HINDU WOMEN’S RIGHT TO PROPERTY IN INDIA DR. KULWANT GILL = Reader Department of Laws Panjab University, Chandigarh Foreword by DR. PARAS DIWAN Executive Director, Haryana Legal Aid Former Professor and Chairman, Deptt. of Laws Panjab University, Chandigarh DEEP & DEEP PUBLICATIONS D-1/24, Rajouri Garden, New Delhi-110027HQ (142 . oSSL LIVG © 1986 KULWANT GILL All rights reserved with the Publisher including the right to translate or to reproduce this book or parts thereof except for brief quotations in critical articles or reviews. Printed im Indis at Print India, Mayapuri, New Delhi-! 10064. Published by DEBP & DBEP-PUBLICATIONS, D-1/24, Rajouri Garden, . New Delhi-110027. Phone ; 504498. .ek. 60) -8 59x SPara Y ne -% Dedicated to The Sacred, Loving and Everlasting Memory of My Revered FatherCONTENTS Foreword Preface Position of Hindu Women through Ages : General Survey Vedic Period Post-Vedic Period Muslim Period British Period Modern Period ‘Woman's Estate Smritis Period Mitakshara School Dayabhaga School Judicial Decisions Property got on Partition Judicial Decisions Other Kinds of Property—Not Stridhan Could be the Widow's Estate be called a Trust-Estate and Widow a Trustee ? The Hindu Women’s Rights to Property Act, 1937 Cause, Effect and Operation vis-a-vis Rights of Women to Property Hindu Women’s Rights to Property Act, 1937— X-Rayed Changes effected by the Hindu Women’s Rights to Property Act, 1937 4 101 104 104 137 1461, HINDU WOMEN’S RIGHT TO PROPERTY IN TNDIA Alienation of Woman's Estate Legal Necessity For Religious Purposes For the Benefit of the Estate Alienation with the consent of the Reversioners Ratification Powers of Alienation under the Hindu Women’s Rights to Property Act, 1937 Surrender, Succession to Woman’s Estate and Reversioners Surrender Succession to Woman's Estate Reversioners Stridhan under the Old Hindu Law What is Stridhan Stridhan in Vedic Period Stridhan in Period of Digests and Commentaries Stridhan during the British Period Right of Enjoyment and Alienation: During Maidenhood, Coverture and Widowhood Stridhan under the Hindu Succession Act, 1956 “Any Property possessed by a-female Hindu, whether. acquired before or after the commencement of the Act”’ in Section 14(1) of the Act Exception to the Right of Absolute Ownership of Property of Hindu Female Succession to Stridhan Property Reasons for Peculiar Line of Descent Succession to Maiden’s Stridban . Succession to the Married Woman’s Stridhan 151 174 191 214 226 236 239 241 241 274 278 294 295 295 305 > 316 330 352 399 410 412 414 418CONTENTS Succession to Stridhan under the Hindu Succession Act, 1956 9. Conclusions Table of Cases Bibliography Index 463 484 496 519 526FOREWORD Womens’ property has been a fascinating study in practically all the systems of law. There isa remarkable unity in almost all the patriarchal systems that women’s rights, including her Proprietary rights, were very restricted. It is a unique aspect of. Hindu System of Law that from the very beginning it did recog- nise a concept of women’s property and did confer some rights in the property on the Hindu female, though its quantum had never been significant. During the 19th and 20th centuries as an impact of Industrial Revolution and ushering in of the Jaissez faire doctrines, most western countries succeeded in establishing legal equality between the sexes, though factual equality still remains a dream for most women of the world. During the British period it came to be established that Hindu female is in possession of tWo types of property: (i) Stridhan, and (ii) Women’s Estate. Over the former, she was granted full tights while over the latter her rights were limited. After the coming into force of the Constitution of India, which in its Article 15(3) categorically laid down that a special legislation could be enacted for ameliorating the lot of females, some legisla- tive measures were undertaken to establish legal equality of sexes. In the realm of Hindu personal law, the enactments of the Hindu Code have brought about equality of Hindu female with her male counterpart. It was in this context that Chief Justice Chandrachud in Gurupad v. Hirabi'! observed that Section 6 of Hindu Succession Act was nothing but the culmination of a process of social legisla- tion that began with the Hindu Law of Inheritance (Amendment) Act, 1925, Similarly, Krishna lyer, J., utilised the provisions of the Constitution of India in Bai Tahira v. Ali Hussain Fissali? in holding 1, AIR 1978 S.C. 1239. 2 (1979) Cr. L.J. 151. See also Md. Ahmed Khan v. Shah Bano Begum, AIR 1985 S.C. 945, where the Supreme Court holds that a divorced Muslim woman is entitled to maintenance irrespective of the fact that whether she has, or has not, been paid dower-money.8 HINDU WOMEN’S RIGHT TO PROPERTY IN INDIA that a divorced Muslim woman is entitled to maintenance under section 125 Cr. P.C. The learned Judge observed that Article 15(3) has compelling, compassionate relevance in the context of section 125 Cr. P.C., and the benefit of doubt, if any, in a statutory inter- pretation belongs to the ill-used wives and derelict divorcees. He added that Article 15(3) by deliberate designs made a special provi- sion to help women in distress. “Protection against moral and mate- tia] abandonment manifest in Article 39 is part of social and economic justice, specified in Article 38, fulfilment of which is fundamental to the governance of the country.” Thus, in India, by parliamen- tary and judicial legislation, there has been a constant endeavour to establish not merely the legal but also factual equality between the sexes, though in that process some distortions in other branches of law have taken place. Thus, Gurupad virtually makes a statu- tory compulsory partition of a Mitakshara joint family, whenever a co-parcener dies leaving behind a female heir in Class-I. Similarly, Bai Tahira does not find favour with some Muslims. In the present book Dr. Kulwant Gill has very thoroughly and deeply studied this entire panorama of Hindu women’s right to Property from the Vedic age to the modern times. This book will be, I am sure, not merely be useful for those who are engaged in the research of the women’s rights but also help Legislators, Judges and students to understand the intricacies of Hindu ‘women’s property. - Chandigarh PARAS DIWANPREFACE Woman’s inferior position throughout the ages not only in family and society that also in the matter of proprietary rights has been a subject of deep concern in recent