30 Strīdhana

CHAPTER XXX

STRĪDHANA

Stridhana ( woman’s property ). This subject abounds with differing views on several topics that fall under it, as will be Been below.

The germs of the topic of stridhana can be traced to the Vedic Literature. As Sir Gooroodas Bannerjee remarks (in : Marriage and Stridhana’ p. 370 ), ’ 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’. The wedding hymn in the Rgveda ( X 85 ) contains two verses 1483 ( 13 and 38) which indicate that gifts were sent to the bridegroom’s house with the bride, They are : ’the bridal gifts of Sūryā that Savits sent off have gone forth; in the Agbās (Māgha constellation) are struck the kine and in the Arjunis ( Phalguni constellation) is carried ( the bridal gift ); for thee in the beginning they carried about Sūrya together with the bridal gifts &o.’. Sāyaṇa explains ‘vahatu’ as ‘cows and other objects given for pleasing the girl to be married’, while Lanman ( Harvard O. series vol. VIII p. 753) renders it as ‘bridal car’. Sāyaṇa’s interpretation suits the context much better. In the Tai. S. VI. 2. 1. 1 we read, 1484 ’the wife ( of the sacrificer) holds on ( to the cart), for the wife is the mistress of the household gear’. Manu IX. 11 uses the word ‘pāriṇahya’ (household gear) and states that the wife should be entrusted among other matters with the supervision over it. Jaimini 1485, according to Sabara, refers to

1483, warang:

A PAT TETE I NIE Tam atrati ogga u तुभ्यममे पर्यवहन सूर्या पहनना सह । पुनः पतिभ्यो जायां दा अमे मजया सह ॥ . x. 85. 13 and 38. These are almost the same as ferrata 14. 1. 13 and 14. 2. 1.

1484. og graft it ortraita. . VI 2. 1. 1 (in connection with h ere are).

1485. FTATC Futura I. VI 1. 16; geeft orrortare poate the at I put. The priated text differs from the Tai. S. text. Once would mean ’nuptial gifts’. The f. t. p. 517 explains of one (in Vas. 17. 46) as fupra out

ofe (paraphernalia, mirrors and bracelets). :p.fr. p. 142. roads o f (combs &c.). FA. T. (folio 160) says:, पारिणासाहपरकर आवर्शकणतामलकरण्यकादिरिति कल्पतका । परिणेअमिति पादापोतकनित्यम्पे.

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this passage of the Tai. S. for establishing that women do own certain property. Medhātithi 1486 on Manu VIII. 416 ( cited above on p. 452) quotes this passage of the Tai. S. and argues that if Manu VIII. 416 ( saying that whatever a wife earns is her husband’s ) were literally understood passages like the one in Tai. S. would have no scope and that therefore Manu simply means that though women may be owners they cannot dispose of the property independently. It appears from these ancient passages that the properties, which in early days were held to be owned by women, were presents made at the time of marriage (such as ornaments and costly dresses) and household articles that are generally under the control of women and that the later smrti rules about the devolution of stridhana in the female line arose from the peculiar nature of the articles over which dominion was conceded to women. This early state of things is indicated by some of the early sūtras. Ap. Dh. 1487 S. (II. 6. 14. 9) states the view of some predecessors ( which Āp. himself does not approve) that the ornaments belong to the wife and also such wealth as came to her from her agnates (father, brother &c.). Baud. Dh. S. II. 2. 49 says that daughters get the orna ments of their mother and whatever else it is customary for them to get. Vag. 17. 46 prescribes that women ( daughters ) should divide the nuptial presents given to their mother. Saṅkha (q. by Sam. Pr. p. 851 ) prescribes that in all forms of marriage ornaments and stridhana should be given to the girl. It may be that Manu VIII. 416 only gives expression to an ancient opinion, that the literal meaning of that verge was given up long before and that all that Manu meant was that during coverture a woman was subject to the control of the husband as regards her stridhana.

..Three principal topics have to be discussed under stridhana viz. what constitutes stridhana, woman’s dominion over her

1486. Hra ofront maradt groterat fragrafe aftoranti perfe भुतयो निरालम्बनाः स्युः । अत्रीच्यते । पारतम्याभिधानमेतत् । असत्या भर्चवज्ञायां न

i panga 4* wro formaggi Aur, on AE VIII. 416.

1487. Here wrapar

m etar. u. . 11. 6. 14. 9;

A rt hati #temi

Tit. y. If, 2. 49; #: artare fara TV fa 19. 46. The fa. t. p. 521 explains ara, as if i eft fun योतकास्यं लम्स पि भाया पप’. The मिता. on पाश. II, 17 seems to have read this as a supplement to the preceding sūtra about the special share of the eldest son. The Trg IV. 2. 15 p. 82 and our p. 75 read पारिणाय in Vas. and explain as परिणपनलाधं धनं or विवाहकाली respectively.1742

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stridhana and inheritance to stridhana. On each one of these topics great diversity of views prevails and the subject has become very complicated, as the Dayabhāga remarks 1488

Gautama contains three sūtras about the devolution of stridhana, but he does not define or describe it. 1488a Kaut. (III 2. p. 152 ) defines 1489 : ‘means of subsistence and what could be tied on the body (i, e. ornaments and jewellery ) constitute stridhana, The means of subsistence should be fixed at 2000 (panas) as the maximum, while there is no limit to ( what may be given) as ābadhya ( ornaments &c.)’. This may be com pared with a verse of Kāt. (902) and a similar 1490 verge of Vyāsa viz. the father, the mother, the husband, brother and kinsmen should give stridhana to a woman according to their means up to two thousand (panas ) except immovable pro perty’. The Sm. C. and V. Mayūkha explain that this limit of 2000 applies to gifts made every year, but that if a gift is to be made once for all, then more may be given and even immovable property may be given.

The term stridbana literally means ‘woman’s property’. But in the ancient smrti works the word was restricted to certain special kinds of property given to a woman on certain occasions or at different stages of her life. Gradually such kinds of property went on increasing in extent and value. We have to follow this evolution of the meaning and content of the word stridhana. One characteristic feature of stridhana from the times of Gautama downwards has been that it devolved on females in the first instance. The oldest extant definition of it

1488. F U TA

TOUT IV. 3. 42 p. 99. 1488a. For exhaustive treatment of stridbana the following works may be consulted : Sir Gooroodass Bannerjee’s ‘Hindu Law of marriage and stridbana’ (5th ed, of 1923 ) pp. 319-519, Dr. Jolly’s T. L. L. on. Adoption, Inheritance and Partition’ (1885) pp. 226-270.

1489. Te vaga EWT FUGT i imaatit i mu FII III. 2.

1490. पितृमातृपतिभातशातीभिः श्रीधर्म नि । यथाशवस्या दिसाहमार बातम्य furatrah i 91. q. by Fry, If 281, RT FIII. p. 348, . * p. 154: fty Tet : 91 YATT Iqma wa T ANART PETE 4. by Frau. II. p. 281, Beret p. 752. pour IV. 1. 10, TUTTO, 14. HTW p. 154. The TT, 27. III. p. 548 quotes to TUTT* o Hata a frutas

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in Dharmaśāstra ‘works is that of Manu 1491 IX. 194: ‘what (was given) before the nuptial fire, what was given on the bridal procession, what was given in token of love, what was received from her brother, mother or father, that is called the sixfold woman’s property’. The Mit, on Yāj. II. 143 explains that the number six is intended to exclude & smaller number of the kinds of stridhana and does not exclude a larger number. In IX. 195 Manu appears to mention one more kind viz. ‘anvā dheya’ ( gift subsequent)! Nār. ( dāyabhāga, 8 ) has the same six kinds as Manu IX. 194, but reads ‘bhartļdāya’ (the hus band’s gift ) for Manu’s what is given in token of affection, the latter being thus wider than Nārada’s words. Yāj. (II. 143 44) enumerateg 1492 the several kinds of stridhana as follows: “what was given (to a woman) by the father, mother, husband or brother or was received by her before the nuptial fire, or what was presented on her husband’s marrying another wife (adhivedanika) and the like these are denominated stridhana; so also what is given by the cognate relations ( of the woman), the sulka (fee), and gifts subsequent to marriage’. The Mit. and most of its followers read ‘ādhivedanikādyam ca’, while Aparārka and the Dayabhāga read ‘ādhivedanikam caiva’, the difference being that if one reads as the Mit. does, several other kinds not expressly enumerated can be easily included under stridhana. But it should be noted that even without reading

kādyam’, Aparārka explains the verse in the same way as the Mit. does. Viṣṇu 1493 Dh. S. 17. 18 enumerates almost the same kinds of stridhana as Yaj., but omits the word ‘ādya’.

Among smrti writers Katyayana gives the most elaborate treatment of stridhana in about twenty-seven verses. He

1491. 38qFTuaregla ** aafiat i #rgararagare ettepe au Wa# #IX, 194. Frar. (894) acc. to Eur (IV. 1. 4 p. 72), A. T. 522 and . . p. 138 had practically the same verse (reading sifata: f ).

The free. says, ‘gaya … … *

• Taragra Al regrare: 1; reparar og helg i Taranaqur T विध सीधनं स्भतम् । नारद (दायभाग, 8).

1492. fagrargaTTO #Traini a parate any w of Ratu T

T T I 7. II, 143-144. On af *, notre p. 751 says: HIU:: 1

rotor: 1 yu r af: पल्यः समाशिका:, माताप्यंशं सम हरेत् । स्वरमादेशानुभाग, मातुः परिणालियो विभजे. रन, अग्यदपि यत्तीस्वामिक तत्त्रीधनमिति मन्वादिभिः परिकीर्तितम् ।. Against the reading the वालम्भही remarks “अभाविपदनिका ति मायभूतपाठी मयुक्तः, the foreia, Franti, unatatiuni

· 1493. . forargerr y gamaararaan ng pamanta

ifrax 17, 18. .

