CHRISTIAN WOMEN RIGHT TO PROPERTY: A CRITICAL ANALYSIS

Family law

Submitted by
Ankit Bhandari
SM0114048
3rd Year V Semester

National Law University, Assam

Table of Contents
Table of Statutes............................................................................................................

Table of Abbreviation..................................................................................................... ii
Introduction................................................................................................................. 1
Aims......................................................................................................................... 1
Objectives................................................................................................................... 1
Scope and Limitations.................................................................................................... 2
Review of Literature...................................................................................................... 2
Research question......................................................................................................... 3
Research methodology................................................................................................... 3
Womens Property Rights................................................................................................ 4
Christian womens property rights: role of judiciary.............................................................8
Approach of the Supreme Court on Gender Justice...............................................................9
Disputes Regarding Inheritance of Christian women in the Erstwhile State of Cochin up to 1921.10
Inheritance between the period 1916-1986.........................................................................11
Rights of daughters....................................................................................................... 12

Concept of Streedhanam:..................................................................................... 12

Right of a widow................................................................................................. 13

Conclusion.................................................................................................................. 15
Bibliography............................................................................................................... iii

Table of Cases
2

1. Anilkumar Mahsi v. Union of India 1994 SC 392

2. Eliswa v Namia, 19 CLR 101
3. George v Narayana Filial 1960 KLT 433
4. Joseph v Jeseph Annamma,1979 KLT 322;
5. Kunjamrna v. Geevargeese Kochu Kurian 1984KLT 128
6. Mary Roy v. State of Kerala AIR 1986 SC 1011
7. Mary v. Cherchi & others 1980 KLT 353
8. Mohd. Ahmed Khan v. Shah Bano Begum (1985 SCR (3) 844)
9. Neelakanta Pillai v Abraham,1963 KLT 271
10. Ramaswami v. Chacku, 20 CLR 101
11. Sabastian George v Velayudhan Narayana Pillai 1960 KLT 463
Table of Statutes
Travancore Christian Succession Act 1916
Indian Succession Act 1925.
The Christian Succession Act, 1092
The Cochin Christian Succession Act

Table of Abbreviation.
AIR
Ed.
ILR
KLR

All India Reporter

Edition
Indian Law Reporters
Kerala law reporter
3

KLR
LR
Mad.
Ors.
S.C.
S.C.C.
SCR
v.

Kerala Law Times

Law Reporter
Madras
Others
Supreme Court
Supreme Court Cases
Supreme Court Record
Verses

Abstract.
In Kerala Christian women enjoyed a disadvantaged position as far as their property rights were
concerned. Denying equal rights to women continue among almost all sections of the Christian
community. The successive legislative reforms were introduced with a view to emancipate women and
to achieve full equality for them, as its foremost objective. But though it has received legal sanctity, still
4

there exists a doubt whether actual gender-equality has been achieved. There are no moral grounds
upon which such denial can be justified. Thus research has been undertaken by me with the view to
provide information regarding the various legislations relating to succession laws passed from time to
time, how far they have improved the rights and interests of women in Kerala and the cases taken up by
Law courts in this regard.
Keywords: Christian, right to Property, Inheritance, Judicial activism, Equality
Introduction.
The role of the judiciary in relation to womens property rights is discussed, to assess the contribution
of judiciary through its judicial process towards the cause of gender injustice in the matter of womens
property rights because women had been deprived of property rights and independent status by the
ancient scriptures. As far as Christian women are concerned the community and the Church with its
strong patriarchal tradition is compelled women to remain subjugated. Socialization starts at the early
life of a girl to become submissive and not to assert their rights. Hence, Christian women are in general
reluctant to assert or demand their rights. Consequently the cases that come to court asking for share of
the family property are also very few.
Christians in Kerala constitute a heterogeneous community in matters relating to their rights over
property. Originally, these rights were conferred on them through customs, which were the result of
long established usage among them. These customs or usage varied among the different denominations
of the community. They also varied from region to region. The need for legislation was mainly felt due
to the uncertainty as to the practices determining property rights, which often lead to disputes.
Aims.
The aim of the paper is to understand the Christian women Right to Property.

Objectives.

To study and analyze the womens Right to Property

To analyze the Right to Property of Christian women
To understand the role of Judiciary in providing an equal status to Christian women regarding
the property rights.

