CHAPTER – I

INTRODUCTION

“A woman feels as keenly, thinks as clearly, as a man. She in her sphere does work as
useful as man does in his. She has as much right to her freedom to develop her
personality to the full as a man. When she marries she doesn’t become the husband’s
servant but his equal partner. If his work is more important in life of the community, she
is more important in the life of the family. Neither can do without the other. Neither is
above the other nor under the other. They are equals.”

Lord Denning in 19811

“Woman is the companion of man, gifted with equal mental capacities. She has the right
to participate into very minutest detail in activities of man and she has an equal right of
freedom andliberty with him.”

Speeches and Writings of Mahatma Gandhi

Natesan, Madras, 19332

Every ideal and renowned person and nationalist, talks about equality, specifically
between men and women. The dream of everyone is EGALITARIAN SOCIETY. The
term egalitarian can be defined as:

“Affirming, promoting or characterized by belief in equal political, economic, social and

civil rights for all people.”

1.1 POSITION OF HINDU WOMEN:

The egalitarian term more forcefully relates to equality between men and women. Gender
inequities throughout the world are among the most pervasive, though deceptively subtle
forms of inequality. Gender equality concerns each and every member of the society and

1
www.google.co.in visited on l0-2-2016
2
www.indiavisitinformationcom visited on 9-2-2016

1
forms the very basis of the just society. Human rights issues, which effect women in
particular, play a vital role in maintaining the peace and prosperity of a just society.

“Today as we stand at beginning of the 21st century we are still unable to boast such a
society where there is total gender equality or gender equity. As per theories and texts
women got a higher place and worshiped but the truth was otherwise. In the name of
safety, sacrifices, physical weakness and love for them, they got trapped in four walls
which, with the passing of time becomes their weakness as made them illiterate, shy and
weak in reality. Until recently the question of gender equality was merely a topic of
theoretical discussion. The reality of women’s lives remains invisible to men and women
alike and this invisibility persists at all levels beginning with the family to the nation.
Although geographically men and women share the same space yet they live in different
worlds. The mere fact that women hold up half the sky doesn’t appear to give them a
position of dignity and equality. It is true that over the years women have made great
strides in many areas with notable progress in reducing some gender gaps. Still the
afflicted world in which we live is characterized by deeply unequal sharing of the burden
of the adversities between women and sprawling inequalities persist in their access to
education, health care, physical and financial resources and opportunities in the political,
social, economic and cultural spheres.”

“Gender inequality holds back the growth of individuals, the development of the nations
and the evolution of societies to the disadvantage the both men and women. Gender
issues are not simply talking about understanding gender, means understanding
opportunities, constraints and impact of changes as they affect both men and women.”

The impact of inequality is reflected in the status of women worldwide and in India. In
ancient times women in India were revered as Goddess and they occupied a respected
position in family and society but this position of women degraded as time passed in the
name of religious and socio economic practices and they were denied opportunities of
growth. Since then many attempts were made to ameliorate and emancipate the women
but much result couldn’t be obtained due to hard core religious practices and superstitions
prevalent in the society and their position remained more or less the same.

2
Woman usually referred to as a better half of a man enjoys a privileged position in the
society, performing various roles assigned to her in transition as a daughter, wife, mother,
sister and widow. But despite her contribution to society her identity has not been
recognized. Though Women work for longer hours than men, yet she is usually
designated as a non-contributor to the national economy. All this discrimination emerges
because legally and socially she is identified as a second subordinate in the society and is
not entitled to various rights, nor is her economic independence recognized in the family
and society.

Faced with this challenge, the native pride and defiance of Indian asserted itself and
produced a long line of champions in the cause of Vidyasagar, Bankim Chandra, Swami
Dayananda, Gurudeva Tagore, Mahatma Gandhi, Prem Chand, Sarojini Naidu, etc. they
pioneered the movement for the emancipation of woman, during the 19th century,
continuing well past in to the 20th century.

While the earliest stalwarts sought to secure equal social status for women, Mahatma
Gandhi, with his uncanny foresight invited the women of India to participate in India’s
struggle for freedom and let it be said, to their credit, that they responded splendidly. In
fact, Satyagraha offered an ideal weapon to the women of India who wielded it with
incredible audacity and courage, to fight not only the British Imperialism but also social
evils like child marriage, drinking, consumption of foreign goods, untouchability and
illiteracy.

In fact, as social reform became an integral part of the movement for India’s freedom,
women trained in the Gandhian school surpassed men and earned accolades from far and
near. Gandhi’s success was commensurate with the participation of women volunteers in
his revolutionary programs.

According to Gandhi Ji:

“Woman is companion of man gifted with equal mental capacities.

She has the right to participate in the minutest details of the
activities of man, and she has the same right of freedom and liberty

3
 as he. She is entitled to a supreme place in her own sphere of
activity as man is in his. Man and woman are equal in status, but
are not identical. They are peerless pair being complementary to
one another, so that without the one, the existence of the other
cannot be conceived; and, therefore, it follows as a necessary
corollary from these facts that anything that will impair the status
of either of them will involve the equal ruin of both”.

Jawaharlal Nehru also fully realized the role of women in the adventure of national
reconstruction. Writing in 1952, he regretted how few women had been selected to the
first national Parliament, and observed:

“I think we are much to be blamed. It is not a matter of showing

favour to anyone or even of injustice, but rather of doing
something which is not conducive to the future growth of our
country”. He went on to say, “I am quite sure that our real and
basic growth will only come when women have a full chance to
play their part in public life. Whenever they have had this chance,
they have, as a whole, done well, better if I may say so, than the
average man. Our laws are man-made. Our society is dominated by
man and so most of us naturally take a very lopsided view of this
matter. But the future of India will probably depend ultimately
more upon the women than the men”, he added.

In reality the status of women is the yardstick for assessing the standard of culture of any
age and thus mirrors the social spirit of that age. The study of legislative measures to
ameliorate the position of Hindu women demands historical-analytical account of
women’s rights from ancient law to present day position. A proper assessment of Hindu
women today necessarily involves a brief resume of their cultural background through the
ages. The evolution of the legal rights of Hindu women has been a continuous process of
ups and downs throughout the history. It is difficult to specify the exact chronological
time as to when the deterioration in women’s status started. Due to ambiguous and

4
contradictory remarks often found in our available early texts, the status of women in
ancient India still remains somewhat obscure and even controversial.

Hindu women’s position in all ages has always been of dependence on man. There may
be a difference of degree here and there as time and circumstance permitted. A Hindu
women has been a second rate citizen through ages. It is proposed to make an attempt to
trace the evolution of legal status of Hindu women in this Chapter as below:-

(i) Ancient Period

(ii) Smriti Period
(iii) Post Vedic Period
(iv) Muslim Period
(v) British Period

Evolution of legal rights of Hindu females as to matrimonial, proprietary status and with
regard to adoption and guardianship etc. as been dealt with along with legal rights under
Modern Hindu Law in succeeding Chapters also.

(i) ANCIENT PERIOD:

The study of rights enjoyed by Hindu women in ancient period starts from early
Vedic period i.e. 2500 B.C. to 1500 B.C. The highest place has been accorded to
female in Indian religious and philosophical thought. The primordial one is
conceived as a harmony of purusha (male) and prakriti (female).3 The concept of
ardhanarishwara describes God’s head as half female and half male. Shakti cult is
centered on the superiority and destructive strength of the female. Rivers and
streams, dawn and twilight, flowers and seasons, knowledge and music are
conceived of as feminine.4

Female enjoyed freedom at par with male both in religious and social fields and
there were considerably less restrictions on her activities outside home during this

3
Rigveda X. 124,5.
4
Girija Khanna and M.A. Varghese-Indian Women Today.

5
 age. A man’s religious life was considered to be deficient without his wife’s
active participation in it. Without “ardhagini” the psychological and moral
personality of man remained imperfect. The Mahabharata declared that:

“Intruth, a householders home, even if crowded with sons,

grandsons, daughters-in-law and servants is virtually a lonely place
for is life, if there is no house wife. One’s house made of bricks
and mortar, it is the wife who makes the home. A home without
the wife is like a wilderness”.

A wife was considered as his friend, counsel and companion. Throughout the Vedic
period, female was given a “status” equal to man to participate in sacrificial rites to
undergo the investiture ceremony, and to be man’s equal in upholding “dharma”. She
could fight wars, join in festivals and take part in philosophy discussions.