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defines several kinds of stridhana enumerated by Manu, Yaj., Nar., and Viṣṇu (in all six) as follows 1494 : what is given to women at the time of marriage before the nuptial fire is declared by the wise to be adhyagni 1495 stridhana. That again which a woman obtains when she is being taken (in ā procession) from her father’s house (to the bridegroom’s) is declared to be adhya vahanika stridhana. Whatever is given to a woman through affection by the father-in-law or mother-in law and what is received by her at the time of doing obeisance at the feet ( of elders) is said to be pritidatta (gift through affection) stridhana. That is declared to be sulka ( bride’s fee) which is obtained as the price of household utensils, of beasts of burden, of milch cattle, ornaments and slaves. Whatever is obtained by a woman after marriage from the family of her husband as also from the family of her (father’s) kingmen is said to be anvādheya (gift subsequent). According to Bhṛgu whatever is obtained by a woman after marriage through affection from her husband or from her parents is anvādheya’. It may be noted that Katya yana’s definitions of adhyagni and adhyāvahanika are wide

1494. विवाहकाले यस्त्रीभ्यो दीयते प्रप्रिसंनिधौ । सदापनिकतं सद्धिः सीधन परि कीर्तितम् ॥ यापुनर्लभते भारी नीयमाना पितहात् ।। अयावनिक चैव श्रीधनं तदुदाहसम्॥ प्रीत्या परत यत्किंचित् श्वबा पाश्चरेण वा । पादयन्दनिकं चैव भीतिवर्स तस्यते ॥

होपस्करवामाना दोणाभरणकर्मिणाम् । मूल्यं लब्धं तु परिकचिएल्कं तत् परिकीर्तितम् ॥ विवाहापरतो पत्त लब्ध भईकुलात् लिया । अवार्य तदुक्तं तु लग्ध पन्धुकुलात तथा । अर्थ लग्ध पस्किषित संस्कारात् प्रीतितः प्रिया । भर्तुः पित्रोः सकाशादा अम्बाधेयं त तद भयुः जडया कम्ययावापि भर्नुः पितरपि वा । भ्रातः सकाशात् पित्रो लग्छ सौदायिकं स्मसम् ॥ कास्या. 895-901. The मिता. quotes all except two (viz. 898 and 900), the दायभाग (IV) quotes all except 897, पि. र., (pp. 510, 524-525) reads all; दीपकालिका, दायभाग IV. 1.5p. 73, कुललूक on मनु 9. 194. वि. चि. p. 138 read मीयमाना हि (or r) पैतृकात् ।। 896; अपरार्क P. 751, ग्यव. नि. ‘p. 465, पिवावचन्द्र p. 77.वि.पि. p. 138 read तलावण्यार्जितमुच्यते for प्रीतिदतं तदुग्यते; दीपकालिका, ग्यवहारसार p. 237, ग्य. म. p. 543 read दोणाभरणकर्मणाम् , वि. वि. p. 139 and ज्य. मयूख p. 153 read यसग्धं स्वकुलातथा मिसा., स.पि. p. 380 read पल्लग्धं पित. कुलातथा. दापभाग reads भर्तुः सकाशात् पित्रोवो.

1495. Some of the words deserve explanation, auto is formed as an अग्ययीभाव trom अधि+ अzि acc. to पा. II. 1.6 ‘अग्य विभक्तिसमीप ’ and means अमो अधिकस्य अनिसंनिधौ इत्यर्थः (बालम्भही), आधिदानिक अधिवदनं धर्म पला सरपा रागत पर विवादातरकरणं तत् निमितं अस्येति । सुबोधिनी and पालम्भही (which relies on पा.V.1,38). Some read पावनिक, others read अश्यावाइनिकम्, भावान or आवाहन means पितालाइ भत्कुलमातिः (मन्दन on मा Ix. 194) तत्सम. पोपलपमण्यामिक अन्धाधेय means अह (विवाहानन्तरं) आधीयते इति (मन्दम). Instead of that some read arrogant (obtained by her loveliness) which is explained by theवि.पि. (138) as लावण्यं शीलमैपुण्यादि । तथा च पादमणताये सीलादिमा नि नारादिना इस ती जीधनमित्यर्थः। .

III ) .

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enough to include gifts made even by strangers on those occasions.

These definitions given by Katyāyana have been accepted by all digests including even the Dayabhāga.

“That is known as suudāyika which is obtained by a married woman or by a maiden in her husband’s or father’s house from her brother or from her parents” (Kāt.). Some of the divergences in readings and in interpretation deserve to be noted. Acc. to the reading adopted by the Mit. adhyāvahanika includes all gifts made by any one when the newly married girl is taken from her father’s house in a procession, while the reading adopted by the Dāyabhāga 14% and some others ( paitȚkāt) restriots the adhyāvahanika to gifts made by the father’s or inother’s family only. The V. R. (p. 523 ) includes under adhyāvāhanika also the gifts made by the father-in-law and others when the girl is taken back to her father’s house and the V.C. (p. 138 ) says that it is what is obtained at the time of ‘dvirūgamana’. The Dāyabhāga 1497 (IV. 3. 19-20 p. 93 ) explains ‘dohyabharapa-karmiṇām’ differently as ’the gratifica tion paid by house-builders or goldsmiths to induce her to press her husband to engage thern’ or as Vyāsa says ‘what is given to a woman to induce her (cheerfully) to go to her husband’s house ‘. The Sm, C. and V. P. explain sulka as the price of the articles which the bridegroom was in the habit of presenting to the bride at the time of marriage or when he started a house. 1498 The V.

1496. H arare unayotupwe va ser Alat narare formati 1CHT IV. 1. 6 p. 73. ’ uerer forecas t TTT symetirano Ararurararaa UTETTU: ni w 1914RIFUTE !! . . pp. 522-523 : Para sacuerh navarrEPATATAS: I. r. p. 138. The printed editions do not contain the comment of Aurrera on AB IX, 194 and the following verses. . 1497. गृहाविकर्मिभिः शिल्पिभिस्तत्कर्मकरणाय भादिमरणार्थ मियै यहुत्कोचदानं program TOY TO TRAVERTET I THI UT VOI

Orna oft कीर्तितम् । भईरहगमनार्थसुत्कोचादि यह सच माझादिष्वपिशिष्टम् । दायभाग IV. 3. 20-21 p. 93.

1498. The change in the meaning of sulkā is interesting. One mean ing of sulka is ’tax or toll on merchandise’. Vide Vianu Da S. III. 29, Yaj. II. 173, 261, Vas, 19. 37. Pāṇini V. 1. 47 uses that word in that sense (archivarengantar fon) and the Kaśikā explains it as foragit mara y t. Another sense is ’the fee paid to the bride or her parents by the bridegroom in consideration of marriage’. The word occurs in

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Nir. (p. 468 ) states that sulka has two sensos ; (1) what is given as the price of the girl to the guardians of the girl which goes to the mother and brother (on her death); (%) what is given ( by the bridegroom ) as the price of the ornaments for the girl and of the household gear. 1499 Another verge of Kāt. (904) has been quoted by many writers, which restricts the literal sense of the word stridhana, ‘over that wealth that is obtained by a woman by mechanical arts (such as spinning ) or from a stranger through affection, the husband has ownership.

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Gaut. 28. 23 and in Saṅkha (svayan sulkanı vodha) q. by V. R. p. 321. In very ancient days there appears to have been a practice to offer in some casos considerable wealth to the father of the bride to induce him to give her in marriage. Rg. 1. 109. 2 refers to this : ‘O Indra and Agni! I have heard that you are more liberal than even an unsuitable (or deficient) son in-law or even a brother-in-law’. Yaska (VI. 9) in explaining this verse remarks that the southern people speak of the husband of the bride that i purchased as vijāmātṇ’ (for Paṣa Timors: TOPTATUM HE FATA P ona:)But this verse also shows that the bride’s brother (syāla) bad to give wealth to his sister’s husband. Vide H. of Dh. Vol. II, pp. 503-506 for passages about the sale and purcbase of girls in marriage from ancient times right down to 1800 A. D. Though sometimes girls were purchased for marriage, popular feeling gradually asserted itself against this, In the Vanaparva (115. 23 ) Gadhi claims as the custom of his family one thousand horses of the best kind from Rcika when the latter prefer red bis suit for the hand of GĀdhi’daughter (fent : foran परस्समवर्तितम् । एकता पामकर्णाना पाणुराणां तरसिमाम् । सहनं वाजिनी शुल्कमिति of fr ). Vide Anuśāsana 4 12 ( for a similar statement) and 2. 31. Mana III, 51 forbids the taking of even a small gratuity through greed by the father when giving away his daughter in marriage and says that if he does so he would be guilty of the sale of his child and in III. 54 (almost the same as Agusāsana 46. 1-2) Manu says that when agnates do not appro priate to themselves the gratuity paid ( by the bridegroom) for the bride but band it over to the bride then it is not sale, but it is honour shown to the girl and is merely kiadness to her. The Mit. defines sulka as the gratuity after getting which the girl is given. The V. C. p. 139 deines it as what is obtained from the husband on condition of furnishing household gear &c. ‘गहोपस्करादिकरणोपाधिना प्रिया ग्रहपतितो पहर तरघुल्कमिस्पर्थः . 1499, grenitras oft

ret धातुगामि वा. । कग्याभूषणरहोपकरणदल्यत्वेन दत्तमपरं पल्कम् । तदाताभिरेवादियम् । 194. ft. p468.

Definition of stridhana

the rest is declared to be stridhana :.1500 The prima facie view (purvapakṣa) in Jai. VI. 1.12 urges that what a woman gets by serving cooked food or by cutting clothes does not belong to her. The gifts from strangers here referred to are other than those made by a stranger before the nuptial fire or at the time of the bridal procession. This definition makes it clear that what is obtained even from a stranger by a maiden or by a woman who is a widow at the time of the gift is pure stridhana, Devala says, ‘maintenance ( what was given for maintenance), ornaments, sulka (bride’s gratuity ), the profits of money-lending are a woman’s stridhana. She alone is entitled to enjoy it and the husband is not entitled to enjoy it except in the case of distress’. 1501 Manu IX. 200 states, the heirs of the husband should not divide ( among themselves ) the ornaments worn by women during the lifetime of their husband; if they divide them they incur sin’. In the printed editions of Manu there is no comment of Medhātithi on this Verse, but the V. R. (p. 509), V. C. p. 139, Dayatattva p. 184 all say that acc. to Medhātithi oven ornaments, though not donated expressly, become stridhana, if worn with the husband’s consent. 1532 According to the Vaijayanti such ornaments should be assigned to the share of the woman’s husband so that she alone might put them on and that it is not meant that such ornaments are not to be taken into account at all at the time of partition.

1500. प्राप्त शिल्पैस्तु यद्वित्तं प्रीत्या चैव यदन्यतः । भर्तुः स्वाम्यं तदा सत्र शेषं तु श्रीधनं स्मृतम् ॥ कात्या. q. by दायभाग IV. 1, 19-20 p. 76, स्मृतिच. II. p. 281, परा. मा. III. 550, स्य. मयूख p. 154. दायभाग explains: अग्यत इति पितृमातभतकल. म्पतिरिक्तात् यलब्धं शिल्पेन वा पदर्जितं तत्र भर्तुः स्वाम्यं स्वातम्यम्, अनापद्यपि भर्ता ग्रहीतुमर्हति तेन बिया अपि धर्म न श्रीधनमस्पातळयात्. ‘यदनया भक्तोरसपणेन पा कर्तनेन वा धनमुपार्जितं तेन यक्ष्यत इति । उच्यते तदप्यस्या न स्वम् ।। भाग्य on जै. VI. 1. 12.

1501, वृत्तिराभरणं शुल्क लामच नीधर्म भवेत् । भोक्त्री च स्वयमेवेद पतिहिल्पना. पदि देवल प. by अपरक p. 755, स्मृतिच. II, p. 283, वायभाग IV. 1. 15p. 75. वि. र. p. 512, ग्य. मयुमp. 56, वि. चि. p. 141. Some read पxिः (भ्य..प्र. p. 545 does so ). लाभ is variously explained. लभ्यते इति लाभः । एतदुक्तं भवति । पार्वत्यादि प्रीत्यर्थ व्रतादौ यत् श्रिया लभ्यते तदपि श्रीधनमिति । स्मृतिथ. II. p. 283; ज्य. प्र. p. 345 and मदनरस्न follow this, ‘लामो पन्धुम्यो लग्धम् । वि… p. 512, वि.चि. p. 141; ‘वृत्तिजीवनार्थ पित्रादिवत्तं लाभो पद्धि प. मयूख p. 156.

