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The Position of Women in Hindu Civilisation, from Prehistoric Times to the Present Day c14.s4: Section 4. Partition

The Position of Women in Hindu Civilisation, from Prehistoric Times to the Present Day c14.s4

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Section 4. Partition

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ᴘᴀʀᴛɪᴛɪᴏɴ

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The theory of joint ownership should have invested the wife with the right to demand a partition against her husband in case it became impossible for her to live with him. No such right was however recognised. Yājñavalkya lays down that a wife should get a third share in her husband’s property, if she is unjustly superseded¹. He is, however, the only jurist to recognise such a right, and it is quite possible that in actual practice, husbands may have managed to escape this liability under the plea that the wives superseded were disobedient ones. It may be, however, pointed out that to demand a partition was regarded as a very unbecoming procedure; even a grown up son could not ask for it, if his father were living jointly with his grand-father or other elderly collaterals. The wife thus suffered from the same disabilities as against her husband, as the son suffered as against the father. It is however high time to invest the wife with an incontestible right to demand her full share in the property, if she is compelled to live separately owing to her husband's misdemeanour. In such cases, she ought to get a share equal to that of a son.

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¹ **आज्ञासंपादिनीं दक्षां वीरसूं प्रियवादिनीम् ।** **त्यजन्दाप्यस्तृतीयांशमद्रव्यो भरणं स्त्रियः ॥** I, 76.

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Let us now consider normal cases of partition and women's rights on such occasions. The Vedic literature occasionally refers to a partition made by the father during his life time¹; there is, however, nothing to indicate whether the wife used to receive a share on such occasions. Very probably, in spite of the general prejudice against allowing a share to women in inheritance, the father must have assigned an adequate share to his wife, if she were living at the time. In actual practice, the assigning of a share to the wife must have merely amounted to the patriarch reserving two shares for himself as against one assigned to each son. The wife probably got no independent control over it.

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¹ पितृर्न जिभ्रेर्वि वेदो भरन्त। *R.V.*, I, 70, 5; see also *T.S.*, III, 1, 9, 4-5.

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While describing partition, many of the Dharmaśāstra writers expressly include the mother, the wife and the daughter among the parties entitled to a moity. Among these the case of the daughter has been already considered (*ante*, pp. 288-92). As far as the wife is concerned, both Yājñavalkya and Kātyāyana allow her a share. If the partition had taken place during the husband's life time, very probably the wife must be allowing her husband to be in possession of her share; it must have therefore merely increased her husband's moity. It is interesting to note that Nārada allows two shares to the husband at partition²; the second one was probably intended for his wife.

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² द्वावंशौ प्रतिपद्येत विभजन्नात्मनः पिता। XIII, 12.

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Yājñavalkya allows the widowed mother a share equal to that of her son¹. Śukra allows her only a one fourth share (IV, 5, 297), but his view is not shared by the vast majority of jurists, who insist that the mother should receive one full share. Some writers attempted to curtail the full share allowed to the mother by suggesting that the expression 'equal share' is not to be interpreted literally; it is really intended to mean just as much wealth as may be necessary for her maintenance. The *Mitāksharā*, however, rightly points out the utter unreasonableness of this interpretation and maintains that the widowed mother must get a full share². Most of the jurists have accepted this view, as also the modern law courts. The latter, however, had given the ruling that the mother could get this share only if her sons sued for a partition; she could not herself bring the suit. This was clearly against the spirit of the Hindu law. Manu and Kauṭilya do not even permit brothers to effect a partition during the mother's lifetime³; they would have been shocked to be told that the mother could get her share only if her sons chose to effect a partition. The law therefore needed a change in the direction of allowing the mother to sue for her share, in case she could not pull on well with her sons. This desideratum has now been achieved by the Hindu Women's Right to Property Act passed in 1937 by the Indian Legislature.

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¹ यदि कुर्यात्समानांशान्पत्न्यः कार्याः समांशिकाः ।\ न दत्तं स्त्रीधनं यासां भर्त्रा वा श्वशुरेण वा ॥ II, 115.\ पितुरूध्वं विभजतां माताप्यंशं समं हरेत् । II, 123.

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² अथ 'पत्न्यः कार्याः समांशिका' इत्यत्र 'माताप्पंशं समं हरेत्' इत्यत्र च जीवनोपयुक्तमेव धनं स्त्री हरतीति मतं तदसत् । अंशशब्दस्य समशब्दस्य च आनर्थक्यप्र संगात् । On *Yāj.*, II, 136.\ See also *V.D.S.*, XVIII, 34, *Kātyāyanasāroddhāra*, v, 693.

