Pramāṇa · Search · About · API

The Position of Women in Hindu Civilisation, from Prehistoric Times to the Present Day c14: Chapter IX. Proprietary Rights: Inheritance and Partition

The Position of Women in Hindu Civilisation, from Prehistoric Times to the Present Day c14

Language
English

Contents

Chapter IX. Proprietary Rights: Inheritance and Partition

c14.2

We shall now continue our story of the development of the proprietary rights of women. We surveyed in the last chapter the position of the wife, *vis-a-vis* her husband, regarding the ownership of the family property, and discussed the evolution of Strīdhana. It was all along a story of gradual but continuous progress. In this chapter we shall discuss the rights of inheritance and partition, which are undoubtedly more important than the right to Strīdhana. As already shown in previous chapters, the angle of vision with which the daughter, the wife and the widow were looked upon varied in different ages. Naturally therefore, the development of their rights of inheritance and partition proceeded on different lines. It would be therefore convenient to discuss it separately. The present chapter is therefore divided into four sections; the first three deal with the rights of inheritance of the daughter, the widow and other female relations respectively, and the last one with the rights at partition.

Section I. Daughter's Right of Inheritance

c14.s1.2

A reference has been already made to an old saying that a son, a wife and a slave can own no property independently of the father, the husband and the master (*ante*, p. 261, n.1). The daughter is obviously intended to be included here under the son. In more than one place in the later Vedic literature we come across the view that women have no right of inheritance¹. There is no doubt that in very early times there was a general prejudice against property devolving upon female heirs by inheritance. The daughter formed no exception. She was expected to increase the assets of her father's family by bringing a bride-price. That she should get a share in and decrease the corpus of her father's property would have appeared as very preposterous to men at the dawn of civilisation. The very conception of Stridhana shows that women could normally get property only by way of gifts from their relations at or subsequent to their marriage. There was no possibility of their acquiring any estate either by inheritance or by partition.

c14.s1.3

¹ तस्मात्स्त्रियो निरिन्द्रिया अदायादीः । *T.S.*, VI, 5, 8, 2. ता (स्त्रियः) नात्मनश्चेशत न दायस्य चेशत । *Ś.Br.*, IV, 4, 2, 13.

c14.s1.4

Among the female heirs the brotherless daughter was the first to succeed in establishing her right of inheritance. Circumstances were more favourable for the recognition of her right than that of the wife or the widow. As shown in the last chapter, in the patriarchal atmosphere the wife could advance no claim in competition with her husband. The widow often used to marry or get a son by Niyoga; so the problem of her inheritance did not arise in society in any acute form. We have already shown (*ante*, pp. 11-4) how the daughter in the Vedic age was well educated and possessed full religious privileges. Probably she could not herself offer funeral oblations to the manes, but she could get this done by her son. For all religious purposes the Vedic father could thus regard a daughter to be as good as a son¹. He had a strong prejudice against adopting a son². He therefore preferred property passing to his own daughter in preference to a stranger, who by a religious fiction, was to be regarded as an adoptive son. He could also usually arrange for the perpetuation of his own family by making an agreement with the son-in-law that he should send back his first son to continue his maternal grandfather’s family.

c14.s1.5

¹ It is true that in Dharmaśāstra literature, generally the son of a Putrikā is classed as a substitute for a real son; in early times, however, in some localities the daughter herself and not her son was regarded as the substitute. Thus *V.D.S.*, XVII, 15 states **तृतीयः पुत्रिका** and not **पुत्रिकापुत्रः ।** A similar conclusion can be drawn from *Manu* IX, 134. From the *Rājataraṅgiṇī* we find that Queen Kalyāṇadevī, wife of King Jayāpīḍa, was herself regarded as a Putrikā by her father. A 19th century Pandit of Kashmir had done the same at the time of Dr. Bühler’s visit to that state.

c14.s1.6

² **न हि ग्रभायारणः सुशेवोऽन्योदर्यो मनसा मन्तवा उ ।** *R.V.*, VII, 4, 8.

c14.s1.7

Amongst women, a brotherless daughter was thus the first to get her right of inheritance recognised. This happened as early as the time of the Ṛigveda, for there is no doubt that one of its early hymns refers to a brotherless daughter getting her share of patrimony³. This right of inheritance, however, was not an unmixed blessing. The Vedic age put a high premium on the son, and sons-in-law were often unwilling to allow their sons to revert back to the families of their maternal grandfathers. In the present age there is a keen competition for the hand of a maiden, who is her father’s heir; in the Vedic age she found it not always easy to marry and had often to remain a spinster¹. Even when the father of a brotherless daughter gave an assurance that he did not regard her as a Putrikā and would not claim her son, prospective bridegrooms feared that there may be a mental reservation behind the promise². They would usually refuse to accept the daughter and her estate.

c14.s1.8

³ **अभ्रातेव पुंस एति प्रतीची गर्तारुगिव सनये धनानाम् ।**

c14.s1.9

¹ अमूर्या: सन्ति जामयः सर्वा लोहितवाससः । अभ्रातर इव योषास्तिष्ठन्तु हतवर्त्मानः ॥ *A. V.*, I, 17,1. यास्क comments:—अभ्रातृकाया अनिर्वाह औपमिकः । III, 5.

c14.s1.10

² अभिसंधिमात्रात्पुत्रिकेत्येके । *G.D.S.*, XXIX, 17 ; see also *V.D.S.*, XV,5.

c14.s1.11

There is evidence to show that the right of a brotherless daughter to inherit her father’s estate continued to be recognised down to *c.* 400 B. C. In the *Therīgāthā* we come across an interesting incident. We find a mother trying to dissuade her daughter Sundarī from entering the nunnery by pointing out that she had become a full heir to her father’s extensive estate as the latter had become a monk; she should therefore think of marriage and pleasure, and not of nunnery and penance³. It is clear from this story that a brotherless daughter was recognised as an heir in north-eastern India during the 5th century B. C.

c14.s1.12

³ पिता पब्बजितो तुम्हं भुंज भोगानि सुंदरि त्वं दायादिका कुले । *Thg.*, No. 327.