___1502. परयो जीवति पः श्रीभिरलारो भूतो भवेत् ।म भजेरन दायादा भजमाना पतन्ति ते मनु IX. 200, which is almost same asष्णुिधर्मरा 17. 22. पत्युपशावेशा (ज्ञानेना)प्यबसोप्पलहारो यो मण्डनार्थता सोपि वायदिन हम्य इति मेधातिधिरिति प्रकाश मि… p. 509: पत्थुरवसोपि तवडापा परिहितोप्यलारस्तापतेव भार्यायाः स्वीयो भवतीति मेधातिथिः । वि.पि. p. 139 and दायतरवp, 184,

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Saudāyika is not a special kind of stridhana, It is rather a comprehensive term for several kinds of stridhana as the defi nition given by Kat. shows and as the v.C.(p. 139) expressly states 1503. It is almost synonymous with stridhana in the tech nical sense. Acc. to most writers, it is wealth received by a woman, whether as a maiden or as a married woman, in her father’s or husband’s house from her parents or relatives of the father and mother. The Sm. C. II. p. 282 and V. R. p. 511 hold that saudāyika is all wealth obtained by a woman whether as a maidon or as a married woman from her mother, father or paternal relatives only, while the Diyabhāga IV. 1. 23 pp. 76-77 and V. C. hold that saudāyika includes also all property donated by the husband except immovable property, which latter she cannot alienate even after her husband’s death. There is a Verse of Vyāsa 1504 that defines saudayika similarly, ‘whatever is obtained by a woman as a maiden at the time of marriage and after marriage from the house of her father or husband is termed saudayika.’ The word ‘saudayika’ is derived from

sudaya’ and means, according to the Dayabhaga IV. 1.22 p. 76, ’ received from affectionate kindred’. The Amarakosa Bays that ‘sudaya’ means ‘gifts of yautaka and the like’ and that saudayaka is merely a derivative without change of meaning. 1505

Another word requiring explanation is ‘yautaka’. It occurs in Manu IX. 131, ‘whatever is the yautaka of the mother goes to the maiden daughter’ (and not to the married daughter or son). So yautaka seems to be a synonym for stridhana in

1503. एवं श्रीधनानि भवन्ति । एतदेव श्रीणी सौदापिकं तथा चकात्यायनः । जापा … भवेत् । परयुरित्यत्रापि ग्रहेति सम्बन्धः । … प्रातरित्युपलक्षणम् । तेन कम्पया था ऊदया पा पितृतो वा तस्कुलतो वा पतिकुलतो वा यन्धं तस तस्याः सौदायिकमित्यर्थः । वय. माणापादिकमप्येतत्पशा वि.पि.p. 139;बायभाग IV. 1. 21 reads भतः सकाशात् पित्रो, ‘भः सकाशादिति कल्पतर्वादी पाठ ‘प.प्र. p. 543,

___1504. चकम्यया विवाहेच विवाहापरतब यत् । पितभर्तृहात्मासं धनं सौदापिक स्पतम् पास. १. by सतिष. II. p. 282, स.वि. p:378. ….1505. वायसम्बन्धिम्यो लब्धं सौदापिकम् । वापभाग IV. 1. 22; पोतकादि । पद वायो हरणे. व तत् । अमरकोश नह’सौदापिकत पदे उदायो भरणं तत् । इति निषणपाठात् कथं सौदायिकशब्दोत्र प्रयुक्ता । स्वाथै सबिताततयेत्यमवयम् । सतिष II. p. 282. The quotation from Amara seems to be corrupt as printed by Mr. Gharpure; the Mysore edition correctly reads पौसकादित परे सुदाप इति निषापाठा (vol. III. 2. P. 655), ‘शुदाय एव सौदाधिक साधिकटन। स्वदापतो लम्पमिति वा । स्वदायर उदाप सम्बग्धिम्यो लन्धमितिमा पालम्माजी on पा.11.143.

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Meaning of yautalca

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the technical sense. The Sm. 1506 O. II p. 285, Madanaratna (folio 105 b ) and V. Mayūkha remark ‘yautaka is that wealth that is received as a gift from anybody by a woman while she is seated together with her husband at the time of marriage and the like’. It is derived from yuia ( joined ). It should, however, be noted that Yaj Il. 149 employs the word yautaka as an adjective in the sense of separated’ and that Medhātithi on Manu IX. 131 explains ‘yautaka’ as the separate property of a woman, her stridhana. The Sm. O. II. p. 285 remarks that Devasvāmi derived “yautaka’ from ‘yu’ (to separate ) and held it to mean ‘wealth obtained from the family of the woman’s father which is separate in its characteristics’. The V. C. p. 142 and Vivādacandra p. 74 read ‘yautuka’ and the former explains it as gifts from the father and the like at the time of marriage. The Dayatattva (p. 186 ) states that both forms ‘yautaka’ and ‘yautuka’ are in vogue and relies on Vācaspati and Rayamukuta in support.

Kaut. (III. 2. p. 153) names sulka, anvādheya, adhivedanika and bandhudatta as kinds of stridhana.

The above are the principal smrti texts on the question of what constitutes stridhana. It will be seen that the smrtis only enumerate and describe certain kinds of property as stridhana, which word is not used by them in the etymological sense of ‘all kinds of property possessed by a woman’. They do not attempt a comprehensive definition of stridhana. From the texts of the smrtis it follows that stridhana was a technical term, which at first included only six kinds of property, then nino and ultimately by the time of Katyāyana it included all property (whether movable or immovable) obtained by a woman, either as a maiden or at marriage or after marriage.

1506. lari portare rreta auttavat may I was a famoga Turarara

i n folio 105 b, 7. 7 p. 158 quotes the Heart f. & p. 517 explains**** propa funrara Raqw’s att. HT. III. p. 552 explains as fougueut. Ta parastasena wotfueront विवाहादी येन केषिसमपितं धनं तबधूवरपोदेयं तयोर्योतक मतमिति निषण्कारोक्तवात् । …देशस्वामी तु पितहासन्ध भतरहालब्धापेक्षा पुग्धमतया योतक मातृधनं । भानुधनं!) Hrana ianuarie TFT TEATRITEUTET I farfa. II P 285. Vido r. . p. 348 for most of these being brought together. wefan. p. 463 explains पोत मातुकललाधर . ‘पौवकशवः प्रथमानवीथ जबदितस्था एष केपलाया

साम्पम् । भाइसौदायकमेव वरसम्बन्धी ताहिरा सातनपा । मेघा . AL IX. 131: tror TAWTTTH a var olan ay i a m RF परिजनपूर्वापरीभूतकाला सचादिभावाभपश्यभिवादनान्तो विवादतने

विपतt tap 186.

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from her parents or the family or relatives of the parents or from the husband and his family (except immovable property given by the husband) and that what was obtained by a woman after her marriage by her own labour or from strangers did not become stridhana. Most emptis employ the word ‘datta’ ( donated ), but Kat, and Vyāsa sometimes use the word * obtained’ (prāpto or labdha), which is ordinarily wider than

datta’. But it is clear that the commentators do not expressly. say that ‘obtained’ includes inherited’, though from their general remarks to be quoted below it is arguable that they probably included inherited property under property obtained.

This is stridhana in a technical sense.

It is now necessary to find how stridbana was defined by the several commentaries and digests that are held authorita tive in the several schools. This is a most important matter for practical purposes, since the courts have to follow the opinions of commentators 1507 that are authoritative in each school and are not at liberty to put their own construction upon ancient smsti texts, if such construction would run counter to the express opinions of the authoritative commentators. First then comes the Mitakṣarā. Its gloss on Yāj. II. 143 may be translated as follows 1508; ‘whatever is given by the father, mother, husband and brother; what was presented by the maternal uncle and the like at the time of marriage before the nuptial fire; and adhivedanika, that is, gift made (by the husband) at the time of marrying a second wife as will be described subsequently in the words he should give to the wife that is superseded’( Yāj. II. 148 ); by the word ’ adya’ (meaning and the like ‘) is indioated property that is obtained by succession, purchase, partition, seizure or finding-all this is declared by Manu and others to be stridhana. The word stridhana is employ ed here in its etymological sense and not in a technical sense, since, when the etymological sense is possible, it is improper to resort to the technical sense.’ The Mitakṣarā expanded the

1507. Vide Collector of Madura v. Mootoo Ramlinga 12 Moo. I. A, 397, 136, quoted in Atman www. Bajirao 62 I. A. 139 at p. 143. .

1508. पिघामाचा परपा प्रामापरसंवा विवाहकालेऽसावधिकल्प मालादिभि. ईस, भाभिषेपानिक अधिवेदननिमितं अधिषितानि पचादिति वक्ष्यमाणम् । भापशब्देन firari TTRUT STARTET

B R Amarily w a ngepat wisata erfti A

TA M ITTANT. Op 77. II. 143. As agaiak the best satsaca of the Mit may be compared the maxim (nyaya ) WTTT: (rahleck upea la porte . I. 1. p. 300).

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Mita ksarā interpretation of stridhana

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definition of stridbana so as to include under it the five kinds of property of which a man becomes owner in various ways according to Gautama X. 39. The result is that, according to the Mit., property of any description belonging to a woman be comes stridhana even if it be inherited by her from a male as a widow or as a mother or even if it be obtained at & partition by a wife or mother (acc. to Yaj. II. 115 or 123 respectively). The same interpretation of the word ‘adya’ has been accepted by several works, such as the Madanapārijāta (p. 671 ), the S. V. (p. 379), V. P. (p. 542 ), the Bālambhatti. Aparārka without reading “ādya’ gave the same explanation of ‘ca’ as stated above ( on p. 773). On the other hand, the Dayabhāga gave a restricted meaning to the word. Jimūtavāhang reads Yāj. II. 143 as ‘ādhivedanikam caiva’, quotes the verse of Devala (in note 1501), remarks that stridhana is not restricted to the six kinds of Manu (IX, 194) but includes other kinds mentioned by other smrtis and finally 1509 observes : ’that alone is stridhana which a woman has authority to donate, sell or enjoy indepen dently of her husband’s control’. The Dāyabhāga does not expressly state the kinds of property that a woman can dispose of independently of her husband, but immediately after defining stridhana it quotes the texts of Kāt. (about earnings from mechanical arts and gifts from strangers), and Nār. (IV. 28),

what has been given to a wife by her loving husband, she may spend or give away as she likes even after his death excepting, immovables’. From this it follows that, according to the Dāya bhāga, all gifts from relations except a gift of immovable pro perty mada by the husband and gifts from even strangers made before the nuptial fire or on the bridal procession constitute stridhana, but property inherited by a woman or obtained:on, partitiou, gifts from strangers (other than the two kinds noted above) and property acquired by her by mechanical arts or by her labour are not strīdhana, The Dayatattva olosely follows the Dayabhāga. See on

The Sm. C. does not give a defintion of stridbana, but it, does not adopt the interpretation of the word ‘ādya? given by:

1509. P a raurter horny fiefaret fit # कीसममानपराणि वनानि । तदेवधर्म यद भवतः स्वातनायेण बामविकापभोगाम्कर्षमा विकरोति। … स्थापि भवनमा त्रिपा दामायनाधिकार। तदार मारण: । भर्ना पीतेन पर निचे तस्मिन्मतोपे तत् । सा पचाकाममनीपाद दबाई स्थायराइते । मदनविशे

op weg narating and profitar al 74 Iv. 1. 18 and 23.’ miptor says ‘stort in Afritt svaraos782

(Vor.

the Mit. Therefore it may be said that it is in line with the Dayabbāga. The Par. M. IIL p. 547 1570 (another Madras autho rity ) appears to follow the Mit., since it says: “adya’ in cludes adhivedanika’ and what is acquired by inheritance, sale and the like.” The Vivādacintamani (the leading authority in Mithila ) does not define stridbana in general, but enumerates the several kinds of strldhana described by Manu, Yāj., Viṣṇu, Kat., and Davala and so is on a par with the Dayabhāga. The V. Mayūkha divides stridhana into two kinds, pāridhāṣika (tech nical) and aparibhā șika ( non-technical). The former comprises properties expressly stated to be stridhana by the sages, while the latter includes all other property belonging to a woman (except what is called technical) and acquired by her by parti tion or cutting (sewing or other mechanical arts). 1$11 This division is peculiar to the V. Mayukha. The Viramitrodaya (the paramount authority in the Benaros school) agrees with Mit. as stated above.

