Pramāṇa · Search · About · API

The Position of Women in Hindu Civilisation, from Prehistoric Times to the Present Day c13: Chapter VIII. Proprietary Rights during Coverture

The Position of Women in Hindu Civilisation, from Prehistoric Times to the Present Day c13

Language
English

Chapter VIII. Proprietary Rights during Coverture

c13.2

The study of the evolution of the proprietary rights of women is a very fascinating subject. It has a vital importance to the historian of the woman, for economic independence and prosperity have usually an important bearing on the well-being of a class. The reader is already aware how the general position of women went on deteriorating after the beginning of the Christian era. He will now be surprised to learn that, in spite of this general setback, their proprietary rights were gradually becoming more and more extensive in course of time.

c13.3

In early times proprietary rights of women were recognised very tardily in almost all civilisations. This was the case specially in patriarchal societies. For a long time there was no question of the woman holding any property; she herself was an item in the moveable property of the husband or the patriarch. This was the case among the Teutons. The Frisians used to give their women and children in payment of their taxes to Rome, when they had no other means to discharge their liabilities. At Rome the husband could sell his wife in early times, the right being taken away only at the beginning of the Christian era. For a long time the wife was under the tutelage of her husband and could possess no separate property at all, if she was married according to the orthodox religious rites. Even after the husband's death she did not bcome a *sui jure*, but passed under the tutelage of other male relatives. During the feudal age in Europe, women could no doubt inherit and hold even landed property. This was, however, a nominal right. Women were really pawns in the hands of kings. Land was for military service, which women were incapable of rendering. So the emperor would take immediate steps to marry the daughters or widows of his barons or knights to whomsoever he liked. When in his Spanish campaigns a number of his noblemen died, Charlmaigne immediately married their widows to the barons of his own choice. He was anxious that land should not be under the ownership of those who could not fight in his wars. Whether the widows concerned wanted to marry, and if so, whether they had approved of the proposed new husbands, was a matter which he did not stop to enquire. Women were a sort of vitalised deed of conveyance. They were hardly as important as horses, which were so useful in war, save as living titles to landed property¹.

c13.4

¹ The reader will get more information on the points discussed in this para from George, *Story of Woman* and Müller Lyer, *Family*.

c13.5

In India too in very early times women were regarded as chattel. They were given away as gifts in the Vedic age, as would appear from several hymns, which glorify the gifts of generous donors². In the Mahābhārata we find Dhṛitarāshṭra proposing to give a hundred female slaves to Kṛishṇa as a token of his regard for him¹ (V, 86, 8). The husband was deemed to have a natural proprietary right in the wife. It is on this undisputed assumption that Dharma proceeds to stake his wife Draupadī in the gambling hall. It may be further pointed out that even this proud and haughty queen does not think of disputing this right of her husband, when she is dragged to the court of Dhṛitarāshṭra. She does not at all maintain that she has not lost her freedom because the husband has no right to sell or stake away his wife. She only wants to know whether her husband was a free man, when he had staked her². In the Ṛigveda also in the famous gambling hymn, we find the wife being staked away by the husband (X, 34).

c13.6

² **उप मा श्यावा स्वनयेन दत्ता वधूमन्तो दश रथासोज्नुः।** I, 126, 3.

c13.7

¹ दासीनाम्प्रजातानां शुभानां रुक्मवर्चसाम् ।\ शतमस्मै प्रदास्यामि दासानांमापे तावताम् ॥ V. 86, 8.

c13.8

² किंतु पूर्वं पराजैषीरात्मानमथवा नु माम् । II, 89, 19.

c13.9

The Mahābhārata, however, states that the assembly began to hiss loudly when Dharma proceeded to stake his wife³. It would therefore appear that though the husband's proprietary right in the wife was theoretically recognised, its actual excercise met with a stern social disapprobation. It was felt that only intoxicated or inhuman persons could think of excercising it⁴. In the Vedic age also, it was only a confirmed gambler who would sometimes stake his wife. In cultured circles the wife was regarded as the co-owner of the family property along with her husband, as the term *dampatī* would show.

c13.10

³ एवमुक्ते तु वचने धर्मराजेन धीमता ।\ धिग्धिगित्युेव वृद्धानां सभ्यानां निसृता गिरः ॥ II, 86, 40.

c13.11

⁴ को हि दीव्येद्भार्यया राजपुत्रो मूढो राज्ञा द्यूतमदेन मत्तः । II, 89, 17.

c13.12

Apart from the rather exceptional cases, referred to above, which really reflect the state of society in prehistoric times, there is no evidence of women being regarded as chattel in ancient India. The Dharmaśāstra writers of the first and the second centuries A. D., leave no scope for an enterprising husband to utilise the results of his research in prehistoric social customs and institutions to the disadvantage of his consort; they have definitely declared that women and children cannot be objects of gift or sale under any circumstances¹.

