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This chapter focuses on Mitakshara and Dayabhaga, the two schools of

Hindu religion. The concept of stridhan, and the property Acts related to women’s

such as The Hindu Succession Act of 1956, The Hindu Marriage Act, 1955, The

Jammu and Kashmir Hindu Marriage Act, 1980, The Dowry Restraint Act, 1960

and The Dowry Prohibition Act, 1961 and The Hindu Widow’s Remarriage and

Property Act, 1989 are described. In the case of Jammu and Kashmir State, it has

takes into consideration the property rights of women as permanent resident of the

state owing to its special status under Article 370 of the Constitution.

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Schools of Hindu Religion

The classification of schools of Hindu religion are shown in the given chart:-

Schools Of Hindu Law

Mitakshara Dayabagha

Jeenutavahan Vijaneshwar

In Assam &

Bengal

In India (Except

Bengal and Assam)

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The ancient Schools of Hindu laws are believed to be of two types and were in

existence before the Hindu law was codified with the Hindu Succession Act of

1956.

1. The Mitakshara School, and

2. The Dayabhaga School or Bengal School

In Bengal and Assam the Dayabagha School was established and in the entire of

India apart from in Bengal and Assam Mitakshara School was broaden. The two

main interpreters who wrote on Mitakshara and Dayabagha Schools were

Vijnaneshwar and Jeenutavahan respectively.

In the Mitakshara School, the allocation of inherited property was based on

the law of possession by birth and a man could leave his self-acquired property to

which he willed. The joint family property went to the group known as

coparceners, i.e. those who belonged to next three generations and also the joint

family property by partition could be, at any time, converted into separate property

(Karve 1968:344). Therefore in Mitakshara School, Sons had an exclusive right by

birth in joint family property.

The property is inherited in the Dayabhaga School after the death of the

person who was in possession of it. The doctrine of son’s birth right and the

devolution of property by survivorship had limited space in Dayabagha School

(Ibid 345). It is establish that in the Mitakshara School neither the father nor any

other coparcener could normally disaffect the joint family property. Under the

Dayabhaga School there is no such constraint and each coparcener has complete

right of separation of his exclusive share in the joint family property (Abrol

2011:77). To put it simply, Mitakshara was based on the ‘principle of ownership

by birth, and Dayabagha on principle of ownership by death’ (Karve 1968:344).

In the Dayabhaga Scheme the division of property was very simple. If a

man died intestate, his supposed the property was divided uniformly between his

sons. If he has share in the common property with the brothers then the property (a

share equal to his own) of the brothers would be put apart and his share would be

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separated between the sons. And in the Mitakshara School, a family was also joint

because property was assumed equally by all the male members (Karve 1968:356).

A female cannot be a member of Mitakshara coparcenary i.e. by birth she

has no right in the joint family property. If a division took place only certain

females were permitted to a share, usually she had no right of partition. Under the

Act, the Hindu Women’s Right to Property Act, 1937, the undivided interest of a

coparcener on his death did not go by survivorship to coparceners, but his widow

took it as heir, though she took it as a limited succession his interest in the joint

family property (Diwan 2006:276-277).

The law of succession in the Dayabhaga School was based on the principle

of religious value or divine profit. The law of inheritance in the Mitakshara School

was based on the rule of blood-relationship. The Mitakshara School did not give

complete result to the principle, and restricted it by two supplementary rules: (1)

females are excluded from inheritance and (2) importance of agnates over cognates

(Abrol 2011:80). This means that in case of a death of a Hindu man leaving behind

a son and a daughter, the latter would be excluded totally and the former would get

the entire property. In case he leaves behind a son’s son and a daughter’s son, the

former should succeed to the entire property and the latter would be excluded.

Stridhan

The literally meaning of the word stridhan is “woman’s property”. But in

In Hindu law practical meaning has been given to the concept of stridhan. In the

whole history of Hindu law, woman’s right to grasp and dispose of property has

been acknowledged. At no time the woman has not deprived of the use of her

property as an absolute owner. It is also true that the sum of her property has been

anything but not enough. The Smritikars vary from each other as to what things of

property represent stridhan.