Thus, in the Vedic age, woman enjoyed relatively high position in Indian society. She
enjoyed freedom for spiritual progress and intellectual development. Vedic texts are
replete with references to rituals recommended for ensuring the birth of a learned
daughter. The female did not always remain in-doors, but moved about freely, then
publically attended feasts and dances, and there are references to “fair ladies flocking to
festive gatherings”5

Manu, the significant law-maker, long ago declared that:

Where women are honored there the Gods are pleased. Where they
are not honored no sacred rites yield rewards.

With the passage of time there was a gradual degradation in women’s status. During the
Smriti Period i.e. 200 B.C to A.D., status of women deteriorated. When the injection of
Manu which codified Hindu law obliterated the practice of Upnayan for women,6 the
social codes and sanctions of Manu left their marks permanently on the future status of
the female especially the Hindu female. Our great sage Manu was not woman hater but

5
R.C. Mazumdar, The History and Culture of the Indian People, (1965) vol. I at p. 394
6
S.R. Shastri, Women in the Vedic Ave (1960), at p.20.

6
he clamped down woman’s freedom in certain spheres in order to safeguard her position
and to preserve the family structure. His famous dictum runs as:

A woman is under the subjection of her father when a child, when

married under that of her hu band, after her husband under her sons
and if she has no sons then to her agnatic relations, because there is
no woman whatever who is fit to be independent.7

In Era of Dharamshastras i.e. in Smriti and sutra period, legal thought, progressive
evolution and growth of a system of traditional law, claimed its foundation and Smritis as
its ancient framework. Smritis are collections of precepts handed down by rishis and
sages of antiquity. These contain ordain rules of legal rights and obligations. There are
number of texts in the Smritis on the ownership of Property, women’s property and
shudras which show that jurisprudential concepts reflected through them remarkably
accord with the most modern writers on jurisprudence. To mention only one, they
announced the identity of the husband and wife and rested the rule that in the case of a
person who died sonless, his widow could succeed in preference to all other heirs
recognized by law.8

The most ancient of existing recorded aphorisms on law are Dharamsutra of Gautama,
Budhayana, Apastamba, Hareta, Vashishtha and Yajnavakaya, compiled in about first
century after Christ, is a code in which the main work founded on Manu Smriti but some
other matters like status of shudra’s and women’s right of inheritance and to hold
property is decidedly and more liberal than Manu. The women had respectable status in
the religious and social sphere women were intellectually grown up and were considered
as capable of carrying on religious affairs and discussions. The famous discussion of
Gargi and Yajnavalkaya proves the intellectual excellence of women, where Gargi went
to assembly of Janaka and questioned him about the nature of Brahmans.

7
Manusmriti, V. 146.
8
Mulla,” Principles of Hindu Law” (19th edition by S.A Desai), Butters worth India, New Delhi
P-13-14

7
This discussion shows that if women is considered intellectually grown up and
determined then how she can be denied of giving her equal and good economic political,
social and religious rights.

The literature of Vedic period shows that women in that age didn’t enjoy any legal status
regarding property rights, as duties and obligations were given due regard and a view that
‘rights follow the duties’ prevailed. A daughter didn’t have any right to hold, acquire or
dispose of property. However the Vedic literature prescribed inheritance to the unmarried
daughter and to a brotherless married daughter. The sisters got no share in the patrimony
if they had brothers. But the daughter living in her father’s home, throughout her life got
a share of his property. But she could not claim any share with her brother for it is clearly
laid down in Rigveda that “a son born of the body doesn’t transfer wealth for
sister.”9 Married daughters living with their husbands could not inherit from their father
exceptionally when they had no brother.

In Smritis, the position of woman is not good. They contain texts which can command no
respect from men who cherish the liberty of woman as their own and who regard her as
the mother of race. Besides, there are Smriti texts which give women her due place and
regard her with deep veneration. The question arises as to what to do with those texts
which are in conflict and repugnant to the moral sense. All that printed in the name of
scriptures need not be taken as word of God or the inspired word. But everyone cannot
decide what is good and authentic and what is bad and interpolated. There should be an
authoritative body that would revise all the passes under the name of scriptures, are
contrary to the fundamentals of religion and morality and present such an edition for the
guidance of Hindus.

During Vedic age women were not considered incompetent to study the Vedas and
studied like men and participated in social, economic, political and religious life. Ladies
like Gargi, Maitri, Lopamudra, Sachi, Paulomi and Sulabha etc were

9
Kulwant Gill,”Hindu Women’s Right to property in India, Deep and Publications Pvt. Ltd.,
New Delhi, 1986 P.12

8
‘Brahmavadinis’ like men, some of the women rishis composed ‘mantras’ (hymns) of
Rigveda.10

During Vedic period, girls and boys were initiated in to the Vedic studies by performing a
rite of passage called ‘upanayam’ ceremony. Passages in the Vedas show that women had
other careers open to them apart from a mere literary career. They entered fields of
teaching, medicine, business, military and administration.

From about 1500 B.C. change in women’s status started due to denial of education to
them. They become nothing more than chattels of men. No definite reference as regard
the participation women in the intellectual life of society exists in later Samhita and
Brahma texts. In this post Vedic period, they were debarred from the study of the Vedas
and were required to obtain knowledge of duty and morality by studying the Puravas
only. The reason of imposition of such a disqualification on women appears to lie in the
historical situation of the earlier times when the old Aryan society was being restructured
through marriages with the indigenous people. The latter were not familiar with the
Aryan religious rites and could not correctly pronounce the ‘mantras’ of a language
which was alien for them.11 Unfortunately, even after the formation of their compact
homogeneous society was completed, these disqualifications remained and continued.

Manu12 took a low view of women’s intelligence by observing that the understanding of
women is opt to waiver and they do not make good witness. He also viewed,” the two
sexes are unequal in strength, stamina and psychology”13, these views lead to a decline in
women’s education.

The Epics, the Buddhist and Jain texts refer about highly educated women.. Women also
received training in five arts, like music, dancing and painting etc.

10
Rigveda, 1.145,179. V. 28, x 86, 145.
11
Sarita Vishnoi, Economic Status of Women in Ancient India, (1987), p. 2.
12
Manusmriti, VIII. 77.
13
K.V. Rangaswami Aiyanger, Aspect of the Social and Political syatem of Manusmirity. P. 162.

9
Manu, the law giver of India ordained:

“Women should be honored and adorned by father and Brother, by

husband and also by brother-in-law. Where Women are honored,
the god rejoices are fruitless where women grieve, that family
quickly perishes houses on which women pronounce a curse
perish, as if by magic Women are the instrument of prosperity and
she deserves honor from all.”

Yajnawalkya also advocated in favour of respect to women. Verses say, like,

God and the Divine mother are inseparable according to Hindu

religious conception. If God is lamp, she is the radiance. If He is
the spoken word, she represents its meaning.

Though our saints in social milieu have assigned privileged role to women but none of
them had ever said that women shall be considered equal to man. Manu himself had
declared, “No Stree Swatantrumarhasi” Women do not deserve liberty, what to say
of equality?

Such contradicting attitude was the result of superiority of the males. It was assumed that,
“Man is capable of looking after himself and the best security for a woman is
dependence”. The Hindu precepts, traditions, conventions and usages etc. tried to give
equal status materially and emotionally to men and women. The women had a free, but
not independent life, an unrestricted but not wayward movement, a respected but not a
self opinionated personality. The Rig Vedas reveal a stage when Aryan women of the
higher classes enjoyed a status and freedom equal with men. During Vedic period, in the
Hindu family socialization of a daughter from childhood involved a high degree of
modesty peculiar to Hindu culture. Her major behaviour, training evolved in her
tolerance, patience, submission and identification of her personality with her husband.
Though marriage was of great social and religious significance it was not mandatory as
the extensive use of the word “amajur” means a girl who grew at her father’s house

10
suggests this. Reference of unmarried female rishis like Apala and Aitreya are made by
Vedas.