c13.13

¹ स्वं कुटुंबावरोधेन देयं दारसुतादृते । *Yaj.*, II, 175

c13.14

Let us now consider the proprietary rights of the wife, *vis-a-vis* her husband. The theory approved by the Hindu culture as early as the Vedic age was that the husband and the wife should be the joint owners of the household and its property. The husband was required to take a solemn vow at the marriage that he would never transgress the rights and interests of his wife in economic matters.

c13.15

The theory of the joint ownership of the couple should have led to a number of important corollaries, and fortified the position of the wife against an unreasonable or vicious husband. This, however, does not seem to have taken place. One Dharmasūtra writer concludes from the joint ownership theory that the wife is entitled to incur normal expenditure on the household during her husband's absence². Another concedes to her a third share of the husband's property, in case she was superseded unjustly¹. But no further deductions were drawn.

c13.16

² पाणिग्रहणाद्धि सहत्वं कर्मसु.....द्रव्यपरिग्रहेषु च । न हि भर्तु-विप्रवासे नैमित्तिके दाने स्तेयमुपदिशंति । *A.D.S.*, II,6,14,16-20.

c13.17

¹ > आज्ञासंपादिनीं दक्षां वीरसूं प्रियवादिनीम् ।

c13.18

The theory of joint ownership helped the wife only in securing a number of minor rights and privileges. It invested her with an absolute right of maintenance against the husband. A verse attributed to Manu, but not to be found in the extant *Manusmṛiti*, goes to the extent of declaring that the husband ought to maintain the wife, even if there were no family property. He may have recourse even to questionable means, if there was no other alternative². The husband could not proceed on a journey without making proper provision for her maintenance and the household expenditure. If he married a second wife, the first one had to be properly provided for. If the wife had the misfortune of being assaulted, the liability of the husband to maintain her did not come to an end³. Early jurists no doubt held it improper for a wife to vindicate her claims against the husband in a court of law; later jurists like Vijñāneśvara, however, differed from this view and maintained that if a husband abandons a virtuous wife, or wilfully misappropriates her property and refuses to restore it, she

c13.19

² > वृद्धौ च माता पितरौ साध्वी भार्या सुतः शिशुः ।

c13.20

³ > स्वयं विप्रतिपन्ना वा यदि वा विप्रवासिता ।

c13.21

त्यजन्चाप्यस्तृतीयांशमद्रव्यो भरणं स्त्रियाः ॥ *Yāj*., II, 76.

c13.22

अप्यकार्यशतं कृत्वा भर्तव्या मनुरब्रवीत् ॥

c13.23

बलात्का रपभुक्ता वा चार स्तगतापि वा ॥
न त्याज्या दूषिता नारी ना स्यास्त्यागो विधीयते ॥
*V. D. S.*, 28, 2, ff.

c13.24

can move a court of law to get her grievances redressed¹.

c13.25

¹ यत्तु 'गुरोः शिष्ये पितुः पुत्रे दंपत्योः स्वामिभृत्ययोः । विरोधे तु मिथस्तेषां व्यवहारो न सिध्यति' तदपि अत्यंतव्यवहारनिषेधपरं न भवति । यदि दुर्भिक्षादिव्यतिरेकेण स्त्रीधनं व्ययीकृत्य विद्यमानधनोऽपि याच्यमानो न ददाति तदा दंपत्योरिष्यत एव व्यवहारः । *Mit. on Yāj.*, II, 32.

c13.26

The theory of the joint ownership of the couple secured only the above minor advantages to the wife. It was not pressed to its logical conclusion in order to secure her an absolute equality with the husband in the ownership of the family property. Hindu jurists were not prepared to entertain such a claim on behalf of the wife. Only one amongst them, Yājñavalkya, permits her to claim a one third share, if she is unjustly superseded². But this claim does not appear to have been either actually conceded in practice by society, or sanctioned by other jurists. The wife had no right to incur any substantial expenditure during her coverture without her husband's permission. Even the *Mitāksharā* expressly declares that she can spend out of the family property only with the concurrence of the husband³. Hindu jurists have further failed to protect the wife's right to a maintenance or a share; they do not invalidate a sale or a mortgage of the family property by the husband, if it was prejudicial even to her right of maintenance. They would have regarded such a procedure as immoral and reprehensible; they have however failed to make it invalid *ab initio*.

c13.27

² See *ante*, p. 256 n. 1.

c13.28

³ तस्माद्भर्तुरिच्छया भार्याया अपि द्रव्यविभागो भवत्येव न स्वेच्छया।। *Ibid on Yāj.*, II, 52.

c13.29

General circumstances in society were very unfavourable to the theory of the joint ownership being utilised to invest the wife with the above powers and rights. Landed property was for a long time being owned either by village communities or by large joint families. Individual ownership was but slow in coming into general recognition even in the case of males. By the time individual coparceners could assert their individual rights in the estate of the family, the husband had come to be deified; so it became very difficult for jurists to invest the wife with any substantial rights as against the husband. The joint ownership of the husband and the wife thus practically remained a legal fiction. In effect the husband was the sole owner of the family property and the wife had no legal remedy, if he proceeded to squander it and defeat her right to a maintenance or a share. The modern law courts also have not come forward to afford any protection to the wife in such cases. It is only in Portugese India, where the Code Napoleon prevails, that the consent of the wife is a condition precedent to any valid disposal of the family property by the husband. It is now high time that the Indian Legislature should proceed to amend the Hindu Law, and invest the wife with full powers over her own share of the family estate, rendering its sale without her express consent illegal. The old Vedic theory of the joint ownership of the husband and the wife will fully justify such a legislation.

