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
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 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.
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
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
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.