Author Name:   Bibhabasu Misra

The author narrates the proprietary rights of a married woman other than succession. The laws before the enactment of the Constitution and after the enactment of Hindu Succession Act,1956 has been discussed...

A Critical Analysis of Married woman’s right over spousal property

Among Hindu marriage is a necessary “samaskar”, a holy sacramental union, even emphasized by modern statutory law. The man is incomplete without his wife, she is ardhangini. (Half of him).The wife has been described as “A wife is the very source of Purushartha not only of dharma, artha and kama but also moksha. Those who have wives can fulfil their due obligations in this world, those that have wives can be happy; those that have wives can lead a full life. Wife is not just patni but dharmapatni- partner in the performance of spiritual as secular duties. A man cannot perform most of the yagnas without a wife. Wife is sahadharmini”.

Theoretically the couple were the joint owners of the household as well as owner of other types of property. At the time of marriage husband had to solemnly declare that he would not violate the right and interest of his partner in economic matters. The joint ownership secured her numerous rites and privileges. “It invested her with an absolute right of maintenance against her husband.” Some ancient lawgivers even permitted the wife to go to Court to restore misappropriated property from her wily husband.

The author here tries to adumbrate, tress the evolution, justify married women’s right over the spouse’s property including the marital home acquired through modes other than natural succession in the light of modern laws, Constitution and jurisprudence.

Conglomeration of statutes before enactment of Constitution and Hindu Succession Act

Before enactment of Constitution and Hindu Succession Act, married women had limited ownership in the property in the form of 1) stridhana, earned by employing her labour and skill or property gifted during marriage. Sometime even husband enforced control over it. 2) Estate acquired through succession or through instruments, partition, with life interest, where there was no right of alienation except in legal necessity as for example legal requirement for self or for the need of the heir of last legal owners or use for religious purpose or for benefit of the estate. 3) right to maintenance until death of the concerned person.

The Married women’s property Act, 1874- Its statement of object and reasons provides that The Indian Succession Act(X of 1865) section 4, declares that no person shall by marriage acquire any interest in the property of the person whom he or she marries. This section however does not apply to marriage contracted before 1st January 1866.

Part III of Indian Succession Act,1925
Section 20 of Indian Succession Act, 1925 which is a consolidating Act provides that, (1) No person shall, by marriage acquire any interest in the property of the person whom he or she marries or become incapable of doing any act in respect of his or her own property which he or she could have done if unmarried.

(2) This section---

(a) Shall not apply to any marriage contacted before the first day of January,1866.

(b) shall not apply, and shall be deemed never to have applied to any marriage one or both of the parties to which professed at the time of the marriage, the Hindu, Muhammadan, Buddhist, Sikh or Jaina religion.

Widow Remarriage Act (1856) Some important provisions can be summarised as---
2. 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 a limited interest in such property, with no power of alienating the same, shall upon her remarriage cease and determine as if she had died; and the next heirs of her deceased husband, or other person entitled to the property on her death, shall there upon succeed to the same.

But the position will be different if any will or testamentary disposition confer on her right to remarry and proprietary right without limited interest.

4. Nothing in this Act contained shall be construed to render any widow who, at the time of death of any person leaving any property, is a childless widow, capable of inheriting the whole or any share of such property, if before the passing of this Act she would have been incapable of inheriting the same by reason of her being a childless widow.

5. Saving of rights of widow marrying, except as provided in section 2 to 4

Except as in the three preceding sections is provided, a widow shall not, by reason of her remarriage forfeit any property or any right to which she would otherwise be entitled; and every widow who has remarried shall have the same rights of inheritance as she would have had, had such marriage been her first marriage.

The caste Disabilities Removal Act, 1850 An Act for extending the principle of section 9, Regulation VII, 1832, of the Bengal Code (throughout) India-----

Preamble—WHEREAS it is enacted by section 9, Regulation VII, 1832 of Bengal code, that “Whenever in any civil suit the parties to such suit may be of different persuasion, or where one or more of the parties to the suit shall not be either of the Muhammadan or Hindu persuasions the laws of those religion shall not be permitted to operate to deprive such property or parties of any property to which,

1.Law or usage which inflicts forfeiture of or affects, rights on change of religion or loss of caste to cease to be enforced.