c13.30

It was only with reference to immoveable property that Hindu society was for a long time unwilling to invest the wife with full or exclusive ownership.

c13.31

The reasons for this have been already indicated. As far as moveable property like ornaments, jewelry, costly apparel, etc. was concerned, women’s right to own it was recognised at a very early date. All this property went under the category of Strīdhana or Women’s Special Property. The story of its development is a very interesting chapter in the history of Hindu law.

c13.32

It is very difficult to define Strīdhana precisely; Hindu jurists only proceed to describe its different varieties. Suffice it to state that the term is used to denote property over which women are allowed to have their own more or less absolute sway in normal times.

c13.33

In its origin, Strīdhana was vitally connected with the custom of the bride-price (*śulka*). We have already shown (*ante*, pp. 46–9) that this custom is of hoary antiquity, and that it continued to persist for a long time in spite of its vehement denunciation. The custom was no doubt a bad one, but it had one relieving feature. It helped the development of Strīdhana. Owing to the affection, which parents naturally felt for their daughters, they used to return usually a part, and sometimes even the whole, of the bride-price to the bride, to be enjoyed by her as her separate estate during her own life. If she died leaving some children behind, her father would not object to the property devolving upon them, as they were also his own grand-children. If, however, the daughter left no issue behind, her father would claim the property back from the son-in-law, who was expected to contract a fresh marriage in due course. Smṛiti writers expressly declare that the Strīdhana of a woman, married according to the Āsura form of marriage, where bride-price has to be paid by the husband, would revert to her parents or brothers, if she left behind no issues¹. This rule makes it quite clear that one of the ingredients of Strīdhana was a portion of the bride-price, returned to the bride by her father. The husband therefore had to recognise his bride's ownership in it. The bride used to spend this gift usually in the purchase of ornaments for herself and utensils and furniture for her new household².

c13.34

¹ अप्रजस्त्रीधनं भर्तुर्ब्राह्मादिषु चतुर्ष्वपि । दुहितॄणां प्रसूता चेच्छेषेषु पितृगामि तत् ॥ Yaj., II, 145.

c13.35

² The Gerade of the Saxons, which corresponded to Strīdhana, also usually consisted of women's dress, ornaments and household furniture.

c13.36

Even when no bride-price was paid, the bride used to receive some wedding gifts in the Vedic age. *Pāriṇāhya* was the term used to denote them, and Vedic texts declare that the wife was to be their owner³. Gifts given on such occasions usually consisted of ornaments and clothes that could be worn by women alone. Men could have utilised them only by sale. In Hindu society there is, however, a deep prejudice against this procedure in connection with ornaments and clothes worn on auspicious occasions. Women therefore were naturally allowed to own these gifts. Whether the Vedic age allowed them to dispose of these articles without their husbands' consent, we do not know. Probably such a procedure was not permitted.

c13.37

³ पत्नी वै पारिणा ह्यस्य ईशे । *T.S.*, VI, 2, 1, 1.

c13.38

In course of time the scope of Strīdhana was enlarged. Gifts given by the husband even subsequent to the marriage were included in it. These were often extensive and would sometimes include even the whole of the husband's property. Women came to be gradually invested with full powers over the property thus conveyed to them. At the time of his impending retirement, Yājñavalkya proceeds to divide his whole property equally between his two wives. Under similar circumstances Dharmadinnā was informed by her husband that she could take away as much of his property as she liked, and retire to her parents' house (*Thg.*, 12). In both these cases the clear intention was to convey full rights of ownership to the wife over the whole of the family property.

c13.39

That women could excersise absolute control over such gifts, which constituted their Strīdhana, was a principle that came to be recognised fairly early in Hindu society. There were no doubt archaic texts which declared that wives, like sons and slaves, could own no property; whatever they acquired would be the property of their husbands¹. Commentators, however, boldly declared that these texts had no application to the present age. It is interesting to note that even writers like Baudhāyana, who refuse to recognise the wife's right of inheritance, freely concede her title to Strīdhana². Manu also does the same, though he does not recognise the widow as an heir to her husband. It is needless to add that writers like Vishṇu and Yājñavalkya, who recognise the widow as an heir, naturally concede proprietary rights to women over Strīdhana. All later writers do the same.

c13.40

¹ भार्या पुत्रश्च दासश्च त्रय एवाधनाः स्मृताः । यत्ते समधिगच्छन्ति यस्य ते तस्य तद्धनम् ॥ *Manu*, VIII, 416.

c13.41

² मातुरलंकारं दुहितरः सांप्रदायिकं भजेरन्नन्यद्वा ॥ *B.D.S.*, II, 2, 44.

