Inheritance of Indian Women - A Perspective

Inheritance of Indian women: a perspective
Author(s): Sona Khan

Source: India International Centre Quarterly, Vol. 27, No. 2, MARGINALISED (SUMMER
2000), pp. 139-154
Published by: India International Centre
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Sona Khan
Inheritance of Indian women:
a perspective
the fundamental right of equality. Article 15 prohibits the

Article State
14 from
of the Indian
discriminating on theConstitution guarantees all its citizens
basis of caste, colour, creed
and gender, thereby assuring all citizens equal protection by law. Looking
at the scheme of laws governing inheritance rights of women, one
wonders why some of the discriminatory inheritance laws have not been
struck down in view of these express guarantees in the Constitution.
The inheritance of women in India is a matter related to socio
economic issues, based on culture and religion rather than on the

spirit of law and its implementation. It is well known that inheritance
is one of the ways for women to" get ownership of property. Ownership
of assets of any kind is a surer way of getting respect and apprecia
tion in the family and society. All economic rights have the potential
of being transferred to the next generation. Economic rights are of
two kinds, namely, religious and customary rights (i.e., culture-based)
and man-made rights (i.e., legislated). History records that framing
of property laws has always been an exclusive male prerogative; there
fore, these laws tend to be heavily loaded in favour of men, with little
scope for questioning their inherent unequal character. Thereby, the
whole concept of equality becomes merely academic, wherever pro
vided even as a precondition.
The cultural, customary and religion-based laws are ancient, and
their mandate flows either from their respective religious scriptures
140 / India International Centre Quarterly
or traditions or customs which the community acquires in due course.

The gender discrimination has a legal value, unless set aside by a
specific substantive legislation. The right of freedom of religion in
cludes practices of the religion along with its traditions as understood
by an individual.
The legislated set of inheritance laws have been passed mainly
by alien legislatures: the British Parliament for most parts of the coun
try; the Portuguese Civil Code, 1867, for Goa by the Portuguese Par
liament; the French Civil Code, 1804 for the Union Territory of
Pondicherry; and the Canon Law of the Vatican, as applicable to Chris
tians of Catholic denomination. The Indian Parliament has modified
and codified the Hindu laws of succession. One would be surprised
to note that though there is no express provision in these foreign leg
islated laws for the exclusion of women, under the impact of local
traditions, these legislated laws are implemented in such a way that
women of all cultures, religions, castes and even different economic
status do not invariably inherit their due share of property rights.
The reasons are several, and mainly due to either poor imple
mentation of the legislated laws and sometimes due to wrong inter
pretation of these laws. Another common factor, cutting across all
cultures, religions and communities, is the assertion of the superiority
by men over women, by placing control of family assets in their own
hands. In this context, it is interesting to note what Bhishampitamah
said in the epic Mahabharata, while defining marriages and stating
the names used for relationship of marriage in different periods of
Indian history. He states the term 'marriage' had different concepts
in various ages of Indian civilization. The marriage in
Krita Yuga, was called Samkalpa..., in Treta Yuga, it
was Samsparsha, in Dwapur Yuga, it was Maithuna....,
and in Kali Yuga, it is Dwandwa.... In Kali age, the woman is
subject to man, who stands in contradiction of her on the
strength of his rights of private property and monopoly of it
(interpretation by S.A. Dange in Shanti Parva).
The British took great care not to overstep the cultural and reli
gious domain of precepts of faith of various Indian communities, and
not to cause unnecessary resentment amongst the native population,
by forcing a social change on them in their internal and domestic
matters, unless such a change was absolutely necessary for adminis
trative purposes. They unified the country administratively from the
colonial management point of view; and keeping them divided oth
Son a Khan / 141
erwise suited them well. However, they did make feeble attempts,
here and there, like those made in the Act of 1865, to deal with the
questions of succession in the form of uniform law of inheritance, to
suit their revenue collection system from various princely states. The
motivation for doing so also came from the fact that by that time
Christians formed large group numbers out of the total population,
but they did not have their own inheritance law. Most Christians were
governed by their local customary laws and some followed the Eng
lish law. Due to stiff resistance from the Hindu, Muslim and Parsi
communities, the said Act was ultimately restricted to some sections
of Christians and the Jews alone. Later, it was amended and consoli
dated in the form of the Indian Succession Act of 1925 (here-in-after
referred to as Act).
This Act today has two categories; the general scheme, and the
special rules relating to Parsi intestates. The general scheme applied
to Jews, some Christians, all Indians (except Hindu couples register
ing under the Special Marriages Act, who would still be governed by
the Hindu Succession Act) married under the provisions of the Spe
cial Marriage Act. Provisions of inheritance of this legislation are uni
form, irrespective of gender and intestate. Consanguinity leads to
title for succession and relationships by affinity are not included in
the list of heirs. This Act is secular in character. Different religions of
the heir(s) amongst themselves or being from a different religion than
that of the demised owner of the estate does not make a difference to
the title for purposes of inheritance.
This Act does not provide for those adopted to succeed to the
property. It is the nearness of blood relationship to the deceased which
governs succession rights. The spouse along with the lineal descend
ants is the primary heir. It ensures perfect equality as far as gender
related issues are concerned, except the mother is excluded from in
heritance when the father is present. A daughter-in-law is not a heir.
The mother and widow of the deceased inherit equally in the absence
of the father and other heirs. The widow has a fixed one-third share
when other descendants exist. In the absence of other descendants,
she gets half of the estate and shares it with the father and in his
absence with the mother. When none of the descendants are present,
the whole estate devolves on the widow. Where the total value of the
property is Rs.5,000, the whole share devolves on the widow in the