times not merely to femi- nists but to all shades of opinion, both in public and private life. It appears that originally Hindu society had a flexible social structure, The concept of ardhangini suggests that there was equality between men and women, neither one being superior to the other. Later on, barbarous practices developed and women were relegated to a subordinate status. The deterioration started with Manu, the Jaw-giver of ancient times, who equated a woman with’slave and who said, “a woman should never be independent.” It led to the woman being regarded as a perpetual legal minor, whose affairs -were to be looked after by others. A despotic Brahman priesthood later denied instruction to her, so that she was consigned to the shadows of ignorance. Woman was known as abala, a weak, helpless and powerless being utterly incapable of managing and preserving the family property from the encroachment of power- full neighbours. The subordinate position of women was rooted in the social and economic structure of the society of that period. -She used to be in veil and behind purdah thus living in seclusion. She became a drudge in the household, a toy for her lord's pleasure, a childmaking machine. In the darkest age of the nation’s history, she was even made to immolate herself on her husband’s funeral pyre. In India, a wife was treated asa possession by her husband who was expected to do all sundry chores of domestic life, cooking, washing and cleaning etc. of the home and to bring up the children. She was also considered to be an ornamental Piece lending glamour to the household. Legal rights were discriminatory and iniquitous. Birth deter- ‘mined the status. The disabilities of a woman arose from the fact that she was born a girl. The inferior status of a woman in . Society was further made sacrosanct by religious ordinances,10 HINDU WOMEN’S RIGHT TO PROPERTY IN INDIA Traditional India had seen a woman only as a member of the family or a group—as a daughter, wife and mother—and not as an individual with a personality or identity or rights of her own. In India, the disparity is more marked on account of the centuries of repression, Indian womanhood has suffered. Mahatma Gandhi believed that a movement in order to be successful had to be a movement of the masses and, therefore, worked for the welfare of the women as much as for the welfare of the weaker sections of the populace. In the West, 19th century witnessed a movement for the emancipation of women from the shackles by which man had bound her for ages. Step by step, woman has been emancipated though she is still subject to a number of disabilities. Her Political emancipation has been very slow, particularly in England and in the United States, where she was granted right of franchise only in the 20th century. Even today in some civilized countries, she is subject to various discriminatory laws but on the whole in the Western countries equality of sexes has been established at least in the letter of law though she, to a great extent, continues to be economically dependent upon man, and this economic dependence has stood in the way of equality of sexes. Yet it appears certain that her future is not bleak and soon she will be able to get rid of these fetters. In the East, the movement for the emancipation of women is of very recent origin, the reason being that Asian societies have not still been able to shed their feudal hangovers. This is more visible in India where the myth that Hindu law is divine law and, therefore, being sacrosanct, cannot be touched by human mortals is still being perpetuated. Hindu woman represents an ornamental fringe. Men have shackled the hands and the feet of women. The result is that women cannot go out alone and cannot do anything with courage. Golden fetters have bound their noses, ears, necks, hands, feet, thus keeping them perpetually under the domination of men. They cannot go out alone or do a thing independently. “But there could be no meaningful progress or development if women who constituted half of humanity were suppressed and not permitted to play their role in society” said Mrs. Indira Gandhi, the former Prime Minister of India, while inaugurating the International Conference and National Conference of Women Entrepreneurs in New Delhi. She further emphasised that “I am not a feminist.PREFACE i All I say is treat us like human beings. It must be our endeavour to ensure that laws and practices do not discriminate against woman.” It is understandable that in patriarchal societies, women should have been subjected to total subjugation and denied all rights includiag proprietary rights. But what one fails to understand is that in modern India, despite constitutional guaran- tees of equality of sexes, equality of opportunity and equality of Tight to hold and dispose of property, the woman’s position con- tinues to be far from being satisfactory. Even today man says that woman cannot protect herself and her property because she is weak. This is only the smartness of man that the woman has been made prone to such atmosphere. In the forest, if a lioness can protect herself, why a woman cannot do so in her own house. Af by strength is meant brute strength, then indeed woman is less brute than man. If by strength is meant moral power, then woman is undeniably man’s superior. To call woman the weaker sex it a libel; it is man’s injustice to woman. It was also the conviction of Mahatma Gandhi that “if nations are made by men, it is women that make men inasmuch as the foundations of character are laid in the nursery.” The principle of equality was incorporated in the Objectives Resolution of Free India in 1947 and was later elaborated in the Constitution of the Indian Republic. The improvement in the status of women was a pledge made by the makers of the Constitution and admitted by the Government from the beginning as one of the major tasks facing the country. Woman under the Constitution of India has been accorded equal rights with man. The bane of inferiority has been obliterated for ever. Equality of sexes is enshrined in our Fundamental Rights. The daunting barrier between the limited ownership and full ownership, or woman’s estate or Stridhan which existed under the old Hindu law has been scaled down by codification of Hindu Law. The anomalous estate of the Hindu widow—a hybrid creation of the Smriti texts and the judicial decisions of the Anglo- Indian Courts, a unique product of the legal work-manship deli- cately carved out during