SOUTHEAST UNIVERSITY

SCHOOL OF ARTS AND SOCIAL SCIENCE

DEPARTMENT OF LAW AND JUSTTCE

AN ASSINMENT TOPIS: RIGHT TOINHERITENCE OF HINDU LADY ACCORDING

TO INDIA, BANGLADESH AND ANILIESS

PRESENTED TO:

NAME: ABU NOMAN MD.ATAHAR ALI

LECTURER
DEPARTMENT OF LAW AND JUSTICE

PRESENTED BY:

NAME: BIDHUTT KUMAR MAJUMDER

ID: 2007020300048
NAME: SELIM HOSSAIN
ID: 2007020300016
BATCH: 11TH
SECTION: B
PROGRAME: LLB (Hones)

DATE OF SUBMISSION: 31-07-2008

 Acknowledgement:
I am particularly grateful to my teacher Abu noman md. atahar ali of the southeast
university and my friend for sparing there valuable time to go through this assignment.
For the favour of writing a foreword to this assignment.
 Summary:
In most Indian families, women do not own any property in their own names, and do not
get a share of parental property. Due to weak enforcement of laws protecting them,
women continue to have little access to land and property. In fact, some of the laws
discriminate against women, when it comes to land and property rights.

The Hindu personal laws of mid-1956s (applied to Hindus, Buddhists, Sikhs and Jains)
gave women rights to inheritance. However, the sons had an independent share in the
ancestral property, while the daughters' shares were based on the share received by their
father. Hence, a father could effectively disinherit a daughter by renouncing his share of
the ancestral property, but the son will continue to have a share in his own right.
Additionally, married daughters, even those facing marital harassment, had no residential
rights in the ancestral home. After amendment of Hindu laws in 2005, now women in
have been provided the same status as that of men. But in Bangladesh women has no
right to inheritance.
Table of content:

1. Introduction

2. Inheritance and succession

3. Person deprived of inheritance

4. Inheritance law reform in Maharashtra

5. Sarkar’s ideal law of inheritance

6. Situation in Bangladesh

7. Comparative review

8. Bibliography
Introduction:
Hindu Law a body of rules, customs and usages guiding the beliefs and ways of life of
the Hindus. There are two schools of thought about Hindu law, namely Dayabhaga
and Mitaksara. The Dayabhaga, a treatise on the inheritance and succession based
mainly on the Yajnavalkya-smrti, is believed to have been written sometime after the
eleventh or thirteenth century by Jimutavahana. On the other hand, the Mitaksara,
written by Vajnanesvara (c 11th century), seems to be an elaborate commentary on
the Yajnavalkya-smrti. On matters relating to inheritance and succession, the
Dayabhaga was used extensively as an authority in Bengal. Dayabhaga's authority
was paramount. However, in matters relating to adoption, the Dattaka-chandrika,
attributed to Kubera (c 16th century), was considered an important authority. In
Bengal, the Hindu laws, as have been revealed in the Sanskrit works, seem to have
developed too vast and intricate. The civil laws, except for such matters as partition,
inheritance and succession, seem to have been administered in Bengal by the British
rulers by the principles applied in common with other parts of India. These common
civil laws were formulated at the British initiative in two compiled works in Bengal.
One was titled Vivadarnavasetu (English translation by Halhed in 1776) and the other
Vivadabhangarnava (English translation by Colebrooke in 1796). So far as
procedural law was concerned, it was systematically formulated on all-India basis in
the Civil Procedure Code (Act V of 1908).

After the partition of India in 1947 Hindu law was changed in India. In 1955, new
Marriage Act was enacted in India whereby marriage system has totally been changed
and plurality of wives was given a go bye. Divorce system was also introduced. In
1956, by the enactment of another Act the law of inheritance of Hindus, Mitaksara or
Dayabhaga was changed. Sons and daughters were given equal share on the demise
of their father or mother while wife or husband was due for one third shares. Practice
of two schools, Mitaksara or Dayabhaga, was changed and one law was enacted for
all the Hindus of India. But in Pakistan old Hindu law prevailed and Dayabhaga
system of Hindu law remained in East Pakistan, and remained same also after the
emergence of Bangladesh.
Inheritance and succession:
The main points of difference between Dayabhaga and Mitaksara are: (i) Dayabhaga
does not recognize birth-right to property, Mitaksara does so; (ii) Drayabhaga holds,
right to inherit and order of succession are determined by principle of spiritual
benefit; in Mitaksara blood relationship is the determinant. Spiritual benefit consists
in performing obsequies rites and offering pindas (rice-balls). Plainly stated, the right
of a person to a deceased person's property is determined by his capability of offering
pinda for the benefit of the latter; (iii) In Dayabhaga, members of a joint family hold
shares in quasi-severalty; they can dispose of them even before partition; (iv) In
Dayabhaga, even in an undivided family, the window takes the share of her husband
dying childless; in Mitaksara, she cannot do so.