Scope and Limitations.

The scope of the project limited to study the Christian women Right to Property..
Review of Literature.
Books:

DinshawFardunjiMulla, HINDU LAW, 21st ed. 2010, LexisNexis, Nagpur

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This book on Hindu Law particularly deals with the Hindu Personal Law only. In one of its
sections, it talks about Maintenance. Under the section, it provided the Researcher an in depth
knowledge about the topic. It entails in itself all the grounds in which a women can get
maintenance and also the grounds of forfeiture of the rights of maintenance.
Paras Diwan, FAMILY LAW, 10th ed. 2013, Allahabad Law Agency
This book embodies itself the whole family law. In one of its chapters, it dealt with
maintenance. It however dealt only with Hindu Law and Muslim Law but does not focus on
Christian and Parsi law. It helped the Researcher in finding out the basic understanding of the
rights of maintenance provided to wife under Hindu and Muslim personal Laws. It dealt with
different matters relating to maintenance and its legal provisions under personal laws.
Mohammad Nazmi, MOHAMMADAN LAW, 3rd ed. 2012, Central Law Publications
This book specifically deals with Muslim Personal Law. It supported the Researcher in critically
analyzing the legal provisions relating to rights of maintenance guaranteed to wife under
Muslim Personal Law. It helped the Author in identifying the different issues arisen between
Muslim Personal Law and Criminal Procedure Code, 1973.
Articles:

Kanaka Latha Mukund, Turmeric Land, womens property rights in Tamil society since early
medieval times, XXVII/17,Economic and Political Weekly, WS-2 (1992)
Flavia Agnes, Law and Gender Inequality: The politics of womens Rights in India, 19(Oxford
University Press, New Delhi, 1999)
Mullati, L, The Bhakti movement and the status of women: A case study of Virasaivism, 106
(Abhinav publications, New Delhi, 1986)
Dr.A.K.Srivastava, Muslim Personal Law and Rights of Muslim Women, A Socio Legal study
34 SCJ 3 (2007)
Emmanuel Nahar, Minority Rights in India: Christian experiences and Apprehensions
Mainstre Weekly Vol.XLV, No.01, (24-4-07).

Research question.
1. How has the property rights of women evolved in India?
2. What role judiciary has played in providing equal rights to Christian women?
3. What is the current status of Christian women regarding the right to property in India?
Research methodology
The methodology adopted for the purpose of the present research is the doctrinal and the analytical
methods. Both primary and secondary sources have been used for the review of literature and the
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collection of data. The primary sources include various statutes, while, the secondary sources include
commentaries, books and articles.

Womens Property Rights

The seed for personal law was sown by the British with the Bengal Regulation of 1772 providing that
in disputes relating to family like inheritance, marriage, divorce, adoption etc, the courts should apply
the laws of Quran with respect to Muslims and for Hindus, the Shastric law1.
1 Gerald James Larson, Religion and Personal law in Secular India, A call to Judgment, 272
(Indiana University Press, Bloomington, 2001)
7

As far as Christians were concerned, there was no specific law for them. Hence disputes were settled as
per English principles of Justice, Equity and Good conscience. The British policy of non-interference
with the personal laws of different communities took its deep roots in the communities and the
Government of India has been continuing the policy of non-interference even though it has ratified the
CEDAW convention2.So the Constitutional mandate of Uniform Civil Code under Article 44 of the
Constitution went into oblivion.
A Hindu woman, whether a maiden, a wife or a widow has never been denied the use of her property.
Even in Manusmriti one can see that right to hold property had been respected 3 . Jurists like
Yajnavalkya, Katyayana and Narada further promoted the concept of womens right to property.
Womens property rights improved and defined during their time 4 . The Smritikars created a unique
type of property to women, the stridhana. Since ancient times stridhana was treated as womens
separate property5 . Jimutavahana went to the extent of stating that woman has absolute control over
her property even after marriage6 . The ornaments, the wealth she receives at the time of marriage from
her father and relatives constitute her share. The gifts from her own and husbands family would also
be added to her own.
It was Gautama Dharmasastra who first called womens property as Stridhana share. Mayne also
opined that the original bride price payable to the parents appears to have become transferred into the
dowry for the wife . Apart from this stridhana, a married woman could receive gifts from strangers; she
could also make her own contributions by doing other skilled labor
Certain customs existed in southern part of India among the Dravidians to give a piece of land to the
bride. The daughter can take this income and use it for her own daily needs. This constituted her