absence of lineal descendants; where it exceeds Rs.5000, she takes, in
the first instance, Rs.5000 out of it and in the case of non-payment it
remains a primary charge on the whole property, till it is actually

paid. The rest of the estate also will devolve on the widow by way of
succession. By will the owner can do what he likes, indicating his
intention as to how his estate should be disposed of in writing. This
is an absolute power under the Act.
In the absence of the widow, the children inherit equally, and
there is no discrimination between the daughter and the son. The law
commission had recommended the amount of Rs.5000 to be increased
to Rs.20,000 a few years ago. If Rs.5000 was considered to be sufficient
in 1925, accordingly the amount should be increased, considering the
value of Rs.5000 seventy-five years ago and what has become of it
today.
Muslims are governed by the provisions of Muslim law relating
to succession. There are two main schools of Muslim law, namely,
Sunni and Shia. They are further divided in sub schools of Sunnies
and Shias. Indian Muslims are mainly Sunni from the Hanafi school.
The rights of other sub-groups are protected under the cultural and
customary identity protection provisions of the Constitution like other
communities and tribes. The Supreme Court has held in the case of
Khoja Muslims that since the conversion of the community was col
lective and not individual, therefore, they would carry along their
traditions and customs and would remain a part of their traditions
even after changing the religion. Most of such sub-groups follow the
unreformed Hindu customs as far as inheritance of women is con
cerned.
The provisions of Application of Muslim Shariat Act of 1937

is applicable to all Muslims except those in the state of Jammu and
Kashmir and also subject to said other exceptions mentioned herein
above. Under the provisions of Muslim law, the daughter gets half
the share of the son and the widow also has the same share as that of
the daughter. The share of inheritance of the women as wife, daugh
ter and mother is unequal to that of the corresponding male heir. In
practice, rarely do daughters or widows receive their due share of
inheritance. In the case of the state of Jammu and Kashmir, there is a
custom for the son-in-law to come and live in the house of his father
in-law, when the father-in-law does not have a male heir. This tradi
tion is called Dukhtar-e-Khana Nashin. This is a form of artificial kin
ship to strengthen the society, thereby, strangers are adopted in a clan.
In this institution, the son-in-law becomes the heir with the status of
the son, as long as his marriage with the daughter of the house sub
Sona Khan / 143
sists. Normally in such cases, there is no divorce. This is the influence