The difficulties about the problem what includes stridhan, begin from the

information that greater part of sages and commentators give neither an accurate

definition of stridhan, nor an extensive details, and the definition given by

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Mitakshara is a straightforward and comprehensible. That definition has been

competent and controlled in its relevance by our Courts in result of its difference

with the vision of other establishment.

According to the Smritikars, the stridhan include those things which a

woman expected by a manner of gift from relations which incorporated generally

impermanent property such as ornaments, jewellery and dresses. The gift given to

her by strangers at the time of the ceremony of wedding or at the time of wedding

demonstration also comprised her stridhan ( Diwan 2009: 376).

The women’s right to property was controlled due to the patriarchal

structure of Indian society. Although the male members owned property, this

ownership cannot be equated with the modern notion of ownership which

essentially confers the right of alienation. The basic characteristic of the joint

property was its inalienability. The property could not be easily disposed of by way

of sale, gift or will. Hence the joint ownership, of males was more notional than

actual. The property was managed by the head of the family or karta for the benefit

of the entire family including its female members. When the property was divided,

the right of male members was effectively the right of protection. Even after

partition, the property in the hands of each of the coparceners, continued to be joint

property, held in trust along with his male progeny for the benefit of the next line

of descendants (Agnes 2004:14).

Since women did not figure as a component of the coparcenary, they did

not have even the speculative right of joint possession; hence they could not claim

division. After division, a sonless widow had the right to take over the split of her

departed husband. Women had the right to be maintained from the joint property

and this right included the right of residence. Since divorce was not commonly

prevalent, after marriage, women could not be easily deprived of their residence

and maintenance in their husband’s house.

The husband was bound to maintain the wife despite all her faults

including quarrelsome nature, neglect of household, barrenness and adultery,

though the scale at which she had to be maintained would go down as per the

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severity of her faults. In addition, the wife was entitled to ‘supersession fee’ an

equal share of the property, which the husband gifted to the new wife. Women also

had the right to claim marriage expenses from the joint property in their natal

house. A special category of property i.e. stridhan is assigned under the joint

possession to the women (Agnes 2004:15).

The stridhan includes all those properties which women inward by way of

present from relatives which incorporated mostly impermanent property, however

sometimes a house or a piece of land was also specified in present along with

ornaments, jewellery and dresses. The present made to her by unknown persons at

the time of the rituals of wedding or at the time of bridal procession also become

her stridhan.

Giving of dowry to daughters in the marriages is found from the Vedic period

in the form of gifts given by parents, brothers and by other relatives. These

offerings would become her individual possession which means that she had total

control over such property. Even in modern time stridhan or women’s property

including gifts specified at the time of wedding form the women’s property (Kant

2008: 335). The property achieved by a woman at any period of her life by adverse

ownership, self-exertion, such as by physical effort, by service, by singing,

dancing, etc., or by any emotionless art also become her stridhan. Property

specified by present or by determination by strangers to a woman, during

maidenhood or widowhood, before the wedding or at the marriage procession also

constitutes her stridhan and the investments of the income of stridhan, constitute

stridhan. Even all impermanent and permanent properties given to her by means of

an absolute present in lieu of protection also constitute her stridhan (Diwan

2009:367). Thus stridhan is the supreme property of the female and she can make

use of it according to her personal will. This means that she can sell, present or

substitute or if she chooses, she can lay it on flames.

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Details of woman’s property

Offerings from relations:- This is a acknowledged form of the stridhan. Gifts

given to woman, throughout maidenhood, coverture or widowhood, by her parents

and their relatives, or by the husband and his relatives. The Dayabagha School

does not identify gifts of permanent property by spouse as stridhan.

Offerings from strangers:- Property given by gifts to a woman during her life

time by strangers also acknowledged her stridhan. But these were for the period of

her husband’s life time in the husband’s power. On his death these became her

absolute stridhan.

