Chapter XXX. Stridhana

Volume III pp. 770–802

Chapter XXX. Stridhana

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

The germs of the topic of strīdhana can be traced to the Vedic Literature. As Sir Gooroodas Bannerjee remarks (in ‘Marriage and strīdhana’ 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 Ṛgveda (X. 85) contains two verses¹ (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 Savitr sent off have gone forth; in the Aghās (Maghā constellation) are struck the kine and in the Arjuniṣ (Phalguni constellation) is carried (the bridal gift); for thee in the beginning they carried about Sūryā together with the bridal gifts &c.’ 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,² ‘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. Jaimini³, according to Śabara, refers to this passage of the Tai. S. for establishing that women do own certain property. Medhātithi ⁴ 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 smṛti rules about the devolution of strīdhana 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 sūtraṣ Āp Dh ⁵ 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 ). Bauḍ Dh S. II 2. 49 says that daughters get the ornaments of their mother and whatever else it is customary for them to get. Vas 17. 46 prescribes that women (daughters) should divide the nuptial presents given to their mother. Śaṅkha (q by Saṃ Pr. p. 851) prescribes that in all forms of marriage ornaments and strīdhana 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 verse 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 strīdhana.

Three principal topics have to be discussed under strīdhana viz what constitutes strīdhana, woman's dominion over her strīdhana and inheritance to strīdhana. On each one of these topics great diversity of views prevails and the subject has become very complicated, as the Dāyabhāga remarks⁶.

Gautama contains three sūtras about the devolution of strīdhana, but he does not define or describe it.⁷ Kaut ( III 2. p. 152) defines⁸ : ‘means of subsistence and what could be tied on the body (i e ornaments and jewellery) constitute strīdhana. 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 compared with a verse of Kat. (902) and a similar⁹ verse of Vyāsa viz. ‘the father, the mother, the husband, brother and kinsmen should give strīdhana to a woman according to their means up to two thousand (panas) except immovable property’ 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 giveṇ

The term strīdhana literally means ‘woman’s property’. But in the ancient smṛti 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 strīdhana. One characteristic feature of strīdhana from the times of Gautama downwards has been that it devolved on females in the first instance The oldest extant definition of it in dharmaśāstra works is that of Manu¹⁴⁹¹ 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 Yaj II 143 explains that the number six is intended to exclude a smaller number of the kinds of strīdhana and does not exclude a larger number. In IX. 195 Manu appears to mention one more kind viz. ‘anūdheya’ (gift subsequent)’ Nār. (dāyabhāga, 8) has the same six kinds as Manu IX. 194, but reads ‘bhartṛdāya’ (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) enumerates¹⁴⁹² the several kinds of strīdhana 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 (ādhivedanika) and the like—these are denominated strīdhana; so also what is given by the cognate relations (of the woman), the śulka (fee), and gifts subsequent to marriage’. The Mit. and most of its followers read ‘ādhivedanikādyam ca’, while Aparārka and the Dāyabhāga 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 strīdhana. But it should be noted that even without reading ‘kādyam’, Aparārka explains the verse in the same way as the Mit. doeṣ Viṣṇu¹⁴⁹³ Dh S. 17. 18 enumerates almost the same kinds of strīdhana as Yāj, but omits the word ‘ādya’.

Among smrṭi writers Kātyāyana gives the most elaborate treatment of strīdhana in about twenty-seven verseṣ defines several kinds of strīdhana enumerated by Manu, Yāj., Nāṛ., and Viṣṇu (in all six) as follows¹⁰: what is given to women at the time of marriage before the nuptial fire is declared by the wise to be adhyagni¹¹ strīdhana. That again which a woman obtains when she is being taken (in a procession) from her father's house (to the bridegroom's) is declared to be adhyā- vāhanika strīdhana. 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 pritdatta (gift through affection) strīdhana. That is declared to be śulka (bride's fee) which is obtained as the price of household utensils, of beasts of burden, of milch cattle, ornaments and slaveṣ Whatever is obtained by a woman after marriage from the family of her husband as also from the family of her (father's) kinsmen 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 Kātyā- yana's definitions of adhyagni and adhyāvahanika are wide enough to include gifts made even by strangers on those occasions

These definitions given by Kātyāyana have been accepted by all digests including even the Dāyabhāga.

