PROPERTY RIGHTS OF HINDU WOMEN: A FEMINIST REVIEW OF SUCCESSION LAWS OF

ANCIENT, MEDIEVAL, AND MODERN INDIA

Author(s): Debarati Halder and K. Jaishankar
Source: Journal of Law and Religion , 2008-2009, Vol. 24, No. 2 (2008-2009), pp. 663-687
Published by: Cambridge University Press

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 PROPERTY RIGHTS OF HINDU WOMEN:
A FEMINIST REVIEW OF SUCCESSION LAWS OF
ANCIENT, MEDIEVAL, AND MODERN INDIA
Debarati Haider* and K. Jaishankar*

Introduction
Hindu women's legal right to inherit property has been restricted
from the earliest times in Indian culture. In the ancient text
Manusmriti? Manu writes: "Her father protects her in childhood, her
husband protects her in youth and her sons protect her in old age; a
woman is never fit for independence."2 However, women were not
always excluded from inheriting movable or immovable property from
ancestral and marital families. But their proportion of share in the
property was far less than that of their male counterparts.

* Advocate and Research Assistant, International Cyber Bullying Project, Department of

Criminology and Criminal Justice, Manonmaniam Sundaranar University, Tirunelveli, Tamil
Nadu, India. Email: raidebajai@gmail.com. URL: http://www.debaratihalder.co.nr.
** Assistant Professor (Senior), Department of Criminology and Criminal Justice,
Manonmaniam Sundaranar University, Tirunelveli, Tamil Nadu, India. Email:
drjaishankar@gmail.com. URL: http://www.drjaishankar.co.nr.
1. This author has previously defined the Manusmriti:
The Manusmriti is the Hindu code of ancient India, which dealt with the relationships
between social and ethnic groups, between men and women, the organization of the state
and the judicial system, reincarnation, the workings of karma, and all aspects of the law.
This Hindu Code is important for its classic description of so many social institutions
that have come to be identified with the Indian society. Even after several centuries, it
still generates controversy, with Manu's verses being cited in support of the oppression
of women and members of the oppressed castes.
K. Jaishankar & Debarati Haldar, Manusmriti: A Critique of the Criminal Justice Tenets in the
Ancient Hindu Code, 1 ERCES Online Q. Rev. no. 3 (2004), www.erces.com/joumal/articles/
archives/v03/v03_05.htm (accessed May 22, 2009).
Hindu orthodox families discriminate against female children, from the time of their birth,
in education, health and hygiene. Hence, girls remain ignorant of their basic rights.
2. Manu IX.3: Manusmriti: The Laws of Manu, in Sacred Books of the East 56 (G. Buhler
trans. 1886) (available at http://www.hinduwebsite.com/sacredscripts/laws_of_manu.htm) (last
updated 2007).
Even though laws are made to prevent child marriages, such acts still prevail in many
villages of India. Once a girl is married as a child, she never returns to ask for the share of her
ancestral property, nor are such demands entertained by her parental family. The main reason for
this is that, once married, she introduces a new member to the coparcenery property?her
husband.

663

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 664 JOURNAL OF LAW & RELIGION [Vol. XXIV

Throughout history, restrictions on Hindu women's property rights

have undergone change, and current laws governing these rights are
more liberal than those of ancient Hindu society. Patriarchal Hindu
society provided women with property known as stridhan (literally,
women's property or fortune),3 and it mainly came from marriage gifts
(clothes, jewelry, and in some rare cases, landed properties). However,
women were denied property rights to the ancestral or marital landed
property, and their right over succession of the landed family property
was limited. With the emergence of different schools of Hindu law, the
concept of stridhan started expanding its literal and legal meaning,
granting women more rights to certain forms of property. Later, the
nineteenth and twentieth centuries witnessed the passage of several
pieces of legislation that were intended to remove more of the barriers to
full and equal property rights for Hindu women. Most recently, sexual
discrimination in Hindu succession rules was mostly discontinued by the
recent Hindu Succession (Amendment) Act (2005).4
This article critically examines the development of succession
rights of Hindu women from the ancient to the modern period, from a
feminist perspective. It also analyzes the present status of Hindu women
as property owners. The article is divided into three parts. The first part
examines the influence of the Hindu religion and socio-cultural factors
in the formation of succession laws for Hindu women and the concept of
stridhan in the ancient period. The second part discusses the plight of
Hindu female heirs in the medieval period. The third part analyzes the
colonial rules and laws protecting women's right over property and the
development of the concept of stridhan to modern inheritance laws.

I. The Ancient Period

A. Women and Property in Ancient Hindu Scripts

The Sanskrit saying "Na stri swatantramarhati-'Swatrantam Na
Kachit Striyah"5 meant that women were unfit for any independent

3. Stridhan (stri, meaning women, and dhan, meaning fortune or property in Sanskrit)
literally means property of a woman. The Manusmriti first used the term stridhan to denote
portions of property that can be owned by women alone. Women are regarded as a means of
bringing more property to in-laws' families by way of dowry. The language of the Dowry
Prohibition Act (1961), India Code Act No. 28 of 1961, gives enough scope to convert stridhan
into dowry in camouflaged ways. The text of all Central Acts of the Indian Parliament are
available at indiacode.nic.m. The Acts can be searched by their popular names or Act numbers
presented in this article.
4. India Code Act No. 39 of 2005.
5. A.M. Bhattacharjee, Hindu Law and the Constitution 120 (2d ed., E.L. House 1994).

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 663] PROPERTY RIGHTS OF HINDU WOMEN 665

existence and was the rule of ancient Hindu society. A woman was
considered less than fully human, an object to be preserved by her male
guardians. Even though the Puranas, the mythological stories passed on
from the time of Krishna,6 described Goddesses as Shakti (Goddess of
universal power), Mahalakhshmi (Goddess of wealth), and
Mahasaraswati, (Goddess of knowledge), mortal women were placed
below the status of Sudra,7 the lowest varnct of Hindu society.
The ancient scriptures never mention any property for an unmarried
woman. However, when she married, a woman could possess a limited
range of property, called stridhan, which she received at the time of her
marriage and could include movable assets such as jewelry, clothes,
utensils or cattle. In some rare cases immovable assets, such as landed
property, were also given as stridhan. Nevertheless, a woman was never
the absolute owner of her stridhan, because, as mentioned before, the
Manusmriti taught that a wife along with her property belongs to her
husband.
These ancient texts never properly defined the term stridhan; its
characteristics were never specified and the succession rule was not
clear. This began to change, however, with the emergence of different
schools of Hindu law.