c14.s1.13

By about 200 B. C. girls ceased to be educated and began to be married at an early age. There was a general deterioration in the status of women, who were gradually losing their religious privileges. All this tended to adversely affect the proprietary rights of the daughter. A school came into existence which opposed her right of inheritance, even when she had no brothers. Āpastamba reluctantly allows a daughter to inherit, but only if there is no agnate, or teacher or pupil to claim the property. This was a very remote possibility, for agnates include relations upto the 7th degree. He would rather prefer the property to be given to a public cause than to a daughter¹. Vasiṣṭha (XV, 7) and Gautama (XXVIII, 21) do not mention the daughter in the list of their heirs. The same is the case with Manu².

c14.s1.14

¹ पुत्राभावे यः प्रत्यासन्नः सपिण्डः । तदभावे आचार्यः । आचार्या-भावे अन्तेवासी हृत्वा धर्मकृत्येषु योजयेत् । दुहिता वा । II, 14, 2-4.

c14.s1.15

² न भ्रातरो न पितरः पुत्रा रिक्थहराः पितुः ।\ पिता हरेदपुत्रस्य रिक्थं भ्रातर एव च ॥ IX, 185.\ Kullūka takes the expression पत्नीदुहितृरहितस्य as understood in the second line in order to support his view that Manu admits the daughter as an heir to her father. There is nothing in the text or context to support this assumption.

c14.s1.16

The majority of jurists, however, wanted to continue the old tradition, and allow the daughter to inherit her patrimony, if there were no son. The Mahābhārata in one place maintains that it would be manifestly unfair and inequitable to allow a subsidiary son to get an inheritance, when there was a daughter to claim it¹. She must at least get half the property, if not the whole². Kauṭilya is also inclined to recognise the daughter as an heir, though perhaps to a smaller share (III, 5).

c14.s1.17

¹ यथैवात्मा तथा पुत्रः पुत्रेण दुहिता समा । तस्यामात्मनि तिष्ठन्त्यां कथमम्यो धनं हरेत् ॥ दुहितान्पत्र जाताद्धि पुत्रादपि विशिष्यते । XIII, 80, 11.

c14.s1.18

² अभ्रातृका समग्राहा चार्डार्हेत्यपरे विदुः । XIII, 88, 22.

c14.s1.19

Yājñavalkya, as may be expected, warmly champions the cause of the daughter and lays down that she should be the next heir after the son and the widow (II, 135). Bṛihaspati tries to disarm the opposition by sweet reasonableness. He points out that the daughter springs from one's own body just like the son; how then can anyone inherit the property, when she is still alive (XXV, 55)? Nārada advances a similar argument. Is not the daughter as much the child of her parents as the son? How then can her right of inheritance be defeated in the absence of the latter³?

c14.s1.20

³ पुत्राभावे तु दुहिता तुल्यसंतानकारणात् । XIII, 50.

c14.s1.21

There was a school of jurists which suggested that a brotherless daughter should be regarded as an heir only till she was married and well settled in life. Kātyāyana was its chief exponent⁴. Hindu society, however, refused to accept this opinion, and the school of Yājñavalkya, Nārada and Bṛihaspati eventually carried the day. From *c.* 500 a.d. nobody has called into question a daughter’s right to inherit her father’s property in the absence of a brother. The right has been recognised also by the British courts.

c14.s1.22

⁴ पत्नी पत्युर्धनहरी या स्यादव्यभिचारिणी । तदभावे तु दुहिता यद्यनूढा भवेत्तदा ॥. Quoted in the *Mitāksharā* at *Yāj.* II, 135-6. See also *SCV.*, p. 687.

c14.s1.23

The estate which a daughter inherits is usually a limited one. It is an absolute one only in the Bombay presidency. Everywhere else she acquires only a life estate. The Bombay custom of allowing the daughter to bcome an absolute owner of her patrimony is at least as old as the 13th century. An inscription of this period, discovered in Kolhapur, refers to the sale of a piece of land by a woman, who had inherited it from her father¹. The Bombay law on this point has been working smoothly and has caused no havoc in the joint family. It is now high time that it should be extended to other provinces as well.

c14.s1.24

¹ सोमेश्वरभट्टस्य दुहितुः सकाशाद्‌गृहीत्वा पूर्वोक्तब्राह्मणेभ्यो दत्तवान्‌ । *E. I.*, Vol. III, p. 215.

Daughters with Brothers

c14.s1.t1.1

Let us now consider the rights of inheritance of a daughter who has brothers. Patriarchal traditions were reigning supreme at the dawn of the Aryan history, and they were not favourable for the recognition of a daughter’s right of inheritance in competition with a brother. From *c.* 300 B. C. marriage became obligatory for girls, and society felt that they should get proprietary rights in the families of their husbands and not in those of their fathers.

c14.s1.t1.2

In the earlier period, however, girls were fairly well educated, and very often they would remain unmarried either by choice or by the force of circumstances. In such cases it was recognised that they ought to be allowed to have a share in their fathers' property. A Vedic stanza expressly refers to an old maiden claiming her share in her patrimony¹. Usually, however, daughters married, and then they did not get any share in their patrimony. A Vedic poet expressly informs the brother that he should not give any share to his sister; she is after all to migrate to a different family².

c14.s1.t1.3

¹ अमाजूरिव पित्रोः सचा सती समानादा सदसस्त्वामिये भगम् । कृधि प्रकेतमुप मास्या भर दद्धि भागं तन्वा येन मामहः ॥ *R: V.*, II, 17, 7.

c14.s1.t1.4

² न जामये तान्वो रिक्थमारैक् चकार गर्भं सनितुर्निदानम् । *R. V.*, III, 31, 2.

c14.s1.t1.5

It has been argued that there was a school of jurists, no doubt representing a small minority, which favoured the recognition of the right of inheritance of the danghter along with the son as early as *c.* 500 B. C. The only evidence for this view is a passage in the *Nirukta*, where arguments are undoubtedly advanced to support the daughter's claim. The passage in question is, however, a clear interpolation. We may nevertheless examine here the arguments advanced in it. We find that. the champions of the daughter's claim were mainly relying on the authority of two old verses. The first of these occurs in the Ṛigveda³. Unfortunately it is a very obscure stanza difficult to interpret with certainty. It appears to refer to an agreement by the father of an only daughter with his son-in-law to the effect that his first son will revert to the maternal grand father to continue his family.