However among Aryan community women possessed separate property known as bride
price. The husband and wife in the Vedic age were treated as joint owners of the
household and of property. Joint ownership helped the wife in securing a number of
minor rights and privileges, such as enjoying wealth together and having proper provision
for maintenance However, it did not secure for her an absolute equality with the husband
in the ownership of the property. The wife in the Vedic age was devoid of property rights
even though Vedic literature recognized her right to own stridhana. The widow was not
given any right of inheritance in her husband’s property but a childless widow was
entitled to succeed to her husband’s estate. At that time, the custom of niyoga was very
common, and consequently widows without sons were very few. With the evolution of
the concept of private property, the women gradually lost their status. Her physical
weakness and other incompetence, such as with regard to performance of religious rites
and ceremonies gave an excuse for the assignment an inferior status to her. Baudhayana,
the reputed founder of one of the schools of Yajurveda, excluded Hindu women from
inheritance. He based his theory of exclusion of women from inheritance on the authority
of the sruti text, “women are considered to be destitute of strength and of a portion.
Devoid of powers and incompetent to inherit, women are unless.” He propounded that the
Vedas declared no inheritance to a women. Women were never thought to be capable of
independent status. The father protects a woman in her childhood, the husband during her
youth, and the son in her old age. This led her towards further subordination and
helplessness, and she continued to fall lower so as to remain always under the protection
of father, husband and sons as the case may be.

Thus, lifelong subjection was the condition of a woman under the ancient law. Ever
since, woman have been regarded as having a far inferior position in the Hindu family
and in the matter of succession, excluded women from inheritance was to some extent
overcome by the fiction of identity between husband and wife. The custom of niyoga also
affected its rigidity and helped the widow to improve her legal position with regard to
inheritance and using the property of her deceased husband.

11
The women didn’t have any property right but they got the most respectable place in
society and not denied education and other privileges so Vedic period was the golden
period for status of women.14

Dr. P.V. Kane remarks that Janavalkya and Vishnu among the Smriti writers were
probably the first to clearly enunciate the rule that wife was the foremost heir of a man
dying without male issue.

There were two famous and important schools of Hindu law Mitakshara and Dayabhaga.
One of the Sections of Yajnavalkya runs as:

The wife, and the daughter also, both parent, brothers likewise, and their sons, gentiles,
cognates, a pupil, and a fellow student. On failure of the first among these, the next in
order is indeed heir to the estate of one, who departed for heaven leaving no male issue.
This rule extends to all persons and classes.15

Vijneshwara was the first commentator who entered the field in defense of the rights of
women. He laid down that:

Therefore, it is a settled rule, that the wedded wife being separated

from his co-heirs, and not subsequently reunited with them, dies
leaving no male issues.16

Thus, in Mitakshara the right of a widow to succeed to the entire estate of her husband in
default of a male offspring was supported. She was entitled to receive share equal to a
son even at partition which took place either during the life time of the husband or
thereafter.

Jimutavahana considered the women’s right to property with reference to the great
doctrine of spiritual benefit which had unrivalled merit of establishing as the role basis of
succession in Hindu law. It was observed:

14
Mulla,”Principles of Hindu Law”(19th edition by S.A Desai), Butter worth India. New Delhi P-8
15
Supra note 39 Verse 2.
16
Ibid. Verse 39.

12
Since by these and other passages it is cleared that the wife rescues her husband from
hell, and since a woman doing improper acts through indigence causes her husband to fall
to a region of horror for they share the fruits of virtue and of vice-therefore, of the former
owner, the wife’s succession is consequently proper.17

(ii) SMRITI PERIOD:

During the Smriti period, considerable change of popular feeling regarding the
proprietary position of the women was reflected. Certain female heirs in the
orders of succession were admitted. Manu expressly admitted the widow, the
daughter and the mother in the order of succession. Brihaspati emphasized a
daughter’s right of succession. He also recognized the wife’s right of succession,
but refused to extend it to fixed property. Narada did not recognize a widow’s
claim but accepted the right of the daughter. Vishnu mentioned the wife, daughter
and the mother as successors. The daughter, mother and wife were included as
inheritors of property. But widow’s inheritable capacity was subject to certain
conditions. A widow was ordained to lead a life of chastity subject to the
guidance and control of her husband’s male relation. A widow was entitled to
inheritance so long as she was chaste. She did not have full authority over her
share, as she could not spend the amount as her own. She was to seek the
permission of her son and, in his absence, of the king. If she led an unchaste life,
she was to get maintenance only. If a widow is unchaste, she should be deprived
of her rights, left to remain dirty, despised and sleep on the dirty floor.”

As Devala rightly remarked that “a wife does act injuriously (to

her husband), who is immodest, who wastes property and who is
given to adultery is not entitled to any wealth of her husband.”

The widow inheriting the husband’s estate did not become absolutely entitled to it
but took only what was called the “widow’s estate” in the same. With respect to
widow’s proprietary right, she was not entitled to make a gift or sale. Women

17
Dayabhaga, Chap-XI. Section-I, para 44.

13
 could only take a life interest while she was living together with the rest of the
family. Such transaction of women was valid only when the husband had given
his consent. In default of the husband, the son, or in his absence, the king gave
full authority to a woman on her husband’s property, except for immovable
property. To whom that immovable property would go had not been mentioned.
However, with regard to the disposal of property by the widow, it was held that
“when the husband is dead, his wife preserving the honour of the family should
get the share of her husband as she lives; she has no power over it as regards gift,
mortgage or sale.” Thus, the widow, the daughter and the mother were expressly
named as heirs. But they could succeed to the property of a man only in the
absence of male heirs. Further, their heritable capacity was made subject to
certain conditions such as chastity, not marrying again, etc. Their rights were not
absolute in the inherited property. A woman could neither spend the share as her
own nor had power over it as regards gifts, mortgage or sale. She took the
inherited property as her widow’s estate. Thus, her right was not absolute during
the Smriti period.

(iii) POST VEDIC PERIOD:

During the post Vedic period commencing form the 7th century AD remarkable
progress had been made. When a number of explanatory and critical
commentaries and digests were written on Smriti which had the effect of
enlarging and consolidating the law. If the productive period of Dharamshastra
was the golden age of Hindu law, then this was the period of critical inquiry,
expansion and consolidation. At this stage Hindu law and jurisprudence reached a
remarkable stage of progress and assimilation.

The multiplicity of succession laws in India diverse in their nature, depending on

their varied origin made the property laws more complex. The classification
among the various schools primarily relies on the doctrine of spindas
relationships, under the law of inheritance, the birth right of the son in the
ancestral property, the right by survivorship and partition. All schools recognized

14
 and acknowledged the supreme authority of mitakshara but they definitely gave
preference to certain commentaries and treatise.

The primary right being the father’s, the mother could not give a son in adoption
while he was still alive and capable of giving consent. A wife was not competent
to give her son in adoption against the will, express or implied, of her husband
that is to say a woman must carry out the wishes, directions and conditions given
or imposed by the husband. A Hindu widow was competent to give in adoption
provided the husband was legally incompetent and there was no express
prohibition.18 A woman was always under somebody’s guardianship. An
unmarried female was under the guardianship of her father and in his absence,
under the guardianship of one of her brothers or uncles etc. after marriage, her
husband became her legal guardian and on his death, the manager of the joint
family became her guardian. The mother was recognized as the natural guardian
of her minor male and female children next to the father. She was the natural
guardian of her illegitimate children.19

(iv) MUSLIM PERIOD:

Advent of Islam in India brought with it new challenges. Political subjugation

further put the Hindu society on the defensive and drove it to be inward looking.
But the interaction between Hindu and Muslim societies was unavoidable and
therefore, each had the influence on the other. As a result, the Hindus changed
their attire and imitated that of the Mohammedans but Hindu female within her
home remained unchanged as ever and carried on her pious and devout life and
enjoined by the Hindu ‘Dharma Shastr’20But the position of Hindu female in the
society changed for the worse with Muslim invasions. Life became insecure as the
females were forcibly taken away to be slaves or to marry Muslims. The
consequent insecurity and instability further narrowed down a woman’s social

18
S.V.Gupta, Hindu Law of adoption Maintenance, Minority and Guardianship (1970), at p. 11.
19
Harinder Boparai, The position of women under Hindu Law, Indian socio-legal Journal, (1978)
Vol.4
20
P.N.Chopra, B.N.Puri and M.N.Eas, A Social Cultural and Economic History of India, Vol.II.

15
liberties. But even in this period, magnanimity was shown to woman made
“impure” by the invaders, and rules were laid down to retrieve women who were
abducted.