6. The Pur anas are the richest collection of mythology in the world. Most of them attained
their final form around 500 A.D. but they were passed on as an oral tradition since the time of
Krishna (c. 1500 B.C.). There are eighteen major Pur anas and a few minor ones. The most
important Puranas are the Vishnu, Siva and Markandaya Purana. They are believed to be written
by Vyasa. All the Puranas belong to the class of Suhrit-Sammitas, or the Friendly Treatises,
while the Vedas are called the Prabhu-Sammitas, or the Commanding Treatises with great
authority.
7. Sudras were the lowest class and mainly served the other three higher classes of the
Varna system, namely the Brahmins (priestly), Kshatriyas (princely) and the Vaisyas
(commercial). They had no particular profession but many historians described them as slaves.
8. The word Varna is derived from the root "VR" to screen, veil, covering, external
appearance?Varna also means color. Varna was used to denote groups having different skin
coloration. The Aryans were fair skinned and the Dravidians black skinned. Apart from the skin
color the four varna's applied specific color marks on their fore head (called chandan or kumkum)
to identity themselves differently (The color difference may also be in their dress.). The brahmin
applied a white chandan mark signifying purity, as his profession was of a priestly or academic
nature. The kshatriya applied a red kumkum mark signifying valor as he belonged to warrior
races. The vaishya wore a yellow kesar or turmeric mark signifying prosperity, as he was a
businessman or trader devoted to creation of wealth. The sudra applied a black bhasma, kasturi
or charcoal mark signifying service as he supported the work of the other three divisions.
But color is only one of the many aspects of the term. Varna also denotes species, kind,
character and nature. Racial, tribal and familial solidarity also had a part to play in the origin of
the Varna system. The divisions may have been made based on religious beliefs, cult practices,
and even eating habits. Above all, there is the theory that the Varnas derived their basis from the
Purushasukta (Rig Veda 10.90) in dividing mankind into four socially separate interdependent
categories and this was incorporated in the Manu Dharmasastra.

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 666 JOURNAL OF LAW & RELIGION [Vol. XXIV

B. The Emergence of Different Schools of Hindu Law

According to ancient Hindu mythologies, the earliest texts of
Hindu religion were created by Lord Brahma in the form of four Vedas
(the Rig Veda, Atharva Veda, Sama Veda and Yajur Veda). Ancient
Hindu sages added various Smritis and Srutis (respectively, non
revealed and revealed texts) to the Vedic literature,9 many dealing
explicitly with issues of property and women's rights regarding it.10
While these commentaries on the Smriti and Sruti were being written,
different schools of thought arose in different parts of the Indian
subcontinent, and these schools laid down several rules and principles
for marriage and inheritance. The Mitakhshara and the Dayabhaga
were the most prominent schools, each of them based on a different
interpretation of Yagnavalkya Smriti, which was written by sage
Yagyavalkya and is one of the three main Smritis of ancient India and
the second most important source of Hindu code after Manusmriti. The
Mitakhshara School is based on Sage Vigneswara's interpretation of
Yagnavalkya's text, while the Dayabhaga School derives from Sage
Jimootvahana's commentary. The rules made by these schools are still
followed as the basic principles for inheritance law in India.
The Mitakhshara School11 was followed throughout India, except
the eastern part, and is divided into four sub schools on the basis of
geographic region, namely the Dravida, Maharashtra, Banaras, and
Mithila schools. The Mitakhshara School is distinguished by three
characteristics:
(1) the importance of blood relationship in matters of inheritance;
(2) the restrictions placed on coparceners' share in the joint family
property;12 and
(3) the distinction between male and female heirs.
Concerning the second point, the Mitakhshara School claimed that
a coparcener's share in joint family property is not absolute and
constantly fluctuates due to the birth or death of other coparceners.
Coparceners therefore do not have absolute right to transfer their shares.

9. Smriti ("that which is remembered") refers to a specific body of Hindu religious scripture.
Smriti also denotes non-Shruti texts generally, seen as secondary in authority to Shruti.
10. Sruti ("what is heard") is a canon of Hindu sacred texts. They do not date to a particular
period, but span the entire history of Hinduism, beginning with the earliest texts known, with
some late Upanishads reaching down into modern times.
11. One of the prominent commentaries of Smritis, and it is divided into four sub-schools on
the basis of geographic region, namely the Dravida, Maharshtra, Banaras and Mithila schools.
12. See Janaki Nair & Natl. L. Sch. of India U., Women and Law in Colonial India: A Social
History 196 (Kali for Women in collaboration with the Natl. L. Sch. of India U. 1996) (discussing
the Mitakhshara generally).

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 663] PROPERTY RIGHTS OF HINDU WOMEN 667

As for the third point, the Mitakhshara School believed that a woman
could never become a coparcener and the widow of a deceased
coparcener could not enforce partition of her husband's share against his
brothers. Property rights for Hindu women were severely restricted,
then, by this school of interpretation.
The second most prominent school of law after the Mitakhashara,
the Dayabhaga School, was mainly followed in the eastern part of the
country, especially in the provinces of Bengal and Assam, and had no
sub schools. It differs from the Mitakhshara School on principles of
inheritance and the position of women as heirs. According to the
Dayabhaga School:
(1) the right to inheritance arises from the spiritual offerings to the
deceased ancestors;
(2) the right over Hindu joint family property devolves to the heir
on the death of the father and not by birth, as was maintained by
the Mitakhshara School;
(3) for heirs of joint family property, each share is definite, and
each brother can sell his particular fraction of the share;

(4) if there are no male descendants, a widow has the right to

succeed to her deceased husband's share and enforce partition.13
The Dayabhaga School differed considerably; therefore, from the
Mitakhshara School on the question of a woman's standing as property
owner. Still, this more liberal policy had well-defined limits. For
instance, women were not absolute owners of the property inherited
from their male ancestors, because they could sell the property only for
limited legal necessities and not for other reasons. On the death of the
woman who had no sons, such property did not pass to her female heirs
but to the nearest male heir of the deceased male owner and not to the
heirs of the deceased. Another difference between the Mitakhshara and
Dayabhaga schools was the extent to which the Dayabhaga School
divided women into five categories that determined priority in
inheritance cases. These are wife, daughter, mother, father's mother and
father's father's mother.

C. The Developed Concept of Stridhan

The Mitakhshara School did not recognize women's right to inherit
property from her husband's family. Accordingly, a woman could
possess only stridhan, whose technical and legal meanings the
13. See id.

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 668 JOURNAL OF LAW & RELIGION [Vol. XXIV

Mitakhshara School expanded to include nine types:

(1) gifts and bequests from relations;

(2) gifts and bequests from strangers;

(3) property acquired by self exertion and mechanical arts;

(4) property purchased with stridhan;

(5) property acquired by compromise;

(6) property obtained by adverse possession;

(7) property obtained in lieu of maintenance;

(8) property obtained by inheritance; and

(9) share obtained by partition.14

However, even though the first seven types were recognized and
established as different forms of stridhan,15 the last two remained
controversial until the early twentieth century.