Property achieved by self-exertion and mechanical arts:- A woman may

achieve property at any phase of her existence by her personal self-exertion such

as by physical labour, by service, by playing, dancing etc. or by any involuntary

art. The property thus achieved during her life time by personal effort is her

stridhan.

Property earned with stridhan:- It is an established law that the properties

earned with stridhan or with the investments of stridhan, as well as accumulations

and investments of the profits of stridhan, also acknowlged stridhan.

Property achieved by cooperation:- When a person achieves property under a

cooperation, where under she gives up her privileges to her stridhan will be

stridhan.

Property acquired by unfavorable control:- It is a well known law that any

property that a woman achieves at any phase of her existence by unfavourable

environment is her stridhan.

Property achieved for protection:- The expenses given to a Hindu female in

total or occasionally for her protection, and all the fields of such protection

recognize her stridhan. Likewise, all impermanent and permanent properties given

to her by way of a fixed gift in pursuance of protection represent her stridhan.

Property acquired by inheritance:- A Hindu female can inherit property

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from her parents as well as from her husband. Thus properties obtain from parents

or from husband also constitute her stridhan.

Share acquired on division:- The share obtained on division of property is

also her total property or stridhan.

The Hindu Women’s Right to Property Act, 1937

Prior to 1937 the customary practices settled the disputes regarding the

property rights of women. Due to the patriarchal nature of society, the results were

always discriminatory. The Hindu Women’s Right to Property Act was passed in

1937 due to the unsatisfactory conditions of women’s rights.

On the 14th

April, 1937 The Hindu Women’s Right to Property Act came into

force. The Act was not effective and was amended by the Hindu Women’s Right to

property (Amendment) Act, 1937. Even after the amendment, the Act was not

satisfactory. The Act does not takes into consideration the properties situated in

foreign countries, or to the properties which did not belong to the deceased in his

own right and the Act was applied only when a Hindu dies intestate. The property

of a Hindu female was also not considered in the Act.

Under this Act, property is permitted to a Hindu man’s widow, his widowed

daughter in law and widowed granddaughter along with his male heirs. However

the rights established to the widow is a narrow one because the Hindu Mitakshara

law determines estates in terms of tradition but not the basis of custom of the estate

in terms of period.

The attention of widow over the belongings of her departed husband was area

under discussion to the incidents of coparcenary importance. Her interest was

subject to fluctuatuion, if she did not ask for partition. The property of a widow on

her death passed to other coparceners by survivorship (Diwan 2009:383). Division

of position took place, when a widow asked for division, irrespective of the reality

whether she got or did not get the ownership of her part of properties. If division

ocurred, the chain would be traced to her husband on her end, on the source that

the property was his detach property. A Hindu widow can take pleasure of the

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estate which is allowed to her and is not answerable to any one as she’s not

accountable of will full misuse.

On the death of the widow, with regard to stridhan property the estate was

passed to the heirs of the last male owner or the last full female owner, whichever

the case might be but not to her heirs. On the basis of Shastric authority a widow

only inherited a small portion in her husband’s estate. However the scope of the

Act, was limited, it does not took into account the daughter’s right to property. The

Act was concerned with improving the conditions and status of widows.

The Married Women’s Property Act, 1874

The Married Women’s Property Act, 1874 related to certain married women,

and for other purposes extends to the whole of India except the state of Jammu and

Kashmir.

After the passing of this Act, the property acquired by a married woman by any

exercise or saving, investment, earnings shall be considered to be her separate

property.

Any married woman can affect a policy of insurance independently irrespective

of her husband. All the benefits should be considered her own.

Insurance by a married man shall be deemed for the benefit of his wife and

children.

A married woman is liable to make legal proceeding for the protection and

recovery of self acquired property.

A husband is obliged to maintain and satisfy her wife with his own property,

without taking into the consideration the property possessed by woman before

marriage.

A husband is not liable to pay the debts of his which she has contracted before

the marriage.

If a woman is a trustee, either before or after marriage, her husband shall be

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liable to breach the trust committed by her only when he acts or in the trust or

administrators.

