History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1208

v4.c63.1208

The wife cannot herself demand a partition, but if the husband himself separates his sons during his lifetime or if the sons claim a partition during the father's lifetime, the wife was entitled to a share equal to that of a son, according to Yāj. II. 115. If there be several wives each gets a share equal to that of a son. There is a proviso that the wife or wives must not be in possession of *strīdhana* property given by the husband or by the father-in-law and that if there is strīdhana, then only as much more will be allotted to her as will make her share equal to that of a son (as stated in Yāj. II. 148). The Mit. on Yāj. II. 52 states that at the husband's will the wife also gets a share of the family wealth but not by her own will¹¹³⁹. The Madanaratna explains that the meaning¹¹⁴⁰ is simply this that the father when separating from the sons should take for each of his wives a share equal to that of each son, but it is not meant that the husband is to carve out separate portions of the joint property and hand them over to his wives, since such a procedure would be opposed to the *dictum* "there is no partition between husband and wife". The V. P. (pp. 441-42) after quoting this view of the Madanaratna refutes it by saying that Yāj. is not here speaking of the partition between husband and wife but between the father and sons and that the husband assigns to the wife a share as he may give a gift of affection to his wife. It deserves to be noted that the ancient commentator Viśvarūpa (on Yāj. II. 119 of Tri. edition) anticipates modern legislation as he states that the widows of pre-deceased sons and grandsons also should be given the shares that would have been taken by their husbands if living along with his own wives by the father at the time of partition with his sons. Recently by the Hindu Women's Rights to Property Act (Act XVIII of 1937 as amended by Act XI of 1938), it is provided that when after the Act comes into force a Hindu governed by the Dāyabhāga School dies intestate or where a Hindu governed by any other school dies living separate property, his widow will be entitled to the same share as that of a son and the widow of a pre-deceased son or grandson shall inherit in the same manner as a son or grandson and further where a Hindu governed by any school other than the Dāyabhāga dies having an interest in joint family property his widow will succeed to a Hindu widow's estate as regards the interest he himself had. This last provision brings the law of the Mitākṣarā into line with that of the Dāyabhāga and makes the widow of a deceased coparcener a member of the coparcenary and at one stroke does away with the fundamental doctrine of the Mit. about male coparceners alone taking by survivorship joint family property.¹¹⁴¹