It is beyond the scope of this work to go deeply into modern caselaw, But it is necessary to show how the Indian Courts have in modern times dealt with stridhana as defined by the oommentators. It may be said at once that the inclusion by the Mite of property inherited by a woman or obtained at a parti. tion under stridbana has been totally discarded by the Privy Council for all provinces in India except Bombay 1512 A woman may inherit property from a male, such as from her husband, father or son or she may inherit property from a female, that is, from her mother, daughter &c. Both these kinds of property

1510. Bru u rgreyful firul)warfaret 19. AT. III. p. 347.

· 1511. om farm four ftrugo FAQ media marito wife

are 134. *** p. 160. 1512. Vide Sheo Shankar v. Debi Sakas L, R. 30 I. A. 202 ( a case from Allahabad) for the proposition that according to the law of the Benates school even property inberited by & woman from a female is not her stri dhada and does not pass to her heirs. Tha principal grounds for the deci sion were that as regards property laberited by a female from males the rule deducible from the gloss of Vijñānosvara had already been discarded and that even as to property inherited from a female the same rule had been applied in most High Cogrts (p. 208). Vide also Balwantrao 0, Baji Rad L: R. 17. 1. n. 213; 223 wbere the Pring Council, approve of the. Bombay High Court’s decision in Bhou v. Raghunath 30 Bom. 229” that a daughter: mocedding to her father takes the proporty absolately as stridbana in the Bombay Presidency.

•*?: … .

::.: :

In)

Stridhana under modern decisions

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are stridbana according to the Mit., but the Privy Counoil has held as to both these kinds that they are not stridhana; e. g. if a daughter inherits property from her father or inherits the stridhana property of hér. mother, it does not become her stri dhana, that on the death of the daughter, the property does not pass to her heirs, but to the next heir of the person from whom she inherited it. The Bombay school makes a distinction. If a woman enters a family by marriage and then inherits to a male of-that family (as e. g. a widow succeeding to her husband, a mother to her son or a predeceased son’s widow to her father in-law), the property she inherits is not her stridhana, she takes only a limited estate in it and on her death it passes to the next hoir of the male from whom she inherited. But if a woman inherits from a male belonging to the family in which she was born (e. g. a daughter succeeding to her father, a sister to her brother) or if a woman inherits property from a female, the property so inheritad becomes her stridbana (in Bombay). As to property acquired by a wife or mother on partition 1513, it has been held by the Privy Council that it is not stridhana even in provinces governed by the Mitakṣarā (including Bombay). .

Kāt. (903) declares : 1514 ‘whatever was given to a woman for wearing only on some occasion (or on condition) or with fraudulent intent by the father, brother or husband is not held to be stridhana.’ The idea is that if the father or husband gives some ornament to his daughter or wife for wearing on some special occasion (upādhi ) or if a father or husband in fraud of his co-parceners gives some family property to his daughter or wife it cannot become stridhana.

Dominion over stridhana.“What is stridhana and what dominion a woman has over stridbana depend on three things, viz. the source of acquiring the property, her status at the time of acquisition (i. e. whether she was a maiden or a married woman whose husband was living or a widow ), the school of law by which she is governed. Cortain verses of Kat, and Nar. are the principal texts on this subject. Kāt. (905-907, 911)

1513. Vide Debi.Mangal Prasad v. Mahadeo Prasad L. R. 39 I, A. 121, 131-132 (about the sharo of immovable property on partition aot boing stridbana and not passing on her death to her stridhana beirs).

isi4. या उत्सवादावे धामिस्येषमायुपाधिमा अलरावि दया दाणादा दिवशनार्थ व सत्रीधनं न भवतीत्याह कास्पायनः । या सोपाधिकं वर पत्र योगवशेष OTTI TEHT TITUUT RT riunfar va ulay II. p. 281. The verse is quoted by TT. AL. III. p. 549, 9. #7# p. 154 (reada ant staft Tr).

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Bays:1515 ‘on obtaining wealth of the saudāyika kind it is dec lared (lit. desired) that women have independent power over it, since it was given by them (the kindred) as support (or maintenance ) in order that they (women) may not be reduced to a terrible (or wretched) condition. It has been declared that women always have independence in saudāyika property as re gards sale or gift at their pleasure and even in immovables (if sandāyika). A woman, when her husband is dead, may deal with the gift (of movables) given by the husband as she pleases, but she should preserve it as long as he is alive or she may spend it on his family. Neither the husband nor the son, nor the father nor the brothers have power to use or alienate the stridhana of a woman’. The verge of Kat. about property acquir ed by labour or about the gift from strangers through affection and that of Nārada about the gift of immovable property made by the husband have already been quoted. From these texts it follows that a Hindu woman during her maidenhood 1516 could dispose of her stridhana property of every description at her pleasure, that during her widowhood she could dispose of every kind of stridbana including movable property given by the husband but not immovable property given by him and that a married woman whose husband was living could dispose of at her pleasure only that kind of property called saudūyika (i. e, gifts from relations except those made by the husband). Under modern decisions the distinction between saudāyika and

1515. leta s AICT front formare i Tarraresirata - जीवनम् ॥ सौदायिक सदा श्रीणां स्वातनयं परिकीर्तितम् । विक्रये चैव दाने च यथेष्ठं स्था. रेवपि ॥ भवायं वृते पत्यो विन्यसेत् श्री यथेष्टतः। विद्यमाने तु संरक्षेत् क्षपयेत्तस्कुलेऽन्यथा॥ नभर्ता नव चतान पिता भ्रातरोनचा आदाने या विसर्ग वा श्रीधने प्रभविष्णकारया. 9. sratrem p. 752 (except one &c.), t . II. p. 282, T4W IV. 1. 22 and 24 and 14. #46 p. 155 (except were &c.), f. I. pp. 510-11, 514 (all), far. pp. 139-140. On mrtiarū ft. (. says, ’ TYSITTAIFAT # TIT FT TIETFON 7 maturda(p. 511); Sasiuri #iqti: (ofistur). On Apr the fa. says reat fauna PULT Hern ier. Og भदाय the मतिच. says ‘भर्वदायो भवसम् । सन्मध्ये तु तदनन्तरोक्तपादत्रयेणाविष. माने परयो स्वातम्यमुक्तम् । विषमाने तु संरक्षदित्यभिधानात् । संरक्षेन्जद भयज्ञया विना

farahreradi. A. T. p. 511 and pa. fur. p. 140 take o n to moan Husband’s own property and the former says that MIGU and arco explained it as given by the husband,

1516. So long as a Hindu maiden is a minor she cannot alienate hor property or dispose of it by will ; only her guardian cap alienate it for pur posca laid down la Hunooman Pershad’s case: vide 6 Moo. 1, A 393 (cited above on p. 449),

Woman’s dominion over her stridhana

1785

non-saudāyika is retained, 1517 but the distinction between sau dayika given by the relations and that given by the husband is not kept. 1518 Now the woman’s power to dispose off as she likes depends on the question whether the gift was meant to pass an absolute estate or a limited estate even if the husband was the donor. During marriage when the husband is living her domi. nion depends under modern law upon the character of the stri dhana. If it is of the kind called saudāyika she can dispose of it by sale, gift or will as she likes without her husband’s con sent; but as to other kinds of stridhana property (such as gifts from strangers, property acquired by mechanical arts or property inherited ) she cannot dispose of it without her husband’s consent. If she disposes of it without such con sent the alienation is void. According to the D. B. IV. 1. 20 property acquired by a married woman by mechanical arts or by gift from a stranger is subject to the husband’s dominion during his life and may be taken by him even when there is no distress. No one else ( except the husband) has got control over oven such stridbana. After the hus band’s death, she can dispose of even non-saudāyika stridhana as she likes. But even as regards saudāyika the texts concede certain rights to the husband in certain circumstances. Yaj. II. 147 says: ’the husband is not liable to return to the wife her stridbana taken (i. e. used) by him in a fanine, for (indispangable ) religious acts, in disease, or when imprisoned ( by the creditor or by the king or an enemy ). 1519

1517. Vide Bhau v. Raghunath 30 Bom. 229 (where it was held that property inherited by a woman from her father could not be bequeathed by her without the consent of the husband who survived her). Bequests to a woman are on the same footing as a gift for the purposes of stridbana. Vide Damodar v. Purmanandas 7 Bom, 155.

1518. Vide Shalig Ram v. Charanjit Lal 57 I. A, 282, 289.

1519. great water I Tivt i gefragt werf #pa gre HET # 71. II. 147, on which forer. says: *matotrott or abufattaro

firmy: Pagt at arra ararea a final, some like 19. 4. p. 946 read Heart , fi. T. p. 513, R. f. p. 141, format p. 73 regard farriva As an adjective of weet niet met sauftframt er afgrepperent arfer war: f.fo, Thaleficent gritunaamiwa n i wa PTARE

मिक्षाविषहीतमम्पपश्य देयम् । एतापतेव पचनोपपती सामध्यवानमिच्छरपस्प कल्प foto i girayurerrafa pegta gatunamn: aragon 97***

the 14174. H. p. 546.