Hindu Succession Act, 1956 and its Amendments, 2005

By a study of the manner in which the Hindu society had dealt with the

right to property of a woman one can also ascertain the status accorded to her in

that society. In 2005, The Hindu Succession Act, 1956 has been amended and

became the Hindu Succession (Amendment) Act, 2005. This amendment is based

on the 17th

Report of Law Commission of India on “Property Rights of Women:

Proposed Reforms under Hindu Law” under the Chairmanship of Justice B.P.

Jeewan Reddy dated 5th

May, 2000. This Commission recommended for the

removal of anomalies and ambiguities with regard to property rights of Hindu

women under the Act of 1956. Therefore, this amending Act gives full-fledged

property rights to daughters in ancestral property along with sons (Diwan

2009:395).

The Hindu Succession Act, 1956, bases its rule of succession on the basic

Mitakshara principle of propinquity, i.e., preference of heirs on the basis of

proximity of relationship. The Mitakshara limited the effect of the principle by the

twin rules of exclusion of females and of agnatic preference. The rule of exclusion

of females has been done away with, while the rule of agnatic preference has been

considerably modified so far as it concerns the nearer relations. The Dayabagha

principle of religious efficacy has been abrogated. The modern Hindu law of

succession is essentially a secular law. Religious or spiritual considerations figure

nowhere.

Anyone who is living is free to do agreement with his property in any

manner he likes. By framing willpower, he is free to put down his personal design

of allocation of his possessions after his death. This is known as a testamentary

disposition. And if a person dies without leaving a will, it is the principle of the

law of inheritance to decide the persons who will get his property. In our society,

someone must be the possessor of the property, a person, commercial person or

state. The law of succession is classified as under:

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(1) Testamentary succession, and

(2) Intestate succession.

The rules relating to making of a will is considered in the law of

testamentary succession. The law is also concerned in giving the best effects to the

testator.

The rules regarding the liking and banning given to relations in distributing

the property is considered in the law of intestate succession

The law of inheritance consists of set of laws which find out the mode of

transference of the property of the departed being on heirs slowly on the

foundation of their association to the departed being, while the law of testamentary

succession deals with the set of laws relating to transfer of property on relations as

well as others. This is the main difference between the two terms, succession and

inheritance (Diwan 2009:397).

(1) Under the Hindu Succession (Amendment) Act, 2005, the daughters by birth

have the same rights in the coparcenary property as she would have had if had been

a son and the same liabilities are given to daughters in the said coparcenary

property as that of son. The position of a daughter as a coparcener shall be deemed

to include in the Hindu Mitakshara School. The sections of the Act shall not effect

nay distribution or alienation or testamentary disposition of property.

(2) After the enactment of The Hindu Succession (Amendment) Act, 2005, if a

Hindu dies the coparcenary property shall be deemed to have been divided as

under this Act and not by survivorship and the same share is given to the daughter

as the son.

A Hindu female is considered as the full owner of her own property before

or after the commencement of the, whether the property is acquired either by

partition or by gift or by her own exertion or by purchase or in any other manner.

Any property permitted to a Hindu female Hindu, detained by her with the

incidents of coparcenary rights and shall be regarded as her own and is competent

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of being disposed of by her by will.

Property inherited from father or mother to a female Hindu, upon the

nonexistence of any son or daughter shall transfer upon the heirs of the father; and

Property inherited from the husband or from the father-in-law by a female,

in the non-existence of any son or daughter of the deceased shall be transfer upon

the heirs of husband.

The court shall not identify any right to procedures for the resurgence of

any balance due from his father in opposition to a son, grandson after the

beginning of the Hindu Succession (Amendment) Act 2005 (Diwan 2009:549).

In the state of Jammu and Kashmir (J&K) among Hindus the Hindu

Succession Act is also implemented with same clauses. But still the Hindu

Succession Amendment Act (2005) is not implemented. At present the Jammu and

Kashmir Hindu Succession Act, 1956, The Jammu and Kashmir Hindu Marriage

Act, 1980, the Dowry Restraint Act, 1960, The Dowry Prohibition Act, 1961 and

The Hindu Widow’s Remarriage and Property Act, 1989 hold the field and in this

chapter the rights of women according to these Acts are discussed.