D. Controversy over the Property Obtained by Inheritance by Woman

The Mitakhshara School considered all these nine types of
succession as Stridhan. But, the Privy Council differed from the ancient
school of thought regarding the characteristics of the inherited property.
It was decided that when the property is inherited by females from
males16 and also by females from females,17 it no longer retains the
characteristics of "Stridhan," but becomes women's estate. But the
Bombay school disagrees with the English judgment on the
characteristics of the Stridhan. This school divided inheritance of
property by women into three groups: (a) inheritance of property by
woman from female, (b) inheritance of property by a woman from a
male in whose family the woman in born, such as daughters, sisters,
brothers' daughter, etc., and (c) inheritance of property by a woman
from a male, where the woman in question is introduced to the father's
gotra or lineage by marriage, such as intestate's widow, mother, etc.
The Bombay School certifies that the first two groups of property
qualify the characteristics of Stridhan18 whereas the third kind of

14. Paras Diwan, Modern Hindu Law Codified and Uncodified 346-347 (10th ed., Allahabad
L. Agency 1995).
15. Id.
16. Bhagwandeen v. Maya Baee, 11 M.I.A. 487 (1867).
17. Sheo Shankar v. Devi Sana, 25 All. 468 (1903).
18. Kaseerbai v. Hunsraj, 30 Bom. 431 (1906).

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 663] PROPERTY RIGHTS OF HINDU WOMEN 669

property is not Stridhan but women's estate.19

E. Controversy over Share Obtained on Partition

Even though the ancient schools differed about the characteristics
of stridhan when discussing property inherited by a woman, almost all
schools of Hindu law unanimously agreed that the share obtained by
partition is not Stridhan but women's estate.20

F. From Stridhan to Women's Estate

Thus we can see that with the passage of time the concept of
Stridhan develops into two distinct categories of rights over the
property, the one being full ownership, including the right to alienation
and the other being limited, excluding the right to alienate. The two
leading schools of Hindu thought clearly regarded stridhan as a
women's "own property." But not all stridhan was out of reach of male
claimants. Stridhan was divided into two types: 1) the sauadayika,
which she received as gifts from relatives of both sides (parents and
husband), and which she acquired by self exertion and mechanical arts
during her maidenhood or widowhood, over which she had full rights of
disposal, and 2) the non-sauadayika21 which included gifts from
strangers and property acquired by self-exertion, mechanical art, and so
forth as a married woman, over which she had no right of alienation
without the consent of her husband. Her husband also had the power to
use it. However, upon her death all types of stridhan would pass over to
her own heirs.
This age old confusion of women's limited rights over certain types
of property was finally put to rest by the Privy Council. It coined the
property with limited rights as "women's estate"22 whereby the female
owner takes it as a limited owner.23 The two main characteristics which
make women's estate different from Stridhan are (a) she cannot
ordinarily alienate the corpus, and (b) on her death it goes to the next
heir of the last full owner, i.e., the male owner from whom the woman
had inherited.24 In Janki v. Narayansami25 the Privy Council aptly

19. Id.
20. Devi Prasad v. Mahadeo, 39 LA. 121 (1912).
21. Vibha Sirothyia, Student Author, Stridhan And Womans' Estate Under Section 14 of
Hindu Succession Act 1956, www.indlaw.com/publicdata/articles/articlel89.pdf (accessed Feb.
23, 2009).
22. Devi Prasad v. Mahadeo, 39 LA. 121 (1912).
23. Diwan, supra n. 13, at 346-348.
24. Bijay v. Krishna, 44 I. A. 87 (1907).

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 670 JOURNAL OF LAW & RELIGION [Vol. XXIV

observed, "her right is of the nature of right of property, her position is

that of the owner, her powers in that character are, however limited. . . .
So long as she is alive, no one has vested interest in the succession."26
Other sources help to complete the picture of ancient Hindu
women's property rights. The Dharma Shastra?Sanskrit texts
pertaining to Hindu religious and legal duty?says that the wife of an
absent manager, or the widow of a dead manager, can alienate or
transfer family property belonging to numerous minors who are unable
to enter into contractual relationships in their own persons, especially in
situations that call for maintaining dependents and carrying out the
various obligations of the family. Katyana,27 Smritichandrika^
Bhavasvamin,29 and Yagnavalkya Smriti30 also support this right.31
However, what is clear from the Dharma Shastra is that women were
considered to be managers in cases only of distress and never had the
power to manage property by themselves for their own purposes.
It is also clear that many socio-religious crimes had their roots in
ancient succession laws. A Hindu woman was never recognized as full
owner of any property received by her, especially when it was landed
property. Manu's attitude regarding the inferiority of women extended
even to circumstances in which a woman was the only child. For such
cases, ancient law makers suggested adopting a male baby to look after
parental property, which should never be left with the woman, regardless
of how educated she might have been. This fight with women for
ownership over property gave birth to a number of socio-religious
crimes that were given legal color in the name of protecting family
wealth. Hence, bigamy, remarriage for the male heir, forced sexual
intercourse with another man to have a male child, female infanticide,
and wife abandonment were made widely acceptable, if not legally, then
in the name of religion, for situations in which a woman could not

25. 43 I.A. 207(1916).

26. However, post independence, Hindu Succession Act (1956), India Code Act No. 30 of
1956, abolished the concept of woman's estate and conferred full rights to women over all types
of property that have been discussed here. The broad discussions of the Hindu Succession Act
(1956) are done below.
27. Katyana was an ancient Hindu legal text writer. See http://www.legalserviceindia.com/'
articles/kar.htm (accessed May 19, 2009).
28. SmritiChandrika is a Hindu legal text written to supplement Mitakhshara, the ancient
Hindu text for inheritance. It is more a sort of digest of ancient texts dealing with inheritance than
a commentary. Devanna Bhatta, Smritichandrika (Vyavaharakanda) (L. Srinivasacharya Pandit
ed., Gov. Oriental Lib. 1914).
29. Bhavasvamin was an ancient Hindu legal text writer.
30. Smriti by Sage Yagnavalka, an ancient legal text writer.
31. Garg Manisha & Nagar Neha, Student Authors, Can Women be Karta?,
http:/7www.legalserviceindia.com/articles/kar.htm (accessed Feb. 22, 2009).

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 663] PROPERTY RIGHTS OF HINDU WOMEN 671

produce a male heir.

