WOMEN'S RIGHTS AND HINDU LAW OF INHERITANCE: THE APPROCH OF RAMMOHUN

ROY
Author(s): Tausif Fatima and Tousif Fatima
Source: Proceedings of the Indian History Congress , 2009-2010, Vol. 70 (2009-2010), pp.
643-648
Published by: Indian History Congress
Stable URL: https://www.jstor.org/stable/44147711

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 WOMEN'S RIGHTS AND HINDU LAW OF
INHERITANCE: THE APPROCH OF
RAMMOHUN ROY
Tausìf Fatima

The earliest reference to the Hindu women's right to inheritance goes

back to Rigveda.1 However, women's right to property was discussed
in detail by ancient legal treatises Dharmashastras,2 and the subsequen
commentaries on them, most important of these are the Mitakshara
and Dayabhaga legal doctrines. However, it exists variance in the rul
of inheritance between these two legal doctrines, as enforced in
different parts of the country. Both the Mitakshara and Dayabhaga
provide limited rights to women, yet probability of inheritance remains
somewhat greater under Dayabhaga than Mitakshara ?
These legal doctrines significantly influenced the legal practices
in British India, and also made an impact on the formulation of
contemporary Hindu law. The inequalities present in these doctrines
led to the serious interrogation of traditional practices among the modern
educated Indians, and paved the way of socio- religious reform
movements during the nineteenth century. An intriguing element in
these reform movements was the centrality of women's problems. One
could indeed relate the focus on women's issues to the influence of
modern western thought, as has indeed been argued by most historians
of reform in Bengal.4 However, the women's question was not just a
result of the influence of liberal ideals of equality and reason but was
also equally a result of the "acute problems of interpersonal adjustments
within the family".5 It has been suggested by some historians that the
colonial rule led to the reorganization of private/domestic domains,
and the consequent development of what is known as the "new
patriarchy".6
The concern for the improvement in the conditions of women
therefore, had two main objectives: one was to reorganize the domestic
or familial spaces in a manner that not only reinforced gender hierarchy
but also rendered women as responsible managers in the household.
Secondly, women were seen as makers of emerging national identity
and the honour of the nation was seen as tied to the position of women
in Indian society. Education of women was regarded as necessary, not
only for the improvement in women's conditions but also for the
development of the nation.
Commonly regarded as the first modern champion of women's
rights, Raja Rammohun Roy made strenuous efforts to abolish the cruel

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644 I HC: Proceedings, 70th Session , 2009-10

rite called Sati or widow immolation. The movement against sati led
him into other issues of women reforms such as women's education,
polygamy, dowry, rights in inheritance and marriage, condition of
widows etc. The question of women's right to inheritance is ubiquitously
tied up with the plight of widows, sati, polygamy etc. Historians have
indeed focused on Rammohun Roy's role on these issues, and there
have been several detailed studies on the abolition of sati . Feminist
historians like Lata Mani and Andrea Major have explored the
ideological issues and cultural essentialism that informed the state
initiatives and the movement for abolition of sati. 7 In contrast, however,
Rammohun Roy's perception of women's rights, in particular their rights
in property, has not received the attention they deserve. Women's rights
in property is actually the core issue, for all other issues taken up by
reformers- sati , prohibition of widow remarriage, polygamy etc- are
crucially tied up with the issue of their property rights.
The paper focuses on Rammohun Roy's concern for the inheritance
rights of Hindu women. The earliest reference to the issue goes back
to 1822, in a tract entitled "Brief Remarks Regarding Modern
Encroachments on the Ancient Rights of Females" in which he first
makes a forceful plea for women's inheritance rights.8 This tract aimed
to show that it was the corrupt and defective understanding of Bengal's
Dayabhaga laws of inheritance that resulted in the practice of widow-
burning, the abolition of which has become his major public project.9
He made persistent efforts to establish the fact that ancient Shastric
laws granted women the right to inheritance, but this right has been
further curtailed by modern jurisprudence. There exists an unfulfilled
gap between what the ancient lawgivers such as Yajnavalkya, Narda,
Vrihaspati etc propounded regarding inheritance rights of Hindu women
and what the two legal doctrines Mitakshara and Dayabhaga prescribe.
It is interesting to note that in developing an explanation for
women's unequal position in society, Rammohun Roy relies on women's
right to inherit property. It appears that he saw gender inequalities to
be a consequence of the denial of rights to women. The influence of
European liberal thought is obviously noticeable here and thus
contradicts the position of those scholars who see the Bengal
renaissance as a product of indigenous traditions, largely uninfluenced
by European liberal thought. Rammohun Roy argued that ancient Hindu
law recognized women's property rights and he particularly criticized
the commentators of the Dayabhaga school and the writer of
Dayatattwa, and argued that there is nothing in the ancient law that
denies women access to property rights. It is the modern interpretation
of ancient law that he thinks, has corrupted the original intent and