c13.42

The Vedic literature is silent about the precise scope of Strīdhana. We get an idea of its scope only from the Dharmaśāstra works. Manu is the earliest writer to give a comprehensive description of Strīdhana. According to him it consists of six varieties; (1-3) gifts given by the father, the mother and the brother at any time; (4) gifts of affection given by the husband subsequent to the marriage; (5-6) and presents given by anybody either at the time of the marriage, or at the time when the bride is taken to her new home¹. Gifts under most of these categories would consist usually of ornaments and costly apparel, and Manu is very vehement in denouncing those who would deprive women of these presents after their husbands' death². Vishṇu (XVII, 18) adds three more categories to Strīdhana, (1) gifts given by the son (2) or any other relation; (3) and the compensation given to the wife at the time of her supersession on the occasion of her husband's second marriage. The above distinctions in the different varieties of Strīdhana are not of great importance; suffice it to say that it mainly consisted of gifts given by relations, either at the time of the marriage or subsequent to it.

c13.43

¹ अध्यग्न्यध्यावहनिकं दत्तं च प्रीतिकर्मणि । भ्रातृमातृपितृप्राप्तं षड्विधं स्त्रीधनं स्मृतम्।। IX, 194.

c13.44

² स्त्रीधनानि तु ये मोहादुपजीवन्ति मानवाः । नारीयानानि वस्त्रं वा ते पापा यान्त्यधोगतिम् ॥ III, 52. पत्यौ जीवति यः स्त्रीभिरलंकारो धृतो भवेत् । न तं भजेरन्दायादा भजमानाः पतंति ते ॥ IX, 200.

c13.45

It is interesting to note that gifts given by non-relatives subsequent to the marriage, and the wages earned by the wife for her work are not included in Strīdhana¹. The exclusion of these two items is not difficult to understand. It was not advisable to encourage women to solicit presents from outsiders, for it would have led to serious complications in families presided over by jealous husbands. Inclusion of wages in Strīdhana would also have been unfair. They were usually earned only by the women of the working classes, whose budgets can never be balanced even today without including the earnings of women and children. Under these circumstances it would have been manifestly unfair to credit the wife's wages to her Strīdhana and call upon the husband to shoulder the entire burden of the' family. Hindu jurists felt that the earnings of both the husband and the wife should be dedicated to the needs of the family. They have, however, failed to provide relief to the wife in case her husband were to squander his own earnings and compell the wife to support the family by her own wages. The law is still defective on this point and requires to be amended.

c13.46

¹ **प्राप्तं शिल्पैस्तु यद्वित्तं प्रीत्या चैव यदन्यतः।** **भर्तुः स्वाम्यं तथा तत्र शेषं तु स्त्रीधनं स्मृतम् ।।** *Kātyāyanasāroddhāra*, v. 736.

c13.47

From about the 7th century a. d., we find a general tendency to enlarge the scope of Strīdhana. Devala is seen including maintenance and accidental gains under it¹. But it was left to Vijñāneśvara to propose most extensive additions to the scope of Strīdhana. Taking advantage of the word *ādyam* ‘etcetera’ which Yājñavalkya has used at the end of the enumeration of the usual six varieties of Strīdhana, this commentator declares that the expression in question is used in order to include the property acquired by inheritance, purchase, partition, chance, and adverse possession². This amplified definition of Strīdhana is so comprehensive that it will include every type of property in the possession of a woman, howsoever it may have been acquired by her.

c13.48

¹ वृत्तिराभरणं शुल्कं लाभश्च स्त्रीधनं भवेत् ॥

c13.49

² आद्यशब्देन रिक्थक्रयसंविभागपरिग्रहाधिगमप्राप्तमेतत्स्त्रीधनं मन्वादिभिरुक्तम् ॥ On *Yāj*., II, 143.

c13.50

There can be no doubt that the original verses in *Yājñavalkyasmṛiti*, which are quoted in the foot note below,³ did not contemplate the inclusion of any of the categories mentioned by Vijñāneśvara within the scope of Strīdhana. It is even doubtful whether the crucical term *ādyam*, which is Vijñāneśvara’s sole justification for the amplification of the definition of Strīdhana, really occurred in the original verse of Yājñavalkya. Jīmūtavāhana contends that the correct reading is ‘*Ādhivedanikaṁ chaiva*’ and not ‘*Ādhivedanikādyaṁ cha*.’ The word ‘*ādyam*’ is generally used in Sanskrit at the end of an enumeration, so it should have come not after *ādhivedanika*’ in v. 143, but after ‘*anvādheyakaṁ*’ in v. 144, which is the last specific category of Strīdhana mentioned by Yājñavalkya. Aparārka, who is one of the earliest commentators of Yājñavalkya, also reads *chaiva*, which seems to be the genuine reading of verse.

c13.51

³ पितृमातृपतिभ्रातृदत्तमध्यग्न्युपागतम् । आधिवेदनिकाद्यं च स्त्रीधनं परिकीर्तितम् ॥ बन्धुदत्तं तथा शुल्कमन्वाधेय कमेव च ॥ II, 143-144.

