Sthree Dharma

[ramana]

From Deccan Chronicle, 18 April 2006
<!--QuoteBegin-->QUOTE<!--QuoteEBegin-->Ancient women had right to stridhana
By Flavia Agnes

A fortnight ago I discussed women’s right to property and the recent amendment to the Hindu Succession Act (Half an heir, April 4). <b>Persisting with the same theme, this essay dwells upon women’s right to property under ancient Hindu law.</b>

It is generally believed that ancient Hindu law was particularly harsh towards women and denied them sexual and economic freedom. In support of this premise, it is emphasised that Manu, the arch lawgiver, stipulated, “A woman must be dependent upon her father in childhood, upon her husband in youth and upon her sons in old age. She should never be free.”

It is also believed that the modernity ushered in during the colonial era helped to loosen out this strict sexual control by granting women the right of property ownership. <b>But rather curiously, very few people are aware that Manu is the first lawgiver who laid down comprehensive principles concerning women’s separate property, approximately 2,000 years prior to the English legal system accepting this principle, and issued a warning, “Friends or relations of a woman, who, out of folly or avarice, live upon the property belonging to her, or the wicked ones who deprive her of the enjoyment of her own belongings go to hell.” Similarly, Narada’s dictate that the husband must give one-third of his property to the first wife at his second marriage is obscure knowledge.</b>


The Smritis and commentaries, with their roots in a feudal society of agrarian landholdings, prescribed a patriarchal family structure, within which women’s right to property was constrained. <b>Under the Mitakshara law, the property of a Hindu male devolved through survivorship jointly upon four generations of male heirs. The ownership was by birth and not by succession. Upon his birth, the male member acquired the right to property.</b>

Although the male members owned property, this ownership cannot be equated with the modern notion of ownership which essentially confers the right of alienation. The basic characteristic of the joint property was its inalienability. The property could not be easily disposed of by way of sale, gift or will. Hence, the joint ownership of males was more notional than actual.

<b>The property was managed by the head of the family, the karta, for the benefit of the entire family including its female members. So, in effect, until the property was partitioned, the right of male members was essentially the right of maintenance.</b> Even after partition, the property in the hands of each of the coparceners, continued to be joint property, held in trust along with his male progeny for the benefit of the next line of descendants.

Since women did not form part of the coparcenary, they did not have even the notional right of joint ownership, hence they could not demand partition. But women had the right to be maintained from the joint property and this right included the right of residence. Since divorce was not commonly prevalent, after marriage, women could not easily be deprived of their right of residence and maintenance in their husband’s house.

The husband was bound to maintain the wife, despite all her faults, including quarrelsome nature, neglect of household, barrenness and adultery. He could marry again, but he was under the legal obligation to continue to maintain the first wife. In addition, the wife was entitled to “supersession fee” or sulka — an equal share of property which the husband gifted to the new wife.

Women also had the right to claim marriage expenses from the joint property in their natal house. <b>Vishnu, a later smritikar, added four more categories to this enumeration of Manu. The later sages, Yagnavalkya, Katyayana, Narada, Devala etc., widened the concept further. Yagnavalkya (around 2nd century AD) expanded the scope of stridhana by adding the word adhya (“and the rest”) to the enumerations of Manu and Vishnu.</b>

<b>The Katyayana Smriti lays great emphasis on stridhana and discusses the concept elaborately.</b> Katyayana classified the stridhana property as saudayika and asaudayika and explained the concept as follows: What is obtained by a married woman or by a maiden, in the house of her husband or her father, from her brother, husband and parents, is saudayika stridhana.

The saudayika stridhana could include immovable property. He emphasised the exclusive ownership both in terms of sale and gift and laid down, “Neither the husband nor the son, nor the father, nor the brother has authority over stridhana to take it or to give it away.”

This injunction is almost in the nature of a warning to male members to lay their hands off the woman’s property. If the husband borrowed saudayika money, he was under a legal obligation to repay it with interest.  There also seems to have been a usage that property up to the limit of 2,000 panas should be given annually to a married woman by the father, mother, husband, brother or kindred (relatives) for her personal use.

<b>Sir Henry Maine in his Early History of Institutions, while describing the institution of stridhana, comments, “It is certainly remarkable that the institution seems to have been developed among the Hindus at a period relatively much earlier than among the Romans.” </b>But he seemed to be under the erroneous impression that it gradually deteriorated to an insignificant position. There is no historical basis for this premise, if the later commentaries are the indicators.

The Mitakshara (Vijnaneshwara, 11th century AD), the most widely recognised source of Anglo-Hindu law, expanded the scope of the term adhya mentioned by Yagnavalkya and laid that property obtained by a woman through inheritance, purchase, partition, seizure (adverse possession) and finding, is her stridhana. Through this expansion, every category of property was brought under the scope of stridhana and the woman was granted exclusive ownership over it.

As can be observed, a system of property ownership by women seems to have been an integral and significant part of the ancient moral, ethical and legal social norms. Due weight was granted to this subject in Sanskrit scriptures. <b>It does appear that patriarchal collusions constantly undermined the scriptural dictates of the dharma of stridhana. At each time the smritikars, with great effort, brought the emphasis back to women’s ownership of property and in the process also expanded its scope.</b>

<b>There seems to be a constant tussle between the Smriti dictates and patriarchal subversions within the family.</b> The task of the smritikars seems to have been challenging — as can be observed from the comments of Jimutavahana, the author of Dayabhaga, on completion of his chapter on stridhana: “Thus has been explained the most difficult subject of succession to a childless woman’s stridhana.”

The most distinguishing feature of stridhana property was its line of descent. Under Mitakshara, after the woman’s death, it devolved firstly on unmarried daughter, then on married daughter who is not provided for, followed by married daughter who is provided for. Next in line was the daughter’s daughter followed by the daughter’s son. <b>The woman’s own son could inherit it only in the absence of heirs in the female line.</b>

To be concluded

Flavia Agnes is a lawyer with expertise on gender, human rights and minority concerns. She is also the founder of Majlis, a legal advocacy programme for women based in Mumbai
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Can someone post the earlier essay of April 4th?