“That is known as saudāyika 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 adhyāvahanīka 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 Dāyabhāga¹² and some others (pautrikī) restricts the adhyāvahanīka to gifts made by the father’s or mother’s family only. The V. R. (p. 523) includes under adhyāvahanīka also the gifts made by the father-in-law and others when the girl is taken back to her father’s house and of 'dvnāgamana'. The Dāyabhāga¹³ (IV. 3. 19-20 p. 93) explains 'dohyābharaṇa-karmiņām' differently as ‘the gratification paid by house-builders or goldsmiths to induce her to press her husband to engage them’ or as Vyāsa says ‘what is given to a woman to induce her (cheerfully) to go to her husband’s house’. The Sṃ C. and V. P. explain śulka 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.¹⁴ The V. Nir. (p. 468) states that śulka has two senses; (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); (2) what is given (by the bridegroom) as the price of the ornaments for the girl and of the household gear.¹⁵ Another verse of Kāt. (904) has been quoted by many writers, which restricts the literal sense of the word strīdhana, ‘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 Śankba (svayam śulkam vodhā) q by V. R. p 521 In very ancient days there appears to have been a practice to offer in some cases considerable wealth to the father of the bride to induce him to give her in marriage. Ṛg I 109. 2 refers to thiṣ ‘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 is purchased as ‘vijāmātr’ (विजामात्रा इति शब्दं दाक्षिणात्याः क्रीतापतिमाचचते अङ्गसमास ब्रुवन् वरोऽभिप्रेतिः) But this verse also shows that the bride’s brother (śyāla) had to give wealth to his sister’s husband, Vide H. of Dh. Vol. II. pp 503-506 for passages about the sale and purchase 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 ) Gādhi claims as the custom of his family one thousand horses of the best kind from Rcika when the latter preferred his suit for the hand of Gādhi’s daughter (उचितं नः कुले किंन्चि दूर्ध्वैस्संप्रतिर्त्तत् । एकतः श्यामकर्णानां पाण्डुराणां तरस्विनाम् । सहस्त्रं ह्यर्जिनां शुल्कमिति विद्धि द्विजोत्तम ॥) Vide Anušāsana 4 12 (for a similar statement) and 2 31, Manu 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 Anušāsana 46. 1-2) Manu says that when agnates do not appropriate to themselves the gratuity paid (by the bridegroom) for the bride but hand it over to the bride then it is not sale, but it is honour shown to the girl and is merely kindness to her. The Mit defines śulka as the gratuity after getting which the girl is given The V. C. p. 139 defines it as what is obtained from the husband on condition of furnishing household gear &c. ‘गृहपतेराश्वीकरगोषिणा क्रिया गृहपतिसौ यत्सुङ्ककमियर्षी’ the rest is declared to be strīdhana'.¹⁶ The prima facie view (pūrvapakṣa) 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 processioṇ 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 strīdhana. Devala says, 'maintenance (what was given for maintenance), ornaments, śulka (bride's gratuity), the profits of money-lending are a woman's strīdhana. She alone is entitled to enjoy it and the husband is not entitled to enjoy it except in the case of distress'.¹⁷ 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, Dāyatattva p. 184 all say that acc. to Medhātithi even ornaments, though not donated expressly, become strīdhana, if worn with the husband's consent.¹⁸ According to the Vaijayantī 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 partitioṇ Saudāyika is not a special kind of strīdhana. It is rather a comprehensive term for several kinds of strīdhana as the definition given by Kāt shows and as the V. C. (p. 139) expressly states¹⁹. It is almost synonymous with strīdhana in the technical 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 maiden or as a married woman from her mother, father or paternal relatives only, while the Dāyabhāga 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 Vyāsa²⁰ that defines saudāyika 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 saudāyika.' The word 'saudāyika' is derived from 'sudāya' and means, according to the Dāyabhāga IV. 1. 22 p. 76, 'received from affectionate kindred'. The Amarakośa says that 'sudāya' means 'gifts of yautaka and the like' and that saudāyaka is merely a derivative without change of meaning²¹.

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 strīdhana in III ] the technical sense The Sm²² C 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 yuta (joined). It should, however, be noted that Yaj II. 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 strīdhana. The Sm C II. p 285 remarks that Devasvāmī 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 Dāyatattva (p 186) states that both forms 'yautaka' and 'yautuka' are in vogue and relies on Vācaspati and Rāyamukuṭa in support.