centuries by master crafts-men of India and England, has now ceased to exist since June 17, 1956, when the Hindu Succession Act, 1956, came into force. The enactment of the Hindu Succession Act, 1956, is a landmark in the evolution of the Hindu law of inheritance. The Act may be justly called the12 HINDU WOMEN’S RIGHT TO PROPERTY IN INDIA Magna Carta of the Hindu Women’s Property Rights. The rules of old Hindu law excluding females from inheritance were solely.grounded on sex and were inconsistent with Article 15 of the Constitution and, therefore, void and unenforceable. The Act has removed the discrimination. A woman who was crippled in the matter of right of property has been given absolute owner- ship over almost every kind of property, however, acquired by her. Under section 14(1) of the Hindu Successsion Act, any property acquited by a Hindu female, except what is covered by sub-section (2), before or after the Act came into force becomes her absolute property. Section 14 has thus retrospectively conferred full rights of ownership on a woman who was possessed of any property on the commencement of the Act. It has converted existing woman’s estate into Stridhan or absolute estate. Only two conditions are essential, viz., (1) Ownership of the property must vest in her, and (2) she must be in possession of the estate when the Act came into force. The Act has followed the principle of propinquity in the matter of succession to the separate property of the deceased. Thus the Act has not made any distinction between the son and the daughter, in the matter of their rights to inherit, the share to be allotted to them and the nature of the property they obtain. The daughter takes simultaneously with the son, widow and other heirs specified in Class I of the Schedule under section 8. The daughter even inberits the interest of her father in the Mitakshara Coparcenary because of the provisions of section 6 of .the Act. Section 6 provides that ‘When a male Hindu dies after the com- mencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act : “Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative, specified in that Class who claims, through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.” The book purports to study the evolution of the concept of a Hindu Woman's property through ages and to examine critically the present position of Hindu female vis-a-vis her proprietary rights,PREFACE’ ne 13 Every effort has been made to X-ray the Hindu Succession Act, 1956 which has made the female an absolute owner. The book has been divided into nine chapters—(1) Position of Hindu Women Through Ages : General Survey; (2) Woman's Estate; (3) The Hindu Women’s Rights to Property Act, 1937—Cause, Effect and Opera- tion vis-a-vis Rights of Women to Property; (4) Alienation of ‘Woman’s Estate; (5) Surrender, Succession to Woman's Estate and Reversioners; (6) Stridhan under the Old Hindu Law; (7) Stridhan under the Hindu Succession Act, 1956; (8) Succession to Stridhan Property; and (9) Conclusions. In ancient times although the position of a Hindu woman was of an inferior type as compated to the man, still her position was better than the position of woman in other countries inasmuch as they were allowed absolute proprietary right over their Stridhan at least, However, their powers of enjoyment and disposition of property inherited from their relations were limited to the legal necessities, performance of religious duties which were considered conducive to the spiritual bliss of the husband or father, whose Property she inherited. She could also alienate a reasonable portion of the inherited property with the consent of her immediate reversioners. She could also efface herself by surrender of entire estate in favour of the immediate reversioners. Such surrender could be for consideration of her maintenance but could not be effected as a means of dividing the property. The limited estate has now been converted into full ownership under Section 14 of the Hindu Succession Act, 1956, and thus her proprietary rights are at par with the male proprietors. The powers of the karta of the Hindu joint family still remain fettered because of the interests of various members of the family which have to be safeguarded. Previously if a widow remarried, the property inherited by her from her deceased husband went to his heirs and she was completely divested of the same. Under the Hindu Succession Act, 1956, the property of her deceased husband continues to be her property even if she re-marries because of the fact that when she inherits the property at the moment of her husband’s death as a full owner. No divestment takes place thereafter on any cause. Thus the position of Hindu women with regard to their property rights has greatly improved under the Constitution of India and the Hindu Succession Act, 1956. The present book is the result of my research done as researchity WINDU WOMEN’S RIGHT TO PROPERTY IN INDIA scbolar as well as teacher in law under the able guidance of Hon'ble Mr. Justice Balraj Tuli. I express my profound gratitude to Hon’ble Mr. Justice Balraj Tuli, Acting Chief Justice (Retired), Punjab and Haryana High Court, an eminent jurist, a legal lumi- nary par excellence and a man of wide sympathies, my guide and mentor—who led me along the zig-zag path of the preparation of this book as a parent would conduct his young awestriken ward along the meandering crowded streets of a metropolis always ¢luci- dating and explaining the hidden significance of complex pheno- mena pertaining to its legal intricacies. It has been my privilege to work under the guidance of such a great man in whom we find a rare wedding of intellect and humanism. 1 am highly indebted to him, who despite his pre-occupations took unfailing interest, gave encouragement and wise consultation. His guidance has been @ constant beacon light. To him 1 owe a debt that can never be repaid. 1am highly indebted to Dr. Paras Diwan, Executive Director, Haryana Legal Aid, former Professor and Chairman, Department of Laws, Panjab University, Chandigarh, without whose encourage- ment and valuable suggestions 1 would certainly have fallen short of reaching my destination. [am also thankful to Dr. Varindra Kumar, Prof. and Chairman, Department of Laws, Panjab University, Chandigarh for his timely help. The vocabulary at my command fails to furnish me with words and phrases capable of expressing my gratitude to my fond mother, whose hard penance only could get me through this stupendous task. lo spite of her continuous ill-health and overwhelming sense of loneliness and other helplessness caused by her bereavement after the untimely departure of my beloved father, she has always stood like an adumantine rock in the roaring ocean aad proved a strong pillar of love and faith for us. My thanks are due to my younger ,brother Mr. Manjit Singh Gill, M.A., LL.B., for his affectionate help in arranging books from the libraries. | also express my gratitude for the help render- ed to me by Dr. (Miss) Pam Rajput, Reader, Department of Political Science, Panjab University, Chandigarh. 