c14.s1.t1.6

³ शासद्वह्निंर्दुहितुर्नप्त्यं गाद्विद्वां ऋतस्य दीधितिं सपर्यन् । पिता यत्र दुहितुः सेकमृञ्जन् संशग्म्येन मनसा दधन् वे ॥ III,31,1.

c14.s1.t1.7

At any rate it does not refer to any right of inheritance of a daughter, who had brothers as well. The second authority relied upon by this school is a stanza, which it attributes to Manu¹. This verse does not, however, occur in the present *Manusmṛiti* and it directly contradicts its doctrines enunciated elsewhere in the book. Further, it has to be pointed out that it does not at all support a daughter’s right to inherit along with sons. To argue that the term *mithunānām* in this verse governs the word *putrāṇām*, the joint expression *mithunānām putrāṇām* meaning children of both the sexes, is a procedure that can hardly be justified. The expression *mithunānām* refers to parents, and the author of the verse opines that parents should divide their estate equally among their sons, without assigning a special share to the first-born, as recommended by some early jurists.

c14.s1.t1.8

¹ अविशेषेण पुत्राणां दायो भवति धर्मतः । मिथुनानां विसर्गादौ मनुः स्वायंभुवोऽब्रवीत् ॥ *Nirukta*, III, 4.

c14.s1.t1.9

It therefore appears that if there was really a school of jurists in the 6th century B.C., which wanted to champion the cause of daughters’ inheritance, even when they had brothers, it could adduce no really authoritative texts in its support. The passage in the *Nirukta*, where this discussion occurs, is very probably a later interpolation. It is therefore extremely doubtful whether any such school at all existed in early times.

c14.s1.t1.10

The general opinion of Hindu society was that sisters should get no share in the patrimony, if they had brothers. This is the opinion of the Dharmaśāstra literature, and Kauṭilya concurs with it¹. There is only one writer, who assigns a small share to the daughter along with sons. It is Śukra. Śukrāchārya, the famous teacher of the Asuras, loved his daughter Devayānī dearer than his own life. It is therefore in the fitness of things that he should have been the only Smṛiti writer to assign a small share to the daughter, even when she had brothers².

c14.s1.t1.11

¹ अदायादा दुहिता । III, 6.

c14.s1.t1.12

² *Śukrasmṛiti* as a whole is as late as about 1300 A.D., and it is not impossible that its scheme of inheritance which assigns the daughter a share equal to half that of the son, may be due to the influence of the Muslim law.

c14.s1.t1.13

Śukra lays down that if a person divides his property in his own life time, he should assign one share each to his wife and sons, half a share to his daughters, and one fourth a share to his daughter’s sons. If the division took place after his death, the sister was to get one eighth the share of the brother³. In actual practice the division of property usually takes place after the death of the father ; so even under Śukra’s dispensation, the daugher got only a very small share in the patrimony.

c14.s1.t1.14

³ समानभागा वै कार्याः पुत्राः स्वस्य च वै स्त्रियः । स्वभागार्धहरा कन्या दौहित्रस्तु तदर्थभाक् ॥ मृताधिपे तु पुत्राद्या उक्तभागहराः स्मृताः । मात्रे दद्याच्चतुर्थांशं भगिन्यै मातुरधिकम् ॥ IV, 5, 299-300

c14.s1.t1.15

Śukra seems to be the only jurist, who has championed the cause of a daughter’s share in her patrimony, even if she were not brotherless. Vishṇu⁴ and Nārada¹ also apparently seem to have recommended the same course; but their intention does not appear to have been to allow the daughter to take away her share after the marriage. Nārada expressly declares that the daughter's share in the patrimony was intended only for her maintenance till her marriage².

c14.s1.t1.16

⁴ मातरः पुत्रभागानुसारेण भागहारिण्यः । अनूढा दुहितरश्च ।

c14.s1.t1.17

¹ ज्येष्ठायांशोऽधिको देयः कनिष्ठायावरः स्मृतः । समांणभाजः शेषाः स्युरप्रत्ता भगिनी तथा । XIII, 13.

c14.s1.t1.18

² या तस्य दुहिता तस्याः पित्र्योंऽशो भरणं मतः । आसंस्कारं भजेरंस्ताः परतो बिभृयात्पतिः ॥ XIII, 27.

c14.s1.t1.19

Though Śukra was in a hopeless minority, his scheme of inheritance appealed to some sections of the community. There is evidence to show that some fathers used to follow the principle recommended by Śukra and divide their property both among their sons and daughters. This was probably the case when the property was self-acquired. We actually come across such a case in a Mysore epigraph. An inscription, dated 1188 A.D., refers to a gentleman named Māchi, partitioning his landed property both among his sons and daughters. The sons of the latter encroached upon the lands of the sons of the former; the epigraph refers to the settlement of the dispute³.

c14.s1.t1.20

³ *E. C.*, VI, Mudgere No. 24.

c14.s1.t1.21

Smṛitis and inscriptions, which attest to a daughter being assigned a share in the patrimony, are exceptions and not the rule. The general opinion of society was that women should get shares, directly or indirectly, in the property of their husbands and not in that of their fathers. Marriages had become obligatory for girls by *c.* 300 B. C., and so the cases of spinsters remaining unprovided did not at all arise in society in the subsequent period.

c14.s1.t1.22

Since marriages had become obligatory for girls, it was naturally laid down that reasonable expenses in connection with them should be a charge on the family property. If a father died before his daughters had been wed, the sons were bound to spend reasonable amounts for their suitable marriages out of the family estate. What precise amount a brother ought to spend for his sister's marriage could not obviously be laid down in the law books; it used to vary with the status and circumstances of each family. A general rule, however, has been laid down that a brother should spend for his sister's marriage an amount equal to a one fourth share¹. The language used in this connection is rather vague, and is capable of the following three divergent interpretations. (1) Each brother should forswear one fourth the share he has received, and the amounts so pooled together should be equally divided among the sisters and spent for their marriages. In practice this principle was likely to lead to anomalies, if the sons and daughters in a family were not equal in number. Thus if there was only one sister and she had four or more brothers, her marriage portion was bound to be greater than the individual share of her brothers. If the above ratio of the brothers and sisters were reversed, the marriage share of a sister would have been very inadequate; it would have been one sixteenth the share of the brother or even less. (2) A second interpretation of the rule suggested that the property should be divided into as many shares as there are children, and daughters should be given one fourth of the share thus ascertained. This arrangement also is likely to produce anomalies similar to those mentioned in connection with the first interpretation. (3) A third school therefore has pointed out that the real intention of the jurists in laying down this rule is that the patrimony should be so divided that ultimately the resulting marriage share of each sister should be equal to one fourth the share of each brother. This interpretation is obviously the one intended by our jurists¹.