The Hindu Marriage Act, 1955

On 18 May, 1955 The Hindu Marriage Act was passed. The Act is

applicable to all the Hindus in India except the State of Jammu and Kashmir

(J&K). The Hindu marriages are governed by this Act and the act has brought

many significant changes to the law on this subject existing previously. In the State

of Jammu and Kashmir (J&K) the marriage Act was implemented in 1980 with

same Clauses as were in the Hindu Marriage Act, 1955. The Jammu and Kashmir

Hindu Marriage Act, 1980 is discussed below:-

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The Jammu and Kashmir Hindu Marriage Act, 1980

The Jammu and Kashmir State Legislature on the Thirty-first Year of the

Republic of India amend and modify the law relating to marriage among the

Hindus. The Act extends to the whole of the State of Jammu and Kashmir.

Under this Act, a valid marriage is one which satisfies the following

conditions:-

(1) That the party is single at the time of marriage;

(2) The marriage partners are able to give a valid consent;

(3) Among the both no one is suffering from mental disorder;

(4) Both are fit for the procreation of children;

(5) The age of Bridegroom should not be under the age of eighteen years and

the bride should not be under the age of fifteen years at the occasion of marriage;

(6) If the age of bride is below of eighteen years, the consent of guardian for

her marriage has been obtained;

(7) The customs must permit them to solemnize the marriage i.e. they should

not be within the degree of prohibited relation (J&K Law Vol. Vth,1990,350).

Ceremonies for a Hindu marriage – Among Hindus marriages are performed

according to the traditional rituals and ceremonies. The recital of ceremonies will

be sufficient for the legality of the marriage. Customary rites and ceremonies had

been followed from ancient times and to be accepted by the members of

community or caste and had accepted such ceremony as essential. The complete

binding of marriage includes the ceremony of Saptabadi i.e. the taking of seven

steps around the sacred fire by the bride and the bridegroom.

Registration of Hindu Marriages – Rules are also made for the Registration of

Hindu marriages for the effectiveness of the Act. The particulars relating to the

marriage are entered in the Hindu marriage register. The entry of all particulars is

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compulsory and the contravening of rule is punishable (J&K Law Vol. Vth,

1990:355).

Divorce- (1) Before or after the beginning of the Act any marriage can be

distroyed by divorce by a appeal either by husband or wife on the argument that

the either party –

I) has physical associations with any other individual than his or her partner;

the client could obtain a verdict of judicial separation, if he could show that his

spouse, after the solemnization of the marriage, had sexual relations with any

person other than his partner.

II) Treating the spouse with cruelty after the solemnization of the marriage;

cruelty may be physical or mental. Cruelty should not always be of such nature as

to cause danger to life or health, but harm to or injury to health, status and mental

pain will also amount to cruelty. The act or conduct which constitutes cruelty is a

argument for divorce even if it causes no anxiety of any sort in the mind of the

petitioner.

III) Desertion of the petitioner from the last two years; foregoing the date of

presentation of the petition. The transgression of desertion is not complete even if

the period of two years is complete. It is tentative. It becomes a full crime when the

deserted partner files a petition for a conjugal relief.

IV) Forcibly converting the religion of petitioner; the conversion of the

respondent to a non-Hindu faith does not amount to automatic termination of

marriage. The client has to file an appeal to obtain a decree of divorce. If a client

chooses to go on with his partner who has changed to another religion, there is

nothing to prohibit him from doing so.

V) The partner has been in poor condition of mind and has been in distress

constantly from mental chaos; A client may obtain a decision of divorce if the

respondent has been in affliction of mental disorder constantly to such an height

that it is not possible to live together.

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VI) Strong and untreatable type of leprosy of the partner; the petitioner is

required to explain that the respondent has been suffering from strong and

untreatable form of leprosy. Two conditions must be necessary i.e. virulent and

incurable. An easy-going type of leprosy which is able of treatment is not a reason

for the dissolution of marriage. Lepromatous leprosy which is contagious can be

accounted as the reason for divorce.

