A CRITICAL EXAMINATION

ON
THE HINDU WOMEN'S RIGHT TO PROPERTY
ACT,1937

2.
 CH-1 INTRODUCTION

'Women', topic for great concern these days, isn't it ? But have you ever wondered
why ? Yes, We do, Indian society is a patriarchal society and is inspired by the male
chauvinistic plea and that is the reason why Women are considered to be humans of a
lesser God. In every sphere of life, there have been a certain point where each and
every women, in her life has faced some kind of discrimination that has led to feel her
low about herself. Is this the justice we die for and stand in long ques and wait for
hundreds of hours for ? Why are women considered to be low when everyone is equal
in the eyes of the creator, the evidence of which lies in the fact that everyone is born
naked and no one is born with the clothes, then why this discrimination.

When India was a colonial city, there were certain practices that the Colonialists felt
was against the concept of equality and human rights. Practices such as the Sati
and many such practices were abolished by them. They could figure it out that there
exists the vicious circle of male chauvinism in the Indian society and it is the same
society which revered women as God and brutally burns her in the fire at the same
time. They made certain laws and legislations that were in the favour of women, which
were meant to empower women so as the women, could feel that they are as equal and
as strong as men are.

Taking only the property rights to be in consideration in this paper, we would like to
bring about a significant contribution to the analysis of the property right of the
women in the present era under the Hindu Women's Right to Property Act,
specifically.

When it comes to the law of property of a Hindu female, it is marked by

metamorphosis commencing from the early ages, i.e. from the Vedic society when
women enjoyed equal status

2.
 1
economically and wife even enjoyed equal rights in the husband's house . It was only a period of
time that the changes starting taking place and transforming in an negative discrimination
towards the women. It was only afterward that the inferior position of a woman was portrayed by
the Manu that a wife, son and a slave are declared to have no property and if they happened to
2
acquire it would belong to male under whom they are in the protection of . Basically the
Manusmriti tried to focus on the concept of the Karta but it did not imagine women as the Karta
because the age of the chauvinism began then. The daughter's right to property was existent but it
was a very restricted and a limited right. The limitations to the right of the daughter was that only
if she did not have a real brother, she can possess the property of the father, otherwise she do not
have any property right. It was in the sacred text that the chauvinistic clots were highlighting the
status of women at that time and were oblivious to the fact that the women were subsidising the
inferior position. In the ancient times, even in the joint family, the position of the woman in the
family, was just for the sake of it, and when it comes to the legal right of the person, the woman
was just entitled to maintenance. The question that arises here is, that is woman just for the sake
of it and she has no life and liberty, that she was confined within the closed doors of the house.
But whatever rights were given by the Smritikaras to a female to inherit the property, she was
limited owner of the property and could enjoy it only during her lifetime and the property
reverted back from where it came. It was due to the fruitful efforts of the social reformers and the
activists in the British period, the Hindu Law of Inheritance Act,1929 and the Hindu Women's
Right to Property Act, 1937 were passed to amend the law of all schools of thought that
materially conferred to the greater rights of the women, therefore it was only due to the British
that the women were put to a stage of empowerment.

The maximum impact of the Hindu Succession Act, 1956, is visible in the area of the woman's
right to hold the property, and also the right to dispose it off whenever she wants as an absolute
owner of the property. It is absolutely shocking part of the full ownership of property to the
woman is that it is just fifty years old, so it is past this fifty to fifty five years that the women
have been granted the right to full ownership of land, pre the full ownership, they had no