c13.52

But even supposing that the reading of Vijñāneśvara is the genuine one, we have to concede that Yājñavalkya could hardly have intended to include items like inheritance and share at partition under the term 'etcetera.' These were very important items, which not only increased extensively the woman's rights, but circumscribed those of the coparceners. Yājñavalkya would surely have specifically and prominently mentioned them in his description of Strīdhana, instead of smuggling them surreptitiously under the term 'etcetera.' The word etcetera, if at all used by him, must have been obviously intended to include items like bride-price, gifts from relations, and presents received after the marriage, which are mentioned in the immediately following line.

c13.53

The above discussion will show that Vijñāneśvara has used one of the usual devices of Sanskrit commentators in order to enlarge the scope of Strīdhana. The credit of liberalising the law of Strīdhana therefore belongs to him and not to Yājñavalkya.

c13.54

Hindu jurists of medieval times are divided as to the acceptability of the extended definition of Strīdhana, as propounded by Vijñāneśvara. Majority of them, however, concur with him; Aparārka, Nanda Paṇḍita, Mitramiśra and Kamalākara are prominent among them. Some, however, have refused to recognise his interpretation; Viśvarūpa, Devaṇabhaṭṭa and Jīmūtavāhana are the chief among them.

c13.55

This clevage in the opinions of the jurists shows that society was following no uniform practice in the matter of recognising the scope of Strīdhana. There are, however, no actual recorded cases to show how far the items mentioned by Vijñāneśvara were actually included within the scope of Strīdhana in medieval times. The fact, however, that a large number of his successors uphold his opinion, would show that society was to a great extent following his lead.

c13.56

Let us now consider the extent of the power which women possessed over their Strīdhana. We have no discussion about this point in early works. Vedic literature, for instance, is silent as to whether the wife could dispose of her property (Pāriṇāhaya) without her husband's permission. As secular law and its literature developed in course of time, the question began to be discussed by jurists. Early Smṛiti writers were not prepared to invest the woman with full powers over her Strīdhana. Manu, for instance, declares that a wife ought not to alienate even her own property without her husband's sanction¹. In course of time it was felt that this prohibition was not equitable. With a view to be fair to all the parties, later jurists divided Strīdhana into two categories, *saudāyika* and *asaudāyika*. Free gifts of affection given by relations like the father, the mother, or the husband were included in the first category² and were declared to be under the complete control of women¹. The rest of the Strīdhana was *asaudāyika* Strīdhana; women could not alienate it, but only enjoy its usufruct during their life time.

c13.57

¹ न निर्हारं स्त्रियः कुर्युः कुटुम्बाद्बहुमध्यगात् । स्वकादपि हि वित्ताद्धि स्वस्य भर्तुरनाज्ञया ॥ IX, 299.

c13.58

² ऊढया कन्यया वापि पत्युः पितृगृहेऽथवा । भ्रातुः सकाशात्पित्रोर्वा लब्धं सौदायिकं स्मृतम् ॥ Kātyāyana in *Dāyabhāga*..

c13.59

¹ सौदायिकं धनं प्राप्य स्त्रीणां स्वातंत्र्यमिष्यते ।\ यस्मात्तदानृशंस्यार्थं तैर्दत्तं तत्प्रयोजनम् ॥ Kātyāyana in *Dāyabhāga*.

c13.60

Originally Strīdhana consisted usually of ornaments and costly clothes. In course of time landed property also began to be conveyed to women as Strīdhana property. Jurists of the 7th and the 8th centuries discuss the question as to whether women possess full powers of ownership over the immoveable property so acquired. As may be expected, opinion was divided on the point. Kātyāyana holds that women possess the power of sale and mortgage even over the immoveable property included in their Strīdhana². Nārada differs from him and declares that women can dispose of only the moveables in their Strīdhana³. Medieval writers generally concur with this view⁴.

c13.61

² सौदायिके सदा स्त्रीणां स्वातंत्र्यं परिकीर्तितम् ।\ विक्रये चैव दाने च यथेच्छं स्थावरेष्वपि ॥\ Kātyāyana in *Dāyabhāga*.

c13.62

³ भर्त्रा प्रीतेन यद्दत्तं स्त्रियै तस्मिन्मृतेऽपि तत् ।\ सा यथाकाममश्नीयाद्दद्याद्वा स्थावरादृते ॥\ Quoted in *Vyavahāramayūkha*, p 97.

c13.63

⁴ एवं च सौदायिके स्थावरेतरप्रीतिदत्ते च स्त्रीणां स्वातंत्र्यमन्यत्र तु स्त्रीधनेऽपि स्वातंत्र्यमिति मन्तव्यम् ॥ *S.C.V.*, p. 656.

c13.64

The reason why women were not granted full rights over the landed property included in their Strīdhana are not difficult to understand. In the vast majority of cases, it used to be a gift from the husband, and so it originally belonged to the property of the joint family. It was not in the interest of the latter to allow a coparcener to fritter away its resources by allowing him to make an unconditional gift to his wife from the family property. The gifts were regarded as valid only during the life of the donees. The latter were not allowed to alienate them to any of their cognatic relations. Similar considerations operated when the property in question was received by the woman from her father. The latter's agnatic relations were not prepared to tolerate his conduct, if he proceeded to permanently alienate a portion of the immoveable property of the family. Patriarchal joint families in ancient times were too much attached to their ancestral possessions to allow their transfer to a cognatic relation.