Seclusion of women became more rigorous as a result of the Muslim custom of

“pardah” and the sense of fear had arisen from the lack of general security. The
facilities of education previously provided vanished. The number of females who
could read and write further dwindled, during this period. The position of Hindu
female deteriorated more in this period. Child marriage and Sati became the order
of the day.

Higher education was denied to middle class and ordinary ladies, and learning
was restricted to primary subjects. Their training was confined to home and
domestic affairs, such as needlework, embroidery, dressing, cooking, etc. The
women of richer classes were well-educated and many of them were not only
patrons of the learned but themselves were poetesses of distinction and
authoresses of scholarly works. Some of the greatest women administrators of all
ages belong to this period. Some females like rajputanis were trained as soldiers
and often displayed great bravery courage and heroism.

In Mughal period women were subjugated. Their participation in public life was
minimum. Muslim women remained in Purdah. Polygamy was universal, divorce
was easy and female infanticide was common. Women had no legal rights and
were not treated at par with men. In that period Indian woman’s position in
society further deteriorated. Hindu women started practicing sati to save their
dignity and modesty.

Inequality in social life was common. Child marriages and ban on widow
remarriage became part of social life in India. The Muslim conquest in the Indian
sub-continents brought purdah practice in Indian society.

Polygamy received great encouragement amongst Hindus owing to impact of

Muslim ideas. But Hindus strictly restricted themselves to monogamy except in a

16
 small number of cases. Divorce was prohibited to Hindu female. Though a Hindu
husband could remarry in certain circumstances like, on the death of his wife or if
she proved to be barren but a Hindu female had no such privilege. Altekar21
observes:

“No divorce was allowed even if the husband was a moral wreak
or he grievously ill treated his wife.”

Widow re-marriage had disappeared almost completely in Hindu society during

this period except for the lower caste. A Hindu widow had no choice even if she
desired to remarry because she would be accounted as bad, as infamous in
desiring a second marriage.

Unsatisfied legal rights were conferred on females as regards property. Their

position deteriorated in this period. Generally they were excluded from succession
to property. The status of widow was in worst possible conditions. A Hindu
woman had no right to the property of her husband’s parents. She was entitled to
maintenance and residence expenses besides movable property. The content
seclusion brought about the social political and intellectual stultification of female
who could exert themselves for their legitimate rights. From the legal point of
view they were reduced to a position of dependence in every sphere of life.22

(v) BRITISH PERIOD:

Social rigidity and irrational social practices became conspicuous features of

eighteenth century India. Religion, the pivot of Indian life, had always exercised
great influence on the people in their social ways and habits and superstitions
began to persuade all aspects of social life.

The legal position of Hindu women especially in sphere of inheritance was

unsatisfactory because women were generally excluded from succession to
property and this led to their dependence on men. In such circumstances on can’t

21
Supra note 58 at p. 102.
22
Tara Ali Baig, (1958) Women of India, p. 12.

17
 imagine of women property and inheritance rights. Women had no legal and
political status at all.23

Hindu law was not static or staid but was empiric and progressive. Sir Henry
Maine author of Ancient law and some of his contemporaries propounded the
speculative theory that Manu Smritis and other Smritis codes didn’t at any time
constitute a set of rules of positive law actually but Smriti law was merely the
ideal picture of that which ought to be the laws. All this disturbed many Indian
jurists. Britishers found it difficult to understand the concepts and theories of
Hindu laws. They totally changed them, by applying their rules and using some
important words like religion, equality, freedom etc for their advantage as they
used the policy of divide and rule in India to rule the country.

Much before the eighteenth century certain abominable socio-religious customs

had entered Hindu society which affected Hindu women in the most horrible
manner. The most in iniquitous customs were-infanticide, child marriage,
polygamy, forced celibacy of widows and burning of widows i.e. Sati custom.
The position of females touched the lowest ebb during the British period. It was
not until 19th century, that serious efforts were made by social repress to give
women an honorable position in the society.

In the 18th century at the dawn of British rule, the position of women was in a
sorry state. The Vedic liberties enjoyed by women were forgotten. Only the
fossilized narrow practices of a commiserative static society prevailed. The
British rules introduced a new type of economy, state structure and educational
system which laid basis for the transformation of the position of women.

At the time of advent of Britishers it was laid down that the laws to be
administered by the East India Company’s courts in matters relating to personal

23
http:/en.wikipedia.org/wiki/women in mughal empire visited on5-8-08

18
 laws were “those of the shastras with respect of Gentoos”.24 Some Pandits were
appointed to expound the law for the courts. The Privy council held that:

“The meaning placed upon the authorities by the commentaries is the

meaning which binds the courts.”25 The courts adopted certain
commentaries ignoring others, while in Hindu law “customs could
override the written texts of the law”.

Customs should have been permitted along with the commentaries and digests to
be the source of law. They did become more certain and informative but it
suppressed a dynamic element in Hindu society and made it unchangeable except
by Legislation.26 The result of all factors was the fossilization of the law to agree
extent and development of Hindu law came to a standstill. The law expounded
thousands of years earlier was applied to a changed society. All this led to a
hotchpotch collection of rules and to the fact that women’s position on the whole
continued to be what it was by when the Britishers came in the form of the East
India Company.

The British Govt’s attitude of non-interference with the religious sentiments of

the local people stopped all social reforms for a century. Female education was
introduced which could not progress due to prevalence of child marriages.
Unhappily due to social, economical and political changes of the later century’s
females lost their position in many fields. Consequently, evil customs such as
‘purdati, ‘sati’ child marriage, polygamy and enforced widowhood crept in and
the women’s status in the home and outside declined.

From the Bengal Regulation of 1772, it could be interpreted that the Breathers
were not illing to introduce changes in the personal laws of the Hindus until the
Hindus themselves demanded the introducing of some specific measures to
ameliorate the Hindu female’s position and status.

24
Bengal Regulations Act. 1772.
25
Collector of Madura v. Mootoo Ramalinga stehupathy (1868, 12 Moors Indian Appeals, 397).
26
Nehru while speaking in the Lower House of the Indian Parliament on May 21, 1954.

19
 Destruction of female children at their birth was not common custom but its worst
aspect was that it was practiced secretly. It was more prevalent among the
wealthier and upper sections of the people in certain areas and reasons for
infanticide varied the common and important being to avoid difficulties in getting
them married. Whether it arose from pride or poverty, superstition or ignorance,
the custom was a crime. The society tolerated it was itself a proof of the
degradation to which it has stopped.27 During the rule of Dalhousie the custom of
infanticide was abolished in certain parts. A silent change among the people
themselves made government intervention easy. Within a few years the custom
disappeared and became a thing to be wondered at in recollection.28

At the beginning of the nineteenth century, India was tradition ridden. Social
reformers who sympathized with the disadvantaged sections of the population and
who had courage of their convictions worked for the eradication of age old evil
customs that affected women among other adversely.29

Raja Ram Mohan Roy, father of Hindu renaissance, was the first of these
pioneers. He believed in individual liberty and equality of all human beings
irrespective of sex. He attached the deeply rooted authoritarian hierarchic social
institutions and launched a social reform movement which culminated in the
establishment of the Brahmo Samaj in 1828. Raja Ram Mohan Roy worked
untiringly for the abolition of ‘sati’ and Lord William Bentinck declared the
practice of ‘Sati’ illegal in 1827 and a new era was ushered in. Many orthodox
people made representations to the Governor General against the abolition of
‘Sati’. They argued that practice of sati was purely voluntary and held that it was
cruel on the part of Britishers to deprive a pious and devoted Hindu lady of the
enjoyment of her marital rights in paradise with her husband.

The Prevention of ‘Sati’ Regulation was promulgated in 1829. This act was a
historic resolution of far reaching importance which made ‘Sati’ “a crime of
27
P.N. Chopra, B.N. Puri and M.N. Das-A Soual culture and Economic History of India.
Vol. III at p. 84.
28
Ibid.
29
Encyclopedia of Social Work in india. Vol. II. P. 366.

20
 culpable homicide punishable with fine, imprisonment or both”. By abolition of
‘sati’, the persecution of the widow became an avowed social policy. The position
of widow was pitiable. The death of her husband was taken as proof of the
widow’s sin. Her living in the house of the husband made her life all the more
miserable. She was looked upon by her mother-in-law as the virtual destroyer of
her son, who could not have died, according to the then prevalent interpretation of
the law of ‘Karma’, if his wife was virtuous. Hence the widow was never allowed
to appear cheerful or wear bright clothes or ornaments and any tendency on her
part to look presentable was reckoned against eternal varieties. She had to drudge
along day and night and was the victim of all kinds of insolence by the other
women of the household. The tragedy became all the more poignant when the
widow was a child.