II. The Medieval Period

A. Succession Rights for Hindu Women: Darker than Ever??

The strong shadow of male dominance over the succession rights
of Hindu women became even darker in the medieval period with the
Muslim invasion.32 The Muslim rulers in this period introduced a new
set of rules from the Shariat33 for the followers of Islam but did not
disturb the personal laws of the Hindu community for marriage or
succession. During this period, stridhan in the form of jewelry and other
movable gifts started losing its implicit meaning of "women's property"
and became a status symbol for matrimonial gifts to the newlywed
couples in the form of Vara dakhshina or dowry.34
The concept of women's estate35 gained favorable recognition in
Hindu society at this time due to socio-cultural reasons. When a woman
received landed property either: 1) by inheritance specially from the
male members of the family such as the husband or the father-in-law or
2) by share obtained by partition of the property, she was made the
owner subject to two limitations?first, she could not ordinarily alienate
the corpus and, second, on her death it devolved upon the next heir of

32. The Muslim conquest in the Indian subcontinent mainly took place from the 11th to the
17th centuries, though earlier Muslim conquests made limited inroads into the region, beginning
during the period of the ascendancy of the Rajput Kingdoms in North India, from the 7th century
onward. V.D. Mahajan, History of Medieval India (S. Chand 2004).
33. The code of law derived from the Qur'an and from the teachings and example of
Mohammed.
34. Originally a woman received gifts from her family during her marriage as a form security
also, but slowly it turned into a compulsion for the bride's family to gift the Stridhan not to the
girl but to the bridegroom, which was termed as Vara (bridegroom) dakhshina (payment) or
payment to the bridegroom for marrying the daughter. This forceful demand of Stridhan remained
an unprotected social evil until the creation of the Dowry Prohibition Act (1961)which defined
Vara Dakhshina or "dowry" as
any property or valuable security given or agreed to be given either directly or
indirectly?(a) by one party to a marriage to the other party to the marriage; or (b) by the
parents of either party to a marriage or by any other person, to either party to the
marriage or to any other person, at or before any time after the marriage in connection
with the marriage of the said parties but does not include] dower or mahr in the case of
persons to whom the Muslim Personal Law (Shariat) applies.
Dowry Prohibition Act (1961), Act No. 28 of 1961, available at
http://wcd.nic.in/dow17prohibitionact.htm.
35. In the Mitakhshara jurisdiction, including Bombay and the Dayabhaga School, the legal
commentators finally dictated that the share obtained in partition is not stridhan in its true sense.
It was given the Colonial legal recognition as "women's estate" in Devi Prasad v. Mahadeo, 39
LA. 121 (1912).

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 672 JOURNAL OF LAW & RELIGION [Vol. XXIV

the last full owner, also known as a reversioner. This was established by
the Privy Council in the case of Bijoy Gopal Mukherji v. Krishna
Mahishi Debi.36
The customary laws, however, gave three options in which a
woman could alienate her estate by herself:
1. legal necessity (that is, for her own need and for the need of the
dependants of the last owner);
2. for the benefit of estate; and

3. for the discharge of indispensable duties (marriage of daughters,

funeral rites of her husband, his shraddha and gifts to Brahmans
for the salvation of his soul; that is, she can alienate her estate for
the spiritual benefit of the last owner, but not for her own spiritual
benefit).37
In other words, her position was reduced to that of a mere caretaker of
the property for the sake of male members of the family.
This practice of devolving only limited ownership on the women
became more common during the medieval period to protect ancestral
property from the grab of the Muslim rulers in cases in which full
owners died intestate. Young widows were used as a mode to transfer
the succession rights to the nearest male member of the husband's
family. Immediately after her husband's death, a widow would be
declared the limited owner of her deceased husband's property. She was
allowed to wear only white attire and no ornament. Her jewelry would
be forcefully taken by the male members of her immediate family.
Then, if she was young, she would be encouraged or, in majority of
cases, forced to submit to the ritual of bride burning or sati3S Older
women would be left to beg in some Hindu holy place. The practice of
sati still continues in many parts of India to unethically gain women's
property.

36. 34 LA. 87(1907).

37. Sirothyia, supra n. 20, at 4.
38. Sati is the practice of burning the Hindu widows alive with their husbands. This practice
became more common during the Muslim rule in northern India to protect the chastity of Hindu
women from the Muslims. But this heinous practice became more in vogue in northern, western
and eastern India in the 17th and 18th centuries, mainly to kill the widows so that they could not
claim the property of their deceased husband. By the end of 18th century, the British rulers in
India, along with the social reformers like Raja Ram Mohan Roy, made strict rules preventing the
practice of Sati. In modern India the practice of Sati is considered to be a criminal act and
punishable by both the Sati Prevention Act and the Indian Penal code, along with the Criminal
Procedure Act. But unfortunately still in interior parts of Northern India, the ritual of Sati is
practiced, even though very rarely. Arvind Sharma, Sati: Historical and Phenomenological
Essays (Motilal Banarsidass 1988).

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 663] PROPERTY RIGHTS OF HINDU WOMEN 673

The late seventeenth century saw the eruption of another socio

religious crime?that of dowry,39 which made stridhan part of the gift to
the bridegroom. For centuries, stridhan was demanded by prospective
bridegrooms as part of the dowry given to them. This was unethical,
according to the ancient srutikaras (or authors of the shruti). Colonial
rule made the situation little better. By creating laws that followed
British models for securing succession rights for women, these laws
could not help Hindu women, who almost by definition were not as rich
as their British counterparts. Hence Hindu women continued to be
tortured for being born a daughter who could demand a share of property
and family wealth in the name of stridhan, for being a young bride
whose stridhan was considered an insufficient contribution to her
husband's dowry, and for being a widow who could demand her
husband's share in the family property and her own stridhan.

III. The Modern Period

A. Stridhan, Sati and Dowry

The biggest socio-legal problem which the colonial rulers faced in
India with their Hindu "subjects" was the Hindu religious practices and
social customs, all of which generated from one issue, the deprivation of
women from their legitimate rights. When the British invaded India, the
Hindu socio-religious-cultural situation reached its nadir. The practice
of demanding stridhan as part of dowry became entrenched. This
encouraged female infanticide, marrying young girls with dying men
and the heinous practice of bride burning. Furthermore, even though the
Mughal emperors tried to stop the practice of bride burning, or sati, the
barbaric practice continued to be practiced into the eighteenth and
nineteenth centuries. Persuaded by social reformers such as Raja Ram
Mohan Roy and Lord William Bentinck, for the first time in Indian
history the practice was abolished by the Sati Regulation, XVII of 1827.
Sati became a punishable act when the Indian Penal Code of 1860
established that such practice amounts to murder and homicide. These
acts paved the way for ensuring Hindu women's lawful right over their
property. But the question of dowry remained unsolved and continued
to be interpreted as part of stridhan.

39. Srimati Basu, Dowry and Inheritance: Issues in Contemporary Indian Feminism 318 (Zed
Books 2005).

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 674 JOURNAL OF LAW & RELIGION [Vol. XXIV

B. Colonial Laws: Hindu Women's Right to Property Act (1937)

Hindu customary laws and rules continued to be practiced well
after the British invaded the country. Even while they introduced
uniform laws governing other features of social life, such as crime and
commerce in the eighteenth and nineteenth centuries, British colonial
rulers recognized distinct Hindu family laws for different religious
groups and other cultural groups.40 The inheritance laws thus continued
to be governed by the Mitakhshara and Dayabhaga laws till the
beginning of the twentieth century.
The colonial rulers' first attempt to make a uniform law of
succession for Hindu women was the Hindu Women's Right to Property
Act (1937), which emphasized women's estates. This Act was the first
of its kind to put an end to the controversial debate over the
characteristics of stridhan, and it established Hindu women's rights over
landed properties inherited from male owners, especially from husbands,
even though to a limited extent.
The 1937 Act recognized three types of widows: 1) intestate man's
widow; 2) widow of a pre-deceased son; and 3) widow of a pre-deceased
grandson who is the son of a predeceased father. The widows were
given a share in the undivided interest of a Mitakhshara coparcener?1
Much was made of the Hindu Women's Right to Property Act as
an instrument for improving the treatment of Hindu women, especially
for young widows. Pressure for this type of social reformation came at
the instigation of European as well as Indian social reformers stretching
back to Raja Ram Mohan Roy42 Despite this reformist agenda, the
ancient Shastric laws survived intact. Though the 1937 Act established
limited rights for Hindu women in their intestate husband's property, its
biggest flaw was that it could never guarantee any rights to women
successors when the deceased had disposed of his property by will.
Neither did the Act mention anything about the shares of women in
agricultural lands.