2 Ibid
3 Kanaka Latha Mukund, Turmeric Land, womens property rights in Tamil society since
early medieval times, XXVII/17,Economic and Political Weekly, WS-2 (1992)
4 Ibid
5 Alladi Kuppuswami(ed.) Maynes Hindu law and Usage 840(12th edn., Bharat Law
House, 1986)
6 Ibid
8

stridhanam and it was passed on to the daughter by the mother. The land was named as manjalkani 7.
This would enable her to have an income for her needs especially to purchase turmeric and vermilion
after marriage. Similarly a custom of handing over 1/3rd of the property by the husband existed when
he remarries. It was called patnibhagam. In coastal Andhra Pradesh also a custom of giving land to the
daughter at the time of marriage existed. It was termed as Katnam 8. The peculiar feature of this practice
was that women could exercise control over this property even after marriage.
In the same way 12% of the Karnataka Vira Saiva women also inherited property from the mother
which would be passed to the successive generations for daughters. It is pertinent to note that women
inherit this property where as even a boy could not inherit it 9. The Sudra women from Dharwar region
also enjoyed property rights. In spite of all these womens right to property her freedom was restricted
by way of non- participation in decision making especially in financial matters and that it is a
patriarchal concept.
Disparity in the status of women in their personal laws due to discrimination on the basis of religion.
India which is a multi religious multi cultural society has given to its citizens an opportunity for their
complete development irrespective of their sex, caste, religion or race by enshrining the various
fundamental rights in part III of the Constitution. Despite this, religious precepts always superseded the
beneficial
Pragmatic and humanistic international and national laws of the country10. The constitutional mandate
of non discrimination against any person on the grounds of religion given under Article 15(1) has still
not been enforced totally even after the promulgation of the constitution 66 years ago11. The property
7 Kanaka Latha Mukund, Turmeric Land, womens property rights in Tamil society since
early medieval times, XXVII/17,Economic and Political Weekly, WS-2 (1992)
8 Flavia Agnes, Law and Gender Inequality: The politics of womens Rights in India,
19(Oxford University Press, New Delhi, 1999)
9 Mullati, L, The Bhakti movement and the status of women: A case study of Virasaivism,
106 (Abhinav publications, New Delhi, 1986)
10 Dr.A.K.Srivastava, Muslim Personal Law and Rights of Muslim Women, A Socio Legal
study 34 SCJ 3 (2007)
11 Emmanuel Nahar, Minority Rights in India: Christian experiences and Apprehensions
Mainstream Weekly Vol.XLV, No.01, (24-4-07).
9

rights of Christian women are even now a distant dream because of the strong religious precepts,
church teachings and the retention of the Common law concept of subjugation of women by making
them a non-entity after marriage. The church always insisted on the obedience of women to her
husband.
The Church perpetuates patriarchy and subjugation of Christian women. To add to that the legislature
has not taken any steps to control the testamentary capacity and also to prevent the execution of release
deeds at the time of marriage whereby the daughters are prevented from claiming their share under
section 37 of the Indian Succession Act 1925. Further the streedhanam given to the daughter at the time
of marriage is to be handed over to the Father in law or to the husband. This is in fact a reflection of
the Common law concept of Covertue under which wife becomes a non-entity. The ulterior motive
behind this is to keep the women economically dependent on the husbands family and to restrict her
freedom.
Hindu women had also this traumatic experience and they were also kept under subjugation by denying
them property rights. Women of the ancient period did not have any right to hold, acquire or dispose of
property. It was clearly laid down in the Rigveda that a son born of the body does not transfer wealth to
sister . Married daughters living with their husbands could inherit from their father only when they had
no brother. The position of the wife of the Vedic age was also highly condemnable. There was no check
on the tyranny of man over women. The society was highly patriarchal and masculine. The household
was ruled by the husband who wielded absolute control over all other members of the family. Women
were treated as property and upon marriage dominion over them was transferred from the father to the
husband139. Neither the daughter nor the wife of this period enjoyed any legal status which means she
could neither hold nor inherit property.
It is pertinent to note here Christian women of Kottayam District also hail from families having
ancestral properties. Yet they do not acquire any birth right, instead very often they are sent to
matrimonial homes after giving a nominal amount as streedhanam with this the whole tie with the natal
family will be cut off. She has to depend on her husband for the rest of her life. In other words she has
to live like a slave, surrendering all her liberty, dignity and self-esteem. She gets 1/3 of the share of
husbands property only when she becomes a widow. Besides this she has to hand over the stridhanam
to husband or to the father-in-law.

