In the ancient text Manusmriti,’ Manu writes: “Her father protects her in childhood, her husband protects her in youth and her sons protect her in old age; a woman is never fit for independence.”
In ancient era Patriarchal Hindu society provided women with property known as stridhan (literally, women’s property or fortune), and it mainly came from marriage gifts (clothes, jewelry, and in some rare cases, landed properties). However, women were denied property rights to the ancestral or marital landed property, and their right over succession of the landed family property was limited.
Women were not absolute owners of the property inherited from their male ancestors, because they could sell the property only for limited legal necessities and not for other reasons. On the death of the woman who had no sons, such property did not pass to her female heirs but to the nearest male heir of the deceased male owner and not to the heirs of the deceased.
As per Hindu’s long practiced tradition the Karta of a Hindu joint Family in Hindu Law is the senior most male member of the family entitled to manage family affairs, in his absence the next eldest male member after him is entitled to be the Karta. A Karta is the caretaker of the whole family and looks after the welfare of all the members of the family. His relationship with other members is a relationship of trust and confidence.
At least one male member is necessary to constitute a coparcenary. Earlier women were not included as coparcenary members, and according to the Hindu sages only a coparcener can become a karta, and therefore they could not be the Karta.
But now because of the changed position of daughters as coparceners the situation is in favour of possibility of women becoming Karta. There are diverse views of the Courts on this point.
Throughout history, restrictions on Hindu women’s property rights have undergone change, and current laws governing these rights are more liberal than those of ancient Hindu society.
POSITION OF WOMEN IN HISTORY:
During vedic age women position was judged by the way in which the birth of a girl was received. The birth of a girl would not give as much joy as that of a boy. The daughter had always been under the control of her father until the time of marriage, and then she was under the control of husband and his family. Sometimes, if a daughter remained unmarried throughout her life, she would be under her father’s protection. If her father died, she would come under the control and protection of her brothers, provided the brothers had undertaken to maintain her.
Daughters did not have any right to hold, acquire or dispose off property. It simply means that she did not enjoy any legal status in the early Vedic times. Married daughters living with their husbands could inherit from their fathers only when they had no brother. Wife in the Vedic period suffered a disability of not having any legal status with respect to property. She could neither hold nor inherit property.
With respect to the separate property of the 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. So, it can be summed up that in the past the position of the daughter with respect to her right of succession to her father’s property was far from being satisfactory.
During the post Vedic period, there were slow changes in the position of women. The proprietary right of the wife also continued to be unrecognized, the only exception being in favour of marriage gifts of movable property. But, Manu, has said regarding the legal status of the wife that she had no proprietary right, “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
Before 1956, the property of woman was divided into two heads:
Stridhan and women’s estate.
STRIDHAN & WOMEN’S ESTATE-
The word stridhan literary means woman’s property. But in Hindu law it has, all along, been given a technical meaning. Stridhan given to woman at the time of her marriage by her husband, parents, relatives etc., on those things the women had exclusive right. Those things which formed part of the stridhana could not be taken away from her even by her husband according to the Hindu law.
But this description of stridhan was widened by the communities. Such property belonged to the wife alone and was not to be touched by the husband or her parents. However the husband could use it in emergencies like sickness, famine, looted by robbers, or for performing holy deeds. Otherwise a wife had the right to complain in court of law.
Istridhan is recognized as a woman to property on the basis of sources from which the property was acquired. A woman had the absolute right of ownership over the istridhan. It means that she could dispose off only the istridhan property at her pleasure, as she had only limited interest. To sum up, the evolution of recognition created certain circumstances for women to hold property on her own.
Istridhan means woman’s property. In the entire history of Hindu Law, woman’s rights to hold and dispose of property have been recognized.
The character of property that is whether it is istridhan or woman’s estate, depends on the source from which it has been obtained. They are:
- GIFTS AND BEQUESTS FROM RELATIONS- Such gifts may be made to woman during maidenhood, covertures or widowhood by her parents and their relations or by the husband and his relation. Such gifts may be inter vivo or by will. The Dayabhaga School doesn’t recognize gifts of immovable property by husband as istridhan.
- GIFTS AND BEQUESTS FROM NON-RELATIONS- Property received by way of gift inter vivo or under a will of strangers that is, other than relations, to a woman, during maidenhood or widowhood constitutes her istridhan. The same is the position of gifts given to a woman by strangers before the nuptial fire or at the bridal procession. Properties given to a woman by a gift inter vivo or bequeathed to her by relatives and friends during covertures is istridhan according to Bombay, Benaras and Madras schools.
- PROPERTY PURCHASED WITH THE INCOME OF ISTRIDHAN- In all schools of Hindu Law it is a well settled law that the properties purchased with istridhan or with the savings of istridhan as well as all accumulations and savings of the income of istridhan, constitute istridhan.
- PROPERTY RECEIVED IN INHERITANCE- A Hindu female may inherit property from a male or a female; from her parent’s side or from husband’s side. The Mitakshara constituted all inherited property a istridhan, while the Privy Council held such property as woman’s estate.