c14.s1.t1.23

¹ **असंस्कृतास्तु संस्कार्या भ्रातृभिः पूर्वसंस्कृतैः ।** **भगिन्यश्च निजादंशाद्दत्त्वांशं तु तुरीयकम् ॥** Yāj., II, 124. See also *Manu*, IX, 118.

c14.s1.t1.24

¹ See *SCV.*, pp. 625 ff; *VMV.*, pp, 581 ff.

c14.s1.t1.25

Hindu jurists, however, declare that their intention is not so much to assign a one fourth share to the daughter, as to make adequate provision for her marriage². To get his sister married was the sacred duty of the brother, and if her one fourth share was insufficient for the purpose, the brother was required to spend an amount even equal to his own share³. Some jurists go to the extent of laying down that even if there were no family estate, the brother ought to meet the marriage expenses of his sister from his self acquired property⁴. If, on the other hand, the family property was extensive and the reasonable expenses of a suitable marriage did not amount to the legal one

c14.s1.t1.26

² कन्याभ्यश्च पितृद्रव्ये देयं वैवाहिकं वसु । Devala in *SCV.*, p. 625.

c14.s1.t1.27

³ यदि संस्कारपर्याप्तमपि पितृधनं नास्ति तदा पुत्रसमभागितैव दुहितॄणाम् । *VMV.*, p. 582.

c14.s1.t1.28

⁴ अविद्यमाने पित्रर्थे स्वांशादुद्धृत्य वा पुनः।

c14.s1.t1.29

अवश्यकार्याः संस्कारा भ्रातृभिः पूर्वसंस्कृतैः । *Nārada*, XIII, 34.

c14.s1.t1.30

fourth share, the sister was not to take away with her the balance remaining unspent¹. It will be thus seen that while anxious to make adequate provision for the marriage of a sister, Hindu jurists have disapproved of the principle that she should inherit a share along with her brothers, and carry it away with her after the marriage.

c14.s1.t1.31

¹ तस्मात्संस्कारापयुक्तद्रव्यस्यैव दानमात्रं विवक्षितम् । *VMV.*, p. 582. अनूढा इति विशेषोपादानाद् विवाहार्थं पुत्रभागानुसारिभागहरणं न पुनर्भातृणामिव दुहितॄणां दायविभागार्थमिति गम्यते । *SCV.*, p. 625.

c14.s1.t1.32

The reasons for this attitude are not difficult to understand. Marriage had become absolutely necessary for daughters. So there was no possibility of spinsters remaining unprovided. There was a general prejudice against the introduction of an outsider among the land holders of a village since early times. This, however, was inevitable if the daughter, who was usually married to some outsider either in a near or a distant village, was allowed to claim a share. We must further remember that down to the middle of the 19th century, communications were difficult and dangerous, and it was not easy for a daughter or her husband to manage her landed property situated in a distant village. To give a share to the daughter in immoveable property was thus not a feasible proposition. As far as the moveables were concerned, she used to get a fair share in them as presents at the time of her marriage, or as an heir to Strīdhana estate. Hindu society therefore felt that the best way to provide for women was to invest them with proprietary rights in their husbands' and estates, not in their fathers' property.

c14.s1.t1.33

Circumstances have however now changed, and the law of inheritance requires some alterations with regard to the daughter. Marriage is no longer a necessary event in the life of every woman. A class of educated women is coming into existence who, either owing to the desire for social service or through the force of circumstances, do not get married. These ladies cannot obviously get any proprietary rights through the husband. The law, as it stands today, does not allow them any share in their fathers' property as well. So they remain altogether unprovided for. As we have shown above (*ante*, p. 281), such women used to get a share in their patrimony in Vedic times. We should revive this right today. As these women lead single life, their family responsibilities would be naturally less than those of their married brothers. It is therefore but fair that their share in the patrimony should be smaller than that of a married brother, who will have a family to provide for. It is therefore reasonable to suggest that the share of the unmarried sister should be half that of her married brother.

c14.s1.t1.34

Should a daughter, who gets married, also receive a share in her patrimony even when she has a brother? In 1936 a bill was introduced in the Imperial Legislative Assembly, which *inter alia* sought to give the daughter the same share in the patrimony as the son. This clause, however, had to be withdrawn as the public opinion was not in its favour. It is easy to argue, as was actually done by some jurists in ancient India, that a daughter being as much a child of her parents as the son, should not be deprived of a right conceded to her brother. A careful analysis of the whole situation will, how-ever, show that on the whole it will not be in the interest of society to grant this right to the daughter. In the first place she will find it difficult to excercise it. Division of the family property usually takes place after the death of the father. A daughter, who has been married, say ten years before this event, will not be having a precise idea of the moveable property of her paternal family, as she will be spending most of this time in her new home. It may be that during this period her father's family may have deteriorated financially, and as a consequence, sold away part of its ornaments to tide over the difficulties. As usually families keep such transactions secret, the daughter is not likely to know much about their precise nature or extent. If, as a consequence of these transactions, the moveable property brought forward at the time of the partition is less than what it was at the time of her marriage, the daughter would feel that her brothers have conspired to cheat her of her legitimate share. Their explanations may or may not satisfy her. On the other hand, it is very easy to conceal cash, jewellery and ornaments, and crafty brothers can easily defeat their sisters' rights by producing only a part of them. There are very few families that keep their moveable property in the form of cash balances in banks. Misunderstanding and heartbreaking will therefore be difficult to avoid between brothers and sisters at the time of partition.

