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Customs is an Important Source of Law

Info: 3890 words (16 pages) Essay
Published: 17th Jul 2019

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Jurisdiction / Tag(s): Indian lawIslamic Law


Customs have always been an important source of law. The two bones of contention regarding customs in Hindu Law are however:

  1. Its validity under the smriti law
  2. Its relevancy to castes and tribes which are not governed by the smriti law.

Because of the working women belonging to the lower strata of the society, the various castes and tribes had relatively more woman oriented inheritance laws as opposed to the higher castes where women mostly just maintained the household. This is the reason why the efforts were at first made to make laws uniform across Hindu Law.

Among the pagan Arabs before Islam, inheritance rights were confined exclusively to the male relatives. The Koran abolished all these unjust customs and gave all the female relatives inheritance shares:

“From what is left by parents and those nearest related there is a share for men and a share for women, whether the property be small or large –a determinate share” (Quran 4:7).

Muslim mothers, wives, daughters, and sisters had received inheritance rights thirteen hundred years before Europe recognized that these rights even existed. The division of inheritance is a vast subject with an enormous amount of details (Quran 4:7, 11, 12, 176). The general rule is that the female share is half the male’s except the cases in which the mother receives equal share to that of the father. This general rule if taken in isolation from other legislations concerning men and women may seem unfair. The view of Muslim Scholars and Law-makers on this issue is however is as follows, in order to understand the rationale behind this rule, it is necessary to keep in mind that the financial burdens on a Muslim male is more than that on a female. During marriage, a Muslim husband is expected to give gifts to his wife whereas there is no such expectation attached to the wife. Also the earnings of the husband are usually earmarked for the maintenance of parents, wife and children and unmarried or widowed sisters if any. The wife on the other hand enjoys all benefits of her property and earnings. She has no liability to maintain anybody. To add to it all, Islam as a faith propagates the idea of marriage, denounces divorce and does not treat celibacy or abstinence as a virtue. Therefore it is the preaching of family life all the way. And hence it is evident that a male member of an Islamic family has more financial liability than a woman, therefore his share in a property distribution should be logically more and therefore inheritance rules are meant to offset this imbalance so that the society lives free of all gender or class wars.

Prior to the uniformisation and codification of laws however, it is the customs or personal laws as we call them, which guided the various religions and also different castes and tribes within the religion. Since ancient times the framing of all property laws have been exclusively for the benefit of man, and woman have been treated as subservient, and dependent on male support. The right to property is important for the freedom and development of a human being. And irrespective of how much a religion might try to justify the giving of lesser property rights to a woman, it is unfair and absolutely uncalled for in today’s society as well as the society in which such laws existed and were passed on through generations.

Rights Of Inheritance Of Woman Under Hindu Law Prior To The Codification Of 1956

Hindus were governed by Shastric and Customary laws which varied from region to region and sometimes it varied in the same region on a caste basis. As the country is vast and communications and social interactions in the past were difficult, it led to a diversity in the law. Consequently, in matters of succession also, there were different schools, like Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight variations. The multiplicity of succession laws in India, diverse in their nature, owing to their varied origin made the property laws even mere complex.

However, property held by a woman before codification in 1956 could be divided into two categories according to the source from which the property was inherited –

  1. Stridhan or property of which she is the absolute owner.
  2. Non-Stridhan or the women’s estate or the property of which she is the limited owner.


In the ancient times and even up until the codification of laws, with their roots in a feudal society of agrarian landholdings marked by a patriarchal structure joint families were the norm and their basic characteristic was their inalienability. Within such a setup, women’s right to property was constrained. The property was managed by the Karta for the benefit of the entire family including the female members. So in effect, till the property was partitioned, the right of male members (coparceners) was essentially the right of maintenance. Women however did not form a part of the coparcenary, so they did not even have the notional right of joint ownership and hence they could not even demand partition. They had to be maintained by their husbands from the joint property and in case they were sonless widows, they had the right to inherit the share of their deceased husband. This made the discrimination against women evident, which provided them with virtually no rights to inheritance. To partially set off the disability suffered, the Smritikars assigned a special category property to women, which they termed as Stridhan. Stridhan is formed by joining two words, stri i.e. woman and dhana i.e property, meaning woman’s property. The first mention of this term was found in Gautama Dharmasutra. He provided for not only separate property for women but also for distinct and separate rules for their succession.

