Trajectories of Women’s Property Rights in India: A Reading of the Hindu Code Bill

−Contemporary Voice of Dalit

Women as a category is considered as subordinate to men throughout the ancient Hindu law statutes. Her own agency had been discarded and she had been made dependent upon and controlled by male (relatives and others as well) for her basic needs.

In the process, in ancient law codes, such as  the Manusmriti and other Dharmshastras, women were denied property rights. The Hindu Code Bill, on the other hand, sought to put an end to gender discrimination and grant women right to property.

This bill paved the way to remove gender inequality of caste society by offering the hypothesis that men and women both should be treated equally for a society to progress. Evidences show that the women who do not own any assets are subjected to threats of violence and other inequalities within the household.

The Constitution of India guarantees equality to all citizens irrespective of their sex, caste, religion, region, etc. Denial of the right to inherit ancestral property goes against women’s rights as citizens, and against the principle of gender egalitarianism which has been conserved in the Constitution wherein Ambedkar laid down the foundations of social justice.

Without gender equality, the objective of social justice cannot be realized. From this egalitarian perspective, women’s inheritance right is the subject of much scrutiny and investigation. To understand this, the dichotomy of tradition and modernity is interrogated.

Caste as a Tool in the Denial of Property Rights

Anthropological and sociological studies do reveal that gender inequality has been at the core of all the social, political and cultural identities (Kamei, 2011, p. 55). Religious texts provide the ‘ideological’ and ‘moral’ pedestal for the status and the roles of women in Indian society. Hinduism is the predominant structure and the caste system is the essence of Hinduism which, in turn, functions according to the doctrines of purity and pollution.

Since women in a caste-based society are considered as the gateways of caste because of having reproductive powers, endogamy, that is, marriage within the caste circle only, had been imposed to keep caste purity intact. To implement it, women were kept under the control of men (Ambedkar, 2013, p. 10) in every sphere so that they could not take their decisions independently. However, since caste norms are violable, some mechanisms, like excommunication, were introduced for maintaining the purity of caste Hindus.

Discriminatory measures, are observed on patriarchal grounds in which, if a woman marries a man of a lower caste than hers, she would be excommunicated from her paternal caste to a lower one and would lose her earlier caste privileges. But if a man marries a woman of a lower caste than his own (however, not more than two degrees lower), he would not be excommunicated to a vile status, and would continue to enjoy his caste privileges (Rege, 2013, pp. 169–178).

In such an ambiance, women’s right to movable or immovable property, viz., land (which is the greater source of having an empowered and independent status), had been denied because if, in such a caste-based patriarchal structure, women would have the right to property or an absolute right of property, then that property may go to someone else (even to a man of another caste, if she marries so) after her marriage, as in a patriarchal structure, women are controlled by their husbands. Thus, the Indian society has gender inequality as its basic tenet.

Women in Ancient Hindu Codes

Hindu women’s legal right to inherit property has been restricted from ancient times. In ancient law, women were granted some property known as Stridhan, but only for limited use for maintaining herself, her son and daughter-in-law and merely in the absence of her husband (Shamsastry, p. 219). Kautilya stated in his Arthashastra that if a woman leads a pious life after her husband’s death, she will get her endowment and jewellery, and also, if she has a second marriage arranged by her father-in-law, she will get whatever had been given by her father-in-law and husband. But if she marries any man other than that of her father-in-law’s preference, she will have to give up everything she had been given by her father-in-law and husband. In case of divorce, too, she will forfeit the right to use her in-laws’ property (Shamsastry, pp. 220–224).

So, in ancient times, a woman could only have maintenance rights with terms and conditions. In order to continue the use of that property for maintenance, she had to compromise her autonomy regarding marriage, divorce, etc., which is still prevalent. Women’s exclusion from heirship is because of the patriarchal approach of the society.

The latter considers that since men are the main bearers of a lineage, property should accrue to them only as women move into a different family (or lineage) after marriage. So property was safeguarded by keeping it under male control.

In the Rise and Fall of Hindu Women, Ambedkar argued that in the Brahmanical framework,¹ women were placed as equal to Shudras, both of whom were denied the basic human right of having property, self-respect and of acquiring knowledge and renunciation which is the ‘lone way of salvation’ in Hinduism.

Buddha broke this Aryan rule and paved the way for women’s free movement. But, over time, the triumph of Brahmanism over Buddhism degraded the Shudras and women, yet again, as it introduced the system of graded inequality (Ambedkar, BAWS, Vol. 3, p. 275) of the caste system.

Manu condensed a woman to a slave-like position regarding property by saying that ‘a woman would not own any property and whatever she acquires herself belongs to him by whom she is controlled. After her husband’s death she could take care of her husband’s property but cannot have power over that property’ (Ambedkar, BAWS, Vol. 3, pp. 313–319).

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