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 Modem India 645

content of the Hindu law and serv

What we notice here is a creat
serve a primarily modern object
of the invention of tradition to se
of rights to women. As we know
construction and the pre modem
rights. The fact that Rammohun R
a traditional framework, invokin
blindly following tradition b
creating 'tradition'.
With regard to the natal rig
emphasized that the ancient lawg
of the share of the son. The marr
than the unmarried daughter by t
in his tract has paid more attention
It is interesting that he quotes
the unmarried daughters let the
own allotments respectively. Le
distinct share, and they who
condemned."11

It is quite interesting that Rammohun Roy quotes Manu to invest

women with property rights. Manu, as we know was an uncompromising
advocate of the innate inferiority of women in society and saw women
as subordinate to men. In invoking Manu, therefore, Rammohun Roy
makes a selective appropriation of the tradition to serve progressive
ideals.

He also quoted few other lawgivers like Vrihaspati, Vishnu,

Yajnavalkya, Katyayana. Yajnavalkya mentions: "Let such brothers as
are already purified by the essential rites of life, purify by the
performance of those rites the brothers that are left by their late father
unpurified; let them also purify the sisters by giving them a fourth part
of their portion."12 Though the ancient lawgivers had provided
daughters one fourth of share allotted to sons, the modern commentators
on Dayabhaga, set aside this right of daughters. They did not recognize
daughters' any share to the property of fathers, and only recognized
the expenses of their marriage. This defraying of expenses was taken
more as a donation and not as a duty on the part of brothers.
Apart from daughter's right to inheritance, he also dealt with the
question of women's right to property in conjugal family. "All the
ancient lawgivers unanimously award to a mother an equal share with
her son in the property left by her deceased husband, in order that she

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646 I HG: Proceedings, 70th Session, 2009-10

may spend her remaining days independently of her children, as is

evident from the following: Yajnavalkya. "After the death of a father,
Ietam o th er also inherit an equal share w ith hersons in th Bdivision of
the property leltby their lather."13
Rammohun Roy critically analyzed the expositions of the modern
Dayabhaga and found that several limitations were imposed upon the
rights of widows, granted to them by ancient legislators. He argued
that according to the modern commentators, a mother's right to
inheritance is valid only when a person dies, leaving two or more sons
and all of them survive and be inclined to allow a share to their mother.
Despite the provisions of ancient lawgivers, mothers remain destitute
and dependent.14
Rammohun Roy believed that several limitations and restraints were
inflicted upon the right to female inheritance. He emphasized that
debarring women from inheriting property was the primary cause of
degraded position of women in society and was largely responsible for
polygamy, sati, and the pathetic condition of widows in our society.
He argues that due to the modern encroachments in the Dayabhaga
law, Hindus have been relieved from the necessity of giving an equal
portion to their wives, and thus no restraint existed as to the number of
wives they could marry. The increase in polygamy made the plight of
women more dreadful, leading to them either to sati or the otherwise
option of deplorable widowhood.
A defender of liberal and humane principles, Rammohun Roy was
a man of great foresight. In a letter to Buckingham, dated August 11,
1 82 1 , he wrote: "Enemies to liberty and friends of despotism have never
been, and never will be, ultimately successful.'"5 Structuring his
convictions on the basis of liberty and justice, he fought for the cause
of women to transform society into a more egalitarian and progressive
one. He based his plea of reform on the notion of compassion and
protection rather than equality.16 His concern for the improvement in
the status of women reflects his concern for the nation, as women were
seen as bearers of national identity.
Some historians see in the reliance on scriptures in Rammohun
Roy's reform ideas, a sign of regression.17 According to a few scholars,
his legal quest with his mother, Tarini Devi created doubts about his
status as an ideal champion of women's rights.18 It is assumed that in
Rammohun Roy's writings there is a move from reason to scripture
and this severally limits his vision of women's empowerment. This is
an extreme judgment on Rammohun Roy, for even as he makes use of
traditions, it is only to serve modern progressive ideals. His engagement
with tradition is a creative one and is marked by its selective

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 Modem India 647

appropriation, manipulation an
Rammohun Roy, it was inconceiv
reform would have had any appeal i
on the so-called traditions.