c13.65

The question of the power of alienation of the Strīdhana property was approached by the Bengal school of the medieval times on different lines. Its famous exponent Jīmūtavāhana felt that it was illogical to increase the scope of Strīdhana, and then to curtail women's powers of disposal over it. He argued that it would be proper to describe only that much property as Strīdhana, which women are allowed to dispose of according to their own free will. He therefore limited the scope of Strīdhana by refusing to recognise its amplified definition, as given in the Mitāksharā school, but conceded to women full proprietary rights over its time-honoured six varieties.

c13.66

Did Vijñāneśvara intend to invest women with full proprietary rights over the whole of his amplified Strīdhana? It is a great pity that he should not have specifically discussed this important question. We are therefore driven to mere inferences. It is possible to argue that there is nothing improbable in Vijñāneśvara having intended to give full rights to women even over the landed property acquired by inheritance or partition, and included in their Strīdhana. Women will get property by inheritance, usually when their husbands had separated from the joint family and died without leaving any male issues. The husband’s action in effecting a separation from the joint family had put an end to its interest in his separated share; Vijñāneśvara may well have felt that the widow should be allowed to have full powers over it. The most probable course, which the widow will usually adopt in such cases, would be to gift her Strīdhana to her daughters. These were also the next heirs, even if the property was not regarded as her Strīdhana. Her husband had already effected separation from the joint family, and so after the death of the widow, daughters were the next normal heirs. So there was no reason for Vijñāneśvara to curtail the powers of women over the property they had acquired by inheritance. As far as the share at partition is concerned, it must be noted that a woman could get it only when her husband or sons had themselves proceeded to divide the family property. When a share was given to the wife by the husband or to the mother by the sons, it was clearly intended that it was for her special and exclusive use. Society would have regarded it as an immoral procedure, if sons had proceeded to put fetters on the power of their aged and revered mother with reference to the share, which they had freely and voluntarily given to her. It is also significant that Vijñāneśvara, while concluding his discussion about the widow's right of inheritance, introduces a number of carefully worded qualifying clauses; but none of them even suggests that she was to be a limited heir¹.

c13.67

¹ तस्मादपुत्रस्य स्वर्ग्रातस्य विभक्तस्यासंसृष्टिनो धनं परिणीता स्त्री संयता सकलमेव गृह्णाति ।" At *Yāj.*, II, 136.

c13.68

It is however very doubtful whether Vijñāneśvara really intended to invest the widow with the right of disposal over the landed property included in her Strīdhana, but acquired by inheritance or partition. He was not prepared to concede even to the male manager of the joint family the full power to alienate the immoveable property that he may have himself acquired². Could he then have ever dreamt of investing women with a right, which he was not prepared to grant even to the male manager? His silence on the point may be simply due to the fact that he tacitly accepted the general principle that women are limited heirs, a principle which was approved even by Bṛihaspati, the most well known advocate of women's rights. Radical jurists, who advance new theories to popularise a much needed reform in a conservative society, do not always accept all the deductions that can be legitimately drawn from their own premises. The Privy Council was therefore right when it declared that the property acquired through inheritance by a woman, though included in her Strīdhana, cannot be disposed of by her, and will revert back to the next heirs of her husband, instead of devolving upon the peculiar heirs of Strīdhana in its narrower sense. How far the law should now be changed in this matter will be discussed in the next chapter, where the question of the right of inheritance of the widow will be considered.

c13.69

² स्थावरे तु स्वार्जिते पित्रादिप्राप्ते च पुत्रादिपारतन्त्र्यमेव ।

c13.70

We have seen above that there was a school of jurists which was opposed to the recognition of the amplified definition of Strīdhana. The main reason for this was not its hostility to the rights of women, but the peculiar mode of devolution of the Strīdhana property. If this property had devolved upon the next heirs of the husband, it is quite probable that all the jurists would have agreed to the amplification of Strīdhana proposed by Vijñāneśvara. As will be soon shown, Stridhana however used to devolve usually either upon female heirs or upon the parents or brothers of women. So the Strīdhana property usually went out of the husband's family. The joint family institution was naturally opposed to a course, which was calculated to diminish its resources.

c13.71

Hindu jurists were, however, unanimous in giving to women full proprietary rights over the Strīdhana in its narrower sense. They have expressly declared that the husband has no right to lay his hands upon it. If he was compelled to utilise it for his own purposes, he had to return it with interest¹. If, however, the family was in great distress, the husband could utilise his wife's Strīdhana to tide over the difficulty. No other member of the family, however, could do so. Jurists differ as to whether the Strīdhana utilised by the husband to meet abnormal times was to be returned back to the wife. Yājñavalkya thinks that it need not be repaid¹. Kātyāyana holds that if the husband had promised to return it, he ought to keep his word². An agreement to constitute Strīdhana made by the husband was binding on his estate; if he died without completing it, his next heirs were required to carry it out³.