40. Narendra Subramaniam, Family Law and Cultural Pluralism, in Encyclopedia of India
55-58 (Stanley Wolpert ed., Charles Scribners Sons: Thomson Gale 2006).
41. Diwan, supra n. 13, at 352.
42. Raja Ram Mohun Roy (Aug. 14, 1774-Sept. 27, 1833) was best known for his efforts to
abolish the practice of sati, the corrupted Hindu funeral practice in which the widow was
compelled to sacrificed herself on her husband's funeral pyre. It was he who first introduced the
word "Hinduism" (or "Hindooism") into the English language in 1816. For his diverse
contributions to society, Raja Ram Mohan Roy is regarded as one of the most important figures in
the Bengal Renaissance and is hailed as "the father of modern India."

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663] PROPERTY RIGHTS OF HINDU WOMEN 675

C. Conversion of Women's Estate to Stridhan

Hindu women's limited interest in landed property continued even

after the independence of India (1947). During the Constitutive
Assembly of India (legislative) debates of 1948, Dr. B.R. Ambedkar
pointed out the disadvantages in the succession laws for Hindu women
and made changes in the existing laws in the new Hindu Code Bill.
These changes are as follows:
[T]he widow, the daughter, the widow of a pre-deceased son, all
are given the same rank as the son in the matter of inheritance.

[T]he daughter also is given a share in her father's property; her

share is prescribed as half of that of the son....
[T]he number of female heirs recognized now [should be made]
much larger than under either the Mitakshara or the
Dayabhaga. . . .
[U]nder the old law, whether the Mitakshara or the Dayabhaga, a
discrimination was made among female heirs, as to whether a
particular female was rich or poor in circumstances at the death of
the testator, whether she was married or unmarried, or whether she
was with issue or without issue. All these consideration which led
to discrimination in the female heirs are now abolished by this
Bill. A woman who has a right to inherit gets it by reason of the
fact that she is declared to be an heir irrespective of any other
considerations. . . .

Under the Dayabhaga the father succeeds before in preference to

the mother; under the present Bill the position is altered so that the
mother comes before the father. .. .

[I]t consolidates the different categories of stridhan into one single

category of property and lays down a uniform rule of succession;
there is no variety of heirs to the stridhan in accordance with the
different categories of the stridhan?all stridhan is one and there
is one rule of succession.

[T]he son also is now given a right to inherit the stridhan and he is
given half the share which the daughter takes. . . . [By this] the
Bill seeks to maintain an equality of position between the son and
the daughter. . . .

The Bill. .. converts this limited [women's] estate into an

absolute estate just as the male when he inherits gets an absolute
estate in the property that he inherits and.. . .

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 676 JOURNAL OF LAW & RELIGION [Vol. XXIV

[The Bill] abolishes the right of the reversioners to claim the

property after the widow.43
The Hindu Code Bill was therefore the first step toward abolishing
the idea of limited estate for women and converting it into a full estate.

D. The Modernized Concept of Stridhan:

The Hindu Succession Act (1956)
Based on the Hindu Code Bill, a uniform succession law, the
Hindu Succession Act (1956), was adopted for Hindus in free India and
finally gave a death blow to the ancient practice of preventing women
from inheriting landed property from male heirs. With this Act, the
concept of women's estate was finally discarded and the meaning of
stridhan expanded by including landed property along with other
movable and immovable properties. Women's estate was now
converted into stridhan by Section 14 of the legislation, which said that
any property a Hindu woman receives after June 17, 1956, will be her
absolute property.
According to the Act, "property" includes both movable and
immovable property that she receives as gift, or through maintenance or
inheritance, or that she acquires by her own skill or by purchase,
prescription, partition etc.44 The definition of the property enumerated
in Subsection 1 of Section 14 of the Act includes all the types of
property that were enumerated in the ancient text Vijnaneshwar, in
which stridhan was shown to be of nine types. But even the Hindu
Succession Act did not give women full ownership over property, as
Subsection 2 of Section 14 retains the power of any person or the court
to give limited estate to a woman in the same manner as a limited estate
may be given to any other person.45
Thus, Section 14 has had a retrospective or backward-looking
glance.46 It converts an existing women's estate into stridhan or
absolute estate only when two conditions are fulfilled: 1) ownership of
the property must vest in her and it is not limited ownership; and 2) she
must be in possession of the estate when the Act came into force.47 The

43. B.R Ambedkar, Law Minister of India, Remarks on the Hindu Code Bill 599 (CA.
(Leg.)D., Vol. IV, 9th April 1948, pp. 3628-3633) (available at http://www.ambedkar.
org/ambcd/) (To locate Remarks on site: 1) click on Debates/Interviews, 2) click on "8." On the
Hindu code Bill: Part I," 3) scroll to Section I, [f4] Hindu Code, fl 6-11) (The quoted material is
extracted and reformatted for ease of understanding.).
44. Hindu Succession Act ? 14(1) (1956).
45. Id, at ? 14(2) (discussing property given with limitations).
46. Diwan, supra n. 13, at 354.
47. Deenadayal v. Raju Ram, 1970 S.C.R. 1019 (1970) (Hedge, J.).

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 663] PROPERTY RIGHTS OF HINDU WOMEN 611

Act also keeps silence in cases of a woman's deceased husband's

property. Except for the right of maintenance, the property cannot
become her absolute property.48

E. Critique of Hindu Succession Act 1956

Even though Section 14 of the Hindu Succession Act (1956),
converted women's estate to stridhan, it was not flawless. The issue of
female inheritance was questioned in case of inheritance with limitation
clause. There were several other clauses which continued the age old
discrimination of male and female heirs.
The Act of 1956 is meant for unmarried daughters to claim
inheritance of the property.
Under Section 15 of the Hindu Succession Act (1956), the
daughter-in-law inherits only when she is a widow. Hence she can not
inherit her due share in her father-in-law's property when her husband is
alive.49 This decision was arrived at by the Courts while discussing the
applicability of Section 15 (b), which states
any property inherited by a female Hindu from her husband or
from her father-in-law shall devolve in the absence of any son or
daughter of the deceased (including the children of any
predeceased son or daughter) not upon other heirs referred to in
subsection (1) in the order specified therein, but upon the heirs of
the husband.

