Rights of Women to Property

1822

"Brief remarks regarding modern encroachments on the ancient rights of females according to the Hindu Law of Inheritance" (original title)

Description: Raja Rammohun Roy felt that one of the major reasons for the prevalence of Suttee was the utter destitution to which women were reduced after the death of their husbands. According to him "all the ancient law-givers unanimously awarded to a mother an equal share with her sons in the property left by her deceased husband, in order that she may spend her remaining days independently of her children." But the laws had been misinterpreted and abused, depriving widows and daughters of their share in the property of their husbands and fathers. (Selected Works, p. 166)

With a view to enable the public to form an idea of the state of civilization throughout the greater part of the empire of Hindustan in ancient days,¹ and of the subsequent gradual degradation introduced into its social and political constitution by arbitrary authorities, I am induced to give as an instance, the interest and care which our ancient legislators took in the promotion of the comfort of the female part of the community; and to compare the laws of female inheritance which they enacted and which afforded that sex the opportunity of enjoyment of life, with that which moderns and our contemporaries have gradually introduced and established, to their complete privation, directly or indirectly, of most of those objects that render life agreeable.

All the ancient lawgivers unanimously awarded to a mother an equal share with her son in the property left by her deceased husband, in order that she may spend her remaining days independently of her children, as is evident from the following passages:

• Yajnavalkya: “After the death of a father, let a mother also inherit an equal share with her sons in the division of the property left by their father.”²
• Katyayana: “The father being dead, the mother should inherit an equal share with the son.”³
• Narada: “After the death of husband, a mother should receive a share equal to that of each of his sons.”⁴
• Vishnu the Legislator: “Mothers should be receivers of shares according to the portion allowed to the sons.”⁵
• Vrihaspati: “After his (the father’s) death a mother, the parent of his sons, should be entitled to an equal share with his sons; their step-mothers also to equal shares; but daughters to a fourth part of the shares of the sons.”⁶
• Vyasa: The wives of a father by whom he has no male issue, are considered as entitled to equal shares with his sons, and all the grand-mothers (including the mothers and step-mothers of the father), are said to be entitled as mothers.⁷

This Muni seems to have made this express declaration of rights of step-mothers, omitting those of mothers, under the ideas that the latter were already sufficiently established by the direct authority of preceding lawgivers.

We come to the moderns.

The author of the Dayabhaga and the writer of the Dayatattwa, the modern expounders of Hindu law (whose opinions are considered by the natives of Bengal as standard authority in the division of property among heirs) have thus limited the rights allowed to widows by the above ancient legislators. When a person is willing to divide his property among his heirs during his lifetime, he should entitle only those wives by whom he has no issue, to an equal share with his sons; but if he omits such a division, those wives can have no claim to the property he leaves. These two modern expounders lay stress upon a passage of Yajnavalkya, which requires a father to allot equal shares to his wives, in case he divides his property during his life, whereby they connect the term “of a father” in the above quoted passage of Vyasa, viz.,”the wives of a father, etc., with the term “division” understood, that is, the wives by whom he has no son, are considered in the division made by a father, as entitled to equal shares with his sons; and that when sons may divide property among themselves after the demise of their father, they should give an equal share to their mother only, neglecting step-mothers in the division. Here the expounders did not take into their consideration any proper provision for step-mothers, who have naturally Iess hope of support from their step-sons than mothers can expect from their own children.

In the opinion of these expounders even a mother of a single son should not be entitled to any share. The whole property should, in that case, devolve on the son; and in case that son should die after the succession to the property, his son or wife should inherit it. The mother in that case should be left totally dependent on her son or on her son’s wife. Besides, according to the opinion of these expounders, if more than one son should survive, they can deprive their mother of her title, by continuing to live as a joint family (which has been often the case), as the right of a mother depends, as they say, on division, which depends on the will of the sons.

Some of our contemporaries, (whose opinion is received as a verdict by Judicial Courts), have still further reduced the right of a mother to almost nothing, declaring, as I understand, that if a person die, leaving a widow and a son or sons, and also One or more grandsons, whose father is not alive, the property so left is to be divided among his sons and his grandsons, his widow in this case being entitled to no share in the property, though she might have claimed an equal share, had a division taken place among those surviving sons and the father of the grandson while he was alive.⁸ They are said to have founded their opinion on the above passage, entitling a widow to a share when property is to be divided among sons.

In short, a widow, according to the exposition of the law, can receive nothing when her husband has no issue by her; and in case he dies leaving only one son by his wife, or having had more sons, one of whom happened to die leaving issue, she shall, in these cases, also have no claim to the property; and again, should any one leave more than one surviving son, and they, being unwilling to allow a share to the widow, keep the property undivided, the mother can claim nothing in this instance also. But when a person dies, leaving two or more sons, and all of them survive and be inclined to allot a share to their mother, her right is in this case only valid. Under these expositions, and with such limitations, both step-mothers and mothers have, in reality, been left destitute in the division of their husband’s property, and the right of a widow exists in theory only among the learned, but unknown to the populace.

