By Muskan Pacherwal
The author is a first-year law student at the University School of Law and Legal Studies (GGSIPU)
There’s a Sanskrit text that elaborates the ancient take on women rights called “Na Stri Swantantramarhati,’ Swatantram Na Kachit Striyah” which means women are always subject to the rule of their male counterparts and they are not capable enough to be independent. These restrictions have always been there but throughout history laws governing women rights have become more liberal as compared to ancient Indian society. Early patriarchal society denied women property rights to ancestral land or marital land, women could only possess a property known as stridhan which includes mainly marriage gifts like jewels, clothes, landed properties. Even stridhan was not solely owned by women as Manusmriti[1] taught that wife’s property also belongs to her husband.
These barriers were challenged mainly in the 19th and 20th century and until recently the ‘Hindu Succession (Amendment) Act (2005) was passed and this discrimination was discontinued.
The Ancient Period
Several schools of thought developed in different parts of India, each with its own set of marriage and inheritance customs and concepts. Mitakhshara and Dayabhaga were the major schools, each with their own interpretation of Yagnavalkya Smriti[2]. According to the Mitakhshara school of thinking, women can only have stridhan from their husbands The property rights of women were severely restricted in this school of thought. While Dayabhaga school had comparatively more liberal laws than Mitakhshara school. According to this school, women weren’t the absolute owner of the property inherited by their male ancestors; they could only sell the property for legal reasons not any other.
Even the stridhan wasn’t out of the reach of males. Sauadayika were gifts from both sides of the family over which women had full rights of disposal. Non-Sauadayika were gifts from strangers or property by self-exertion to which she had no right of alienation without the consent of her husband.
Many socio-religious crimes had their roots in succession laws due to which women were never recognized as full owners of the property and were subjected to many heinous crimes like female infanticide, bigamy, remarriage for a male heir and women abandonment. Moreover, these crimes were made highly acceptable.
The Medieval Period
The strong shadow of male dominance over the succession rights of Hindu women became even darker in the medieval period with the Muslim invasion. Shariat laws were introduced by Muslim rulers but they didn’t disturb any Hindu personal laws. By this period stridhan became a mere form of jewellery or other movable items which is given to newlyweds, known as dowry. Landed property received by women was either through a) inheritance b) by share received during partition. But there were two limitations for that- a) she couldn’t alienate property. b) after her death, her property will be passed on to the next heir of the last full owner.
Women were used by males as a means to protect their ancestral property from the grasp of Muslim rulers. Young widows were a mode to transfer property to the next male heir of the deceased for this male-dominated society and were forced to perform sati. Widows were only allowed to wear white and all of her jewellery was taken away by male members of the immediate family, and old widows were left to beg at some Hindu holy place.
As a result, Hindu women were tortured for being born as daughters who couldn’t demand their share of the property, for being a young bride whose stridhan was considered her husband’s dowry rather than her own, and for being a widow who could neither demand her husband’s share of the property nor her stridhan.
The Modern Period
This was the colonial period, and the biggest socio-legal issue faced by the British were the social customs in India like sati pratha, stridhan being a part of the dowry, marrying young girls to dying men. However, sati was abolished by Sati Regulation XVII of 1827 due to the constant efforts by influential men like Raja Ram Mohan Roy, Lord William Bentinck etc. Acts like this paved a woman’s way to attain property rights.
- Hindu Women’s Right to Property Act (1937)
Mitakhshara and Dayabhaga laws governed the inheritance issues in India. This Hindu Women’s Right to Property Act (1937) was an attempt by the British to uniform succession laws. This act paved the way to limited rights for women, still, it had some flaws- a) it couldn’t guarantee rights to women if the deceased person disposed off his property by will. b) nothing was mentioned about shares of agricultural lands.
- After Independence
Women still had very limited property rights. During a constitutive assembly in 1948, B.R. Ambedkar pointed some issues in succession laws and made amends like- a) widows & daughters have the same rights as the son in inheritance. b) daughter has half as much share as the son in the father’s property. c) son has a share in stridhan as they tried to maintain equality. d) bill converted limited women’s estate into an absolute estate. e) abolished right to reversioners.
Section 14 of legislation let women’s estate be converted into stridhan, but it somewhat had a retrospective glance as women’s estate could be converted into stridhan only on these two conditions- a) woman should have full ownership rather than limited ownership. b) women should possess the property after this act came into force i.e., June 17, 1956.
Hindu Succession Act 1956 wasn’t flawless, it had many clauses which were continuing the age-old discrimination between male and female heirs. Some of them are- a) widow can only inherit a share in father in laws property if her husband is dead. b) heirs to the dwelling-house were only males. c) married daughters and daughters who’ve left their husbands don’t have rights to claim partition or right to the residence. d) issue of the right to residence on dwelling house and partition wasn’t resolved by this act.
- Hindu Succession Act in the South States
According to the Hindu Succession (Andhra Pradesh) Amendment Act (1985), daughters’ rights should be equivalent to sons’, and the Mitakhshara system violates the fundamental right to equality. Women were also listed as coparceners in Tamil Nadu, Maharashtra, and Kerala’s amended laws, but other states refused to deviate from their patriarchal norms. The 174th commission did the revolutionary task and recommended changes to the Mitakhshara and Dayabhaga which were the ancient succession laws to give an equal share to women as men in attaining the ancestral property.
- Hindu Succession (Amendment) Act 2005
The age-old tradition of transferring the whole property of a person who died to his next male heir came to an ultimate end with this act in 2005. For centuries women were considered as just managers in times of distress but under section 6, daughters were given equal rights as that of a son. So now women got an equal share of the property as their male counterparts and they were also made the Karta of the family which alleviated their position to full property owners.
Many Hindu orthodox families, where women face significant discrimination, may refuse to allow her to use these empowering laws to her advantage. Still, a question arises whether she’ll still have the same rights if she chooses to marry a person of a different faith or she converts her religion. There is still a long way to go but these acts and constant efforts for betterment have surely made a difference in women’s lives.
[1] First ancient legal text, which was used to put down the idea on how a society should run in ancient India.
[2] The Hindu code’s second most important source after Manusmriti.
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