Property Right Among Rural Women Hindu Succession (Amendment Act)

Abstract

In England under common law a married lost her legal existence by the fact of marriage. In the words of Blackstone, “by marriage, the husband and wife are one person in law, that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated in that of the husband”. “Upon this Principle, of a union of person in husband and wife”, he further adds, “depend almost all the legal rights, duties and disabilities that either of them acquires by marriage”. This principle very pointedly brings out the effect of the merger of the wife`s legal status into that of her husband on her property rights. Much of her person property whether possessed by heat the time of marriage or coming to her after marriage, either became absolutely his own, or during covert use might, if he chose, be made absolutely his own, so that even if the wife survived him, it went to his representatives. On the other hand, the wife`s freehold estates of which she was seized, vested in husband and wife both, but the husband acquired sole management and control during marriage. Though he could not sell it, but the birth of a child entitled him an interest for life by the courtesy of England.

Under this common law scheme of property, which lasted up to 1870, “it is surely substantially true to say that marriage transferred the property of the wife to her husband”. In sum, the husband could say, “What is yours is mine; what is mine is my own”. The courts of equity mitigated of some extent the hardship of married women, which they encountered at the common law. Equity courts were not bound by the rules of common law and were free to “consider all the circumstances of those cases that came before them and to adopt the means to the end”. The goal was achieved by a systematic and ingenious development of the principle that “even though a person might not be able to hold property of his own, it might be held for his benefit by trustee whose sole duty was to carry out the terms of the trust. This principle created a separate property for the married woman for her separate use, on the basis of the declaration of the settlor. With regard to this separate property; the married woman was “released and freed from the fetters and disability of coverture, and invested with the rights and powers of a person who is sui Jusus”. However, even if the courts of equity were able to improve the lot of women, yet, it could not make a married woman, in respect of her separate property, a fame sole.