the opportunity to possess property.

However, few people are aware that Manu is the first lawgiver to lay down comprehensive principles concerning women’s separate property, roughly 2,000 years before the English legal system accepted this principle and issued a warning to friends or relatives of a woman who, out of folly or avarice, live on her property, or the wicked ones who deprive her. Similarly, Narada‘s rule that during his second marriage, the husband must surrender one-third of his fortune to his first wife is obscure information.

With its roots in a feudal society based on agricultural landholdings, the smritis and commentaries imposed a patriarchal household structure that limited women’s entitlement to the property. A Hindu man’s property devolved via survivorship jointly upon four generations of male heirs under the Mitakshara law. The ownership was inherited rather than passed down through the generations. The male member was given the right to property when he was born. 

Even though the male members possessed property, this ownership could not be compared to today’s concept of ownership, which effectively provides the right of alienation. The inalienability of joint property was its defining feature. The property could not be sold, gifted, or left in a will. As a result, male shared ownership was more symbolic than real. The land was maintained by the family’s patriarch, the Karta, for the benefit of the whole clan, including the women. In fact, before the land was partitioned, male members’ rights were simply maintenance rights. Even after division, each coparcener’s property remained joint property, held in trust with his male successors for the benefit of the next line of ancestors.

Women did not have the hypothetical right of joint ownership since they were not part of the customary joint family property or coparcenary. As a result, they were unable to demand division. Women, on the other hand, had the right to be maintained from the joint property, which included the right of residency. Women also had the ability to deduct marriage expenditures from their birth home’s shared property.

Despite her shortcomings, such as quarrelsome personality, domestic negligence, barrenness, and infidelity, the husband was obligated to support the wife. He was free to marry again, but he had a legal duty to support his first wife. In addition, the wife was entitled to a ‘supercession fee,’ also known as a ‘sulka,’ which was an equal portion of the property that the husband gave to the new wife.

Women could not readily be deprived of their right to residence and maintenance after marriage since divorce was not popular. In addition, in certain circumstances, such as cruelty or adultery, a woman had the right to claim separate residence and maintenance, which was codified in the Hindu Woman’s Separate Residence and Maintenance Act, 1946.

The subversion of the stridhan property

Gautama and Manu, the first smritikars, named six types of stridhan property (or stridhana-literal meaning woman’s property). A subsequent smritikar, Vishnu, added four more categories to the list. Later, sages like Yagnavalkya, Katyayana, Narada, Devala, and others expanded the scope even more. The addition of the term adhya (meaning ‘and the rest’) to the enumerations of Manu and Vishnu by Yagnavalkya (about AD second century) broadened the scope of stridhana.

The Katyayana Smriti places a strong focus on stridhan and goes into considerable detail about it. ‘Neither the husband nor the son, nor the father, nor the brother has authority over stridhana to take it or to give it away,’ Katyayana emphasized exclusive ownership, both in terms of sale and gift, and stipulated, ‘Neither the husband nor the son, nor the father, nor the brother has authority over stridhana to take it or to give it away.’ This injunction is almost like a warning to male members to stay away from the woman’s belongings. If the husband took out a loan against the woman’s stridhana money, he was legally obligated to return it with interest.

‘It is undoubtedly notable that the institution seems to have been created among the Hindus at a date comparatively considerably earlier than Romans,’ said Sir Henry Maine in his Early History of Institutions (1875) while discussing the institution of stridhana. However, he appeared to be under the mistaken assumption that it had steadily degenerated to a minor post.

Mitakshara (Vijnaneshwara, 11th century AD), the most widely recognized source of Anglo-Hindu law, expanded the scope of the term Adhya mentioned by Yagnavalkya and established that a woman’s stridhana is property acquired by her through inheritance, purchase, partition, seizure (adverse possession), and finding. Every kind of property was brought under the purview of stridhan as a result of this enlargement, and the woman was given sole ownership of it.

The established authority of the Bengal school, Dayabhaga (Jimmutavahana, AD twelfth century), did not recognize the concept of shared male ownership or coparcenary. There was no need to provide a broad understanding of the term because there was no coparcenary spanning four generations. As a result, stridhana was limited to gifts and movables under the Dayabhaga system. In all other schools, stridhana refers to both mobile and immovable property. According to the Bombay, Benaras, and Dravida Schools, property gained by a woman by her efforts was her stridhana.

Codified law and illusory inheritance rights

G.V. Deshmukh introduced the Hindu Women’s Rights to Property Bill, 1937. He hoped to achieve equality between Hindu men and women in respect of their property. The Bill was received with fierce opposition, and Deshmukh was mocked for bringing it. A washed version of the original Bill was eventually adopted after much discussion. By adopting an English notion called widow’s estate, the clauses of the Bill providing women absolute right to property were shredded, and widows were allowed only a restricted right of inheritance. The provision awarding daughters a portion of the family’s assets was removed. The Bill’s primary goal was to reinstate the right of married women to separate property under the Scriptural concept of stridhan was subverted. Women’s property rights were restricted to the narrow domain of widows’ inheritance rights. The Act, on the other hand, caused more issues than it solved. The first Hindu Law Committee was established in 1941 to add clarity to the Act, and it proposed the adoption of a complete code of marriage and succession. In 1944, the second Hindu Law Committee was formed as a result of this.