The two most important schools of Hindu law, that is, the Mitakshara and the Dayabhaga however interpret it differently. While Mitakshara and the authorities that follow it define stridhan in its etymological sense as including all kinds of property of which a woman has become the owner, whatever the extent of her rights over it. The Dayabhaga School however restricts the term to that property of the woman over which she has absolute control even during the life of her husband.

The Smritis enumerate Stridhan as:

  1. what is given before the nuptial fire, adhyagni
  2. what a woman receives while she is being taken in a bridal procession, adhyavahanika
  3. what is bestowed on her by her mother-in-law or father-in-law by affection, pritidatta
  4. gifts made by the father
  5. gifts made by the mother
  6. gifts made by the brother.

Different schools however keep adding other gifts and endowments to it as per the the place which they belong to. This is mostly custom specific. And has been variously treated as yautaka, ayautaka and saudayika.

Under the Mitakshara, according to the text of Yajnavalkya :

“What was given to a woman by the father, mother, her husband or her brother or received by her at the nuptial fire or presented on her supersession (adhivedanika) and the like (adi), is denominated woman’s property. That which is given to the bride by her bandhus, sulka, anvadheyaka, these her kinsmen (bandhavas) take if she dies without an issue.”

Vijnaneshwara has explained that the term adi includes property which may have been acquired by inheritance, purchase, partition, seizure and funding. Thus according to this description, any property that belongs to a woman is her stridhan.

Under the Dayabhaga, according to Jimutavahana:

“That alone is stridhan which she has a power to give, sell or use independent of her husband’s control.”

It should be noted here that Jimutvahana is silent regarding the property that can’t be disposed off by the woman without her husband’s consent. Dayabhaga therefore divides stridhan for purposes of succession into three classes.

  1. Yautaka
  2. Anvadheyaka
  3. Ayautaka

It differs from Mitakshara on the basis that property inherited by a woman, obtained by her on partition, gifts from strangers, property acquired by her by mechanical arts and gifts of movable property made by the husband are not stridhan.

Judicial Decisions

Before the codification of 1956, it was the Privy Council which gave out decisions. According to the Privy Council, except in the Dayabhaga school –

  1. Gifts and bequests from relations, whether during maidenhood, coverture or widowhood by her parents and their relations or by her husband and her relations is stridhan.
  2. Property bequeathed by a stranger during maidenhood, nuptial fire, bridal procession or coverture is stridhan.
  3. The property received by a widow on partition of joint family property is not her stridhan (unless so intended), in the sense that on her death, it passes on not to her stridhan heirs but to sons and grandsons as a part of the joint family property.

Woman’s Estate

The term woman’s estate in its larger connotation means all property which has come to a woman by any means and from any source whatsoever and includes both property in which she has absolute interest (stridhan) and property in which she has limited or qualified interest.

A Hindu female may inherit property from a male or female from wither her parent’s side or her husband’s side. The Mitakshara School and the Dayabhaga school considered all property passed on in partition to be woman’s estate and not Stridhan. Thus the characteristic of a woman’s estate is that she takes it as a limited owner, she is an owner of this property, subject to two basic limitations:

  1. she cannot ordinarily alienate the corpus, and
  2. on her death it devolves upon the next heir of the last full owner.

Before The Hindu Law Of Inheritance (Amendment) Act 1929

The Bengal, Benares and Mithila sub schools of Mitakshara recognised only five female relations as being entitled to inherit namely – widow, daughter, mother paternal grandmother, and paternal great-grandmother.

The Madras sub-school however had a more modern take (if we dare say so) and recognised a larger number of females heirs as being worthy of inheritance. They were the son’s daughter, daughter’s daughter and the sister. These were the relations that had been expressly named as heirs in Hindu Law of Inheritance (Amendment) Act, 1929. Among all the aforementioned schools, the Bombay school was the most tolerant to women and recognised several other female heirs, including a half sister, father’s sister and women married into the family such as stepmother, son’s widow, brother’s widow and also many other females classified as bandhus.