c13.72

¹ वृथादाने च भोगे च स्त्रियै दद्यात्सवृद्धि कम् ।\ Devala, quoted in *Vyavahāramayūkha*, p. 98.

c13.73

¹ दुर्भिक्षे धर्मकार्ये च व्याधौ सम्प्रतिरोधके । गृहीतं स्त्रीधनं भर्त्ता न स्त्रियै दातुमर्हति ॥ *Yāj.*, II, 147. The *Mitāksharā* explains:— **भर्तृव्यतिरेकेण जीवन्त्या धनं न केनापि दायादेन ग्रहीतव्यम् ।**

c13.74

² व्याधितं व्यसनस्थं च धनिकैर्वापपीडितम् । ज्ञात्वा निसृष्टं यत्प्रीत्या दद्यादात्मेच्छया त सः ॥ Quoted in *SCV.*, p. 659.

c13.75

³ भर्त्रा प्रतिश्रुतं देयमृणवत्स्त्रीधनं सुतैः । Kātyāyana in *SCV.*, pp. 658-9.

c13.76

It is only rarely that we come across a discussion of the effects of unchastity on the right to Strīdhana. Devala has discussed this topic and declared that an unchaste woman forfeits her title to Strīdhana⁴. This seems to have been the general view. British courts have, however, refused to follow it and recognised women’s title to Strīdhana inspite of her unchastity.

c13.77

⁴ अपकारक्रियायुक्ता ’निर्मर्यादार्थनाशिका । व्यभिचाररता या च स्त्रीधनं न च सार्हति ॥ Quoted in *VMV.*, p. 98.

c13.78

The scheme of the inheritance of Strīdhana is a very complicated one and it has many provincial variations. We need not discuss the details of the problem here, as they wouldi nterest only the professional lawyer; it is sufficient for our purpose to refer to general principles. If a woman dies without leaving any issues, and if her marriage had taken place by any of the unapproved forms of marriage like the Āsura, Rākshasa, etc., her Strīdhana reverts to her parents or brothers¹. The reason for this rule is the general presumption that the Strīdhana in such cases must have mainly consisted of the bride-price, which was voluntarily returned by the father to his daughter for her use during her coverture. If she dies leaving some issues behind, her Strīdhana would devolve upon them. Her father or brother would not naturally mind allowing the property to be inherited by them; but if she died issueless, the Strīdhana or the bride-price was demanded back. The law at present presumes that all marriages take place by the approved forms, and so this rule of inheritance of Strīdhana is only of historical interest. Strīdhana now reverts to the husband, if the wife dies without issues.

c13.79

¹ अप्रजस्त्रीधनं भर्तुर्ब्राह्मादिषु चतुर्ष्वपि । दुहितॄणां प्रसूता चेच्छेषेषु पितृगामि तत् ॥ Yāj., II, 145.

c13.80

A vast majority of jurists from early times lay down that Strīdhana should devolve upon daughters. It usually consisted of ornaments and clothes, which could be used by women alone; so it was deemed to be in the fitness of things that they should be inherited by daughters. It is true that if they had devolved upon sons, their wives could very well have utilised the articles concerned. But women feel a greater affection for their daughters than for their daughters-in-law, and this circumstance determined the line of the succession. Among daughters, unmarried ones were to be preferred to married ones, and among the latter, the first claim was of those who were not well-to-do¹. This devolution is governed just by those principles, which would appeal to an impartial and affectionate mother. In some schools, if there were no daughters living, the Strīdhana devolved upon daughter's daughters. Such cases, however, were few in practice.

c13.81

¹ तत्र चाढभूतासमवाये अनूढैव गृह्णाति । तदभावे परिणीता । तत्रापि प्रतिष्ठिताऽप्रतिष्ठितासमवायेऽप्रतिष्ठिता गृह्णाति । तदभावे प्रतिष्ठिता । *Mitāksharā* on *Yāj.*, I, 145.

c13.82

In patriarchal societies there is a general prejudice against property passing to female heirs; so this principle of allowing Strīdhana to devolve on daughters did not appeal to a large section of Hindu community. As long as Strīdhana consisted of a few gifts given at the time of the marriage, its devolution upon daughters did not meet with much opposition. In course of time, however, gifts given by the husband during the married life came to be included in Strīdhana. The motive of the husband was no doubt to provide the wife against a rainy day, but he rarely intended to do so at the cost of his sons. His usual expectation was that the property should pass on to his sons after the death of his wife. Some jurists therefore felt that the most equitable course was to allow both the sons and the daughters to inherit the Strīdhana of their mother. This course is recommended by Manu²; we may well presume that he is very probably referring to the Strīdhana property given by the husband, though he does not say so in so many words. The Bengal, Mithilā, Madras and Gujarat schools of the Hindu Law rely upon the above view of Manu, when they lay down that Strīdhana consisting of gifts received from the husband subsequent to the marriage should devolve equally upon daughters and sons¹.

