The Dharmaśāstrais considered to be the ancient law books of Hindu religion, which prescribe moral laws and principles of religious duty and righteous conduct for the followers of the faith. In short, it is the guidelines for their social and religious code, which designed to regulate the diversity and complex nature of Indian society. However, the Dharmaśāstras throw considerable light upon the social and religious conditions, family life, gender and caste based distinctions and principles of jurisprudence of different eras. Nevertheless, it is difficult to say that how these laws were implemented in society by rulers through the help of law givers or Smritikaras and Nibandhakara. While the customs, beliefs and values of the society changed over time according to contemporary political and socio-economic changes. As European historians showed Indian society as a stagnant society from the earliest times, In response to these statements, Indian historians and sociologist proved with great examples that Indian society has never been stagnant and changes in every aspect of society continued.¹

Therefore, due to social changes, the laws of the Dharmaśāstra also changed from time to time according to the requirement. Vigneshwara’s Mitakshara and Jimutvahana’s Dayabhaga were actually two main schools of Hindu law. Later, during the medieval period, various sub schools of Hindu law emerged underMitakshara and Dayabhaga school as Benares, Maharastra, Mithila, Dravid and Bengal, In which the Bengal school of Hindu law was influenced from the Dayabhaga and the remaining four from the Mitakshara. Many commentaries were being written on Dharmaśāstras by Smritikaras of the different school of the Hindu law like Benares, Maharastra, Dravida, Mithila and Bengal, in which the Mithila was a great center of Hindu learning and Mithila school of philosophy was a famous center for Mīmāṃsā, Pūrva-Mīmāṃsāand Navya-Nyāya.

As far as Vachaspati Mishra is concerned, he was a famous philosopher of the Mīmāṃsā school of philosophy during the late fifteen century. Besides a philosopher, Vachaspati was also recognized as a well-known Smritikara of Mithila school who wrote the largest number of texts on laws dealing with almost every aspect of the Dharmaśāstras. Even we find that Raghunandan Bhattacarya and Govindananda and other philosophers of the Nadia school (Bengal) have freely quoted the works of Vachaspati in their own law-digests. It is believed that Vachaspati wrote forty one texts in which ten related to philosophy and the remaining thirty one related to justice. Unfortunately, some of these works have not been published due to missing. However, in all of his available work, Vivād-Chintamani is the most important medieval commentary related to the Hindu law. Vivād-Chintamani is divided into the eighteen chapters which are called Vayvahara and all chapters are written in verse style. In fact, this account of Vachaspati is a compendium of Manu Smriti, Narada Smriti, Brihaspati Smriti, Yajnavalkya Smriti, Katyayana and Megha-Tithi etc.. This characteristic makes it a masterpiece writing of Hindu law in medieval time. The most notable thing about this account is that explanations and diagnoses of various aspects of partition of property have been described very well. However, it may be an important question that what is the significance of writing commentaries in the medieval period on the various Dharmaśāstraswritten in ancient times. Its logical answer may be that the intellectual activities reveal the ideology of the ruling class and the scholars of that particular region because ideology plays a big role in the formation of the state.Therefore, in the context of medieval Mithila, this argument proves that how this ancient state, which has been following the traditional Brahminical social and political system, have finally been developing their intellectual assets under the Turkish rule in the medieval period.So these commentaries have their own social and political significance.