- PROPERTY OBTAINED ON PARTITION- When a partition takes place except in Madras, father’s wife mother and grandmother take a share in the joint family property. In the Mitakshara jurisdiction, including Bombay and the Dayabhaga school it is an established view that the share obtained on partition is not istridhan but woman’s estate.
Istridhan has all the characteristics of absolute ownership of property. The istridhan being her absolute property, the female has full rights of its alienation. This means that she can sell, gift, mortgage, lease, and exchange her property. This is entirely true when she is a maiden or a widow. Some restrictions were recognized on her power of alienation, if she were a married woman. For a married woman istridhan falls under two heads:
• the sauadayika (gifts of love and affection)- gifts received by a woman from relations on both sides (parents and husband).
• the non-saudayika- all other types of stridhan such as gifts from stranger, peoperty acquired by self-exertion or mechanical art.
Over the former she has full rights of disposal but over the latter she has no right of alienation without the consent of her husband. The husband also had the power to use it.
On her death all types of istridhan passed to her own heirs. In other words, she constituted an independent stock of descent. In Janki v. Narayansami, the Privy Council aptly observed, “her right is of the nature of right of property, her position is that of the owner, her powers in that character are, however limited… So long as she is alive, no one has vested interest in the succession.”
The hindu woman’s right to property act, 1937, introduced changes in the law of succession. It was not retrospective in its operation. It did not apply to the property of any Hindu who died intestate before the commencement of this act. But it intended to redress disabilities and to give better rights to women. It was ameliorative in character and enacted to carry out important social reform by recognizing women’s claim to fair and equitable treatment in matters of succession
Conferred some new rights of inheritance on certain hindu females which had the effect of increasing the bulk of women’s estate, but apart from its side repercussions on the joint family property, it did not alter the basic division of woman’s property into istridhan and woman’s estate.
The advent of the British rule in India brought out new awakenings in the minds of Indian people. Not only the British, even the social reformers like Raja Rammohan Roy, Eswar Vidhyasagar and others started movements and fought for the welfare of women. They started to educate women and struggled to remove evil customs such as sati, ill treatment of widows, prohibition of widow remarriage, denial of property rights and education to women. The socio-religious reformers provided an ample scope for women to fight for their rights.
Raja Rammohan Roy took up the problem of the right of inheritance for women. He said that all ancient law givers had awarded the mother an equal share with her son, in property left by a person. He further realized that the economically helpless position of women, especially after her husband’s death, led them to voluntary practice of sati, at least in some cases. So, for the first time Raja Ram linked the practice of sati with the problem of property. He also for the first time stressed the need of making existing laws made know to the common people. As regards daughter’s right she is entitled to one-fourth the portion while a son has the right to inherit 50%, but the modern law givers like those of the Dayabhaga school asserted that the daughter was entitled only to her marriage expenses.
Raja Ram Mohan suggested that the government should enact and enforce laws to remove these disabilities of women and put an end to such callous practice of society and bring economic freedom and education to them. But it did not basically change the structure of gender subordination; therefore, the status of women did not improve.
In the meantime, after the Queen’s proclamation of 1858, the British parliament initiated a process of law reform in India. As a result, a number of laws were passed. It was at this juncture that the term ‘personal’ was introduced into the legal sphere. Laws governing marriage, divorce, inheritance, succession, adoption etc., are termed as ‘personal’. Further it is considered that the personal laws are ‘religious’ although most of them are state enacted. These laws were outdated and reflected rigid Victorian code of morality. Moreover, it was a historic moment, because it was after the implementation of the Victorian code of morality that a smaller section of women got the right to choose divorce through the state enactment.
All this was a progressive act for the Hindu women, they were granted this right after much debate and opposition, almost a century later in the year 1956. The Hindu law of inheritance had deprived women of the right to property (except the right to stridhan) and as a result, their economic security was completely dependent on the stature of man – father, husband, brother and son. The movement to strengthen the position of women in society began and as the first step towards confirming economic security upon Indian women The Indian Succession Act 1865 was enacted. The act laid down that no person shall by marriage, acquire any interest in the property of the person whom he or she marries nor become incapable of doing any act in respect of his or her own property which he or she could have done if not married to that person.
The Married Women’s Property Bill 1874 was a natural consequence of this act. On 24th February 1874, the council of the Governor General of India met at Government House to consider the Bill. The bill was passed into Act III of 1874, which was the first law in modern times extending the scope of istridhan. It declared that the wages and earning of any married woman, any property acquired by her through the employment of her art and skill and all her savings and investments shall be her separate property. This act, though a radical one, did not create stir in Hindu society. Because, until 1923, the act applied only to Indian Christian women, but married women belonging to Hindu, Mohammedan, Sikh and Jain communities remained outside the purview of the act.
But after the several efforts made by scholars, jurists the position of women improved as the years passed and as their right in property.
Indian succession Act 1925:
Social reform movements raised the issue of amelioration of women’s position in society. As a result, in 1925, the Indian succession act was passed. The Indian Succession Act 1925 is by far the only progressive law of succession in India. Except for the provision regarding exclusion of the mother in presence of the father, it does not contain any provision which discriminates against the rights of females. The discriminatory attitude against the daughter is followed with such rigour that even if she has been given a share, practically she gets nothing. Her property rights have therefore been reduced to paper rights. The pre-dominant reason for it remains the absolute testamentary powers.