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An analysis of the property rights of Christian Hindu and Muslim women point towards the fact that
the status of Christian women is the most vulnerable as far as property rights are concerned. The
Christian women are deprived of equal rights to parental property because of the continuance of the
dowry system under Section 28 of the repealed Travancore Christian Succession Act 1916 which
provided that the male shares shall be entitled to have the whole of the interstates property divided
equally among themselves subject to the claims of the daughter for streedhanam. Section 29 further
provides, the female heirs or the descendants of the deceased female heirs will be entitled to share in
the intestates property only in the absence of the male heirs. These two rules of succession are still
being continued in the Catholic community of Kottayam District and Kannyakumari District even after
its repeal following the verdict of the Supreme Court in Mary Roy v. State of Kerala.12
Further, the Christian families with ancestral properties still continue the custom of partitioning the
properties among the members of the family. Here also a daughter who has been given streedhanam
will be excluded from partition. It is to be noted here that the father / testator can disinherit a daughter
through a Will also. These two practices are still unabashedly going on in the Catholic families.
Meanwhile the Hindu personal law has undergone changes through a continuous process of
codification. The state is continuing its neglect towards the Christian women who are still being
governed by the law of Israel, religious precepts and customary practices that are repugnant to the
constitutional mandate of nondiscrimination and the principles of non-discrimination enunciated by
CEDAW. It can be rightly added that Christian women are suffering from double discrimination, the
discrimination on the basis of religion and discrimination on the basis of sex. The Constitution of India
recognizes equality of status and in fact provides for certain provisions under the chapter on
fundamental rights more favourable to women but in actual practice they are observed more in breach
than in compliance . This is absolutely true in the case of Christian women. It is worth quoting here a
passage cited by Mr. Fali Nariman referring to the U.S. Constitution Congress woman said: We the
people a very eloquent beginning. But when that document was included on 17.09.1787, it was not
included in that we the people I feel somehow for many years that George Washington and Alexander
Amialton just left me out by mistake. But I realize that it is through the process of interpretation and
court decision that I have been finally included in we the people. The Christian women will acquire
equal status only if she is freed from Church influences, patriarchal family system, of restricting the
practice of execution of release deeds and testamentary capacity of the testator.
12 AIR 1986 SC 1011
11

Christian womens property rights: role of judiciary

As far as Christian women are concerned the community and the Church with its strong patriarchal
tradition is compelled women to remain subjugated. Socialization starts at the early life of a girl to
become submissive and not to assert their rights. Hence, Christian women are in general reluctant to
assert or demand their rights. Consequently the cases that come to court asking for share of the family
property are also very few.
It was Mary Roy13 who showed the courage to challenge the discriminatory personal laws of the
Christians, namely the The Travancore Christian Succession Act 1916, almost forty seven years after
the commencement of the Constitution. In spite of the repeal of the Travancore Christian Succession
Act 1916 very few women are coming forward to exercise their rights under Section 37 of Indian
Succession Act 1925 which provides for equal distribution of the properties among the children if the
father dies intestate. Besides this, they also silently sign release deeds at the time of marriage thereby
relinquishing their rights in the family property for ever without showing any resistance.
It is to be noted that since Mary Roy case there has been a steady increase in writing wills. The testator
gives property to the sons only. With respect to daughters they write that they are not entitled to any
share in the family property since they are given stridhanam at the time of marriage. Women are also
excluded if the family properties are partitioned, on the same ground that they are given stridhanam.
Due to these circumstances only very few Christian women approach the court to get their share in the
family property. However the researcher has collected cases decided after Mary Roy case from the
Munsif court Pala, Sub court Pala and Kottayam District, Madras and Kerala, High Courts and the
Supreme Court to evaluate the efforts of the judiciary to give justice to the claims of women who assert
their rights against the father/brother/husband/in-laws. Analyses of the cases are also being made to
find out how the judiciary has interpreted the existing legal provisions to render gender just decisions.
The judiciary has to play the role of an activist judge in resolving womens issues relating to property.
As per the repealed Travancore Christian Succession Act 1916, women were given stridhanam and the
practice is still being continued till today. However women started claiming a share of the fathers
property under section 37 of the Indian Succession Act 1925 even though they had been given
stridhanam.