Hindu Succession Act, 1956

In the realm of women’s property rights, the Hindu Succession Act, 1956 has been hailed as a watershed moment in Indian history, as it overturns the patriarchal structure that has been established in Indian culture, where only male agnates have the ability to own and inherit property. The notion of women’s property existed only in the form of Stridhana, which was highly intricate and limited. This Act changed Hindu women’s restricted ownership to absolute ownership, making them the sole owners of their property with no limitations on how they might dispose of it. It increased women’s economic strength and gave them social and economic independence.

Hindu Succession (Amendment) Act, 2005

In terms of Hindu women’s property rights, the Act of 1956 left several areas unaddressed that discriminate against them. As a result, after fifty-eight years of independence, the then government amended the Act of 1956 in 2005, with the goal of strengthening Hindu women’s economic capability. This Act was approved on the 5th of September 2005, on the advice of India’s 174th Law Commission, and is considered a watershed moment in the history of Hindu women’s rights. The latest proposal to modify the Hindu Succession (Amendment) Act, 2005, is a major turning point for women’s rights. Females have absolute and equal inheritance rights under the law. It turned a daughter into a coparcener with the same rights as that of a son. After the 2005 amendment Act, she can also be a Karta. The 2005 Act addresses inequities in ancestral property, dwelling houses, and widows’ rights, and protects the interests of some new heirs by adding them to the Class I heirs list.

In fact, it goes a step further in ensuring women’s social justice and equality. It effectively puts an end to the ancient Hindu law that stripped women of their property rights. The Hindu women’s community applauds this legislation. Mitakshara’s Hindu girl will now be born with a silver spoon in her mouth as well. She will have all of the same rights as her male counterpart. She is, nevertheless, subject to the same liabilities as a man in terms of coparcenary property. She is allowed to seek division in the dwelling house under the Amendment Act of 2005. The prohibition that prevented a widow from inheriting her husband’s property if she remarried has also been removed.

Role of judiciary

Colonial period 

Several judicial decisions made under colonial rule limited the reach of stridhan land. As previously stated, the Mitakshara had broadened the concept of stridhan to include all property acquired by a woman, including inheritance and partition. Although, as a result of judicial rulings, an inherited property is no longer considered stridhana. Via court decisions, a new legal concept was gradually established: if the property is inherited by a woman from her male relatives (father, husband, son) or from her female relatives (mother, mother’s mother, daughter), it is not her stridhan and will pass to her husband or father’s heirs. Women lost the ability to leave their stridhan in wills or gifts, becoming a small estate.

The land reverted to the husband’s male relatives known as reversioners’ after the widow died. The adoption of this concept, borrowed from English law, gave male relatives the right to question Hindu widows’ property dealings.

Some decisions are discussed below to provide specific examples of this pattern. There are a few things that all of these decisions have in common. The heirs of their husbands brought lawsuits against the widows. Lower courts upheld women’s rights in a large number of cases, following local traditions. The higher judiciary overturned them, and they became legally binding principles. Significantly, all of these rulings stemmed from land disputes within the Presidency, but they were binding rules of law under the centralised system of the hierarchy of courts.

The Calcutta High Court held in Srinath Gangopadhya v. Sarbamangala Debi (1868) that, according to the Benaras school, once a stridhan property devolves upon an heir, it loses its stridhan character and devolves according to ordinary Hindu law.

The widow had purchased the property out of the accumulated profits from her stridhan and pleaded that it should be considered her stridhan in Gonda Kooer v. Kooer Gody Singh (1874). The Calcutta High Court, however, held that the property was not stridhan and that she did not have the right to dispose of it by will, and that it would pass to her husband’s heirs upon her death, as per the Privy Council’s law.

Post-independence

The Supreme Court ruled in Prakash v. Phulavati & Ors (2016) that the Amendment Act was prospective. As a result of the Amendment Act’s passage, daughters will be coparceners and have an equal stake in a joint Hindu family property as males. The following point from the case should be noted:

• In order to claim a part of the joint Hindu family property, the daughter must reside in 2005.
• If the daughter dies before the amending legislation takes effect, her legal heir would be unable to claim a portion of the joint Hindu family property.
• In order to guarantee an equal position in the coparcenary property, the daughter’s father must also be alive at the time of the enactment.
• The daughter’s claim as a coparcener in the joint Hindu family property after the 2005 Amendment would not impact the alienation, disposal, or transfer of any joint family property or a registered division made before the amendment act.

Conclusion

However, notwithstanding the revolutionary provisions of the Hindu Succession Act of 1956, Hindu women in Indian society continue to be deprived of property rights in general. In actuality, it was only a piece of legislation. Even though the Act introduced revolutionary changes, it has been largely ignored by family members in reality since the stipulations are incompatible with established Hindu social ethos. In fact, there is a clear distinction between the law as it is and the law as it is applied. It is frequently harmed by incidences of blatant prejudice. All of these are admirable measures in theory, but the challenge rests not in recognizing women’s property rights but in enforcing them.

Based on a socialist approach, realistic practice will confront several challenges due to people’s orthodoxy and traditional societal norms. Let not the grandiose guarantees in our constitution or the generous endowments in our enactments deceive us for a moment or distract us from the reality that we live in a society that has institutionalised social hierarchy, where men have control over women, where women have internalised lower gender status as a personal failure, and where men have internalised lower gender status as a personal failure.

Emancipation for women is still a long way off. When it comes to the topic of the fairer sex, nothing is fair. Even though the law of inheritance is increasingly changing, women are still not at ease.

References

• http://hdl.handle.net/10603/291386
• Law, Justice, and Gender: Family Law and Constitutional Provisions in India, book by Flavia Agnes.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: