Pramāṇa · Search · About · API

The Position of Women in Hindu Civilisation, from Prehistoric Times to the Present Day c14.s3: Section 3. Other Female Heirs

The Position of Women in Hindu Civilisation, from Prehistoric Times to the Present Day c14.s3

Language
English

Section 3. Other Female Heirs

c14.s3.2

We have considered so far the right of inheritance of the daughter, the wife and the widow. The cases of remaining female heirs need not be considered in detail in the present work. Only some words will be necessary about a few of them.

c14.s3.3

The right of the mother to inherit the property of her son was recognised fairly early. Manu, who does not recognise the widow as an heir, concedes to the mother the right to inherit the property of a son dying without any issues (IX, 217). All the jurists concur with Manu in this matter. Some of them do not even allow sons to partition family property as long as the mother is alive. In practice the widowed mother was regarded as the sole controller of the estate, though the sons were its legal heirs and owners. Hindu culture held the mother in very high reverence; so her right of inheritance came to be recognised much earlier than that of the wife or the widow. In every day life, however, occasions were very few when property passed to a mother as the next heir of an issueless son. The recognition of this right did not therefore give rise to many exceptions to the general view of early times that women should not be recognised as heirs. The grandmother's claim to inherit her grandson's property was also recognised very early for reasons similar to those which operated in favour of the mother. In actual practice, however, not even one grand-mother in a million could have got an opportunity of being benefited by this concession. For she was a fairly distant heir and came only after the parents and brothers of the deceased. The recognition of the widow, on the other hand, as the next heir to an issueless husband was a revolutionary step, as it was sure to give rise to a large number of female heirs in actual practice. A long time therefore had to elapse before it could be taken.

c14.s3.4

We have seen above that the Deccan was the pioneer in recognising women's rights of inheritance. She continues her lead even today, for the Bombay school recognises a larger number of female heirs than any other school of Hindu Law. It is the only school which gives the right of inheritance to the widows of the agnates (Gotraja Sapiṇḍas). It is interesting to note that even the *Mitāksharā* does not support their claim to inheritance¹. In Bombay Presidency, however, the right of the widows of agnates was recognised, mainly because local enquiry showed that it was actually conceded in practice. The courts were also influenced to some extent by a wrong translation of a passage in *Manusmṛiti* by Sir William Jones. He had translated the line in question as ‘To the nearest Sapiṇḍa, *male or female*, the inheritance next belongs.’ The italicised words are not in the original at all²; Sir William Jones had added them on the authority of Kullūka, who has explained the term Sapiṇḍa as *pumān strī vā*, ‘either male or female’. It will be seen from this incidence how adventitious circumstances connected with early translations have in some cases considerably affected the development of Hindu Law in modern times³.

c14.s3.5

¹ The *Mitāksharā* does not at all mention the paternal uncle’s wife or her daughter-in-law as an heir. Neither Devaṇabhaṭṭa nor Mitramiśra recognises Gotraja Sapiṇḍa widows as heirs. *SCV.*, p, 694; *VMV.*, p. 671.

c14.s3.6

² *Cf* :—**अनन्तरं सपिण्डाद्यस्तस्य तस्य हरेद्धनम् ।** IX, 187.

c14.s3.7

³ 7 *Indian Appeals*, pp. 212-239.

c14.s3.8

The sister has been placed much higher in the line of succession in the Bombay school than anywhere else. She comes immediately after the grandmother, mainly on account of an ingenious argument advanced in the *Mayūkha*⁴. It is clear that Nīlakaṇṭha is here trying to justify a known usage with the help of some specious arguments.

c14.s3.9

⁴ **तस्या अपि भ्रातृगोत्रे ऽनन्तरत्वेन गोत्रजत्वाऽविशेषाच्च ।** p. 89.

c14.s3.10

Among the heirs of the descending order, Hindu jurists have been the hardest on the widowed daughterin-law. Only one among them, Nanda Paṇḍita (*c.* 1575 a.d.), recognises her as an heir¹. The rest found it difficult to grant her any relief. The reasons are easy to understand. The Mitāksharā recognised the widow as an heir only when her husband had already separated from the joint family. It was regarded as highly indecorous for a son to separate from his father or grandfather; so there were hardly any widowed daughters-in-law in society who could claim a share under the Mitāksharā scheme of succession. Under the Dāyabhāga law, the separation of her husband from the family was no doubt not necessary for a widow to get a share; there was, however, another fatal difficulty in the way of the widow of the predeceased son. Under the Dāyabhāga scheme, the son could get no right in the family property till after the death of the father; the widowed daughter-in-law could claim no share in the family property, because her husband himself was entitled to none at the time of his death. Thus both the Mitāksharā and the Dāyabhāga shools could extend no relief to the widow of a predeceased son. The British courts followed faithfully the medieval authorities on this point, and were therefore unable to liberalise the law in her favour. The situation has changed in 1937 with the passing of Hindu Women's Right to Property Act; now the widow of a predeceased son can get a life estate in the share to which her husband would have been entitled.

c14.s3.11

¹ Cf :—**श्वशुरमरणे श्वश्रूस्नुषयोः स्वत्वसाम्येन श्वशूमरणे स्नुषाया एव साधारणसाम्यात् ।** Nanda Paṇḍita bases his case for the widowed daughter-in-law on Bṛihaspati's dictum, **जीवत्यर्धशरीरे तु कथमन्यः स्वमाप्नुयात् ।** Kane, *History of Dharmaśāstra Literature*, p. 212.

c14.s3.12

It is not necessary to consider the rights of inheritance of any more female heirs for the purpose of our present work. We therefore now pass on to consider women's rights at partition.

Linked texts (6)