The Court had to clarify the wordings of Section 15 (b) for the purpose
of finding out the right heir of the property of widowed woman who
have inherited her share from her father in law. In the case of Kailash v.
Kishan,50 the court thus decided that there is no flaw in the factual
operation of the Section. For the purpose of the widow's heir in
question, the inherited property from her father-in-law would be
devolved upon the heirs of her husband after her death. In case she
remarries and her second husband also dies and she inherits property
from her father-in-law from the second marriage, the said inherited
property from the second marriage would be devolved upon the heirs of
the second husband and not on the heirs of the first marriage.
Another big difficulty the women had was the partition of the
dwelling house. Even though Section 14 mentions that stridhan
property includes property inherited by way of partition, Section 23,

48. SurajMal v. Babulal, 1985 Del. 95 (1985).

49. Kailash v. Kishan, Pat 154.
50. Id.

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 678 JOURNAL OF LAW & RELIGION [Vol. XXIV

while discussing about the partition of the dwelling house, clearly

discriminates the women heirs.
Hindu law gives special position to the dwelling house, which as
per the smritikaras should not be partitioned. Male heirs (sons and
grandsons) and not the female heirs were considered the only successors
of the dwelling house. Hence the problem of male and female
succession rights could not arise the way it may arise now.51
Section 23 of the Hindu Succession Act states that the right of
female heirs to claim partition of the dwelling house shall not arise until
the male heirs choose to divide their respective shares therein.
The above-mentioned Act, under Section 23, differentiates between
married, unmarried and widowed daughters' ability to claim right of
residence. It does not give the right to claim partition, but gives a right
of residence only if the daughter either is unmarried, has been deserted
or has been separated from her husband.52
Married daughters do not have either right to claim partition or
right to residence.
A married daughter who has left her husband of her own accord
and is not deserted by her husband has no right to reside in the dwelling
house.53
When a married daughter becomes a widow or has been deserted
by her husband she can claim only residential rights in the dwelling
house.
The restriction on the partition is imposed only on the female heirs.
If a male heir chooses to partition the dwelling house, the female heirs
cannot prevent him, but they will be entitled to their share.54
Thus it could be seen that the Hindu Succession Act (1956)
excludes married daughters from the right of residence in the dwelling
house as well as a share of partition. Here again the controversy for
women's succession begins. Even though this Act abolished the
difference of stridhan and women's estate, the issue of partition and
right of residence in the dwelling house made the age old practice of
discriminating against female children more exposed.

F. Efforts to End the Inequality

Constant researches in the field of succession rights of Hindu

51. Id.
52. Sripatinath v. Ira Ram, 1992 Cal. 60 (1992).
53. Kalamma v. Veeramma, 1992 Kant. 362 (1992).
54. Usha v. Smriti, 1988 Cal. 115 (1988).

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663] PROPERTY RIGHTS OF HINDU WOMEN 679

women in India made some of the state governments develop unbiased

succession rules. The Hindu Succession (Andhra Pradesh) Amendment
Act (1985) made a remarkable development. This law stated that the
rights of the daughter are equal to that of the son, in any circumstances.
This law found the Mitakshara system is in violation of the fundamental
right of equality. The States of Tamil Nadu, Maharashtra and Kerala
have also amended the law by including women as members of the
coparceners. But unfortunately this law is not a universal law. Except
the southern states who were already following the Marumakkattayam55
and Aliyasantana56 laws, other states of India refused to deviate from the
patriarchal tradition in case of property rights. There are numerous laws
that say that there should be no discrimination between the sexes, but in
reality none are effective enough to actually bring about a revolution; a

55.
In the Marumakkattayam law, which prevailed in Kerala wherein the families were joint
families, a household consisted of the mother and her children with joint rights in
property. The lineage was traced through the female line. Daughters and their children
were thus an integral part of the household and of the property ownership as the family
were matrilineal. It is applicable to a considerable section of people in Travancore
Cochin and districts of Malabar and South Kanara. It is followed by non Brahmin
castes, Nairs and Thyas, other cognate castes and Payyannur Graman of North Malabar.
Under the Marumakkattayam system of inheritance, descent and succession to the
property was traced through females. The mother formed the stock of descent and
kinship as well as the rights to the property was traced through females and not through
males. Marumakkattayam literarily meant inheritance by sisters' children as opposed to
sons and daughters. Word "Marumakkal" in Malayalam means nephews and nieces. It
is generally agreed by scholars that matrilineal system was the direct result of some
system of polyandry that existed among ancient races. Descent through females
indicated uncertain paternity. It has been unanimously agreed by the historians that the
origin of this system is traceable to polyandry prevalent in ancient Malabar.
S J. Prasanth & Shastri Shivani, Student Authors, Should Women be Given Coparcenary Rights?,
http:// www.manupatra.com/PopUp/PopOpenArticle.aspx7ID-afd 18f30-7d79-477e-8271 -
44b5ed62f8dl&a=08518b77-12a6-4d60-8f8e-08e494e015d6 (accessed Feb. 23, 2009)
(subscription required for access).
56.
This system is applicable in South Kanara. The Bunts, the Billawas and the non Priestly
class among the Jainas in Kanara are governed by this system. This tradition came into
practice and was followed by every one in the Bunts' community with the belief that it
was an ancient practice. Bunts still believe that this tradition was inherited from a King
Bhutala Pandya who ruled Tulunaadu and introduced this system in 77 A.D. The
Aliyasantana system is the system of inheritance through female line which gives
property rights to the lady and all rights are centralized on her, example: Some of the
surnames of Bunts come from the mother side; the name of the mother's ancestral house
normally became the prefix or suffix of one's name. This may be because when men
went to the battlefield, the wife took the whole responsibility of the family and became
the decision-maker. So in the Aliyasantana system more importance is given to the
mother's side of the family. More respect is given to maternal uncles than to the paternal
uncles.
Doshi Manita, Student Author, The Marumakkattayam and Aliyasantana System,
http://www.legalserviceindia.com/articles/mds.htm (accessed Feb. 23, 2009).

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 680 JOURNAL OF LAW & RELIGION [Vol. XXIV

change in society. The main hurdle in achieving gender equalities in

case of succession amongst the Hindus remains the difference in the two
schools of law which govern different parts of the country.
The 174th Law Commission took up the task to end this thousands
year-old custom alienating woman from property inheritance. It found
that social justice demands that a woman should be treated equally both
in the economic and the social sphere. "The exclusion of daughters
from participating in coparcenary property ownership merely by reason
of their sex is unjust."57 The Commission took into consideration the
changes carried out by way of State enactments in the concept of
Mitakshara coparcenery property in the five States in India, namely,
Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka. The
Commission felt that further reform of the Mitakshara Law of
Coparcenary is needed to provide equal distribution of property both to
men and women. The law commission took a revolutionary step by
recommending changes in the ancient succession laws of Mitakhshara
and Dayabhaga and thereby amending the existing Hindu Succession
Act (1956) to give equal share to Hindu women in their ancestral
properties.