of Hindu custom, where, in the absence of a natural son, the daugh
ter's son was adopted by her parents as a son and he would step into
the shoes of a natural born son. Here it would be important to note
that Application of Muslim Shariat Act of 1937 was not extended to
the state of Jammu and Kashmir, therefore, customary law takes prec
edence over the provisions of Muslim personal law in matters of in
heritance.
Under the influence of local customs and traditions, Muslim
women from the lower sections of society hardly get any inheritance,
whereas the case of the upper class Muslim women is entirely differ
ent. They know how to protect their rights. In the case of the Parsi
community, it being very small but highly cultivated, hard working
and affluent, women do not have a bad deal in terms of their custom
ary inheritance, in spite of laws to the contrary A Parsi daughter gets
half share of that of the son and the same is the case with the widow.
This is the classical case where the wealth of the community makes
the question of gender equality irrelevant!
Traditionally, owing to the collective norms property was jointly
owned by members of the family and by the 'Karta', the manager of
the collective property. The Karta is the eldest male member of the
family under Hindu law. The concept of the Hindu undivided family
derived from two schools of thought, namely, the Mitakshra and
Dayabhaga schools. Except for some regions in the east and in West
Bengal, it is the Mitakshra school of Hindu law which is applicable to
other parts of India as regards questions of inheritance in Hindu soci
ety. A male succeeds to the property of his father, paternal grandfa
ther or great grandfather, as his ancestral right. His son, grandson
and great grandson acquire the right to ancestral property by birth.
The Mitakshra school of thought further classified property in
'Apartibandha Daya' and 'Spartibandha Daya', unobstructed herit
age and obstructed heritage respectively. In both these cases, it is the
son who inherits either as his birthright or by survivorship. The clas
sification is based on the philosophy that the moment a son is born,
he has a share in his father's and grandfather's property; this is known
as unobstructed inheritance. When the property devolves on parents
or uncles or brothers, or other relatives, on the demise of the owners,
where there is a male issue, its devolution gets obstructed, because
of the existence of a son and thereby, the survival of the owner; this is
called obstruction of inheritance. Therefore, the male member of the
joint Hindu family gets one share due to his being a male and hap
pening to be born in a family with ancestral property, and second, on
the death of his father from the share of his father in the said ancestral
property. A daughter never gets a share of the inheritance under tra

ditional Hindu Law.
In the matter of Mohd. Hussain Khan vs Babu Kisha Nandan
Sahai (1937: 64.I.A.250.), the Privi Council had stated. 'The rule
Hindu law is well settled that the property which a man inherits fr
any of his three paternal ancestors, namely, his father, father's fat
and father's father's father is ancestral property as regards his m
issue and his son acquires jointly with him an interest in it by birt
Such property is held by him in coparcenary with his male issue an
the doctrine of survivorship applies to it.' The same concept is ap
cable even today.
In 1956, the Indian Parliament passed the Hindu Succession Ac
In this, a provision was made for the member of the coparcenary
acquire his separate property, in which the owner could make a w
The son did not acquire any share in this kind of property by birth
could devolve on the primary heirs equally upon the demise of th
owner. The daughter and wife were the primary heirs along with t
son, with an equal share of inheritance in the property of the
ceased. Thus traditional Hindu law was amended and codified vis-a
vis the self-acquired property of an individual and his share in the
case of the Hindu undivided family. A daughter gets an equal share
of inheritance in the share of the undivided property of the deceased
father along with the son. The Hindu Succession Act accepts and pre
serves the inherent character of the coparcenary property, except that
the daughters get the share and a person can will away only his part
of the share. The partition of the family property can be sought but
only by a son and the unmarried daughter. Other properties can be
subject to division by the daughter but not the family dwelling house.
After independence, India became one country, with the union
of the former princely states under one Constitution. After the Re
organisation of the States in 1956, the ownership of the entire land,
including agricultural land, in the country came to vest in the gov
ernment. The ownership was placed in the hands of that particular
state in whose boundaries the land happened to be located, except
the areas falling under the Schedule Five of the Constitution. Land
reforms were also implemented after the completion of the reorgani
sation of states through specific legislations. The Hindu Succession
Act followed the said process.
Sona Khan /145
A ceiling was put on the possession of land to facilitate an indi

