Kathmandu School of Law Review

P-ISSN : 2091-2110, E-ISSN : 2773-8159, DOI : 10.46985, Publisher : Kathmandu School of Law, Nepal
Annual flagship journal of Kathmandu School of Law, Nepal

Volume 6, Issue 1, April 2018
Articles

Personal Law and Property Rights of Hindu Woman in India - The Need for Codifi cation

PDF
  • Sindhu Thulaseedharan
Sindhu Thulaseedharan
Head of Department of Law, University of Kerala

Published 2018-04-30

Keywords

  • No Keywords.

How to Cite

Thulaseedharan, S. . (2018). Personal Law and Property Rights of Hindu Woman in India - The Need for Codifi cation. Kathmandu School of Law Review, 6(1), 143–155. Retrieved from https://kslreview.org/index.php/kslr/article/view/959

Abstract

In India, the familial relations of any citizen, including inheritance, are governed by law related to his or her religion, which came to be known as personal law. The property rights of Hindu woman from the vedic age refl ected that daughter was given a share equal to that of a son, who in the later age of smritis ( traditional law) , came to inherit only in the absence of male issue. The nature of property of a Hindu woman, stridhanam (woman’s property) thus came to be distorted from absolute property right to ‘limited estate’ known as ‘woman’s estate’. That is, the property passed only to the next heirs of the last male owner of the female intestate. The legislations in the pre-independent India strengthened the position of Hindu woman. But the later laws limited her interest in property to the sense that she could alienate it for certain purposes only and the property possessed by her devolved on the heirs of her husband and not on her own heirs. The retention of testamentary power has further undermined gender-equality largely. Even at present, the Hindu Succession (Amendment) Act, 2005, allows existing property disputes to continue and does not affect rights that became vested prior to its implementation. Therefore, the codifi cation of personal law on succession becomes the need of the hour, since the patriarchal norms retained in the law have to be dropped.

PDF

Downloads

Download data is not yet available.