VII) Renouncing the world by entering any religious order by the spouse; a

person may go through a divine order even at the young age and it is not opposite

to Hindu religion, but it should not amount to hardships to one’s partner. And

when one partner leaves the other by renouncing the world it leads to desertion.

VIII) The spouse has been suffering from venerable disease in a communicable

form. (J&K Law Vth. Vol. 1990:358).

Divorce by mutual consent – A marriage can be dissolved by the mutual consent

of both the parties on the ground that they are not able to live together and are

living separately more than the period of one year. They are mutually agreed that

the marriage should be dissolved.

Assistance for respondent in divorce and other dealings:-In any happening for

separation or divorce, the petitioner may not only be in opposition to the

assistance sought on the ground of petitioner’s infidelity, unkindness or neglect,

but also make a counterclaim for any assistance under this Act on the argument;

and if the petitioner’s infidelity, meanness or neglect is proved, the court may give

to the respondent any assistance under this Act to which he or she had offered a

appeal in search of such assistance on that ground.

Custody of children:- Under this Act, from time to time, the court may pass such

provisional instructions and make such requirements in the verdict as it may

believe that with admiration to the protection, continuation and schooling of minor

children, constantly with their desires, wherever feasible, and may, after the

verdict, upon request by petitions for the reason (Jammu & Kashmir Laws Vol. V,

Fourth Edition;1994:366-368).

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The Dowry Prohibition Act, 1961 (India) and The Dowry Restraint Act, 1960

(Jammu & Kashmir)

The Dowry Prohibition Act, 1961 is enacted by Parliament in the Twelfth

Year of the Republic of India. It extends to the whole of India except the State of

Jammu and Kashmir. The Dowry Restraint Act, 1960 is enacted in the State of

Jammu and Kashmir State Legislature in the Eleventh year of the Republic of India

and both these Acts are enacted to prohibit the giving or taking of dowry and have

the same clauses. Therefore, only The Dowry Prohibition Act, 1961 is discussed

below:-

The Dowry Prohibition Act, 1961

The Dowry Prohibition Act, 1961, extends to the whole of India apart from

the State of Jammu and Kashmir. It shall come into force on 1st July, 1961.

Meaning of “dowry” – According to this Act, any valuable thing or

property or security given or agreed to be given by one party to another in the

marriage by parents, relatives or friends is dowry.

3. Consequence for giving or taking dowry.- (1) If any person, after the

enactment of this Act, finds to give or take or abets the giving or taking of dowry,

he shall be liable to be punished by incarceration for a term which shall not be less

than five years, and with fine fifteen thousand rupees or the sum of the value of

such dowry, whichever is more.

The presents of traditional nature shall be specified and whose cost should

not be more with regard to the economic position of the person by whom, or on

whose behalf, such gifts are given.

4. Punishment for demanding dowry.- If any person stress directly or

indirectly, to the parents or other relatives or guardian of a bride or bridegroom for

any kind of dowry, he shall be carrying a punishment of with incarceration for a

term which shall not be less than six months but which may widen to two years

and with fine which may make bigger to ten thousand rupees:

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5. Agreement for giving or taking dowry to be invalid.- Any contract of the

giving or taking of dowry shall be invalid.

6. Dowry to be for the advantage of the wife or her heirs.- (1) Where any

dowry is inward by any person other than the woman in connection with whose

wedding it is given, that person shall transmit it to the woman, within three months

after the date of marriage

(2) If any person fails to transmit any property within the time limit given there

for, he shall be punished by with custody for a period which shall not be less than

six months, but which may expand to two years or with fine, which shall not be

less than five thousand rupees, but which may broaden to ten thousand rupees or

with both.

(3) Where the woman permitted to any property, dies before accepting it, the

heirs of the woman shall be allowed to argue it from the person holding it for the

time being.

The Hindu Widow’s Remarriage and Property Act, 1989

1. Short Title – This Act shall be known as the Hindu Widow’s Re-marriage

and Property Act.