99

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Kāt. (914) 1530 has a similar verse which says that he may return stridhana wealth if he chooses to do so when it is used by him in a disease or in oalamities or when haragged by creditors. Kaut. (III. 2 p. 152 ) is closely similar to Yaj. and adds that the woman can spend it without blame for the maintenance of herself, her son and daughter-in-law or when the husband has gone abroad without making provision for the maintenance of these. Kaut (III. 2. p. 152 ) further provides 1521 that thero should be no complaint (by the wife ) as regards the expenditure of stridhana made more than three years before by joint action of the busband and wife when they have given birth to two children (or to twins) and when the marriage has been in the most approved forms (brahma and the other three ), that when stridhana has been expended by ( the husband and wife) that are married in the gāndharva or āsura form both should be made to restore it with interest and that what is expended when the marriage is in the rākṣasa or paitāca form the expenditure of stridhana should be dealt with as theft. The meaning of ‘mithunam prajātayoḥ’ and ’trivarsopa bhuktam’ in Kaug. is not quite clear. It is probable that Kautilya lays down a rule of limitation. If more than three years are allowed to pass without complaint, then no complaint made later (than three years after the expenditure ) would be enter tained. So also if there be no children of the marriage and the husband expends strldhana without objection by the wife then also no complaint would be entertained as the restraint on alienation of stridhana by the husband and wife was meant for the benefit and advancement of the children. None of the later smrtis like those of Yaj., Nār. or Kat. makes these distinctions and so Kaut. probably represents an early stage in the evolution of the husband’s dominion over stridbana. These later smrtis hold that the husband and wife may be entirely separate as regards their properties and as a general rule the husband’s debts, are not binding on the wife’s properties nor are the wife’s separate debts binding on the husband or his properties (Yaj. II. 46,

V

U ovratak praat meirat # ##**1. q. by word p. 755, p . II. p. 283, R. T. p. 513, f. fr. p. 141; U HISI AURI fart moint 419519 - thapu nan-year wars regti wimw III. 2 p 152.

1921. Te r atayot fumma

EU fing og श्रीत । पान्यवरोपहत सादिकभयं बाप्पेव । राक्षसपैशाचोपभुत तेरी दयात् । WUM III, 2. p. 152.

ILI )

Husband’s power over wife’s stridhınz

787

Vienu Dh. S. VI. 31-32). But the same smrtis make it olear that ander certain distressing circumstances the wife’s separate property was liable for the maintenance or debts of the husband. The Mit. expressly states 1521a that if the husband uses his wife’s stridhana under any other circumstances (thau those specified by Yaj. IL. 147 and Kāt.) then he has to return it, that no relation except the husband has any right to use a woman’s stridbana during her lifetime even in distress or disease &o. and relies on Manu VIII. 29 which requires the righteous king to award the punishment for theft against such relatives as appropriate the wealth of women. The Sm. C. and V. Mayūkha follow the Mit., but the V. R. and V. O. hold that Kātyāyana’s verse applies not only to the husband, but also to the son, father and brothers of the woman. Kat. (912-913 ) provides 1521a that if any one of the four persons (q. in n. 1515 above) forcibly consumes stridhana he should be made to return it with interest and should be also liable to fine (or punishment) and that if any one of these congumes stridhana amicably after securing her consent then he would be liable to return only the principal amount, when he becomes well off (i. e. able to pay ). Devala 1522 also states, if the husband makes a gift of stridhana without cause or enjoys it, he must pay it back with interest, but he may use the stridhana of his wife for relieving the distress of a son (and also of the family, aco. to V. Mayūkba). Kāt. (908) 1523 adds a special rule, ‘if the husband has two wives and he does not reside with one of them (1. e. neglects her), he should be forcibly made to return ( the stridhana of his neglected wife ) by the king even though she bestowed it upon him through affection.’ The texts of Kat., Devala and Nār. quoted above about the dominion of the woman over her stridhana and about the husband’s power over it are

shower

15212. att det us *** FUTTI FREE* * 97671 FUTEE Pui * warura i TOESTC4 *deuiara I FTUAT ETCU: forum

TE HTC # T. 4. by 2 p. 755, arr IV. 1. 24 p. 78, far. II. p. 282.

1522, या मोच भोगे पनि वयात्सपातिकम् । एकातिहरणे पावित्रीधनं भोक्त Heeft * * q. by free. II. p. 283 (grat rrutamonu), PA p. 755, 7. p. 156. . …1523, HUT Para vore at wa gari dira faqat aparcal: on vastuu r. q. by our p. 755, Pra T IV. 1. 24 p. 78, sofa. II, P. 283. The 14. #. p. 156 ascribes this verso toys.

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authoritative in all schools even now. Manu IX. 199 1524 provid es: *wives should not spond ( for their own benefit) from the property of their families which is common to many, nor from their own property without the husband’s permission.’ The V. Mayūkha interprets this as meaning that she has no independent power even over adhivedanika and the like, but this would be opposed to the express texts of Kat., Vyasa and Dovala. Therefore the words must be taken as only recommen datory.

Kāt. (916) delivers a special rule viz. stridhana 1525 which was promised ( to a woman) by her husband should be paid to her as a debt by the sons ( i, e. by her own song or stepsons) provided she resides in the husband’s family; she should not reside with her paternal family.’ The Sm. C. and V. P. (p. 546) explain that even grandsons and great-grandsons are liable to pay just as sons are. According to Kāt. as understood by the Sm. O. and others a wife who is full of evil acts, is immodest, wastes property and is given up to adultery, does not deserve ( to disposo of stridhana and V. P. and V.O. explain that it may be taken away from her in such a case. 1526 In modern times this rule of forfeiture of rights would not be enforced by the courts as regards stridhana. Some explain this verge as referring to the widow as heir and separate the words as ‘stri dhanam. ‘1527 Vide Ganga v. Ghasita 1 All. 46 (F. B.), 48-49.

Succession to Stridhana.–The several schools of Hindu Law differ from each other perhaps more widely on this subject than

1524. #forefi forat yg TEMATIKE arata fa 4 HYTAT # FEIX199. This verse is variously explained. yon, mar porque and others explain farti as ’ Tou Furt, while TOP and ग्य. मयूख explain aa’व्यय’ and सर्वज्ञ. explains स्वकात् as ‘स्वस्थासाधारण धनादपि ग्रीधनव्यतिरिक्तात् ।

1525. भर्ना प्रतिसत देयसणवत्तीधर्म सुतः । तिहेन भर्वकुले पा तु सा पितृकुले TART EAT. q. by Furt . II. p. 283. (Arst ball), f. 6. p. 514, R. f. p. 142, The T. #. D. 153 quotes the first half as ’s

1526. Horregai fan art I

TUTTIT 1 T meitet. g. by AUT. 00 AL VIII. 28 (without dame), Futur. II. p. 283, ff. p. 141-142, 14. #. p. 157, 14. 4. p. 545. Hi situ

मनियमपि विनियो नाईसीरयास एषा स्मृतिप.

1527. For a comparison of the ancient and medieval Hindu Law of stridbana with the Roman, French and English law, vide Bangerjoey * Marriage and stridbana ’ pp, 394-399.

III)

Succession to stridhana

789

on any other. But one thing is generally common to all schools viz. that as regards succession to stridhana daughters are prefer red to sons, though in later days sons were introduced by some writers as heirs along with daughters or even as preferable to daughters for certain kinds of stridhana. This was probably due to the fact that the value of stridhana property became considerable in later times and society which held to the doctrine of the dependence and inferior position of women could not tolerate the idea that large estates should go to women alone. The causes of the variance among writers on the devolution of stridhana are historical. The text-writers wrote at different times and in different countries and probably reflect the popular sentiments of their own countries and times tinged now and then by personal predilections also. The digests sometimes expressly say that their interpretation follows the usage of their times ( vide V. Mayūkha in note 1529 below).

The succession to stridhana varies according as the woman is unmarried or married, according as the marriage was in an approved or an unapproved form, and also according to the species of stridhana and the school of law to which she is subject.

First, the important texts of the smstis on succession to stridhana may be brought together. The oldest extant text is that of Gaut. 28.22 which provides, 1528 ‘stridhana devolves (first) on daughters; (in a competition among daughters ) it goes to those that are unmarried (apratta, lit. not given away in marriage ) and ( in a competition among married daughters ) to those that are not well provided for (i. e. that are indigent).’ Manu (IX. 192-193 ) provides : ‘when the mother dies all the full brothers and full sisters should equally divide the mother’s estate. Even to the daughters of those daughters some thing should be given ( that is ) as much as would be seemly out of the estate of their grandmother on the ground of affection’. In Mapu IX. 195 it is said that the six kinds of stridhana, as also anvādheya strldhana and gifts made by the busband through affection, should go to her progeny if she dies in her husband’s lifetime. The verses of Manu (IX. 192-3) are variously explained by the commentators, Sarvajña-Nara yana holding that mother’s estate means estate other than technical stridbana. Most of them rely on a text of Bṛ. and

1528. fun stuerarauftretant 121.28. 22.

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hold that full brothers and unmarried sisters succeed together and married sisters (i. e. daughters of the woman whose heirs are to be found) get some trifle (# of each brother aco, to Kullūka). Manu IX. 196-197 further provide that when a woman was married in one of the five forms of marriage viz. Brahma, Daiva, Arsa, Prajapatya and Gandharva and died without issue her stridhana goes to her husband and if she was married in the Asura and the other two forms it went, if she died issueless, to her mother and father. Yaj. II.1520 117 pro vides that daughters take the stridhana estate of their mother and on failure of them the (male) issue. In II. 1530 144 Yaj. again says that stridhana goes to daughters, but that if the woman dies without issue then it goes to the husband if she was

married in one of the four forms (brahma, daiva, arsa, praja patya ) but to her parents if she was married in the other four forms. Viṣṇu Dh. S. (17. 19-21) and Nar. ( dayabhāga, 9) contain the same rules as Yaj. II. 144-145, while Nar. (daya bhaga2) states that the mother’s wealth should be divided among the daughters and in the absence of daughters the latter’s issue takes it. Saṅkha-Likhita.1531 declare that the mother’s estate is taken in equal shares by the full brothers (sons of the deceased mother) and their unmarried sisters. Bç, 1532 (S. B. E.

1529. मातईहितः शेषमणात्ताम्य तेऽन्वयः । या. II. 117 on which the मिता. says, दितृणामभाष अन्वयः पुत्रादिहीयात् ।। some construe the word अन्वय as meaning the issue of the daugbters (i, e, daughter’s daughters and daughter’s sons). Vide व्य. म. p. 159, “यसु याज्ञवल्क्यः ‘मातुर्दहि … स्वयः’ इति तत्राप्यम्बयपद कम्पासन्ततिपरमिति केचित् । परे त दुहित्रभावे पुत्रा एवं गृहीयुः, नारदीये तवा मातुरेव परामर्शादित्याहुः । आचारसंवादी चायं पक्षः।” मारद (दायभाग, 2) is मातु दुहितरोभाषे दुहितणां तवम्बयः !, about which the मिता. on याज्ञ. II. 145 remarks ‘संवदेन संनिहितदुहितुपरामर्शात् । The मद. पा. (p. 667) explains नारद as मातुर्धनं दुहितर आयुस्तवभावे पुहितणो दौहित्रीणां तवभावे तदन्वये ये जाता दौहित्रारतेषा. मित्यर्थः । ; the विवादचन्द्र p. 75 says ‘हिनणामभावे तदन्बयस्तरपुत्रादिविभोदित्यर्थः। मातरम्पय इति बालरूपः।”

1530, अतीतायामप्रजसि बान्धवास्तवाप्नुयुः अपजाबीधनं भर्तधादिषु चतुर्वपि। दुदितणा प्रता वेच्छेषेषु पितगामि तत् ॥ या. II. 144-145; सामादिषु चतई विवाहेच. प्रजायामतीतायो सजतः । शेषेषु च पिता हरेत् । सर्वेन्येव प्रस्तायां यद धने त हितगामि । विष्णुधर्मसूत्र 17. 19-21: ग्रीधर्म तवपस्याना भर्तृगाम्यमजास तु मामादिषु चतुर्वाहु: पिट गामीतरेषु नारद (दायभाग, verss 9).

