The concept of private property has existed over centuries and when imperialism went on to conquer colonies, it carried with it this concept of private property to colonies. As the end of feudalism gave way to the origin and rise of Capitalism in Europe, different notions of property arose where individuals could own means of production-which used to be a privilege earlier only the monarch could have. This notion of private property travelled to India too, as the English colonised the sub-continent.
Did the evolution of Private property have the same impact on all sections of society? No. Various sections- who were already at a disadvantage were deprived of this right- including women. And today, we have the succession laws mandating that if a person dies intestate i.e. dies without leaving a will-the daughter also gets the same rights as that of a son. This was not the case before. As will be read through this article, some people in the legislature argued that women should not be given property because according to them, women could not “manage” the property. This article is to briefly cover how the right to property for women emerged in this country. The focus is on the Hindu Succession Act for now. This is because the movement to secure rights for women from other communities, though intertwined with the broader impulse in this regard, requires a separate discussion.
This discussion is important because understanding the struggles of the past to gain rights will give insights into how current and future problems may be dealt with. As the abortion debate rages on, in developed and developing countries alike, it is important to have an idea of how progressive rights are to be fought for, and to be negotiated.
In the current economic system, it is the one who controls the means of production who wields significant power. From a small agricultural holding to a big business, the point of commonality is that men, majorly, are in control of the means of production. This is despite the fact that it is well established that it is women who contribute more than half, or more to much of the work, agricultural or domestic.
What was the situation before capitalism made its entry onto Indian soil?
Ancient scriptures do not mention property that is to be given to an unmarried woman and Stridhan– an endowment of sorts is only available, or given to married women. As time passed, Yagnavalkya Smriti, a Hindu Code only next to the Manusmriti in its authority, was interpreted by different sages from 9th and 12th centuries. The interpretation of Sage Vignaneswara became the Mitakshara School of Thought, and the interpretation of Sage Jimootavahana became the Dayabhaga school of thought.
One of the leading schools of thought in pre-colonial India with respect to property and inheritance is the Mitakshara School of Thought, with the foundational principles of inheritance by birth. While Mitakshara was a dominant school of thought in North, West and South India- with variations, the region of Bengal had a different school of thought called Dayabhaga. The most relevant difference between Mitakshara and Dayabhaga is that the latter prescribed liberal views on the rights of widows and unmarried daughters over a husband’s or father’s property. The Dayabhaga school held that even in an undivided family, the widow could succeed to her husband’s share of property on his death when there is no male heir, while the Mitakshara opined that she was not entitled to that right. The concept of Stridhana also existed during pre-colonial and colonial times. Stridhana, which usually consisted of movable property, was a form of endowment on a woman by her father, mother or friends or relatives and also included her own earnings at the time of marriage. Even though Dayabhaga had relatively liberal interpretation when compared to Mitakshara, with respect to the rights of women, the rights ceased to exist as soon as the widow who got the property died. Even if the widow had female heirs, the property used to be passed on to the nearest male heir of the widow’s deceased husband. It is important to note that both these schools did not give absolute control of property to women. The women could not alienate i.e., sell the property.
In Mughal India, Muslim women got property rights either by inheritance or in lieu of mehr or by gift. Mehr is a Quranic right that was meant to provide a safeguard against arbitrary divorce. This right provided for the future security of the woman at the time of marriage. It is during the time of Medieval India that the concept of Stridhan slowly transformed into dowry through which the rightful share of the woman (money, jewels or property) began to be being given to the bridegroom/groom’s family instead of the bride.
As the British began to colonise India, they left the personal laws-especially of inheritance and property to be decided by Hindus themselves. This meant that the brahmins, who by then were the consulting and interpreting authorities of the personal laws, were consulted when the British were required to solve the disputes.
During the end of 19th century, the opposition to the dominant Mitakshara School of thought began to arise, not from women but from men. Given that Mitakshara did not allow for alienation of property in a joint coparcenary property, a section of Hindu men began to call for a codified law which would allow them to divide and alienate their share of the property. Coparcenary refers to a type of property ownership where multiple people inherit the same property, and each person owns an undivided, transferable interest in the property. In 1930, an act titled Gains of Learning act was passed by the central legislature with the help of British administration and in opposition to the elected Indian members. This law made professional earning of a coparcener i.e., a male individual in a family- his own and not of the whole family. This was of no express use to women’s right to property, but it signified a shift from the traditional ways of property in Hindu society. An Indian Succession Act was passed in 1925 but with limited application by not covering Hindus and Muslims. However, this 1925 act had western models of transfer of intestate property i.e., property left by a person who died without a will-without discrimination based on sex. This was a gateway for Indian reformers into the notions of equality when it comes to devolution of property.