1. Law or usage which inflicts forfeiture of or affects, rights on change of religion or loss of caste to cease to be enforced—so much of any law or usage in force within India as inflicts on any person forfeiture of rights or property, or may be held in any way to impair or affect any right of inheritance, by reason of his or her renouncing, or having been excluded from the communion of, any religion, or being deprived of caste shall cease to be enforced as law in any Court.

The Hindu Women’s Rights to property Act,1937 An Act to amend the Hindu Law governing Hindu Women’s rights to property.

Section 3-------

(1)-------

(2)-------

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

(4) The Transfer of Property Act, 1882 It recognises valid mode of transfer of property among transferor and transferee through sections 38(Transfer by person authorised only under of certain circumstances), section 39(Transfer when third person is entitled to maintenance) 100 (charge) which are nothing but expression of limited nature of married woman or widow’s ownership over the property.

Indian Trust Act, 1882 Under this Act a married woman can be trustee of the property of her husband if the husband reposes such trust (Section 3). Children will be obviously the beneficiary of such trust. In case of immovable property, according to section 5, the declaration of trust has to be made through non testamentary instrument in writing signed by the author or the trustee and registered, or by will of the author of the trust or trustee. In case of movable property, trust is valid; if ownership (read as possession) of the property is transferred to the trustee. Section 79 provides no trust can be revoked by the author of the trusts as to defeat or prejudice what the trustee may have duly done in execution of the trust.

Role of Equity---- Historically in English law the rules and principles of equity originally administered by Court of chancery were developed as a means of circumventing the inflexibility of contemporary common law upon a basis of conscience. With the fusion of common law and equitable jurisdiction this new combined stream flowed into Indian Legal system through Article 13 and Article 372 of Constitution. Hence all statutes governing ownership and transfer of property shall conform to equity.

Indian Constitution and legislation enacted afterwards Property is a term of the widest import and subject to any limitation or qualification which the context might require. It signifies every possible interest which a person can acquire, hold and enjoy unless there is something to the contrary.

A woman shall be proper owner of her property as per her male counterpart as provided under Article 300A. After Maneka Gandhi, Article 21, 14, 15 and 300A shall be read together stiching a just, fair, reasonable standard. Parliament has the power to enact law related to property under entry 32 of union list, under VIIth schedule as provided “subject to legislation by the State, save so far as Parliament by law otherwise provides.”

Thus married woman’s proprietary right shall be governed by Central legislations such as Hindu Succession Act or in certain cases by The Protection of Domestic Violence Act unless dictate of Article 254of the Indian Constitution decides differently.

The meaning of the word repugnancy(inconsistency between central and state laws regarding proprietary right) was laid down by Fazal Ali, J in M Karunanidihi vs Union of India that,

1. It must be shown that there is clear and direct inconsistency between the two enactments [Central Act and State Act] which is irreconcilable, so that they cannot stand together or operate in the same field.

2. There can be no repeal by implication unless the inconsistency appears on the face of the two statutes.

3. Where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results.

4. Where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences. No question of repugnancy arises and both the statutes continue to operate in the same field.

The author paying full respect to the Supreme Court’s Judgment humbly points out that, The Hindu succession Act is an amending and codifying Act. The Protection of women from Domestic violence Act, 2005 satisfies proviso of clause (2) of Article 254 of Indian Constitution.

In A Cracknel vs State Section 8(1) (b) of U.P. Court of Wards Act, 1912 has become void under Article 13 of the Constitution as it infringes, Article 14, 15 and 19 (1) (f) of the Constitution.

Section 8 of the Court of Wards Act provides:

“Proprietors when to be deemed disqualified”

(1) Proprietors shall be deemed to be disqualified to manage their own property when they are---
minors;
females declared by the Provincial Government to be incapable of managing their own property;
Persons declared by the Provincial Government to be incapable of managing or unfitted to manage their own property;

Owing to any physical or mental defect or infirmity unfitting them for the management of their own property;

(2) No declaration under clause (d) of subsection (1) shall be made until the proprietor has been furnished with a detailed statement of the grounds on which it is proposed to disqualify him and had had an opportunity of showing cause why such declaration should not be made.

Court said classification must be based on reasonable grounds. It cannot be a mere arbitrary selection. Also the classification should have rational nexus with the object sought to be achieved. A woman cannot be deprived arbitrarily the right of managing her own property. Thus this provision of section 8(1s) (b) of the Act is violative of Article 15 and void under Article 13.