c14.s1.t1.35

The allotment of a share in the immoveable property is also fraught with difficulties. Holdings of land in India are already very small and uneconomic; their size will be reduced to half, if the daughter receives a share in the patrimony equal to that of a son. This will be a national calamity. It may be argued that the rights of the weaker sex should not be sacrificed even for avoiding a national economic calamity. There is a force in this argument. But we would point out that there are further difficulties in the way. The daughter after her marriage will usually go away to a different village or town to live with her husband. She will therefore be an absentee land-lord and will find it difficult to manage her property in a distant locality. Her actual income from her share will be considerably less than that of her brother's share.

c14.s1.t1.36

It has further to be admitted that soon after her marriage, the centre of interest and affection of the daughter naturally shifts to her new home. She becomes more and more immersed in her own family and children, and has no opportunities as before, either of identifying herself with the interests of her parents' family, or of controlling or even noticing its financial transactions. It would be unfair to saddle her with any liabilities which her parents' family may have incurred as a consequence of certain steps taken after her marriage, about which she was not and could not be consulted. And this would be inevitable in practice, if the married daughter is assigned a share in her patrimony. To suggest that the consent of the daughter should be previously obtained on such occasions is impracticable. For usually the members of a family do not like its transactions like sale or mortgage of family property to be discussed by or communicated to even their near relations.

c14.s1.t1.37

The present situation, however, is very unfair to the woman. She has no share in her patrimony and her condition becomes pitiable, if her husband abandons her and contracts a second marriage or takes to vicious life. He can even escape his liability to give her a maintenance on the plea that she refuses to live with him. And what woman of self-respect will welcome her husband's home, if she is to be treated there merely as an unpaid and unwanted maid-servant? The best way, however, to meet the situation is not to assign a share to the woman in her patrimony, but to improve and enlarge her economic rights in her new family, of which she becomes an important member, and with the interests of which she becomes absolutely identified. It should no longer become possible for a husband to institute a suit for the restitution of conjugal rights, and escape his liability to maintain his wife on the plea that she refuses to obey the decree of the court to live with him. If it is proved that the wife has to stay away from the husband for no fault of her own, she should become entitled to get, not merely a maintenance, but also a share equal to that of a son. It may be recalled that Yājñavalkya allows the wife a one third share in the husband's property under such circumstances¹. As marriages usually take place between families of approximately equal financial status, the share which the wife will receive in her husband's property is not likely to be smaller than the

c14.s1.t1.38

आज्ञासम्पादिनीं दक्षां वीरसूं प्रियवादिनीम् ।
त्यजन्दाप्यस्तृतीयांशमद्रव्यो भरणं स्त्रियाः ॥ I, 76.

c14.s1.t1.39

one which she would have obtained as a daughter from her patrimony.

c14.s1.t1.40

If the present law is amended on the above lines, it will not become necessary to complicate matters by giving the daughter a right to a share in her patrimony, which may be of doubtful benefit to her in actual practice, and which may also sometimes land her into financial liabilities, for which she may not be really responsible. Normally speaking, more than 90 per cent. couples can pull on well with each other, and there would be no necessity in such cases for the wife to demand a separate share from her husband. Unnecessary fragmentations of holdings, which would become necessary if all daughters are given a right of inheritonce in their patrimony, will thus be avoided. In the few abnormal cases above referred to, where the condition of women at present becomes pitiable on account of their having no share in the patrimony, they would obtain the necessary relief by getting definite rights in their new families available even against the husband during the coverture.

c14.s1.t1.41

For several centuries the Hindu wife has been occupying a position of subordination to her husband on account of her illiteracy and want of general knowledge and experience. There is an unconscious tendency in the average husband, both in the east and in the west, to assume a slightly condescending air when any money is to be sanctioned for the normal or special needs of the wife. Educated wives naturally resent this tendency and feel that they should have an income of their own, which they should be able to spend at their own free will. The best way to avoid this difficulty and consequent unpleasantness is not to grant a share in the patrimony, but to create a new variety of Strīdhana from the husband’s income, which the wife should be at liberty to spend without his sanction. As a natural corollary of the principle that the husband and the wife are the joint owners of the family property, and as a recognition of the valuable unpaid work which the wife ungrudgingly does for the household, she should be entitled to receive a small percentage of the monthly income of the family as her own 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 will remove the difficulties of the modern sensitive wife. It will also render unnecessary the creation of the new right to a share in patrimony, which in practice will be difficult to excercise, and will lead to unnecessary and harmful fragmentations of land holdings.

c14.s1.t1.42

The above discussion will show that the following changes are necessary in the law of inheritance, as far as the daughter is concerned :—

c14.s1.t1.43

(1) The daughter should have the right to a share in her patrimony, equal to half that of her brother, if she remains unmarried. She should lose this share on her marriage.

c14.s1.t1.44

(2) She should have the right to demand that an amount from her patrimony, equal to one half the share of her brother, and not equal to only one fourth such share as laid down by Smṛitis, should be spent on her education and marriage. When Smṛitis were written, it was not necessary to incur any expenditure for the education of the daughter. Now the situation has changed, and it has become quite essential for a daughter to be educated properly in order to get her suitably married and settled in life.

Section 2. Widow's Right of Inheritance

c14.s2.2

The proprietary rights of the wife during the coverture have been already considered in the last chapter. We shall discuss now her rights during widowhood. Let us first take up the question of her right to inherit her husband's proporty.

c14.s2.3

We have already seen that there was a general prejudice in early times against allowing women to hold property. Even the wife, who was regarded as the husband's co-owner in the family property, had only very limited rights as against her consort. It is then no wonder that for a long time widow's right to inherit her husband's property should have remained unrecognised. Vedic texts, which declare women to be incapable of inheriting any property¹, are particularly aimed against the widow. Joint family of the patriarchal type was the order of the day; males alone could be coparceners in it, women being allowed only a maintenance. In early times the custom of Niyoga was very common; so widows without sons were very few. A vast majority of widows therefore used to get their husbands’ shares, if not directly as their heirs, at least indirectly as the guardians of their minor sons. Very often they used to marry, and so the question of giving them a share in their dead husbands’ property would not arise at all. The refusal to recognise the widow as an heir to her husband was thus causing not much actual hardship in society.

c14.s2.4

¹ तस्मात्स्त्रियो निरिन्द्रिया अदायादीः। *T. S.*, VI, 5, 8, 2. ताः (स्त्रियः) नात्मनश्चनेशते न दायस्य चनेशते ॥ *S. Br.*, IV, 4, 2, 13. तस्मात्पुमान् दायादः स्त्री अदायादी । *M. S.*, IV., 6, 4.