1930s to 1956- A new Wave
In 1937, the Hindu women’s Rights to Property Act was passed which gave the widows the same interest as her husband in his joint property and included them among the heirs to her husband’s property when he dies without a will. This law however did not give women the right to alienate the property and she could only enjoy the property as women’s estate. Moreover, this act also did not guarantee any rights to women, including widows, when the husband died with a will- not leaving any property to the widow. This 1937 Act was not the first attempt which became a law, with respect to securing property rights to Hindu women. In 1930, an unsuccessful attempt was made to enact a bill giving a widow absolute right of inheritance in her husband’s share of joint property. In 1933, there was another bill contemplated which intended and attempted to fix a widow’s right to maintenance. In 1935, another inheritance bill was attempted, allowing women to inherit property from her parents’ family. The politics of women’s rights and such progressive movements were gaining momentum by the start of 1940s, and this had repercussions in the socio-political sphere. A discussion on the issue of divorce and property rights was being discussed. Eminent national leaders supporting the cause gave impetus to the women’s rights movements and it strengthened the cause of rights of women.
In the case of Akoba Laxman Pawar vs. Sai Genu Laxman Pawar, the Bombay court did not take away the inheritance right of the widow on the basis that she is unchaste. On the other hand, the Calcutta and Madras Courts gave differing opinions on similar cases. To clear this, a law committee was constituted in 1941, under the leadership of B.N. Rau, to examine the right to property, estate, separate residence and maintenance amendment to the 1937 act. The committee had no woman in it. The report of the committee deconstructed women into three categories- widow of the deceased, widowed daughter in law and the daughter for the purposes of getting inheritance. The committee submitted its bills on succession and marriage, which came to be known as Hindu Code Bill. The part I of the Hindu Code Bill introduced the daughter as a first-class heir on par with the son and other female relatives as heirs. It also gave absolute estate to women which meant that they could alienate the property which was not the case before. Baijnath Bajoria, a conservative member of the house went on to oppose the bill by saying that women were not in a position to manage property. He moved for postponement of the bill. The opposition to the bill was also cloaked with anti-imperialist and anti-western traditions. After some legislative debates, the bill was referred to the joint committee, and the joint committee recommended for the reconstitution of the Hindu Law Committee with renewed reference. The new committee toured the country, took representation from organisations such as the All-India Women’s Conference which vehemently advocated for equal rights for women and also full control over the estate. This was around the same time that the Constituent Assembly was also deliberating on the drafting of the Constitution of India. One of the members of the re-constituted committee- Dwarakanth Mitter- an expert in the Mitakshara law had many differences with the rest of the members. The committee found it difficult to resolve the differences it had with him and met without him. It finally submitted the bill to the government, which was introduced in 1948. One of the most important features of the bill, relevant for this discussion, was that the heirs of intestate succession are individuals but not coparceners. They had the absolute right to alienate the property. The Widow, Widow of a predeceased son and the daughter were brought on the same footing via this bill. There was a prolonged opposition to the bill. Some scholars also argued that the presence of Dr. B.R. Ambedkar- who already positioned himself as the biggest anti-caste force then- was also spearheading the family law reforms which angered casteist conservative elements. It was when Hindu Code Bill did not get passed after repeated attempts, Dr.BR. Ambedkar resigned from the post of law minister in 1951.
Since 1952 elections were around the corner, the Congress and the remaining liberal leader in the government who wanted the reforms-Jawaharlal Nehru-had to prioritise whether the bill had to be at the forefront of the political debate. Jawaharlal Nehru, touring across the country did not care to campaign in Allahabad-his constituency- until the conservative opposition of the constituency started to galvanise the voters on the basis of the Hindu Code Bill. However, when Congress returned to power, the mandate was clear and the opposition to reforms in Hindu law could not be prolonged any more. One after another, different laws were passed with the Hindu Succession Act, 1956 which made widows and sons equal heirs. The 1956 act however prevented women from having equal rights to ancestral property. For instance, daughters did not have the same coparcenary rights as sons, and widows were not entitled to inherit their husband’s property if they remarried.
2005 and the way forward
To address these gender biases, the Indian government –under the first United Progressive Alliance government –enacted the Hindu Succession (Amendment) Act, 2005. This amendment ensured that daughters were granted equal rights to ancestral property, and widows were given the right to inherit their husband’s property even if they remarried. This amendment was not a pioneer since some states had already incorporated this provision into their local laws by then. However, neither is the 2005 amendment did the end point usher in a path-breaking change. To put it plainly, the amendment in 2005 was 50 years late. However, there is much more work to be done on the implementation front.
Many women in India are not aware of their legal rights and how to claim them. They are often excluded from inheritance by their families or denied their rightful share due to a lack of knowledge of their legal entitlements. Women in India often face social and cultural barriers that prevent them from exercising their right to property. In many cases, they are discouraged or even threatened by their families and communities from claiming their inheritance or owning property. Despite the legal provisions, a patriarchal mindset is still prevalent in many parts of India. Women are still considered as secondary members of the family and are often excluded from the property ownership. Women who assert their rights to property may and do face discrimination, harassment, or even violence from their family members or society. This can make it difficult for them to claim their rightful share in inheritance or property ownership. Even if women are aware of their rights, the legal process to claim them can be lengthy, complicated, and expensive. This can make it challenging for women from marginalised communities to access justice and assert their rights to property. Along with more legislative and process changes, there also needs to be emphasis on property rights to women, especially where the traditional methods of devolution of property are being followed.
(The author is a legal researcher with the organisation)
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 Ibid, p. 59.
 Ibid, p.63
 Ibid, p. 144.
 Ibid, p. 179.