2. Extent and Commencement – It shall extend to the whole of the Jammu

and Kashmir State and shall come into operation at once.

3. Marriage of Hindu Widows legalised– No wedding contracted between

Hindus shall be void, and the issue of no such marriage shall be illegal, by reason

of the woman having been in the past married to another person who was deceased

at the time of such wedding and not opposed by any custom and any interpretation

of Hindu Law.

4. Rights of widow in deceased husband’s property to come to an end on

her re-marriage – All privileges and comfort which any widow may have in her

departed husband’s property by way of protection, or by heritage to her husband,

or by virtue of any determination conferring upon her, without express consent to

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re-marry, only a limited significance in such property, with no authority of

alienating the same, shall upon her re-marriage come to an end and decide as if she

then died; and the next heirs of her departed husband, or other persons permitted to

the property on her death, shall thereupon be successful to the same.

If in any case of Hindus, widow re-marriage was allowed prior to the passing of

this Act and a widow was not there by deprived of rights mentioned in this section,

its provision shall not operate to deprive her of such rights.

5. Guardianship of Children of deceased husband on the re-marriage of

his widow – If, on the re- marriage of a Hindu widow with children, of whom she

has not been expressly constituted by the Will or Testamentary disposition of the

deceased husband the guardian of his children but is the natural guardian or one

appointed by a Court, a claim to their guardianship should be made by another

person, the matter shall be decided by a petition to the District Judge who shall be

guided in retaining the mother as guardian or making another appointment

according to the best interests of the minors without reference to the preferential

rights of the mother.

6. Saving of rights of widow marrying – A widow shall not, by reason of

her remarriage, give up any property or any right to which she would otherwise be

permitted; and every widow who has re-married shall have the same rights of

heritage as she would have had, had such marriage been a first marriage.

7. Ceremonies constituting valid marriage to have similar effect on

widow’s wedding- Ceremonies performed or activities made on the wedding of a

Hindu female who has not been earlier married, are enough to compose a

legitimate wedding, shall have the same effects if performed or prepared on the

wedding of a Hindu widow; and no wedding shall be confirmed void on the view

that such words, ceremonies or arrangements are irrelevant to the case of a widow.

8. Approval to re-marriage of minor widow – If the age of widow is below

16 years whose wedding has not been happened, she shall not be re-married

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without the permission of her father or of her grand-father, or of her mother, or

failing all these, of her elder brother, or of her next male relative.

9. Penalty for abetting marriage made contrary to Section 8. Effect of

such marriage provision – All persons deliberately abetting a marriage made

conflicting to the provisions of section 8 shall be legally accountable to simple

charge for any term not higher than one year, or to fine, or to both.

10. Approval to re-marriage of major widow – The personal approval of a

widow for her remarriage who is not under 16 years of age, shall be enough to

represent a legal and suitable wedding (Jammu & Kashmir Laws, Vol. V, Fourth

Edition;1994:399-400).

The Jammu and Kashmir Hindu Adoption and Maintenance Act, 1960

As the concern of research is maintenance of women, so only the provisions that

are related to maintenance are discussed under this Act.

Maintenance of wife:- (1) A Hindu wife, whether wedded before or after the

enactment of this Act, shall be permitted to be maintained by her husband

throughout her existence.

(2) A Hindu wife shall be allowed to live independently from her husband

without forfeiting her claims to protection.

(a) If he is abandoning her without logical cause and without her approval or of

badly neglecting her.

(b) If he has treated her with such unkindness as to cause a realistic anxiety in

her mind that it will be dangerous or detrimental to survive with her husband.

(c) If he is misery from a dangerous form of leprosy.

(d) If he has one more wife alive.

(e) If he keeps sexual relations with other in the same house in which his wife

is living.

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(3) A Hindu wife shall not be permitted to separate home and upholding from

her husband if she is ceased to be a Hindu by adaptation to another religion.

Maintenance of widowed daughter-in-law:- (1) A Hindu wife, whether wedded

before or after the enactment of this Act, shall be permitted to be maintained after

the passing away of her husband by her father-in-law, if she is unable to uphold

herself out of her own income or other property.

