Married Womens Property Act,1874

[Cites 98, Cited by 0]

Law Commission Report

Married Womens Property Act,1874

PLD-92.LXVI
2,000

GOVERNMENT OF INDIA
MINISTRY OF LAW, JUSTICE AND
COMPANY AFFAIRS

LAW COMMISSION OF INDIA
SIXTY- SIXTH REPORT

MARRIED WOMEN'S PROPERTY
ACT, 1874

MAY, 1976

D.O. N0. F. 2(4}J7S-L.-:3.

P. B. GAJENDRAGADKAR,

Cfmir-man' Shasrri Bhm-'cm,
New Delhi'-llO O01
Ma_v 12, 1976.

5'' th Report of the Commission on the Married Women's Pro-

gerty'Act, l_874. In the latter half of I975, the Commission took

up _this Sllb_]E:Ct suo mom, because it thought that, in the Inter-

lraiiaponal Women Year 1975, it would be appropriate to revise this
:2 .

t .
)2 I have "great pleasure in forwarding herewith the Sixty-

As usual, a preliminary study of the relevant material was
made, a draft report prepared and discussed in detail. In con-
sequence, changes were made in t.he draft report and it was then

__ ﬁnalised,

You are aware that the present Act, which was passed in

'I874, is based mainly on the earlier English Statute of l87'0.
Thereafter, statutory developments in England and elsewhere in
regard to the question of married wornen's right to property have
been fairly extensive; as a consequence, the whole concept and
~ character of married women's right to property has been revolu-
tionised. This revolutionary change is consistent with modern
-juristic thinking on the subject and the changed sociological
notions. This development, which has taken place during the
century after the passing of the Act, the' Commission thought,

required a comprehensive revision of the Act.

In order to decide what recommendations the Commission

should make in regard to the changes in the Act, the Commission

- thought it necessary to consider the background of the Act and
itake notice of the historical development of the various rules of
Common Law and Equity relevant to the subject.

The Commission also thought it necessary to undertake a
study in depth of the comparative material 1n__ordcr to enable the
Commission to consider and decide the various aspects of the.
problem pertaining to the formulation of. the Cornm1ss1on's recom-

' rnendations on the subject. The recommendations made by the
Commission will speak for themselves; but 1_th1nk 1t would not be
inappropriate if, in this covering letter, I indicate some. of the
broad features of the radical changes we suggest 111 the Act.

The old common law notion that the wife's person was. for

s all legal purposes, merged in that of her husband and that, vrhile
the marriage lasted, her real estate and (Wlth Cﬁftalﬂ e?<0'3Pt101'15}
her personal property became her _husband's property, has now
become completely obsolete. That 1s_ why vve have made suitable
recommendations in that b_eha1'r"_ to_ bring our statutory law 1n con-
formi-ty with modern juristic principles.

ti]

1-l LADETE

{ii}

The Commission also thought that the separate liability of
the wife should no longer be proprietary only, but should be a per-
sonal liability quite independent of her husband. This, -we thought,
should be made clear by legislation, not merely in regard to married
women of the particular community to which this Act applies at
present, but also in regard to married women of other communities
as well. That, in brief, is the approach adopted by the Commission
in making its recommendations. , 5

Section 6 of the Act which deals with the policies of life
insurance is undoubtedly a provision of considerable sociological
importance and, as at present worded, it presents certain difﬁcul
questions of interpretation. The problems posed by section 6 have,
therefore, been dealt with in our Report in a separate Chapter in
order to enable the Commission to set out its views both from the
sociological and juristic points of view.

After the Commission was constituted in September 1971,
it has forwarded to the Government Twenty-two Reports (Nos.
forty-ﬁve to si;rty--six) including the present one and after the pre-
sent Cornmission was re-constituted in September 1974, it has for-
warded six Reports including the present one. '

Before I conclude, I wouldlike to invite your attention to
the request made by me while forwarding the sixt3r--ﬁfth Report. I
had suggested---~--a11d I wish to repeat my suggestion that, after the
present Report is printed, copies of the Report should be circulated
to the relevant academic and professional institutions so that it
may encourage a debate on the questions considered by the Com-
mission and that, in turn, may assist the Government in coming to
its own conclusions on the relevant recommendations made by the
Commission in this Report. I trust you will appreciate my point
and accept my suggestion.

'With warm personal regards.

Yours sincerely,
{Sd.J'-l
(P. B. Gajendrngadkar}

The Horfble Shri H. R. Gokhale,
Minister of Law, Justice 3:'. Company Affairs,
Government of India,

ishastri Bhawan,

NEW DELHI-110 D01.

CHAPTER 1
CHAPTER 2
CHAPTER 3
CHAPTER 4
CHAPTER 5
CI-IAPTER»6
CHAPTER 7
CHAPTER 3
CI-IAPTER 9
CHAP'I'l-ZR 10
CHAPTER 11
CHAPTER 12

CHAPTER. 13
CHAPTER 14

CHA&P'I'ER 15

CONTENTS

Introductory.

History of English law on the ambient.

Woman': iE'o-siti-on in. II1dia--brief historical study.
Scheme of the Act of 1374.

Cognato provisions in other Acts.

Extent and application of Act of 1874. .
Married Women's wages and earnings.

Insurances by wives and husbands.

Legal proceedings.

' Wife's liability for husband': debts.

Husband's liability for wife's debts.

Husbaud'5 liabilitsr for wife's breach of trust or
devastation.

Other matters.

Rocommended amendn-tents in the {act of 1374 by
way of simpliﬁcation in a few sermons.

Amendments in other Acts.

[iii]

ll)
26
2'?
33
34

61
63
65

65
66
6?

APPENDIX I

APPENDIX 2

APPENDIX 3

APPENDIX 4

APPENDIX 5

APPENDIX 6

APPENDICES --

The Married Wornen's Property and Miscellaneous
Provisions Bill. _

Existing sections 20 to 22, Indian Succession Act,
1925. -

Section Ii, Married Wo111en's Property Act, 1882
fEng.}.

Law Reform (Married Women and Tort Fcasors]
Act, 1935 (Eng).

Married Women (Restraint upon Anticipation) Act,
1949 (Eng).

Law Reform ("Husband and Wife} A-ct, I962 [Eng].

-{iv}

"acquire any rights in the property of the wife.

CHAPTER 1
INTRODUCTORY

1.1. A hundred years ago was passed the Married Women's Right to Property
Act, 1874, which' sought to free married women from certain anachronistic rules
of the common law which were regarded as applicable to persons of certain com-
munities in India also. This is a short Act, containing only 10 sections, but, as
our Report will show, it raises certain important issues.

A few years before the Act was passed, section 4 of the Indian Succession
Act, 1865, had established the principle that by marriage the husband does not
A few years later, legislation re-
cognising what is known as the restraint on anticipation in case of married
women, was enacted in section 10 of the Transfer of Property Act, 1882. These
legislative provisions have, during a century or so of their existence, given rise to

certain problems and diﬂiculties and the Law Commission, in the Internatio-nal-

Women's Year, 1975 considered it appropriate to take up these provisions for
examination with a view to suggesting such changes as may be necessary for their
improvement.

1.2. The need for revision of the Act of 1874 and cognate provisions has arisen
from various factors, which may be brieﬂy enumerated:

(a) Change in social notions.

(b) Difﬁciilties felt with reference to application of the beneﬁcial provi-
sions of the Act, particularly section 6.

(_c) Scope for drafting improvements for removing certain apparent in-
_ consistencies. -

1.3. While many of the provisions of the Act of 1874 are not applicable to the
majority of Indian women, a very important section--section 6---is so applicable.
That section deals with the elfect of certain arrangements that may be made by
the husband for the beneﬁt of his wife or children or both his wife and children.
in relation to policies of life insurance. The sociological importance of these
arrangements is obvious. In making this provision, which is a very beneficial
one, the legislature showed awareness of the ﬁnancial interests of the wife, and
her dependence on the husband as the provider for the family. The provision is
intended to protect the monetary security oﬁered by such arrangements which, in
a sense, are to be considered as substitutes for the economic security oﬁered by
matrimony. While marriage does not grant to either spouse a right in the pro-
perty of the other spouse, it does create expectations of emotional as well as
economic support from the other spouse. This is particularly so in the case of
the wife. The family is still an economic unit. Section 6, which is vitally con-
cerned with the economic welfare of the wife and children, takes. note of this as-
pect, and proceeds to make certain provisions intended to render more effective
the arrangements made by the husband in relation to the disposal of moneys to
be received on an insurance of his life.

1.4. While, therefore, a radical change in the 'principle of the existing section is
not required, there is an urgent need for amendments which will more elfectively
cam; (jut Lhe principle which underlies the provisions of section 6.

1The'Act will be referred to in brief' as-the Act of 1874.
1

Scope of the he-

P011.

Reason for revi-

sion.

Applicability of
the Act of 1874.

Need for amend-
ment of section 6.

Economic aspects ~15-

of family law.

. Inferiority of we-/.
men. ,-
*9'

Need for widen-
ing section 7.

Mamied Womerfs Property Act. 1874

(Chapter 1.--Im'rodur.'tory--Contd.)

It is in this context, that we have considered it proper to examine section
6 at length. It so happens that apart from the practical importance of section 6.
it bears examination from the theoretical point of view, as it deals -with the inter-
esting subject of the mode of assignment of an actionable claim. For historical
reasons. the freedom of assignment of actionable claims was. in common law, be-
set with technical diﬂiculties throughout its history. Though there was no funda-
mental objection. in the laymind. to such assignments, a sound and uniform doc-
trine of assignments failed to develop in common law. and the kind of assistance
which the law courts could give was "surreptitious and spasmodic'? Section 6
gives a positive mandate as to the elfect of an arrangement.

So long as the family is a going concern, rights in property and rights to
maintenance are of purely academic interest. But the economic aspects of family
law become important when the marriage breaks down during the parties' life-
time. These aspects also become important on the death of one Of the parties,
and. similarly, they become important it one spouse becomes insolvent. The de-
velopment of the status of the wife from a subservient member of the family to
the co-equal head of the family has been substantially achieved ; but a few points
of detail are still in need of reform. In general. rights in property are not greatly
ajliocted by the relationship of husband and wife, but in some respects. the law
requires to be brought up-to-date.

1.6. Voltaire, i-n his Dictionnaire Philosophique'. asserted. with respect to the
word "woman": "It is not surprising that in every country man has become
woman'-s master. because everything is based upon strength. He usually possesses
great superiority by virtue of his body and even his mind 'Women
are commonly concerned to be sociable and conciliatory. Generally speaking, it

appears that they are made to assuage men's manners."

This notion will today appear as obsolete ; but. in early times, this notion
of woman's inferiority was reﬂected in the legal status assigned to her in the

West.

The social changes of the nineteenth century, however, increasingly ob-
liged industrial societies to modify the woman's position in society in a manner
that has tended towards her emancipation. Our law is tending towards treat-
ment oi the woman as an individual. not only in the family but also in society

generally.

It is hardly necessary to "add that in India. the Constitution guarantees
complete equality of the sexes. In fact, the Constitution' allows the State to
make special provisions for woman The statutory provisions with which the
Report is concerned also illustrate the trend towards equality of the sexes. But.
as we have already stated' those provisions require to be brought up-to-date.

1_»;:_ Apart from the questions pertaining directly to the existing provisions,
there are two matters on which we propose to make recommendations with a.
section 7 of the Act. Our object in

view to widening the scope and eﬂect of
making these recommendations is to provide and clarify statutorily that all married

women in our country. whatever he the religion they profess. are free to sue and
be sued in respect of claims arising under contracts, torts or otherwise. Before

lﬁailey, "Assignment of debts". (1932) 43 I--Q-F» 547-
'Voltaire, Dictionnaire Philosophique.

Bchapter 3. infra-

'Para 1.5. 31¢?"-

Ma.I'ri£d Women's Property Act, 1874
(Chapter 1.--Inn'odnrcrory---Contd.)

we reached this conclusion, we examined the problem in depth and, as the dis-
cussion in the relevant portion of -our Report shows', we carefully considered the
important judicial decisions bearing on the point,

1.'!-'A. We shall now brieﬂy indicate. the background in which the Act of 1374,
and other cognate provisions were enacted. Prior to January 1866, the law
applicable in India, to persons who; were not Hindus. Muslims, Budhists, Sikhs
or Iains, Was, in general, the English common law as regards matters concerning
personal status. Hindus, Muslims, Buddhists, Sikhs and Jains were governed
by their own personal law. The persons to whom the English common law was
thus applicable, for want of their own personal law, included. Europeans and
Indian Christians. Jews, Armenians and Parsis,-----to mention some of the most
important communities. Accordingly, the restrictions as regards possession and
alienation of the property of an English woman generally applied to worsen
belonging to these communities. The position in this respect, as it prevailed be-
fore l8I5tS. could be analysed as under:

(a) As to "real estate", the husband acquired by marriage an interest in
the property of the wife, and. during marriage, the wife could not
alienate the property without the consent of her husband. In the
event of her death leaving children. the husband became a tenant by
curtsey, subject to certain 1i1:nitations'.- In fact, it is understood" that
in the conveyances by Farsi married women, executed prior to January
l866.--that is. prior to the enactment of section 4 of the Indian Suc-
cession Act. 1865-the husband was made a party for the purpose of
giving his consent to the alienation. This was because, by a statutory
provision' it was provided that a niarried woman was empowered to
dispose of her estate by deed acloi-owlcdged with her husband': con-
currence; and it was also provided that no deed would be valid un-
less her husband concurred therein or in case of disability of the hus-
band unless the deed was acknowledged before the judge of the
Supreme Court. t

(b) As regards movcable property belonging to the wife, the husband ac-
quired, by marriage. a vested interest in moveable property in posses-
sionot the wife, and also acquired the right to reduce into possession

_ the wife's outstanding persona] choses in action.

1.8. These disabilities of the wife werenabolished by the enactrhent of section
4 of the Indian Succession Act, 1865,----1ater replaced' by section 20 of the Indian
Succession Act. I925.

As regards Hindus, Muslims and other communities mentioned above, it
was not considered appropriate to deal with the matter by legislation, because
they were governed by their personal law. For this reason; section 3 of the
Married Women's Property Act, 1874. excluded those communities from the ope-
ration of section 4 of the Indian Succession Act, T855. This exclusion has been
re-enacted in section 20(2)[b) of the Indian Succession Act, 1935. Consequentljf.
section 393 (9th Schcdulefot the Indian Succession Act, 1925, has repealed sec-
tion 2 of the Married 'Women's Property Act, 1874.

Chapter, 9, infra.

'Pat'uck, Indian Succession Act H966), page -33.

'ParI.tck, Indian Succession Act 11966), page 33. '

'Section 3 of the Act 31 of 1854 {The Conveyance of Land Act. 1854), repealed by the

Repealing and Amending Act, 43 of 1952.
'Pin 5.2. infra. '

English law appli-
cable to_ persons
of _CBfl3ll1 com-
munitles.

Section 4 Indian
Succession Act.
1365.

Object.

Equitable inter-
vention with rules
of common law
and subsequent
developrneuts in
England.

Married Womerfs Property Act, 1374
(Chapter 1.«iIntroducrory--Contd.)

1.9. In the statement of Objects and Reasons,' annexed to the Bill which led
to the Married Won1en's Property Act, 1874, the object was thus statedé

"The Indian Succession Act (X of 1865') section four, declares that no
person shall by marriage acquire any interest in the property of the person
whom he or she married. This section, however, does not apply to mar-
riages contracted before the 1st January, 1866, and, in the case of persons
married after that day, the Act does not protect the husband from liability
from the debts of his wife contracted before marriage, nor does it ex-
pressly provide for the enforcement of claims by or against such wives.

"The objects of the present Bill are, ﬁrst, to extend the protection afforded
to wives by section four of the Succession Act (so far as regards future
wages and earnings and policies of insurance) to women married before
lst January, 1866; secondly, to declare that a married woman may sue in
her own name for any property which by force of the Succession Act, or
the proposed Act, is her separate property; thirdly, to relieve the hus-
band of a wife married after the 31st December, 1865. from her ante-
nuptial debts ; and, lastly, to declare that any person entering into a con-
tract with a wile (otherwise than as her husband's agent), shall be entitled

' to sue her, and, to the extent of her separate property, to recover against
her whatever he mighthave recovered had she been unmarried."

1.10. We shall, in this con" 'ction, very briefly refer to the development in
England."

(a) In England, the progressive emancipation of the married woman from
the restrictions imposed by the Common Law upon her capacity to hold and to
deal with real and personal property was, until the second part of the nineteenth
century, almost exclusively theresult of equitable intervention. At common law,
a wife's chattels became the absolute property of the husband. He possessed
also the power to reduce her choses in action into possession; whilst, upon the
birth of issue, he enjoyed the seisin for life of such present estates of inheritance
as his wife might have possessed, as a "tenant by the curt_sey".

(33) From the reign of Elizabeth onwards', however, the Court of Chan-
cery steadily evolved the doctrine of the separate estate of the married woman,
although it does not seem that this doctrine was applied to real property before
the Restoration. In pursuance of this doctrine, the Court of Chancery estab-
lished that wherever property was given to trustees for the separate use of a mar-
ried women, she could hold and dispose of it in Equif" free from her husband's
interference: and such property was protected effectually against the husband's
debts and other obligations. Eventually, it was decided that wherever the dener
had expressed a plain intention that the property was for the separate use of the
married woman, this should be effective. whether trustees had been appointed or
not, the trust being, in the last resort, imposed on the husband himself.

It should be noted that it was not until the Legislature had accorded to a
married woman ﬁnancial independence from her husband that it was ﬁnally estab-
lished that she had a similar right to her personal liberty.

'Gazette of India, 1373, Part V, Page 457-
2For detailed discussion, 59': Chaplet 2: f"fm- _
_ 111' , '[579, C 361 G V. Charzsery H639], 1 Rep. Ch. '25; D 3?
v. cigtigi i1d63?i 5:3 ii1Cl1?2lL;"?E'Ot!0n vfniggrtort. (1690). 2. v. rn. 290. ii"

Married Women': Properly Act, 1374

(Chapter 1.--Im'rodnctory--Contd.)

In R. v. Jackson,' the wife applied for a writ of habeas corpruv against the
husband, and it was held that it was no defence that the husband, was merely
conﬁning her to exercise a right of consortium. It was then that the concept
that the wife is a chattel, came to an end.

Thurlow, at the end of the eighteenth century, evolved the "restraint on anticipa-
tion" clause, the object of which was to protect the wife against the solicitations
of her husband (or her natural inclination) to surrender her beneﬁcial enjoyment
of the property to him. Such a clause made either the capital or the income of
property (or both) incapable of alienation or anticipation so long as she was sub-
ject to coverture, and the effectiveness of the clause was ﬁnally established before
I.crd Eldon in Jackson v. Hobhonse.' '

(cl) Nineteenth century statutes, whose purpose was carried a stage fur-
ther in the property legislation of i925, have now permitted the enjoyment of
full proprietary rights by a married woman at law, and have therefore greatly
minimised the importance of a very characteristic product of Equity. which only
became possible through the evolution of the modern law of trusts.

(e) Under modern social conditions, however, the necessity for protecting
a married woman against the designs of her husband has practically disappeared
and, in spite of statutory provisions for lifting the restraint on anticipation on
various occasions, it nevertheless remained a serious obstacle to the enforcement
of» the claims of the married wcrnan's creditors. The Law Reform (Married
Woman and Tort-teasers) Act, I935. therefore abolished the "separate property"
of a married woman, putting her in the position of a fame safe, and virtually
prohibited the imposition of restraints on anticipation in the future.

(f) By the Married Women (Restraint upon Anticipation) Act, 1949. all
existing restraints were abolished. Section 1(1) of that Act provides that "no
restriction upon anticipation or alienation attached, or purported to be attached.
to the enjoyment of any property by a woman could not have been attached to
the enjoyment of that property by a man shall be of any effect after the passing

of this Act."