vidual to cultivate at the maximum prescribed limit of land. Surplus
land could as a result be made available for distribution amongst the
landless to meet the mandate of the Constitution in terms of social
and economic justice. What an individual gets through such legisla
tion is only cultivation rights, which are inheritable. Here it is impor
tant to note that land is a subject which comes under the jurisdiction
of the State List for purposes of legislation. In urban areas, Urban
Land Ceiling Acts were passed for limiting the ownership of
urban property.
After the amendment in the Hindu Succession Act, 1956, the
state governments were to bring corresponding amendments in their
respective Hindu succession acts with regard to inheritance of
property, including agricultural lands. Some states carried out these
legislations, others have yet to do so despite forty-six years having
passed. Those who carried out the needed amendments but did not
bother to implement the amended provisions, remained far from the
spirit of the Hindu Succession Act of 1956. Unfortunately, the land
reforms also remained on paper, or were not implemented with the
needed sincerity and honesty. States like West Bengal can be said to
be exceptions to some extent.
It would be interesting to note that Maharashtra had passed the
corresponding state legislation to the Hindu Succession Act of 1956
in 1961 but did not implement it till recently, after most of the land
had been grabbed by the land mafia. Now it has suddenly dawned
on the people that giving inheritance rights to female members of the
family may help in retrieving the land by invoking the process of law
against the mafia dons. Taking the flag of gender justice is very helpful
in getting a hearing from the court because the state exempts widows
and single women from payment of court fees for filing suits for re
covery of possession and declaration of ownership. Many fathers and
brothers are filing suits, claiming to hold power of attorney on behalf
of their female beneficiaries, to indicate that the sale was illegal as it
did not include the female owners of the estate in the transaction!
II
sincerity has only resulted in a tremendous increase of poverty

The lack ofandimplementation
in general of isinheritance
female poverty in particular. This one of the rights with needed
main causes of general unrest amongst the poor people. More and
more women have become subjugated in more and varied ways. The
people who had lands were invariably from the upper castes. Their
surplus land was to be taken away and divided amongst the landless,
including women. Women are also to inherit the cultivating rights on
their father's landholdings. This entire process of envisaged socio
economic change was prevented by vested interests, who exploited
and violated the mandate of the Constitution. The landless were una
ware of the laws. Even when they became aware, they had no re
sources to fight for their rights, legal remedies being very expensive.
The result is that poor women simply continued to suffer the
deprivation of inheritance and became resigned to their fate. The
miseries of casual landless women labourers are well recorded.
While dealing with various aspects of poverty, it is important to
describe the notion of law governing inheritance, in cases where there
were no immovable assets to inherit. The law provides that when a
person lives at a place and uses the resources of the surroundings for
more than twelve years, he or she acquires a right in the use of re
sources of his or her surroundings, including the right to shifting
cultivation. This is called the usufructuary right. These rights are also
inheritable. The State is guilty of not respecting and protecting the
usufructuary rights of landless people, including those living in fara
way, remote areas when it gives licenses to contractors for collection
of forest produce or fishing or collection of the other similarly grown
natural wealth. Armed with the right to ownership of the entire land,
the State has very rarely respected the usufructuary right.
In the name of development, people are displaced again and again
from their places of origin, for making a dam or setting up an industry
The compensation paid is invariably not adequate and not commensurate
with the rights of the people. Besides, it rarely reaches the victims of
displacement to the right extent. Most of the funds go to fill the pockets
of the people involved in the process of relocation. Another important
fact here is that women rarely get their share of compensation, either as
individuals or as heirs of the victim, due to lack of needed administrative
acumen and complete disregard for the rule of law.
The inheritance aspect of usufructuary rights is a very valuable
right for poor women. While evaluating the performance of an
international NGO engaged in the collection of data on child labour
in rural east India and the northeast, I was appalled to note the
stunning rise in the number of child prostitutes, mainly girls. The
details were baffling. Of late employers and child labour contractors
Sona Khan I 147
are paying less to the parents of the child to be inducted in the massive
labour force on the pretext of stricter policies. They are claiming that
the implementation of these policies was accompanied by large
amounts of fines. It was therefore becoming risky to employ child
labour. Hence, the poor people, with no sources of sustainable
development in their places of habitation, started finding alternative
ways of reducing the mouths to feed at home. In this process of
elimination of a burden, the girl child is considered more suitable.
The common feature in the stories of most girl children found in
the brothels of Calcutta was an 'old man', who had brought them
away from the protection of their little known villages. Themselves
abandoned by their families, these 'old men' sought the expediency
of spirituality in holy places, and took along a girl child from desti
tute families to look after them. Not by chance most of these destitute
families were in turn headed by widowed mothers or wifeless fa
thers, who hoped to earn something from such deals as also some
care for the girl child. What was common to all these stories was not
solely the 'old man' but also the fact that all such girl children
eventually were given away to the flesh trade.
The message that comes out loud and clear is that poverty must
be reduced at any cost and the status of women in general must be
improved, to avoid such degraded use of human resources and the
violation of all norms of rights of the child. Had the parents of these
unfortunate children received their due from the state and society, as
delineated in the provisions of the Constitution, probably the sce
nario described above would be different and not so shameful. Even
if the poverty were to remain, at least the poor would be secure in
their own environment. In this context it is relevant to mention that
some of the provisions of the Forestry Act are a glaring example of
lack of respect for the rights of the poor and disempowered people.
All the needed provisions and respect for their usufructuary rights
have been ignored.
This Forestry Act also contradicts the 74th Amendment Act of the
Constitution. This can have wide-ranging implications and can cause
extreme dissatisfaction amongst the local people as the authority and
mandate to manage the forest lands around the villages under the various
institutions of the panchayats comes in conflict with that of the forestry
department. The usufructuary rights of all and especially of the poor
women must be respected to reduce the burden of poverty, wrongly
placed on their shoulders in this free democratic republic.
III
cided that modernisation was inadvertently responsible for the