Shri Ishwar Chandra Vidyasagar30 released females from the agony of living lives
as widows. His efforts and miserable position of females compelled the Britishes
to pass another Act to improve their lot. The Hindu widows Remarriage Act,
1856, was enacted to remove all the legal obstacles to the remarriage of Hindu
widows. But this act remained a dead letter for a long time because executive
branch could not help widows by arranging second marriage or it could not be
forced upon families. Swami Vivekananda and other reformers fought for the
betterment of females as they rightly felt that the best thermometer to the progress
of a nation is its treatment of its women, so women must be put in a position to
solve their own problems in their own way.

Polygamy, though an old social evil, pervaded the Hindu society but was confined
mostly to richer and higher sections of society. It was a matter of personal pride
and social prestige. It encouraged social immorality and vice.

The reformers of that age firmly believed that through education the social,
political and economic status of women could be improved. Swami Dayanand
Saraswati and his Arya Samaj also stressed on the equality of education and

30
Ibid

21
 played an important role in improving the social, religious, political and economic
conditions of women in India by paying special attention to social evils like child
marriage, widowhood, ‘pardah’, polygamy, dowry, sati and women’s education
etc.31 Swami Dayanand relieved in action and tried to liberate women from all
taboos and inhuman restrictions imposed upon them. With enormous force,
authority and logic he advocated the cause of women.32 Justice Ranade also
stressed the importance of women’s education. His wife founded ‘Seva Sadan’ in
Poona in 1909. It consisted of educational, cultural, social welfare and socio-
economic activities for women. Thus many social thinkers of the nineteenth
century like M.C. Ranade, D.K. Karve, Rabindranath Tagore, K.C. Sen and others
tried to inculcate and inspire in women the spirit and valves of the society by
disseminating knowledge with the help of educational institutions.

Another evil which had greatly handicapped women’s social emancipation was
early marriage. The efforts of K.C. Sen against early marriages facilitated the
enactment of Civil Marriage Act of 1872. The growth of population and the
physical degradation of women proceeded side by side. Motherhood at the tender
age, with numerous sickly children around her, made the females the epitome of
misery and distress. The number of child widows was growing and they lingered
through their unfortunate existence. In 1929, the Child Marriage Restraint Act
was passed largely due to the efforts of Harbilas Sarada. By this Sarada Act, the
age of consent within the marriage was fixed at 18 for boys and 14 for girls and
outside marriage at 15 for girls. This Act has done away with the evils of early
marriage and multiplication of girl widows. This Act penalized the marriage of
girls and boys below the minimum age prescribed by the Act.33

Despite the best efforts of the Britishers, the child marriage did not stop
immediately after the Act was passed, because when the prosecutions were
launched and the guilt was proved, punishments were found to be so light that the
31
M.L.Thakur Arya Samaj and the Emancipation of Women M.D.U. Research Journal, oct. 1988,
Vol. 3, No. 2 at p. 179.
32
Manjul Gupta, Swami Dayanand; A Champion of Women’s Cause. M.D.U. Research Journal,
Oct. 1988, Vol. 3. No. 2 at p. 198.
33
Section 5 of the Act of 1929.

22
 offenders were inclined to treat the law as a big joke. But later on the alien
government was successful in solving this problem to some extent. Dr.
Muthulakshmi Reddy through her initiative and determined efforts helped in
abolition of Devdasi system in Hindu temples.34 Due to the pioneering work of
some leaders, changes were brought about in the social structure of the country in
the later part of the 19th century. Legal sanctions were given for the removal of
caste disabilities, widow remarriage, and women’s right to property etc. but
conservative Hindus were not willing to accept these social reforms because they
were initiated by an alien government so despite legal sanction for their removal
many of the old practices continued.

After centuries of social stagnation, due to a combination of divergent factors,

social, cultural, economic and political, Hindu women showed a sudden urge to
come back in the mainstream of social life. The two major forces which acted as
catalysts in the achievements of political equality of women were the national
movement and the leadership of Mahatma Gandhi.35 The 19th Century reform
movements had limited the efforts to improve the position of women within the
traditional family structure. The turn of the century, however, saw a minority of
women participating voluntarily in social welfare activities outside their homes,
particularly in the cause of women’s education, welfare of the weaker sections in
society and relief to distressed persons. A still smaller group participated in the
revolutionary movement. The early 20th Century saw the birth of women’s
organizations and the beginning of the demand for political rights. In 1917, a
deputation of Indian women led by Shrimati Sarojini Naidu presented to the
British Parliament a demand for the enfranchisement of women on the basis of
equality with men. The Reform Act of 1921 extended the franchise only to wives
who had property and education.36

34
Encyclopaedia of Social Work in India, vol II at p. 368.
35
Status of Women in India, A Syonopsis of the Report of the National Committee on status of
women (1971-74), p. 103.
36
Ibid.

23
 In sharp contrast to such attitudes was that of Mahatma Gandhi. He had declared
himself to be uncompromising in the matter of women’s rights. He believed that
women had a positive role to play in the reconstruction of society, and that the
recognition of their equality was an essential step to bring about social justice. He
had also extended his continued and unqualified support to the enfranchisement of
women.37 Mahatama Gandhi looked upon women as instruments for achieving
general equality of status and opportunities and social, economic and political
justice.38 Thus the first impetus was given by the freedom movement which
marked the beginning of a new era for Hindu women and was a significant factor
in shaping the future of women.

Several factors contributed towards the upliftment of the position of females like,
influence of Britishers and political struggle for independence gave impetus to the
feminist movement. The joint family property was jointly owned by the
coparceners and a female could never be a coparcener. Female member were
entitled to maintenance only. At partition some of them were entitled to a share in
lieu of maintenance though they got only a limited estate.

The Hindu Women’s Right to Property Act, 1937,39 was passed to improve the
legal position of widows. They were entitled to succeed to the property of
deceased husband along with sons and widows of predeceased sons etc. no doubt
this was enjoyment right for life only. Right to claim partition was also conferred
upon widows which they never enjoyed before. Thereby her legal position was
improved because after the passing of the Act she had not to depend on other
members of her husband’s family and so it was a welcome change in spite of its
limited nature.

It was deemed equitable to prescribe enhanced rights of inheritance to women.

The Hindu Law (Inheritance) Amendment Act, 1929 accelerated the rights of the

37
Ibid p. 104.
38
Ibid.
39
Section 3 of the Act provided that on the death of a Hindu male not only his son could succeed but
also his widow, widow of the pre-deceased son and the widow of the predeceased son of a
predeceased won.

24
 son’s daughter, the daughter’s daughter, the sisters and the sister’s son. As regards
‘Stridhana’ there was no change and the rules governing her power of alienating
the same and rights of succession to the same continued to be what they were in
the pre-British period.

The Hindu Women’s Right of Separate Residence and Maintenance Act, 1946
was passed to ameliorate the familial or social status of the Hindu women. It
provided for the separate residence and right to maintenance to Hindu women
without having so called judicial separation under certain circumstances. Thereby
her socio-legal position became sound. This Act discouraged polygamy by
permitting the first wife to get maintenance and live separately if the husband
married again.

During British period no change was brought about in the ancient Law of
adoption and guardianship. A female could neither be adopted nor adopt herself.
The mother continued to be the natural guardian of her children after the father.
The Hindu mother’s position was reconciled with her natural rights by judicial
interpretation as regards guardianship for the purpose of marriage of minor
children. Thus the right to guardianship of her children was enhanced in this
period.

Divorce was introduced into Hindu law by the advanced states of Baroda,
Bombay and Madras in 1931, 1947 and 1949 respectively.40 In 1933, the concept
of judicial separation was introduced by the Mysore state Act X, 1933, The
Divorce Act contained almost similar grounds for divorce and treated males and
females alike.

During the British period the seeds of change and equality had certainly been
sown. The inhuman and barbaric custom of ‘Sati’ was abolished and remarriage
of widows was permitted after prolonged fight by social reformers and legal
sanction was given by the British government. The grounds could be like husband

40
The Baroda Hindu Marriage Act, 1931; The Bombay Hindu Divorce Act, 1947; The Madras
Hindu (Bigamy Prevention) and Divorce Act, 1949.