Quantity of maintenance: - It shall be in the judgment of the Court to found that

the protection shall be granted under the provisions of this Act.

In shaping the amount of maintenance, if any, to be granted to a wife, children or

aged or sick parents under this Act, consider shall be had to:-

(a) The situation and position of the parties.

(b) The realistic requirements of the applicant.

(c) If the applicant is living individually, whether the applicant is acceptable in

doing so.

(d) The assessment of the petitioner’s belongings and any earnings imitative

from such property, or from the petitioner’s own income or from any other source.

(e) The quantity of people permitted to protection under this Act.

(3) In shaping the total of protection, if any, to be awarded to a reliant under

this Act, regard shall be had to:-

(a) The total assessment of the estate of the dead person after giving the costs

of his sum unpaid.

(b) The requirements, if any, made under a determination of the departed

person in value of the reliant.

(c) The extent of association between the two.

(d) The practical wants of the dependent relative.

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(e) The earlier period of associations between the dependent relative and the

dead person.

(f) The cost of the possessions of the dependent relative and any income

imitative from such property; or from his or her wages or from any other source.

(g) The quantity of dependents permitted to protection under this Act.

Claimant to maintenance should be a Hindu:- If a person is ceased to be a

Hindu by transfer to another religion she shall not be entitled to claim

maintenance under this Act.

Amount of maintenance may be altered on change of circumstances:-The

amount of protection set by a decree of Court or by contract, either before or after

the enactment of this Act, may be changed after if there is a material change in the

conditions justifying such change.

Maintenance when to be a charge:- A dependant’s argue for protection under

this Act shall not be a charge on the estate of the dead or any portion thereof unless

one has been formed by the determination of the dead, by a decree of Court, by

contract between the reliant and the proprietor of the estate or portion or otherwise

(Jammu & Kashmir Laws, Vol. V, Fourth Edition;1994:333-334).

The Jammu & Kashmir Permanent Resident (Disqualification) Bill

The Jammu and Kashmir State Assembly submitted a Bill, that if a woman

married outside the State, she would be deprived of the status as permanent

resident of the State. On March 2004, State Assembly passed the Bill. The other

parties who are in opposition such as the Congress, the BJP, the RSS and the CPM

dragged their support to the Bill. For the enactment of any Bill support of 2/3rd

member of Council is required. But the Jammu and Kashmir Resident

Disqualification Bill will not get the 2/3rd

support of the Council and the Bill was

disqualified.

The Bill was proposed with the argument that the State Subject that

Maharaja Hari Singh had promulgated vide Notification dated April 20, 1927

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which gives certain rights and constitutional rights for the permanent resident of

the State. But Maharaja’s law was not approved on gender discrimination whereas

the bill moved in 2004 and the present bill disqualifies only women of their

permanent resident status if they married outsiders.

The 2004 Bill was further criticized on the basis which disqualifies a

divorced woman who remarried the resident of the State in acquiring the status of

permanent resident of the state. And also in cases where she settled outside the

state, after the death of her husband. Article 370 of Indian Constitution granted

special status to the state and the Bill did not get any legal sanction to the gender

biasness.

The Permanent Resident Act, 1957 and rules there under grant no legality

to the present Bill or that of 2004. For the rule 8 of the Jammu and Kashmir Grant

of Permanent Resident Certificate does not provide for termination not to speak of

disqualifying only women on any argument.

A Convention was passed on 1956 by UN General Assembly regarding the

Nationality of the married women. According to this Convention the nationality of

women either by marriage or its dissolution would not be affected. Thus the

identity of a woman became independent and a part of international law. This

principle has nothing to do with the Article 370 and is applicable to all over the

India (Kashmir Times, 20 March 2004).

Thus it is seen that there are various Property Acts related to women

whichs are formed from time to time in India as well as in the State of Jammu and

Kashmir (J&K). All the above discussed laws may have slight difference as their

titles are concerned in respect to the state and of the country, but most of them

have the same objectives, i.e. to protect the rights of women and make provision

for their property rights.