Long back
low statusin Asia Since
of women. andwomen
Africa, theto partici
were unable women's movement had de
pate — due to lack of education and related training, and due to their
low status in their families and society — they were left out of the
process of change through training and use of technology Today the
agenda of equality in the women's movement in these societies has
been completely hijacked by politics. This is due to the glamour of
the so-called political empowerment, conveniently obligatory in a
democracy, as education is not a pre-condition for participating in the
process. The tangible goals of enhancing the status of women and
attaining equality take a back seat, and trying to achieve 'equality' in
the political process becomes the priority.
The tangible aspects of equality include education, access to
resources, land rights and an overall share in growth and
development. The emphasis has very conveniently shifted, because
ensuring tangible results in education, property rights and thereby
improving the quality of life of women is a lot of hard work. The
women's movement needs to take urgent note of this shift and
carefully ensure equal promotion of these tangible elements, failing
which the reduction of poverty will take much much longer. Any
delay in this exercise would eventually push the women's movement
backwards. The responsibility would fall on the'women's leadership
for having messed up the process of empowerment, making a good
room against any such movements.
It is universally accepted that landlessness is one of the causes
for the low status of women all over the world. Two-thirds of the
world's net agricultural product is produced by women while their

ownership of land is said to be less than half per cent. In India, the
traditional attitude towards women is mainly responsible for pre
venting Indian women from acquiring their due share in ownership
of land through inheritance. Women are considered part of the fam
ily, and not individual entities. One sure way of improving the status
of women is to confer on them the ownership of property, of all kinds,
including usufructuary rights.
Another grey area in this regard is that of the inheritance rights
of tribal women who, under traditional customary laws, are not enti
tled to inheritance. Continuation of these primitive laws is justified
Sona Khan / 149
by the argument that if tribal women were to be given the right of

inheritance, the land in tribal areas may fall into the hands of non
tribals. The fear is that non-tribal men may marry tribal women solely
for the sake of acquiring tribal property, which is very valuable as it is
rich in natural resources. Therefore it is considered more prudent to
deprive the tribal women from their share of inherited land! Inciden
tally, this argument finds force in the colonial records of administra
tion and management of land and has very conveniently continued
to be enforced since then. A petition to amend the relevant provisions
of land laws and terminate the discrimination practiced against the
tribal women was filed in the Supreme Court but it failed due to sev
eral technical reasons. A blatant case of utter discrimination, which
continues to this day!
Another example is that of a political party which some years
back was claiming to protect the interests of the farmers of Punjab. It
desperately tried to get the Sikhs excluded from being defined as
Hindus, so that the Sikh community could become a separate entity
and have its own personal law of inheritance. The intention was to
evade the provisions relating to the share of daughters in inheriting
the estate of their fathers, as per the Hindu Succession Act. The broth
ers did not want the sister's husband to come and cultivate their fa
ther's land. The Punjab legislature had earlier passed the Prevention
of Fragmentation of Land Holding Act, on the pretence of preventing
uneconomic cultivation. It is strange that when brothers inherit the
landholding, it does not become uneconomic but the moment the
sister claims it, they start looking at the economics of the whole culti
vable land holding with a microscope.
IV
context, because inheritance is essentially a matter of domestic