Kaut (III 2. p 153) names śulka, anvādheya, ādhivedanika and bandhudatta as kinds of strīdhana.

The above are the principal smṛti texts on the question of what constitutes strīdhana. It will be seen that the smṛtis only enumerate and describe certain kinds of property as strīdhana, 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 strīdhana. From the texts of the smṛtis it follows that strīdhana was a technical term, which at first included only six kinds of property, then nine and ultimately by the time of Kātyāyana it included all property (whether movable or immovable) obtained by a woman, either as a maiden or at marriage or after marriage, 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 strīdhana. Most smṛtis employ the word ‘datta’ (donated), but Kāt. and Vyāsa sometimes use the word ‘obtained’ (prāpta 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 obtaineḍ

This is strīdhana in a technical sense.

It is now necessary to find how strīdhana was defined by the several commentaries and digests that are held authoritative in the several schoolṣ This is a most important matter for practical purposes, since the courts have to follow the opinions of commentators ²³ that are authoritative in each school and are not at liberty to put their own construction upon ancient smṛti texts, if such construction would run counter to the express opinions of the authoritative commentatorṣ First then comes the Mitākṣarā. Its gloss on Yāj. II. 143 may be translated as follows ²⁴: ‘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 ūdhvedanika, 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 ‘ādya’ (meaning ‘and the like’) is indicated property that is obtained by succession, purchase, partition, seizure or finding—all this is declared by Manu and others to be strīdhana. The word strīdhana is employed 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 Mitākṣarā expanded the III ] definition of strīdhana 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 becomes strīdhana even if it be inherited by her from a male as a widow or as a mother or even if it be obtained at a partition by a wife or mother (acc. to Yāj. II 115 or 123 respectively). The same interpretation of the word ‘ādya’ has been accepted by several works, such as the Madanapārijāta (p 671), the S. V. (p. 379), V. P. (p 542), the Bālabhaṭṭi. Aparārka without reading ‘ādya’ gave the same explanation of ‘ca’ as stated above (on p. 773). On the other hand, the Dāyabhāga gave a restricted meaning to the worḍ Jīmūtavāhana reads Yāj II. 143 as ‘ādhvedamkam cava’, quotes the verse of Devala (in note 1501), remarks that strīdhana is not restricted to the six kinds of Manu (IX. 194) but includes other kinds mentioned by other smṛtis and finally ²⁵ observes : ‘that alone is strīdhana which a woman has authority to donate, sell or enjoy independently 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 strīdhana 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 made by the husband and gifts from even strangers made before the nuptial fire or on the bridal procession constitute strīdhana, but property inherited by a woman or obtained on partition, 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 Dāyatattva closely follows the Dāyabhāga.

The Sṃ C. does not give a definition of strīdhana, but it does not adopt the interpretation of the word ‘ādya’ given by the Mit. Therefore it may be said that it is in line with the dāyabhāga. The Par. M. III p. 547²⁶ (another Madras autho- rity) appears to follow the Mit., since it says 'adya' includes 'adhivedanika' and what is acquired by inheritance, sale and the like." The Vivadacintamani (the leading authority in Mithila) does not define strīdhana in general, but enumerates the several kinds of strīdhana described by Manu, Yaj., Viṣṇu, Kat., and Devala and so is on a par with the dāyabhāga. The V. Mayukha divides strīdhana into two kinds, paribhasika (technical) and aparibhasika (non-technical). The former comprises properties expressly stated to be strīdhana 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).²⁷ This division is peculiar to the V. Mayukha. The Viramitrodaya (the paramount authority in the Benares 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 strīdhana as defined by the commentatorṣ It may be said at once that the inclusion by the Mit. of property inherited by a woman or obtained at a parti- tion under strīdhana has been totally discarded by the Privy Council for all provinces in India except Bombay²⁸. 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 are strīdhana according to the Mit, but the Privy Council has held as to both these kinds that they are not strīdhana; e g if a daughter inherits property from her father or inherits the strīdhana property of her 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 distinctioṇ 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 strīdhana, she takes only a limited estate in it and on her death it passes to the next heir 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 inherited becomes her strīdhana (in Bombay). As to property acquired by a wife or mother on partition ²⁹, it has been held by the Privy Council that it is not strīdhana even in provinces governed by the Mitākṣarā (including Bombay).

Kāt (903) declareṣ ³⁰ '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 strīdhana.' 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 strīdhana.