However, as far as the inherit property rights and Stridhan of Hindu women are concerned, in this context different schools of Hindu law have different opinions. For example, the Banaras and Maharashtra schools of Hindu law believe that a woman gets shared in the partition, will be called 'Stridhan' while the Bengal school of Hindu law believes that share in the partition does not come under the category of Stridhan. But the Mithila and Dravid school of Hindu law are not very clear at this point, but their consent is with the Bengal school.² Vachaspati has mentioned the laws and the nature described in different norms of the property right of the women: A study of Dharmaśhutras. For example,Despite of this any property is in independent possession of the father then he is free to partition the property during his lifetime only if he wished it. There is an interesting explanation given by Vachaspati that when a mother has no right over the property, then why should be death of mother be conditions precedent to the property [?] However, Vachaspati has tried to resolve the such condition on the basis of assertion of Shankhayan that it can be possible when the mother has exceptional qualities. Here, Vachaspati did not describe this matter mentioned in Shankhayan that what kind of extraordinary qualities the mother should have. Overall, he believes that the mother has no power in the father's self-acquired property in general. In this context, Vachaspati also pointed out through the word ‘Paitrkam’, the term ‘Pitr’stands as an Ekashesa compound (whereby a masculine noun is compounded with a feminine noun into an Ekashesa compound) and so it denotes both the father and the mother, that's why the mother’s property also becomes indicated and mother’s death is a condition precedent for partition of the property.³ Joint ownership rights of married women were recognized very late by Hindu law writers, but they were not given full authority on this property.⁴

Nevertheless, it is also believed in the many other Smritis that, after father and mother’s death, father's property is divided among his sons and mother’s property among his daughters. But if the progeny is not born as a daughter or not having daughter’s offsprings, then sons have the right to the mother's property. Such assertions are also of Mithila's famous Nibandhkara Chandeshvara Thakur.⁵ Vachaspati given an example of the assertion of Manu that after mother's death, uterine brother and sisters can share mother’s property equally. Even the property may be divided without the father's willing when he is disabled by illness, too old or invalid or perverted mind.Vachaspati has expressed through Narada Smriti that during the father’s lifetime, property may be divided if menstruation of the mother has ceased means there is no chance of any other son or child to be born from mother, sisters are married and when the capacity of the father has ceased for enjoyment or when the father has ceased all his desires. But in spite of these circumstances, the father's consent should be for the division of property.⁶ Even the father recovers any lost ancestral property, then it may be divided only by his wishes. If the father divides his property equally among his sons thereafter their wives will also be considered as an equal share, but it will not consider as an any kind of ‘Stridhan’ which has been given by their husbands or father in law.⁷ Because it does not mean that the ancestral property will be divided equally between son and his wife whereas it is only considered for the subsistence of a wife, for her old age or being a widow or childless. Here it is right to mention another law described by Vachaspati that there should be a partition of inheritance property among brothers and also for childless women till they get a son. It means that such women have no child, but had conceived and become widowed therefore they are also entitled to share the inheritance property.

In addition to all these, among the sons born of the wives belonging to different castes from the father’s caste, they will not be considered as a senior, but the sons of the same caste's wife will be senior, even if they have born later.⁸ On the other hand, if any son is born to a mother, whose caste is same as father's caste, but he does not have good qualities then he is not entitled to inherit the father’s property. Even all such brothers who are addicted to evil deeds (act against the law), then they are not entitled to inherit property.Vachaspati denying the argument described in the text of Bodhayaan, in which it has been said that women do not have the right to heritable property.⁹ He discussed another law about the inheritance property that on the death of the father, the mother shall receive same equal share as her sons and daughters who are unmarried then they are entitled to receive the fourth part of a share. Perhaps the unmarried sister has been instructed to share in the property to help her get married. In addition, whose sacramental rites (Upanayana) have not been performed on right time, then it shall be performed from the paternal property if in case there is no paternal property and those brothers who have already had their sacraments then brothers shall set aside funds out of their share for the performance.¹⁰ But Vachaspati is silent here when those who have no other brother and inherit property. On the other hand, the sonless father’s wives shall receive an equal share of property and apart from this, father's mother have all been declared to be equal to the mother. It means daughter in law shall be receive an equal share if they don’t have any kind of Stridhan.