1
Sir Gooroodas Bannerjee in Marriage and Stridhana, remarks, nowhere were proprietary rights of women
recognized so early as in India; and in very few ancient systems of law have these rights been so largely conceded as
in our own. P.V. Kane has quoted some passages from the Vedas which support the view that women owned
property in those times, Kane HDS, Vol. III (1968). Ch. XXX.
2
Ibid.
absolute right over the property and they were secondary to men like in any other field of interest
where should not be. Considering the stiff and firm opposition held by the opposing parties
presented by the conservatives, they usually linked the granting of the full rights of inheritance to
the women, as endangering the women in the Hindu religion and the clots of chauvinism, i.e. the
son centred economy as the biggest symbol of Hinduism. They were narrow minded people
wanting to withdraw the right to full ownership from the women as they knew that if the women
would attain power, their male chauvinism will slowly and gradually come to an end or will be
on the verge of it. It was rather a firm step which was taken by the legislature to correct the
imbalances in the area of property rights, trying to maintain a correct co-ordination between the
property rights of a man and a female under the Hinduism banner. This quite clearly shows how,
religion was a way to represent the way of life and to manipulate it for others.

In the opinion of the Supreme Court of India, S.14 of the Hindu Succession Act, was introduced
as a step in the direction of practical recognition of the equality to the sexes and meant to
evaluate the suppressed women, from a subservient position in the economic field, to a higher
pedestal and a higher platform, where they could exercise their full power to possess and dispose
off any property they were in the control of, or in other words they were the owner of. They were
not armoured by the artificial limitations and the unreasonable ones, that used to hinder them of
their rights they did not even know ever existed. The limitations placed on their rights of
ownership by the society in which the will of the dominant male prevailed to bring about a
3
subjugation of the opposite sex .

Now when so many initiatives were taken to abridge the gap between the men and the women,
the Hindu Women's Right to Property Act, 1937 was one such initiative. It came into force on
the 14th day of April in the year of 1937 and has no retrospective operation. As the Act was
considered be defective, it was amended by the Hindu Women's Right to Property Act XI,1938,
which was declared to have been gaining the retrospective approach form the day of its
commencement onwards i.e. from 14th day of the April in the year of 1937. Even after the
amendment, the Act remained defective and had some loopholes in it. it was obscure in some
respects and could not be called as a perfect legislation for the women to be fully empowered.

3
Bai Vijaya v. Thakuribai Chelabai, AIR 1979 SC 993, 1003.
The act does not confer upon the Hindu women especially widow in a particular sense, of any
interest in the agricultural land, succession to shebaitship, in which an element of beneficial or
personal interest or self interest in the property, is normally involved in the governance by the
4
provision of the Act . Now, the question arises about where does the act apply or is valid or
where does the jurisdiction of the Act lies, the answer to which is that the act applies to the
5
moveable properties in the Foreign countries too . As there was no specific legislation extending
the Act to the erstwhile Indian State of Kutch it was held that the old Hindu Law applied and the
6
nephew would be preferential heir to a son's widow .

It conferred some new and modified rights on the widows. It basically modified some previous
decisions. It did recognise three kinds of widows i.e. the intestate's widow that is the widow of
the person who has died without making a will, his son's widow and the widow of a predeceased
son of a predeceased son.

4
Angurbala vs. Debarata (1951) SCJ. AIR 1951, SC60, 1952 SCJ
5
Umaval Achi vs. LaxmiAchi (1945) FCR I.
6
Bhano Bai vs. Dheoji Dhana 1950 Kutch, 43.
 CH-2 HISTORICAL BACKGROUND

This chapter deals with the point that how did the women get entitled to the full ownership of
land and helps in a better understanding of the legislation. This chapter makes it even more clear
as to how and why the women were empowered with the absolute property rights and where did
the legislation come into play.

7
The commentaries of the ancient times and the Vedic age , amongst the dictates of the Manu,
hinting at the negotiation of the rights of the women considering them to be as the humans of
8
civilised society, and giving the women absolute rights over their property or the property of
which they are owner and should indeed have the absolute right over. However, there was a
marked difference between the theory and the practical aspect of the same.In theory she could
possess and own the property with her absolute rights as well, but in reality, due to the mental
and the physical trauma that her husband could impose on her, she never used to exercise her
power absolutely, for that matter, it seemed like she had no power over the actions she did and
9
the decisions she took. The quantum in comparison to men's holdings, was meagre , and her
right to dispose of the property was qualified, the latter considered by the patriarchal set up as
necessary, lest she became too independent and neglect her marital duties and the management
10
of the household affairs .