1.1]. The present position in England, therefore, -is that on marriage each spouse i

continues to own separately the property that belonged to him or her before
marriage. Property acquired by one or the other during marriage remains the
property of the acquiring spouse. In short, marriage creates no property rights.
nor does it create any disability in respect of property.

1.12. In India, the Act of 1874. and the provisions of section 4 of the Indian
Succession Act. 1865. were in the true sense, fundamental reforms -in the 19th
century in respect of married woman's right to property. - The legal device em-
ployed was' no dgub;_ based on an equitable concept, namely, the doctrine of
the wiie's "separate property". But it served its purpose. The Act of 1874.
however. did not abolish the doctrine of restraint on anticipation. In fact. be-
cause of the provisions of section 10 of the Transfer of Property Act, 1882, it
is still possible to certain communities, in such a way as to prevent her from
dealing with it. while similar restrictions cannot be imposed on a married man.
A total restraint on alienation cannot be attached in respect of property trans-
ferred to a married man, but it can be attached in the case of property trans-
ferred to a married woman of the speciﬁed community.

This, in brief. is the background of the Act.

1R. v. Jackson. (31391) I (3-11 671 (C01-II? Of AD13°31)-
2Jackson v. Hobhouse'. (1317) 2 M51': 433-
3...; 'L.ADl'.T6

Present position
in England.

Position in India.

lntrod uctory.

Property.

Property of Mar-
ried wornane-Err
glish statutes.

Acts of 1882 and
l935--provisions
as to property.

Married Womerfs Property Act, 1374

CHAPTER 2
HISTORY OF ENGLISH LAW ON THE SUBJECT

2.1. in this Chapter, we propose to deal in brief with the evolution of the
English law on the subject. This has more than academic interest, because
many of the provisions of the Act of 18?-1 would be better understood if the back-
ground in which it was passed is kept in mind ; it is not disputed that that back-
ground was mainly the English non-statutory law.'

2.2. The principal doctrine of the common law concerning the property' of
married persons was that while marriage did not deprive a woman of any pro-
perty which she already had, or affect her right to acquire property as such. it
gave the husband certain valuable rights, which had important consequences.
This position was gradually modiﬁed by legislation,--legislalion which was mostly
enacted under the title of "Married Women's Property Act" or under a title sub-
stantially similar thereto.

2.3.
the major Acts in England were of 1857, i870, 1882, 1935 and 1949. Section
25 of the Matrimonial Causes Act, 1857, provided that so long as a judicial sepa-
ration was in force, the wife was to be deemed to be a feme sole with respect to
any property which she should acquire. econdly, section 21 of that Act pro-
vided that if a wife were deserted, she might obtain a protection order, which
would have the effect of protecting ifrom seizure by the husband and the husband's
creditors, any property and earnings to which she became entitled after the
desertion, and of vesting them in her as if she were a frame sale. These two pro-
visions modify the common law rule to which we have referred.'

The Married Women's Property Act, 1870, created a further exception
to the common law rule, by providing that in certain cases speciﬁed in the Act.
property acquired by the wife should be deemed to be held for her separate
use. Amongst the important cases of property so speciﬁed were her earnings,
deposits in savings banks. stocks and shares, and, in very limited circumstances.
property devolving upon her on intestacy. This Act was repealed by the Married
Women's Property Act, 1882. which is considered below.

2.4. The Married Women's Property Act, 1882, provided" {a} that any woman
marrying after 1882 should be entitled to retain all property owned by her at

the time of the marriage as her separate property, and that, (b) whenever she was
married, any property acquired by a married woman after 1832 should be held
by her in the same way.' It also enacted that "A married woman shall
be capable of acquiring, holding, and disposing by will or otherwise, of any real
or personal property as her separate property, in the same manner as if she were
a frame sole, without the intervention of any trustee."

It further provided that the law relating to restraint upon anticipation
should remain unaffected?

1Para 1.9 to 1.12., supra.

'See para 2.10, infra, for a detailed discussion.

'For some of these Act, see Appendices 3 to 5.

'Para 2.2. supra.

"Appendix 3.

"Sections 2 and 5. _

"Section 1(1). .
"Section 9.

So far as legislation relating to property' of married women is concerned, '

Married Women's Property Act, 1874
(Chapter 2.wH:'story of English Law on the Subiecr--contd.)

It now became impossible for a married man to acquire any further
interest in his wife's propirty "jute mariti" by operation of law.'

Other provisions of the Act of 1882 need not be considered at this place.
Important amongst them are--ihe spouses' liability in contract, tort and criminal
law, claims in bankruptcy, policies of insurance in favour of a spouse or children
and disputes over property arising between spouses."

The Law Reform (Married Women and Tortfeasors} Act, 1935, is the
next Act of importance. By 1935 almost all married women's property was
owned by them as their separate property. To speak of "separate property"
was, therefore, becoming something of an anomaly, since married women in al-
most all cases had the same capacity to hold and dispose of it as a man or a
fame sole. Because of this position, the Legislature, in the Law Reform [Married
Women and Tortfeasors) Act, 1935, abolished the concept of the separate estate,
and gave to the wife the same rights and powers as were already possessed by
other adults of full capacity. The material provisions was as follows:

2.5.

" .......... .. A married woman shall be capable of acquiring, holding, and
disposing of. any property .......... .. in all respects as if she were a fame
role."

" .......... .. All property which-

(a) immediately before the passing of this Act was the separate property
of a married woman or held for her separate use in equity ; or

'(b) belongs at the time of her marriage to a woman married after the
passing of this Act; or

shall belong to her in all respects as if she were a fame safe and may be
disposed of accordingly."

The Act did not touch any existing restraint on anticipation.' But it
sounded the death knell of the latter, for it rendered void any attempted imposi-
tion of a restraint on anticipation in any instrument executed after 1935 and in
the will of any person dying after 1945, even though the will was executed be-
fore 1936.5

2-6. The Married Women's (Restraint upon Anticipation) Act, 1949, totally
abolished' the validity of restraints on anticipation. In 1882, it was appar-
ently necessary to protect a married won1an's property. but the restraint could
no longer be justiﬁed in the middle of the present century, when it served no
useful purpose but merely acted as an undue fetter on the wife's power of

alienation.

1But a married woman still could not be made bankrupt unless she came within the
express provisions of section ][S) by carrying on a trade separately from her husband,

3See para 2.? to 2.10. infra.

-'Sections 1(a) and 2(1) of the Act of 1935. [Appendix 4).
'Section 2(1). [Appendix 4}.

'Sections 2(2), 3 and Appendix 4.

'Appendix 5.

Act of l935--Pro-
visions as to pro-
P3113'

Restraint on anti-
e11:-anon.

Contracts.
Statutory provi-
sion as to con-
tracts--Act5 of
1357, 1870 and
1374.

A_et of 1SEt2--pro-
vision as to con-
tracts.

Act of l935--pro~
Vision as to con-
_tracts.

Married Womerfs Property Act', 1874
(Chapter 2.---History of English Law on the Subfecr-----contd.)

2.7. We have so far discussed property rights in general. As regards con-
tracts. at common law.' a married woman possessed no contractual capacity
whatever, and could not, therefore, make a binding agreement either with her
husband or with any other person. This general rule was subject to certain
exceptions, which are not important now. Further, the marriage automatically
vested in the husband the beneﬁt of all contracts already made by the wife. and
during marriage both spouses were liable to be sued on them. At equity.' :1
wife could bind separate property effectively on contractvthat is, upto the extent
of the property: but she could not render herself personally liable."

2.8. On the principle of the common law relating to contracts mentioned
above," the ﬁrst statutory inroad in England was made by the Matrimonial
Clauses Act, 1857, section 26, which provided that so long as a_decree of judi-
cial separation was in force, a married woman could be considered as a frame
sole for various purposes, including the making and enforcement of contracts.
The Married Womerfs Property Act, [1870 enacted (by sections 1 to ll), that
a married woman's wages and earnings should be regarded as her separate pro-
perty. and gave her a power to maintain an action to recover them in her own
name (by section 12). The Act of ISTO also abolished the common law rule
that a husband should be liable for his wife's pre-marriage contracts; but this
led to certain anomalies.

Subsequently, by the Married Womerfs property Act, (1.870), Amendment
Act, 1374, this part of the Act of 1870 was replaced by a provision limiting the
husband's liability for his wife'-'s pre-marriage contracts to the extent of the value
of the wife's property which vested in the husband by virtue of the marriage
under the law as it then stood.

LEA. The Married Women's Property Act. 1882, made certain important pro-
yisions regarding a married women's separate property, which have already been
mentioned.' That Act (as amended by the Married Women's Property Act,
1892}. also gave the married woman full contractual capacity, but even these
Acts did not make her personally liable. Lastly, the Act of 1882. in section 14.
enacted that a husband should be liable for his wife's antenuptial debts and con-
tracts only to the extent of property belonging to her which he acquired or to
which he became entitled. This was a retention of the principle of the English
Act5 of 1874.

2.9. The major reform in the ﬁeld of contracts was made by the Law Reform
[Married Women and To1'tfeasors)Act.l935. Section 1 of the Act provided'.
that a married woman shall be capable of rendering herself liable and being
rendered liable in respect of any contract, debt or obligation and of suing and
being sued for 'contract. and also that she shall be subject to the law of bank-
ruptcy and to the enforcement of judgment and orders, in all respects as if she
were a fame sole. This Act also abolished the concept of separate estate, and
enabled a married woman to hold her property in all respects as if she were a
fame sole. Finally, the Act abolished the liability of the husband for contracts
of the wife entered into before rnarriage--the reason being that the husband does
not, by marriage. acquire any property of the wife with which he could meet
her debts.

lSee also para 2.10, infra.

'Pollock, Contracts (20th Ed.), pages 557-561.
'Para 2.7, supra.

'Para 2.4, supra.

'Para 2.8. supra.

"Act of 1935 (Appendix 4).

Married Women': Property Act, 13374
(Chapter 2.----HisIorj= of English Law on the Su.hj'eer'----contd.)

2.10. The position emerging from these statutes inag,' be contrasted with the
common law. The position at common law was well summarised by a writer
in the Harvard Law Rcviewi, in these words:--

"At common law a woman's capacity to hold or receive this to property
was not destroyed by marriage, but marriage had important consequences.
It gave a man a right to use and enjoy whatever property his wife owned
at the time of marriage or acquired during coverture. A husband acquir-
ed a right to possess his wife's real estate and to enjoy the rents and pro-
ﬁts thereof, but the fee remained in the wife. His interest wasrclcscribed
as an estate for joint lives, since coverture normally could be terminated
only by the death of one of the parties, but more accuratelj,' it wasan
estate for the duration of coverturc. If he predeceased his wife, the fee
was in her; if she predeceased her husband, the fee went to her heirs,
subject to a life estate in the husband by the curtesy if issue had been born
alive. The husband had a right to use his wife's chcses in action, and to
this end to reduce them to possession, after which they became chattels
personal. In view of the perishable nature of chattels. and the common
law denial of estates therein, his right to use these involved such com-
plete dominion as to amount to ownership, and consequently marriage
was said to give him the legal title by operation of law?"

"A married woman had no capacity to contract for herself, and her exe-
cutory undertakings were void, but she had capacity to act as agent for
others, including her husband. She had no capacity to convey her fee
to real property, except in England by fine and recovery. and in the United
States by joining with her husband in the conveyance. Consequently.
husband and wife were under equal disability and lack of capacity to con-

$ll

tract with or convey to the other."

"The husband was entitled to his wife's services and earnings whether
. performed in the home or elsewhere. -for himself or another'; and the
husband was under a duty to supporti. A marrim woman had no capa-
city to sue or be sued alone in her own name, but whenever she had a
substantive capacity, or was substantively the holder of a right, or sub-
ject to a duty, suit must be brought in the name of husband and wife.
and judgment was enforced in favour of the husband or against both
husband and wife. In the case of torts committed against a married
Woman, her legal personality was substantively recognized, and in so far
as the tortious act caused injury to a legally recognized interest of the
woman herself, it was a chose in action of the woman's. and if the hus-
band predeceased the wife before having reduced her chose, it remained
to the wife :5 but, insofar as the injury was to the husband alone. either

"Nilliam Ivlccurdv. "Torts between persons in domestic relation" l'l92S'~193Ei) 43 Harv.
L. Rev. 1030, 1031, 1033.

'-'As to property at common law, we Mccurdy. Cases on persons and domestic relations
(192?) 507-19, and cases therein cited. ' .

3&3 to post-nuptial contracts, conveyances. and transfers at common law, see Mccurdy,
cases on Persons and Domestic Relations at 520-36, and cases therein coilected.

'Pm! 11'. Taylor, Cro. Eliz. 61 U535'): Brarhford V. Biickingfmm, Cro. Jae. 77 (1606);
Buekiey v. Collier. I Salk, [14 {I701}; see Warren, 'Husband': Right to Wife's Services'
(1925) 33 Harv. L. Rev. 32],, 622. -

"disc: Mccurdy. Cases on Persons and Domestic Relations at 709-35, and cases therein
In
_ _'1.:ldccurd.v, cases on Persons and Domestic Relations at 779-81, 794-813, and cases there-
in C1 .

Position at
law.

ITIUII

CUM'

10'

Introductory.

Ideals of society,

Two 'general ob-
servatlons.

Married Womerfs Property Act. 1874
(Chapter 2.--Hr'.s't'ory of English Law on the Subject'-----con'Ed.)

by depriving him of some interest, such as scrvices and earnings, or by
increasing the burden of his duties, such as support, it was a chase in
action of the husband's. And the converse is likewise true. A married
woman substantively had capacity to commit most torts, but her liability
was in a sense suspended during covgrture, and the husband subjected.
If she committed a tort during marriage, or committed a tort or contracted
a debt before marriage, although the duty was substantively hers, suit
must be brought against husband and wife, and judgment could be en-
forced against property of either; but if the husband predeceased the wife
before judgment. the action remained against the wife alone} If the wife
should predecease the husband before judgment, a question of survival
of causes of action would arise." I

CHAPTEP. 3
WOMENS POSITION IN 1NDIA--BRIEF HISTORICAL REVIEW
I. INTRODUCTORY

3.1. In the preceding Chapter. we have traced the history of, the English law
as to the property rights of married women. A brief historical survey of the
position of women in India would be useful at this stage.

3.2. The estimation in which woman is held. the status occupied by her in
society and the treatment accorded to her. have been justly regarded as an index
of the degree of civilization and culture attained 'in any country. Our moral
ideals regarding women have been too often conceived in a narrow sense--as
concerned with sexual morality and the obligations of chastity and marital
ﬁdelity."

But such an approach would give a 'very incomplete picture of the atti-
tude of society in its totality. The ideals of a society as to womanhood include
not merely the relation of husband and wife or mother and children, or the other
intimate relationships of family life, but also the notions we form about her
capacity, her character, her claim to equality. independence and freedom for
development, her rights to personal liberty, to the ownership and control of pro-
perty, to the choice of her vocation and other rights as well as duties as a member

of society."

3.3. Keeping this in mind, we propose to make a brief historical survey of the
position of women in India in general, with special reference to_ their legal rights
regarding property. We would like to preface the survey with two general obser-
vations regarding the legal rights of women. First, these rights have been ﬂuctuat-
ing during various historical periods for reasons which we need not go into.
Secondly, these legal rights seem to have been recognised earlier in India than

elsewhere.

'Is-Iccurdy, Cases on Persons and Domestic Relations at 677-708, and cases therein

cited.
9P. S. Sivaswami Iyer, Evolution of Hindu Moral Ideals (Kamla Lectures, Calcutta

University), (1935), page 54.

Married Womenh Property Act'. IET4
(Chapter 3.----Il"omen'.r Posnion in !rm'ia----Brief Historical Review.)

3.4. As to the first aspect---ﬂuctuations in legal rights--the
women in heritable property' may be taken as an instance.

participation of

In the Hindu systern, Bhattacharya" traces two antagonist pn'nciples,---
orie excluding v.-'omen generally 1" rom inheritance, and the other giving them par-
lial right. But he adds that jealousy and antagonism are equally discernible.
Bhattacharyai further states, that, in general," exclusion is the primitive type. while
admission to partial rights is modern; but he points out that the law is not
corttinuously progressive in every case.

Thus, for example, though the law of property promulgated in the Daya-
bhaga is of later growth than the Mital-rshara system, set the llvilitalcsharaa is in
advance of the Dayabhaga' as regards the rights of the daughter in the father's
property where there are sons existing.

3.4A. Secondlgr, we would like to point out that the right of a Woman to hold
separate property of her own was recognised in the Hindu law. long before it was
admitted in the European countries.' n

Thus, presents given to a woman at her marriage by her own relations
or her husband. and what she received after marriage from her husband and his
family belonged to her. though the husband had certain claims thereto- Property
received by a maiden in the shape of ornaments or other presents from her own
family or from her aﬂianced bridegroom was regarded on her own property.
Women had considerable right of disposal of property much earlier than else-
where.

All these featutnes indicate a comparatively liberal attitude in regard to
property rights.

3.5. l-'v"r'tl1 the position as it prevailed in India. We may contrast the position
in Rome. In Rome'. :1 marriage with conventio in nitrous. wlrtich was the regular
form of marriage in early times, gave thehusband a right to all the property
which the wife had when she married, and entitled the husband to all she might
acquire afterwards whether by gift or by her own labour. Later on, no doubt.
the marriage without lI1a11l.lS became the ordinary Roman marriage, and the
position improved. But the point to be noted is that the recognition of women's
rights tool: place much earlier" in India than elsewhere.

II. POSITION OF HINDU WOl'u1EN-----THE MAIN CHRONULUGICAL
- DIVISIONS

3.6. The fluctuations in wornerfs rights, and the comparatively early recog-
nition of their status. wit} be evident from the historical survey which follows.
We propose to divide our historical survey of the position of women in India
into the following divisions:

(1) The period from c. 4000 B.C. to 1500 B.C.----hroadi3r corresponding
to the age of the Vedas."

1S-re also para 3.28, infra.
ﬁﬁhattacharva. Ioint Hindu Family. {T.l-'_..L. 1834. 1335). pages 63-64.
-'ti-Iitnkshara, Chapter 1, section 7, paragraphs 11 & I4.
'Davabhaga. Chapter 3, section 2, paragmphs SIS & 3?.
'P. S. Sivaswami Iver, Evolution of Hindu Moral Ideals [Kamila Lectures, University'
of Calcutta], (1935). D. 50.
"Banerji, Marriage and Stritlhana f 1923}, page 394.
"Para 3.4. supra.
ass to the age of the an Veda. See Kane. I-Iisiﬂﬁf of Himlu Dharrnasasn-as, vol. 2.
Perl 1. page art.

Herita ble pro-
perry.
Right of Hindu

Woman recognised
along before it:
admission else-
where.

Position in Rorna
----MaJ'ria3c with
menus .

Historical survey.

First periodw
[4000 B.C_ to 15430
B.C.).

Marriage.

Mrzrried Women': Property Act, 1874
(Chapter 5'.--Women's Position in Ind:'o--Bricf Historicai Review.)

(2) The period from c. 1500 BC. to 500 B.C.--br-oadly corresponding to

the age of the later Sarnhitas,' Brahmanas and Upanishads.

The period from c. 500 B.C. to 500 A.D.--broadly corresponding to
the age of the Dharmasutras, Epics and early Smritis.

The period from c. EGO AD. to e. 1800 A.D.--broadly_ corresponding
to the_age of the later Smritis, Commentators and Digests.

The period from 1801 AD. to 1955 .-'t.D. [which may be conveniently
called the British period}.

(6) The period from 1956 AD.