Inheritance has witha lot
relations of the women toin do
the men their with themarstatus of women in the general
family. Before
riage, a woman lives in her natural parental family and after marriage
in that of her husband's. Marriage has been all through the ages a
matter of rule in India. Inspite of all the progress and education
around, it is the manner in which a woman leaves her father's home
that determines her assets and the status she is to enjoy for the rest of
life. This tradition is mainly responsible for the evils the dowry system
has acquired.
Manu states that there are eight kinds of marriages. In the Brahma
form of marriage 'the gift of a daughter clothed and decked, to a
Brahmin learned in Veda form, whom her father invites voluntarily
and respectfully receives, is the nuptial rite called 'Brahma'.
(Manusmriti, Ch III, Verse 27). In the case of Sivrama Casia Pillay vs
Bhagavan Pillay (Mad SR for 1859, p.44, cited in Norton's Cases of
Hindu Law), it was held that this form of marriage could also be prac
tised by castes other than Brahmins.
The Daiva type of marriage is a rite which sages call Daiva,
wherein a father makes the gift of a daughter whom he has decked in
bright and gay attire, to the officiating priest, when the rituals at
tached with the practice of sacrifice have already begun (Manusmriti,
Ch III, Verse 28). In the Arsha form of marriage, the father gives his
daughter away after the father has received either one or two pairs of
kine for usage as prescribed by law (Manusmriti, Ch III, Verse 20). In
the Prajapatya form of marriage, both the woman and the man per
form together civil and religious duties. The man offers to take the
bride's hand. This was also called the Kaya form of marriage, and
was confined to Brahmins only.
In the Asura form of marriage, the bridegroom gives as much
wealth as possible to the father and paternal kinsmen and to the bride.
This is also known as the bride price form of marriage (Manusmriti,
Ch III, Verse 30). Commenting on this form of marriage, Sir H. Maine
says that the fee constituted the bride price and part of it went to the
bride's father as compensation for the patriarchal or family authority
which was transferred to the husband (Early History of Institutions).
In the Gandharba form of marriage, there is a reciprocal connection
of a youth and young woman with a mutual desire to marry. It is
contracted for the purpose of amorous embraces, proceeding from
sensual inclination (ManusmritiCh III, Verse 32).
The Allahabad High Court in Bhaoni vs Radhamani (ILR 3 All
738: 1881 AWN 48) held that no ceremonies are necessary in the
Gandharba form of marriage. Later a different view was taken in an
other matter and it was held that ceremonies are necessary. In the
Rakshasa form of marriage, a young maiden is taken away from her
house by force, while she weeps and calls for assistance, after her
kinsmen and friends have been slain in a battle. Finally in the Paisacha
form of marriage, the maiden is secretly embraced by her lover either
when she is sleeping or while she is flushed with strong liquor or
disordered in her intellect (Manusmriti, Ch III, Verse 34).
Son a Khan / 151
In the matter of Vijiarangam vs Tukshuman (8 Bom. O.C.J.244),