In case of inheritance from father, according to Dayabhaga law, sons exclude others
except in case of non agricultural property. In case of non agricultural property a wife
gets a share equal to that of a son. Sons or son of a predeceased son inherit from their
grandfather the share which their father would have inherited if had been alive at the
time of their grandfather's death. If neither sons nor wife, nor sons of a predeceased
son is alive, the daughter or daughters inherit with the priority to the maiden
daughters. Barren widowed daughter or daughters having no son or probability to
have no son are excluded from inheritance to their father. Loss of chastity is also a
ground which can exclude a wife or daughter from inheritance. Only five classes of
women inherit according to Dayabhaga School of Hindu law. They are according to
preference: wife, daughter, mother, father's mother, father father's mother. But these
women inherit only in life interest that is they are owners with limited rights and on
their death the property would pass to the nearest male heir of the deceased male
owner and not to the heirs of the female heirs. The woman or women inheriting in life
interest can sell the property only for limited legal necessity.

Stridhana Property acquired by women or received as gifts are own property of

women and are called stridhana property. They can sell or give away this property as
per their desire. Stridhana are divided into four classes according to the origin of
acquisition by woman. Succession to stridhana is also different giving the daughters a
better right of inheritance.

The order of succession to stridhana, depending on its different kinds, is as follows:

(i) Sulka (bride's price): full brother, mother, father, husband; (ii) Yautuka (gifts made
at the time of marriage): un-betrothed daughters, betrothed daughters, married
daughters having or are likely to have sons, barren married daughters and childless
widowed daughters sharing equally; sons, daughter's sons, son's sons, sons' sons'
sons, step-sons, step-sons' sons, step-sons' sons' sons. In the absence of any of the
above, the yautuka of a woman would devolve in the order: her husband, brothers,
mother, father; (iii) Anvadheya (gifts or bequests made by the father subsequent to
marriage): order of succession is the same as in Yautuka with the difference that (a)
sons are preferable to married daughters; (b) in case of a woman, dying childless, the
order of succession is brother, mother, father, husband; (iv) Ayautuka (gifts or
bequests from relations made before or after marriage; gifts and bequests from father
before marriage): Sons and maiden daughters sharing equally; married daughters
having or are likely to have sons; son's sons; daughter's sons; barren married
daughters and childless widowed daughters. In the absence of all the above, Ayautuka
devolves in the following order: brother, mother, father, husband, husband's younger
brother, husband's brother's son, sister's son, husband's sister's son, brother's son,
daughter's husband, husband's sapindas, sakulyas and samanodakas, father's kinsmen.

Persons deprived of inheritance:

The following are some of those who are not entitled to share in properties: impotent,
born blind, born deaf, lunatic, idiot, dumb, having deformed limbs, apostate, son of an
apostate, incurably diseased, leper, renounce of worldly life, renegade. A Hindu
converted to other religion cannot inherit if the succession opens after conversion. If a
Hindu widow remarries she has to give up the property or right she had received from
the previous husband.

Disowning or to disinherit an heir is permitted in Hindu law. Religious endowments

are common in Hindu law and person appointed for its management is called
shahayet. In the absence of the heirs the property of the deceased male will vest in his
preceptor, pupil and fellow-student in this order.

No one can trace the exact time or year of the birth of Hindu law. However, it is
believed that Hindu law was not created or promulgated in a day like other laws. It
was probably grown through a process of evolution and custom until the writers made
it a law.

Hinduism is considered as one of the most ancient religions in the

world and that is why it is also called “Sanatan Dhormo”. Like all
other religions it embraces all segments of human life including the
rights, duties, liabilities of a woman. Though it is hard to find in
particular the position of women in the ancient Hindu social system
but it is clear from the old writings that with the end of the
matriarchal system and introduction of
patriarchy, women have become dependent on
their male counterparts to a large extent. Since
then Hindu women have been deprived of the
right to property of their father and/or husband
for survival. They remain dependent on parents
during their childhood, on husband in youth
and on children in old age. Therefore, for the
betterment of the condition of Hindu women it
is felt that Hindu family laws need to be
reformed. Initiatives to such reforms always
face opposition from a segment of Hindu community who are rigid
in upholding “Sanatan Ain” (traditional customary law) because
they are convinced that the laws originating in supposedly divine
source cannot undergo a change. But it is noteworthy that our
neighboring country India, where the Hindu law actually originated,
has already introduced a lot of modifications and alterations in the
family law system in order to make it compatible with the changing
society.

Inheritance Law Reform in Maharashtra

The government of Maharashtra State in India has recently passed a law designed to
promote gender equity in property inheritance and discourage the practice of dowry-
giving. The law provides for the right of a daughter to inherit parents' wealth on an
equal basis with sons. Until this law was implemented in Maharashtra, daughters did
not have the legal right to claim an equal share of an inheritance because of a
loophole in national law. In most cases they had to be content with a dowry.

Dowry is officially supposed to represent a daughter's share of her family's wealth, in

the form of a pre-mortem inheritance from her parents at the time of her marriage.
Dowry is also given by the parents of a daughter to compensate the groom's family
for supporting her after her marriage, since she is often prohibited by social customs
from earning a cash income that would contribute economically to the family into
which she is married. Women may also become an economic burden in the event of
widowhood, which is likely since brides are typically much younger than grooms.