Dominion over strīdhana.--What is strīdhana and what dominion a woman has over strīdhana 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 Certain verses of Kāt and Nār are the principal texts on this subject Kāt (905-907, 911) says:¹⁵¹⁵ 'on obtaining wealth of the saudāyika kind it is declared (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) conditioṇ It has been declared that women always have independence in saudāyika property as regards sale or gift at their pleasure and even in immovables (if saudāyika). 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 strīdhana of a woman'. The verse of Kāt about property acquired 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 quoteḍ From these texts it follows that a Hindu woman during her maidenhood³¹ could dispose of her strīdhana property of every description at her pleasure, that during her widowhood she could dispose of every kind of strīdhana 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 saudāyika ( i e, gifts from relations except those made by the husband). Under modern decisions the distinction between saudāyika and non-saudāyika is retained,³² but the distinction between sau- dāyika given by the relations and that given by the husband is not kept.³³ 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 dominion 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 strīdhana 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 even such strīdhana After the hus- band’s death, she can dispose of even non-saudāyika strīdhana as she likes But even as regards saudāyika the texts concede certain rights to the husband in certain circumstances Yāj II 147 says: ‘the husband is not liable to return to the wife her strīdhana taken (i e used) by him in a famine, for (indispensable) religious acts, in disease, or when imprisoned (by the creditor or by the king or an enemy )³⁴ Kat. (914)³⁵ has a similar verse which says that he may return strīdhana wealth if he chooses to do so when it is used by him in a disease or in calamities or when harassed by creditorṣ 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 provides³⁶ that there should be no complaint (by the wife ) as regards the expenditure of strīdhana made more than three years before by joint action of the husband and wife when they have given birth to two children (or to twins) and when the marriage has been in the most approved forms (brāhma and the other three), that when strīdhana 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 paiśāca form the expenditure of strīdhana should be dealt with as theft. The meaning of 'mithunam prajatayoh' and 'trivarsopa- bhuktam' in Kaut is not quite clear. It is probable that Kauṭilya lays down a rule of limitatioṇ If more than three years are allowed to pass without complaint, then no complaint made later ( than three years after the expenditure ) would be entertaineḍ So also if there be no children of the marriage and the husband spends strīdhana without objection by the wife then also no complaint would be entertained as the restraint on alienation of strīdhana by the husband and wife was meant for the benefit and advancement of the children None of the later smṛtis like those of Yāj, Nār. or Kāt, makes these distinctions and so Kaut probably represents an early stage in the evolution of the husband's dominion over strīdhana. These later smṛtis 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 (Yāj. II, 46, Viṣṇu Dh. S. VI. 31–32). But the same smṛtis make it clear that under certain distressing circumstances the wife's separate property was liable for the maintenance or debts of the husbanḍ The Mit. expressly states³⁷ that if the husband uses his wife's strīdhana under any other circumstances (than those specified by Yaj. II. 147 and Kāt) then he has to return it, that no relation except the husband has any right to use a woman's strīdhana during her lifetime even in distress or disease &c. 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 womeṇ The Sṃ C. and V. Mayūkha follow the Mit., but the V. R. and V. C. hold that Kātyāyana's verse applies not only to the husband, but also to the son, father and brothers of the womaṇ Kāt. (912–913) provides³⁷ that if any one of the four persons (q. in ṇ 1515 above) forcibly consumes strīdhana 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 consumes strīdhana 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). Devala³⁸ also states, 'if the husband makes a gift of strīdhana without cause or enjoys it, he must pay it back with interest, but he may use the strīdhana of his wife for relieving the distress of a son (and also of the family, acc. to V. Mayūkha). Kāt. (908)³⁹ adds a special rule, 'if the husband has two wives and he does not reside with one of them (i. e neglects her), he should be forcibly made to return (the strīdhana of his neglected wife) by the king even though she bestowed it upon him through affectioṇ' The texts of Kāt., Devala and Nār. quoted above about the dominion of the woman over her strīdhana and about the husband's power over it are authoritative in all schools even now. Manu IX. 199 ⁴⁰ provides: 'wives should not spend (for their own benefit) from the property of their families which is common to many, nor from their own property without the husband's permissioṇ' The V. Mayūkha interprets this as meaning that she has no independent power even over ādhivedanika and the like, but this would be opposed to the express texts of Kāt, Vyāsa and Devala. Therefore the words must be taken as only recommendatory.