c14.s2.5

We therefore find that down to *c.* 300 B. C., the right of the widow to inherit her husband’s property was not recognised by any jurist. Vedic texts were definitely opposed to this right. Most of the Dharma-sūtra writers adopt the same attitude. Baudhāyana expressly rejects the widow’s claim on the authority of the Vedic texts referred to in the last para. Āpastamba lays down that in the absence of the son the property should devolve, not upon the widow, but upon the nearest *male sapiṇḍa*. If none such within seven degrees is in existence to claim the property, it should devolve upon the preceptor. If he also is dead, then it should be taken over by a disciple of the deceased to be spent for charitable purposes¹. This detailed scheme of Āpastamba about the devolution of property nowhere mentions or provides for the widow. The same is the case with Manu. He lays down that the property of a sonless person will first devolve upon his father, then upon his brother, and finally upon a *sapiṇḍa* and a *sakulya* in accordance to his propinquity. When none of these is forthcoming, first a preceptor, then a disciple, and finally the king should take it away¹. Elsewhere he recognises the mother also as an heir²; the widow is, however, nowhere mentioned as possessing any rights of inheritance. It is true that Kullūka, a 15th century commentator, no doubt contends that in *Manu smṛiti* IX, 185, though not expressly mentioned, the widow is intended to be understood as an heir after the son³; he is however obviously reading later ideas in the earlier text. There can be no doubt that Medhātithi, the 9th century commentator of Manu, is correct when he maintains that Manu has not recognised the widow as an heir at all⁴.

c14.s2.6

¹ पुत्राभावे यः प्रत्यासन्नः सपिण्डः। तदभावे आचार्यः। आचार्या-भावेऽन्तेवासी हृत्वा धर्मकृत्येषु योजयेत्। दुहिता वा। II, 14, 2-4.

c14.s2.7

¹ पिता हरेदपुत्रस्य रिक्थं भ्रातर एव च ॥ अनन्तरः सपिण्डाद्यस्तस्य तस्य हरेद्धनम् । अत ऊर्ध्वं सकुल्यः स्यादाचार्यः शिष्य एव वा ॥ X, 185, 187

c14.s2.8

² अनपत्यस्य पुत्रस्य माता दायमवाप्नुयात् । IX, 217.

c14.s2.9

³ न भ्रातरो न पितरः पुत्रा रिक्थहराः पितुः । पिता हरेदपुत्रस्य रिक्थं भ्रातर एव च ॥ While commenting upon this verse Kullūka says:— **अविद्यमानमुख्यपुत्रस्य पत्नीदुहितूरहितस्य च पिता धनं गृह्णीयात् ।** It will be noticed that there is nothing in the verse to justify the words **पत्नीदुहितूरहितस्य ।**

c14.s2.10

⁴ Medhātithi’s commentary on this imporant verse is lost; we know of his views only from Kullūka’s reference to them; cf :— **अतो यन्मेधातिथिना पत्नीनामंशभागित्वं निषिद्धमुक्तं तदसंबद्धम् । पत्नीनामंशभागित्वं बृहस्पत्यादिसंमतम् । मेधातिथिर्निराकुर्वन् प्रीणाति सतां मनः ॥** On *Manu*, IX, 187.

c14.s2.11

At about the beginning of the Christian era, both the Niyoga and the widow remarriage fell into disrepute as shown in Chapter V (*ante*, p. 174; p. 179). It was deemed to be more honorable for a widow to spend her remaining life in penances of religion than in pleasures of the family life. Leaders of society began to feel that if the widow was not to marry or get a son by Niyoga, she ought to be assigned a definite share in the family property. Early Dharmasūtra writers, however, were inclined to assign only a maintenance to the widow. This is the case with Kauṭilya also, who makes the widow's maintenance a charge upon the husband's estate, when it was resumed by the state¹.

c14.s2.12

¹ अदायादकं राजा हरेत्स्त्रीवृत्तिप्रेतकदर्यवर्जम् । III, 5.

c14.s2.13

It was, however, being felt that this was not a satisfactory arrangement. Jurists gradually began to come forward to plead for a better recognition of the widow's claim. Gautama put forth a modest proposal that the widow should be regarded at least as a coheir with other *sapiṇḍas*². In course of time the opinion in favour of the recognition of the widow's right began to grow stronger. Why should she get only a portion of the husband's estate, and not the whole of it? It was felt that she ought to be the sole heir and not a coheir. This view has been for the first time advocated by Vishṇu at about the beginning of the Christian era. He definitely lays down that the widow shall inherit the whole estate on the failure of sons³. About a couple of centuries later Yājñavalkya joined Vishṇu in championing the widow's

c14.s2.14

² पिण्डगोत्रऋषिसंबन्धा रिक्थं भजेरन्स्त्री चानपत्यस्य । If we read here **स्त्री वानपत्यस्य** (in stead of **स्त्री चानपत्यस्य**) as is done in the Ānandāśrama edition of the work, the widow will be an alternative heir, and not a coheir.

c14.s2.15

³ अपुत्रस्य धनं पत्न्यभिगामि । तदभावे दुहितृगामि । XVII, 43.

c14.s2.16

In his *Pūrva Mīmāsā*, VII, 6, 14, Jaimini recognises the right of the wife to hold property. He is, however, probably referring to wives with husbands living, who alone were eligible to perform sacrifices according to him. It does not seem that Jaimini was inclined to recognise the widow as an heir to her husband. *Vishṇusmṛiti* would therefore be the first work to recognise this right, as stated in the text above.

c14.s2.17

right; it is his verses which were mainly relied upon by British courts, when they recognised the right of inheritance of the widow on the failure of sons¹. It may be pointed out that the Upanishadic sage Yājñavalkya had divided all his property between his two wives, when he had renounced the world. It would therefore appear that the Yājñavalkya school was since early days more favourably inclined to recognise women's rights than was the case with other jurists.

c14.s2.18

¹ पत्नी दुहितरश्चैव पितरौ भ्रातरस्तथा । तत्सुता गोत्रजा बंधुशिष्यसब्रह्मचारिणः ॥ एषामभावे पूर्वस्य धनभागुत्तरोत्तरः । स्वर्यातस्य ह्यपुत्रस्य सर्ववर्णेष्वयं विधिः ॥ II, 135-6.