During The British Regime

However, during the British regime, the country became politically and socially integrated, and even though the British Government followed a divide and rule policy for India in all its political and legal matters, they did not meddle with the personal laws of Hindus, Muslims or any other community for that matter. This being the period of movements against the various kinds of British rules and social oppressions mitigated by them, several social reform movements raised the issue of betterment of the woman’s status in the effectively patriarchal society. The earliest legislation that brought women into the codified design of legacy was the Hindu Law of Inheritance Act, 1929. This Act, conferred inheritance rights on three female heirs i.e. son’s daughter, daughter’s daughter and sister (thereby creating a limited restriction on the rule of survivorship).

Another milestone in the field of legislative competency arrived in the form Hindu Women’s Right to Property Act (XVIII of) 1937, which granted ownership rights to women especially the widows. This Act brought about revolutionary changes in the Hindu Law of all schools, and brought changes not only in the law of coparcenary but also in the law of partition, alienation of property, inheritance and adoption. This Act bestowed succession rights on the widow and empowered her to succeed along with her son and that too the amount equaling what the son inherited. However like every other legislation, this legislation too was not spared of the ‘but’ clause. The ‘but’ clause here being that even though the widow had inheritance rights at par with her son, she was not a coparcenary. All this when her right to property made it almost identical for her to being a coparcener and to add to that she was also the member of the joint family. The saving grace being the fact that she could claim partition of the property even though her property status was that of a limited owner. While married women gained rights of inheritance to their husbands’ property, even where the husbands left male issue, the daughters were left virtually property-less with almost no rights of inheritance. Despite their valiant efforts at changing the laws of succession for women and making them non-discriminatory or at a least less discriminatory, the legislature failed miserably. There were several incongruities and the laws seemed to be vague and flawed. Moreover none of them touched on the core issue of prejudice against women.

The Indian Constitution

After these acts were all repealed, the time came for the framers of the Indian Constitution to prove their mettle in the field of abolishment of gender bias and discrimination. They took cognizance of the prevalent situation and made extra efforts to ensure that the State took concrete steps to provide women the equal status, of which they were rightful claimants. Articles 14, 15(2) and (3) and 16 of the Constitution of India, thus not only inhibit discrimination against women but in appropriate circumstances provide a free hand to the State to provide protective discrimination in favour of women. Alongwith these Fundamental Rights the Constitution also provides for something called as Fundamental Duties, which though not legally enforceable holds equal weightage socially and the relevant sections of the Fundamental Duties chapter talk about the endeavour of the State to take steps as necessary for the free, fair and equal treatment of men and women. However irrespective of what the constitution says or any statute does the unconcealed ignorance of the womenfolk when it comes to granting of equal rights still continue and more so in the case of inheritance of properties.

Rights Of Inheritance Of Women Under Muslim Law

“To Muslims, the Sharia law of inheritance is ideally perfect; founded on the sure rock of divine relevation and worked out in the utmost detail by that mental ingenuity which God gave man for the purpose of understanding revelation.”

The Muslim system of inheritance has been appreciated for its utility and formal excellence. The Islamic law of inheritance like the rest of the Islamic personal law is a combination of pre-Islamic customs and rules introduced by the Prophet. Thus, it can be said that there is dual basis for the Muslim law of Inheritance. The bases are:

  1. Rules laid down in the Koran or traditions;
  2. Customs and usages prevailing amongst the Arabs insofar as they have not been altered or abrogated by Koranic injunctions.

While the Koran tried to bring about changes in the prevailing customs, the customs where all about giving preference to the mail heir and totally discounting the female members of the family. Therefore while Koranic interpretations gave specific shares to certain individuals based on humane considerations, pre-islamic customary law dealt with residue shares and therefore distributed these shares among agnatic heirs and in their absence amongst uterine heirs. Which is why it was always seen that people in similarly placed position did not get equal shares under pre- Islamic customs. Eventhough such discrepancies existed, it was however a well known fact that pre-Islamic customs occupied and still occupy a very important position in the Muslim system, especially so in connection with the law of inheritance.

The Koran did not completely sweep away the existing laws on succession and inheritance but made a lot of amendments to it and improved the status of women. The major change was that the agnate relations were substituted with blood relations and relations by marriage. The Koran made a list of people who were held competent to inherit and the newly included members of the family included in this list were mostly women and cognates, who did not receive any form of property under the customary laws and traditions. Some of the most remarkable changes were:

  1. The husband and wife were made heirs.
  2. Females and cognates were made competent to inherit.
  3. Parents and ascendants were given a right to inherit even when there were male descendants.
  4. As a rule, women were given one- half of the share men were because the general idea was that they had lesser responsibilities and obligations in comparison to men.