13 AIR 1986 SC 1011

12

Judicial activism calls for an apt interpretation of the legal provisions to deliver gender just judgments.
So this examination of the judicial activism from a gender just perspective would help us to arrive at a
conclusion with regard to judicial response to womens issues and whether the judiciary has been
delivering judgments in the light of the Constitutional mandate of equal status and the principle of nondiscrimination.
Approach of the Supreme Court on Gender Justice
However from 1986 onwards with the decision of the Shah Bano case 14 , the Supreme Court started
demonstrating its pro-active role in upholding gender justice. When it comes to matters relating gender
equality the Judiciary has adopted a different approach leaving aside the non-interference policy with
personal laws. In Anilkumar Mahsi v. Union of India 15 the court rejected the argument that the
additional grounds given to women under the Hindu Marriage Act are discriminatory against men. The
court held that women did require special protection. The court further observed that taking into
consideration the muscularly weaker physique of the women, her general vulnerable physical and
social condition and her defensive and non-aggressive nature and the role particularly in this country,
the legislature can hardly be faulted if the said two grounds are made available to the wife and not to
the husband for seeking dissolution of the marriage . If the issue is related to womens property rights
the court again assumes the role of an activist to uphold gender equality
The Supreme Court continued its gender just policy in Mary Roy v. State of Kerala 16 . Mary Roy filed a
writ petition due to the insult she suffered about 30 years ago. She was ordered to vacate her fathers
cottage at Ooty where she had been living with her children after the failure of her marriage with a
Bengali Hindu.26. Since she had no income to push forward she started a school. When she became
financially stable she filed this petition in 1984 before the Supreme Court. Advocate Indira Jaisingh
argued the case as a public interest litigation challenging sections 24, 28 and 29 of the Travancore
Christian Succession Act 1916. Though the argument was advanced against the violation of equality
and nondiscrimination, the Supreme Court relied on a technical ground that after independence the
laws enacted by the Travancore State were not expressly saved and they have been repealed. The Court
pronounced its judgment on an issue not raised in the petition and the Court held that the Part B States
14 AIR 1985 SC 945.
15 1994 SC 392
16 AIR 1986 SC 1011
13

(Laws) Act excluded the operation of the Travancore Act. It took the view by virtue of Section 628 of
Part B States (Laws) Act 1951 and the inclusion of the 1925 Act in the schedule to that Act, the
Travancore Cochin Christian Succession Act stood repealed from the appointed day under the Part B
States (Laws) Act 1951. Hence the Court ruled that the law applicable to intestate succession among
Christians of Travancore area of the State of Kerala is Indian Succession Act 1925.
However awareness about this historic judgment has not reached or awakened the Christian women of
Kerala. The main reason is that the women have not been persuaded to fight for their rights either by
men or by the Church or by themselves. Unless they come out of the grip of the Church and patriarchal
community this decision would become part of history.
Disputes Regarding Inheritance of Christian women in the Erstwhile State of Cochin up to 1921
The Committee on Christian Succession in Cochin has revealed in its report 17 that the real cause of the
strong sentiment against inheritance by daughters was that their fore-fathers thought of society in terms
of families, not individuals, and tradition stereotyped the attitude towards women which that formula
set. It was because of that so many of the witnesses cried woe and declared that the tarawad was
doomed if daughters were allowed to inherit. 18 The prevalent disposition in those days was to preserve
the corpus of mans wealth for his male descendants. The extent of the daughters portion turned on
consideration which couldnt be collected under any general rule. In most families there was a standard
set by mamool for her dowry. Since the dowry given to a woman bore no direct ratio to her fathers
wealth, the poor mans daughter got a relatively larger share of her fathers property than the rich
mans.19 The Chief Court of Cochin has laid down the law through its various decisions that in the
absence of proof of a specific custom, the provisions of the Indian Succession Act should be followed
as rules of equality, justice and good conscience. 20 But on certain instance, the same court has also held
that the law on that point was uncertain and that a major part of the community did not consider female
members as shares in their fathers property.