1 also accord my appreciation for my students, Miss Ranbir Kaur, Lecturer, Department of Laws, Panjab University, Miss Rajinder Kaur, Lecturer, Guru Nanak Dev University, Amritsar and Miss Charanjiv Kaur, LL.M. who have taken great pains in going through the‘PREFACE 15 typed script. . 1 shall be failing in my duty if I do not thank Library staff of the Department of Laws, Panjab University, Chandigarh and the High Court Library in particular and members of other libraries in general. My thanks are also due to Shri G.S. Bhatia of Deep and Deep Publications, New Delhi, who took meticulous care in the publication of this work. I also express my gratitude to the University Grants Commission for partly financing the publication of this work. Chandigarh KULWANT GILLCuapter I POSITION OF HINDU WOMEN THROUGH AGES : GENERAL SURVEY The best way to judge the position of a nation is to find out the status of women. In reality the status of women is the measur- iug rod for assessing the standard of culture of any age. Thus the social status of women in a country represents the social spirit of the age. In this chapter, it is proposed to review the familial or social, legal and political position of woman as wife, widow and a daughter in the various stages of development of Hindu law. This position will be traced in the historical perspective from Vedic period to the modern era. However, to draw a conclusion about the position of women is difficult and complicated problem. The available data is quite confusing because of its variation in its nature. It has happened that in the same period and in the same Province, diametrically opposite views about the worth, nature and importance of women have been expressed with equal zeal. There are different schools of thought. The one school believes that a woman is the best gift of God to man. She brings prosperity when she is properly treated and respected and has been called “Lakshmi” —the goddess of wealth and prosperity. The holiest object in the world is a virtuous woman, a tear of sorrow rolling down from her eyes melts the heart of even a mighty tyrant. The second school of thought holds the view that the best way to reach God is to avoid women. Sage Agastya says as stated by A.S. Altekar “Women combine the fickleness of the lightening, the sharpness of weapon and the swiftness of the eagle.”'! Shakespeare has said, ‘‘Frailty, 1. Dr. AS, Altekar, The Position of Women in Hindu Civilization, page 320.18 HINDU WOMEN’S RIGHT TO PROPERT Y IN INDIA thy nameis woman.” They were of the view that “woman is the source of all evils, her love is to be dreaded more than the hatred of man; the poor young men who seek women in matrimony are like fish who go to meet the hook.” The problem with which the student of Hindu jurisprudence is confronted is to decide which of the views is correct. Dr A.S. Altekar? suggests that to ¢scertain the position of women in Hindu society, one should study their position in different circums- tances, ¢.g., (i) when the circumstances are abnormal, e.g., in war time. (ii) when the circumstances are normal, i.e., in peace time. Abnormal Circumstances Dr. A.S. Altekar is of the view that the situation, where the women had the misfortune of falling into the hands of the enemies, is the real touchstone to test the genuineness of society’s sympathy towards the weaker sex; it enables us to find out how far man is pre- pared to rise above the prejudice of his sex and judge the women by an equitable standard. A survey of the past shows that the attitude of the society was very stiff and unsympathetic if the women had the misfortune of falling into the hands of enemies. They found it impossible to get re-admission in their family and society. We have very clear cut historical example of Sri Ram Chandra, who refused to accept back Sita after the overthrow of Ravana and she was made to go through the test of fire to prove her innocence and piety. Later on she was sent into exile because of a taunting re- mark of a washerman to his wife. There is no doubt that certain Smriti writers? hold the contrary view. But later on the advice of the Smriti writers was silently brush- ed aside and the door of Hinduism was once for all closed to such women. The reason for this might have been the establishment of Muslim rule. Under the Muslim rule it was not easy for women, who had been captured and married by Muslims, to be accepted back by their Hindu relations. Rather new notions.of purity were mainly responsible for the refusal of society to admit back such women. 2. Ibid., page 305. 3. Vasishtha, Bribaspati, Matsypurand.POSITION OF HINDU WOMEN THROUGH AGES 19 Normal Circumstances A study of the ancient literature reveals that in the normal circumstances too the position was not very satisfactory. For example, though the killing of women was regarded as a very disgraceful act since the early Vedic times, when it came to Smritis it was stated that the killing of women was equal to that of killing a Sudra; it however does not refer to the gravity ofthe crime, but to the theological dogma that the status of women was equal to that of the Sudra.