Hindu Succession Act ---- The Act an amending and codifying law provides under section 14 that,(1)Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

explanation--- In this subsection “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase any such property held by her as stridhana immediately before commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

In Chowdhuri vs Ajudhia it was said that any property possessed by a Hindu female, irrespective of how it was acquired, becomes her absolute property after coming into force of the Act in view of operation of section 14(1).

In Mangal vs Ratna the Court said that the word “any property possessed by a female Hindu” include actual as well as constructive possession even when the property is in the possession of a trespasser, she is in its constructive possession. Now we need to discuss relation of ownership and possession in the light of such famous classics like Salmond on Jurisprudence.

Salmond explains that the main difference between ownership and possession is that possession is determinate. The owner has normally right to use and enjoy thing owned. Ownership right consist of smaller rights as for example an owner of property can grant lease, easement, and profit to different person. Husband and wife being joint owner means (wife being owner by virtue of possession) that it is a duplicate ownership and with a death of one joint owner, survivor become the sole owner.

Salmond also explains that possession consists of a corpus possessionis and animus possidendi that is power to use the thing possessed and the existence of grounds for the expectation that possessor’s use will not be interfered with. The latter consist of intent to appropriate to oneself the exclusive use of thing possessed. Husband and wife being same in the eye of law (not criminal law) are in concurrent possession of a thing; if the claims are not adverse, mutually destructive, or admit of concurrent realisation.

The Hindu Marriage Act, 1955 Section 25 (1) Permanent alimony and maintenance---- (1) Any Court exercising Jurisdiction under this Act may, at the time of passing any decree or at any time subsequent there to, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant, as having regard to the respondent’s own income and other property , if any, the income and other property of the applicant it may seem to the Court to be Just, and any such payment may be secured, if necessary by a charge on the immovable property of the respondent.

Section 27 ,Disposal of property -- In any proceeding under this Act, the Court may make such provisions in the decree as it deems Just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly both the husband and wife.

Section 24 ,Maintenance, Pendente lite and expenses of proceedings---- provides that ,where in any proceeding under this Act it appears to the Court that either the wife or husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may on the application of the wife or the husband, order the respondent to pay the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable: Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case maybe.

The Protection of women from Domestic Violence Act, 2005 protects women from illegal ouster of a household. Section 2(f) of the Act apart from married woman includes any relationship in the nature of marriage, or person related through consanguinity, adoption. Section 2(s) provides that shared household means whether owned or tenanted either jointly or singly by the aggrieved person and respondent, both jointly and singly have any right, title, interest or equity and includes such a household which may belong to the joint family in which respondent is member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household. Under section 18 through protection order respondent maybe prohibited from alienating any assets, stridhan, operating bank locker or accounts used or held ,enjoyed by both the parties, jointly or otherwise without leave of Magistrate. Section 22 provides compensation order in addition. This Act is not derogation of other laws. For violating section 18 there is prescribed monetary fine and imprisonment.

State protects ownership and possessory right through civil remedies and criminal sanction. For illegal trespass, remedy lies in tort through civil Courts. Indian penal code under chapter XVII sanctions offence against property. Under section 9 of C.P.C suits in civil nature can be filed to prevent dispossession of property. Specific Relief Act through section 5 provides that a person entitled to possession of specific immovable property may recover it in the manner provided by the C.P.C. Section 6 provides that if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he may file suit within six months but not against any government. Section 7 provides that a person entitled to specific movable property may recover in the manner provided by C.P.C.

Justification and implication Justice is the term repeatedly used in a particular legal system and according to some jurist justice is the end of law. A law defining married woman’s proprietary right ought to be just. Rawl in his theory of justice enumerated four evolutionary stages of a society where ultimately a just Constitution and law are enacted.

stage 1---- the enunciation of the principles of justice from the original position. Here under the veil of ignorance person who don’t know their actual position in the society, to further their self interest as rational person are given the task of framing just policies, for their best possible and advantageous position. Indian Independence Act 1947 under section 8 gave Constituent Assembly, the status of Dominion legislature, till a Constitution is framed. To emphasize the impartial nature of Constituent Assembly Dr.Ambedkar explained that “the Constituent Assembly in making a Constitution has no partisan motive. Beyond securing a good and workable Constitution it has no axe to grind. In considering the Articles of the Constitution it has no eye on getting through a particular measure------‘’.
Stage 2--- A partial lifting of veil of ignorance so far as the general circumstances of the society, but not the individual circumstance. Various committees were constituted such as The Union power committee, The Union Constitution Committee, The Provincial committee, Advisory committee on minorities, Fundamental rights committee, and Advisory committee on tribal areas to frame policies for common good. After, 26th November 1949 Indian Constitution commenced and reached this stage.