17 The Report of the Cochin Christian Succession Bill Committee, 1096 M.E (1920 A.D)
18 Ibid.
19 Ibid
20 Eliswa v Namia, 19 CLR 101; Ramaswami v. Chacku, 20 CLR 101
14

The nature of the disputes indicates indicate that no uniform custom or usage was followed throughout
the state regarding the inheritance of female heirs. Hence the need for a legislation was incessantly
raised by the community as a whole as well as by the courts in its various decisions on succession
disputes regarding female heirs.
Inheritance between the period 1916-1986
During the period 1916-1986, intestate succession among Christians in the three regions of the Kerala
State were governed by three enactments namely:1) The Christian Succession Act, 1092 (Travancore Act II of 1092) in the Travancore area;
2) The Cochin Christian Succession Act (VI of 1097) in the Cochin Area;
3) The Indian Succession Act 1925 (Central Act39 of 1925) Part V in the Malabar area:
The innumerable litigations regarding intestate succession which arose before the Law- Courts during
the above mentioned period indicated the necessity for a more adequate legislation. The demand raised
was either for a uniform law (or unilateral law) applicable to Christians of Kerala, as a whole,
belonging to all the three regions - Travancore, Cochin and Malabar areas, or for a reform in the
provisions of the existing legislations ensuring gender -equality. The disputes mainly arose in regard to
the disparity in the provisions dealing with the inheritance rights of a male heir and a female heir, and
also due to the different provisions as regards the people residing in the three areas and belonging to
different denominations within the community, under the three Acts. An overview of the cases which
came up before the Courts of Travancore, Cochin, Madras, Travancore-Cochin and Kerala High Courts
during the aforesaid period indicated that the main causes for the disputes relating to Intestate
Succession were that
1) the succession of Christians in the three regions were governed by three different enactments.
2) Even among the Christians of any of those regions, their separate legislations could not be applied
uniformly to all of them in that particular region.
For instance, the provisions of the Travancore Act could not be applied to those Indian Christians who
followed the Marumakkathayam system of inheritance. They were specifically excluded vide Section 3
of the Travancore Act. The Cochin Act was not applicable to the members of the European, Anglo
Indian and Parangi communities and to the Tamil Christians of Chittur Taluk (Palghat District), who
15

followed the Hindu Law vide Section 2(2) of the Cochin Act. Disparity existed in the provisions of the
Travancore and Cochin Succession Act relating to the inheritance rights of male and female heirs of the
intestate. Those provisions were not applicable to certain classes of Christians. In the Travancore area,
under the Travancore Act, if a person dies intestate leaving sons and daughters, the daughters will have
a claim only for Streedhanam which was limited to one-fourth of the value of the share of a son, or Rs.
5,000 which ever is less21
In the Cochin area, under the Cochin Act, the daughter was also a sharer but entitled only to one-third
of the share of a sons, but she was excluded by the other male heirs, if she had been given
Streedhanam.22 In the Malabar area, under the Indian Succession Act, a son and a daughter were treated
alike in the matter of inheritance.
Rights of daughters
Concept of Streedhanam:
Among the Syrians, the daughter got Streedhanam in lieu of her share in her fathers property. In
Mathai Kunjamrna v. Geevargeese Kochu kurian23, the Court held that the daughter gets Streedhanam
in lieu of her share in her fathers property, and it is a substitute for her share of the patrimony. It
followed the decision in Mary v. Cherchi & others24, in which the following questions were discussed:
1 Is a Christian daughter, still a Cindrella as regards her patrimony?
2. Are not the provisions of the Christian Succession Act violative of Article 14 of the Indian
Constitution to the extent the daughters are given a disadvantageous deal.
3. Whether Streedhanam a money claim and not a share in the estate?
The case was an appeal, a continuation of an attempt of a Christian girl of the Syrian community to get
back from her husband and her fatherin-law what was given by her father by way of Streedhanam more
than fifteen years back taking 'passaram paid to the church as a record. The facts of the case were that:
the bridegrooms people, in accordance with the custom of the community met in the house of the bride
21 Section 28 of the Travancore Christian Succession Act, 1916
22 Section 20 (b) of the Cochin Christian Succession Act, 1921.
23 1984KLT 128
24 1980 KLT 353
16