The consequence is, that a woman who is looked up to as the sole mistress by the rest of the family one day, on the next, becomes dependent on her sons, and subject to the slights of her daughters-in-law. She is not authorized to expend the most trifling sum or dispose of an article of the least value, without the consent of her son or daughter-in-law, who were all subject to her authority but the day before. Cruel sons often wound the feelings of their dependent mothers, deciding in favour of their own wives, when family disputes take place between their mothers and wives. Step-mothers, who often are numerous on account of polygamy, being allowed in these countries, are still more shamefully neglected in general by their step-sons, and sometimes dreadfully treated by their sisters-in-law who have fortunately a son or sons by their husband.

It is not from religious prejudices and early impressions only, that Hindu widows burn themselves on the piles of their deceased husbands, but also from their witnessing the distress in which widows of the same rank in life are involved, and the insults and slights to which they are daily subjected, that they become in a great measure regardless of their existence after the death of their husbands; and this indifference, accompanied with the hope of future reward held out to them, leads them to the horrible act of suicide. These restraints on female inheritance encourage, in a great degree, polygamy, a frequent source of the greatest misery in native families; a grand object of Hindus being to secure a provision for their male offspring, the law, which relieves them from the necessity of giving an equal portion to their wives, removes a principal restraint on the indulgence of their inclinations in respect to the number they marry. Some of them, especially Brahmans of higher birth, marry ten, twenty or thirty women,⁹ either for small consideration, or merely to gratify their brutal inclinations, leaving a great many of them, both during their lifetime and after their death, to the mercy of own paternal relations. The evil consequences arising from such polygamy, the public may easily guess, from the nature of the fact itself, without my being reduced to the mortification of particularising those which are known by the native public to be of daily occurrence.

To these women there are left only three modes of conduct to pursue after the death of their husbands. First. To live a miserable life as entire slaves to others, without indulging any hope of support from another husband. Secondly. To walk in the paths of unrighteousness for their maintenance and independence. Thirdly. To die on the funeral pile of their husbands, loaded with the applause and honour of their neighbours. It cannot pass unnoticed by those who are acquainted with the state of society in India, that the number of female suicides in the single province of Bengal, when compared with those of any other British provinces, is almost ten to one: we may safely attribute this disproportion chiefly to the greater frequency of a plurality of wives among the natives of Bengal, and to their total neglect in providing for the maintenance of their females.

This horrible polygamy among Brahmans is directly contrary to the law given by ancient authors; for Yajnavalkya authorizes second marriages, while the first wife is alive, only under eight circumstances: First. The vice of drinking spirituous liquors. Secondly. Incurable sickness. Thirdly. Deception. Fourthly. Barrenness. Fifthly. Extravagance. Sixthly. The frequent use of offensive language. Seventhly. Producing only female offsprings. Or, Eighthly. Manifestation of hatred towards her husband.¹⁰

• Manu, ch. 9th, v. 80th. “A wife who drinks any spirituous liquors, who acts immorally, who shows hatred to her lord, who is incurably diseased, who is mischievous, who wastes his property, may at all times be superseded by another wife."¹¹
• 81st. “A barren wife may be superseded by another in the eighth year; she, whose children are all dead, in the tenth; she, who brings forth only daughters, in the eleventh; she, who is accustomed to speak unkindly, without delay."¹²
• 82nd .”But she, though, afflicted with illness, is beloved and virtuous, must never be disgraced, though she may be superseded by another wife.with her own consent."¹³

Had a Magistrate or other public officer been authorized by the rulers of the empire to receive applications for his sanction to a second marriage during the life of a first wife, and to grant his consent only on such accusations as the foregoing being substantiated, the above Law might have been rendered effectual, and the distress of the female sex in Bengal, and the number of suicides, would have been necessarily very much reduced.

According to the following ancient authorities a daughter is entitled to one-fourth part of the portion which a son can inherit.

• Vrihaspati: “The daughters should have the fourth part of the portion to which the sons are entitled."¹⁴
• Vishnu: “The rights of unmarried daughters shall be proportioned according to the shares allotted to the sons.’’¹⁵
• Manu: ch. 9th, v. 118. “To the unmarried daughters let their brothers give portions out of their own allotments respectively. Let each give a fourth part of his own distinct share, and they who feel disinclined to give this shall be condemned."¹⁶
• Yajnavalkya: “Let such brothers as are already purified by the essential rites of life, purify by the performance of those rites the brothers that are left by their late father unpurified; let them also purify the sisters by giving them a fourth part of their own portion.”¹⁷
• Katyayana¹⁸: “A fourth part is declared to be the share of unmarried daughters, and three-fourths of the sons; if the fourth part of the property is so small as to be inadequate to defray the expenses attending their marriage, the sons have an exclusive right to the property, but shall defray the marriage ceremony of the sisters.”