Prior to the passing of the Hindu Women's Right to Property Act, 1937, the property of a woman
comprise two major things in the philosophy of the property, i.e. the Stridhan and the Non
Stridhan. A study of the concept of Stridhan and Non-Stridhan, its acquisition, devolution and
the extent of the hold of a woman over it is in itself, the subject matter of a grave concern. A
woman enjoyed larger powers of disposal over her stridhan, but had very little interest in the
non-stridhan. Stridhan comprised generally speaking, property received by way of gifts, and
presents given to a woman by her parents, husband and close relatives of parents or husband ,

7
See Rig Veda X,27,12 (where there is reference to the maiden having a separate property)
8
A text of the Manu stated, a wife, a son and a slave could not have no property and the wealth which they earn was
acquired for him to whom it belonged. See Manu Smriti, VIII, 416.
9
Katayana and Vyasa cited in the Smriti Chandrika, IX, 1, 6-9, refer to the usage providing that property upto the
limit of two thousand panas, should be given annually to the wife, by the father, mother, husband and the brother or
the kindered.
10
Muthukaruppa v. Sellethanmal, (1916) 39 Mad 298.
 11
either at the time of marriage or at some other important occasions ,or at the time of the
performance of some very vital and sacramental ceremonies, of Sulka or bride price, of the
property acquired by her own exertions and ability or by adverse possession, of bequests from
12 13
stranger or relations , or of money or property given to her in lieu of maintenance or its
14 15
arrears, and of savings or purchases made with the Stridhan. Non Stridhan comprised of what
she inherited from the relation of a male or a female, the relation refers to the legitimate
relationships and excludes all kinds of illegitimate relationships from its ambit.

She was called the limited owner of the property and the limitation was with respect to the power
over the disposal of the property and the inability to transmit this estate to her own heirs, but
otherwise, she had full powers to spell it, enjoy it, and appropriate the income coming out of it. It
is was the power to transfer the that was denied to her. Except, in the case of need or for the
performance of the indispensable religious and charitable purposes, including for according
spiritual benefits to her husband, she could not transfer it. During her lifetime, no person had any
vested right of succession in it, as her restricted powers of alienation were not for the benefit of
16
the heirs of her husband, but were the essential feature of the estate that she took . The heirs of
17
the husband had no powers to dispose it off till she was alive . The limited interest of the
18
women was terminated on her death or remarriage, though this was legalised only after 1856 .
Now, we need to look into the question that whether women are entitled to the property rights
from her father's side or from the side of her husband.

It is with respect to the property rights of the women especially Hindu Women, the dictates of
the ancient texts were multifarious; some recommending the granting of the share to her and

11
Gandhi Maganlal v. Bai Jadab, (1900) ILR 24 Bom 192 (FB).
12
Damodar v. Parmananda Das, (1883) ILR 7 Bom 155
13
Subramaniam v. Arunachelam, (1905) ILR 28 Mad 1.
14
Court of Wards v. Mohessur, (1871) 16 WR 76.
15
Venkata Prasad v. Venkata Surya, (1880) ILR 2 Mad 333 (PC).
16
Jaishree Sahu v. Raj Dharam Dubey, (1962) 1 Mad LJ 258 (SC)
17
Collector of Mashlipatnam v. Cavalay Vencata (1861) 8 MIA 529
18
Section 2 of the Hindu Widow Remarriage Act 1856, provided that All rights and interests which any widow may
have in her deceased husband's property by way of maintenance or by inheritance to her husband or to his lineal
successors, or by virtue of any will or testamentary disposition conferring upon her, without express permission to
remarry, only limited interest in such property, with no power of alienating the same, shall upon her remarriage,
cease and determine as if she had then died ; and the next heirs of her deceased husband or the other persons entitled
to such property on her death, shall thereupon, succeed to the same.
Her then existing rights of inheritance, though not enlarged, were protected with respect to her second marriage.
This act became redundant after the passing of the Hindu Marriage Act, 1955, and was repealed by the Hindu
Widows (Remarriage Repeal) Act, 1983.
some putting restrictions on her rights even to acquire it herself or hold it as an absolute owner.
Why would not they oppose, as it is already stated in the aforementioned chapters, that India has
been a patriarchal society since time immemorial and the male chauvinism was at its peak, so the
men could not digest women being the sole owners of the property that belonged to them.
Whatever might have been the recommendations of the Dharmashastras, there is no dispute
about the fact that the interpretations and selective pickings of its provisions and the influence of
customs placed severe impediments on her right to own property. Customary practices denied
her the absolute ownership, because even the customs were reflective of the make chauvinistic
clots that made women trapped in its clots. The customs even placed restrictions on her rights to
maintenance. Chastity of the woman, was made as a predominant factor to determine whether the
woman had the right to feed herself or not. This meant that if the woman was found to be
scrupulous and unchaste then she had the right to work and feed herself otherwise she would be
confined within the four walls of the house. Denied the basic right of basic right of sustenance,
she had to approach the court for securing her maintenance rights.