Justice West says: 'The different forms of marriage recognised by
Hindu Law are probably to be traced historically to the customs of
different tribes which afterwards coalesced to form a single commu
nity in a particular area.' It is clear from the above that only in very
few types of circumstances could a woman herself contract her
marriage. She was invariably given away as alms by her father.
At the time of marriage the bride receives gifts and assets from
the father, relatives, and from her husband and his family on reach
ing there. This constitutes her exclusive estate, called' stridhari. In the
matter of Patibha Rani vs Suraj Kumar (AIR SC 1985), Justice Fazal
Ali has beautifully described the concept of stridhan and also what
constitutes stridhan and how it is the exclusive property of the mar
ried woman only, to whom it is given at the time of marriage. This is
a classical judgement and has set at rest many controversies with
regard to who is to be in possession of the stridhan and who would
control it and what actually constitutes stridhan. It has been pro
nounced to be the exclusive estate of the married woman, which she
can dispose of in any manner she likes.
Many scriptures have descriptions of stridhan and prescribe how
a woman is required to wear some of her jewellery all the time to
indicate to strangers that she is a married woman. By wearing the
mangalsutra, which is a part of stridhan, she ensures the welfare of her
husband and his longevity. A married woman wears it as loriig as her
husband is alive or as long as she remains married to him. She is
hence regarded as economically resourceful.
What happens when her husband dies? Does she actually get
her share from his estate? These questions were relevant several dec
ades ago, even before independence and remain pertinent with much
more intensity today, considering the large number of homeless wid
ows forced to look for solace in holy places. The intention behind the
custom of sending the widows to holy places was mainly to deprive
them of their inheritance rights, while their share of inheritance was
being enjoyed by other members of their family. This was also one of
the reasons for persuading the woman to die on the funeral pyre of
her dead husband, and attain the glory of being a 'sati'.
The custom of giving compulsory dowry at the time of marriage
to the daughter has played havoc with the inheritance rights of the
woman, especially that of daughters. Manusmriti states at several
places that the preferred form of marriage is Brahma and Daiva. In
both these forms, the daughter is the gift to the Brahmin or the priest.
This has given rise to the acceptance of the term 'kanyadan', meaning,
literally, the gift of the daughter. The supporters of these customs
argue that since the daughter is to be given away as a gift, her rela
tionship with her natural family stands severed. Therefore, there is
no question of inheritance on the demise of her father. Moreover, it is
the son who is supposed to continue the family line, therefore, he
inherits the father's estate. With the passage of time, fathers started
giving useful gifts to their daughters at the time of marriage, thereby
clearing their conscience that they had not been unfair to their daugh
ters. This became a kind of a distributive justice towards the children
as a whole.
Gradually, the practice of dowry took on an ugly shape, as is

evident today. Daughters, consequently, came to be seen as a burden
by their parents. This practice of giving dowry is a justification for
not providing inheritance rights to the daughters in the estate of the
father. Instead, they get some kind of a share at the time of their mar
riage. Research has shown that it has become a status symbol of the
credibility and solvency of the family. The status is believed to in
crease with the increase in dowry articles, huge expenditures on the
wedding receptions and on the groom at the time of marriage. It has
also been discovered that dowry gifts rarely come to the rescue of the
daughter in difficult times, like in the event of her becoming a widow
or on the breakdown of marriage. It is more likely that the items of
dowry would already have been disposed of or used for the wedding
of a female relative of the husband. That is why there is a need for
judgements like the one delivered in the case of Patibha Rani vs Suraj
Kumar by the Supreme Court.
The cases of bride burning by greedy in-laws and husbands are
numerous and are a continuing phenomena inspite of legislations
prohibiting the give and take of dowry. The practice of giving dowry
is a great strain on poor parents. Many parents suffer untold miseries
all their lives, running into debt and other related difficulties in order
to provide a dowry to their daughters. Dowry related issues are re
sponsible for female foeticide and infanticide. This has brought down
alarmingly the difference in the male/female ratio.
Under such cultural influences, the communities which prided
themselves in not taking dowry as a matter of religious principle, like
the Muslims, have also started demanding it. Demanding or taking
any dowry from the bride's family is contrary to all basic principles
Sona Khan /153
governing the concept of marriage in Islam. It is the duty of the hus

band to provide for his wife and family, even if the wife happens to
be rich herself. If he does not have such resources, his marriage under
Muslim law is not valid. It is the element of force and coercion which
is unacceptable. In spite of giving dowry, as demanded by the husband