[Si
(4)

(5)

III. THE VEDIC PERIOD

3.7. By common consent. the ﬁrst period is a glorious chapter in the social
history of India. The Vedas themselves are rich in their description of natural
phenomena, in their inspiring invocations of the deities belonging to the pan-
theon as conceived by the Aryans, and in the full-blooded images of all that gave
them delight or captured their fancy. In the expression of man's sense of awe
and thrill at the beautiful, the wondrous and the magniﬁcent, they have never
been surpassed, and rarely been equalled. This deep interest in nature, and this
capacity for soul-stirring delineations of all 1112.: they perceived or imagined.
bcspeak a healthy society. a

Society in that age was predominantly agricultural, but not necessarily
primitive. Women enjoyed equal status with men." The "initiation" ceremony
("Upanayana"--Iiterally. taking near the teacher's house), was performed for
girls as well as for boys. Women studied the Vedas, and even composed Vedic
hymns.' In public life. theyparticipated freely. Monogamy was the general
rule, and the wife of--a householder had an honourable place. There were certain
disabilities regarding the proprietary rights of women, but this was primarily due
to the fact that the Aryans were just settling down. and were not sure that women
could defend their property against hostile races.'

The position of women in India in the Vedic age was far from being analo-
gous to what it usually was in early uncivilized societies.

3.721. The Rig Vedas clearly shows that the Aryan bride was an adult.

The ideal marriage of the Vedie period was a religious sacrament, which
'made the couple joint owners of the household--which is evident from the ety-
mological meaning of the Vedic word "Dampati".'-"a. The old tradition that the
wife was the property of the husband had not yet completely died down ;' the
famous hymn about gambling in the Rig Veda' shows that sometimes conﬁrmed
gamblers would take away their wives to their opponents. But the advice given
to the gambler in this hymn, shows that social conscience had alreadybegun to

disapprove of this practice.

'As to the Second, Third and Fourth periods, see Alteltar. Position of Women in Hindu
Civilization (1956), page 336.
?Altelcar, Position of Women in Hindu Civilization. (1956), page 409 and pages 335-
339.
"Para 3.8, infra. -
'Altekar, Position of Women in Hindu Civilization, U955}. PEISE 409.
5Rig Veda, X.8S.42.46.
"-.°=', a===ra"T.
aamtekar, Position of Women in Hindu Civilization, Chapter on married life.

Tltig Veda, X._3S,

.l«fczrrz'€d Wome.r2's Properry Act, 1874
(Chapter 3.--«Wome:t'.r Pasitiorr in Indio~--Brief Historical Rm-'iew._}

These are the verses' relevant to gamblers:

"ID. The dese1'tetlwiie of the gamester is afﬂicteclz the mother (grieves)
for the son wandering wherever he likes; involved in debt, even in fear.
anxious for wealth, (the gambler) goes forth by night to the dwellings of
others (to plunder).".

"ll. The gamester, having observed the happy wife and well-orderfid
home of others, suffers regret: yet in the fore-noon he puts to the tawny
I steeds, and at night the sinner lies down by the ﬁre."

The position of women, then, was satisfactory. rdinarily, girls Were.
no doubt, less welcome then boys, for economic reasons.

But, there were also some parents in society who would perform special
religious rituals for getting learned and capable daughters. This is evident from
the text of one of the Upanishadsf-' Girls were educated like boys and had
to pass through a period of Br-alirnacharya. The marriage of girls used to take
place at fairly advanced age, the normal age being 16 or 17 years.'

3.8. We read of ~.vome.n being conceded the highest intellectual honours' in the
ancient past, particular 3' during the Vedic period. For example. three classes

of hymns have been attributed to women in the Rig Veda and the Upanishads."
Certain hymns belong entirel;.~' to female "'P.ishis", certain hymns are partly
chanted by them, and about a few hyrnns, there is some un<:ertaint1-*. In the
first group, we can certainly' include Vjshvavara and Apalaf To the second
group belong Loparnudra and Shashiyasl'~--to mention onlv two examples. In
the third group--'to take one example--fulls the hymn of Ghosha, a leper maiden,
who is believed to have been cured of the disease by the divine physicians and
composed hymns in their honour."-13' -

In another Vedie h;,-'Inn, Val: {Speech personiﬁed) is described as a
"Queen of Gods'''." She is said to be the daughter of the sage Ambhrina. Val:
is the "svord", the ﬁrst creation and representative of the spirit, and the means
of communication between men and Gods."

-She describes one of her qualities in these inspiring words"'--~

'*3. I am the Queen, the gatherer-up of treasures, most thoughtful. ﬁrst of.

those who merit worship.
Thus Gods have established toe in man}; places with many homes to enter
and abide in.

57 'Rig Veda. X. 3.5, Verses 10-11., H. H. Wilson ['Ed.], Rig Veda. (192.3), Vol, 6, page
9Brih. Up, VI. 4, 2?.
"Altekar, Position of Woman in Hindu Civilization, Chapter on Childhood and edu-

cation.

"Padrnini Sen-Gupta, The Story of Women of India [l9?4), page 42.

iﬁhaknntala -Rae Sastri, Women in the Vedic Age, pages 2.5, 26

'Rig Veda V, 28, and VII. 9.1-

'Rig Veda, Book VIII, Hvrnn SD. _

5Rig Veda I, 179, 1 and 2., and Rig Veda V, 62., 5-3.

'Rig Veda, V, 39, X, 1-I-_.n-nns 39-40.

1|[For an exhaustive list see R. K.. Mookarji, Ancient Indian Education (Macmillan

1951}, page 51.

"Rig Veda, Book VIII, Hymn S9, Verse 10 :. Ralph Griﬁith, Hymns of the Veda [Chow-
lchamba Sanskrit Studies Series No. X}-CX'\",l (1963). Vol. II, p, 25!. _

W-Ralph G1-ifhth, I-I3-'mos of the Veda [Chen-khamba Sanskrit Studies Series, No. XXXVI.
(1963), Vol. II, p. Sil, footnote.

13Rie Veda. Book X. Hymn 125, Verses 3 and 4; Ralph Griffith, Hymns of the Rig-
Veda [Chant-khamba Sanskrit Studies Series, No. XXXVI, {I963}, Vol. 11, page 571.

3--~1 L.-'1D_I"l'ﬁ

14 Married Women's Property A ct, l874
(Chapter 3.---Wm:-2en's Position in India--Brief H istoricai Review.)

4. Through me alone all eat the food that feeds them,-each man who
sees, breathes, hears the word outspoken.

They know it, but yet they dwell beside me. Hear. one and all, the truth
as I declare it."

3.8.4.. From one of the inscriptions in the Bharhut sculptures (2nd century-
B.C.],1 it would appear that some of the pupils of an ascetic were rishis.'

IV. THE POST-VEDIC PERIOD

56001161 neriocI-- 3.9. The second period shows no radical deterioration in the position of

(1500 B-0 *0 500 women. Down to about 500 no, the custom of Sati and Child Marriage did -

B.C.. _
) not exist to embitter the lot of the woman. She wa.s properly educated, and

given the same religious privileges as man. She could have a voice _in the" settle-
ment of her marriage, and occupy an honoured position in the household. She
could move freely in family and society, and take an intelligent part in public
aﬁairs. It was possible for her to take to a career, if urged by an inclination or
a necessity? In fact. there is contemporary evidence of the careers pursued by
, women, to which we shall refer later.' -

Women of higher castes were indispensable partners of their husbands in
the yajna.5 Women co-uld hold property, and widows could remarry. The age
of the Upanishads produced. philosophers like Gargi who challenged the invincible
Yajnavalkya in debate, and Maitreyi who spurned ,.wealth because it would not
give her immortal light (a1nrta).5

3.10. The Upanishads, it may be noted, present the highest point reached in
Indian metaphysics. Although dilferently worded, the principal strands of-
thought, in their essence, remain the same in all these works. They voice the
inner visualisation of the ever--e-xistent unity between the universal principle and
the phenomena, even though the embarrassing multitude of all individual experi-
ence may dim the vision of that unity.

One of the noblest prayers in the literature of the world occurs in one
of the Upanishads---the prayer which implores the universal spirit to take one
from darkness to light," from untruth to truth, and from mortality to immortality.

Great questions are raised in these debates, and the answers given are t
simple: Yet, the dialogue never loses its sublime quality.

We are referring to this aspect to show that a married woman not pos-
sessing an extraordinary intellectual capacity--or, for that matter, any person of
ordinary intellectual status---could not have participated in the discussions.

Social status. 3.11. to 3.13. No doubt, some deterioration in the social .rraz'us.of women did
take place in the second period. But, still, the position of Indian women com-
pared favourably with women in other countries. In fact, while, in the ﬁrst

1R. K. Mukerjee, Ancient Indian Education, (Macmillan 1951}, plate No. 1, facing
page 63 (Hermitages in Bharhut sculptures).

2Ca.mningham's view, referred to by R. K. Mukherjee. ' _ . ,
3Altekar, Position of Women in Hindu Civilization (I956). Page 343.

4'-See para 3.11, infra.
'Gazetteer of India (1973). Vol. 2. Page 147-

'Brihad 1, 323.

Married Wamerfs Property Act'. IST4
(Chapter 3.------Women',s' Position in l'ndiat--Brief Historical Review.)

period, women had certain disabilities regarding property. in the second period
the position improved in this regard, at least as regards marriage gifts of movable

property}

V. THE AGE OF THE DI-IARMA SUTRAS. EPICS, ETC.

3.14." In the third period, which" was the age of the Dharmasutras, the Epics
and the early Smritis, the position of women deteriorated to some extent. This

is attributed by Altekai-i to the practice of inter-marriage with the local (non-
Aryan) races. He says-

"The introduction of the non-Aryan wife into the Aryan household is the
key to the gerferal deterioration of the position of "women that gradually
irnperceptibility started at about 1000 BC. and became quite marked in
about 100 years. This was because of the fact that the non-Aryan wife.

with her ignorance of the Sanskrit language and Hindu religion. obviously'

did not enjoy the same privilege in religion as the Aryan wife. Evidently,
the whole class out women was declared ineligible _for study and religious
duties."

It was during this period that marriage was substituted for "initiatiou"l
in the case of girls. ' '

3.15. But, even during this period, one comes across sayings not implying the

subordination of women and pointing to a more enlightened opinion.' In the
Mahabharata, for example, a unique place is assigned to Saraswati, who is des-
cribed as "Mother of the Vedas"."

3.16. In fact, the situation in India seems to' have been better than what it was
elsewhere. It may be 'noted that the Roman law regarded the wife as the
"daughter" of her husband. as far as her juridical status was concerned: for a
long time the wife could not sign a will, make a contract or become a witness"
under Roman law. '

This 'property' in women, sons and slaves is said to have been familiar
to the ancient Greeks and Romans.'

"Community" of wives was known to the Greeksi.

3.17. In India, the deterioration in the position of women is perceptible in the
Gupta age (320-540 A.D.). The Svayamvara (choice of the groom by' the bride
after a contest of valour) and the Gandharva [form of marriage, fell into compa-
rative disuse during this period. The re-rnairriage of widows was coming into a

disfavour, though not absolutely forbidden." In general, there was a decline in

the social status of women.

1Ra.dha Kumud Mookerji, "Women in Ancient India" in Baig (Ed), Women of India
(1958), pages 1. 5-

"Altekar, Position
Prospect {Ci1aP- 12-}-

3For "Initiation", see Para 3.7, supra.

'Cambridge History of India, Vol. 1, page 261.

'Mahabharata. Shanti Parva, 12.920.

"Altekar. Position of Women in Hindu Civilization, (1956), page 331.

"Pluta.1'ch's Lives (45 A.D.----125 A.D.)---Lycurgus {Ward Lo-ck), page 35. Catp the
younggr, pages 538, 539; contra, Aristotle, Politics, 11, Ch. 2; Hist, Animals, IX-i. all re-
ferred to by Gour, Hindu Code (1938), page 8, para 1?.

Eﬂerudotug IV 104; Plato's Republic (Couford Ed), page 152, foot-notc_ .

9R_ C, M-ajumdar_ {Ed.) History and Culture of the Indian People, Vol. 3 (Tre Classi-

cal Age). page 567-

of Women in Hindu Civilization (1956), Chapter on Retrospect, and

' Thind period---
(500 B.C. to 500
A.D.). -
Subordination of
women not ap-
proved in some
sayings.

Position in Roma
and other coun-
tries.

Gupta age.

Literary pursuits. -

Married Womeifs Property VACF, 1374
1' Chapter 3.--Women's Position in India--Br:'ef Historical Review. J

Even so, there are many instances of W0l11E:Il acquiring exceptional pro-
ﬁciency in sciences and letters. The names of Lilayati and Khana, legendary
masters of arithmetic and astronomy, may be noted in this context. There was.
as yet, no purda _or seclusion.'--except for ladies of the Royal families, and that
too not so strictly observed as in later times.

In Kalidasfs famous drama, the heroine Sakuntala appears at the Royal
court with a veil, but unveils herself when pressed to prove her identity." In
I-larshaeharita", princess Rajyasri wears a veil of red sill-L when seen by the
bridegroom.

But these were women of higher classes, The silence of Hiuen Tsang and
I-tsing,' as to the seclusion of women, indicates that there'was no such general
practice, because such a peculiar custom would surely have been noticed by
them.

'l"wo classes of women-5 students are mentioned in the literature of the
times: Brahi-nairzavadir-n' or life long students of sacred texts, and Sadyodvaha
who prosecuted their studies till their marriagewalso called sadyo---Vadhu.°

3.l7A. The literary pursuits of women during this period could be gathered
from several sources. The great grammarian, Paninif in his work named Ashta-

dhyayi." cites illustrations of his grammatical rules which show how women were. i

like men, going in for regular Vedic studies.

Thus. the formation "Kathi"' means a female student of the katha sakha
of the Veda in that particular rcscension. Similarly, the term "bahurichi" means
a female student who is well versed in many hymns, i.e. of the R.igvr'da.°

Learned ladies of those days naturally functioned as teachers.

Katyayana." in his Varttilca" (connnentary) refers to women teachers who
were called Upadhyaya, or Upadhyayi, as distinguished from Upadhyayanis, i.c.
wives of teachers. The necessity of coining a new term shows that the women
teachers were large in number. Patanjali also refers to' a special designation for
the Women scholars who made a special study of Mimamsa philosophy."

1R. C. Majumdar, (Ed) History and Culture of the Indian People, Vol. 3 {The Classi-
cal Agc), page 569 and Vol. 2, page 575

Esakuntala, Act V.

51-Iarshacharita JV. ' .
'=Majun:u;[ar {Ed.). History and Culture of the Indian People, Vol, 3. (The Classical
Age), page 569. I
5R_ c_ Majundar (Ed), History and Culture of the Indian People (The Age of Impe-
rial Unity), Vol. 2, page 563.
rR_ K_ Mgokerjee, Ancient Indian Education (Macmillan 1951), 208 and 51.

7Panini's period falls somewhere between 600 B.C. and 300 B.C., Kane, History of
Hindu Dharmashastras, Vol. 2, page xi 0600-300 B.C.); R. G. Bhandarkar, Ioumal of the
Bombay Branch of the Royal Asiatic Society, Vol. 16. page 340 (5th Century B.C.); Keith.
I-Iistory of Sanskrit literature, page 425. (5th Century B.C.}.

5Panini IV. 1.63. '

9Radha Kumud Mookerji, "Women in Ancient India", in Baig (Bi), Women of India
H953), pages I, 6.

1'»Katyayana's period was roughly 2.00 B.C.

"Katyayana on IV. I_, 48: Radha Kumud Mookerji,
Baig (Ed) Women of India, (1953). page?» 165- _

"R, C, Majumdar, History and Culture -of the Indian People. [The Age of Imperial
Unity), Vol. 2, page 563. -

"Women in Ancient India" in

fl/ferried Womeifs Property Act, 1874
(Chapter 3.--Women's Position in India-----Brief Historical Review.)

3.1713. Apart from literary pursuits, military pursuits also seem to have been
open to women. For exampl'e, the great grarnrnarian, Patanjali, in his Maha-
bhashya,' uses the formation "saktiki'" to indicate a female bearer of a spear." _

It may be noted that there is a sculpture at Bharhut of about the End cen-
tury B.C. which represents a woman carrying a stamlardon horse-back as belong-
ing to the vanguard of the cavalry?

We also hear oi the Amazonian bodyguard of armed women employed
by the Emperor Chandragupta Maurya, in his place, as described by Megas--
thenesf the Greek Ambassador to his Court. Similarly, Kautilyaf' in his Amha-
sastra, refers to women soldiers armed with bows and arrows [striganaih dhan-
vibhih).

3.17C. It would appear that the lowering of the age of marriage during this
period affected the general education and culture of women in an adverse way?
But the ﬁnal stage in this downward movement was not reached during the period
under review. The period upto 320 AD. was rather a transitional period. and
we really ﬁnd two entirely diﬂerent pictures of women, reﬂected in the literary

works?

3.18. Curiously, in the third period, the position of women in India improved
in the sphere of proprietary righ:s~»e.g., the increased recognition in Katyayana*
of the women's right to her property. '

\{'I. THE AGE Of THE LATER SMRITIS

3.19. In the fourth periodvwhich is the age of the later Smritis, Commentators
and Digest writers,--the position of woman further deteriorated in the social
sphere. Permission for child widows to re-marry became obsolete in this period.
The practice of Sati also gained ground.

3.20. The only sphere in which the position of women improved in this age
was the one of proprietary rights. The right of the widow to inherit the share
of her husband came to be eventually recognised all over the country by c. 1200
AD. In Bengal, the position was further improved by coneeding her this right
even when her husband had not separated from the joint family at the time of
his death. The scope of Stridhana was further extended by the Mitakshara
school, by including in it property acquired even by inheritance and' partition.
How far this position survived, will be discussed later'. The widow's estate con-
tinued to be a limited one, but in some parts of South India she was allowed to
gift it away for religious purposes without the consent of the reversioners.

1Patanjali on IV'. 1, 15(6).

2Radha Kumud Mookerji, "Women in Ancient India" in Baig (Ed.) Women of India
(1958), pages 1, 6.

"Me Crindle, Megasthenes, page 72.

'Kautilya, guoted in Ratlha Kumud Mookerji, "Women in Ancient India" in Baig {E'sd.)
Women of India U958], pages 1, 6. K

5R, C. Majumdar [Editor}, History & Culture of the lndian People, Vol, 2, (The Age
of Imperial Unity), page 562.

"Katyayana, Verses 921-927; R. C. Majuindar, (ELL), History and Culture of the Indian
People {The Classical Age), Vol. 3, page 569. '

7Para 3.29 and 3.30, infra.

Military pursuits.

Lowering of
of marriage.

age

I1:npro_vement_ in
proprietary rights.

Fourth period.

Proprietary rights.

Social position _in
general during
fourth period.

Hindu women in
administranon.

Right of disposal.

Married Won:.e'n's Property Act, 1874
{Chapter 3.-------Women's Position in Imi'iai--Brief Historicai Review.)

3.23. Reverting to the social aspect, we may "state that although the social posi-
tion of women declined in this period, there were bright exceptions. Women
excelled in several pursuits. In the Mithila school. for example, there is a worlc
called Vivada Chandra (and also other treatises) by a woman Lakshmi 'Devi,
who wrote under the name of her nephew 'Misaru Mistra". It was written in the
18th century".

3.24. In the ﬁeld of administration, Hindu women produced some notable
ﬁgures during this period. There was Rudramba, the Kakateya queen*, of whom
Marco Polo (1254-1324 AD.) speaks. The Mahratta heroine Tarabai (ITOO-1707}
AD.) was the life and soul of Mahratta resistance during the last determined on
slaught of Aurangzeb'. The benign rule of Mangammal is still a green memory
in the South".

Mention must be made in this context of Ahalyabai I-Iolkaﬁ'. who was a
lady with great administrative genius.

VII. DEVELOPMENTS AS TO POWER OF DISPOSITION

3.25. At this stage, it may be convenient to recapitulate the developments in re-
gard to right of disposal of property. The Hindu wife's right of disposal of pro-
perty seems to have undergone several vicissitudes in the course of history. Vedic
literature is silent as to whether the wife could dispose of the property without
her husband's permission. During secular developments in course of time, the
question duly received the attention of jurists. In the beginning, the Smriti
writers' were not prepared to invest the woman with full powers, and would
insist on the husbands sanction but in courge of time the iniquity of this posi-
tion was realised. and they later divided the property into two categories--Sauda-
yika and A-Saudayika. The ﬁI'St category of property included gifts given at
the time of marriage by relations out of affection; such property was under the
complete control of the women.