c13.83

² जनन्यां संस्थितायां तु समं सर्वे सहोदराः । भजेरन्मातृकं रिक्थं जनन्यश्च सनाभयः ॥ IX, 192.

c13.84

¹ *Dāyabhāga*, IV, 9-12; *Mayūkha*, IX; *SCV.*, p. 656.

c13.85

There are many other minor details about the inheritance of Strīdhana. As they do not throw any light on the position of women, they are of interest only to the practising lawyer. We therefore need not discuss them here.

c13.86

The above survey of the history of Strīdhana shows that it was recognised very early in the history of Hindu civilisation. Maxims of prehistoric times declaring that women can hold no property independently of their husbands were no doubt included in law books down to the 5th century A. D; but they were not allowed to affect the development of Strīdhana. Its scope went on gradually increasing, till eventually, in some schools at least, it came to include all the varieties of property that a woman may happen to own. It is probable that the jurists, who included in Strīdhana even the property acquired by inheritance and partition, did not intend to invest women with the right of its alienation. Nevertheless it is indisputable that they allowed them at least a life estate in it; this concession was indeed a remarkable one for the age. Over Strīdhana in its narrower sense women possessed absolute ownership; they could dispose of it at their own will, and their husbands had no right over it. It is true that in times of exceptional difficulties Strīdhana could be used for the general needs of the family, but that was a liability that could not be equitably avoided. It is worth noting that some jurists have laid down that Strīdhana spent even on such occasions ought to be refunded to women on the return of prosperity to the family.

c13.87

The survey of the scope and the development of Strīdhana discloses that a considerable regard was shown to the economic needs of the weaker sex. The law, as it was developed by Vijñāneśvara, was no doubt remarkably liberal for his age, for it included all property, howsoever acquired, under the category of Strīdhana. It is true that Vijñāneśvara probably did not intend to give women the full right of disposal over the immoveable property, acquired through inheritance or partition. Women, however, had no right to complain in the matter, for male coparceners also had no such unrestricted right even over their own self acquired property.

c13.88

This history of Strīdhana is undoubtedly a proud and glorious chapter in the story of Hindu civilisation. It discloses a constant and continuous tendency in Hindu society to increase the scope of Strīdhana, ususally at the expense of men's rights. Women were also invested with the right of its independent disposal; even the husband could not touch it save under exceptional circumstances. This state of affairs compares very favourably with that in England, where down to 1870 A. D., marriage suspended the very legal existence of the wife, whose entire property, whether inherited or self-acquired, automatically passed under the husband's control at the very moment of her marriage, unless secured by a previous settlement.

c13.89

Only a few words are necessary in connection with the future development of the Strīdhana law. All the categories included in Strīdhana by Hindu jurists have been recognised by modern courts. They however hold that the property, which the widow inherits from her husband, is not Strīdhana in the technical sense, and that she cannot therefore dispose of it at her own free will. How far the law should be changed in this respect will be considered in the next chapter, where the widow's right of inheritance will be discussed in detail.

c13.90

Smṛitis have laid down that any income, which a wife will acquire by her own exertions, will not be her Strīdhana, but will be merged in the general income of the family. We have already shown above (*ante*, p. 263) how this apparently unreasonable rule came to be laid down. Circumstances have, however, changed now. It is but fair to admit that what an educated wife earns as a teacher, or a professor, or a doctor, or an uneducated wife as a field labourer or a factory worker, should be primarily regarded as her own property. The husband should have no right over it. It should be left entirely to the wife, as to what portion of her earnings she would devote to the general family expenditure. In actual practice it would be found that a woman factory worker, for instance, will spend a lesser amount on herself than her husband would do, out of the wages they receive from their employer.

c13.91

In spite of the specious theory of the joint ownership, the husband is usually the *de facto* controller of the family purse. The present age is an individualistic one and the modern wife, whether educated or uneducated, often feels that it should not be necessary for her to get the sanction of her husband for every little expenditure that she may have to incur on her behalf. In order to get over the embarrassing situations often arising on such occasions, she often feels that it would have been much better if she had a share in her father’s property, the income of which she could have spent at her own free will. There are, however, several serious difficulties in the way of giving the daughter a share in the patrimony, as will be shown in the next chapter (pp. 293-6). It has, however, to be admitted that owing to inherited traditions, the husband is often inclined to assume a patronising air when sanctioning any expenditure for the wife, which is not relished by him. It has further to be recognised that whether in the west or in the east, there is not yet a proper appreciation of the unpaid work for the household, which the wife ungrudgingly does for the common welfare of the family. Gifts from the husband form an important item in the Strīdhana as envisaged by Hindu jurists, and its scope went on gradually increasing in course of time. The difficulties of the modern sensitive wife, above referred to, will disappear if the law enjoined that a small percentage of the monthly income of the husband shall be given to the wife as her Strīdhana, to be spent by her at her own sweet will, either for her own sake or for the sake of the family. An orientation in the development of Strīdhana on this line is necessary in the modern individualistic age. It will immensely help in increasing the happiness of many a family.

Linked texts (17)