___1531. सर्म ससोदर्या मातुकं रिक्धमईति कुमार्यचा लिखित q. by दायभाग. IV. 24 p. 79, परा मा. III. p. 551, पालम्भही on या. II. 145. हरदम on गो. 28. 22 reads सम… इम्पमः श्रीकुमार्यच.

1532. श्रीधर्म स्पादपत्याना पुहिता तर्दशिनी । अमत्ता चेत्सम्हात लभते मान मात्रकम् । पर. १. by सतिष. II. p. 285.हर on गो. 28. 22, वायंभाग IV. 2.3 p. 79 (अपत्यपद पुत्रपरं तेषाममजाभिहितभिः सर मातुधमविभाग), परा. मा. .. p. 552 (reads सान मायक), विवादपण. 750

III ]

Devolution of sridhana

191

33 p. 383 verse 87) declares, ‘stridhana goes to her progeny, but the unmarried daughter is preferred, while the married one gets only some trifle as a token of regard’. Parāśara holds that the unmarried daughters take all the stridhana, but in a competition between married daughters alone and sons they all take equal shares. Devala 1533 states, ‘on the death of a woman her stridhana is taken in equal shares by her sons and daughters; if she leaves no issue it would be taken by her husband, mother, brother or father’. Pāraskara 1534 (g. by Par. M. III. 552 ) states that stridhana devolves on the unmarried daughter, that the aon does not get it, but that he shares equally with a married daughter. Kauṭ. 1535 (111.2 p. 153 ) prescribes that if a woman dies during her husband’s lifetime her sons and daughters divide her strldhapa; if she has no son then daughters divide it, on failure (of both sons and daughters) the husband takes it and that the sulka, anvādheya or any other kind of stridhana given by her relatives is taken by her relatives. Kātyāyana 1536 (917-920) whose treatment of stridbana is the most detailed of all smrti writers has the following verses on succession to stridhana: ‘Sisters whose husbands are living should share with their brothers the stridhana ( of their mother ); this is the rule of law about stridhana and partition (among brothers and sisters) is prescribed. On failure of daughters the (stridhana) wealth devolves on sons (of the deceased woman); the wealth given to a woman by her kinsmen (paternal or maternal) goes in the absence of the kinsmen (that gave it) to the husband,

1533. सामान्य पुत्रकन्यानो सताया श्रीधन मियाम् । अपजाया हरेवा माता माता foarta i g. by Rum IV. 2 6 p. 79, a. fa. p. 466, Torg on

1534. II, 145.

1535. Tra i aftaler i Trova telat T water Tror i TREE q, by TT. #T. III. p. 552 (mafisaraghahata), *. . p. 463. Is it OTTI

1536. stara wafa : 1 greatured

P E 1 HA11 OTT: 1 सदभावे भर्ता । … … अल्कमबाधेयमग्यता पाधुनिस पान्धवा . हरेयुः । अर्थशाम III. 2. p. 153, the more

1536. firent partFru fait : 1P ETR Wato faster प्रकल्पिता हितणामभावे तरिक्थं पुनावयेत् । पन्धुदतं तु बन्धूनामभावे भर्तुगामि तत् ॥

gaat het op : FORT WALT I Trafrecat TOTRA FET, 1 FER दिशु पालन्ध नीधर्म पैट्टकं लिया । अभाव तदपस्याना मातापित्रोतदिव्यते ॥ कात्या. q..by

p. 721 (the first two only). p . II, pp. 285-287 (all except fugiat &c.), P. c. … 318 and ft. f. p. 143 ( first two): ETA HTT IV, 2, 12 p. 92 has the verse farat ( ascribes it to Terara), 17. A. p. 162 reads sua for para.1792

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Whatever immovable property was given by the parents to their daughter always goes to her brother if she dies without issue. Whatever wealth was obtained by a woman from her parents in the forms of marriage beginning with agura is declared as going to her parents on failure of her progeny.‘1537 The first two verses are apparently in conflict and must be read with Gaut. 28. 22. So probably the following propositions were laid down by Kat. viz. (1) unmarried daughters are preferred; (2) married daughters whose husbands are living share along with their brothers, if there be no unmarried daughter; (3) widowed daughters take only if there are no daughters whose husbands are living or if there are no sons ; (4) wealth given by paternal and maternal kinsmen goes to them and on failure of these, to the husband; (5) immovable property given by parents goes to the brother of the woman on failure of issue; (6) wealth given in the Asura, raksasa and paisāca forms goes to parents on failure of issue. Yama has a verse very similar to Kātyāyana’s about a woman married in the asura and the following forms. The commentaries and digests make valiant efforts to reconcile the conflicts among the smrti texts quoted above. It is not quite necessary to go into that question here in detail for fear of encumbering this work too much.

How the devolution of stridhana was dealt with by the commentators has now to be seen. They all prefer daughters to sons for certain kinds of stridhana. Why the devolution of stridhana property should be different from that of the property of & male is not clearly explained anywhere. The Mit. on Yāj. 1538 II. 117 gives the reason that woman’s property goes to the daughter because in her more particles of the mother’s body inhere than in the son. Probably the daughters were preferred as heirs to stridhana as a sort of equity, when sons were allowed to exclude daughters in the inheritance to the father’s wealth.

According to the Mit. there are two lines of succession to stridhana, one for sulka and the other for all other kinds of stria dhana. Sulka, aco. to the Mit. that quotes Gaut., devolves first

___1537. भाराविडयदा विषादेषु प्रदीयते । भमजायामतीतायां पिसेव द धर्म

# *q. by way. II. p. 286, TOUT IV. 2. 28 p. 88.

1338. Wyra gerai cofit * mafa: i mig at gaat पीपरिवि पुषीतत् । पुमान एसोधिके एकभी भवत्यधिक भिया प्रति रूपापपानां हिपाल्पातीधर्म हिनामि। पितधर्म पुनगामि पिअवयवामा पाल्पात् । FANT. On 7. II, 117, Throat &c. is H. III. 49,

III]

Succession to tulku

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on the full brothers, then on the mother. 1539 Some like the Subodhini, the Dipakalika, Haradatta on Gaut. 28. 23 hold that it devolves on the mother first and then on the full brothers ; but many works such as the Dayabhaga IV. 3.28 (p. 95), Sm. O., Par, M., V. P., V. C. follow the Mit. It is somewhat strange that the Madanapārijata p. 668 ( which was really composed by the author of the Subodhins in the name of his patron Madanapala, holds that the sulka is first taken by the brothers and then by the mother. This raises a doubt whether the printed Subodhini is correct or whether the author changed his opinion.

As regards succession to the property of a maiden there is no difference at all between the Mit. and other works. The Mit. quotes a text of Baudhayana 1540 that the wealth of a deceased maidon first devolves on her full brothers, then on the mother and then on the father. The V. P. adds that on failure of the father the maiden’s wealth goes to the parents’ nearest sapinda.1541 Yaj. II. 146 provides that if a girl who had been promised in marriage dies before marriage, the intending bridegroom was entitled to take back the sulka or other gifts

1539. भगिनीपुल्क सोदर्याणामूर्व माह पूर्व चैके। गौ. 28, 23-24: मिता. (on या. II. 145) says, शुल्क त सोदर्याणामेव, ‘मातुरभावे सोदर्या रडीयुरित्यर्थः । सुबोधिनी on या. II. 145: ‘शुल्कं तु सोदराणामेव । भगिनीशुल्क सोदयाणामिति गौतमवचनासोदराभावे मावः । अर्व मारिति तवचनादेव । पूर्व के इति तु परमतम् । ग्य. . p. 553: शुल्क। सोदरा एव राहीः । तथा च गौतमः । भगिनी … मातरिति । हिशाविषु पौत्रार्य विध मानेण्यपि भगिनीचल्क सोदरा एव हरेयुरित्यर्थः । मद. पा. p. 668 ; ‘अर्धमिति मातुर्म रणादनन्तरमित्यर्थः । कल्पतरस्येवम् ।। … माता चात्र भगिन्येव । तथा च तपमारभावे दुहित्रादिशु पौत्रपर्यन्तेषु सत्स्वपि स्वभगिनीषुल्क सोदरा एव ग्रहीयुरियर्थः । पालम्भही (ग्य. p. 257): आई मातुरूपरतावित्यर्थ: । मातापित्रोस्त सनावे तपोरेव । दीपकलिका.

1540. वि मुत्तायाः कन्याया ग्रहीयुः सोदरास्वदभावे मातुस्तदभावे पितुरिति पौधा यमस्मरणात् । मिता. on या. II. 146%; the वापभाग makes of this a verse as रिक्थ… सोदरा: स्वपम् । तदभावे भवेन्मातुस्तदभारे भवेरिपा’. The मदनरत्न (tolio 106a) reads itasरिक्थै … समम् । … भाषेपिनुभवत्, मातापियोरभाव तत्प्रत्यासागामि । प.प्र. p:552. The above passage of tho Mit, is referred to in Gandhi Magantals: Bai Jadab 24 Bom. 192 (F. B.) at p. 211 ( where it was beld that a paternal. grandmother in Gujarat loberited the wealth left by ber maiden grand. daughter in the absence of ’nearer heirs, that she took an absolute interest and that on her death the property goes to her heir and pot to that of the grand-daugbter.

1541. Vide also Janglubai v. Jetha Appaji 32 Bom, 409, 412 and vithalr. Bali 60 Bom. 671, 677 for lastances of sapindas of the parents talseridag to the stridhana of a woman dylag respectively as # maidon or as a woman married in an Approved form of marriase…. … … . . ।

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(Vol. made by him after deduoting his own expenses and those of her family.