Property in the second category,--4hough technically it was the property
of the woman--coulcl not be alienated by her, though she could enjoy the

property.

It may be that the restriction in the case of the second category was link-
ed with the joint family concept, since it was not in the interest of the joint family
to allow the co-parcener to fritter away its resources by allowing the husband to
make an unconditional gift to his wife---the gifts in the second category property
would he usually of the family property.

IMQ1-ley, Administration of Justice in British India, page 225.

tcambriclge History of India, Vol. 1, page 261.

11%. 1:11.. Panikkar, "The Middle Period" in Baig (Ed) Women of India (1958), pages 9,
M. Panikkar. "The Middle Period" in Baig sea.) Women of 'India (1953), pages 9,
'if.' Panikkar. "The Middle Period" in Baig {Ed.) Women of India (liidh). pages 9.
Fig.' Panikkar, "The Middle Period" in Eaig (End) Women of India (1953), pages 9.
10, l .

Tlvianu, 9, 2.99.

Married Womerfs Property Act, 1874
(Cimp.*£.'r 3.----Women's Position in Indio--Brief Historical Review.)

3-25. While, as already statedl. Ved-ic literature is silent about the scope of
stridhana, Mann gives a comprehensive enumeration comprising 6 varieties". and

he even says that those who would deprive the woman of his property, particu-

larly, ornaments and costly clothes, after the husband's death, would be com-
mitting a great sin. '

I
"St:-idhana" did not include the gifts given by non-relatives subsequent to
marriage and wages earned by the wife for her",--apparently, it was felt that such
property or earning should be utilized in assisting the husband to shoulder the
burden of the family'.

From the 7th century A.D., there was a tendency to enlarge the scope of
sm'dham2--a tendency which is illustrated by the test of Devala which includes
maintenance allowance and accidental gains within stridhana. This tendency
culminated in the text of Vijnaneshvara, whose gloss on a text of Yajnavalkya
ampliﬁed the deﬁnition, and made it so comprehensive that it would include every
type of property in the possession of a woman. howsoever the property may have
have been acquired. We shall revert to this'1ater5.

VIII. THE BRITISH PERIOD

3.27. As regards the ﬁfth period (1801 to 1955 A.D.), we may note that the
Shastric law was still the main source of the rules on the subject. It is not neces-
sary to examine' the rules that were in force on various rights to property, nor
would it be practicable to deal with the position in every century. Some salient,
features relevant to this period can, however, be usefully stated---

(a) Strjdhana, was property of which the woman was the absolute owner.
The various schools differed in their interpretations of ancient texts as to exactly
what property constitutes srridhana, and also as to her-powers of alienation. But.
in general, the dominion of a woman over srridhana gave her substantial rights of
enjoyment and disposal. Examples of stnidhano are gifts and bequests of pro-
perty to a woman from her husband and her relations during maidenhood, cover-
t11re or widowhood, including gifts made to her at the nuptial ﬁreduring the

marriage ceremony or at the bridal procession; gifts by the husband as conso- T

lation when taking another wife; gifts of affection from her parents-in-law, and
so on.

(b) As regards her power to dispose of stridhana, a Woman had, as a
general rule, an absolute power during maidenhood and widowhood. During
marriage, her right of disposal depended on the character and source of her pro-
perty, and also on the school of Hindu law by which she was governed.

(c) Succession to stridhana was governed by special rules where the
woman had issue, then the ﬁrst in order of succession was the daughbe1'.--!1I1-
married daughters being preferred to married; the daughter's daughter; then the
daughter's son. Then the property passed to the son and the son's son. Succes-
sion to the .5-tridhana of a woman without issue depended on "the form of mar-
riage. It went to the husband if she was married in an approved form; other-
wise to her mother and father".

'Para 3.25, supra.

"Mann 9, 200.

Eliatyayana.

*Altekar, Position of Women in Hindu Civilization (1933), page 263.
5See para 3.29 and 3.30, infra.

ﬁﬁanerji, Marriage and Stridhana, U923), Lecture 9. page 4-00 ea'. sec.

Scope of Strid-
hana.

Fifth period (1301
to 1955 A.D.).

Property inherited
by women.

Limitations on
w_oma1_1'_s power of
disposition.

Yajnavalkya.

Benares school--
Mltakshara.

Married Women's Property Act, 1374
(Chapter 3.--l=Vomen's Prrsizfarz in. Imtia--Brief Historical Review.)

3.28. As_to property inherited by women. we may state that though earlier
writers like Baudhayana', declared the total incompetency of women for inherit-
ance on the ground of their deﬁciency of strength, the text of Manu which" deals
with the inheritance of the nearest Sapindas, has been interpreted by the com-
mentators as recognising the rights of the wife as a Sapindai, notwithstanding
Manu's declaration' to the contrary. There are also other passages to be found
in Manu, recognising the capacity of a woman to hold property'.

3.29. It may be stated that the texts of Yajnavalkya and Vishnu under which
the widow, the daughter, and other ientales are recognised as heirs, do not seem
to make any distinction between the estate taken by them and the estate taken by
male heirs who take under the same texts. One would, therefore, suppose that
so far as Smrili authority is concerned, there is, indeed, very little in it to sup-
port the Ifnzfred €.5':'{_'.'.€ of uscmten in inherited property.

3.29'A. Yajnawalkya, whose text on the deﬁnition of stridhana has been the sub-
ject of much discussion, declares' :

"What was given ("to a woman) by the father, the mother, the husband,
or a brother, or (received by her before the nuptial ﬁre, or presented to her
on her husbands marriage to another wife tadhivedanika}, and the rest is
denorninatc-:1 stridhana. So, that which -is given by kindred_ as well as
her fee and anything bestowed after marriage."

The highest authority in the Benares school is Mitakshara, which is also
universally respected throughout India*. The author. adopting the text of Yajnas
yalkya as the basis of his deﬁnition of stridhana, has the following commentary

on the ﬁrst sloka on the subject (II, 143) : a

"That which was given by the father, by the mother, by .the husband, or
by a brother; and that which was presented by the maternal uncles and
the rest, at the time of wedding, before the nuptial ﬁre; and a gift on a
second marriage or gratuity on account of supersession, as will be sub-
sequently explained in the text. 'To a woman whose husband marries a
second wife, let him give. & c., ' [and, as indicated] by the word adya (and
the rest), property obtained by inheritance, purchase, partition, acceptance.
finding; all this is stridhana according to Mann and the rest*."

Vijnaucswara then remarks: "The term stridhana (woman's property)
conforms in its import with its etymology, and is not technical: for. if the literal

5::

sense be admissible, a technical acceptation is improper.

1Baudhayana_. Prasna [1, Kanda ll, 27; Banerji, Marriage and Stridhana (1923), page
369.

2Manu, IX, 18?'.

"Mann VIII, 416.

itBancI-jj! Marriage and Stridhana (192.3), pages 369 and 373.

-'-P, S, Sivaswamy Iyer, Evolution of Hindu Moral Ideals (Kamla ]%tureS}: U115'-'31'?-ii?
of Calcutta U935), page 65. I _ '

"Yajnavalkya 11: 143, 144. The text in the original runs thus:-- '_

(and also

' h d.
hmutava am rea E fadhivedanilta

adhivedanika) for

and the rest].

"'Banerji, Marriage and Stridhana (1923), page 323.

ebqftakghara, Ch_ 1], sec. XI, 2. The translation is from Banerji, Marriage and Stri-

dhana (1923), page 323. '
glviitakshara Ch. II, section XI. 3.

Married Women's Propcrrry Act, 1834 21

(Chapter 3.~=« Women': Posiricm in frrcﬂa---Bri£f Historical' Review.)

3.3-0. The Mitalrshara thus includes all property belonging to a woman in the $313" in Mm"

_ term 'stridhana'. and it nowhere imposes any limitation as to her dominion over
it. There are restrictions and prohibitions upon her husband and any other kins:

__,mcn using her property, but none upon the woman herself. ltshould, further.
be stated that the Mitakshara, after referring to Manu's enumeration of Stridhana,
observes: .

"The enumeration of six sorts of wornerfs property by Manuiis intended
not as a restriction of greater number. but as a denial of less."

It is scarcely necessary to say that Vijnaneswarefs statement that stridhana
is not to be understood in a technical sense {Mitals, Chapter "II, section 11, S. 3)
was not a mere philological observation. "By laying down that proposition,
Vijnancswara and other great commentators, who Ifollowed him. succeeded in
eﬁecting a beneﬁcial change in the archaic Smriti law and placed women almost

11!

on a footing of equality with men as 1'egB.Ids.'the capacity to hold properly.

i This Vi-BW of the co-rnrnentator. at once just liberal and correct, was un-
fortunately rejected by the Privy Cohncil',

Mulla has the following comment':

"Lastly, we shall note how the Judicial Committee has, notwithstanding
repeated warnings given by it that the Courts of India should take the
Hindu law not from the Smritis, but from the commentaries brushed aside

15!

the whole of Vijnanes-wara's expansion not the word ' ya.

VIII. RECENT DEVELOPMENTS

3.31. Subsequent developments in the judicial and legislative field are matters of Sixth period.
recent history, and we need not set them out. We shall not therefore go into
details of the sixth period, marked, mainly, by the Hindu Succession Act, 1956.

3.32. However. before concluding this discussion as to the rights of Hindu
women, we may draw attention to the following observations of Sir Henry Maine', malts. cm 'mi.
.-on the nature and origin of 'stridhana':--- , '""""'

"The settled property of a married woman, incapable of alienation by her
husband, is well known to the Hindus under the name of 'Striclhana'. It
is certainly a remarkable fact that the institution seems to have been dove»
loped among the Hindus at a period relatively much earlier than among
the Romans. But instead of being matured and improved, as it was in
the Western Society, there is reason to think that in the East, under various
inﬂuences, which may partly be traced, it has gradually been reduced to
dimensions and importance tar inferior to those which at one time belong-
-ed to it." . _

'Scﬂemma v. Lutchmortn, {I898} r.r..s'.. 21 Marl. 10_Cr, ma.
'Bhagwandeen 1. Myne Ball' (186?) 11 M.I.A. 432.
'Mulls, I-Ilnrl-u Law, {[974}, page 168.

'Maitte,_Early' History of Institutions, pages 321-324 cited by Baneriee, Marriage and
Slridhana (1923), page 397.

4--1L.-KDJTG

Sir I-I. Maine's re- .

Examples
Greece.

MaI'r-fed Women's Property Act, 1874
(Chapter 3.--~ Women'; Positlion in Ind:'a--Briej Historical Review.)

IX. CHANGING SOCIAL CONDITIONS IN INDIA AND 'ELSEWHERE

3.33. Before we go to the next topic, it may be pertient to observe that social
conditions in any country do not remain static. This is as much true of any
other country as of India. Take Greece. for example. Women in the age of-~
Homer' occupied a much more honourable position in society than women in the
days of Periclesi. In Homer's Odyssey, the description of many of the female
characters" shows that a considerable amount of freedom was enjoyed by
women. -- -

. The divine ﬁgures depicted by Homer show this to a still larger extent
The goddess of Wisdom--Athene----is the most. prominent character in the Odys- .
sey*. being the one who guided the hero throughout. The Greek deity presiding
over justice was also a woman---Tl1ernis.' '

Although Greek society in the time of Homer was patriarchal, the Greek
woman, as described by Homer, was not a mere chattel. A good personal rela-
tionship between man and woman was highly valued,»as is 'obvious from the
blessing given by Odysseus (the hero of Odyssey), to Nausicaa, the daughter of
King Alcinous. .

The blessing was as follows5--'----

................... ..may the gods grant you your heart's desire; may they
give you a husband and a home. and the harmony that is so much to be ,
desired. since there is nothing noblcr or more admirable than when two
people who see eye to eye, keep house as man and wife. confounding their
enemies and delighting _their_ friends. as they themselves know better than
any one." .

3.34. In contrast, Pericles (492429 BC.) contemplated a rather modest role for
women, as is apparent from his saying: "Great is the glory of the woman Whose
name is not in the mouths of men for either good or evil-'1"

We may also contrast, with Homer, the later social background in which
Plato (423734? BC.) wrote the Republic.

Plato's own ideas as to the education of women,-----and generally as regards
social organisation--were, in many respects, ahead of his times. But the fact
that he. had to make a strong and impassioned plea for giving equality to women
leaves no doubt that the actual conditions were not very favourable to women.
In his concept of the ideal commonwealth', one suggestion which startled some
of his contemporaries was that men and women should have the same education
and the same pursuits'. e

'1Probably, 850 B.G., see Odyssey tlteaclers' En:-Lch:nent-Edition), Readefs Supplement,
page 1', and Encycl. Brit. Vol. 10, page 793, left hand.

9Roughly, 445-431 B.C.

"E.g., Nausicaa and Eurycleea (Nurse of _Odysseus),_ and Areta. For 'Nausicaa, see
Odyssey, Books I, III, V, VIII. For AreLa.(w1fe of Alcmons}, see Book VII.

iﬂdyssey, Book VI; Readers' Enrichment Edition, pages 58-66.
5E. V'. Rieu (Ed) Odyssey (Penguin Classics) (I973), Book VI, page 107,
"Cf. Reader's Enrichment Edition of Odyssey ('Washington Square Press). t 1966], page

82.
"'Encyclopaedia Britannica, Volume 7, EdLIcation--I-Iistory of, page 984, left 'hand.
3Ro_ughly, 429 BC. A

_ "As to the contemporary reactions, sec G. C. Field, Plato and His Contemporaries»
{I930}. ' v ' --

Married Womenis Property Act, 1874
{Chapter 3.--H;on:en's'Posi!r'on in Ind:'a--Br:'ef Historical .Review.,l

According to the Republicl, men and women are to receive the same edu-
cation and share equally in all public duties. At Athens, where women lived in
seclusion and took no part in politics, this proposal would be regarded as revo-
lutionary. _ V

' It is, in fact, the theme of one of the later comedies of Aristophanes-

Ecclesiazusae (Women in Parliament).

The quality of thought of Plato transcended the limits of time and place. .

and his major pronouncements as found in the Republic and in the Laws show
a scheme, rather than a survey of the factual conditions of his time.

Compare the speech of Ismcne in the Play "Antigone" where she says----

This is what she stated----
"0 think. Antigone,
we are women;
It is not for us to ﬁght against men'".

It could be inferred from what is quoted above--that a' certain amount
of special position of women, in contrast with the position of men, was a reality.

X. MUSLIM WOMEN

3.35. We have so far dealt with the position of Hindu women. 'As regards the
legal position of Muslim women, it is well recognised that a Muslim married
woman has generally the same power to do all jurisdic acts (i.e. acts recognised
_ by law as affecting rights and liabilities], as if she were not IlZlﬂ1'I'iCd.*EKOBPt,I of
course. in respect of matters in regard towhich the contract of marriage itself
alters her rights or liabilities. '

3.36. Islam recognised no equivalent of the "menus" of Roman law', nor did
it have any theory of merger of the personality of wife and husband.

3.37. The Muslini wife has, accordingly, power to dispose of her own property
_by_ gift, sale, or lease without the consent o-f her l1_usband5--to cite one example

'of her independent status.

Because of the non-recognition of the theory of unity in Muslim law. the
wife may be convicted of theft of her husband's property".

3.37:1. Ameer Ali, in his Spirit of Islam', notes that in the early centuries of
Islam. women continued to occupy as exalted a position as in modern society.
' He mentions the example of Zubaida, the wife of Harun. who played a cons-
picuous part in the history of the age. According to him. Humaida, Wife of
Faruk, a citizen of Maedina who was the sole guardian of her minor son R.abya-
R-Ray, educated her son to become one of "the most distinguished Jurisconsults

of the day.

. 'Plato Republic, Part II, Book IV, 445 B to 45? B; Cornfotd Ed. {I9-46), pages 141.
150, 151.
"Sophocles, Antigone. . - _
3Antigone, 45-127; Sophocles, The Theban Plats, (Penguin Classics). (1974 Reprint).
123. -- --

'Para 3.5, supra.

5Nic!Ihab}iai v. Isse-Khan Abdala Khan, (18:66) 2 Born. H.C.R. 297; 'I'yaleji Muslim
(1968) page 57 footnote 23. . '

5(a) Cf. Lain Kundal La! v. Mr. Mrtsharr'aﬁ, U936), 40 C.W.N. 1903 (RC);

(In) Luteefoonissa v. Syed Rajoor Rahman, {I367} 3 WR. 84; (Cal).

Igmeeq A11, Spirit of Islam {Chritophers London) (1953 Reprint), p. 254-255.'

Muslim women.

Exalted position
of women.-

Legal position as
to Muslim wo-
men.

' Muslim women in

Administration.

Articles 15-105 of
the Constitution.

'He says :

Married Womerfs Property Act, IS74
(Chapter 3.--Women's Position in Indz'a:--Brief H istorica! Review.)

Ameer Ali also mentions tl1e improvement effected _in the position of wo-
men by the Prophet which has been acknowledged by all unprejudiced writers.
the Teacher who -in an age when no country, no system, no
community gave any right to woman, maiden or married. mother or wife. who.
in a country where the birth of a daughter was considered a calamity, secured

'to the sex rights which are only unwillingly and under pressure being conceded

to thorn by the civilised nations in the twentieth century. deserves the gratitude

'of humanity. If hornammed had done nothing more, his claim to. he a bene-

factor of mankind would have been indisputable. Even under the laws as they
stand at present in the pages of the legists. the legal position of Moslem females
may be said to compare favourably with that of European women." .

3.38. The same writer' has summed up the legal position thus--

"An ante-nuptial settlement by the husband in favour of the wife is a
necessary condition. and on his failure to make a settlement the law pre-
sumes one in accordance with the social position of' the wife. A Moslem
marriage is a civil act. needing no priest, requiring no ceremonial. The
. contract of marriage gives the man no power over the woman's person,
beyond what'the law deﬁnes, and none whatever upon her goods and pro-
perty. Her rights as a mother do not depend for their recognition upon
the idiosyncrasies of individual judges. Her earnings acquired by her own
exertions cannot be wasted by a prodigal husband, nor can she be ill-
treated with impunity by one who is brutal. She acts. if sui juris, in all
matters which relate to herselfiand her property in her own individual
rights. without the intervention of husband or father. She can sue her
debtors in the open courts, without the necessity of joining a next friend.
or under cover of her husband's name. She continues to exercise. after

she" has passed from her father's house into her husband's home. all the '

rights which the law gives to men: All the privileges which belong to her'
as a woman and a wife are secured to her, not by the courtesies which_

. "come and go." but by the actual text in the book of law. Taken as a. ,
whole, her status is not more unfavourable than that of many European_
women. whilst in many respects she occupies a decidedly better position. '
Her comparatively backward condition is the result of a want of culture I
among the community generally, rather than of any special' feature in
the laws' of. the fathers."

3.33291. In the ﬁeld of administration, many Muslim women showed their excel-.
lence', like Rania Begum (1236-1239 AD.) and Chandbibi (16th century).
Chandbibi, it may be noted, appeared on the ramparts of the fort Otf i-Khmadnagar
dressed in male attire and put heart in the defenders of that town against the
prowess of Akbar in his battle against her '(I595-1596 A.D.). The participation
of Noor Johan in administration is well-known. \

- XI. CONSTITUTIONAL PROVISIONS _
3.39. The Constitution of India, in articles 15 and 16, makes a clean sweep of

-all discrimination against women on the ground of sex. .Article 15 is of particu-

lar importance, and provides as follows :--

' "15. (1) The State shall not discriminate against anycitizen on grounds
only of religion, race. caste, sex, place of birth or any of them.

'Ameer Ali. Spirit of Islam {Christophers London 1953), page 257.