25
suffering from any loathsome disease not contacted from her, cruelty towards
wife rendering it unsafe for her to live with him, desertion on his part; keeps a
concubine, remarriages or any other justifying cause. Females were given better
rights to proper inheritance and succession etc. Her rights to guardianship was
also improved to some extent. However, the principle of equality of sexes was not
applied in every field. But our Hindu society did not believe and accept these
changes due to their rigid attitude.

The evolution of status of Hindu women till today is greatly influenced by social,
economic, political and religious factors in all the three periods i.e. Hindu,
Muslim and British periods. The study in this chapter depicts so. With the advent
of independence, females have been granted equal status with males in the
constitution. The government did all efforts to raise the status of Hindu female in
various fields through legislation.

The Constitution guarantees to all equality before the law or the equal protection
of the law within the territory of India and no discrimination against any citizen
on grounds only of religion, race, cast, sex, place of birth or any of them. But the
state is authorized to make special provisions for females and children or for the
advancement of any socially and educationally backward class of citizens. Some
special provisions for the improvement of status of females have been introduced
in various legislative enactments.

Enlightened Hindu public opinion had by the time of India’s independence, came
to be committed to bring the law into line with modern social developments.
General codification of Hindu Law in the form of the Hindu code Bill was drawn
up and presented to Parliament in 1950 which ran into vehement opposition at the
hands of old men of orthodox society. Later on some statutes were passed namely
the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu
Adoptions and Maintenance Act, 1955, The Hindu Minority and Guardianship
Act, 1956 and The Dowry Prohibition Act, 1961 which have largely affected the
position of Hindu female. They have not only consolidated the changes that had

26
 come to be made in the old Hindu law during the British period but have gone
further too and introduced some changes of fundamental importance and brought
about a greater measure of equality between the sexes.

1.2 PROPERTY RIGHTS OF WOMEN:

“The Economic Status which is the very foundation on which any structure of equality
can be built may be understood theoretically but it is not correctly implemented”41

To improve the status of women in society her economic condition has to be improved
and property rights are of special significance as the economic independence has usually
an important bearing on the Well being of a class. Empowerment of women leading to an
equal social status in the society hinges among other things, on their right to hold and
inherit property.

To get the property right one should be intellectual having the ability to distinguish
between good and bad and women were considered as intellectually grown up and
capable of carrying on religious affairs and discussions, then how can she be denied of
giving her equal political, social, religious and most importantly economic rights which
include property rights. Women could hold and use property in this span as they got right
silently, but need not demand for it. The Hindu society segregates upon the issues of
women’s property right as shown by the schools prevailing at that time and this confuses
and lowers the position of Hindu women in inheritance customs. Hindu Women had no
legal and political status at all. At that time daughters in Hindu society were in worst
possible condition which couldn’t be improved till now, in spite of the various reforms
made.

The Hindu women not only fought against the cruelty and inhumanity of Muslims to save
their dignity, position, rights and independence but also against the Britishers who ruled
over our country for more than hundred years and effected the culture, customs and laws
of the country.The important reforms as claimed by British were made during this period.

41
www.yourdictionarycom/quotes/status visited on 04-01-2016

27
They brought the concept of codified laws regarding women’s property or succession to
property.

1.2.1 Stridhan:

It literally means women’s property which she received by way of gifts from relatives or
strangers at the time of ceremony of marriage. It involves movable as well as immovable
property. Being absolute owner she could sell, mortgage, gifts, lease and exchange the
same in any manner she likes. Stridhan doesn’t become the joint property, of the wife and
husband. The husband has no title on it.

1.2.2 Stridhan and Women’s estate:

The term Stridhan is derived from Stri-Female and Dhana-wealth, which means women’s
property. It may consist of anything of value, land or as it more usually does, of jewels or
other ornaments. Hindus recognised women’s right to hold and dispose of property. As
per smritikars, the stridhan constituted those properties which she has received by way of
gifts from relations which included movable property, such as omaments, jewellery and
dresses. The gift made to her by strangers at the time of ceremonies of the marriage or at
the time of bridal procession also constituted her stridhan. Whether the property is
stridhan or women’s estate mostly depends upon the source from which it has been
obtained.

Women's estate:
The following properties were included in it:

1. Property obtained by inheritance- a Hindu female may inherit property from a

male or a female. She may inherit it from her parent's side or from husband's side.
The Council in Bhagwandeen v Maya Baee held that property inherited by a
female from male is not her Stridhan but woman's estate. A similar view was
taken with respect to property inherited from females.
2. Share obtained on partition- In Devi Prasad v Mahadeo the law was laid down
that share obtained on partition was women's estate

28
1.2.3 Hindu women’s Right to Property Act, 1937:

The Hindu women’s Right to Property Act came into force on 14th April, 1937 and had
no retrospective operation. As the Act was considered to be defective, it was amended by
the Hindu Women’s Right to property (Amendment) Act XI, 1938, which was declared
to have retrospective effect from 14th April, 1937.

The educated and enlightened people have started advancing their views against the
centuries old oppression of Hindu women and their living conditions and advocating for a
change in the scenario. Hindu women’s Right to Property Act, 193742 was the outcome of
renaissance or realization of gross injustice. The object of the Act was to remove
discrimination and disabilities from which the Hindu women suffered in respect of their
rights to property. The act equated the widow to her son in granting equal shares in the
intestate’s separate property and in default of her son she could inherit the entire property
herself. Section I invested in the widow of a member of coparcenary with the interest
which the member had at the time of his death has introduced changes which were alien
to the structure of coparcenaries. The interest of the widow arises neither by inheritance,
nor by survivorship, but by statutory substitution. By the Act certain anti-ethical concepts
were sought to be reconciled. The widow of a coparcener was invested by the Act with
the same, interest which her husband had at the time of his death in the property of the
coparceners. She was thereby introduced into the coparcenary between the surviving
coparceners of her husband. But the widow does not, on that account, become
coparcenaries though invested with the same interest which her husband had in the
property, she does not acquire the right which her husband could have exercised over the
interest of the other coparceners.”

Clause (3) of Section 3 of Hindu Women’s Right to Property Act, 1937, reads as
follows:

“Any Interest devolving on a Hindu widow under the provisions of

this Section shall be the limited Interest known as a Hindu

42
Herein-rter sunokt referred as HWRPA, 1937.

29
 widow’s estate, provided however that she shall have the same
right of claiming partition as a male owner.”

Before passing of the Hindu Women’s Right to Property Act 1937, a widow could inherit
only on the failure of the son, grandson or great grandson of the deceased, but by virtue
of this enactment she has become a co-partner with them.43

The legislature, by incorporating Section 3(3), had made one improvement in the rights
of the widow under the Hindu law. Under the Act, a widow could claim partition of her
share in the estate she had inherited which she could not do prior to this enactment except
under special circumstances. The rights of other female heirs holding limited estate under
the general provisions of Hindu Law remained unaffected.44 The Act merely recognized
the position as existed under the Shastric Hindu Law and gave it a “statutory” backing.45

1.2.4 The Hindu Succession Act, 1956:

The Hindu Succession Act, 1956, is a law that was passed by the parliament of India in
1956 to amend and codify the law relating to intestate or unwilled succession among
Hindus. The Act lays down a uniform and comprehensive system of inheritance and
applies to persons governed by both the Mitaksara and Dayabhaga schools. It is hailed for
its consolidation of Hindu laws on succession into one Act. The Hindu woman’s limited
estate is abolished by the Act. Any property possessed by a Hindu.”

Female is to be held by her as her absolute property and she is given full power to deal
with it and dispose it of by will as she likes.

The act was introduced for changing the traditional Hindu law concepts of property law,
which was biased towards men. First time Hindu Widow was given power to deal with
property. Limited rights were converted into absolute rights vide Section 14(1).

43
Raghunath Singh “The Hindu Women’s Right to Property Act, 1937. A short glance in AIR 1937
PC. (P 107)
44
See infra no. 15.
45
Raghubir Singh vs. Gulab Sing, AIR 1998 S.C. 2401.