Kāt. (916) delivers a special rule viz ‘strīdhana ⁴¹ 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 sons or stepsons) provided she resides in the husband’s family, she should not reside with her paternal family.’ The Sṃ 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 Sṃ C and others a wife who is full of evil acts, is immodest, wastes property and is given up to adultery, does not deserve (to dispose of) strīdhana and V. P. and V. C. explain that it may be taken away from her in such a case ⁴². In modern times this rule of forfeiture of rights would not be enforced by the courts as regards strīdhana. Some explain this verse as referring to the widow as heir and separate the words as ‘strī dhanaṃ’ ⁴³ Vide Ganga v. Ghasīta 1 All 46 (F. B ), 48–49.

Succession to Strīdhana,—The several schools of Hindu Law differ from each other perhaps more widely on this subject than on any other. But one thing is generally common to all schools viz. that as regards succession to strīdhana daughters are preferred 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 strīdhana. This was probably due to the fact that the value of strīdhana 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 strīdhana 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 strīdhana 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 strīdhana and the school of law to which she is subject.

First, the important texts of the smṛtis on succession to strīdhana may be brought together. The oldest extant text is that of Gaut. 28.22 which provides, ⁴⁴ 'strīdhana devolves (first) on daughters; ( in a competition among daughters ) it goes to those that are unmarried (apraṇīta, 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 of their grandmother on the ground of affection'. In Manu IX. 195 it is said that the six kinds of strīdhana, as also anvādhēya strīdhana and gifts made by the husband 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-Nārāyaṇa holding that mother’s estate means estate other than technical strīdhana. Most of them rely on a text of Br. and 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 (⅓ of each brother acc. to Kullūka). Manu IX. 196-197 further provide that when a woman was married in one of the five forms of marriage viz. Brāhma, Daiva, Ārsa, Prājāpatya and Gāndharva and died without issue her strīdhana goes to her husband and if she was married in the Āsura and the other two forms it went, if she died issueless, to her mother and father. Yaj. II.⁴⁵ 117 pro- vides that daughters take the strīdhana estate of their mother and on failure of them the (male) issue. In II.⁴⁶ 144 Yaj again says that strīdhana 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 (brāhma, daiva, ārsa, prājā- patya ) but to her parents if she was married in the other four formṣ Viṣṇu Dh. S. (17. 19-21) and Nār. (dāyabhāga, 9) contain the same rules as Yaj. II. 144-145, while Nār. (dāya- bhāga 2) states that the mother's wealth should be divided among the daughters and in the absence of daughters the latter's issue takes it. Śaṅkha-Likhita⁴⁷ declare that the mother's estate is taken in equal shares by the full brothers (sons of the deceased mother) and their unmarried sisterṣ Br.⁴⁸ (S. B. E. III ] 33 p. 383 verse 87 ) declares, ‘strīdhana 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 strīdhana, but in a competition between married daughters alone and sons they all take equal shareṣ Devala⁴⁹ states, ‘on the death of a woman her strīdhana 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’. Paraskara⁵⁰ ( q by Par. M. III. 552 ) states that strīdhana devolves on the unmarried daughter, that the son does not get it, but that he shares equally with a married daughter. Kaut⁵¹ ( III. 2 p. 153 ) prescribes that if a woman dies during her husband's lifetime her sons and daughters divide her strīdhana; if she has no son then daughters divide it, on failure (of both sons and daughters) the husband takes it and that the śulka, anvādheya or any other kind of strīdhana given by her relatives is taken by her relativeṣ Kātyāyana⁵² (917–920) whose treatment of strīdhana is the most detailed of all smṛti writers has the following verses on succession to strīdhana: ‘Sisters whose husbands are living should share with their brothers the strīdhana (of their mother); this is the rule of law about strīdhana and partition (among brothers and sisters) is prescribeḍ On failure of daughters the (strīdhana) 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 husbanḍ 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 āsura is declared as going to her parents on failure of her progeny.⁵³ 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 āsura, rākṣasa and paiśāca forms goes to parents on failure of issue Yama has a verse very similar to Kātyāyana's about a woman married in the āsura and the following forms The commentaries and digests make valiant efforts to reconcile the conflicts among the smṛti 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 strīdhana was dealt with by the commentators has now to be seeṇ They all prefer daughters to sons for certain kinds of strīdhana. Why the devolution of strīdhana property should be different from that of the property of a male is not clearly explained anywhere. The Mit on Yaj ⁵⁴ 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 strīdhana 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 strīdhana, one for śulka and the other for all other kinds of strīdhana Śulka, acc. to the Mit. that quotes Gaut, devolves first III ] on the full brothers, then on the mother.⁵⁵ Some like the Subodhini, the Dipakalikā, 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 Dāyabhāga IV. 3. 28 (p. 95), Sṃ C., Par. M., V. P., V. C. follow the Mit. It is somewhat strange that the Madanapārijāta p. 668 (which was really composed by the author of the Subodhini in the name of his patron Madanapāla, holds that the śulka 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 opinioṇ