Stage 3-- Having established Constitution next step was legislation according to Justice. Under VIIth schedule of the Constitution through three lists of Union, State and concurrent legislature do have the ample opportunity to make such laws.

Stage 4-- In application of laws, rules, Constitution the Courts need to work fairly. Thus under Indian Constitution union and State Judiciary have the power to adjudicate. Under Article 141, Supreme Court can declare law and it is binding on all Courts within the territory of India. All the authorities are obliged to assist Court under Constitutional directives.

Conclusion -------- Rawl enunciates two principles,
1. each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.

2. Social and economic inequalities are to be arranged so that they are both:
(a) to the greatest benefit of the least advantaged, consisting with just savings principle and
(b) attached to offices and positions open to all under conditions of fair equality of opportunity.

First principle resembles part III of the Indian Constitution with due limitations expressed therein. There is also equality of opportunity to Government jobs under Article 16.

Principle two is nothing but directives under part IV to the State to arrange social and economic inequalities to the greatest benefit to the least advantaged. Thus, it rejects efficiency, utility or majority supremacy. Also, there is concern for upcoming generations by justly saving resources. We can refer Article 48A and 51A (g) and other environmental legislations and judgments in this regard.

“Artha eva Pradhanah”. Thus women must have equal proprietary right as men as being citizen of India. (Not mere equal pay for equal work as per Article 39(d) of Indian Constitution).For existence of a just society as a result of just control over resources, just distribution (Remember women bind a family and give nourishment to her child. Also family is a unit of State.). Women need to have strong backing of laws and liberal interpretation provided by Courts. Thus, for fulfilment of the personality of Human being, to fulfil the dream aimed under Article 1 of U.D.H.R. (Universal Declaration of Human Rights) progressive legislations like (Hindu Succession Act- section 14 or The Protection of women from Domestic Violence Act, 2005) are to be made. An amendment in section 14 of Hindu Succession Act can be made where property shall include “intellectual Property”. And the word “or having equitable interest” may be added after the phraseology of “female Hindu”; “and enjoyed ‘’ with the word “possessed”.

Generally all married men are indebted to their wives for all intellectual creation made by them (Husbands) as wives provide nourishment, intellectual support and congenial atmosphere which are very essential for any lasting-creation.
~~~~~~~~~~~~~~~~
*** Faculty, Haldia Law College. He can be contacted at bibhabasumisra@gmail.com.
# The author is greatly indebted to Late. Dr.Santosh Sarkar from whom he learned the nuances of interpretation.

# By going through section 5 and 7 of Hindu Marriage Act, 1955 one understands Hindu marriage is a social institution and observation of ceremony is essential. “Solemnization” is having a special significance to complete a valid marriage. See AIR 1965 SC1564 and AIR 1994 SC 135

# Manu Smiriti IX 64-68.
# A rudimentary form of law of estoppels as defined in section 115 of Indian Evidence Act, 1872 was perhaps already in existence.
# H.V. Sreenivasa Murthy, History of India, 1993 Edition Reprinted 2002 at p. 124.
# J.K Trust vs Commissioner of Income Tax AIR 1957 SC 846

# AIR 1978 SC 597. Bhagwati, J propounded direct and inevitable test to test the Constitutionality of any Act in the touchstone of fundamental rights. Thus object of the Act is irrelevant in this regard. Also Constitution shall be treated as composite code.

# AIR 1979 SC 898
# Clause(2) of Article 254--- Provided that nothing in this clause shall prevent parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the legislature of the State.

# AIR 1952 ALL 746
# Now deleted by 44th Amendment Act, 1978.
# AIR 2003 NOC 126(HP)
# AIR 1967 SC 1786
# Salmond on Jurisprudence, 12th edition, (ed.) PJ Fitzgerald at page 246.
# Ibid at page 254
# Ibid at page 287
# Civil Procedure Code.
# Professor Hilaire McCoubrey and Dr.Nigel D. White, Text Book on Jurisprudence , Third edition, Oxford University press ,Chapter 15 at p 306.
# C.A.D vol-VII, pp 43-44
# Article 142 and 144.
# See Lloyd’s Introduction To Jurisprudence, 7th edition at p 549.
# All human being are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

The  author can be reached at: bibhabasumisra@legalserviceindia.com

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