However, who become an outcast, they shall not have the right to inheritance, funeral cake and water offerings. Besides this, before partition, eunuchs, outcast, the congenially blind and deaf, the insane the fatuous or the dumb and one suffering from incurable disease as well as those with deficient organs like leprosy and religious hypocrite are not entitled to share but they should get support. Even the daughters of these people should be supported till they have been made over to their husbands. If the eunuchs and the rest, except of the outcast who became an outcast before partition, have a son who have good qualities, then his son shall be entitled to inheritance share.¹¹ Though, the sonless wives of these people should also be maintained if they are well-behaved.The son of a woman who get married by violating the order given in scripture, a man who get married in same Gotra and the apostate from renunciation, all these shall not receive any share in the property.¹² However, The son of a woman who get married by violating the order given in the scriptures, but if he belongs to the same caste as his father, then he shall obtain inherit property.In case after the death of the father, if the property is to be divided, but there are brothers and sisters whose sacramental rites have not been performed then such rites should be performed by elder brothers. Although the rites should be performed out of the paternal property. Similarly, the brothers will have to give their fourth part of their share to unmarried sisters, Otherwise they would be considered as a degraded person.¹³

However, when we talk about ‘Stridhan’ detailed in Dharmaśāstras, so it would be appropriate to mention here that Stridhan was first conceptualized in Gautama-Dharmaśāstras, in which not only mentioned about the separate women’s property but also deal the rules for its succession.¹⁴ Later, in this context, the descriptions of various theological texts have been noted by Vachaspati which are very useful information about the rights of women in the contemporary society. Vachaspati has presented the description given by Manu and Katyayana for the term of Stridhan which has been declared to be these six kinds- (a) what is given to women at the marriage near fire which have been called the Adhyani Stridhan (b) whatever receive by a woman who is received while leaving his father's house after marriage has been called the Adhyavahanika Stridhan (c) whatever is given to the women with love by the father in law and mother in law at the time of bowing down their feet is called the Lavanyarjita-Stridhan and the rest three are given to woman any time by the father, mother and brother. Despite of this, Vachaspati noted the seventh kind of Stridhanmentioned by Yajnavalkya which has been called Adhivedanika in which amount or presents given to the superseded wife, in other words it means husband married second wife, first one is called Adhivinna. Katyayana also regarded the Shulka as an another kind of Stridhan under which, a fee which the wife receives from her husband in return for household works and taking care of the home, cattles, furnitures and ornaments. On the other hand, after marriage, whatever is obtained by a woman from the husband's family and the family of her relatives is called Anvadheya- Stridhan.¹⁵ Apart from this, according to Vishnu, the amount or presents given by son will also be included in the category of Stridhan.¹⁶ Thus Vachspati has described ten kinds of Stridhan in his text the Vivād -Chintamani. Although, all these types of Stridhan are considered as Saudayika (dowry) which has been explained by Katyayana and Vachaspati has presented these all interpretations. Generally, Saudayika has been described as whatever is obtained by married or unmarried girl from a husband’s or father’s house or brothers or her parents. After having obtained the Saudayika property, women are free to sell or dispose or what they like with it even so with regard to immovable property.¹⁷ But as far as ornament is concerned, it is also considered as the family property. In this context, Vachaspati has presented the assertions of some theologian that an inheritor shall not take ornaments that may have been worn by a woman otherwise they become degraded if they do take it. But after the death of that woman, it can become a family property (Kulluka). However, if husband uses or wife spent this Saudaika property in husband’s work, in illness or in any troubles and get bothered by thelender, the husband should repay it with interest to his wife,¹⁸ but in case if son has any problem then he can use this Saudaika property.¹⁹