2K. M. Panilgkar, "The Middle Period" in Baig (E11) 'Women of India (1953), D8835 9: _

10, 1.1. .

Mmﬁed Womeﬁs Property' Act, 18-74 25
(Chapter 3.-----liv"omen's Position in India--Brief Historical Review.)

(2) Nothing in this article shall prevevnt the State from making any spe-
cial provision for women and children." -

' This provision has been invoked more than once before the courts.

3.40. Recently. it was held' that though the State can make special provision ¢;as.:1aw_
for women, the State cannot discriminate against them only on the ground of sex.

On this ground. it was held 'that rules laying down that women cannot succeed

to any Brahmottar grant, discriminated between men and women only on the

ground of sex. "On the plain interpretation of the provision, it is hit by article

15 -and is void." .

XII. VIEWS OF GANDHIJI AND TAGORE

3.~I1.- We may. before closing this discussion, refer to the ideals cherished by

G es"-- ' - .
Gandhiji and Tagore. In a speech made as early as 1913, Gandhiji said"---- an ms we"

"Woman is the companion of man. gifted with equal mental capacities.
She has the right to participate in every rninutest detail in the activities
of man, and she has an equal right of freedom and liberty with him."

' 3.42. In 1929. Gandhiji again wrote in the "Young [ndia*"----

"I am uncompromising in the matte} of womerfs rights. In my opinion.
'she should labour under no legal disability not suffered by man. I should
treat the daughters and sons on a footing of perfect equality".

3.43. At this stage, we may state that the position of women is e. reﬁection of Position of "W
the general social conditions in the country. This can be illustrated from Tago1'e'$ man a reflection
works. The heroines of Tagore--the important female characters of his novels, nﬁgggg' 5"'
short stories, dramas and poen:|s,--~--depi-ct the changing social pattern of India.

and. specially, Bengal. from 1375 to 194i. To quote the words of one author'.

"Tlrey represent the transformation of lndian society." i

If a detailed analysisis made of the economic. social. religious and poli-
tical background of the period covered by Tagoreb works, it will be apparent
how his heroines are the typical products of the period in which they were created
or are, in some cases. reﬂecting the diverse phases of rural and urban society
during the si:rt3.r-six years of his creative life. with profound understanding and
an insight both objective and critical, the great writer brings out, most eﬁectively,
the various stages of the emancipation of Indianiwomenl ﬁghting not only for
their own rights but also for those of down-trodden humanity.

This does not, of course. imply that the heroines oi Tagore are mere pro-
ducts of their age. The poefs transcendental touch makes them stand out as
universal ﬁgures, "that light that never was on sea or land." with which Tagore
touches them all, making them unforgettable and immortal.

1Bhm!rmax.h v..Smte. A.I.R. 1974 Oriesa 135, 139.

-"Gandhiji's speech at the Morarji Gokhale Hall--20th February, 1913, reprinted in
"To the Women". page 13-

3Gandln'ji in the "Young India", 17th October. 1929, reprinted in "To the Women",
page l2. '
' lﬁiman Behari Majurndar, Heroines of Tagore: A study in the trartsforlnation of
Indian Society, 1875-1941 (Firms K. 1.. Mulcopadhazrazf. Calcutta, 1968}.

'Verse in the Rig
Veda.

Views as to: de-
pendence.

Scheme of the
1874 Act.

Sections 1 to 4.

Mmttied Womenis Property Act, 'i3'i'4

(Chapter 3.----Wome'n's Po.s'itt'on in India»---B_rief Historical Review. Chapter 4.---
Scheme of the Act.) '

XIII. CONCLUSION

3.44. 'We "may close this Chapter by quoting what the Rig Veda has to say about
the position of the woman. __In a verse adoring the role of the wife, it says'?-

I \

aasjf as irsnifr
tﬁlliﬁ we mine 1
mnrgft as mitts'?
astﬁﬁ wtfgqg it

We need not quote literal translations of the text". The sentiments could

be thus expressed in English, on a very free rendering--'

May you. like an -Empress. rule the

household of your father-in-law:

may you, like an Empress. win the

admiration of your mother-in--1aw:

may you, like an Empress. win

the dove of your sister-in-law:

and may you, like an Empress, secure

the respect of your brothers-in-law.

3.45. We are not unaware that there are to be found. in some of _the Smritis.
texts which spoke of the subordination of women or which expressed views to
the eﬁect that women deserve dependence" or that women do not attain independ-

ence. In this conneetion, it is pointed out that, in those very smritis, there are'

also to he found texts which uphold the honour and respeat that is due to
women". Apart from that, it may he that. in the "course of time. the sentiments
regarding the proper status of women Went on ﬂuctuatiJ1g,----whioh accounts ior
the fact that views at both extremes are met with in the sacred texts.

Caarraa 4
SCHEME or The Act

4.1. We shall now examine_ in brief the scheme of the Married Women's Pro-
petty Act, 1874.

Sections 1 to- 3 deal with preliminary matters.

Section 4 deals with the wages and earnings of the wife. and corresponds

to section 1 of the Married Women's Property Act, 1870 (Eng.). '

1Rig Veda, Mandala I0, Hymn 85, Verse 4-6.

2(3) Ralph Grifﬁth, Hymns of the Rigveda (Chowkhmnba Sanskrit Studies, Series No.
35}, vol. _2, page 506, Mandal 10. Hrmn 35. verse 46. _
[b) H, H. Wilson, Translation of the ,Rig Veda, Volume VI. pages 152.46 (1923-Re-
_p1-int) published by H. R. Bhagat, Poona. through Ashtekar & Co.
3(a) Yajnavalkya, 1.35 ;'
-[b] Menu IX. 3;
(c) Baudhayana H-. 3.44.

'Vasishtha V. 3.
5Yajnavalltya 1.32.

Married Women's Property Act, 18?-4
(Chapter 4.----Sc}reme of the Act. Chapter 5.--Cognn1e Pro-visions_ in Other Acts.)

4.2. Section 5 declares that any married woman may effect a policy of insurance
on her own life, or on her husband's life on her own behalf. and that the amount
shall be her separate property. As the law stood then, if a wife effected such a
policy otherwise than out of_I1E-r separate estate and died in the husband's life
time, then the husband became the owner of the policy in 'the capacity of her
administrator. Hence the need for the provision.

Section 6, which we shall have occasion to consider in great detail',
broadly corresponds to the second paragraph of section 10 of the English Act

'of 18%'. It provides for at statutory trust in regard to a policy for .wife's beneﬁt,

but with an important difference, namely, that while the English Act mentioned
the trustee appointed by the Court of Chancery or the County Court, this section
mentions the ofﬁcial trustee under Act 17 of 1364. There are other differences
also between the Indian 'section and the English law, to which we shall revert
when we shall consider section 6 in detail. The section provides that an insur-
ance effected by her husband on his life and expressed to be for the beneﬁt of
the Wife or children or both, shall be deemed to be a trust for the beneﬁt of the
wife and the children, and shall not be subject to the claim of the creditors of
the husband, except where the transaction was intended to defraud the creditors.
But for the section, such an arrangement made by the husband would have
suffered from the weaknesses from which voluntary settlements suffered in

England.'

Section 7 deals with legal proceedings by married women, and broadly
corresponds to section 11 of the English "Act of 1370. .

Section s, in effect, declares that the law uses the liability of a wife for
her, post-nuptial debts is the same as was laid down in the decision of Justice

'Phcar' of the Calcutta High Court. That decision was binding only in Bengal.

while section 8 extends its authority throughout the territories to which the Act
extends. - I -

4.3. Section 9 provides for the non-liability of a husband for the debts incurred
by the wife before marriage. It corresponds to section 12 of the English Act of
1870. -

Section 10 deals with the husband's liability in certain miscellaneous
cases. ; E

This, in brief, is the scheme of the Act.

CHAPTER 5
COGNATE PROVISIONS IN O'I'I-{ER ACTS

I. SUCCESSION ACT
5.1. Having noted the scheme of the Act of 1374. we shall, in this Chapter. refer
to certain provisions contained in other Acts which have a begtring on the rights
of married Women in respect Of Pl'0]3'3l'tY- '

5.2. Of these provisions, the most important is contained in section 20 of the
Indian Succession Act, 1925 which replaced section 4 of the Indian Succession Act.
1355. It may be noted that this section really does not affect the law of succession,

'See discussion as to section 6, infra {Cl1aP¢¢1' 3}-
9I'ara 8.4 and 8.5, infra.
'Archer v, Vail'-tins. 3 Btmgal Law Reports 3'12.

Sections 5 to

Sections 9-} 0.

Introductory.

Section 20, Indian

Succession
-- 1925.

A91.

23'

Limited applica-

tion of section 20.

Section 21, Indian
Succession Act,
1925.

Sections 33-39. In-
surance Act, 1938.

Marri'ed Womert'S Property Act, 1374
(Chatpter 5.--Cogna!e Provisions in Other Acts.)

but relates to the immediate effect of marriage on property belonging to either of
the married persons} Where the restraint on alienation is created by a settlement
on the occasion of marriage, this section has no application.'

The section reads:

"E0. (1) No person shall, by marriage, acquire any interest in the property
of the person whom he or she marries or become incapable of doing any act
in respect of his or her own property which he or she could have done it
unmarried.

"{2} This section---

(a) shall not apply to any marriage contracted before the first day of January
1866 ;

(b) shall not apply, and shall be deemed never to have applied, to any mar-
riage one or both of the parties to which professed at the time of the
marriage the Hindu, Muhammadan, Buddhist, Sikh or Jain religion."

5.3. The section does not apply to marriages contracted before lst January, 1366.

Nor does it apply to any mairiage one or both of 'the parties to which profess, at
the time of the marriage, the Hindu, Mohammaden, Buddhist, Sikh or Jain religion.
The reason is that the Legislature did not consider it appropriate to deal with the
effect of marriage on property in the case of those communities as theywere not
governed by the English common law in matters concerning matrimonial status.

The principal effect of this section is to get rid of the principle. so far as pro-
perty is concerned, tbatthe husband and-wife are one person in law. An important
effect of the section is "that not only does a person not acquire any interest in the
property of the spouse by reason of marriage, but also marriage does not bring in
any incapacity for doing any act in respect of his or her property, which he or she
could have done if unmarried. The ﬁeld of property and proprietary capacity is.
therefore, almost totally covered by this section. '

5.4. Section 21 of the Indian Succession Act, 1925, corresponding to section 44
of the Act of 1865, deals with the effect of marriage between a person domiciled in
India and a person not so domiciled. The section is, in a sense, an addition to the
rule contained in section, 20 of the Indian Succession Act'. inasmuch as the applica-
bility of section 20 [previously section 4) in relation to the movable property of a
person not having an Indian domicile was in dispute for some time'. The eifect
o-t' section 21 is that where either of the parties had an Indian domicile and the
marriage takes place in India, the rights of the parties both as to movables and
irnmovables are, in respect of the matter dealt with by the section, governed by the
territorial law of India. As,Markby I. pointed out': "The fag gentium or common
law of nations has been set aside or modiﬁed"_to that extent. a

II. INSURANCE ACT

5.5. We may now refer tocertain provisions of the Insurance Act, 1938 which
deal with the question of assignment and nomination of life insurance policies------a

'subject also dealt with in section 6 of the Married Worncn's Property Act, 1874*.'

'Hit! V. Administrator General' 01' 393361» (1395) I-LR 23 CBL 505-
ipezgrs V. Manuk, 22 Weekly Report 175 tCal.].

"Para. 5.3, supra.
'Miller V. Administrator Gelrterat, (I374) l.L.R. I Cal. 412

5Chapter 8, infra.

lllaﬂrrrfed W0r.*2err'.i' Property Ad. 1374
{Chapter 5.---Cognafe Pro1'z'siorI.r in Other Acts.)

Be-[ore the enactment of the insurance Act, in 1933. the general rule was that a
person who had his name in the policy as the one to whom payment due under the
policy is to be made, did not have any rights under the policy. nicrely by reason
of his name being mentioned. and it was necessary for him to get a suceessioii certi-
ﬁcate-or letters of 3.dministratiou1. In general, assignment of the policy was govern-
ed only by section 130 of the Transfer of Property Act', as a transfer of actionable
claims, except where section 6 of the Married Woinen's Property Act, I8?-1 hecanie
operative. This position was changed by the Insurance, Act, 1938. Section 33 of
the Act deals, with the assignment and transfer of life insurance policies. Sub-
section {I} provides that a transfer or assignment of la policy of life insurance. whe-
ther with or without consideration, may oc made only by an endorsement upon the

policy itself or by separate instrument signed in either case by the transferor or by t

the assignor or his duly authorised agent and attested by at least one witness, speci-
ﬁcally setting forth the fact of transfer or assignment. 'In order that the transfer
or assignment may be complete and effectual as between the parties, this is enough.
But, in order that the tlransfcr or assignment may be complete and effectual against
the insurer, it is also necessary that written notice. of the transfer or assignment is
given and certain other formalities are complied with, as provided in section 33(2)

'of that Act.

Section 39 of the Insurance Act deals with nomination by the holder of a
policy of life insurance. Subsection (1) of that section, so far as is material, pro-
vides that the holder may, when effecting the policy or at any time before the
policy matures for payment, nominate the person or persons to whom the money
secured by the policy "shall be paid in the event of his death. The rest of the section
deals with certain formalities for nomination. the eﬁect of the nomination on an

" assignment or transfer under section 33 and other connected matters not material

for our purpose. In general, the nominee is nothing more than an agent to receive
the money, which money remains the property of the insured and at his disposal
during his lifetime and on his death forms part of the estate. For our purposes.
sub-section (7) of section 39 is important, and it reads as follows :--

"['3'} The provisions of this section shall not apply to any policy of life insur-
ance to which section 6 of the Mariiead Won1en's Property Act. 1874 applies
or has at any time applied:

Provided that where.a nomination made whether before or after the
commencement of the Insurance (Arne-ndment} Act, 1946, in favour of the
wife oil the person who has insured his life or of his wife and children or any
of them is expressed, whether or not onthe face of the policy, as being made
under this section, the said section 6 shall be deemed not to apply or not to
have applied to the policy." .

5.6. The combined eilect of section'39[7) and the proviso quoted above. is to
create a wall between a nomination under the Insurance Act and a trust under the
Married Women's Property Act.

The scheme is intended to avoid, as far" as possible, disputes arising as to
whether mg arrangement made in a particular case falls tinder the Insurance Act
or under the Married Women':: Property Act. Of course where til the arrangement

is in the form of a "nomit1atiori"", but (ii) it is not expressed as made under section

1A,I.R. 1935 Rangoon 21!. 212.
3A.I.R. _l955 Mad. 459, 4450.
5--1 LAD,«?$

Obiect of section
39(7).

313

Section 1Dr-Trans-
fer of Property
Act--Restrai_ut on
anticipation.

Posiﬁon in equity.

Married Women': Property Act. 1874
(Chapter 5.------CognaJ.'c Provisions in Other Acts.)

39 of the Insurance Act, such a. co-ntroversy can still arise. This situation copld
not be dealt with by a mandatory provision and the decision would. therefore, de-

pend on the circumstances of each case}

111'. TRANSFER OF PROPERTY ACT

5.7. The next important provision for our purpose is contained in section 10 of
the Transfer of Property Act. 1882, which deals with what is commonly known as
a "restraint on anticipation". The section reads as ;Eol1ows:~---

"ill, Where property is transferred subject to a condition or limitation abso-
lutely restraining the transferee or any person claiming under him trom part-
ing with or disposing pf his interest in the property. the condition or limita-
tion is void, except in the case of a lease where the condition is for the bene-
ﬁt of ﬁle lesser or those claiming under him:

Provided that property may be transferred to or for the beneﬁt of a
woman (not being a Hindu, Mubarnmadan or Budhist). so that she shall not
have power during her marriage to transfer or. charge the same or her bene-

ﬁcial interest therein."

The general rule is that conditions in a transfer of property which restrain
alienation are null and void. This is in the main paragraph of section 10. To
this, the proviso is an exception. It should be recalled that at common law, by
reason of the doctrine of unity, the wife could have no power of disposition over
her property for her separate beneﬁt, independently of her husband. Equity, how-
ever. allowed property to be given to trustees in trust for the wife separately. Pro-
perty so given to trustees for' the separate use of the wife could be dealt with by
11:; jn cquiry as if she were a fame sets, that is, as if she were unmarried.

5.3. But the wife could still be "morally intiuenced" by the husband to dispose
of her properties as he pleased. To avold the exercise of such an mﬂuence the
Courts of Equity allowed property which had been settled for the separate use of
woman to be so tied down for her own personal beneﬁt that she should

married
have no power during eoverture to "anticiwte" or assign her income. This is the

origin of the restraint on anticipation.
In Tulletr v. Armstrong'. Lord Langdale,M.R., in discussing the validity of
a clause in restraint of anticipation. observed as follows:

"The estate for separate use. as sanctioned by COINS GIT Eq11itl'- has its
peculiar existence only in the married state. It operates as a protection

to a .married woman, against the legal power. over the wife's property-

which is vested in her husband. It acts in contravention and control of
the legal right of the husband, and, as against his legal power. it is 3.
sufficient protection; but the power of alienation remaining in the 'wife.
the separate estate. unfettered. -is no protection against the moral inﬁn-
gnfg of the husband, and many instances have occurred and daily occur
in which the wife under the persuasion or -inﬂuence o-f "her husband, has
been and is induced to exercise his power of alienation in his favour or
for his beneﬁt, and thus defeat the protection in

11:" certain recommendations as to the
Chapter 15. infra-I

'See Taller: v. Armstrong. infra.

'Taller: v. Armsrrorna {I839} 49 R-1?» 330» 33]'

ﬁfmnc, Act, see pm 8.42, 3.53, 3.54

tended for her." -
an .

equity developed the restraint upon ant

Married Women': Property Act', 1874 7
(Chapter 5.--C0gnate Provisiortr in Other Acts.)

"But, as the separate estate itself owed its origin and support to the
Courts of Equity. it was understood, that the same Courts might so
modityi it, as to secure the protection which was intended; and accord-
ingly it was intimated by Lord Thurlovv that if a gift clearly expressed
that the separate estate should be incapable of assignment in anticipation
or of alienation. that intention should he 'carried into eiiect; and his
Lordship being "of that opinion, himself set the example in a case in which
he personally took an interest; and from that time, now nearly half' a
century ago, it has been usual to introduce into wills and settlements a
clause giving to women real and personal estate for their separate use,
independently of their husbands, without power of assignment, by way
of anticipation or of alienation; and such clauses. though their operation
has been considered to be, as undoubtedly. it is, anomalous and irrecon-
cilable with the ordinary legal rules affecting the limitations of estates,
and the legal incidents of property. have been repeatedly approved and
carried into effect by this Court and settlements and provisions for family
to a very great extent have been tframed in reliance upon them.

"itiind. in Jackson v. H0bh0HJ'€1. Lord Elden emphatically declared that
it was too late to contend against the validity of a clause in restraint of

anticipation."

5.9. The concept of a restraint on alienation was. thus, complementary to
that of the separate property of the married woman. Separate estate in equity
did much to mitigate the harshness of the common law rule. But there was
nothing to prevent a married woman from assigning her berzeficial interest to
her husband and thus vesting in him the interest which the separate use had
sought to keep out of_his hands, and the temptation presented to a_ grasping.
spend-thrift or insolvent husband was real. It was to 'circumvent this, that_
icipation.' This restraint could be imposed
only if property was tonveyed. devised or bequeathed to a woman's separate rise,
and. once it attached. it prevented her from anticipating and dealing with
any income until it actually fell due. A restraint- could be, and usually was,
attached to the corpus too. in which case the whole fund became completely in~

alien-able during coverture.

The restraint on anticipation was designed to protect not only the wife
but also the members of her family who would be entitled to the property on

her death.