However, dowry has deteriorated into a method of extortion of wealth from bride's to
groom's parents, leaving many parents of daughters in debt and encouraging the
practice of female feticide - an increasing social evil in the state of Maharashtra, as
elsewhere in India. This practice occurs as a result of great social pressure on parents
to arrange socially acceptable marriages for their daughters without having the
economic means to do so.

Sarkar's ideal law of inheritance

In this cultural context, it is very clear why proud philosopher Prabhat Ranjan Sarkar
sets out the Ideal Law of Inheritance as follows:

"The son and the daughter shall inherit in equal shares the properties (movable or
immovable) of their parents. The daughter shall enjoy the immovable property while
she lives, but shall not transfer it to others. The property shall revert to her father's
family after her death."

This system, if implemented, would contribute to overcoming the practice of dowry-

giving, while at the same time appease those women who claim that if dowry-giving
(which is already illegal) were suppressed, they would get nothing at all from their
parents, either before or after their death. It allows for equity while at the same time
docs not conflict with the psychology and customs of the people.

Minturn also points out that:

"Dowry is a consequence of cloistering or other customs that keep women from
productive work. Wives who contribute to their husband's incomes do not need
dowries, since their labor over their lifespan is more valuable than dowry goods. But
when wives cannot work, or when the value of their domestic work is not recognized,
dowry provides a way of shifting part of the expense for their support to their parental
families."

Therefore it appears that the best solution at this time would be actively to uphold in
the Maharashtra courts the right of women to the use of property according to
Sarkar's ideal inheritance system, while at the same time vigorously encouraging the
economic self-reliance of women.

Effective policies towards this end must include the promotion of literacy and
primary education at the most basic level for women: the right of equal access
to education is neglected and remains unrealized for the majority of
Maharashtra's women, let alone the equal right to inherit property. Women
also need access to employment. Promoting policies to support women s co-
operatives in food processing industries would be an equitable way to provide
them with paid jobs, whilst at the same time reducing the backbreaking
workload they typically face at home in food preparation and processing. The
realization of economic self-reliance for women is a key step in the process of
the social and economic development that Maharashtra will have to undergo
before its equal inheritance laws can become anything more than a hollow lip
service to the rights of women.
Situation in Bangladesh

Hindu community is the second largest religious community in

Bangladesh. According to 11.5 per cent of the population of our
country belong to the Hindu Community. Their social and family 1991
census

Affairs all are very intensely controlled and influenced by their religious
doctrine. In Bangladesh, Dayabhaga School is followed in Hindu Family
Law.

Unfortunately the religious element in Hindu Family Law has been

greatly exaggerated in our country. Very little has been done towards
reformation of Hindu personal law as it is same to Muslim Personal Law
in India. Therefore, Hindu women have no right in Bangladesh. They
are deprived of their parent's\husband's property as well as right to
divorce and right to adoption etc. The government has not yet
considered amending the personal laws though it ensured equality of
the citizens in the eye of the law by the constitution. The reason
behind perhaps is that thinking any self-initiatives of amendment may
give rise to communal tension in the country.

Comparative review

Inheritance: According to Bangladesh Law Hindu women only

get a limited share. They inherit life interest in the property.
There are five female Sapindas according to the Dayabagha law,
namely the widow, the daughter, the mother, the father's
mother and the mother of father's father. No other female
relation is recognized as heir by the said school. Moreover a
daughter cannot receive any property, even she cannot get life
interest in the presence of son, grand son and great grand son.
Although in neighboring India laws in this regard have been
updated since independence in 1947, in Bangladesh the pre-
1947 laws are still prevailing. In India laws have been framed
and amended that has established women's rights on the
property of father and husband.
A wife's right to her husband's property is elaborately mentioned
in Article 8 of Indian Succession Act. It is stated that if a Hindu
man fails to distribute his property through a deed or testament,
the inheritance will be determined based on Article 8 of the
Hindu Inheritance Law and according to the list described in that
law. In this way, a Hindu widow can demand the property of her
husband under this law. Article 25 of Hindu Marriage Law states
that a Hindu divorcee woman will receive subsistence allowance
from her former husband. It is also stated that if the divorcee
woman does not marry again, does not engage herself in
adultery, and does not earn enough, she is entitled to receive
subsistence allowance for the rest of her life from her former
husband. Woman's limited estate has been abolished and
whatever property has been or shall be inherited by a Hindu
female will be or shall be her absolute property.
Bibliography
Sures Chandra Banerji and Tapan Kumar Chakraborty ;

Taposh Kanti Baul and Khandaker Farzana Rahman Akhi are LLB (Hons),
3rd year students, Dept of Law, DU;

Inheritance Reform in Maharashtra A PNA dispatch archives: November 1994;

MarriagePartnership.com;

Hindu Law [D.F.Mulla, S.K.Rahuth];