The Indian Judiciary however did not rely on any particular law for making decisions, and their
decisions depended mostly on the facts of the case. They did give her succour by relying on
sacred texts and quoting passages from them, i.e. the same texts, which were used by the
custodians of Hindu Law to keep a woman away from participating in the ownership of material
assets. Judicial decisions however, were confirmed to specific cases and could not lay down a
general rule. As a routine, even these isolated cases were helpless in eradicating deep rooted
practices, which deliberately or even erroneously associated religion in denying her a share. The
legislative steps taken to improve her position were therefore seen as reformative in nature and in
terms of her ability to acquire property, a Hindu woman has come a long way from late 19th
century to the present day, at least on paper. Even though we cannot see a major change in the
present day in practical life, there is much difference at least on the paper. This is because that
the changes need to come from the society first, the law has been made the implementation will
only take place once the people realise that even women are capable of acquiring the property
with full ownership rights and they also have the maintenance rights and the disposable rights of
the property, so why not accept the full fledged ownership of women and give them direct rights
instead of manipulating things and turning the tables in favour of the women.
 CH-3 THE HINDU WOMEN'S RIGHT TO PROPERTY ACT,1937

The Hindu Women's Right to Property Act was passed in the year 1937 and was amended in
19
1938. It was prospective in application and applied to property other than the agricultural
20
property and impartible estates, which either under a custom or otherwise went to a single heir.
It applied to Hindus governed by the Mitakshara, Dayabhaga and customary law of Punjab.
Section 2 of the Act expressly repealed the pre- Act customs and rules of the laws that were
contrary to the provisions of this act. This Act stated in the preamble itself that it was expedient
to amend the Hindu Law in order to give better rights to the women with respect to property,
because it was in the wake of ego and male chauvinism that the Hindu society was lurking in.
Women were purely a secondary substance and after that a human to be considered by the
superior men in the society.

The widow of a coparcener dying before 1937 Act, as a member of the undivided Mitakshara
coparcenary was entitled to only a right of maintenance from the joint family property in the
capacity of a member of such joint family. This means that if a coparcener died intestate and
there are no successors, then the widow of the coparcener, too did not have the right of
coparcenary in such case, it was only the right of maintenance that she was entitled to. Therefore,
the women even in such cases did not have the absolute right over the coparcenary property of
the husband. As a doctrine of survivorship applied, the share of the deceased coparcener was
taken by the surviving coparcener under the doctrine of survivorship and nothing was given to
the widow of such undivided Mitakshara coparcenary, Apart from that, the widow of the
predeceased son was not even entitled to the share of coparcenary to which his husband was
entitled to, which means that the share of the predeceased son in the coparcenary will not be
granted to the widow of the predeceased son.

The primary aim of conferring inheritance rights on the widow was to secure her maintenance
rights through an Act. Her maintenance rights that were recognised under the old Hindu Law

19
Krishtappa v. Ananta Kalappa JArathakhane, AIR 2001 Kant 322
20
Udham Kaur v. Parkash Kaur, AIR 1945 Lah 282
were only because of her exclusion from inheritance and from a share in the coparcenary
property.