* Generally nothing is to be construed in a vacuum and it is particularly so in knowing the position of the Hindu women. Without a brief passing reference to the past the matter cannot be put in the correct perspective. Thus we proceed to discuss the familial or social, legal and political position of women as daughter, wife and widow in different periods. VEDIC PERIOD The Position of the Daughter The position of women in Vedic period .be judged by the way in which the birth of girl is received. Is she considered inaus- picious ? A study of the Vedas shows that the hymns of the Rig- Veda said nothing to that effect, but we find prayers for the birth of a son in Atharva Veda which says, “The birth of a girl, grant it elsewhere, here grant a boy.”5 Thus we also find a very frequent longing for a male child in the Rigveda. A girl’s birth is even deprecated in the Atharva Veda.6 In this Samhita references are made to mystic charms for undoing the effect of a female foetus and for changing it into a male one.? The Aitareya Brahmana preserves an ancient gatha in which a daughter has been characteris- ed as a misery (krpanam). But it is heartening to find that the period of the Upanishads, that witnessed the glory of the Brahma- vadinis, endorsed with acclamation the birth of a daughter for which they prescribe certain rituals to be performed by the man 4. Dr. AS. Altekar, The Position of Women in Hindu Civilization, page 317. Atharva Veda VI-2-3. VIII, 6, 25 VI. 11, 3. Vi. 11: TIL. 23. Quoted by Bhagwat Saran Upadhyaya, Women in Rgveda, page 43. say20 HINDU WOMEN’S RIGHT TO PROPERTY IN INDIA who wants a learned daughter to be born.’ Nevertheless, we find frequent references in the Rigveda to daughters being fondly caressed and affectionately brought up by parents. They were lovingly treated by their mothers and shielded by the strength of their father and brothers. Thus it can be conchided fairly that the position of a girl! was not very low, though it cannot be said that she was regarded as equal to a boy. The daughter used to be under the control and tutelage of the father during her maiden- hood. Her marriage transferred her to her husband’s family. A daughter sometimes remained unmarried throughout her life and remained under her father’s protection. In such a case after the death of her father, she came under the control and protection of her brothers, if any, provided the brothers undertook to maintain her. Otherwise perhaps she had to be on her own. Perpetual tutelage of women is of later origin.? Dr. A.S. Altekar is also of the view that the social or fami- lial status of the daughter was fairly satisfactory in the Rigvedic period. They were educated like boys and had to pass through a period of Brahmacharya.!° The marriage in the early Vedic texts appeared essentially as a union of two persons of full development, ive., the marriage used to take place ata fairly advanced age, the normal time being the age between 14 and 17 years. Educated daughters had naturally an effective voice in the selection of their partners in life. Very often there were love marriages which were later blessed by parents. Ordinarily daughters did not have any right to hold, acquire or dispose of property. It simply means that she did not enjoy any legal status in the Rigvedic times. But the daughter living in her father’s house throughout her life got a share of his pro- perty."! But she could not claim any share with her brothers for it is clearly laid down inthe Rigveda that “‘a son born of the body does not transfer wealth to sister.”!2 Married daughters living with their husbands could inherit from their father only when 8. Brhadaranyaka Up. IV 4. 18. Quoted by Bhagwat Saran Upadhyaya, ‘Women in Reveda, page 43. 9. Radhabinodpal (T.L.L. 1930), The History of Hindu Law, page 302. 10. Dr. AS. Altekar, The Position of Women in Hinda Civilization, page 338. 11. Rigveda II, 17. 12, Rigveda IIT, 31-32.POSITION OF HINDU WOMEN THROUGH AGES 21 they had no brother. ‘The Position of the Wife The position of the wife in the Vedic age was far from being analogous to what usually was in early uncivilized society. In the communities that had not yet emerged from barbarism, there hardly existed any check on the tyranny of man over woman. Wives were divorced, abandoned, sold or killed at the mere-whim of men. They had to carry about children, and also served as beasts of burden, when the tribe moved from one place to another. In the Primitive times, the muscle was an indispensable element in success and the man was stronger in it than the woman. The bodily vigour and muscular strength thus naturally established man’s permanent superiority over woman.'+ The Vedic society too was patriarchal and masculine; the houschold was ruled by a house-lord, who wielded almost absolute control over all other members of the family, and to him his wife or wives were bound by a strict tie of life-long duty and obedience.'5 But in spite of all this the position which women occupied in Hindu society at the dawn of civilisation during the Vedic-age was much better than what was ordinarily expected to have been. Her position was an honoured one in the family. She was. the joint-owner of the household with her husband. We come across the words like Nari, Jani, Jaya, Dampati, Dara, Ardhangini, Patni and Stri to denote women in the Vedic literature.'© But the old tradition that the wife was the property of the husband bad not completely died down, therefore, in the Vedic period both the views were prevalent, ie., on one side we find wife was being idealised and, on the other, she was considered just a mere chattel. In the Vedic period too there was one school of thought which held women not only in disrespect but even in positive hatred. The Rigveda in many places defines women as weak-minded and unworthy of being trusted. Ina conversation with the royal sage Pururava, Urvashi herself confessed about the nature of her own sex, that with women there can be no lasting friend- 13. Rigveda LI 31-32, 14. Dr. AS. Altekar, The Position ‘of Women in Hindu Civilization, pages 336-337. 15. Radhabinodpal, (T.L.L. 1930), The History of Hindu Law, page 45. 16, Ibid., page 332.22 HINDU WOMEN’S RIGHT To PROPERTY IN INDIA ship and the hearts of women are the hearts of hyenas.!7 Thus in the Rigvedic period wives at least in the eye of law were more or less like chattels. The study of Vedas shows that there are certain verses which bear an interpretation showing that wives used to be pawned in the game of dice of which Rigvedic Aryans were exceed- ingly fond, viz., “She never vexed me. nor was angry with me. For the dice sake, whose single point is final, mine own devoted wife I alienated.’"!® But in spite of all this, on the whole, the position of the wife was fairly satisfactory in the Vedic age. Her familial or social status was of an absolute equality with man in the eye of religion. She could perform sacrifices independently and was regarded as an impediment in religious pursuits. Marriage, in fact, was a religious necessity for both men and women; neither could reach heaven without being accompanied by his or her duly married spouse. Her social status was not only of a loving wife but also of a loving mother. She was described by the Vedic sages as an ornament of the home. She had many household duties and had to offer jointly with her husband oblations to the sacred Household Fire. In fact, it was believed that true domestic felicity depended upon the mutual harmony of the husband and the wife and their pious performance of the religious duties they owed to the gods, viz., “O Gods, with constant draught of milk husband and wife with one accord press out and wash the somajuice.”"