G. Dowry and Stridhan

While the Hindu Succession Act (1956) assured Hindu women
their succession rights, the enactment of Dowry Prohibition Act (1961)
addressed the problem of forceful demand of stridhan in name of dowry
and made it a penal offense.58 The Act defined dowry as any property or
valuable security given or agreed to be given at the time of marriage, or
before the marriage or at any time after the marriage by one party to the
other party in the marriage or by the parents of either party to a marriage
or by any other person to either party of the marriage or to any person.59
However, Section 2 of the Act draws a thin line between stridhan and
dowry and states that when presents are gifted to the bride and bride
groom respectively and such presents are not demanded and entered in
the list as has been provided by The Dowry Prohibition (Maintenance of
Lists of Presents to the Bride and Bridegroom) Rules (1985) and signed

57. Law Commission of India 174th Report, Property Rights of Women: Proposed Reforms
under the Hindu Law, D.O. No.6(3)(59)/99-LC(LS) (May 5, 2000), available at
http://www.lawcommissiono findia.nic.in/kerala.htm (emphasis added).
58. Sec. 3 of the Dowry Prohibition Act makes taking, giving or abeting the act of dowry a
penal act with imprisonment for five years and a fine of fifty thousand rupees. The Dowry
Prohibition Act ? 3 (1961), http:wcd.nic.in/dowryprohibitionact.htm (accessed Jan. 5, 2009).
59. Id. at ? 2.

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 663] PROPERTY RIGHTS OF HINDU WOMEN 681

by the bride and bride groom respectively, it will not fall under the term
"dowry."
But could these "gifts" received by the bride at the time of
marriage be termed as stridhan! The Supreme Court of India finally
settled this issue in the case of Prativa Rani v. Suraj Kumar60 and stated
that "the stridhan property of a married woman cannot acquire the
character of a joint property of both the spouses as soon as she enters
her matrimonial home"
The court further held that:

The position of stridhan of a Hindu married woman's property

during coverture is absolutely clear and unambiguous; she is the
absolute owner of such property and can deal with it in any
manner she likes. She may spend the whole of it or give it away at
her own pleasure by gift or will without any reference to her
husband. The entrustment to the husband of the stridhan property
is just like something which the wife keeps in a bank and can
withdraw any amount when ever she likes without any hitch or
hindrance. Ordinarily, the husband has no right or interest in it
with the sole exception that in times of extreme distress, as in
famine, illness or the like, the husband can utilize it but he is
morally bound to restore it or its value when he is able to do so.
This right is purely personal to the husband and the property so
received by him in marriage cannot be proceeded against even in
execution of a decree for debt.61
This revolutionary judgment finely defined stridhan which were
immovable and received as gifts by the Hindu women and thereby
sealed any controversy in regard to its absolute ownership by women.
The further amendments made to the succession laws upheld women's
position as at par with their male counterparts in dealing with succession
and property matters.

H. The Hindu Succession (Amendment) Act 2005

The Hindu Succession Act (amended) 2005, gave Hindu women
right to become a coparcener in the ancestral property like their male
counterparts. Under Section 6 of the Hindu Succession (Amended) Act
(2005) daughters get equal rights of the ancestral properties. Hence it
could be seen that:
The daughter of a coparcener cell by birth becomes a coparcener in
her own right in the same manner as the son;

60. 1985 S.C.R. 628.

61. Prativa Rani v. Suraj, Kumar 1985 S.C.R. 628 (emphasis in original).

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 682 JOURNAL OF LAW & RELIGION [Vol. XXIV

The daughter has the same rights in the coparcenery property as

she would have had if she had been a son;

The daughter shall be subject to the same liability in the said

coparcenery property as that of a son; and any reference to a Hindu
Mitakshara coparceners shall be deemed to include a reference to a
daughter of a coparcener;

The daughter is allotted the same share as is allotted to a son;

The share of the pre-deceased son or a pre-deceased daughter shall
be allotted to the surviving child of such pre-deceased son or of
such pre-deceased daughter;

The share of the pre-deceased child of a pre-deceased son or of a

pre-deceased daughter shall be allotted to the child of such pre
deceased child of the pre-deceased son or a pre-deceased
daughter.62
The age-old tradition of investing the whole share of the property
of a Hindu who died intestate to his male heirs only has come to an end
ultimately. By the New Succession law, the female heirs became
equally eligible to inherit the equal share of the property as their male
counterparts. In other words the effect of the Hindu Succession Act
(2005) is two-fold:
Women became active members of the coparcenery property and
enjoyed the right of partition of the ancestral dwelling house. In
other words, they became the Karta, which was limited to the male
heirs only before the promulgation of the new Act.
Women became entitled to enjoy the right to property fully, no
matter whether she inherits the property from her parents or her in
laws.
The Hindu Succession (Amended) Act 2005 has brought a
revolutionary change in the Hindu succession law by making the women
Karta63 of the joint family properly. Women therefore can manage the
property as the male heirs were doing since ages. But historically, such
power of women is not new. The Dharma Shastra says that
alienation can be done by the wife of an absent, or the widow of a
dead manager, of family property belonging to numerous minors,

62. Subhamoy Das, Hindu Succession (Amendment) Act (2005): Equality for Women (Sept.
10, 2005), http://hinduism.about.co (accessed May 22, 2009).
63. The word Karta denotes Lord in Sanskrit. In ancient Hindu codes the word Karta has
been used to depict the main owner or the Lord of the property who is usually the male
descendant. The modern Hindu Succession Laws in India also use the word to denote the main
owner of the property.

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 663] PROPERTY RIGHTS OF HINDU WOMEN 683

unable to enter into contractual relationships in their own persons,

yet reasonable for maintaining dependants and carrying the various
burdens of the family.64
This position
is further supported by Katyana, Smritichandrika, Bhavasvamin
and Yagnavalyka Smriti. Some of the Sanskrit text says?
"sishyantevasi-dasa-stri-vaiyavrittyakarais ca yat Kutumbahetor
ucchinam vodhavyam tat Kutumbina" ["The manager (or
householder, actual or eventual) is liable to accept (or admit) all
alienations made for the purposes of the Family by a pupil,
apprentice, slave, wife, agent or bailiff']. Narada says?"Na ca
bharya-kritam rinam kathancit patyur abhavet Apat kritad rite,
pumsam kutumbartho hi vistarah" ["A debt contracted by his wife
never binds the husband, except that incurred in a time of distress:
expenses for the benefit of the family fall upon males"].65
Women were considered as just managers in case of distress and never
had the power to manage the property by themselves for their own
purposes. By the amended Act women were elevated to the position of
full property owners.