Further, if the husband has used this property for the performance of any pious acts, during famine and disabling illness, he doesn’t need to repay it to his wife. If husband used the wife’s property and marries second wife and disregard the former wife, then he should be compelled to repay the money to the former wife. Besides, in cash a woman is deprived of food, clothings and residence, she may take away her own share in the property from the coparceners. But if a woman addicted to evil ways, lacks humility or decency and prone to ruin the property, then she does not deserve to have any Stridhan. If a woman was promised to give Stridhana by her husband, but that was not paid due to her husband's death, then his son would pay her in the same way as father’s debts.²⁰ However, Stridhan can be divided among children after the death of mother, in which there will be an equal share of sons and unmarried and unsettled daughters, but if daughter is married, she shall only receive an honorific gift. Even it is said that daughter's daughter may also get some shares with affection from maternal grandmother’s Stridhan. Vachaspati has described through the statement of Manu and Katyayana that in Yautuka property of the mother (what has been obtained from the father and others at the time of marriage), is the portion unmarried daughter alone. Similarly, the daughters shall share among themselves the mother’s toilet-articles (marriage presents). After payment of debt, mother’s property shall be divided into equal shares between all the daughters, but in the absence of daughters, this property shall go to the sons or progeny.²¹ Ultimately, if a woman doesn’t have any child, then her property will go to her husband. Apart from this, the schools of all Hindu law agree on this point that if a woman acquires propertyby her skill, ability and gift from strangers during widowhood, then this property will also be called as Stridhan.²² The division of property has also been based on the types of marriage in Dharmaśāstras. Vachaspati has described the approaches of Manu, Gautama and Baudhayana in this context. According to Hindu laws, If a woman is married in Brahma, Daiva, Arsa, Gandharva or Prajapatya types of marriage, then her property shall go to her husband, if she dies childless. But if the property is given to a woman at the time of Asuar or other condemnable marriages and she dies childless, her property shall go to her parents.²³ The nuptial fee, which had been given to a woman in the Asura marriage goes to her uterine brothers, after them, to her mother, but in case failing both brother and mother then shall go to her father. This same condition will apply after the death of an unmarried maiden who obtained by her grandfather and others.

In addition to this, Vachaspati has described the distribution of property on the caste basis described in the Dharmaśāstras. Under which the Brahmana son deserves four parts, the son of Kshtariya mother shall take three parts and the son of Vaiśyā mother, two parts and the son of Śūdrā mother shall take one part of the property. Similarly, Vachaspati has cited the statement described in the Bharata that Kshatriya’s property shall be divided into eight parts out of the father’s property in which Kshatriya son shall take four parts and also take the implements of battle, the son of Vaiśyā wife shall take three parts and the last eighth part shall take the son of Śūdrā wife. However, Vaiśyā may have another Śūdrā wife, but the property of Vaiśyā shall be divided into five parts in which the son of Vaiśyā wife shall take four parts and the last fifth part shall take the son of Śūdrā wife.²⁴ On the other hand, if a Brahmin has sons of all castes, they shall divide the father’s property in the nine parts. If a Brahmin acquires a land through the Brahmanical method like a granted or gifted land, it shall be taken by the son of Brahmin wife and the ancestral land and house shall be divided among all the quadroon son.

Although, somewhere it has been said that the son of Śūdrā woman shall not be sharer in the property, but whatever his father gives him, that alone shall be his share. Besides, one should give to Śūdrā son a cow, a bull, black grains and black metal, with the exception of the sesamum.²⁵ According to Hindu law if a man has a son of the three higher castes or no son belongs to these higher castes, in such condition, father should not give more than the tenth part of the property to the son of his Śūdrā wife.²⁶ It has also been said that if the son born from reverse marriage will also be considered as a son of Śūdrā. In the same case there is another law under which, if a childless person has a son who has been born from his Śūdrā wife and he is obedient and well-endowed, he shall receive a maintenance and a nearmost even remoter one shall obtained rest of the property. If a son born to a Śūdrā, from an unmarried slave girl or the slave girl of the slave, he shall receive a share in the property when if father permits, but after death of father, his step brothers shall give him half-a-share in their property. But on the other hand, when son born to a his married slave woman, and if he has no brothers and daughter’s son, then he shall receive an entire property. But if the father does not want to give a share to his slave son, then that son will get a share only for subsistence.