5.10. A restraint on anticipation could even be attached to the separate pro-
rried woman. But, in this case. she could deal with the pro-
perty as if there were no restraint. and could also totally remove t11e'restrrrnt
by executing a deed poll to this effect. A woman to whose separate property
; restraint had been attached before or during coverture could do the same after
the marriage was terminated by her husband's death or bydivorce. But, in
the absence of any such deed. as soon as she married or remarried, the restraint
became operative as regards any property not alienated whilst she was a fame

role.

ljdckyon v. Hobhouse, (I81?) 2 Mer 483 ; 16 11.11. 200, 203.
:5" Hart, "The Origin of the Restraiht upon Anticipation", 40 L.Q.R. 221.

petty of an mama

.3'

Concept, of res-
traint complemen-
tary. .

Position regarding
unmarried woman.

Relaxation of the
rest.taint--Act of
1881.

Abolition of the
restraint--.-'lets of
1935 and 1949.

Provisions in the

!I'rvat; Act.

Right to speciﬁc

execution.

Right to transfer

of polielsion.

Right to transfer
of beneﬁcial 111"
terest.

Married Womerfs Property Act, 1374

(Chapter 5.-----CognaIe Provisions in Oriiér Acts.)

5.11. Whilst the restraint effectively kept the 'property out of the hands of the

husband and his creditors. it had one obvious drawback. There might be a
number of occasions on which it might be in- the wife's interest to deal - with
P1'0P€1'T}' Sﬂblﬁct t0 31 restraint. but nothing short of a private Act. of Parliament
could remove it. It was in order to overcome this diﬁiculty that the Convey---
ancing Act, 1881 gave the court in England power -to bind her interest in such
property. provided that this was for her beneﬁtl. But the court could render
only a speciﬁc disposition, binding: it had no general power to-remove the res-
traint attogerher. '

5.12. The restraint on anticipation was abolished for }the future by the Law
Reform etc. Act. 1935. However. the Act did not affect the validity of res-
traints already imposed. Since the preexisting restraint acted as undue fetters
on the wife's power of alienation unless the restraint was removable by the
order of-the court", there was some hardship in practice, particularly because
the restraint was not now needed by the wife for_ whose protection it was desig-
ned, nor was it needed by the members of her' family who would be entitled
to the property on_her death. Ultimately, by the Married 'Women's' (Restraints
upon Anticipation] Act. 1949. all restraints._whenever imposed upon anticipa-
tion. were removed.' '

Iv. raosrs ACT

5.13. So much as 'regards the history of the restraint on anticipation and the
developments in England relevant to the subject matter of proviso to section 10
of the Transfer of Property Act. Provisions relating to the restraint on' antici-
pation occur also in sections 56 and 53 of the Indian Trusts Act. 1882. In
View of our recommendation later in this Report to amend" section 10 of the
Transfer of Property Act, 1382', it is necessary to amend these two sections of
the Trusts Act? also. and welrecornrnend accordingly. The two sections. as

they now stand, are quoted below:

"56. The beneﬁciary is entitled to have the intention of the author of'

the trust speciﬁcally executed to the extent of the beneﬁciary's interest;

and. where there is only one beneﬁciary and he is competent to con-
tract, or where there are several beneﬁciaries and they are competent to

contract and all of one mind, he o-r they may require the trustee to trans- _

fer the trust-property to him or them, 'or to such person as he or they
may direct. _

When property has been transferred 'or bequeathed fo-ruthe beneﬁt
of a married woman. so that she shall not have power to deprive herself
of her beneﬁcial interest, nothing in the second clause of this section
applies to such property during her marriage." (Illustrations not quoted).

"S8. The beneﬁciary, if competent to contract. may transfer his interest.-
but subject to the law for the time being in force as to the circurnstances
and extent in and to which he may dispose of such interest." '

isegtgon 3-9_ Conveyancing Act, 183! replaced by section 7, Conveyancing Act. l9ll,
replaced by the Law of Property Act 1925. section 169. ,
" 9Section 169, Law of Property Aﬁt. 1915-

3Appendix 4. _ -
4See discussion as to section 10, Transfer of Property Act, 1382 (Chaptﬁf 15).

5Sections 56 and 58, Indian Trust Act. 1332-

Mamied Women's Property Act', 1374

(Chapter 5.--CognaIe Provisions in. Other Acts. Chapter 6.-----Exi'cr:t amt'

application of Act of 1874.}

"Provided that when property is transferred or bequeathed for the benefit
of a married woman, so that she shall no-t have power to deprive herself
of her beneﬁcial interest, nothing in this section shall authorise her to
transfer such interest during her marriage."

They will require suitable amendment, as already stated.

CHAPTER 6
EXTENT AND APPLICATION OF ACT OF 1874

6.1. We now discuss the Act of H 1874 in detail. Sections 1 and 2 of the Act

._ deal 'with the application and extent of the Act and other preliminary matters.

Of these, the only provision which requires consideration here is section 2,

second paragraph, which reads-- '

"But nothing herein contained applies to any married Woman, who. at

the time of. her marriage, professed the Hindu, Mohammedan, Buddhist,

Sikh or Jain religion, or whose husband. at the -time of such marriage,
_ professed any of those religions."

6.2. We would like to point out that this provision is too widelynexpressed.
inasmuch as. by virtue of section 6(2), section 6 of the Act applies to the persons
excluded by section 2, second paragraph, as -from the date mentioned in section
6(2) in that behalf. This is the position after the amendment of section 6 in
1959. If is. therefore, desirable that in the second paragraph of section 2. the
opening portion should be revised so as to read---

"But, except as otherwise provided by sub-section (2) of section 6,'ﬂ0I._FI-

ing herein contained applies. . . . .

We recommend that the second paragraph should be amended as above

T if the present structure is to be maintained.

6.3. The second paragraph of section 2, which we have almady quoted', ex-
cludes from the Act, cases where only one party is governed by the Act. Thus
where a spouse belongs to the excluded connnunity, the Act does not -apply
even' if the other spouse belongs to a community to- which it applies. For
example, a Christian wife marrying a Hindu would be excluded from the opera-
tion of the Act by virtue of this paragraph. The assumption seems to he that
the personal law wouldapply to the husband in such a case and that the Hindu
husband would not acquire C0lI1JIlO11 law-rights merely by marrying a Christian
Woman.

On the above hypothesis, the English commontlaw does not apply and
there is no need to apply the 1374 Act to such a situation. Moreover, section

. 20, Indian Succession Act would be attracted by virtue of_ the 'speciﬁc provision

in the Special Marriage Act?, which enacts that 'if the parties marry under the
Special Marriage Act, the Indian Succession Act will apply. We do not think
that there is any need to change the position in this respect.

'Para. 6.1, supra.
'Section 21, Special Marriage Act, 1954.

Sections l and 2--
Extent and appli-
cation. '

Recommendations
to amend section
2

Second paragraph.

Case of intermar-
riage where one
party is governed
by the Act.

Section 2, third

paragraph.

'Section 4.

Separate property
-----History of.

Act of 1935.

Married Women': Property Act. 18%

and Application of Act of 1374. Chapter 7.--Marrt'ed
Womerrs Wages and Earnings.)

(Chapter 6.--Exten.r

6.4. We notice that in section 2, the third paragraph gives a wide power to
the State Goverﬁment to grant exemption from the provisions of the Act to
certain sections of the community both prospectively and retrospectively. It
appears that in so far as these communities are 'concerned, because of their
peculiar customs and habits. it may not be advisable to extend the whole or
some part of the Act to them, and it will also appear that where exemption
not already been granted,-it may be discovered later that if the__ operation of the
Act in respect of these communities is not modiﬁed with retrospective effect.
some hardship may arise. Apparently, having regard to these reasons, the legis-
laturelhas given the wide power mentioned above. In the absence of any con-
troversy or objections in this regard, we do not think it proper to disturb it.

CHAPTER ':'_
MARRIED WOMEN'S WAGES AND EARNINGS

7.1. "Section 4- deals with the wages and earnings of married women and is
in these terms:

"4. Married womenis comings to be their separate properry.--The wages
ahd earnings of any married woman acquired or gained by her after the
-passing of this Act. in any employment, occupation or trade carried on
by her and not by her husband, -- '

and also any money or other property so acquired by her through the
exercise of any literary. artistic or scientiﬁc skill.

and all savings from and investments of such wages, earnings and pro-
perty. shall be deemed to be her separate property, and her receipts alone
shall be good discharges for such wages, earnings and property."

7.2. It may be noted that the section uses the expression "separate property".

which has now been abolished in England'. The expression has a history. In
England. by the end of the 16th century". it was established that if property was-

convcyed to trustees to the separate use of a married woman,.thcn the married
woman retained in,equity the same right of holding and disposing of it as if
she were a frame sole. She could. therefore. dispose of it during her life or by
willlilce any other beneﬁciary of full age who was absolutely entitled. and, like.
such beneﬁciary, she could call upon the trustees to convey the legal estate.

Only if she died intestate in respect of her "separate estate" did the husband-
obtain an interest in her equitable property which he would have got had it not-

bcen sett|ecI'to her" separate use. This is the origin of the concept 0 "separate
property". '

7 .3.

in Englanda, the legislature, in 1935, recognised the reality and abolished the

concept of separate estate, and gave to the wife the same rights and powcrs as'
d by other adults of full capacity. We have discussed the

were already possesse _
history of English legislation in an earlier Chapter'.

11'-'am 7.3, infra. ,
9Ho1rlsworth, History of English Law. Vol. 5. PQEES 310315-
'Law Reform (Married Women and Tort-teasers} Act. 1935.

'Chapter 2, supra.

This concept has become out-of-date in modern times. and that is why,:

' '-'expressed on the face of it to he so effec

Married Women': Property Act, 1874

(Chapter 7.----Mn:m'ed Won-wn's Wages and Earnings. Chapter 8.--Insuraace by
Wftres and Husbands.)

7.4. The expression 'separate property' in section 4 is unnecessary at the pre-
sent day, since now there is no "joint"' property by law from which "separate"
property may need to be distinguished. The word "separate" should. therefore.
be removed. and we recommend accordingly.

Cannes 3

INSURANCE BY -WIVES AND HUSBANDS
I. INTRODUCTORY I

In this chapter. we propose to deal with the provisions of the Act relat-
ing to insurance by wives and husbands, contained in sections 5 and 6. Section
6 is of considerable practical importance as it applies to persons of all commu-
nities and has raised numerous questions of interpretation and application.

II. __SECT ION 5

8.2. Section 5 reads-----

":3. Any married woman may elfect a policy of insurance on her own
behalf and independently of her husband; and the same and all beneﬁt
-thereof, if expressed on the face of it to be so effected, shall ensure as
her separate property,'and the contract evidenced by such policy shall be
as valid as if made with an unmarried woman."

8.3. We have already explained the signiﬁcance of the section' and how it
modiﬁes the rules previously prevalent We are of the view that in this section,
the word "separate" is unnecessary.'

We are also of the yiew' that 'the requirement that the policy should be
", should be deleted as unnecessary:
if the section is retained in its present form. '

We recommend that the sectionshould be so revised.

III. SECTION 5
GENERAL

3,4. We now come to section 6, which reads---

"6. Insurance by husband for benefit of wife.---{1} A policy of insurance
effected by any married man on his own life, and expressed on the face of
it to be for the beneﬁt of his wife, or of his wife and children, or any of
them, shall enure and be deemed to be a trjust-for the beneﬁt of his wife,
or of his wife and children, or any of them, according to the interest so
expressed, and shall not, so long as any object of the trust remains. be
subject to the control of the husband. or to his creditors, or form part
of his estate. \ "

1Para 4.2. supra.
'See also Chapmr 14, infra.
isee ants Clnnzrter J4. I'n)'r.a- ;-

[33

Recommendation
to amend s. 4 by
rmnoving the word
"separate".

Introductory.

Section 5.

Ebction 6.

Section 6-----Origin.

Married Warner!'-.9' Property Act. 1374
(Chapter 8.--h1s'urance by Wives and Hu.sbw1d5.l

"When the sumsecured by the policy becomes payable, it shall, unless
special trustees are duly appointed to receive and hold the same, be paid
to the official Trustee of the State in which the ofﬁce at which the insur-
ance was elfcct-ed is situate, and shall be received and held by him upon
t.he trusts expressed in the policy, or such of them as are thenexisting.

"And in reference to such sum he shall stand in the same position in all

respects as if he had been duly appointed trustee thereof by a High Court.-

under'Act No. XVII or 1354 (to constitute an office of Otﬁcial Trustee),
section 10. '

"Nothing herein contained shall operate to destroy or impede
right of any creditor to be paid out of the proceeds of any policy of
assurance which may have been effected with intent to defraud creditors.

"{2} Notwithstanding anything contained in section 2, the provisions of
sub-section (1) shall apply in the case of policy "of -insurance such as is
referred to therein which is eifectedm '

(a) by any Hindu, Muhammadan. Sikh or Iainﬁ
(i) in Madras, after the tl1irty--ﬁrst day of December, 1913. or
{ii} in any other territory to which this Act extended immediately
before -the commencement of the Married Won1en's Property
(Extension) Act, 1959, after the ﬁrst day of April, A/1923, or
(iii) in any territory to which this Act extends on and from the com-
rnencctnent of the Married Women'.-3 Property (Extension) Act,
1959 : -

Provided that nothing herein contained shall aﬁect any right or 1iabi~
lity which has accrued orbcen incurred under any decree of a competent
court passed-- ' ,

(1) before the first day of April, 1923, in any case to which sub-clause (i) _

or sub-clause (ii) of clause (a) applies; or __

(ii) before the commencement of the Married Women's Property (Exten-
sion) Act, 1959, in any case to which sub-clause (iii) of clause (3.)
or clause (b) applies." --

8.5. This is the most important section of the Act, and a policy of insurance
by the husband for the beneﬁt of the wife or children, carries certain ifnportant
CUIISCQUCDCCS
that in the absence of such a pnovision, the transaction would be considered a.
"voluntary settlement" on the lines of the position in English law as, unmodiﬁed

by statute'.

According to the old doctrine of the English_Courts, such a policy, by
the husband -for the wite's beneﬁt, would only be in the nature of a voluntary
settlement,'-a and hence would be liable to the dangers to which such settle-

ments are exposed. It is weliknown that the legislature wanted to encourage

those life insurance policies which made provisions for wife and children and'~

not to subject such policies to the dangers to which they were subjected under
the English decisions, Judges of the English Courts being bound down by tech-
anicaljﬁcg and precedents; In introducing the Bill, Mr. Ho-bhouse said:" "Some

1For statutory provision see para 8.7, infra.
1--a_. Para 8.6. infra. v
25;; gggrrg supptemcnt oi Zml August, 1373 or the Gazette of India.

the _

This provision was considered necessary because it was thought -

Married I-l'omei'1's Property Act, 1374 I 37
[Chapter 8.--»fnsaraace by Wives and Husbands.)

gentlemen connected with Insurance Oﬂiccs in th-is country appealed to the
Government a short "time ago stating-that those provisions," [i.e., the provisions
of the English statute which over--ruled the English decisions), "were found
exceedingly beneﬁcial and they did not see why they should not be applied to
India. We now propose, therefore, to introduce an Act which will embody
for India the same provisio-us as those which had been thought fit for the 'people
of Englan ." ' .

8.6. As regards voluntary setl:letncnts,--that: is to say, settlements made with- vomma,-Y semc-

- out consideration_.,--there were certain special rules in equity. In the ﬁrst place, "ﬁlm-

Wherc the trust is not completely constituted by reason of the ineﬁectual me-
thod of its creation, the maxim that equity' will not assist a volunteer applied.
Apart from the fact that speciﬁc performance would not be allowed in favour

' of volunteers, there was the other aspect, namely, that under a statute' of 1571,

"fa voluntary settlement could be set aside even if the beneﬁciaries were entirely
ignorant of the settler's intent to defraud the creditors? The Act of 1571 was,
in England, later replaced by section 122 of the Law of Property Act, 1925. In
addition, a voluntary disposition of land, made with intentto defraud a sub.re~
qugnt purchaser is voidable at the instance of that purchaser; this was provided
in England, by an Act of 1585.' r

Again, under the Bankruptcy law,' a voluntary settlement mayfin certain
cases, be avoided on the subsequent bankruptcy of the settler. even if it is not
fraudulent.-'

Section -6 was intended to avoid all thesecomplications. Before discus-
sing it in detail, it 'will be convenient to note the English Statutory provision
011 the subject._ ' -

" IV. ENGLISH LAW

8.7. In England, undersection ll of the Married Women's Property Act, 1332 Section 11, _ Mat-
{Eng.),° a policy of assurance effected by an}; man on his own life and expressed gﬁywﬁngn' Pm'
to be "for the beneﬁt of" his wife and children or any of them [and similarly
by a woman for her husband and children). creates a trust in favour of the
"objects". Certain propositions emerge from the case law relating to this
section. '
(a) So long as any "object of the trust" remains unpenformed, the policy
moneys do not form part of the estate of the insured.' They are not
subject to his (or her) debts, except where the policy was eﬁected
and premiums paid With intent to defraud c1'editors,.in which case
the creditors will be entitled to a sum out of the policy moneys equal
to the premiums so paid. _ '
(b) -The section has been liberally construed, so as to include (i) endow-
ment' policies, and (ii) accident insurance policies."

:13 Eiiz. 1, Ch. 5 {I571}.
'Snell, Equity (1966). page 141.
'27 Eliz. 1, Chapter 4, later replaced by 1'J'3{l'}, Law of Property Act, 1925.
'Now section 42, Bankruptcy Act, 1914 (Eng).

"Re Macadam. (1950) 1 All Eng. Reports 303.

"See Appendix 3 for the text.

7R9 CI'r2y's Poficy of Assurance. (1937) 2 All ER. 5-1-3,

'tel Re Laartmtdrrs Policy Trusts, (1925) Clh 403:

(17) Re Flccm-'pod': Policy, 1' I926) Q13, 43.

'Re Glrrditz. (1937) Ch. 53%.; '
6---1 LADJTB

Section 5, Married
Women's Property
Act, IST4 and sec-
tion 11. Married
WouJen's Property
Act, lS32 {English

' Act}.

Married Wome.-fs Property Act, 1374
(Chapter 8.----In,surance by Wives and Husbands.)

The vagueness of the phrase "for the beneﬁt of" in section 11 of the

English Act of 1882 has created certain questions which have, in course of time,

received judicial construction.

(i) Thus, a policy effected under the section by a man for the beneﬁt
of his wife Iiunnamed)' and children, enures for the beneficorf :1
second wife and the children of a second marriage :5' and, unless
the policy prhvides otherwise, the beneﬁciaries will take jointly.'

But, subject to any contrary intention, a mzmed wu',fe forthwith takes
an absolute vested interest in the policy, so that if she predeceased
her husband, it forms part of her estate ;' her husband, however, has
a lien for any premiums which he pays after her death, as being pay-
ments made by a trustee to preserve the trust property.'

(ii)

(c) Even if the person for whose sole beneﬁt the insurance was eﬁectcd
is guilty of the murder or manslaughter of the insured, the policy moneys' will
nevertheless be payable by the insurance company. However, as it would be

against public policy to allow the beneﬁciary to take the moneys, they will form-

part of the insured's estate.'

' 8.8. The important differences between the English and the Indian Act' could

be summarised as follows----

(1) The Indian Act is conﬁned to a policy taken out by the husband. - E

The English Act covers policies taken out by either spouse.

(2) The Indian Act provides that the beneﬁt for the wife and children'

in the policy has to he expressed "on the face of it". These words "on the
face of it". which were present in section 10 of the Married Women's Property
Act, l8'i0 (English), were dropped in section 11 of the English A-ctiof 1332.