NOTES AND REFERENCES

1 . Rigveda I. 124.7 4 She goes to the west as (a woman who has) no brother
to her male (relatives); and like one ascending the hall (of justice) for the
of property, (she mounts in the sky to claim her lustre). . . 'also quoted in Ch
Padia, Women in Dharmasastras: A Phenomenological and Critical An
Rawat Publications, 2009, p. 1 79.
2. See, Bina Agarwal, A Field of One 's Own : Gender and Land Rights in So
Cambridge University Press, 1994, pp. -84-85. As pointed out by her, Sha
said to have been constituted from the Smritis , which renowned sages li
Narada, Yajnavalkya, Brihaspati remembered. The Manu smriti was t
orthodox, and Yajnavalkya smriti among the more liberal in granting wome
3. Unlike under Mitakshara, women inherited an interest in all the property
irrespective of whether it was ancestral or separate under Dayabhaga. See,
Mitakshara , Ch II, Sec. i, Article 39; Dayabhaga , Ch. XI, Sec i. Also quoted by J.
C. Ghose (ed.), English Works of Raja Rammohun Roy , Vol. II, Cosmo Publications,
New Delhi, 1982, pp. 391-393.
4. See, for example Susobhan Sarkar, Bengal Renaissance and other Essays , New
Delhi, 1970.
5. See Sumit Sarkar, "Women's Question in Nineteenth Century Bengal" in Women
and Culture , Kumkum Sangari and Sudesh Vaid (eds.), S. N. D. T. Women's
University, Bombay, 1985, pp. 165-172.
6. The term "new patriarchy" has been coined by Partha Chatterjee in "The Nationalist
Resolution of the Women's Question" in Recasting Women: Essays in Colonial
History, Kumkum Sangari and Sudesh Vaid (eds.).
7. See, for example, Lata Mani, "Contentious Traditions: The Debate on Sati in
Colonial India" in Recasting Women: Essays in Colonial History, Kumkum Sangari
and Sudesh Vaid (eds.). Also see, Andrea Major, Pious Flames: European
Encounters with Sati, Oxford University Press, New Delhi, 2006.
8. J. C. Ghose (ed.), English Works of Řaja Rammohun Roy , Vol.11, Cosmo
Publications, New Delhi, 1982, pp. 375-384..
9. As pointed out by C.A. Bayly in "Rammohan Roy and the Advent of Constitutional
Liberalism in India, 1800-30, Modern Intellectual History , 4, 1(2007), p. 30.
10. In his "Essay on The Rights of Hindoos over Ancestral Property According to the
Law of Bengal"; Calcutta: 1830, Rammohun Roy highlights the point that if a man
dies, leaving one daughter having issue and another without issue, according to
Dayabhaga , former shall inherit the property, given in J. C. Ghose (ed.), English
Works of Raja Rammohun Roy , Vol. II, Cosmo Publications, New Delhi, 1982, p.
392.

11. Ibid., p. 381.

12. Ibid. See Yajnavalkyasmriti- II. 124 as quoted in Chandrakala Padia, Women in
Dharmasastras: A Phenomenological and Critical Analysis , Rawat Publications,
2009, p. 180.

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648 IHC: Proceedings , 70th Session, 2009-10

13. Ibid., p.376

14. Ibid., p.378
15. Ibid., p. xx (Introduction)
16. S. Crawford Cromwell, Ram Mohan Roy: His Era and Ethics, Arnold-Heinemann,
1984, pp. 208-209.
17. See, Barun De, "A Historiogaphical Critique of Renaissance Analogues for
Ninteenth Century lndia"in Barun De (ed.), Perspectives in Social SciencesI:
Historical Dimensions, Oxford University Press, 1 977, where he is of the view
that the term "Renaissance" cannot be used for Rammohun Roy's reforms.
Also see, Rajat K. Ray, "Introduction" in V.C. Joshi {tá.), Rammohun Roy and the
Process of Modernization in India, Vikas Publications, 1975 where eagerness to
find a father figure for modern India in Rammohun Roy was perceived as premature,
and was challenged.
18. Geraldine Forbes, Women in Modern India, Cambridge University Press, pp 10-
11.

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