Discussion

Since the inception of the concept of stridhan, the characteristics of

the controversial part of the stridhan, which are acquired by either
inheritance or by share, and the legality of such property remained
controversial. As mentioned earlier, according to Yagnavalyka "[w]hat
was given to a woman by [her] father, mother, her husband or her
brother or received by her at nuptial fire or presented on her super
session and the like is denominated women's property" (Ya, II, 143).66
Vijnaneshwara interpreted the original version of Yajnavalkya's
commentary and interpreted the "and the like" as property including
inherited property and out of share or purchase. He was the first among
the ancient law givers to interpret stridhan to a broader aspect to include
property acquired by inheritance and by share or purchase. But other
smritikaras61 opposed such idea and, finally, Manusmriti, which is
considered as the first and the main source of Hindu law, dictated that
women were unable to own such property as they are inferior to men.

64. Garg Manisha & Nagar Neha, Student Authors, Can Women be Karta?,
www.legalserviceindia.com/articles/kar.htm (accessed Oct. 19, 2008).
65. Id.
66. Diwan, supra n. 13, at 345 n. 2.
67. The lawmakers.

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 684 JOURNAL OF LAW & RELIGION [Vol. XXIV

The two schools of Hindu law, namely the Mitakhshara and the
Dayabhaga schools, upheld succession laws of Manusmriti and women
remained as secondary owners of the landed property until the inception
of Hindu Women's Right to Property Act (1937). By the promulgation
of the this Act, the colonial rulers in India in the eighteenth and
nineteenth century took the first step to secure a married woman's right
to property, to a limited extent. Property acquired by inheritance or by
share or partition was named as women's estate and wives of Hindu men
or the widows of Hindus got the right to reap the benefit of the property
even though they were not allowed to alienate the property. The rigid
Hindu society and customary rules suppressed women for a long time.
Hindu Women's Right to Property Act (1937) was followed by the
Hindu Code Bill on the eve of independence of India and then finally by
the Hindu Succession Act (1956) whereby the modern law makers
abolished the concept of women's estate and included such property as
stridhan.
Thereby the modern Hindu succession laws came out of the rigid
rules of male dominated succession rules of Manusmriti and adopted
Vijnaneshwara's interpretation of the extended concept of stridhan. But
even though the modern Hindu succession laws gave a secured position
to the Hindu wives and widows over the property of their husband or the
property belonging to their in-laws in case of a predeceased son's
widow, the question of unmarried girls' right to partition of the dwelling
house or the right of residency of the married daughter in the ancestral
house remained unanswered. It was nearly fifty years after the inception
of the Hindu Succession Act (1956) that these questions were solved in
the Hindu Succession (Amendment) Act (2005). The ancient concept of
stridhan included nine types of property, namely,
i) gifts and bequests from relations,

ii) gifts and bequests from strangers,

iii) property acquired by self exertion and mechanical arts,

iv) property purchased with stridhan,

v) property acquired by compromise,

vi) property obtained by adverse possession,

vii) property obtained in lieu of maintenance,

viii) property obtained by inheritance and

ix) share obtained by partition, which were finally recognized by
the modern legislation; and women, whether married or unmarried,

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 663] PROPERTY RIGHTS OF HINDU WOMEN 685

were given the equal right to own property as their male counter
parts.
Even after the inception of the new Act in 2005, discrimination of
women toward succession has not been fully wiped out. The reasons are
both sociological and historical in nature, namely:
Hindu orthodox families discriminate against female children from
birth in education, health and hygiene matters. Hence, mostly girls
remain oblivious of their basic rights.
Even though laws are made to prevent child marriages, such acts
still prevail in many villages of India. Once a girl is married as a child,
she never returns to ask for the share of her ancestral property, nor are
such demands entertained by her parental family. The root cause for this
is she will introduce a new member to the coparcenery property namely,
her husband.
Women are considered elements to bring more property to the in
laws' family by way of dowry. The language of the Dowry Prohibition
Act (1961) gives enough scope to convert stridhan into dowry in
camouflaged ways.
The new Succession Act (2005) gives women rights over their
parental property. Possibilities of dowry harassment increase as the
women may be pestered to demand family property not for themselves
but because of the greed of their in-laws.
The new Law may tempt the in-laws to practice the heinous custom
of bride burning or Sati in order to remove the women from the list of
legal successors of the landed property.
The new law makes women eligible for the position of Karta of
joint family property. But many Hindu families where women are
severely discriminated against may not allow women to use the new law.
The question arises when a Hindu daughter marries a person
belonging to another faith and converts to the said religion, whether she
would have the same rights of partition, succession of ancestral property,
as she would have before such marriage.

Suggestions and Conclusion

Promulgation of new legislative acts will have no effect if they are

not properly implemented. The ancient texts of the Hindu religion
mention that women can own property, but shun the responsibility of
women. Ironically, Hindu rituals and practices of worshipping the
Shakti68 were never honored in real life. Women are considered outcast.

68. Sakti means the ultimate power. The Ancient Hindu mythology describes Sakti as a

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 686 JOURNAL OF LAW & RELIGION [Vol. XXIV

The modern concept of Hinduism has to be expanded and broadened to

inculcate the laws relating to women in the society. The authors feel
succession rights and right to own property of the Hindu women would
be stronger if the following suggestions are considered:
General awareness should be created among the women about their
rights from the grassroots level.
The Hindu Succession Act should include a separate provision for
prevention of dowry harassment. It should be mentioned that the
stridhan or the property of women would be solely her own property and
any kind of forceful recapture of the property which belongs to the bride
would make such ownership null and void, and it would be considered a
penal act.
The Dowry Prohibition Act should be amended to give a clear
meaning of Stridhan.
India needs moral policing to strengthen the human rights situation
for women. Often the bride's parents encourage the inhuman torture of
their daughter indirectly by not complaining about dowry harassment to
the police. They accept this as a curse of bearing a daughter.
The Hindu religion and society can boast of having the oldest code
in the world defining property rights for both men and women. But at
the same time, continuous research is needed to upgrade the women's
position as property owners. The ancient law and codes can never
dictate the modern woman's position in the name of religion.
Legal literacy camps for women belonging to all faiths must be
encouraged by the government.
The Vedic texts have referred to married women as Ardhangini69 of
their husband. A broader look at the word Ardhangini would show that
women are not only the "other half of their husbands physically or
mentally, but it also depicts the sense of equality among husband and
wife and equal rights of the Hindu married women over their husband's
interests. The age-old confusion over the concept of the stridhan and
legal position of women were finally settled to a greater extent by the
Hindu Succession (Amended) Act (2005). It has taken nearly five
thousand years to break the myth created by the ancient text Manusmriti,
that Hindu women are dependant on their father as a maiden, dependant
on their husband as a wife and dependent on their son as a mother.
Constant evaluation of the legal principles and interpretation of texts
finally made a woman a right holder equal to her male counterpart. She

female goddess in the forms of Durga, Kali and Chandi.

69. Ardhangini means the other half. In the Sanskrit language it denotes wife.

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663] PROPERTY RIGHTS OF HINDU WOMEN 687

can now demand the right over ancestral property when she is unmarried
or even when she is married; as a wife she has equal rights over her
husband's property and she can have a safer old age with her acquired
property out of partition, inheritance or share.

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