As regards succession to the property of a maiden there is no difference at all between the Mit. and other workṣ The Mit. quotes a text of Baudhāyana⁵⁶ that the wealth of a deceased maiden 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.⁵⁷ 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 śulka or other gifts made by him after deducting his own expenses and those of her family.

The Mitākṣarā order of succession for all kinds of strīdhana, other than śulka and maiden's property, is as follows: (1) unmarried daughter; (2) married daughter who is indigent; (3) married daughter who is well provided for; (4) daughter's daughters; (5) daughter's son; (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 forms); (9) sapindas of the husband in the order of propinquity; on failure of any sapinda 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 descendants her strīdhana went to her mother, then to her father and then to the father's sapindas in the order of propinquity. On failure of the sapindas of the father it would (by analogy) go to her husband and then to his sapindas (before going to the Crown). When grand-daughters directly inherit the strīdhana of their grandmother they take per stirpes (acc to the Mit volch quotes Gaut. 28 15), if they are the daughters of several daughterṣ⁵⁸ The Mit (on Yaj. II. 145), Aparārka (p. 721) and several others provide (following Manu IX. 198= Anusāsana 47.25) that if a woman of a lower caste dies issueless leaving strīdhana, then the daughter of her co-wife of a higher class inherits that strīdhana and on failure of such step-daughter, the son of the latter inherite. It may be noted that as regards succession to strīdhana, 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 a predeceased son) both succeed together, the grandson re- presenting his deceased father. But if a woman possessed of strīdhana dies having only a son and a predeceased son's son, the son will take the whole of the strīdhana excluding the son's soṇ Vide Bai Raman v Jagrvandas 41 Bom 618.

It is not possible nor necessary to deal exhaustively with the devolution of strīdhana according to the various schools of Hindu Law. But a few indications from the important text books having authority in the different provinces will be offer- eḍ According to the Sṃ C. ( which is the leading authority in Madras after the Mit. ) strīdhana includes only those kinds of property that are so described in the smṛtis ( i. e. only technical strīdhana ) and the lines of devolution are as follows: (1) śulka devolves in the same way as laid down by the Mit. cited above (Sṃ C. II. p. 287 ); (2) Yautaka devolves on unmarried daughters first (Sṃ C. II. p. 285 ); (3) Anvādheyaka and Bhartṛdatta pass to sons and married daughters whose husbands are living, all inheriting together in equal shares (Sṃ C. II. p. 284 ); (4) other kinds of technical strīdhana such as adhyagni &c pass first to the maiden daughters and married daughters who are aprahstuta,⁵⁹ then to married daughters that are provided for; then to daughter's daughters, then to daughter's sons, then to sons, then to son's sons &c., then to the Madras High Court follows the Mit. ( in preference to the Sṃ C.) as to the devolution of Anvādheyaka and Bhartṛdatta and holds that certain kinds of non-technical strīdhana ( such as gifts by strangers during coverture ) devolve acc. to the rules of the Mit. Vide Salemma v. Lutchmana 21 Maḍ 100.

The Vivādacintāmaṇi, the leading authority in Mithila, restricts strīdhana to the technical strīdhana recognized by the smṛtis and lays down the devolution of it as follows: (1) Śulka⁶⁰ (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 strīdhana ; (3) all technical strīdhana other than the two preceding 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 strīdhana in general.)