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³ *Manu*, IX, 104; *Arthaśāstra*, III, 5.

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We have now finished the history of the proprietary rights of women. It has no doubt detained us rather long, but it has made many interesting disclosures. We found that it did not take long for Hindu society to set aside primitive theories about women being mere chattel. It recognised their right to Strīdhana fairly early and went on expanding its scope, till eventually by the 12th century A. D., all varieties of property were included in it all over India, except in Bengal. In normal times the husband was not allowed to touch this property of his wife. The only development necessary in modern times in this connection is the recognition of the right of the wife to a small percentage in the husband's income as her *bhartṛidatta strīddana*, in recognition of the joint ownership of the family property and her valuable services in the household management. This would remove the difficulties of the modern sensitive wife, who does not like that for every little expenditure which she may have to incur, she should have to secure expressly or impliedly the permission of her husband.

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The position of the wife *vis-a-vis* the husband was not satisfactory. She could not enforce a partition against him, if he persistently misbehaved or embarked upon a second marriage. Yājñavalkya, no doubt, allowed the wife a one third share in the family property, if she was unjustly superseded. He was, however, in a hopeless minority. We must, however, now follow his lead and allow the wife to claim a share at least equal to that of a son, if she is forced to live separately for no fault of her own. This would remove the proprietary disabilities from which such wives suffer at present on account of their having no share in the patrimony. We must further render it impossible for the husband to mortgage or sell his wife’s share in the family property without her express consent.

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Hindu jurists held marriage to be indispensable for the daughter, and therefore felt that they should merely provide for it. They went to the extent of laying down that a brother should provide for his sister’s marriage even if there were no ancestral assets for the purpose. They were, however, opposed to give her a right of inheritance in the patrimony along with her brothers. The religious theory was that the marriage completely transfers the bride to the new family, and the jurists therefore felt that she should be provided for from its assets. We have shown above (*ante*, pp 291-7) how on the whole this is a reasonable and satisfactory arrangement. There are many difficulties to encounter and few benefits to accrue from giving a daughter the right of inheritance along with her brothers. The present law gives rise to certain anomalies in some abnormal cases, but the correct remedy is to enlarge the wife’s rights as against the husband on the lines indicated above. Of course, as far as daughters who remain unmarried are concerned, they should be given a share in patrimony equal to half that of their brothers’. This innovation will have the support of the practice of the Vedic age.

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The brotherless daughter has been regarded as an heir since very early times. In Bombay presidency she takes the property as an absolute heir. This law should now be extended to the whole of the country.

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For a long time the widow was not recognised as an heir, mainly because she usually possessed some kind of son, as a guardian for whom she could hold her husband's share in the family property. When the custom of Niyoga disappeared and the childless widow came on the scene, Hindu society soon became alive to the necessity of recognising her as an heir. The fervour and zeal with which the battle of her right of inheritance was fought, are creditable for Hindu culture. The widow was no doubt regarded as a limited heir. She could, however, utilise the full income of the property, howsoever large it may be; only she could not alienate it without sufficient cause. When we consider how the vast majority of Hindu widows were illiterate at this time, this limitation must be pronounced to have been more a protection than a disability. The time has not yet come when we can effect a wholesale change in the law on the point. A beginning should, however, be made by allowing women the right of alienation, if they possess certain minimum educational qualifications.

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The Bengal school was most liberal to the widow; it allowed her to become an heir, even if her husband had not separated from the joint family. This principle has been extended to the whole country since 1937; so a legitimate grievance, from which the widows under the Mitāksharā law were suffering, has been now removed.

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It will be thus seen from the above survey that the proprietary rights of women have been developing fairly satisfactorily. As circumstances changed, they were being enlarged by Hindu jurists without any agitation whatever on the part of women. Society was actuated by a genuine desire to improve their economic lot, and did not hesitate to adopt measures that considerably curtailed the time-honoured rights of male coparceners. The courage that was shown in investing the widow with the right of inheritance, even when her elderly relations like brothers-in-law were alive, was really of a high order, when we consider the prevailing patriarchal atmosphere in society. The progress made cannot be of course regarded as adequate by the modern woman, but we must recognise that each age has its own limitations and cannot easily rise above them. Modern Hindu society has been showing a keen desire to enlarge the proprietary rights of women, and has already succeeded in getting legislative sanction to some important ameliorative measures both in British India and in some Indian States. It is interesting to add that the states of Baroda and Mysore have, under the inspiration of their enlightened rulers, led the way in the matter. Public opinion is very keen in removing all the proprietary disabilities of women, and a few improvements that are still necessary will soon be brought about under its growing pressure.

Cites (9)