!9 The main disability from which the wife suffered in the Vedic age was a properietary one. She did not have any legal status, ie., she could neither hold nor inherit property. It was believed that the landed property could be owned by one who had the power to defend it against actual or potential rivals and enemies. The wife was obviously unable to do that and so could hold no 17. Rigveda X-95-15, Quoted by Prof. Indra, The Status of Women in Ancient India, page 8. 18. Rigveda X-34, 11. 19. Rigveda VIII, 31.8.POSITION OF HINDU WOMEN THROUGH AGES 23 property. However, among the Aryan Communities as a whole, we find the earliest traces of separate property of women in the widely diffused ancient institution known as Bride Price. A part of this price which was paid by the bridegroom, either at the wedding or the day after it, went to the bride’s father as compen- sation for the patriarchal or family authority which was transferred to the husband, but another part went to the bride herself which was generally enjoyed by her separately and kept apart from her husband's property. It further appeared that under certain Aryan customs the proprietary rights in some other kinds of properties which women slowly acquired were assimilated with their rights in their portion of Bride-Price, probably as being the only existing type of woman’s property. Professors Macdonell and Keith in their ‘Vedic-Index’ pointed out that very little information as to the legal relations of wife and husband were available in the Vedic literature. The learned Professors said: “It may be assumed that husband appropriated the wife's dowry, if any, as well as her earnings, if any: even in the Epic the rise of the recognition of woman's property as their own (Stridhana) is only slow.” But Radhabinodpal was of the view that this was indeed only a surmise on their part; only this surmise was based on subsequent texts as also on the fact that husband exercised a large power of control and correction, almost as large as was expressly allowed to the husband in England in the eighteenth century by English law. Any how the position of the wife in Vedic age was onthe whole fairly satisfactory. The community as a whole showed proper concern for and respect to women and allowed them considerable freedom in different spheres of life. The Position of the Widow Marriage in the Rigveda period was considered as indissoluble. It was considered to be a union between a man and a woman before the nuptial fire which was held to be unbreakable and sub- sisting even after the death. Thus a wife, after her husband's death, was not free to marry again, and she was expected to lead a life of piety and absolute self-denial. In the Vedic times it seems that the custom of widow remarriage in the true sense of the term did not exist. But even than we have some references of widow remarriage with the younger brother or with the next kinsman of her deceased husband. We do not find much references as to the24 HINDU WOMEN’S RIGHT TO PROPERTY IN INDIA life of the wife in case she had the misfortune of being a widow. Ouly glimpses of some aspects of the life of the widow could be traced, i.e., it can only be said that her life was not bound by so many restrictions and austerities as it was in the later days. She had not to ascend her husband’s funeral pyre.” The burning of the widow on the funeral pyre of her dead husband might have been the custom among the early Aryans, But in the reality in the Rigvedic period the widow was made to lie by the side of her dead husband and her brother-in-law and other near kinsmen raised her up from the side of her dead husband, as is clear from the following verse : “Rise, come intothe world of life O woman’! Come, he is lifeless by whose side though liest. Wifehood with this, thy husband was thy position, who took thy hand and wooed thee as a lover,”’2! In reality there was no Sati system in practice. The legal status of the widow was the same as that of the wife. Like wife widow too had no proprietary right. Political Status of Women in Vedic Age To be very frank, the national life inthe bygone ages was very simple, almost free from complexities of the modern world. Generally we do not hear much of the existence of such political phenomena as democratic institutions, legislative assemblies, funda- mental rights of the people, statutory safeguards, international conferences, diplomatic relations and so on. There being no representative system of Government, naturally there could arise no question of women’s franchise or even of adult suffrage for men. ‘When men had no political rights of their own to exercise, how could females have any political status? The participation of women in the administration of the country was very limited. The succession to the thrones was confined to males, and as a consequence, the history of Aryan India does not furnish us with the name of any female sovereign. In the Vedic period women seem to have been excluded from the Sabhas 20, Shakuntala Rao Shastri, Women in the Vedic Age, pages 23-24. 21. Rigveda, X-18-8.POSITION OF HINDU WOMEN THROUGH AGES 25 or assemblies. The reason of general distrust in woman's capacity as counsellors, was probably due to the fact that dicing and even wine were sometimes indulged in, by the members which made the Sabhas noisy and rowdy.?2_ Hence an assembly was not regarded as a fit place for a woman to attend, though there is a passage in the Rigveda®} which seems to suggest that women also sometimes attended the sittings on important occasions when their proceedings were conducted with dignity and decorum. But onthe whole the status of women was restricted to domestic sphere and she had no say in the political or administrative matters, The maximum sphere of a woman’s work outside her home was to assist her husband in agriculture and todo some work of spinning and weaving of clothes. Being light-hearted, whimsical and eccentric in their mature, they were considered inefficient as rulers, governors and even counsellors. According to Mahabharata also there should be no dwarf, no