and his family, there is no guarantee that the bride's life would be
secure and happy. Last year the Crimes Against Women Cell received
7,632 dowry-related complaints. As many as 908 cases were regis
tered in the Union Territory of Delhi alone (Times of India, 27 May
2000).
Another interesting dimension of inheritance for women in the
father's estate is where upper and middle class women have taken
brothers to court for not giving them their due share of inheritance
from their father's estate. Some time ago, seeing the volume of such
cases, a few women activists suggested that girls must ask for dowry
at the time of marriage. This was because educated women did not
accept a marriage proposal where dowry was demanded nor carry
dowry with them at the time of marriage, as it was considered
demeaning for them as individuals. But later they found that there
was nothing left for them to inherit after the death of the father, as the
brothers somehow managed the estate of the demised father in such
a way that the sisters could not inherit their due share.
Relations between brothers and sisters have come under tremen
dous stress due to changed laws which allow daughters to inherit the
estate of the father, and the consequent obstructive attitude of broth
ers who do not want to share it with the sisters. Women in such situ
ations are completely at the mercy of the husband and his family for
affection and kindness. They have no option in case they are ill-treated.
The daughter is already discriminated against in her natural family
as she does not get any share of the inheritance.
Economic justice eludes women in many ways due to age-old
traditions, customs, and archaic inheritance laws in all cultures, reli
gions and communities. To bring about needed social change and
sort out all these inequities, measures are needed to reduce the effect
of centuries of injustice. Differences exist in the benefits of women
according to the class, culture, religion and community they belong
to. In the process, the interests of the comparatively less affluent
women becomes less and less relevant.
Chapter IV of the Constitution delineates the Directive Princi
ples of State Policy and Article 44 provides for the Uniform Civil Code
as a directive to be achieved. This directive has been draped in such

ugly layers of political controversy that even meaningful and non
political people involved in the exercise have forgotten the main ob
jectives of the exercise but seem only to be concerned with the politi
cal fallout. This code tends to acquire a political profile due to the
utterances in public by leaders of various kind. It seems that this code
may have the potential of threatening the cultural identity of the mi
norities in the country. No particular legal text of the Uniform Civil
Code has so far been presented for discussion and consideration for
all the communities concerned.
In the absence of provisions for social welfare, like the kind
prevailing in many advanced countries, inheritance is a source of security
and strength for women. It can be a source of comfort and ease in cases
of domestic violence and similar situations. The cruel behaviour of family
members can undergo radical change if they can hope that the estate of
the female family members will one day devolve on them.
Women often face constant threats to their fundamental rights
which include the right to live, and to live with dignity within the
family, even when their husbands, sons and brothers are alive. Often
they have no place to turn to for help. Therefore, the government
needs to pass urgently two legislations; one, that all assets acquired
after marriage would be jointly owned by the wife and the husband;
and, second, in the case of matrimonial discord, the property so
acquired would be equally divided. A move in this direction has
already been made by some government regulations. Some public
undertakings have started allotting flats in joint names, indicating
joint ownerships to husband and wife, like the Delhi Development
Authority and Ghaziabad Development Authority.
The other legislation should be one whereby every Indian citi
zen is presumed to have died making a will that his/her estate be
divided equally amongst his/her primary heirs. Primary heirs will
include daughter(s), son(s), wife and mother. In case of intentions to
the contrary, a will made in writing would be necessary, giving valid
and acceptable reasons for deviating from the prescribed principle of
inheritance. Such provisions should be acceptable to all communities,
including the Muslims, as it is not against the laws applicable to them.
No community with faith in the Constitution of India should have
difficulty in accepting these propositions of equitable inheritance. The
force of such provisions must be extended to all kinds of inheritable
rights, including usufructuary rights. Hopefully, a process of reduc
tion of poverty would begin from a different but surer direction.

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Inheritance of Indian Women - A Perspective

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Inheritance of Indian women: a perspective

Author(s): Sona Khan

Inheritance of Indian women:

the fundamental right of equality. Article 15 prohibits the

economic issues, based on culture and religion rather than on the

or traditions or customs which the community acquires in due course.

property is Rs.5,000, the whole share devolves on the widow in the

remains a primary charge on the whole property, till it is actually

The provisions of Application of Muslim Shariat Act of 1937

sists. Normally in such cases, there is no divorce. This is the influence

property. A daughter never gets a share of the inheritance under tra

A ceiling was put on the possession of land to facilitate an indi

sincerity has only resulted in a tremendous increase of poverty

cided that modernisation was inadvertently responsible for the

world's net agricultural product is produced by women while their

by the argument that if tribal women were to be given the right of

context, because inheritance is essentially a matter of domestic

In the matter of Vijiarangam vs Tukshuman (8 Bom. O.C.J.244),

Gradually, the practice of dowry took on an ugly shape, as is

governing the concept of marriage in Islam. It is the duty of the hus

is unacceptable. In spite of giving dowry, as demanded by the husband

as a directive to be achieved. This directive has been draped in such

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