on 18-1-1968. Persons present on the occasion included the priest of the parish and a lecturer in a
college examined as plaintiffs witnesses, the trustee and accountant respectively of the St. Marys
Church who too were examined as plaintiffs witnesses and a member of the bridegrooms party
examined as defendants witnesses. The Streedhanam amount though fixed as Rs. 8001/-, an amount of
Rs. 5001/- was given by the brides father to the defendants (bridegroom and his father). Passaram, the
due of the Church in connection with the marriage was paid on 10-2-1968 evidenced by document.
The Kerala High Court has held that under sections 22 and 23 of the Cochin Christian Succession Act,
when a daughter is married the levy of passaram by the church is not proof of payment of Streedhanam.
All that the church records showed was that the passaram was levied on a notional Streedhanam.
Section 23 of the Act has laid down that not withstanding the levy of passaram by the church on the
occasion of a marriage, it is a question of act whether any Streedhanam was given or contracted to be
given for the marriage. There must be independent proof that Streedhanam was given or at least that
Streedhanam was contracted to be given for the marriage
Regarding the character of Streedhanam, it was held in Eleesa v. Aeliya17 25 and followed in Leones v
Lilly26, that it is only a money claim and can only enforce a charge upon the property. But it is barred
by limitation beyond the period of 12 years.
Right of a widow
Nature of widows interest in her husbands property.
Under the Travancore Succession Act, 1092 the right of a widow was only that of a life - estate holder.27
But the widow is also a sharer along with other sharers in respect of properties left behind by her
husband. The fact that the right of a widow on her husbands property is a life interest terminable at
death or remarriage did not in any way curtail the right already given to her namely, of her claiming a
share and having a separate allotment of the properties and enjoying them. 28 No doubt her rights in the
property terminate at death or remarriage. From the death of the intestate, the Christian widow became
25 1947 TLR 285
26 1966 KLT636
27 Section 15 of the Travancore Christian Succession Act, 1916
28 Joseph v Jeseph Annamma,1979 KLT 322; George v Narayana Filial 1960 KLT 433
17

a tenant in - common along with others and became entitled to the share specified in the Act. An
allotment of share cannot be done unless law recognizes a full right. The Indian Succession
(amendment) Act, 2001 has now made the right of the widow absolute by deleting the provision
restricting her right to enjoyment under that act. The various issues regarding the widows estate had
been discussed in a series of decisions by the courts. Often doubts existed with respect to the nature of
a limited estate and thereby disputes arose frequently.
The position of a widow under the Christian succession Act was entirely different from the position of
a widow under the Hindu law. So far as a Hindu widow is concerned, the property becomes vested in
her, and for the time being she becomes the full owner thereof although her interest was characterized
as a limited estate. But a Christian widow inheriting under Christian succession Act got only a life
interest over one half of the property left behind by the deceased which right terminated on her death or
remarriage. She had no right to alienate the property as such although it was opened to her to transfer
her life interest.29 But all the rights in the alienee or transferee based on the assignments made by the
widow came to an end with her death or remarriage.
Where a Christian governed by the Travancore Succession Act died leaving behind his widow and the
minor son as the only heirs, the son had a vested interest in the property even during the life time of his
mother, subject to her life interest terminable on her death or remarriage. If the mother has made any
alienation, it would have to be set aside by the son within 3 years of his attaining majority under Article
44 of the Limitation Act. Any suit instituted by him for recovery of possession of the property after the
expiry of the said period would be barred by limitation
Under the Hindu Law a reversionary cannot be said to have a vested right in the property taken by the
widow of the last owner. It is true that it is the heir of the last owner who succeeds to the estate on the
death of the widow. But it is the person who will be the heir of the last owner at the time of the death of
the widow who succeeds the estate. He need not be the person who was the heir of the last owner at the
time of his death. For this reason under the Hindu law a person who is an heir of the last owner at the
time of his death cannot be said to have a vested interest during the lifetime of the widow. It has been
held in various cases that the right of a reversionary heir expectant on the death of a Hindu widow is
spes successions and is not transferable property.