humpbacked person, no lean mao, no lame and blindman, no idiot, no woman and no eunuch at the spot where king holds consultations. Thus in a nutshell, it can be said that the study of the Vedic period reveals that womanhood in that period had its heights and depths, its brighter and darker sides. But, on the whole, the social or familial status of women was fairly satisfactory. They were given due respect and were not subjected to merciless laws of unsympathetic society; she was judged with sympathy; there was no discrimination between men and women in the anger of gods. But unfortunately she had no legal and political status during that period, i.e., she could neither hold, acquire or dispose of property, nor could she participate in the administration of the country. Rather she was only the queen of the home and outside she had no Tight. POST-VEDIC PERIOD The Position of the Daughter With the changing times the position of the daughter has also changed. In pre-Vedic period, the sacred initiation (Upanayana) 22. Rigveda VIII, 2-12 referred by Prof. Indra, The Status of Women in Ancient India ,page 116. 23, Rigveda 1-167-3.26 HINDU WOMEN’S RIGHT TO PROPERTY IN INDIA of girls was common in the higher sections of society and they consequently used to go through a course of education. In the Brahman period there was, however, a gradual decline in female’s education. The system of sending out girls to famous teaehers or centres of education came to be discouraged; it was laid down that only near relatives like the father, brother or the uncle should teach them at home. Naturally, therefore, religious and secular training became possible only in the case of girls of rich and cultured families. As the thoughts turned to getting a son to provide for the future, daughters came to be looked upon as encumbrances and, however inconsistent it may seem, ceremonies were performed with the special object of avoiding the birth of a daughter. There was also a tendency to lower the age of marriage. Sothe social or familial status of the daughter was towards deterioration in the Brahman period. Her proprietary right was also the same as it was in the Vedic age. The following lines aptly depict the social or the familial position of the daughter : “A wife is comrade, a daughter is misery, and a son a light in the highest heaven.” The social and familial position of daughter further deterio- rated in the age of Smritis, commentaries and digests. The age of marriage of the daughter was lowered, to which the Sutra literature bears testimony. It was recommended that the girls should be married before they attained puberty but Kshatrya families were an exception to it. Even Gautama cites earlier opinions in favour of teducing the age of marriage in the following words : “A girl should be given in marriage before she attains puberty. He, who neglects it, commits sin. Some declare that a girl should be given in marriage before she wears clothes. . . .”24 Similarly Vasistba says : “Out of fear of the appearance of the menses let the father marry his daughter while she still runs naked. For if she 24, Gautama Samhita, 1.9.24.POSITION OF HINDU WOMEN THROUGH AGES 27 stays after the age of puberty, sin falls on the father... are guilty of the crime slaying an embryo.””25 However, there was a slight improvement with respect to her legal status i.e., proprietary right. There is no doubt that daugh- ters like sons did not have right by birth in the joint family property. Asa rule females could not be coparceners in the coparcenary, the daughter’s right of succession in the coparcenary did not arise. But so far her right in the separate property of the father was concerned, she was not altogether ignored as is clear from the slokas of the various sages, e.g., Manu said : “As is self, so is a son, and a daughter is equalto a son, how they, when one’s self is living ina form of one’s daughter, can anyone else take the wealth.”26 Brihaspathi also stated : “The wife is declared to be the inheritor of the husband’s wealth and, in default of her, the daughter; the daughter, like a son springs from the limb of a man; how can any other man inherit her father’s property while she lives?””2” These slokas lead one to the conclusion that even with respect to the separate property ofthe father, the daughter’s right to succeed. to that property was restricted and limited. She could only succeed in default of son, grandson, great-grandson and a widow. But in the normal circumstances, the Smriti writers were of the opinion that she should get to the extent of one-fourth share of what she should have had, had she been a son. As Manu said : “But to the maiden (sister) the brothers shall severally give (portion) out of their share, each out of his share, one-fourth part, those who refuse to give (it) will become outcastes.”4 25, Vasistha Samhita XVII-70-71. 26. Manu IX, 100, 21. Bribaspathi XXV, 56. 28, Manu Smriti IX, 118.28 HINDU WOMEN'S RIGH. TO PROPERTY IN INDIA Similarly Yajnavalkya laid down : “But sisters should be disposed off in marriage giving them as an allotment the fourth share.” It will not be out of place to mention here that the “Fourth Share” in the property should not be misunderstood because the intention of the Smriti writers was not to make the daughter a shareholder with the son but just to reserve as much wealth as is necessary for the sacrament marriage. Moreover, these texts Were only directory and not mandatory. So it can be concluded that in the past the position of the daughter with respect to her right of succession in her father’s property was far from being satisfactory. The Position of the Wife There were gradual changes in the position of women in the Brahman period. The system of sending girls to famous teachers or centres of education was discouraged. As a consequence there arose a tendency to curtail the religious rights and privileges of the average wife; many functions in the sacrifice, which formerly could be performed by the wife alone now came to be assigned to male substitutes. The proprietary right of the wife also continued to be unrecognised, the only exception being in favour of marriage gifts of movable property. Most of the causes responsible for the degradation of wife’s Position continued to operate in the period of Smrities, Digests and Commentaries, In fact the social position of wife deteriorated considerably in this period. The reason for the deterioration of her status was that some centuries before the beginning of this