Further, Vachaspati has detail discussed about the share of property among the son of divided coparceners. For such property partitioning, he has presented examples mentioned in the different Dhramsutras. If after the partition, a son is born from wife who belongs from son’s own caste then his son shall be entitled to take a share of the property or shall receive a same share or subsequent income and expenditure whatever his rest of the brothers will get.²⁷ Besides, Vachaspati describes the quotation of Vishnu Purāṇathat the property of sonless person, who doesn’t have a son or grandson, will go to his wife, if she is not, then will go to his daughter and if the daughter is not even then this property will go in order to his mother, father, uterine brother, son of uterine brother and finally will go to his Bandhus (Sampinda) and Sakulya (Sagotra). If these people are not available, then the property of sonless person will be taken by the king and in special circumstances such property can be given to Brahmins.²⁸ Further on this topic, Vachaspati cites Manu's statement that if a sonless and widow woman whois faithful to her husband's bed (Pativrata) and be committed to her husband and also perform his first funeral (Shraddha), will receive the share in her husband’s property.²⁹ In the case of a joint family, brother’s wives and daughters in law who behaving proper manners in family, the head of the family shall provide foods and clothes, but a widow woman who has rough mannered then Stridhan should be provided only for the maintenance of her life. Besides, if widow woman is pregnant, then she will get a share in the inheritance property among the husband’s brothers until herson is born.³⁰ Depending on the wishes of a woman, she can enjoy her husband's property, but in any case she can not dispose this property.

However, according to various Dharmaśāstras, if only the daughter in the family is a child then she can perform funeral rites of her father and will be entitled to the father's property but she has brother then she will not be entitled to these rights.³¹ Further, in this context, Vacashpati quotes Vishnu and Manu in this matter that if the wife of the deceased husband and sons is not there, then the property will go to daughter, but for this, it is necessary for a daughter must belong from the same caste (means appointed or not-appointed daughter), devoted to service and get married in the same caste. On the other hand, he also cites to Parashara and Brahaspati statements like after the death of a sonless person, his unmarried daughter will be entitled to his father's property and absence of unmarried daughter is not, then this property will be given by a married daughter. If the sonless person has no daughter, then his property will be given to his wife. Even the mother shall inherit her childless son’s property, but if the mother has also died, then the father’s mother shall entitle to this property if she lives otherwise this property shall go to the father.³² However, Vachaspatiquotes the statements of Manu and Vishnu in this context that if the mother is not alive then her property will go to her husband. Similarly, if a man dies childless then his property will be given first to his wife and daughter respectively.³³ If there is no heir to that person's property, then his property will be taken by the king.The person who has abandoned everything and gone away from home and has neither wife nor child, his property will be shared equally among his brothers and sisters, with the exception of the Stridhan.If a deceased person has an unmarried daughter, his daughter will consume her property for her maintenance till she gets married.³⁴

Conclusively, in the context of the property rights of women, different views have been presented in the Dharmaśāstras and Smritis. It was not that the Hindu law described in the Dharmaśāstrasalways remained invariable rather it has changed over timewhose example is Vivad-Chintamaniin which the specific rules of the law of property described in different Puranic literatures are mentioned. But by studying it becomes clear that even though it is a matter of Stridhan or the right of inheritance property of women were quite limitedespecially landed right. Doesn't matter that how educated and talented the women are but the rights of their property were always less than men. It is appropriate to describe Manu's expression in this context that her father gives her protection in childhood, her husband protects her in youth and her son protects her in old age, so a woman never enablesfor independence and the husband has right over the wife’s property i.e. Stridhan. Such kind of logic was naturally a sign of patriarchal society because all the rights of property were male centered. However, over time, the caste system also presented complexity regarding the right to propertyin the Hindu law when it was mandatory to marry daughter with same caste and wife should also be from same caste for partial rights of property. But there is also a positive side of the Hindu law described in these Dharmaśāstrassuch that if there is an unmarried daughter, then the property of the mother (Stridhan)will be given to her. Along with this, the some conditional rights of property have been described for the livelihood of widows and childless women.Therefore, Vivad-Chintamani also has historical significance because it provides information about social regulation, which either guides the society through literature or gives the acceptance of the described elements or justifications which can be established as the ideal for thecontemporary society.