c14.s2.19

The proposal of Vishṇu and Yājñavalkya to recognise the widow as an heir was a sensational one. It affected the vested interests of male coparceners and therefore immediately provoked considerable and determined opposition. During the period 400-1000 A. D. jurists were divided into two schools, the orthodox one, which was not prepared to recognise the widow as an heir and the reformist one, which was bent upon agitating for the popularisation of its new reform.

c14.s2.20

Nārada, Kātyāyana and king Bhoja of Malava (*c.* 1015- to *c.* 1055 A. D.) were the chief advocates of the orthodox view. Nārada lays down that if a man dies without any issue or heirs, his property should ultimately escheat to the king, who was to provide only a maintenance to the widow². It is clear that Nārada did not mind property escheating to the crown; he would not, however, allow it to be inherited by the widow. Kātyāyana apparently held an identical view¹. Bhoja would allow the widow to be an heir only if she submitted to Niyoga. This virtually amounted to denying her the right of inheritance, for Niyoga had become very obnoxious since 500 A. D., and no woman would have agreed to be a party to it. And even if she had consented, her ownership would have been a short-lived one; it would have terminated with the birth of the expected son.

c14.s2.21

² अन्यत्र ब्राह्मणात्किन्तु राजा धर्मपरायणः । तत्स्त्रीणां जीवनं दद्यादेष धर्मः सनातनः । XIII, 52.

c14.s2.22

¹ अदाधिकं रोजगामि योषिद्भृत्योर्ध्वदेहिकम् । अप्रास्य श्रोत्रियद्रव्यं श्रोत्रियेभ्यस्तदर्पयेत् ॥ Quoted by Vijñāneśvara at Yāj., II, 136. Kātyāyana and Bṛihaspati exist only in quotations and we often come across verses attributing contradictory views to them. Thus Vijñāneśvara at the above place also attributes the following verse to Kātyāyana, which clearly supports the widow’s right:— पत्नी पत्युर्धनहरी या स्यादव्यभिचारिणी । तदभावे तु दुहिता यद्यनूढा भवेत्तदा ॥ Similarly Devaṇabhaṭṭa ascribes a verse to Bṛihaspati, which concedes only a partial right of inheritance to the widow. See below p. 305 n. 2. It would appear that these books were not very carefully preserved and interpolations were often made in them by interested parties to support their own views.

c14.s2.23

There were several thinkers who recognised this state of affairs as unsatisfactory, but had not the necessary courage to recommend that the widow should be recognised as a full heir. They proposed half way measures. Some of them recommended that the wife should be allowed to inherit property worth about 2,000 or 3,000, in addition to any Strīdhana that may have been given to her by her husband¹. Others thought that she should be permitted to inherit the moveables only². A third view was that the widow may be a deferred hair; she shonld be allowed to inherit on the failure of brothers-in-law, if her parents-in-law had no objction to the property devolving on her³.

c14.s2.24

¹ > द्विसाहस्रः परो दायः स्त्रियै देयो धनस्य वै। भर्त्रा यच्च धनं दत्तं सा यथाकालमाप्नुयात् ॥ Vyāsa in Aparārka, p. 752. Silver Paṇa, roughly equal to a six anna piece, is the coin referred to in the verse. Its purchasing power at that time was equal to that of Rs. 2 today. Property worth 2,000 would be thus equal to property worth about Rs. 10,000 today. Mahābhārata, XIII, 82, 24 puts the limit at 3,000.

c14.s2.25

² > यद्विभक्ते धनं किंचिदाध्यादि विविधं स्मृतम् । तज्जाया स्थावरं मुक्त्वा लभेत मृतभर्तृका ॥ वृत्तस्थापि कृतेऽप्यंशे न स्त्री स्थावरमर्हति । Bṛihaspati in *SCV*., p. 667. This text of Bṛihaspati is opposed to a number of other verses attributed to him, and may be of doubtful authority.

c14.s2.26

³ > स्वर्यांतस्य ह्यपुत्रस्य भ्रातृगामि द्रव्यम् । तदभावे पितरौ हरेयाताम् ज्येष्ठा वा पत्नी । Śaṅkha in *Mit*. on Yaj., II, 136.

c14.s2.27

The school of reformers, however, was not prepared to accept any such compromises. It insisted that the widows's right to inherit the full share should be recognised. It based its case on logic and reason. Bṛihaspati pointed out that the Vedas, the Smṛitis and sages of antiquity have unanimously declared that the husband and the wife are the joint owners of family property and together constitute one legal personality. A man therefore cannot be said to be completely dead as long as his wife is alive. How then can property pass on to another in the life time of the widow¹? Vṛiddhamanu points out that the widow can offer funeral obtations to her husband, and so she should be allowed to inherit his property². To remove any doubt in the matter, Prajāpati lays down that the widow has a natural right to inherit all her husband’s property, including moveables, immoveables, bullion, ornaments, stores, etc. Her right is not in the least affected even if her elderly relations, male or female, are alive. She will of course show them proper reverence, but hold the property in her own possession. If any male relation obstructs her peaceful enjoyment of the estate, it is the bounden duty of the king to punish him as a thief³.

c14.s2.28

It is perhaps Jīmūtavāhana, who argues the widow’s case in the most masterly fashion. ‘There

c14.s2.29

¹ आम्नाये स्मृतितन्त्रे च पूर्वाचार्यैश्च सूरिभिः ।

c14.s2.30

शरीरार्धं स्मृता भार्या पुण्यापुण्यफले समा ॥ यस्य नोपरता भार्या देहार्धं तस्य जीवति । जीवत्यर्धशरीरे तु कथमम्यः स्वमाप्नुयात् ॥ Quoted in *Dāyabhāga*, Section XI.

c14.s2.31

² अपुत्रा शयनं भर्तुः पालयन्ती पतिव्रता ।

c14.s2.32

पत्न्येव दद्यात्तत्पिण्डं कृत्स्नमंशं हरेत च ॥ Quoted in *Mit.* on *Yāj.* II, 135-6.