Of these amendments, the ones that hold importance from the view of this paper are 1., 2. and 3.

Under the Hanafi law these new successors were again divided into categories and their shares were fixed. They were the,

  1. Nearest heirs or the sharers.
  2. Body of agnates who were the original heirs under the pre-islamic customs was termed the residuaries.
  3. All the remaining heirs relegated to the position of distant kindred.


They are the people who shares have been specified in the Koran and they are to receive what is allotted to them in a fixed order of preference and mode of succession. There are eight females who inherit property of a deceased Muslim. They are the wife, daughter, son’s daughter, full sister, consanguine sister, uterine sister, mother and true grandmother, how high so ever – maternal or paternal.


If there are no sharers or there is residue left after sharing it among the sharers, the whole inheritance or the residue left after satisfying the claims of sharers to inheritance as the case may be devolves upon residuaries. There are four women included in this group, full sister, consanguine sister, the daughter and the son’s daughter how low so ever. They inherit in a grade parallel to the male heirs and no other woman other than these four females can inherit under residuaries.

Distant Kindred

In the absence of sharers and residuaries, the property is divided amongst the distant kindred who are divided into four classes wherein Class I excludes Class II, III and IV, Class II excludes Class III and IV and Class III excludes Class IV. There are several women who inherit in terms of being distant kindred. Some of them are- daughter’s children and their descendants under class I, False Grandmothers under Class II, Full brothers’ daughters and their descendants, Consanguine Brothers’ Daughters and their descendants under class III and Full paternal uncles’ daughters and their descendants and so on under Class IV.

Under the Shia Law of Inheritance, they completely abolished the pre-islamic customs by abolishing the difference between agnates and cognates and also males and females. Thus heirs under Shia laws of inheritance were divided into two groups:

  1. Heirs by consanguinity; that is by blood relations.
  2. Heirs by marriage; that is, husband and wife.

Consanguinity divides the inheritors into three classes whereby, Class I excludes Class II, which in turn excludes Class III. In heirs by marriage, the husband takes twice the property as his wife. There are seven females therefore under Shia Law who inherit. They are: mother, daughter, sister, grandmother, paternal aunt, maternal aunt and the wife. Eventhough it is made to look that women are given due importance in inheritance, it is ultimately very evident that it is the men who are given preference over their women counterparts when it comes to inheritance rights.


As was observed, a system of property ownership by women seemed to have been an integral and significant part of the ancient moral, ethical and legal socio norms. Due weightage was granted to this subject in Sanskrit scriptures as was evident from the Dharmasashtras and Dharmasutras. It did appear that patriarchal collusions constantly undermined the scriptural dictates of the dharma of stridhan. At each time the smritikars, with great effort, brought the emphasis back to women’s ownership of property and in the process also expanded its scope. There seemed to be a constant tussle between the smriti dictates and patriarchal subversions within the family. The Hindu Succession Act of 1956 strove to remove this discrimination as is evident from the fact that prior to the codification of the Succession laws in the Hindu Succession Act in 1956, the womenfolk in a family, held only two kinds of property – stridhan and woman’s estate. However after the codification, all the discrepancies in the laws of various schools were abolished and the females were granted the right to ownership of all property acquired or possessed under a will, gift, award, document or a decree of a court prescribing limited estate before and after signing of the Act, abolishing their “limited owner” status. Whatever she has obtained or acquired legally before or after commencement of the Act, became her absolute property and she became the absolute owner.

For non-testamentary succession of the Muslims it is the The Muslim Personal Law (Shariat) Application Act, 1937 that is applicable and it is used for the division of all kinds of properties except the agricultural land and where a Muslim has died testate, the matter is presided over by the Indian Succession Act, 1925 where a will deals with immovable property situated within the State of West Bengal, and that of Madras and Mumbai Jurisdiction. The Shariat was considered to be derived heavily from the existing norms, customs and conventions but when it ran opposite to local customs, it was the local customs that prevailed. The customary laws were highly discriminatory and it excluded daughters and others like widow were in the bottom line in the succession order, this practice runs contrary to the Shariat where a daughter and widow cannot be excluded by any other heir and also have the protection from the testamentary restrictions. The shares of the daughters and widows are lower as explained in the introduction previously are than that of a man.

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