But the commentator on the Dayabhaga sets aside the right of the daughters, declaring that they are not entitled to any share in the property left by their fathers, but that the expenses attending their marriage should be defrayed by the brothers. He founds his opinion on the foregoing passage of Manu and that of Yajnavalkya, which as he thinks, imply mere donation on the part of the brothers from their own portions for the discharge of the expenses of marriage.

In the practice of our contemporaries a daughter or a sister is often a source of emolument to the Brahmans of less respectable caste, (who are most numerous in Bengal) and to the Kayasthas of high caste. These so far from spending money on the marriage of their daughters or sisters, receive frequently considerable sums, and generally bestow them in marriage on those who can pay most.¹⁹ Such Brahmans and Kayasthas, I regret to say, frequently marry their female relations to men having natural defects or worn-out by old age or disease, merely from pecuniary considerations, whereby they either bring widowhood upon them soon after marriage or render their lives miserable. They not only degrade themselves by such cruel and unmanly conduct, but violate entirely the express authorities of Manu and all other ancient lawgivers, a few of which I here quote.

• Manu, ch. 3rd. v. 51. “Let no father, who knows the law, receive a gratuity, however small, for giving his daughter in marriage; since the man, who, through avarice, takes a gratuity for that purpose, is a seller of his offspring."²⁰
• Ch. 9th, v. 98. “But even a man of the servile class ought not to receive a gratuity when he’ gives. his daughter in marriage, since a father who takes a fee on that occasion, tacitly sells his daughter."²¹
• V. 100. “Nor, even in former births, have we heard the virtuous approve the tacit sale of a daughter for a price, under the name of nuptial gratuity.”²²
• Kasapa: “Those who, infatuated by avariee, give their own daughters in marriage, for the sake of a gratuity, are the sellers of their daughters, the images of sin, and the perpetrators of a heinous iniquity.”²³

Both common sense, and the law of the land designate such a practice as an actual sale of females; and the humane and liberal among Hindus, lament its existence, as well as the annihilation of female rights in respect of inheritance introduced by modern expounders. They, however, trust, that the humane attention of government will be directed to those evils which are the chief sources of vice and misery and even of suicide among women; and to this they are encouraged to look forward by what has already been done in modifying, in criminal cases, some parts of the law enacted by Muhammedan Legislators, to the happy prevention of many cruel practices formerly established.

How distressing it must be to the female community and to those who interest themselves in their behalf, to observe daily that several daughters in a rich family can prefer no claim to any portion of the property, whether real or personal, left by their deceased father, if a single brother be alive: while they (if belonging to a Kulin family or Brahman of higher rank) are exposed to be given in marriage to individuals who have already several wives and have no means of maintaining them.

Should a widow or a daughter wish to secure her right of maintenance, however limited, by having recourse to law, the learned Brahmans, whether holding public situations in the courts or not, generally divide into two parties, one advocating the cause of those females and the other that of their adversaries. Sometimes in these or other matters respecting the law, if the object contended for be important, the whole community seems to be agitated by the exertions of the parties and of their respective friends in claiming the verdict of the law against each other. In general, however, a consideration of the difficulties attending a law suit, which a native woman, particularly a widow, is hardly capable of surmounting, induces her to forego her right; and if she continues virtuous, she is obliged to live in a miserable state of dependence, destitute of all the comforts of life; it too often happens, however, that she is driven by constant unhappiness to seek refuge in vice.

At the time of the decennial settlement in the year 1793. there were among European gentlemen so very few acquainted with Sanskrit and Hindu law that it would have been hardly possible to have formed a committee of European oriental scholars and learned Brahmans, capable of deciding on points of Hindu law. It was, therefore, highly judicious in Government to appoint Pandits in the different Zillah Courts of Appeal, to facilitate the proceedings of Judges in regard to such subjects. But as we can now fortunately find many European gentlemen capable of investigating legal questions with but little assistance from learned natives, how happy would it be for the Hindu community, both male and female, were they to enjoy the benefits of the opinion of such gentlemen, when disputes arise, particularly on matters of inheritance.

Lest any one should infer from what I have stated, that I mean to impeach, universally, the character of the great body of learned Hindus, I declare positively, that this is far from my intention. I only maintain, that the Native community place greater confidence in the honest judgment of European gentlemen than in that of their own countrymen. But, should the natives receive the same advantages of education that Europeans generally enjoy, and be brought up in the same notions of honour, they will, I trust, be found, equally with Europeans, worthy of the confidence of their countrymen and the respect of all men.

Notes