As the Act did not apply to the agricultural land or agricultural property, a widow who did not
receive a share out of such property still retained her maintenance rights out of this
21
property. This means that though she could not become a coparcener in the property of the
deceased husband, she could claim her maintenance rights arising out of that property. However
in the places, where the Act did apply to the agricultural land she was not entitled to the
maintenance but to the rights of the inheritance or the right to step into the shoes of her deceased
22
husband. This means that where the act was not limited to only the normal land, and extended
its wings to the agricultural land, the widow of the deceased husband was entitled to take the
place of the deceased husband and had the full rights of inheritance unlike the places where she
had no inheritance rights and only had the maintenance rights. In this case, however the widowed
woman despite having the right to inheritance, does not have the right to maintenance.

Section 3 of the Act, provided the following :-

(1) When a Hindu governed by the Dayabhaga school of Hindu law dies intestate leaving any
property, and when a Hindu governed by any other school of Hindu law or by customary law
dies intestate leaving separate property, his widow, or if there is more than one widows, all his
widows together, shall subject to the provisions of the sub section (3), be entitled in respect of
property in respect of which he dies intestate to the same share as a son.

Provided that the widow of a son shall inherit in like manner as a son if there is no son surviving
and shall inherit in like manner as son's son if there is no surviving son of such a predeceased
son.

Provided further that the same provisions shall apply mutatis mutandis, to the widow of a
predeceased son of a predeceased son.

(2) When a Hindu governed by any school of Hindu law other than the Dayabhaga School or by
customary law dies without having at the time of his death an interest in the Hindu Joint Family

21
Sarojini Devi v. Subramayam, ILR (1945) Mad 61
22
Some of the states had passed their own legislations e.g. The United Provinces, Madras, Bihar and Bombay
making the Act applicable to the agricultural property too.
property, his widow shall subject to the provisions of sub section (3) have in the property, the
same interest as he himself had.

(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the
limited interest known as a women's estate, provided however, that she will have the same right
of claiming partition as a male owner.

(4) The provisions of this section shall not apply to an estate which by a customary or other rule
of succession, or by other terms of the grant applicable thereto, descend to a single heir, or to any
property to which the Indian Succession Act, 1925, applies.

Firstly, providing an analysis to the same section aforementioned, the provision provides that if
the deceased man has a widow or more than one widows then all of them will have an equal
share as that of the son. But the question that arises here is that under the Hindu Marriage Act,
1955, the Hindu man is allowed to be only in one marriage and marriage is considered to be
more of a sacrament than of a contract, therefore the possibility of having more than one widow
does not arise, because if there is more than one widow, then the other marriages will be void ab
initio and thus will not stand a plea in the court of law.

Secondly, it talks about the widows having equal share of the property, in an extreme case where
the Hindu man has many widows, so does that mean that the woman he was first married to or
his legal wife will get the same amount of share, his other illegitimate wives would get. Does
that not amount to disparity between the legal wife and the other widows.

Thirdly it says that the widows will be getting the same share as that of the son. So, if there is a
possibility of the widow being more than one, then there is also the possibility of being more
than one sons out of the other widows that were married after the first widow. Therefore, the
question that arises here is that how much share does the sons get and which son will get the
preference. According to us, the legitimate son should get the preference over the illegitimate
sons.
 CH-4 THE EFFECTS OF THE LEGISLATION

In this chapter we will be dealing with the effects that the legislation had in general and to what
extent does the act really makes a difference in the lives of women.

The Act governed the devolution of the property of a male Hindu only and not the property of
23
the women or the female . Consequently, the property of a female Hindu devolved according to
the rules of the Hindu law, which proved a distinction between the inheritance to the property i.e.
the stridhan and the non stridhan properties. This further widened the gap between the succession
to the property of a female and a male Hindu.