The Vyavahāramayūkba which is held to be of para- mount authority in Gujarat, Bombay Island and Northern Konkan⁶¹ proposes various lines of succession to strīdhana. Its treatment is based on the Sṃ C. and the Madanaratna. It first divides strīdhana as stated above into technical (pāribhāṣika) and non-technical (apāribhāṣika). The first is subdivided into four classes for the purpose of inheritance; (I) śulka which passes as stated above under the Mitākṣarā; (II) yautaka goes to unmarried daughters, ( if there be no unmarried daughters) then probably to the married daughters; (III) anvādheya¹⁴⁴⁵ 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 sons; (IV) other⁶³ kinds of technical strīdhana devolves as under the Mit; : (V) non-technical⁶⁴ strīdhana is inherited in the following order; sons, son's sons, sons' sons' sons, daughters, daughters' sons, daughter's daughterṣ 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 forṃ The V. Mayūkba employs language somewhat different from that of the Mit. in speaking of the inheritance to strīdhana when a woman dies without issue But it has now been judicially held that both mean the same thing⁶⁵.

In the Dāyabhāga school the devolution of various kinds of strīdhana according to the Dāyabhāga and D. K. S. is as follows: (I) śulka devolves⁶⁶ in the following order: (1) full brother, (2) mother, (3) father, (4) husband; (II) Yautaka devolves⁶⁷ 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) sons, (6) daughter's sons, (7) sons' sons, (8) son's son's sons, (9) step-son, (10 and 11) stepson's son, stepson's grandsoṇ Then if the marriage was in an approved form, yautaka passed in the absence of any of the above in order to husband, brother, mother and father. If the marriage of the woman was celebrated in an unapproved form then her strīdhana passed in order to mother, father, brother, husbanḍ (III) Anvādheya gifts⁶⁸ (gifts or bequests) made subsequent to marriage by the father III ] (Dāyabhāga 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 strīdhana other than the above three) there is a conflict of authority between the Dāyabhāga (IV. 2. 1–12 pp 79–81 ) on the one hand and Raghu- nandana and Śrīkṛṣṇa on the other. Acc to the former the order ⁶⁹ is: son and kumārī daughter (or to either on failure of the other), (on failure of both) married daughters that have sons or are likely to have sons; son's sons; daughter's sons; barren and widowed daughterṣ But Raghunandana and Śrī- kṛṣṇa interpolate son's son, son's son's son, stepson, stepson's son, stepson's grandson between daughter's sons and barren and widowed daughterṣ In the decided cases the latter order has generally been followeḍ

If there be none of the above both Yautaka and Ayautaka strīdhana pass in order (acc to Dāyabhāga IV. 3. 37 p. 98) to six heirs ⁷¹ viz. the husband's younger brother, husband's brother's son, sister's son, husband's sister's son, brother's son, daughter's husbanḍ Br. says that the mother's sister, maternal uncle's wife, paternal uncle'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 child or a son of their co-wife or a daughter's son or a son's son, then the sister's son and the rest may take their wealth. This text, acc. to the Dāyabhāga, simply declares that a sister's son and the others may be heirs to the strīdhana of the maternal aunt and the rest but the priority is determined among the six heirs mentioned above in Bṛhaspati's text by the principle of religious benefit. Though the sister's son is the first in Bṛhaspati'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 Vīr. (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 strīdhana even when sapindas like her father-in-law are alive, since mere sapinda relationship would not count when in conflict with a special text. It does not appear that the V. P. holds that the six take in the order stated in the text of Br.;⁷² it rather states that among these six the choice of the preferential heir would be determined by greater or less propinquity⁷³. On failure of these six the husband's sapindas, sakulyas and samānodakas take and then the father's kinsmeṇ

The question of an unchaste daughter's succession to strī- dhana would be decided in the same way as her succession to her father's property. Under the Dāyabhāga an unchaste daughter will not succeeḍ But under the Mitākṣarā as interpreted 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 case⁷⁴ may be. The Mit. on Yāj. II 290 relies upon the Skandapurāṇa for the proposition that prostitutes are a fifth caste descended from certain apsaraseṣ⁷⁵

It has been held by the courts that though prostitution entailed degradation according to ancient Hindu Law, it did not sever the tie of blooḍ So the strīdhana of a naikīn (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 relationṣ⁷⁶

It may not be out of place here to suggest how strīdhana 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 that all property which a woman inherits from a female should be her absolute property. Then as regards inheritance to strīdhana one simple and straightforward rule should be laid down that the woman's sons and daughters should succeed together taking equal shareṣ 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 strīdhana 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 prescribeḍ