30
Section 14(1) reads as follows:

“Any property possessed by a female Hindu, whether acquired

before or after the commencement of this Act shall be held by her
as full owner thereof and not as a limited owner”

This Act brings woman at par with man in respect of matters relating to property. Now
their position seems to be even better than a man because a male is subject to restrictions
on alienation on the interest in Hindu joint family property, whereas a widow acquiring
an interest by virtue of the Act does not suffer much restriction.46

Furthermore section 6 (as amended by the amendment Act of 2005) of the Act brings the
daughter at par with son in respect of inheritance of the joint family property too. By
virtue of this section daughter now enjoys the coparcener’s rights in the joint Hindu
family property equal to the son of the joint family.

1.2.5 The Hindu Succession (Amendment) Act, 2005

Empowering Women, westernization and globalization have radically changed the face
of India. This change is evident in its effect on the Hindu Joint Family system. Families
that would give the saas-bahu serials of today for their money have now given way to
nuclear families. With the advent of modernization and the feminist movement gaining
ground, the women no longer play a subservient role in the society and indeed have
overshadowed men in most of the fields. The Amendment Act has introduced a new
section 6 into the Act, by virtue of which a daughter of a coparcener in a joint Hindu
family governed by Mitakshara law becomes a coparcener in her own right and enjoys
rights equal to those enjoyed by the son of a coparcener. The relevant part of Section 6
reads as follows:

“6. (1) On and from the commencement of the Hindu Succession

(Amendment) Act, 2005, in a Joint Hindu family governed by the
Mitakshara law, the daughter of a coparcener shall,:

46
Sukhram vs. Gauri Shanker, AIR 1968 S.C. 365

31
 (a) also by birth become a coparcener in her own right; the same
manner as the son here:

(b) have the same rights in the coparcenary property as she would
have had if she had been a son;

(c) be subject to the same liabilities and disabilities in respect of

the said coparcenary property as that of a son, and any reference to
a Hindu Mitakshara coparcener shall be deemed to include a
reference to a daughter.”

“The newly introduced section 6 provides that a daughter shall by birth become a
coparcener in her own right. The implications of the introduction prima facie appear to be
that a daughter stands on an equal footing with a son of a coparcener and is invested with
all rights, including the right to seek partition of the coparcenary property. The newly
introduced section 6 begins with the words “on and from the commencement of the
Hindu Succession (Amendment) Act, 2005”. A question therefore arises as to the status
of women married prior to the commencement of the Amendment Act, i.e. prior to 9th
September 2005 (“said commencement date”). In other words, would women married
prior to the said commencement date have a right to claim a share in partition of joint
family property occurring subsequent to the said commencement date? A perusal of the
Opening Speeches at the time of introduction of the Hindu Succession (Amendment) Bill,
2004 in Parliament was that the consideration of the Statement of Objects and Reasons of
the Amendment Act and comparison with existing State legislations seems to lead to the
conclusion that the Amendment seeks to introduce the concept of gender equality and
consequently draws no specific distinction between married and unmarried women. The
Opening Speeches at the time of introduction of the Hindu Succession (Amendment) Bill,
2004 in Parliament of the Hindu Succession (Amendment) Bill, 2004 in Parliament
clearly establishes the intention of the Legislature in respect of applicability of the newly
introduced Section 6 to married women.””

32
1.2.6 Property Rights of Women under International Laws:

There are plethora of convention and declaration in support of women’s property rights.
The united nation organization (UNO) stands at the apex seat in its commitment to
protect the women’s property rights the world over. The women are not discriminated in
respect of property only. The disparity in gender inequalities has many faces. Among the
conventions, declarations and resolutions on women discrimination, UN conventions and
elimination of all forms of discrimination against women 1979 is the major and women
specific declaration.

The preamble of the convention among other thing declares:

“Recalling that discrimination against women violates the principle of equality of rights
and respect for human dignity, is an obstacle to the partition of women, on equal terms
with men, in the political, social, economic and cultural life of their countries, hampers
and the growth of the prosperity of society and the family and makes more difficult the
full development of the potentialities of women in the service of their countries and the
humanities.”47

Article 16 of this convention states that:

“the status parties shall take all appropriate measures to eliminate

discrimination against women in all matters relating to marriage
and family elation and in particular shall ensure on basis of
equality of men and women the same rights to enter into marriage
and the same rights of both spouses in respect of the ownership,
acquisition, management, Administration, enjoyment and
disposition of property whether free of charge or for a valuable
consideration.”

India being a party of this convention, in respect of its articles 15(1) and 16(2), has
declared that it shall abide by and it shall ensure these provisions in conformity with its

47
AIR 1991 SC 2301

33
policy of non-interference in the personal affairs of any community without their
initiative and consort. But contradictorily in respect of article 16(2) it has declared that it
is not practical for it as it is a vast country to make registration of marriage compulsory
and at the same time with regard to the provision of article 29 or to the convention it has
declined to be abided.

Besides this convention of 1979, the UN declaration of human rights, spells particularly
in its articles 16 and 25. The African charter of human and people’s rights, 1981, in
article 14 specifies that the right to property shall be guaranteed. It may only be
encroached upon in the interest of public need or in the general interest of the community
and in accordance with the provisions of the appropriate laws. The American convention
on human rights (pact of San Jose, Costa Rica), 1969 also spells about the property right
in its article 21.48

The European social charter, 1961, its time-to-time protocols, and specifically its articles
16 and 17 viz. right of family to social and economic protection, deal with women’s
property rights and allied rights respectively.

The Rome convention for the protection of human rights and fundamental freedom, 1950
particularly its article 14 specifies the prohibition of discrimination and article 1 of its
priest protocol in, 1952 deals with protection of property.

The international convention on civil and political rights, 1966, specifically its articles 1
and 23, deal with the rights of women in respect of marriage and property. Besides above,
the Vienna declaration and program of action, 1993, particularly in its chapter 3, articles
36 to 44 state the equal status and human rights of women.

“Their convention for the first time recognizes the gender based violence against women
in public and private life as a human right concern and condemned all forms of sexual
harassment and exploitation. The conference concluded that”, “the human rights of
women and of the girl child are an inalienable integral and invisible part of universal
human rights. The full and equal participation of women in political, civil, economic,

48
P.K Das ,“Law on Hindu Succession”, Universal Law Publishing Co. Pvt. Ltd. Delhi,2006,P.12

34
social and cultural life at the national, regional and international levels and the
eradication of forms of discrimination of grounds of sex or priority objectives of
international community.”49

“These conventions, resolutions and declarations try to protect the interest of women and
remove the disparity and gender inequality along other things, particularly the women’s
right to marriage, family status and property. Unfortunately these rights are ropes of sand
because the International Law has no binding force for the member countries as because
there is no enforcing agency to implement these laws. Still the purpose of the
International Law is to help promote and compile the domestic laws for social progress
and better standards for all the people and all the Nations. Ultimately the international
law with United Nations on one hand but important object is that it makes obligations for
government to promote legal enactment pertaining to their citizens in the line of
international declarations. It can also be claimed that domestic commissions and
committees, international declarations and conventions inspired the government of India
to reform its Succession and Inheritance Law in order to protect the women’s right to
property.”50

1.3 OBJECTIVES OF THE STUDY:

The main object of the present research work is to examine the changes in status of Hindu
Women through laws relating to property rights of Hindu women from socio-legal
approach, both intensively and extensively. The status of Hindu women has undergone a
lot of changes by various laws passed by the parliament and through the endeavours of
the judiciary. The main objectives of the study are as under;

1. To throw light on the need of providing rights to Hindu women that could
ameliorate their position in the society.
2. To trace the reasons for need of passing different laws relating to property rights of
Hindu women.

49
P.K Das,”New Law on Hindu Succession”, Universal Law Publishing Co. Pvt. Ltd.
Delhi,2006,P.13
50
P.K Das,”New Law on Hindu Succession”, Universal Law Publishing Co. Pvt. Ltd.
Delhi,2006,P.14

35
3. To make a detailed study of the different laws passed to give more property rights
to Hindu women.
4. To analyze the relevant provisions of law dealing with women’s property rights and
to find out legal lacunas.
5. To critically examine the role played by the Law Commission of India by sending
reports to the government in order to provide women with more rights thereby
ameliorating their position and status in the society.
6. To examine critically the gap between the formulation and implementation of the
policies for the betterment of women in general and Hindu women in particular.
7. To examine the role of Judiciary in providing more and more rights to Hindu
women.
8. To analyze the changes made in the status of Hindu women from time to time by
Constitutional, statutory and judicial steps taken in relation to improving status of
women.
9. To discuss the provisions of the International law relating to women.
10. To make suggestions for taking steps to remove gender discrimination thereby
improving the status of women.