(3) The words "shall enure and be deemed to be a trust" appear in sec-

_tion 6 of the Indian Act' (which are the same as what appeared in section 10

of the English Act of 1870]. The Words in section 11 of the English Act of

1882 are different. The English Act-now contains the words "shall create a'

trust in «favour of the objects therein named." The English Act of 1882 would,
therefore, make the trust more deﬁnite than merely "deeming? it-to be a trust
as in section 6 of the Indian Act. '

(4) Section 6 of the Indian Act makes the sum payable to special trustees

or to the Oﬂicial Trustee of the State (in cases where there are no special
trustees), who shall hold the amount upon trusts expressed in the policy. Under -

section 11 of the English Act of 1882, there are no such special trustees or Offl-
cial Trustees for these purposes.' In England, the husband holds the sum in
trust in the absence of appointment of trustees.

'See, generally, U952) 96 SJ: TED. -

"Re Browne's' Policy, (1903) 1 Ch. 188. See also Re_Parker, (1906) 1 Ch. 526 and con-
trast Re Griﬂ'irh'.r Policy, U903) 1 Ch. 739.

"Re Daviei-v's Policy. (1892) Ch. 90. .

'Causing v. Sun Life .4.s.mrance Society, (1933) Ch. 126; and see Re: Kiipai'rick'.s Poli-
cies Trusts, (1966) 2 W.I..R. 1346. --

512:: Smith': Estate (1937) Ch. 636. _

5C'!ea1rer v. Marital Reserve Fund Life Association. (1391) 1 Q-11 147- 50¢' Data 3-19.
infra. . .

l7Section 11, Married Women's Property Act, 1882 {Eng-I 'lAPP°nd53 3-)-

5Section 6 [Para 8.4, supra). , _ '

"Laiirharr_:bt_3l -,-. Gnqrdign pf Indian Insurance Co. A.I_.R. 1937 Mad. 645.

Mmﬁed H'amer1's Property Act, 1874
(Chapter 8.-~--Inrurrmce by lfitrer and H1tsbaml'3.}

(5) In India. the creditors have, in cases of fraud a right against the
(entire) proceeds of any such policy---though the word "-entire" is not 'used.
Under the English Act, the creditors are entitled to receive. out or the moneys
payable under the policy. a sum equal to the premium so paid. Therefore. the
creditors would be entitled to a lesser amount under the English Act than they
would get in India. '

(6) Undcrlthe Indian Act. the beneﬁciaries of the trust are to be the

-wife. or the wife and children or any of them. The English Act uses the words

"for the beneﬁt of his wife. or of his cfzelldrenfor his wife and children. or any
-of them." Therefore. under the English Act. the trust can be made solely for
the beneﬁt of the children without adding the mother. a

(7) It is speciﬁcally tnentioned in the Indian Act' that so long as the
mist remains, it is not subject to the control of the husband. These words are
absent in the English Act of 1882.

V." ACTIONABLE CLAIMS

8.9. We shall have a number of ints' of detail to consider with reference
to section 6. But, at the outset, certain fundamentalrnatters may be dealt with.
as the section deals with the transfer of an actionable claim. broadly correspond-
ing to the chose in action as lcnonrn to English law.-

',=B..1|J. There are four checeivnhle reasons for which the assignment of a chose

in action may bind the aasignor : is) it transfers his whole interest to the assignee :
(h) it transfers his equitable interest to the assignee and :l.ereh5' -corwerls
the assignor into aitrustee; (c) it effectively constitutes other persons trustees
of the chose in action; or -(dj the assign:-r is bound Ety contract to'tlIe assigned
to aid him to recover the 'c'Lose'.3 What is known in England as chose in
action is. broadly speaking, known to Indian lawyers as an actionable claim.
This dilference in terrntnology makes no dilference to the legal position. -The
operation of a device aciopterl to effectuate assignmﬂllt Of an actiﬂnable Claim

«will. therefore, depend on which oi the above reasons applies to the device

adopted.

8.11. In India. the general subject of the transfer of an actionable claim is
governed'' by section .130 of the Transfer of Promrty Act. 1332. However, the
Estchp-tion to that section provides, inter one. that "Nothing in this mtionm...
.......... ..affects the provisions -of section .38 of the Insurance Act. i938." Hence
the assignrnent of the beneﬁt of an insurance policy. is governed now by the
Insurance Act' The second illustration to section 130 of the Transfer of Pro-
perty Act shows that, but hot the provisions of the Insurance Act, sccﬁﬂﬂ 130
9,13 the Transfer of Property Act would have governed assignments of life policies

also.

an; common law, a chose in action was not assignable. But. in equilt. it
was assignable, subject to certain requirements of notice. As Rankin J. ob-
served,' the legislature has, in section 130 of the Transfer of Property Aet.-oom-
posed a new scheme. which has some of the features of both the systems.
lsee para 8.20. infra.
'See H931} -ts L.Q.R. 550.

'SP9: spctiuu I3-D sﬁc para 8.13-. iflffﬂ.
Wtrdnsoak 1''. Heart Miller, A.[.R. 1923 Cal. 1'19. 'F22 [Rankin ll.

Fgeclion 5 and ac-
tionable claims.

Modes

IIIEIIL

Transfer of action-
able claims.

of nsnignf

Assignment of po-
licy essentially as-
signment of an ac-
tionable claim be-
ing of contract.

Section 130-
'I'ra.nsfer of pro-- .
petty Act.

Ma:-r.ied Womerfs Property Act, 18'?-4

(Chapter 8.--Insu.rance by Wives cma' Husimnds.)
VI. SIGNIFICANCE OF SECTION 6

8.12. In order to understand the signiﬁcance of section 6 of the Act of 1874.
it is desirable to examine the law which would be- otherwise applicable. Apart
from statutory provisions of a special character, the right to claim moneys under
a life insurance policy could, before 1938, be assigned by. complying with the
formalities required' by section 130'-a of the Transfer of Property Act. 1882. The
assignment may be direct or by way of trust, but', in either case. so far as the

formalities are concerned, compliance with section 130 of the Transfer of Pro-~

perty Act was required. This is because, in its essence, such assignment is an
assignment of the beneﬁt of a. contract which is 9. species of 'actionable claim'
within the meaning of the Transfer of Property Act. It was therefore well-settled
that before the enactment of section 38 of the Insurance Act, 1938, the transfer

of a life insurance of Property Act" which deals withthe assignment of actionable .

claim. The assignment created an immediate vested interest in the assignee; it
was not revocable and operate completely to divest the assignor' of all rights
llﬂdcl' if, 5-5-3 _' i
The assignment could be conditional or unconditional.
perienced only in relation to Muslim policy holders, because, under the rules of

the Muslim law. conditions attached to gifts were generally void. except where _
the assignment of the policy is made to the wife by way of dower. The gift was _ -

valid, but the condition was void.'

8.13. Section 130 of the transfer of Property Act is as follows--

"I30. (1) The transfer o-f an actionable claim whether with or without
consideration shall be effected only by the execution of an instrument in
writing signed by the trians-feroror his duly authorised agent shall be com-
plete and eﬁectual upon the-execution of such instrument. and thereupon
all the rights and remedies of the transferor. -whether by way of damages
or otherwise. shall vest in" the tranﬁeree. whether': such notice of the trans-
fer is hereinafter provided be given or not: _

Provided that every dealing with the debt or other actionable claim
by the debtor or other person from or against whom the transfer-or would.
but for such instrument of transfer as aforesaid, have been entitled to
recover or enforce such debt or other actionable claim, shall (save where
the debtor or other person is a party to the transfer or has received express
notice thereof as hereinafter provided) be valid as against such transfer. '

(2) The transferee of an actionable claim may, upon the execution
of such instrument of transfer as aforesaid. sue or institute proceedings
for the same in his own name without obtaining the transfe-ror's consent to
such suit-or proceedings, and without making him a party thereto.

'Para 8.9 and 8.11, supra. V

1-a. Para 3.13, infra. _ i
am) Mm; Raj v_ Viyhwanath, (1913) I.L.R. 37 Bombay 198; 24 M.L.J. 60 {RC};

(13) Buiamba v. Krishnayya, I.L.R. 37 Mad. 483; A.l.R. 1914 Mad. 595 (P.B.l.
"Cf. Rayner v. Preston, (1331) is Ch. Div. 3.

'Moo! Raf v. Vishwunalh. [1913] I.L.R. 3? Bombay I98; 24 Mad. L.J. 60 (P.C.).
bLaxm;' Kutry v. Vishnu Nnmbison, A.'l.R. 1939 Mad. 411.
5Bai Lax.-ni v. Juswantinl, A.I.R. 1947 Bom._ 369.

'See--- '
{a} sham Dug v. Savitri Baa', A.I.R. 193? Sind 181 :

(hi) Sadiq Ali v. Zahida Begum. A.I.R. 1939 All. 744'. '

Diﬁiculty was ex- .

Married' Women': Properry Act, l8?4
(Chapter 3.--I.-wnrance by Wives and Hush-:m_ds.}

"E.rce_nrion.----Nothing in this section applies to the transfer of a
marine or ﬁre policy of insurance or affects the provisions of section 38
of the Insurance Act. 1933 (4 of 1938).

Illustrations g

(i) A owes money to B, who transfers the debt to C. B then demands

« the debt from A, who, not havingireceived notice of the transfer, as
prescribed in section 131. pays B._ The payment is valid, and C can-
not sue A for the debt. --

(ii) A effects a policy on his own life with an Insurance Company and
assigns it to a Bank for securing the payment of an existing or future
debt. .If A dies. the Bank is entitled to receive the amount oi the
policy and to sue on it without the concurrence of A's executor, sub-
ject to the proviso in sub-section (1) of section 130 and to the pro-
visions of section 132." .

8.14. The effect of section 33 of the Insurance Act. 1938, which is referred to
in section 130, Exception,' was to amend the law as to assignment of life insur-
ance policies for persons of all cotnrrtunitiesf' After the enactment of that section,
assignment of life insurance policies is governed by that section, so far as the
formalities are concerned. instead of section 130 of the Tranﬁer of Property Act.
We are not; primarily concerned with the details of these formalities.

3.15. If the assignment is in the form of a trust. it would be necessary to comply
also with sections 5 and 6 of the Indian Trusts Act, 1882. It is not necessary to
set out in detail the formalities required by these provisions. '

The question of creation of a trust, however, requires some discussion. In

its essence, an insurance policy' represents the beneﬁt of a contract? Now, a trust

can certainly be created in respect 'of the beneﬁt-of a contract. The position in
-this respect is brieﬂy as under:----- -

First of all, it may be useful to see what is the principle which is involved
in a claim by a wife that her husband is a trustee for her. and this has been well
expressed by Sir George Jossel, M. R., in Richard: V. Deibridge,' as fol1ows:---

"The principle is a very simple one. A man may transfer his property.
without valuable consideration, in one of two ways :,he may either do such
acts as amount in law to a conveyance or assignment of the property, and
thus completely divest himself of the legal ownership, in which case the
person who by those acts acquires the property takes it beneﬁcially. or on
trust, as the case may be ', or thelcgal owner of the property -may by one
or other of the modes recognised as amounting to a valid declaration of
trust, constitute himself a trustee, and, without an actual transfer of the
legal title, may' so deal with the property as to deprive himself of its'bene-
ﬁcial ownership. and declare that he will hold it from that time forward
on trust for the other person. It is true he need not use the words. "I
declare myself a trustee," but he must do something which is equivalent to
it, and use expressions which have that meaning: for, however anxious
the court may be to carry out a man's intention. it is not at liberty to con-
strue words otherwise than according to their proper meanings."

1Para 8.13, supra. _

'For section 38, Insurance Act, see para 5.5, supra.
5See P9-fa 8.12, supra.

'Richards V. Delbridge, L.R. 18 Eq. 11.

'41

Eﬁect of section
38, Insurance Act,
1938.

Question of trust
considered.

42'

Diﬂiculﬁes in de-
terlnlning existence
oftrnst.

Signiﬁcance of sec-
tion 6--Statutc1'y
trust,

Section 6 to be re-
regarded as pro-
viding simpler
mode of assign-
ment.

Married Women's Property Act, 18174
(Chapter 8.----l'nsumrzce by Wives and Huﬂaands.)

The position may be thus elaborated:

(a) A person entitled to the beneﬁt of a contract may create a trust of that
beneﬁt for third parties, either by declaring himself a trustee of it
or by assigning it to trustees for them. '

(b) In addition, a person may initially coniract as trustee for a third party,
so that in equity the third party is entitled to the beneﬁt of the con-
tract ab inirio.

If the contract is not preferred, the trustee can take proceedings in his
own name? to enforce it for the beneﬁt of the third party, and if the trustee
refuses to do so, the third party can sue, joining the trustee as a defendant'. _

8.16. The main diﬂiculty in these cases, however, is to discover what test the
courts will apply in deciding whether or not the party intended to contract as
trustee. The inquiry plainly involves the "construction of the contract End the
special circumstances in which it is entered into. This will be evident from,
the cases where the court found a trust', in constrasfwith the cases where it did

1101'.

The courts do not readily ﬁnd that a party intends to constitute himself
a trustee. ' E - 2.

8.17. It is obvious that section 6 avoids these difﬁculties to a large extent by
bringing into existence what is conveniently described as a 'statutory trust'. The
signiﬁcance of section 6 lies in the fact that it renders unnecessary a compliance
with formalities required--- T '

i (i) for an assignment. by'section 38 of the Insurance Act", or

(ii) for the creation of a trust, by the Indian Trusts Act, 1382*.

8.18. Dispensing with the various formalities required for the assignment of, a I

policy under section 38 of the Insurance Act, section 6 provides, what was
considered to- be a simpler mode of assignment. The ''assignment'' need not be
as elaborate and express as under the Insurance Act. The essence of the section
lies in the words "expressed for the beneﬁt of" (the wife or children). If an
intention to beneﬁt the -wife' or children is apparent that beneﬁt is secured on
the mere basis of the expression of the intention in the policy, and without the
need for other formalities. That' is the governing principle and object of the

section. To carry into effect this object, the section provides a machinery

lcoll-bin--'-'--Couitaﬂtﬁ for the beneﬁt of third persons", (1930) 4-6 L.Q.R. 12 and_
Starke, 121943) 21 Australian L]. 332. 422, 455; 22 Aust. L.J. 67_; and Samuel Willlston.
"Contracts for the beneﬁt etc." (1901) 15 Harv. LR. 767. . '
2(3) Grgggry and Parker v. Williams. (1817) 3 Mor. 582; ,
fb) Lloyrfs v. Harper. T1880) 16 Ch. D. 290;

A.C. 301. ~ _
5(a) Vandepitre v. Preferred Accident Insurance. Corporation of New York. -U933} A-C,

70. 79.
{b] Harmer 'Ir. Armstrong, (1934) Ch. 155.
'{3} Re Webb (1941) Ch. 225: .
tb) Re Forster': Policy (1955) 1 W-L-K 223- ';

Cool-:23. T. (-1965) Ch. 902; and Berwick v. Beswick (1965) 3 All. ER.

'Para 8.14, supra.
7Para 8.15, supra.

Foster (No. 1) 1938 3 All. ER. 35?; Green v. Russell. U959} 2 (2.3. 225: Re

- Mind, 162. 7'.

Married Womerfs Property Act, 1874
{Chapter 3.----l'n.surance by Wives arm' Husbands.)

wbereunder either the trustee appointed in this regard by the husband, or failing
such appointment, the oﬂicial trustee, is to receive the money on the policy from
the insurance company. No formal trust is required. In this respect, the sec-
tion dispenses with compliance with sections 5-6, Indian Trusts Act, 1382.

_Thus. the section not only overrides the provisions of. section 33 of the

Insurance Act, 1938, relating to the assignment of life policies, but also modiﬁes

the provisions of the Indian Trusts Act. 1882 in their application to the policies
to which the section applies. By virtue of this section. what can be conveniently
described as a "statutory trust" comes into being as we have already stated'.

8.19. In the absence of any provisions contained in that behalf in the Married
Womerfs Property Act, a term contained in the policy itself that the money
shall be payable to the wife of the assured if she survives him, is, as between
the executors and administrators of the estate of the assured and the wife, of no
effect. This point is dealt with by Esher, M. R. in Cleaver v: Mutual Reserve

Fund Life As5ocior:'on,= thus: '

"Apart from the statute, what would be the effect of making the money
payable to the wife ? It seems to me that as between the executors and the
defendants, it would have no elfect. She is no party to the contract; and

I do not think that the defendants could have any right to follow the money

they were bound to pay and consider' how the executors might apply it.

It does not seem to me that. apart rfrom the statute, such a policy would

create any trust in favour of the wife [James Maybriclc might have altered

the destination of the money at any tinie. and might have dealt with it
by will or enactment. If he had done so. the defendants could not have
interfered. I think that, apart fromthe statute. no interest would have
passed to the wife by reason merely of her being named in the policy;
_ and. if the husband wishes any such interest to pass to her. he must have

'leftithe money to her by will or settled in upon her during his life. other-

wise it would have passed to his executors or administrators."

It was held: in a Madras case' that where the assured does not, in his life-
time, create a trust for the beneﬁt of any person. such money, in cases where the
provisions of the Married Worneifs Property Act do not apply, forms part of
his estate and is recoverable by his legal representatives. A contract between the
company and the -assured gives, no right of action to the beneﬁciary named.
Where the company refuses payment to the beneficiary on the death of the assur-
ed. the legal representatives, and not the beneﬁciary. will be entitled to enforce
the contract. i

In England, before 1870, the difficulty was sometimes overcome. by getting
the insurance company to declare themselves trustees for the wife.' In India,
before the passing of the Insurance Act, 1938, the assured could divest himself of
his beneﬁcial interest under the policy only by assignment in writing under sec-
tion l3O of the Transﬁer of Property Act, or by signing a declaration of trust
under section 5 of the Trusts Act. Where neither course is adopted, the policy.
on his death, torms part of his estate. and no trust arises in favour of his wife as
against his executors or_other representatives." -

Section 6 provides an alternative course. and that shows its signiﬁcance.

'Para 8.17, supra.
*Ci'eaver v. Mutual Reserve F and Life Association, E1892} QB. 14?.
"Oriental Government Security Life Assurance Limited' v. Ammz'ra_fu, (I911) I.L.R. 35

*Shankar v. Umabai,
page 463.
'Far: 3.18. supra.

E1913) I.I_.R. 37 Born. 17]. 479, 'citing Bunyan on Insurance.

Effect of term in
policy without sta-
tutory provision.

Points of detail.

Marnied H/o"men.'s Property Act, 1374
(Chapter 8.--Insura.-tce by Wives and Husbands.) .
VII. POINTS FOR CONSIDERATION CONCERNING SECTION 6

8.20. After this discussion of the signiﬁcance of section 6, we shall proceed to
examine certain matters concerning the section which require consideration. It
should he pointed out, that the section has led" to numerous points of controversy.
Certain other points also arise out of the section. It will be convenient to enume-
rate important points "which require consideration, either because' of these con-
troversies or otherwise:-- ' e

{a} Does the section apply to endowment policies '2"

{bl What is the meaning of the words "expressed on the face of it" in the
section 'E'

iii) 'What is the meaning of the words "for the beneﬁt of his wife or

of his wife and children or any of them", which occur in the sec- _

tion : can there be a policgrfor the beneﬁt of children only ?"

(cl) What is the eliect of 3 nomination made under section 39, Insurance
Act, 1938 ?'

(e) If a nomination under section 39, Insurance Act, brings a case within
this Section. can the nomination be cancelled ?"

(fl Can there be a contingent provision under this section T"
(g) Can the statutory trust under this section be cancelled 1"
(11) Who can sue under this section ?'

{i} Can the widow for whose beneﬁt the policy is expressed to be made.
sue in her own name. without resorting to the oﬂicial trustee 1""

(j) Relationship of this section with section 39(7). Insurance Act--What
happens if there is a trust and also a nomination. in respect of the
same policy ?" '

(k) Can a trust be created under the section after the policy is issued ?"

(1) Verbal change needed in respect of the "deeming" provision" as to
creation of trust. -

(In) Rights of creditors" when atrust is created.
tn) Interpretation of the words referring to "object"." .-

'Para 3.21 and 8.22.
"Para 8.23 to 3.28. *-
3Para 8.29 and 8.30.
'Para 3.31 to 3.33.
'Para 8.34 to 3.42.
'Para 8.43.
'Para 8.44 to 3.46.
'Tara 8.47 and 3.48.'
"Para 3.49 and 3.50.
"Para 8.51 and 8.52. i
"Para 8.53 and 8.54
, 1='Para 8.55.