Hindu law of inheritance act 1929:
By following this Indian Succession Act 1925, the other legislation bringing females into the scheme of inheritance was the Hindu Law of Inheritance Act 1929. It governs succession only to the separate property of a Hindu male who dies intestate. This bill sought to ensure that the inheritance rights of female heirs were between those of the fathers’ father and the uncle. The House agreed to refer Seshagir’s bill to a select committee.
Madan Mohan Malaviya was avowedly opposed to the bill . He said that the Hindu law of succession was a personal law and the Government had promised not to interfere with such laws. Hence, it was not right on the part of the legislators to alter the law. The bill was then postponed by the council of states. He said that the bill was already old and the demand for amendment would only delay its enactment further. Eventually, the amendment when put to vote, was rejected.
Dowry Prohibition Act 1961:
While the Hindu Succession Act (1956) assured Hindu women their succession rights, the enactment of Dowry Prohibition Act (1961) addressed the problem of forceful demand of istridhan in name of dowry and made it a penal offense. The Act defined dowry as any property or valuable security given or agreed to be given at the time of marriage, or before the marriage or at any time after the marriage by one party to the other party in the marriage or by the parents of either party to a marriage or by any other person to either party of the marriage or to any person.
However, Section 2 of the Act draws a thin line between istridhan and dowry and states that when presents are gifted to the bride and bride groom respectively and such presents are not demanded and entered in the list as has been provided by The Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules (1985) and signed by the bride and bride groom respectively, it will not fall under the term “dowry.”
But could these “gifts” received by the bride at the time of marriage be termed as istridhan?
The Supreme Court of India finally settled this issue in the case of Prativa Rani v. Suraj Kumar and stated that “the istridhan property of a married woman cannot acquire the character of a joint property of both the spouses as soon as she enters her matrimonial home.”
This revolutionary judgment finely defined istridhan which were immovable and received as gifts by the Hindu women and thereby sealed any controversy in regard to its absolute ownership by women. The further amendments made to the succession laws upheld women’s position as at par with their male counterparts in dealing with succession and property matters.
Hindu Succession (Amendement) Act, 2005:
The Hindu Succession Act (amended) 2005, gave Hindu women right to become a coparcener in the ancestral property like their male counterparts. Under Section 6 of the Hindu Succession (Amended) Act (2005) daughters get equal rights of the ancestral properties. Hence it could be seen that:
The daughter of a coparcener cell by birth becomes a coparcener in her own right in the same manner as the son;
The daughter has the same rights in the coparcenery property as she would have had if she had been a son;
The daughter shall be subject to the same liability in the said coparcenery property as that of a son; and any reference to a Hindu Mitakshara coparceners shall be deemed to include a reference to a daughter of a coparcener;
The daughter is allotted the same share as is allotted to a son;
The share of the pre-deceased son or a pre-deceased daughter shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter;
The share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter shall be allotted to the child of such predeceased child of the pre-deceased son or a pre-deceased daughter.
The Hindu Succession (Amended) Act 2005 has brought a revolutionary change in the Hindu succession law by making the women Karta 63 of the joint family property. Women therefore can manage the property as the male heirs were doing since ages.
Women were considered as just managers in case of distress and never had the power to manage the property by themselves for their own purposes. By the amended Act women were elevated to the position of full property owners.
The position assigned to a woman by the Hindu shastras was a state of dependence and submission. As women were considered incompetent to perform religious rites, they were deprived of their right to property during the period of Smritis. The only kind of property which a woman was allowed to have control over was the ‘istridhan’. It consisted mostly of gifts of jewels, ornaments and clothes. The seeds of ‘istridhan’ were sowed in the Rig Vedic period in the form of bride price and later on; it was included in the category of gifts which were given to the bride during certain ceremonies.
The concept of istridhan was changed and the principle of ‘Limited Estate” of woman was introduced during British period. She could have only limited estate in respect of the property which she inherited. It means that she could enjoy the fruits of such property during her life time but she had no right to alienate it.
Women’s property was divided into two categories viz., istridhan and woman’s estate. Istridhan was the property, over which a woman enjoyed certain power of alienation with some limitations. But woman’s estate was a special kind of estate and it did not pass on to her heirs on her death but passed on to her male inheritors.
During the period of national struggle for freedom, a new awakening took place with collective consciousness of the people of India in respect of education, emancipation from poverty, property rights, gender equality etc. As the political awakening was dawning, the urge of women to achieve equality gained momentum. The concept of equality of women in education and occupation brought about the feeling that the property rules should also be changed according to the needs of the time. The Hindu Succession (Amendment) Act 2005 was passed on to remove the discrimination that existed in the old traditions of Hindu law. This amended act modified the traditional law of inheritance in favour of female heirs and conferred equal property share from the ancestral property on the daughter. By birth a daughter would acquire property rights and would be like any other coparcenary.