1.4 SCOPE OF THE STUDY:

The empowerment of women is a very important subject for consideration in present

times in India. Hindu women have been facing different situations from time to time in
the society. They have been subjected to the cruelty of the male dominating society in
which men have tried less to prove them superior and more to prove them weaker and
inferior. The scope of present study is to throw light and appreciate various steps which
have been taken to bring about a change in the status of Hindu women through property
rights in India and also to discuss the role played by the legislature, judiciary, law
commission of India and various other governmental and non-governmental bodies which
have played a vital role in bringing about the changes in the status of Hindu women and
in providing them with rights which have helped them to achieve a status on the same
footing as of men. The scope of this study is also to understand the thick and thin of the
journey of Hindu women in achieving the position they hold today. The intention of the

36
legislature was very clear when the Hindu Women’s Right to Property Act was passed in
1937 that it wanted to ameliorate the position of women in the society and it was a very
important step taken in achieving that goal. The legislators had contemplated that there
was a need for giving more and more rights to Hindu women so that they could enjoy a
respectable position in the society. The passing of this Act in 1937 was just a beginning
in the direction of women empowerment and the landmark Act was passed in the year
1956 as The Hindu Succession Act which paved the way for bringing women at par with
men. These two Acts played very important role in improving the conditions of women,
also in establishing faith in the legislature and also to demand more and thence the Hindu
Succession (Amendment) Act, 2005was enacted. The scope of present study is also to
compare the conditions of Hindu women before 1937 and in present times, how their
status have changed and how they have got rid of the unwanted customs of the society. A
lot has been achieved and there is still a lot to be achieved in bringing women at par with
men by improving their status and providing them equal property rights.

1.5 DIFFERENCE IN RESEARCH:

Hindu Laws are vast and complex as asserted by number of legal luminaries, researchers
and scholars. It has been seen that Hindu Laws have wide application and have
differences according to areas, customs and traditions. Hindus are less governed by law
and mostly follow their customs. Law can change a provision but it cannot implement if
it contrary to Hindu customs and beliefs. In case of the present research, as it deals with
the change in the status of Hindu women through property rights, it is concerned with
passing and amendments in the Hindu Succession Act, 1956 and the Hindu Succession
(Amendment) Act, 2005 which face opposition from male members of society and also
from some orthodox females. This research is different from others because its study
relates to whether these laws are accepted by the Hindus? The present research becomes
different because the topic is very delicate and sensitive and it touches the sentiments of
the male members of the society who have always tried to prove their supremacy over the
Hindu women. This research is different because of the following reasons;

37
1. This research is different as the topic of research is dedicate and deals with the
change in the status of Hindu women by giving them property rights which was never
to be contemplated by the male members of the Hindu society.
2. In this research a deep study of enactments, judgments and social reviews has been
done.
3. The research studies the status of women from Ancient period to Modern period.
4. This research clearly compares the status of Hindu women under the Hindu
Succession Act of 1956 and the Hindu Succession (Amendment) Act of 2005.
5. This research examines the changes in status of Hindu women through property rights
and considers the circumstances in which the Hindu women lived before 1937 and
after passing of the Hindu Succession (Amendment) Act of 2005.
6. The recommendation of law commission made to amend the law and to remove the
legal lacunas has also been undertaken to make it more authentic and suggestive.

1.6 RESEARCH METHODOLOGY:

In this research data will be collected from secondary sources as Judicial Decisions,
Books, Articles, Research Papers, Journals, Magazines, Reports, Encyclopedia, Internet
Sources and Newspapers. The collected material will be scrutinized and analysed keeping
in view the property rights of Hindu women and their status in the society.

1.7 RESEARCH QUESTIONS:

1. Is it possible to give equal property rights to Hindu women?

2. Will the male Hindus ever understand the need to bring the women to the platform
where they have equal status to that of men and what are reasons?
3. Why there is discrimination against women? And what are the reasons for it?
4. Whether law should deal with men and women equally to create an egalitarian
society?
5. How far various legislations have been helpful in ameliorating the status of Hindu
women in the society?

38
6. Whether the Hindu Succession (Amendment) Act, 2005 actually provides women
equal right to property or only profess to do so?
7. How far this enactment has benefitted Hindu women?
8. What are the causes of ineffectiveness of existing provisions?
9. Whether Hindu Succession (Amendment) Act, 2005 is an effective piece of
legislation to achieve the object of egalitarian society?
10. Whether the legislation of 2005 would prove effective or will it remain only on
papers?

1.8 HYPOTHESIS:

This study is based on the hypothesis that the Hindu Society shows male dominance in all
walks of life including property rights. Although the intention of the legislation has been
to change and ameliorate the status or position of the Hindu Women by giving them more
proprietary rights yet there is a discrimination when women are compared with men. The
obvious reason for women not being at par with men is the gap between formulation and
implementation of laws or policies. Many attempts have been made by the legislature,
judiciary and the law commission to bring about a change in the status of Hindu Women
to form an egalitarian society yet a lot more has to be done in this direction to fulfill
Constitutional goal of providing Hindu Women with equality of opportunity and dignity.
The research hypothesis of this research work can be summed up as follows;

1. Many Acts have been passed by the legislature to change the status of Hindu females
by giving them property rights yet Hindu women do not enjoy equal status and rights
as compared to men.
2. The Hindu women do not enjoy equal status in the society inspite of various laws.

1.9 SCHEME OF STUDY:

The study has been divided into VIII chapters. The brief detail is as under:

Chapter I: deals with introduction in general. Position of Hindu women has been
discussed beginning from vedic period upto present times. In addition to this a brief

39
introduction to Hindu Women’s Right To Property Act, 1937, Hindu Succession Act,
1956 and the Hindu Succession (Amendment) Act, 2005 has been given. International
Law has also been discussed. Objectives of Study, Scope of the Study, Difference in
Research, Hypothesis, Research Questions and Research Methodology has been given in
this chapter.

Chapter II: This chapter deals with Hindu Women’s Property Rights under the Customary
Laws, The different thoughts of different schools have been discussed in this chapter. The
various reasons for why a particular thought applied to a particular region have been
discussed. Characteristics of coparcenary property, Mitakshara school and its branches
and Dayabhaga School, Concept of Stridhan Under Vedic Literature and Women’s Estate
have been discussed in this chapter.

Chapter III: This chapter deals with Hindu women’s property rights under the Hindu
Women’s Right to Property Act, 1937. Significance and scope of main sections of the
Act have been elaborately discussed. Nature of widow’s acquisition of interest,
Introduction of New Heirs, Separate Property, Unchastity and re-marriage of the widow,
Status of the statutory co-heirs, Power of Disposal and Power of Investment and
Management etc. have been discussed under this chapter.

Chapter IV: This chapter deals with the Hindu Women’s Property Rights Under The
Hindu Succession Act,1956 in detail. Devolution of Mitakshara Coparcenary Property by
Survivorship, Notional or Deemed Partition, Separated Members, Succession to the
Separate Property of Hindu Males, Rules of Succession in the case of Separate Property
of Hindu Females, Absolute Property Rights of Female Hindus and who is an Absolute
Owner has been discussed in this chapter.

Chapter V: This chapter deals with the Hindu Women’s Property Rights after Hindu
Succession (Amendment) Act, 2005. Devolution of Interest in Coparcenary Property,
Daughter as Coparcener, nature of property held by the Daughter, Partition Effected
before Amendment, Allotment of Shares, Powers of Karta and Objectives of the Act have
been discussed in this chapter.

40
Chapter VI: This Chapter deals with Property Rights and Status of Hindu women. A brief
account of changes in the status of Hindu Women from social and Legal aspect has been
discussed in this chapter. My opinion regarding the present status of Hindu women has
been discussed under the head ground level reality about the status of Hindu women.

Chapter VII: This Chapter deals with the Hindu Women’s Property Rights and Judicial
Observations. Various cases of the Supreme Court of India and different High Courts
related to the property rights of Hindu Women have been discussed in this chapter.

Chapter VIII: This chapter deals with Suggestions and Conclusions which have been
derived by the research work after having gone through several Acts related to property
rights of Hindu women.

41