It affected both the separate property and the Joint Hindu Property or the coparcenary property.
for succession to the property of the male Hindu, the widow used to succeed only on the failure
of the male issue. But now under the provisions of this Act, she inherited with him, taking a
24
share equal to that of the son . This means that there was some or the other positive effect that
was due to the commencement of this act. Similar to the right of the son, a widow also had the
right to inheritance under this act and she had the right to claim partition so as the son had but the
similarity ended there, as the son had an absolute interest in the property however, the widow got
only a limited interest in the property and also, if she dies without there being partition, the
25
doctrine of survivorship applied and her interest was taken by the surviving coparceners .

The conferment of the better rights extended to the widows of the predeceased son, and of a
predeceased son of a predeceased son as well. Taking of the 'same share as that of the son' did
not mean that for a widow, in order to be eligible for inheritance she needs to be a widow, or the
son must be present, because even in the absence of the son, she was entitled to get the share, as
26
iif she was a son, but what she took was only a limited interest . This means that to take on the
right of inheritance, it is not necessary to have a son, without son or without the presence of the
son also, she will be treated as if the son would have existed, so the rights remain equal as far as
inheritance is concerned but only with a difference that the woman will have the limited interest

23
Umayal Achi v. Lakshmi Achi, (1945) 1 Mad LJ 108
24
Bhiwra v. Renuka, (1949) ILR Nag 400
25
MP Obanna v. KB Anjaneyulu, 2000 (1) HLR 52 AP
26
Lakshminarayan v. Tarabai, (1988) 1 Mad LJ 153
and not the absolute interest, which would have been there with the son, otherwise, if would
have existed.

The changes made by the act, were not completely new, they served as some reformation to the
old laws. So, it was a progressive step that was taken up by the legislators to reform what the
earlier laws, did not serve the purpose of justice. The women got strengthened but at the same
time they were only granted limited rights and not absolute rights. Being very sceptical about the
same, how far does this justify the concept of Equality is another question to be looked upon
while considering the property rights of the women.

The Act concretised the rights of the women in clear terms. It was through this act that for the
first time, she should take the place of the husband under the Mitakshara school of thought in the
coparcenary , yet the act was totally silent about the devolution of her estate after her death.
Since her ownership, in this estate terminated on her death and she was not a fresh stock of
descent, i.e. the estate was not heritable among the heirs, the question to be pondered upon is
then who will inherit if the property cannot be inherited by the surviving heirs ? The rule was
that the property will go her husband's heirs reflecting upon the dominance of men in every era.

So, it is really difficult to comment whether the effects of this act were really positive enough to
have been made a real big difference in the lives of women but yes it did make a small difference
by giving some rights to her though limited ones. Something is always better than nothing at all.
 CH- 5 CONCLUSION

The basic purpose of passing the act was that a Hindu widow, after the death of her husband
should not have to be dependent on others for her sustenance, but she should be strengthened
economically. she should earn this much or she should be provided with such finances that
enable her to live her life peacefully and independently without having to depend on others for
sustenance. The predominant motive was to securing her maintenance rights by granting her an
ownership, even though limited, over the property. Under the classical law, she had maintenance
rights out of the property, as inheritance rights from the joint family property was denied to her.
Now, when these inheritance rights, which were perceived to be in lieu of maintenance , were
granted under the Act, the right to claim maintenance was automatically extinguished, as both
could not co-exist. However, as the Act did not apply to impartible estates and to agricultural
property, families where the only property available was of either of the two abovementioned
types, the widow, even after the passing of the Hindu Women's Right to Property Act, 1937,
retained her rights to claim maintenance.

Commenting upon the positive effects of the act, the rights were granted to the women as far as
inheritance is concerned, but how far do we comment on the empowerment of women through
this act, because it gives only the limited rights and does not give the women absolute right over
the property. The question is that if only the limited right is to be given to the women then why
only grant limited and why not absolute, because in the modern times, women are required to be
empowered fully. As it is usually said, that half knowledge is dangerous, similarly, half
empowerment is also dangerous, therefore full empowerment and absolute rights is what the
nation demands and is the need of the hour too, to stop crimes related to crimes against women
in terms of property.