REFERENCES:

1. R. S. Sharma, Early Medieval Indian Society: A Study in Feudalisation, Kolkata, Orient Longman, 2001, pp. X-374. M. N. Srinivas, ‘A Note on Sanskritization and Westernization’, The Far Eastern Quarterly, Vol. 15, No. 4, 1956, pp. 481-496.

2. G. D. Banerjee, The Hindu law of Marriage and Stridhan, Tagore Law Lectures-1878, Lecture VII, Thacker, Spink & Co, Calcutta, 1879, p. 320.

3. Vachaspati Mishra, Vivad- Chintamani, tr. G. N. Jha, Gaekwad’s Oriental Series, Vol. XCIX, Baroda, 1942, pp. 168-69.

4. B. Sivaramayya, Matrimonial Property Law in India, Oxford University Press, New Delhi, 1999, p. 4.

5. Chandeshvara Thakur, Vivad-Rtnakar, Ed. MM Kamal Krishna Smrititirth, Oriental Book Center, Delhi, 1931, p. 455.

6. Vachaspati Mishra, Vivad- Chintamani, p. 173.

7. Ibid. p. 177.

8. Ibid. pp. 181-82.

9. P.C Jain, ‘Heritable Rights of Hindu female: General Survey’, Journal of Legal Studies, University of Rajasthan, Vol. 28, 1997-98, p. 4-6.

10. Vachaspati Mishra, Vivad- Chintamani, p. 194.

11. Ibid. pp. 198-205.

12. Ibid. p. 206.

13. Ibid. p. 208.

14. A.M. Bhattacharjee, Hindu Law and the Constitution, 2nd Edn. Eastern Law House, Calcutta, 1994, p.17.

15. Vachaspati Mishra, Vivad- Chintamani, pp. 222-24.

16. Flavin Agnes, ‘Law and Gender Inequality’ in Women and Law in India, Oxford University Press, New Delhi, 2006, p. 15

17. Vachaspati Mishra, Vivad- Chintamani, p. 225. G. D. Banerjee,The Hindu law of Marriage and Stridhan, Tagore Law Lectures-1878, p.323.Badre Alam Khan, Economic Rights of Women Under Islamic Law & Hindu Law, Adam Publishers & Distributors, New Delhi, 2008, pp. 79-80.

18. G. D. Banerjee,The Hindu law of Marriage and Stridhan, Tagore Law Lectures-1878, pp.326-29.

19. Vachaspati Mishra, Vivad- Chintamani, p. 230.

20. Ibid. p. 232.

21. Ibid. pp. 236-37.

22. G. D. Banerjee, Lecture VIII, p.332. Rameshwar Dyal Aggarwal, Hindu Law,Revised Edition by A.N Sen, Sri Sai Publications, Faridabad, 2002, pp. 106-107.

23. Vachaspati Mishra, Vivad- Chintamani, p. 238.

24. Ibid. p. 243.

25. Ibid. p. 244.

26. Ibid. p. 246.

27. Ibid. p. 249.

28. Ibid. pp.264-65.

29. Ibid. p.266. Ancient Indian Jurisprudence, Justice Markandey Katju, Speech delivered at Banaras Hindu University, 2010, Varanasi, p. 3.

30. Ibid. p.267.

31. P.C Jain, Heritable Rights of Hindu female: General Survey, p. 3.

32. Ibid.pp.270-74.

33. Ibid. p. 276.

34. Ibid. p. 302.

Received on 05.05.2018 Modified on 10.06.2018

Res. J. Humanities and Social Sciences. 2018; 9(3): 677-682.

DOI: 10.5958/2321-5828.2018.00113.4