c14.s2.33

³ स्थावरं जंगमं हेम कुप्यं धान्यरसांबरम् ।

c14.s2.34

आदाय दापयेच्छाद्धं माससंवत्सरादिकम् ॥ पितृव्यगुरुदौहित्रान्भर्तृस्वस्त्रीयमातुलान् । पूजयेत्कव्यपूर्ताभ्यां वृद्धानाथातिथींस्तथा ॥ तत्सपिण्डा ब्राह्मणा वा ये तस्याः परिपंथिनः । हिंस्युर्धनानि तान् राजा चौरदण्डेन शासयेत् ॥ Quoted in *Parāśaramādhava*, Vol. III, p. 536.

c14.s2.35

These verses have been attributed to Bṛihaspati in the *Dāyabhāga*, Section XI.

c14.s2.36

is no authority to hold that the ownership in the husband’s property, which the wife acquires at the marriage, terminates with the husband’s death. How then can it be argued that the wife’s right is destroyed the moment she is widowed? Nor can it be maintained that she is to utilise just as much of the income as may be necessary for her bare maintenance. Vishṇu says that the property of a person dying without sons will first devolve upon the widow, and then upon the daughter, parents, etc. Now it is admitted that in the above text the term property denotes the whole income of the estate, when construed with all other heirs like the daughter, the brother, parents, etc. How then can it have a restricted meaning when it is construed with the widow alone¹?

c14.s2.37

¹ परिणयनोत्पन्नं भर्तृधने पत्न्याः स्वामित्वं भर्तृमरणान्नश्यतीत्यत्र च प्रमाणाभावात् सति पुत्रे तदधिकारशास्त्रादेव पत्नीस्वत्वनाशोऽवगम्यते ।.....। न च वर्तनौपयुक्तधनमात्राधिकारार्थं पत्नीवचनमिति वाच्यम् । ‘अपुत्रस्य धनं पत्न्यभिगामि तदभावे दुहितृगामि तदभावे पितृगामि’ इत्यत्र सकृच्छ्रुतस्य धनपदस्य पत्न्यपेक्षमकृत्स्नपरत्वं कृत्स्नपरत्वं च भ्रात्राद्यपेक्षमिवि तात्पर्यभेदस्यान्याय्यत्वात् । *Dāyabhāga*, Section XI.

c14.s2.38

We have seen already how there were early texts, which did not recognise the widow as an heir and allowed her only a maintenance. The new school cleverly explained them away as referring to concubines or unchaste wives. The chaste widow, it was argued, could never be deprived of her inherent right to inherit the entire property of the husband². Now there can be no doubt that this interpretation, though ingenious, is altogether unjustifiable; earlier writers did undoubtedly intend to exclude from inheritance not only concubines and unchaste wives, but also chaste widows. Later champions of women’s rights could not follow the straightforward course of refusing to accept the opinions of their predecessors; they had to devise some means, whereby they could explain away the earlier contrary texts without showing any disrespect to their writers. Reform in Hindu social customs and institutions has usually taken this peculiar course owing to the great conservatism of the race.

c14.s2.39

² यदुक्तं ‘स्त्रीणां तु जीवनं दद्याद्’ इति संवर्धनमात्रवचनं तद्दुश्शीलाधार्मिकसविकारयौवनस्थपत्नीविषयम् । Kullūka on *Manu*, IX, 186. यदपि नारदः ‘तत्स्र्त्रीणां जीवनं दद्याद्’ इति तदवरुद्धास्त्री परं पत्नीपदाश्रवणात् । *VMV.*, Sapratibandhadāya section.

c14.s2.40

Let us resume our subject. The new school maintained that the widow’s right of inheritance was an inherent one. The only circumstance that could defeat it was unchastity. When we note the ideas current on the subject at that time, this condition would not appear to be an unexpected one. The modern law on this point is very peculiar. It allows an inheritance to devolve upon a widow, only if she is chaste at the time of its opening. Her subsequent unchastity, however, does not devest the estate.

c14.s2.41

In spite of the able advocacy of the cause of the widow by the reform school, it took several centuries for her right to be recognised throughout India. The Deccan was more advanced in this respect than northern India. A writer of the 6th century B. C. observes that it is customary for the southerners to recognise the proprietary rights of women¹. Among the champions of widows’ rights the provenance of Bṛihaspati, Vyāsa and Prajāpati is not known, but Yājñavalkya was a southerner, and his commentator Vijñāneśvara hailed from the Deccan, as he was a court poet of the Chālukya emperor Vikramāditya VI. That the widow's right of inheritance, so enthusiastically advocated in the *Mitāksharā*, was actually recognised in contemporary Deccan can be proved from epigraphical evidence. A 12th century inscription from Karnatak, while describing the scheme of devolution of property current in a certain village, mentions the widow as the heir immediately after the son (*E. I.*, V, p. 28). An inscription from Tanjore district, belonging to the same century, declares that a lawfully wedded wife inherits the whole property of the husband, including land, cattle, slaves, jewels and other valuables (*S. I. E. R.*, for 1919, pp. 97-8).

c14.s2.42

¹ गर्तारोहिणीव धनलाभाय दक्षिणाजी *Nirukta*, III, 5.

c14.s2.43

The widow's right of inheritance came into recognition in northern India somewhat later. In the days of Kālidāsa (*c.* 400 A. D.), if a person died without leaving a son, his property used to escheat to the king, who had to provide merely a maintenance to the widow. This is quite clear from the *Śākuntala* episode of the merchant dying in the shipwreck, whose property was proposed to be immediately resumed by the zealous ministers of king Dushyanta. In Gujarat the widow's right of inheritance was not recognised down to *c.* 1200 A. D. King Kumārapāla of that province (1144-1173) admits frankly that his subjects were justified in their impression that their king always desired his rich subjects to die issueless, so that he may resume their property¹. A poet of his court tells us that it was this king who showed a magnanimity of mind, shown not even by kings born in the golden age like Raghu and Nahusha, and voluntarily forswore his right to the property of the 'weeping widow.'¹ It would be thus seen that this reform met with considerable opposition from the governments of the day, because it adversely affected their revenues. As a partial compensation, some of them introduced a death duty on the property of persons dying without sons (Graham, *Kolhapoor*, p. 333).

First 110 of 180 passages. Read on

Linked texts (29)