· The Mitakṣard order of succession for all kinds of stridhana, other than sulka and maiden’s property, is as foliows: (1) unmarried daughter; (2) married daughter who is indigent; (3) married daughter who is well

provided for; (4) daughter’s daughters ; (5) daughter’s Bon; (6) sons; (7) son’s sons (here also the rule of per stirpes applies ); (8) husband ( if the woman was married in one of the four approved forns); (9) sapiṇdas of the husband in the order of propinquity ; on failure of any sapipda of the husband, her mother, then her father and then the sapindas of the father (before it goes to the Crown). But if the woman was married in one of the unapproved forms, then on failure of her descen dants her stridhana went to her mother, then to her father and then to the father’s sapiṇdas in the order of propinquity. On failure of the sapiṇdas of the father it would (by analogy) go to her husband and then to his sapiṇdas ( before going to the Orown). When grand-daughters directly inherit the stridhana of their grandmother they take per stirpes (aco. to the Mit. which quotes Gaut. 28. 15), if they are the daughters of several daughters: 1542. The-Mit. (on Yaj. II. 145), Aparārka (p. 721) and several others provide (following Manu IX. 198= Anusagana 47.25) that if a woman of a lower caste dies issueless leaving stridbana, then the daughter of her co-wife of a higher class inherits that stridbana and on failure of such step-daughter, the son of the latter’inherits. It may be noted that as regards succession to stridhana, the rule of representation which holds good in relation to succession to males does not apply. When a male dies leaving separate property and a son and a grandson (son of & predeceased son). both succeed together, the grandson re presenting his deceased father. But if a woman possessed of stridhapa dies having only a son and a predeceased son’s aon; the son will take the whole of the strldhana excluding the son’s son Vide Bui Raman vs Jagjivandas 41 Bom. 618. . ::

“. It is not possible nor necessary to deal exhaustively with the devolution of stridhana according to the various schools of Hindu Law. But a few indications from the important text

.. 1542: सा.भिममाकाणां निमाणी सापाचे मापारेण भावकल्पमा अतिमानको Terrain t h at onerator Prett ob 9. U. 143,57:32:31:15:

tu

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books having authority in the different provinces will be offer ed. According to the Sm. C. ( which is the leading authority in Madras after the Mit. ) stridhana includes only those kinds of property that are so described in the smrtis ( i. e. only technical stridbana ) and the lines of devolution are as follows: (1) sulka devolves in the same way as laid down by the Mit. cited above (Sm. C. II. p. 287); (2) Yautaka devolves on unmarried daughters first (Sm. O. II. p. 285 ); (3) Anvādheyaka and Bhart;datta pass to sons and married daughters whose husbands are living, all inheriting together in equal shares ( Sm. C. II. p. 284); (4) other kinds of technical stridhana such as adhyagni &o. pags brst to the maiden daughters and married daughters who are apraliṣthita, 1543 then to married daughters that are provided for; then to daughter’s daughters, then to daughter’s sons, then to sons, thea to son’s sons &c., then to the husband or father (according to the form of marriage ). The Madras High Court follows the Mit. (in preference to the Sm. 0.) as to the devolution of Anvādheyaka and Bhartsdatta and holds that certain kinds of non-technical stridhana (such as gifts by strangers during coverture) devolve acc. to the rules of the Mit: Vide Salemma v. Lutchmana 21 Mad. 100.

The Vivāda cintamani, the leading authority in Mithila, restricts stridhana to the technical stridhana recognized by the smrtis and lays down the devolution of it as follows: (1) Sulka 1544 ( defined as property received by a woman at the time of her marriage, if in an unapproved form ) passes as under the Mit. cited above; (2) Yautaka passes first to unmarried daughters, then in the way laid down by the Mit. for all stridhana ; (3) all technical stridhana other than the two praceding varieties passes to sons and unmarried daughters together, then to sons and married daughters jointly, then to daughter’s daughters, then to daughter’s sons and then as under the Mit. system (for stridbana in general.)

The Vyavahāramayūkha which is held to be of para mnount authority in Gujarat, Bombay Island and Northern

1543. The word startar is explained by the Sm. C. as follows, ’n हिता अनपल्या निर्धमा दुर्भगा विधमाना। एषमपराकांडसारात गौतमवचनं ग्यारूपातम् । अस्प FATTA ATTENTE TUTTO MIRABITUTETER tort prac. II. p. 285. Refr. pa 147 also says starreat waar huwa yam RM 12.14 : . 1544.. 1 mange Freretari i I : nyuarati a far p. 143.,:”…. … … .-:.: .:.:)

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Konkan 1545 proposes various lines of succession to stridhana. Its treatment is based on the Sm. C. and the Madanaratna. It first divides stridhana as stated above into technical (paribhaṣika) and non-technical ( aparibhāṣika ). The first is subdivided into four classes for the purpose of inheritance; (I) sulka which passes as stated above under the Mitakṣarā ; (II) yautaka goes to unmarried daughters, ( if there be no unmarried daughters )

1545. For the territory in which the V. Mayūkha is supreme, vide Lallubhai v. Mankuvarbai 2 Bom. 388 (F.B ) at p 418, Jankibai v. Sundra 14 Bon. 612 at pp. 623-24; Vyas Chimanlal v. Vyas Ramchandra 24 Bom. 367 (F. B.) at p 373. How the Vyavabāramayūkla composed by a Mahā. rāstra brāhmana whose family had settled at Bepares came to be regarded as a work of bigla authority in Gujarat is explained in Lallubhai v. Man. kuvarbai 2 Bom. 388 at pp. 418-419 and in Bhagirthibai v. Kahnujirav 11 Bom. 285 (F. B.) at pp. 294-95. As there is divergence between the views of the Mit and the Mayūkha in the rules of succession, it becomes & matter of great practical importance to settle with precision the exact limits in Northern Konkan up to which the Mayūkha must be regarded as a work of paramount authority. It has been judicially decided that Karanja, an island opposite tho Bombay harbour, is governed by the Mayūkba (in Sakha ram v. Sitabai 3 Bom. 353), that Mahad, the southernmost Taluka of the Kolaba District, is not so governed and that the predominance of the Mayū kha cannot be taken further south than Cheul and Nagothna in the Kolaba District (vide Narhar v. Bhau 40 Bom. 621). Similarly difficult questions arise whether Kathiawar which is quite contiguous to Gujarat and some territory bordering og Gujerat towards the north or east is governed by the views of the Mayukha in preference to those of the Mit. Some parts of Kathiawar which were (and even now are) under the domination of the Gaikwad of Baroda may, on the analogy of the grounds on which the Maya kha is held to be of paramount authority in Gujarat, be deemed to be goverded by the Mayūkba. It appears to me that the tendency of courts should be to restrict the extent of the territory in wbich the Mayūkha is supreme and to bold that everywhere the Mitākṣarā is stipreme, except in those territories where the Mayīkba has been expressly recoginzed as supreme by the feuda tory States contiguous to Gujarat or by judicial decisions. The Mit. is the paramount authority in the whole of India except in Bengal; therefore on the analogy of tho maxim tbat a general role is applicable aod is supreme in all cakes except where an exception clearly covers the matter (Haur PUNTO T

i ta) districts outside moderu Gujarat but bordering on it should not be beld to be governed by the Mayūkha.

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then probably to the married daughters; (III) anvādheya 1445 a and bhatrpriti-datta ( husband’s gift of affection) are inherited by sons and unmarried daughters together in accordance with Manu (IX. 192 and 195), (if there be no unmarried daughters ) by sons and married daughters, then daughter’s issue, then son’s song; (IV) other 1546 kinds of technical stridhana devolves as under the Mit; (V) non-technical 1847 stridhana is inherited in the following order; song, son’s song, sons’ eons’ sons, daughters, daughters’ sons, daughter’s daughters. When there is no issue of the woman the succession depends in all cases as under the Mit. on the question whether the woman was married in an approved or an un-approved form. The V. Mayūkha employs language somewbat different from that of the Mit. in speaking of the inheritance to stridhana when a woman dies without

A

1545a. Vide Sitabai v. Vasantrao 3 Bom. L. R. 201 (where a loog passage from the V. Mayukha is quoted in translation and it is held that anvādheya includes gifts or bequests from parents after marriage as well as from the husband and that sons and daughters succeed equally to anvā. dheya); Dayaldas v. Savitribai 34 Bom. 385 (F.B.), where it was held that a passage of the Mayūkha wherein the view of the Mit. was first stated and thea the view of others really meant that the latter was the view of the Mayūkba, that sons and daughters inberited anvādheya together and that if there were both married and upmarried daughters, the unmarried daughters and the sons inherited together. Patar: Tu n FT4 Tri Tur

yat … … FAT*T: # Data T ai galdrafuas परिणीतपरिणीतपुत्रीसमवाये विशेषमा हस्पतिः। श्रीधर्म स्पावपत्याना … । अप्रत्तानाम R a fau nyugt fra fra NTVIACUTE Fruta. I r(folio 105 b). Vide # #. text pp. 157-58 for the two views. It will be noticed that the Mit, construes the verse of Maou distributively i, e, sons take equally when they succeed and daughters do so when they succeed and that Manu does not mean that sons and daughters inherit simultaneously. : 1546. *U trayaraqqiyorum y qurits: 1 m

ATTEIĦRATUUT VE TEIS: 1 RETTE (follo 105 b.): Suomi इसमिले पूर्वोत पारिभारिक जीधने व विशेषमा गौतमा भीषनं … अप्रतिडितानt - FATI 9. #TU p. 139.

1547. Vide Manilal Rewadat v. Bai Rewa 17 Bom, 758 (as to inheri tānce of 200-technical stridbana) where it was held that as regards stridbanı under the Mayūkha the roman is recogoized as a fresh source of devolution, that the words ‘s00s and the rest’ meao no more than $os, grandsons and great-grandsons, that as regards property which does not class 46 pārlbhāpika stridbana, the song and the rest take precedence over the daughters aad the rest (1. e. their issue )’, that falling song and daughters the heirs to pāri. bhānika stridhana and aparibhāsika stridbana are the samo, kave that it between pale and female offspring the latter have a preferential right maito paribhāṣika, while the former have a similar right as to apārlbbalka.

mam ART WETTE.

Rp. 160.. .

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issue. But it has now been judioially held that both mean the same thing 1548,

In the Dayabhāga school the devolution of various kinds of stridhana according to the Dayabhaga and D. K. S. is as follows: (I) sulka devolves 159 in the following order: (1) full brother, (2) mother, (3) father, (4) husband; (II) Yautaka de volves 1550 in the following order:(1) unmarried and unbetrothed daughters, (2) betrothed daughters, (3). married daughters, who have or are likely to have sons, (4) barren married daughters and childless widowed daughters taking together in equal shares, (5) song, (6) daughter’s sons, (7) Bons’ sons, (8) son’s son’s sons, (9) step-son, (10 and 11) stepson’s son, stepson’s grandson. Then if the marriage was in an approved form, yautaka passed in the absence of any of the above in order to husband, brother, motber and father. If the marriage of the woman was cele brated in an unapproved form then her stridhana passed in order to mother, father, brother, husband. (III) Anyādheya gifts 1551 (gifts or bequests) made subsequent to marriage by the father

1548. Vido Tukaram v. Narayan 36 Bom. 339 (F. B.), where there is an elaborate discussion about the following passages of the Mit, and the Mayukha. तदमजःत्रीधन पितगामि । माता च पिता च पितरौ तौ गच्छतीति पितुगामि । तवभावे तस्मस्वाससाना धनग्रहणम् । मिता. on या. II. 143; भतरभावे तस्कुले तस्याः प्रत्यासको लभते । पिप्रभावेच पितकुले तस्याः प्रत्यासमः ।… पत मिताक्षरायां भत्रभाने सत्पत्यासमाना सपिण्डानां पित्रमावे च तस्मस्यासमान सपिण्डानामिति तत्रापि तेनास्याः प्रत्यासमास्तमत्यासमास्तद्वारा तस्कुले प्रत्यासमा इति यावदित्येवं व्याख्येयम् । म्य. मएसp.161.

1349, अत:( शुल्क) प्रथम सोदराणां तदभावे मातुर्मातुरभाष पितुः । एषां पुनरभाषे सजनं भर्तुः । वायभाग IV. 3. 29 p. 95.