References

  1. Rigveda 1.31. 3 and 5.43.15.
  2. The smritis stand as the second source to, vedas or srutis, in the tradition. The important smritis include Manusmriti, Yajnavalkyasmriti, Baudhayanasmriti, and Naradasmriti. The Yajnavalkyasmriti attained dominance through the two authentic interpretations on it – Mitakshara, by Vijnanaeswara and Dayabhaga by Jimutavahana.
  3. The 174th Report of the Law Commission of India, ‘Property Rights of Women: Proposed Reform in Hindu Law’, May 2000, p. 3. That suggested for equal rights for women in both separate and ancestral properties.
  4. The principles of ‘sapindas’, meaning kinsmen connected by particle of the same body, pious obligation, and survivorship, retained in the legislation made it patriarchal.
  5. See Archana Parashar, Women and Family Law Reforms in India, Sage Publications, New Delhi, 1992.
  6. See M. Indira Devi, ‘Women’s Assertion of Legal Rights to ownership of property’ in Lotika Sarkar & B. Sivaramayya (ed), Women and the Law: Contemporary Problems, Vikas Publishing House, New Delhi, (First edition), 1994, pp. 168-184.
  7. Act II of 1929.
  8. Ibid, s 2.
  9. Act XVIII of 1937.
  10. Ibid,s 3 (2).
  11. Act No. XXX of 1956.
  12. Ibid , s 14
  13. Ibid, s 6
  14. See s 30 of the Hindu Succession Act, 1956 as amended by the Hindu Succession (Amendment) Act, 2005; See also the Indian States Andhra Pradesh, Tamil Nadu, Karnataka, Maharashtra,Hindu Succession (Amendment) Acts, in 1986, 1989, 1994 and 1994 respectively and the Kerala Joint Family System (Abolition) Act, 1975.
  15. See the Hindu Succession (Amendment) Act, 2005; See (n 14) for the State Acts.
  16. See generally arts 15 (2), 15 (3) & 16 of the Constitution of India, 1950, ensuring equal status and protective discrimination for women.
  17. See Archana Parashar (n 5).
  18. Amrita Chhachhi, ‘The State Religious Fundamentalism and Women Trends in South India’, vol. 24, no.11 Economic and Political Weekly (EPW) p. 567, 18 March 1989, p. 571.
  19. Flavia Agnes, ‘Maintenance for Women as Rhetoric of Equality’, vol.27, no.41, EPW p.2233, 10 October 1992, p. 2235.
  20. See Gerald James Larson (n 25), p. 4.
  21. 14 Moore’s Indian Appeal (I.A) 309, p. 323.
  22. See Balwant Raov Baji Rao, (Indian Law Reports (ILR) 47 I.A 213 in Derrett, D.M., Introduction to Modern Hindu Law, OUP, Bombay, 1963, p. 26.
  23. Mayne, Hindu Law and Usage, pp. 89-90 cited in Derrett, D.M., Introduction to Modern Hindu Law, OUP, Bombay, 1963, p. 39.
  24. See s 2 of the Hindu Succession Act, 1956. The expression ‘Hindu’ includes Hindus of all castes – in fact anyone who is not a Muslim, Christian, Parsi, or Jew, is a Hindu; Sikhs, Jainas, Arya Samajis and Buddhists are also ’Hindus’ as per the Hindu Law.
  25. Gerald James Larson (ed), Religion, Personal Law, and Identity in India, Social Science Press, Delhi, 2001, p.5.
  26. Monier Williams, ‘Religious Thought and Life in India’ cited in Dr. P. B. Gajendragadkar Endowment Lectures (1978), p. 57; Hindu Family Law and Social Change, in Dr. T. K. Tope (ed), University of Bombay, 1982, p. 8.
  27. Sastri Yagnapurushadji v Muldas Brudardas Vaishya, 1966, 2 Supreme Court Journal (SCJ) 502, p. 513.
  28. Hindu Family Law and Social Change, in Dr. T. K. Tope (ed), University of Bombay, 1982, pp. 8-9.
  29. Joachim Alva in Record of Proceedings, July 1967, Bharatiya Vidya Bhavan, p. 419. The Committee of the Colloquium comprised of the then President of India, Dr. Sarveppally Radhakrishnan, the then Vice President, Zakir Hussain and many leading personalities of Indian political and cultural life, cited in Gabriele Dietrich, ‘Women’s Movement and Religion’, vol. 21, no. 4, EPW p.157, 25 January 1986, p. 158.
  30. The Privy Council had stated the significance of the Code in its decision, Gokul Mandar v Pudmanund Singh, I.L.R 29 Cal. 707, in the following words: "The essence of a Code is to be exhaustive on the matters in respect of which it declares the law and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction". Lord Herschell in Bank of England v Vagliano, (1891-1894) All England Reporter (All E.R) 93, while discussing the decision of the court of Appeal in Wilkinson v Wilkinson made clear the essence of codification that “...... the proper course is in the first instance to examine the language of the statute and ask what is its natural meaning, influenced by any considerations derived from the previous state of law and not to start with enquiry as to how the law previously stood....” (AIR) 1923 Bombay(Bom) 321 (Full Bench) ) 31. Constituent Assembly Debates (CAD), Volume VIII, Loksabha Secretariat, New Delhi, (4th edition}, 2003, pp. 721; 761-62.
  31. Ibid, pp. 781-82.
  32. Constitution of India, 1950, art 37.
  33. The mandate of Article 44 therefore is that the State shall endeavour to secure, a Uniform Civil Code. The word ‘enact’ is not used, since the Constitution - makers were quite alive to the difficulties likely to be faced on the way to its enactment. They therefore, directed the State ‘to endeavour to secure it’ and not ‘enact’ it.
  34. State of Bombay v Narasu Appa Mali, AIR 1952 Bom 8, p.87.
  35. Dr. B. R Ambedkar revolted not only against, inequality amongst the different communities, but also for equality between men and women belonging to all castes; he thus stood for the emancipation of all downtrodden sections and not for the backward classes alone.
  36. See ‘Towards Equality’, Report of the Committee on the Status of Women in India (1974-1975), Government of India, New Delhi, December 1974.
  37. See Derrett (n.22), p. 113. It is said that the Hindu owes three debts, to the Gods, to the ancestors and to human beings; and by begetting a son he will pay off all those three classes of debts.
  38. Ibid, pp. 113-115.
  39. Ibid, pp. 115-117.
  40. See PV Kane, History of Dharmasastra (H.D), vol. III, Chapter 19, at 100; Manusmriti (Manu) (IX, 137) which is the same as Vasishtha DharmaSutra 17.5 and Vishnu DharmaSastra 15.46) and Yajnavalkyasmriti (Yaj.) I. 178, follows that the son, grandson and great grandson equally confer great spiritual benefit and so are the principal group of heirs.
  41. Rigveda III-31.1, Manu (IX 126-128) interprets the world ‘duhita’ as ‘a daughter appointed as a son’ or ‘putrika’.Manu (IX. 130) declares: ‘one’s son is like oneself and one’s daughter is equal to one’s son; how can another person take the wealth (of the deceased) when she who is the very self (of the deceased) lives.’ As the usage of appointing a daughter as a son became gradually obsolete, the ordinary daughter cameto be recognized by analogy as the heirs of a sonless man after the widow. P. V. Kane, H.D, vol. III, Ch. XXIX, p. 714.
  42. Ibid, vol. II, pp. 568-569. Manu (XI. 10) says, ‘one must maintain one’s aged parent, a virtuous wife and minor son by doing even a hundred bad acts’; Yaj( I .74), ‘requires the husband to maintain wife whom he had superseded in the same way as before, who otherwise would be guilty of great sin’.
  43. Ibid,vol. III, Chapter XXIX.
  44. Yaj. II, 143; 148.
  45. P. V. Kane, History of Dharmasastra, Bhandarkar Oriental Research Institute (BORI), Pune,1990, vol. III, Ch. XXX, p. 781.
  46. Ibid, p.794.
  47. Ibid.
  48. N. R. Madhava Menon (ed), National Convention of Uniform Civil Code for All Indians, Bar Council of India, New Delhi,1986, p. 284.
  49. Vijaya Sharma, Protection to Women in Matrimonial Home, Deep and Deep Publication, New Delhi, 1994, p 972.
  50. See s 14 (1) of the Hindu Succession Act, 1956. The object of sub-section (2) was to make it clear that a ‘restricted estate’ can even after the commencement of Act, come into existence in case of interest in property given to a female, by operation of transaction inter-vivos by testamentary disposition, by decree or order of a civil court or under an award.
  51. See V.Tulasamma v Sesha Reddy (D) by L.Rs, AIR 1977 SC 1944.
  52. See Eramma v Veerupana , (1967) I SCJ 746, where the Supreme Court observed that Section 14 (1) could not be resorted to but subjected to sub clause (2) because at the time the widow got possession in the case she had no vestige of ownership and hence held a position equivalent to a trespasser.
  53. See Davidson, Thomas (ed), the Chamber’s Twentieth Century Dictionary of the English Language, London, 1903.
  54. Halsbury’s Laws of England, 3rd edition, vol. 16, 1954, p. 394, para 761.
  55. See Parmanand Ahuja v Satya Deo Ahuja, AIR 1973 Del 190, para 26.
  56. See Hindu Succession Act, 1956, ss 8 & 15.
  57. Ibid, s 30.