29 Neelakanta Pillai v Abraham,1963 KLT 271

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But under the Christian law, if the heir to the last full owner to the widow died before the termination
of her estate, the right devolved on his heirs. The widows interest was described as a limited interest,
limited estate or life estate. The right of a person who succeeded to an estate subjected to a life interest
created in favour of another was not a mere spes succession is. It was a vested interest which could be
attached and sold in execution of a decree. The Christian widow had a saleable interest in the property
which could be attached and sold in execution of any decree that was obtained against her and all those
benefits ensured the benefits of the person entitled till the death or remarriage of the Christian widow.
The logical conclusion reached by the courts was that in the absence of any restriction, the Christian
widow was the absolute owner of her share and of the income accruing from her share, during her life
time and till death or remarriage. She could deal with the property as she pleased till any of the
contingencies happened. It was opened to her to make transfer assignments or alienation, but all the
rights of the alienee or transferee ends with her death or remarriage30
Conclusion
The gender unjust and patriarchal personal laws are a serious challenge to the Judiciary. During the
initial stages the courts are also reluctant to interfere with the religious personal laws of various
communities. They continued to follow the British policy even after the commencement of the
Constitution. Women are discriminated in matters of ownership of property. The highly discriminated
personal laws are kept out of the purview of Article 13 of the Constitution. Article 14 and 21 has no
place in the privacy of home. So in Narasu Appa Mali case the Court expressed its inability to interfere
with the personal laws. However towards the end of 1980s we could see courts assuming an activist
role and delivering landmark judgments upholding womens rights. Mary Roy verdict was just a fore
runner. Mary Roy and Shahbanu Begum Verdicts were path breaking decisions, making inroads into the
citadel of religious personal laws. Similarly in Gita Hariharan the Supreme Court tackled the gender
issue by adopting the interpretative tool of reading down the law to include the mother as natural
guardian. The decision in these cases brings for the fact that when it comes to womens issues the
courts assume an activist role and deliver judgments upholding the Constitutional mandate of gender
equality. The Supreme Courts verdict in Mary Roy case led to the repeal of the highly discriminatory
Travancore Christian Succession Act 1916. Consequently suits were filed by Christian women claiming
their share in the family property if the father dies intestate. This opened up an opportunity for
Christian women to claim a share in their family property. Hither to they were entitled only to
30 Sabastian George v Velayudhan Narayana Pillai 1960 KLT 463
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stridhanam. When women file suits for a share in the intestate property, the Patriarchal family members
raise the contention that they were paid stridhanam at the time of marriage and hence they are not
entitled to share. In the initial stages the courts were uncertain about the legal position. There was utter
confusion even among the courts with regard to the law applicable to the Travancore Christians. With
the extension of Part B States (Laws) Act 1951, the Indian Succession Act 1925 was extended to
Travancore and Cochin area. However property disputes were settled in ignorance of the law applicable
to the Christians. Madras and Travancore courts gave conflicting decisions. This uncertainty was set at
rest only with the Mary Roy verdict. In the case of suits filed by Christian women claiming for share
the judiciary adopted a liberal gender just approach and delivered judgments upholding womens
precious right to property.

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Bibliography
Books

DinshawFardunjiMulla, HINDU LAW, 21st ed. 2010, LexisNexis, Nagpur.

Paras Diwan, FAMILY LAW, 10th ed. 2013, Allahabad Law Agency.
Mohammad Nazmi, MOHAMMADAN LAW, 3rd ed. 2012, Central Law Publications

Articles:

Kanaka Latha Mukund, Turmeric Land, womens property rights in Tamil society
since early medieval times, XXVII/17,Economic and Political Weekly, WS-2 (1992)
Flavia Agnes, Law and Gender Inequality: The politics of womens Rights in India,
19(Oxford University Press, New Delhi, 1999)
Mullati, L, The Bhakti movement and the status of women: A case study of
Virasaivism, 106 (Abhinav publications, New Delhi, 1986)
Dr.A.K.Srivastava, Muslim Personal Law and Rights of Muslim Women, A Socio
Legal study 34 SCJ 3 (2007)
Emmanuel Nahar, Minority Rights in India: Christian experiences and
Apprehensions Mainstre Weekly Vol.XLV, No.01, (24-4-07).