1550. ततश्च परिणयनलम्धनीधनं दुहितरेषन पुत्राणां तवैव चक्रमा गौतमवचन श्रीधर्म हितणा… हितानां च । प्रामादिषु विधादेषु पल्लरमध्यनिधनं निपातसयां सुतायो प्रथमे दुहितणामेव तत्रापि प्रधर्म कन्यायास्तदभावे सायास्तदभावे परिणीतापा

साहित्रभाषेच पुरपांधिकार । अमजासीधने भाराधिकारात् । Dayabhiga IV. 2. 22 and 25, pp. 85-86. It will be noticed that the D. B. distinguishes between un-betrothod, betrotbed and married daughters. Vide Bannerjee’s ‘Marriage and Stridhana ’ pp. 477,489-491 for order of inheritance to Yautaka. :

1551. यत्पुमा परिणयनानन्तरं पितमातुभकुलात् प्रिया लग्धं धनं ताणामेवातदाह पाहायल्पापमुदत…प्युः (या. २. १४५,…अत: प्रथम सोदराणां तदभावे मातुर्मातरमारे पितः । एषां पुनरभाव तदनं भर्तुः । पथा कारवायमः बन्धुप बन्धूनामभावे भर्तुगामि तत् । Dayabhaga - IV. 3. 10 and 29. vide Prosannow. Sarat 36 Cal. 86 (son beiog held the preferential heir to a married daughter to stridhana given to a woman after marriage by her father), Ram Gopal V. Narain 33 Cal. 315. ( mother held entitled to preference over the husband of a childless woman who died leaving property gifted to her by her father after marriage). Io both these cases there is an elaborate examination of passages of the Dajabhāge and it la sbown how Srikrgna and even modera writer& bava created coafusipa by offering varying explanations. - . . .

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(Dayabhaga IV. 2.12-16 pp. 92-93) devolve in the same order as for Yautaka except in a few respects, viz. the son takes before married daughters and in case the woman dies without issue the brother, mother, father and husband succeed in that order. . IV.

As regards Ayautaka (i.e. all technical stridhana other than the above three) there is a conflict of authority between the Dayabhaga (IV.2.1-12 pp. 79-81) on the one hand and Raghu nandana and Srikrṣna on the other. Acc. to the former the order 1552 is: son and kumūri daughter (or to either on failure of the other); (on failure of both) married daughters that have sons or are likely to have song , son’s sons; daughter’s sons%3B barren and widowed daughters. But Raghunandana and Sri krsna interpolate sor’s son, son’s son’s son, stepson, stepson’s son, stepson’s grandson between daughter’s sons and barren and widowed daughters. In the decided cases the latter order bag generally been followed.

If there be none of the above both Yautaka and Ayautaka strldhana pass in order (acc. to Dayabhaga IV. 3.37 p.98) to six heirs 1553 viz. the busband’s younger brother, husband’s

. 1552. तत्र मनः । जनम्या … सनाभयः । … बृहस्पतिरपि … श्रीधर्म तदपत्यानी … । अपत्यपदं पुत्रपरम् । तेषामप्रताभिहिताभः सह मातृधनविभागा। … किं तूतादेव हेतो पुश्रकुमारीक्षित्रोस्तुल्यवदाधिकारः । एतयोचायतराभावेऽभ्यतरस्य तदनं यारण्येतयोरभाषे तु अढाया दुहितः पुत्रवस्था सम्भावितपुवायांश्च तुल्याधिकार स्वपुत्रहारेण पार्षणपिण्डदान सम्भवात् । … पौत्रदौहित्रयोस्तु समाये पौत्रस्यैवाधिकारः … उक्तानां सर्वेषी कौहित्रपर्व तानामभावे पणयाविषयोरपि.मातृधमाधिकारिता सपोरपि तत्पजावात् मजाभावे चान्ये. पामधिकारात् । दायभाग. IV. 2. 1-27.9, 11-12. Diyabhaga .employs the word aprattas elsewhere in the sense of unbetrothed’ and so betrothed daughters cannot take along with sons. The last passage in the quotation shows that the doctrine of spiritual benefit was not to be rigidly employed in succession to stridhana, acc. to the Dayabhaga. श्रीकृष्ण remarks (in his comment on दायभाग), दौहित्रपर्यन्तानामिति प्रपौत्रपर्यम्तोपलक्षणम् ।

. 1553. पदाह हस्पतिः । मातास्वसा मातुलानी पितृग्यश्री.पितुण्यसा । : पूर्वमा पत्नी माततल्या प्रकासिताः । पदासामौरसो न स्यात्मतो रोहित्र एव था। तातो पा धर्म नासा स्वनीयायाः समाप्य तदेषां प्रादीनां प्रामादिभतपर्यन्तामा पाभावे : सत्वपि मामातम्यारावियु सपिण्डेषु भमिनीपुत्रादीनामधिकारिता अनम्यगतेचनाद, मीणा मात्यल्पत्वमतिपादनामीषा पुत्रनल्यस्वज्ञापमेन पिण्डदालवचनस्थ वायभागमकरणे धमा: धिकारमापकप्रयोजनकत्वात् ।… मालो भामिनेयस्य स्नायो माइलस्प. gey शरोचव सतयुर्मातामहस्य च । एतेषां व भार्यान्यः सहर्माता पितस्तथा । भारवान: कम्पमिति पेपियां रिणतिः । इति खातातपरमात अमीषा पिणवत्वप्रतिपावनाद अप पिणवानविशेषाधिकारनामः । तत्र.प्रथम देवरसपिण्डतबविण्याबदेसपूर्वपुरुषार पिपडवालारसपिशवारसदनधिक्रियते । तस्याप्यभारको पिण्डदानात् मामाता अपने अधिकारीति अब कमो मा वतीयाचा इतिहमा किलाकारिमामा

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brother’s son, sister’s son, husband’s sister’s son, brother’s son, daughter’s husband. Bś. says that the mother’s sister, maternal uncle’s wife, paternal unole’s wife, father’s sister, mother-in law, elder brother’s wife are declared to be like one’s mother, that when these women have no aurasa ohild or a son of their co-wife or a daughter’s son or & son’s son or stepson’s son, then the sister’s son and the rest may take their wealth. This text, 800, to the Dayabhāga, simply declares that a sister’s son and the others may be heirs to the stridbana of the maternal aunt and the rest but the priority is determined among the six heire mentioned above in Bșhaspati’s text by the principle of reli gious benefit. Though the sister’s son is the first in Bphaspati’s text, it is the husband’s younger brother who stands really the first among the six if regard is had to the principle of religious benefit. The Vir. (V. P. p. 554 ) states that in the absence of heirs up to the stepson and stepson’s sons, the sister’s son and the rest (mentioned in Br.) are the heirs to a woman’s stri dhana even when sapiṇdas like her father-in-law are alive, since mere sapinda relationship would not count when in conflict with a special toxt. It does not appear that the V. P, holds that the six take in the order stated in the text of Br.; 1554 it rather states that among these six the choice of the preferential heir

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TUTTI 99m IV3, 31, 35, 36-38 pp. 96-98. Vide also pp. 187–188 Tbo verses of Br. occur in Sm. C. II. p. 287, V. Nir. p. 472, Par. M. III p. 555, V, Mayūkba p. 161, V. P. pp. 553-554. The above verses of Bṛ. mean that males who are a woman’s sister’s son or her husband’s sister’a son or her husband’s brother’s son or her owo brother’s son or her daugh, ter’s husband or her husband’s younger brother are like her son and inherit ber stridbana io certain circumstances.

1554. In Bai Kesserbai v. Hunsraj L, R. 33 I. A. 176 the above text of Brhaspati was discussed in a Bombay case at great length (pp. 190–197) and it was held that under the Mayūkba a co-widow was entitled to sucecod to the stridhana of a widow in preferonce to her busband’s brother or bro: tber’s son, that the text of Br. must be taken distributively, that is, when the marriage is in an approved form the husband’s sister’s son will succeed and that when the marriage is in an vnapproved form the brother’s son or

ster’s son will succeed, tbat the text does not indicate the order of succes. son which is governed by tbe principle of propinquity coder the Mit. or the Mayūkha. It may be noted that the V. Nir. p. 472 expressly gives the distributive ordor, Acc. to iba Sm. 6. the six beirs referred to in the text of Bṛ. tate in the order stated thorela. The Dāyabhāga does not hold this view,

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Devolution of siridhana

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would be determined by greater or less propinquity 1555. On failure of these six the husband’s sapindas, sakulyas and samānodakas take and then the father’s kinsmen.

The question of an unchaste daughter’s succession to stri dhana would be decided in the same way as her succession to her father’s property. Under the Dayabhāga an unchaste daughter will not succeed. But under the Mitākṣarā as inter preted by modern courts an unchaste daughter who is a kept mistress or a prostitute may succeed but only after virgin daughters or married daughters as the case 1856 may be. The Mit. on Ya. Il 290 relies upon the Skandapurana for the proposition that prostitutes are a fifth caste descended from certain apsarases. 1557

It has been held by the courts that though prostitution entailed degradation according to ancient Hindu Law, it did not sever the tie of blood. So the stridhana of a naikin ( a dancing girl) or of a married woman who becomes a prostitute may be inherited by her brother or sister or her husband or her husband’s relations. 1558

It may not be out of place here to suggest how stridhana should be dealt with when Hindu Law comes to be codified as it is likely to be in the near future. It may be urged that all distinctions on the ground of sex should be altogether done away with and whenever a woman succeeds to any property whether of a male or of a female she should take an absolute estate. But if this change is opposed by a large volume of opinion as it is quite possible, then it should at least be provided

1555. Tama para emag #fovinaranama Praft मुनादीमामेव मातुण्यसादिषने प्रत्यासत्तितारतम्येनाधिकारः । वषादीनां तु प्रासाच्छादन

r

fauna

FRANTAI 19.497 107TR

1556. Vide Tara

i

1356. Vide Tara 0. Krishna 31 Bom. 495 and Govind v. Bhiku 46 Bom. L R. 699.

1357. f foretro que

prepararea Qura nt faut. on T. II. 290.

1558. Hiralal v. Tripura 40 Cal. 630, F. B. (holds that brother’s son Inberited the stridbana of a woman who had become a prostitute ), Narayan v. Laxman 51 Bom. 784 ( sister of a prostitute was held to be her heir), Narain Das v. Tirlok 29 All. 4 (husband held entitled to property acquired by a woman after she deserted him). Subbaraya v. Ramasami 23 Mad. 171 ( stepson was held entitled to succeed to a woman’s property hough she had deserted ber husband and led a life of unchastity ).

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History of Dharmadāsira

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that all property which a woman Inherits from a female should be her absolute property. Then as regards inheritance to stridhana one simple and straightforward rule should be laid down that the woman’s sons and daughters should succeed together taking equal shares. A third suggestion would be that when there are no descendants of the woman herself, then the husband should be the next heir. When the stridbana is that of a maiden, the heirs in order should be her brothers and sisters, then her mother, then her father and after the father the latter’s nearest heir. It is not quite necessary at this stage to specify what further rules of devolution should be prescribed.