period the Aryan rule became well-established over a great part of India, There were inter-marriages. The introduction of the non- Aryan wife into the Aryan household was the key to the general deterioration of the position of women. The non-Aryan wife with her ignorance in Sanskrit language and Hindu religion obviously could not enjoy the same religious privileges as the Aryan consort. “The black non-Aryan wife may be her husband’s associate 29, Yajnavalkya Smriti U, 124,POSITION OF HINDU WOMEN THROUGH AGES 29 in pleasure but not in religious rituals say several authorities,” This gave rise to friction between Aryan and non-Aryan wife and led to some serious situations. Eventually it was felt that the object could be gained by declaring the whole class of women to be ineligible for Vedic studies and religious duties. Gautama depicts the position of women in the following terms : “A wife is not independent with respect to the fulfilment of the sacred law. Let her not violate her duty towards her husband. Let her restrain her tongue, eyes and action. . . .’”0 The discontinuance of Upanayaua, the neglect of education and lowering of the marriage age produced disastrous consequences gn the position and status of women. Early marriage put an effec- tive impediment in education of girls. From the theological point of view the women, therefore, came to be regarded as of the same status as that of the Sudra as in some Smritis it was remarked that women and Sudra should not be killed. Even the Ramayana, otherwise so full of noble ideals, does not entertain very high regard for the women. The disposition of women according to this epic is very subtle from the beginning of the universe. “They are paid to be as whimsical as the leaves of a lotus flower, as sharp as the edges of a sword and as unsettled as the blast of a2 storm.”3! The same sentiments have been expressed in the later epic literature whichin fact had made the lot of women still more miserable. “The faces of women. . . are likes flowers, their words are like the drops of honey and their hearts are like sharp razors, the interior of them no one can know.” “The same has been repeated in another place wherein women are compared to tigers—merciless, cruel and degenerate.””}? Shukra, renowned writer of Post-Epic ages also does not 30. Gautama Samhita, I1.9.1-19. 31, Ramayana, Aranya Kand, XIII-5-6. 32, Bhagavata Shandha, VI-4 and IX-14-36.30 HINDU WOMEN’S RIGHT TO PROPERTY IN INDIA spare women. According to him the following eight vices are innate in the female sex, ie., falsehood, inconstancy, deceit, stupidity, greed, impurity, cruelty and insolence. But there is the other side of the picture too. Some Smriti- karts also idealised women. For example Manu unequivocally assigned to her the status of a presiding deity in home. He was of the opinion “Where women are honoured, there the gods are pleased but where they are not honoured, no sacred rite yields apy reward.”"4 Manu also said : “that Brahma—the creator, having divided his own body into two became male by one half and female by the other half. So divided man and woman became a perfect person, only when again joined in wedlock. Then alone they can perform religious ceremonies effectively.”35 Yajnavalkya also extoled women so much as to call them “embodiments of all divine virtues on earth. They have been described as gifted by gods with their respective qualities. Soma is supposed to have bestowed all his purity on women. They have been endowed with sweetness of speech by Gandharva. Fire —another God—is assumed to have showered all his brilliance to make them the most attractive and most honoured in the world." A study of the Smrities etc. shows that both the views about the position of women were prevalent during the post—Vedic period also, i.e., on the one hand she was being idealised and on the other she was given very degraded status. However, on the whole her social or familial status was not very satisfactory. With respect to the legal status of the wife it was also generally thought that she had no proprietary right as Manu has said : “a wife, a son, a slave—these three are declared to have no Property; the wealth which they earn is acquired for him to whom they belong.” 33. Shukra, III-163. 34. Manu Smriti-Il-56. 35. Manu Smriti-I-32. 36 Yajnavalkya Smriti, 1, 71. 37. Manu, VII-416.POSITION OF HINDU WOMEN THROUGH AGES 31 The logic behind the proposition was that wife has no separate entity of her own apart from the husband. They are considered to be one in the eye of law. Therefore, wife was entitled to no separate ownership. Over the property of her husband generally it was considered that she had no right during his life-time beyond the right of maintenance and residence. The right to maintenance might have arisen out of the jural relationship between husband and wife created by marriage. Besides, it was based on humani- tarian grounds as well. As Yajnavalkya observed with regard to the forsaken wives : “the who forsakes a wife though obedient to his command, delight in household management, mother of an excellent son... shall be compelled to pay the third part of his wealth, or if poor to provide a maintenance for that wife.’ In the matter of partition, however, Mitakshara law allowed a wife to get an equal share with her own son or sons when the division took place in the lifetime of her husband. But she could not herself demand partition, she could get share only if the hus- band himself separated his sons during his life-time or if sons claimed partition during the father’s life-time.*® But there was a provision that the wife must not be in possession of Stridhana property given by the husband or by the father-in-law and if there was stridhana, then only as much wealth more would be allotted to her as will make her share equal to that of a son. But this did not mean that the husband had to carve out separate portions of the joint property and hand them over to his wives, since such a procedure would be opposed to the dictum “there is no partition between husband and wife.” No doubt the ancient law-givers made reference to women’s property as Stridhana but she was given only limited ownership. The general spirit of Hindu law was not to allow women independence as regards the disposition of property. In the case of females, property ownership had reference to the right of pos- tession and right of enjoyment. The third element of ownership, 38. Yajnavalkya Smriti, 1, 76. 39. Ibid. 11, 115. 40, Ibid., 11, 148.