"Para 8.56.

"Para 3.57.

"Para 8.53.

i'i«1'amt'ed Women': Property Act, 1374
(Citaprer 8.--~In.rar¢mce by Wives and Husbands.)

We shall deal with these points sereatirn.

8.2!. The first question that has arisen is whether the word "po1ic_v" in section
6 includes an eiidowment pohcv. To some extent, this question is connected with
the other question whether a contingent provision is' permissible under section 6;
but the question hats also an importance of its own. In a Calcutta case? reported
in 1970. there are dicta to the eﬁﬁect that the section does not apply to endow-
ment policies wliereunder the amount was not payable on death. On the other
hand, there is a Bontbajv ruling3 of 1967, taking a different view. and there are
judgmtnts of other High Courts also' which place a wide construction on the
section.

It should be noted that endowment insurance is also an insurance of linfe.
In Gould V'. CHrtr'.s','" it was stated~~

- "Wliat then is the true meaning of the words 'insurance on his life '3'
There would. to n13-' inind. be a signiﬁcant difference if the proposiﬁon were
'of' and not 'on'. I can agr:e that the phrase 'insurance of the life'
may. as a nia'-.3ter of English mean a guarantee of a sum to be paid if the
life drops. Insurance 'on' it is. to ma: mind. a dil'Eer.e11t thing. It means
the insurance of a sum dependent.upon it. The life is mentioned as a
C{}nIlllg&ilC}' upon which the insurance is to be paid. The contingency is
death or no d:.'ath----death or life. Insurance 'on' life is an insurance of
a sum payable or not payable aocording as the ctontingency of life or death
is answered one way or the other. Regarded thus. it is plain that an insur-
ance 'on' life includes as much an obligation to pay a sum of money if
life continues at a date. as an obligation to pay a sum of money if life
ceases. An insurance 'on' life expresses an obligation to pay a sum of
money on an event dependent upon the contingency of human life. If
that be sound. it follows that the whole of this premium is deductible.
because this is altogether an insurance 'on' life."

3.12.. We are of the view that having regard to the beneﬁcial object of section 6.
the. matter should be placed beyond doubt. by expressly providing that the sec-
tion applies to an endowment policy. Adding an Explanation is one possible
device for achieving this object. We recommend accordingly.

3.23. A general matter calling for comment arises from the words "on the face
of it", which appear in section 6 and in the earlier English Acts prior to 1882.
though not in section ll of the English Act.' of 1832. In a Calcutta case', it was
observed by Ameer Ali I. with reference to these words:---

"I think they were omitted from the later English Acts as being super»

ﬁuous.
tely. or something of that kind. To my mind, they mean nothing more
thanfexprcsslg-' expressed'. the arztirhesis oefrig to implied trust or a secret

trust." ~
disgiiisiiin I'-ti pin». s.44, mfm.
ELLC. V'. United fJ'an.i:. A.I.R. 1971] Cal. 513, 516 [B. C. Mirra & S. K. Muklierjea.
JJ.l.
'M. A. Ron'rr'_rwe5' V. 3.,R_ 3-7.'i'ga. AIR. 1967' Born. 455.
'See-discussion under point ff), :'-.-fi-a.. para 8.44 to 3.46.
'Gould' V. Curtis, H913} 3 KB. 84. 94.
"F'or section If of the F_'t1g?i'-'h Act. see Appendix 3.
'In re Ashalara, A.!.R. 1940 Cal. ZI7. 218 fmneer Ali, 1.}.
?--I L.-5L'D."i'|'>

Mr. Ghose interprets them as meaning 'unconditionally', absolu-'

Point l'a)----_cndow--
merit policies.

Recommendation
as to endowment
policies.

Point fb}-Mean-
ing oi the word:
fnn the face of
11:". _

:46

Intention should
be expressed in the
policy.

Madras cases.

1 Other cases.

Mam'ed' Women's Property Act, 1874
(Cfmprer 3.----IiIsura.ucr3 by W1';-'e'.s' and ffnsbands.)

3.2-!. It would appear that the intention to beneﬁt the wife and children must
he express-.:d in the pulley, and not in the proposal. In one Madras case'. in the
insurance policy, against the column "to whorn payable". appeared the words
"to the person or persons legally entitled thereto-".' It was contended by the de-
fendtants that u trust arose under section 5- of the Married Wotnerfs Property Act.
It was- 11:1'-'v'C|.n'E[. held bv the High Court that the requirements of section 6 had
not been "ulﬁiled. There was no rneution in the policy of the wife and children,
but them was a statement in the proposal form that the object of the policy was
"for tl e maintenance of the fa1n'tly". it was held: . '

"Although, where the intention clearly appears that EL trust is to be created. '

the law does not require that the words used should be identical with
those occurring in the statute, it is impossible to hold in the present case
that the re-:;uire.rn:nt.s of the section here been fulﬁlled ...... ..S. 6 enacts
that the trust should appear "impressed on the face" of the document, that
is to say, that the words used should he plain and unambiguous. For
whatever purpose the policy may be governed by the terms of the applica-
tion that preresled it, ]'o.v the purpose of the _-'ti'(a'rr'er..i li"omen'.r Property
Act the only doctmzent that rem be Jocrksd at is the policy".

No trust was, therefore, held to have been created in favour of the wife.

3.25. Following the Madras easei referred to above, it was again held in E933"
by tl1e sarzr: High Court that although for certain purposes, iucases of dispute
hem.-zest the insurer and the insured. it may be necessary to loo]: into the pro-
posal or prospectus 'or even to construe the pro-speetus as though it were a part
of the polirry, the terms of section 6 of the Married Womerfs Property Act were
clear and unambiguous. The expression "policy of insurance" in that section is
to be taken in the ordinary meaning of those words, and -does not mean the pro-
posal as well as the compaujfs prospectus. ]n this case, on theface of the policies
themselves, there was no expression of intention that they were for the benefit of
the wife or Children. In the column in the policy headed "to whom payable".
the words used were, 'The proposer's assigns or his proving executors or admi-
njstrators or other legal representatives ....... ..". It was held that there was no
trust created under section 6 in favour of the wife of the assured.

8.26. In It Nagpur case', there was in the policy no statement that it was in-
intended for the beneﬁt of his wife or children. However, it was stated in the
policy that the proposal and efeclarution of insurance should be the basis of
the r,'t.'»'.5'Hi'aJt-'Sc, and, in the proposal form, where there was a question "What is
the ohjert of the proposed assurance". the assured wrote. "fatally provision".
The Nagpur High Court held that the words used,----"family pro-vision"-----were
very vague. and there was no indication that the assured intended that his wife
and children should get the whole interest in the policy. In the eirpumstanees,
the Court held that even assuming that the statement in the proposal form could
be s'a|;'d to be a statement expressed on the face of the policy,-----which it doubted
semis gﬁrziemﬁrtt was no suﬁzlciem to bring the policy within the ambit of section

5 of the Act. as it was vague. _

1Kr-r'5!:,ur_rmrrrI'F1}= v. A:13'.:zj.'-pl. .:'t.l.'.R. l93I5 Mad. 635.

:[,.;'5,1._t;a,-«,1;;r;Jg:,- 1,.-_ Jrriayya, A.I.R_ 1936 Mad. 635, supra-

iF"t=!u'E."w.'-1]fc'i.i'l4i!|f't'Ii.iJtJ:.li'!!"L'.l V. Um'Ied'PJernze'r.r' A.r.rori:irion, .A.I.R. 1933 Mad. 234, 2315:

'firrbibai v. i'-lrzrsninl. A.E.R. I333 Na; 33].

Married Womerrs Property Act. 13'.i'4
(Chapter S.---Insurance by H-':'ve.r sand Hrrr.F;a'm£s.}

8.27. In one sind case', it was held that before section 6(1) of the Married
Women's Property Act can apply. the insurance policy must be "expressed on
the face of it to be for the beneﬁt of his wife". In this case, it was an admitted
position that the policy of insurance was not produced "before the trial court.
But the appellant widow had I.'eceiyed. the sum due under the policy from the
Insurance Company. and the Court assumed that the policy had been surrender-
ed by her to the Company. The question arose Whether the insurance money
would have to be deducted from the appellants share in partition. It was held
.that:

"If the appellant then wished to rely upon S. 6(1). Married Won1en's Pro-
perty Act. she should have called for the surrendered policy to satisfy the
Court that it was expressed on the face of it to be for her beneﬁt. A more
assignment of a policy in favour of the wife does not bring the policy
within the terms of section 6(1), Married Women's Property Act."

From the evidence of the appellant, the Court said that the policy had
been nssigtied to her by her husband '2 years before his death. and later, that he
had taken out policy in her name. In these circumstances, the Court held that
the policy did not come within section 6(1). Therefore, it was held that the insur-
ance money would have to be deducted from the appellant's share in the parti-
tion.

- 3.28. These cases would show that on this point, the courts have taken a narrow

View of the wording. We have considered the question whether any provision
should be made to the eifcct that the intention to beneﬁt the wife or children can
be expressed in theproposal also. However. such a provision may create pro-
blems. and it would he inconvenient to expect the parties concerned to go through
the proposal that may have been deposited long ago in the records of the insurer.
\

8.29. We now proceed to the next question pertaining to the formula to be
used for conferring the beneﬁt contemplated by section 6. From the decided
cases. to which we have referred above, a few salient points ari-_:e----

(a) The mere use in the proposal of the words "for family provision" does
not" bring the policy within section 6(1).

(b) Mere assignment in favour of the wife does not also bring" the policy
within section 6(1).

(c) At the same time. the policy need not copy the piiraseology used in
the section. In one Madras case', the High Court has held, (with
reference to section 6]:

"That section states that the policy shall. on the face of it, express
that it is to be for the beneﬁt of the wife and if it is so expressed. then
it says the policy shall be deemed to be a trust for the beneﬁt of the
wife. There is nothing in the language of the section to show that
the words "for the beneﬁt of his wife" or others corresponding to
these should appear in the policy to enable us to infer a statutory
trust in favour of the wife within the meaning of the section. If..on

- 1Maru'.ba.t' V. Bhimii L.:rZ_a;':', AIR. 1946 Sind I'll, following Shemdus v. Sn:vr'm'b.:u'. A.I.R.
193? Sind 131. K'
'Rabibui V. Raraniaf, A.I.R. I935: Nag. 3211, para. 8.16, supra.
"ManEbaf V. Bliimii. A.I.R. 1946 Sind 171. I75, para 8.2? supra.
'Abhimm:n=u1ii V. Official Trustee. A.I.R. 1932 Mad. 220.. 222.

ii'

'Whether amend-
ment feasible.

E'oint--Ecl{i}----Qn-
esnon as to for-
mula to be used.

'Whether amend-
ment feasible in
regard to the for-
mula to he used.

Point (cl t'ii}~Po-
licy for beneﬁt of
children.

Married Women': Property Act. 18174

(Chapter 3.--~Insurance by Wives and Husbands.)

reading the words in the policy, it appears that the assured has in- .

tended in the event of his death, that the policy should enure .to the
beneﬁt of his wife, then I think the policy may be deemed to be a
trust for her beneﬁt."

In this case, in the schedule to the insurance policy taken by the peti-
tioner's husband, it was provided that the sum was payable to "the assured or
his wife Ahhiramayalli if he predeoeases her". It was held that this was a policy
of assurance expressed "to be for the beneﬁt of his wife". though the express
Words "for the beneﬁt of his wife" did no-t appear in the terms of the policy. In
this case, it was held that a statutory trust in favour of the wife had been created.

The High Court. however. pointed out that in order to avoid diﬂicultier.
the insurance companies should, in drawing up the terms of the policy in cases

where the assured intended to create a trust in favour of his wife in the event of

his death, adopt the words used in the statute'. _ '

3.34}. We have given deep thought to the case-law referred to above. It appears
to us that an amendment of the section would not be of much use in avoiding
controversies of the nature discussed above. The assured has- to be his own
conveyancer. At the some time. we are of the view that the Life Insurance
Corporation should consider the suggestion made by the High Court of Madras'
in the judgement' to which we have already referred'.

8.31. Another equally important question also arises from the wo-rds--"for the
beneﬁt of his wife or of his wife and children or any of them". Does a policy
for the beneﬁt only of children fall within the section ? This situation arose in
at Bombay case'; and we may quote the facts and the point decided, from the
judgement of the High Court.

"I have already quoted section 6 to the extent relevant for the purposes
of this appeal. A policy of insurance, in order that section 6 should apply. should
be effected by any married man on his own life. The other requirement is that
the policy. on the face of it. must be for the beneﬁt of his wife. or of his wife
and children, or any of them'. The present policy is on the life of respondent

No. 3. That it is not for the beneﬁt of his wife. or of his wife and children is apparent. It is for the beneﬁt of his children, i.e., the appellant and her sister. It was contended by Mr. Abhyankar. appearing for the respondents, that a policy which is for the beneﬁt only of a child or children is not contemplated by sec- tion 6 of Act III of 1874. According to "his contention, the expression for the beneﬁt of his wife or of his wife and children. or any of them" means that the policy is either for the beneﬁt of the wife or for the beneﬁt of the wife and children or for the beneﬁt 'of the wife and any one of the children. It cannot be, he says, for the beneﬁt only of the children without the wife'. This conten-

tion raised on behalf of the defendants found favourwith the learned Judge. _ The contention is that "any of them" has reference to any of the children along.

'Emphasis added.

=See Abiramovalii V. Oﬂiciai Trustee. A.l.R. 1932 Mad. 22.2.. 3See para. 8.29, supra.

'See also para. 8.42. Infra.

J) 5M. A. Rodrigues V, B. R. BoIiga._A.l.R. 'M. A. Rodrigues V. B. R. Baiigo, A.l.R. 1967 Born. 465, 467, para. 5. '*'Emph.|si: added. ' 1967 Bum. 465, 4-67, paragraph 6 (Golthale.

Married Womeifs Property Act, 1874 (Chapter 8.--}'m'uTance by Wives and Husbands.) with the wife and not any of the children without the wife. On a plain inter- pretation of the section. I do not ﬁnd it possible to accept this construction suggested by Mr. Abhyanlcar. The expression "of his wife and children" refer- red to more than one child because the word "children" would include one child.

According to the construction suggested by Mr. Abhyankar, the expression 'of his .

wife and children' must refer to a policy for the beneﬁt of the wife and more than one child and not the beneﬁt of the 'wife and only one child. The reason- able construction would be that when the word 'children' is used. it includes one child also. Only. if it were not so, then the further expression 'any of them' would have been necessary to provide for the case of a policy for the beneﬁt of the wife and child. Looking to the language employed, it does not seem to me that a policy, which was not for the "beneﬁt of the wife but was for the beneﬁt only of children, was not contemplated by section 6".

3.32. It sould be noted that on this, point, section 11, (which contains the analogous provision) in the English Act----the Married Wo!men's Property Act.

1882,----is more clear. The material part of the section is as follows:--1 "A policy of assurance effected by any man on his own life, and expressed 'to be for the benefr of his wife, or his chz'!d'ren or of his M-'z'j'e and children. or ariy of them, or by any woman or her own life, and expressed to be for the beneﬁt of her husband or of her children. or of her husband and children, or any of them, shall create a. trust in favour of the objects therein narned".* -

The wording in the English section is, thus, more speciﬁc on this point, 8.33. We recommend that the section in the Act of 1874 should be clariﬁed and widened so as to permit the beneﬁt being conferred on children, (as in the English Act), that is to say even if the wife is not a beneﬁciary. No doubt, the objection could be raised that in legislation dealing with married women, a provision meant only for children is out of place. However, we are of the view that practical convenience justiﬁes such an amendnicnt. To frame a separate law to deal with policies for children will mean duplication of provisions.

8.34. The next question pertains to the effect of a nomination under section 39 of the Insurance Act, 1938'. Some difﬁculty in this regard is created 'by the words in section 6--"for the beneﬁt of .......... ..". Do these words mean that a nomination under section 39 of the Insurance Act would satisfy the for- mula '2' The High Courts have taken the view that a nomination under section 39 of the Insurance Act. 1938. does not satisfy the requirements of section 6.' This is the Allahabad', Andhra Pradesh'. Calcutta" and Madras? view. We shall refer to some of the reported decisions.

In one Allahabad' case it was held that section 6(1) clearly shows that the policy has to be effected for the beneﬁt of the wife. The language was not that a policy effected for the beneﬁt of another person may be considered to have 'Section 1.1. Married Women's Properly Act, 1882 (Eng) (See Appendix 3), 'Para 8.32, supra.

'Para 5.5, supra.

*A.I.R. 1953 All. 569, 572 (see infra), para 8.34.

5A.I.R. 1957 Andhra Pradesh 75'.-', 753 (sec infra}, para 3,35. ' 'A.I.R. 1956 Cal. 235, 276 {sec infra), para 8.36.

"A.I.R. 195'! Mac]. IE5 (see infra), para 3.38.

'She.-iti Devi v. Shri Rom Lei, A.I.R. 1958 All. 569.

49! Section 11 of the English Act of 1882.

Recommendation to amend section 6 in relation to children.

Point (d)--Notm'-

nation made -under section 39, Insur-

ance Aet, 1938.

,.

Illustrative cases fcorn Andhra. --

Married Womerfs Property Act, IST4 (Chapter 8.----Insurance by Wives mid Husbands.) been eliected for the beneﬁt of the wife by a subsequent nomination. The mak- ing of a subsequent nomination in favour of the wife is merely authorising her to receive the money and is" no-t the "eﬂ'ecting" of a policy for her beneﬁt. A policy cannot be effected twice.

ﬁciary ab fnitio, the policy was not eliected by the husband "for the beneﬁt of his wife" within section 6(1), and the mere fact that he had made a subsequent noriiinaiion such as he was empowered to make under section 39 of the Insurance Act. does not make the policy a policy to which section 6(1) applies because of such nomination.

The court held'that the equitable and beneﬁcial interest, whether im- mediate or contingent, must be created at the very inception of the policy. It was held: "It must be created ab iniiio in the wife or the children or any of them if it is to attract section 6(1) of the Married Women's Property Act. Otherwise if a trust is to be created later in favour of any person after the policy has been eliected, then it cannot be created under section 6(1) of the Married Women's Property Act, but must be created as any other trust is created It seems to us clear that section 39 of the Insurance Act and section 6(1) of the Married Women's Property Act are not complementary, and that the right of nomination which is bestowed o-n a policy-holder under W- tion 39 of the Insurance Act cannot be read into section 6(1) of the Married Women's Property Act so as to vary the clear intention of the latter Act."

The Wife's appeal was dismissed on the above ground.

8.35. The facts in one Andhra case' wereas fo]lows:--

A debtor, executed a promisory note in favour of the appellant in 1950. A decree was obtained by the appellant in 1952 against the widow and sonoi the debtor, who had died during the pendency of the suit. In execution of the decree, the appellant sought to attach a life policy taken by the debtor on his own life. The widow raised an objection that having been nominated under section 39 of the Insurance Act, 1938, she was entitled to the proceeds thereof and her husband's creditor had no right. This objection was accepted by the courts below. The decree-holder appealed to the High Court.

The High Court held that under section 39 of the Insurance Act. 1938. the holder of the policy continues to have an interest in the policy notwith- standing the nomination made by him. The nomination does not divest him of the rights in the policy, and he retains disposing power over it. The title does not pass to the nominee by reason of the nomination. Consequently, the nominee gets the property in the policy subjects to all the liabilities of the policy- holder. It was also held that under section 39(2) and 39(4) "it is competent for the holder of the policy to bequeath to somebody or make an assignment of it, and this automatically cancels the nomination, which implies that a nominee has no vested right in the document,............

"It is not necessary for me to consider whether section 6 of the Married Women's Property Act could apply to a nomination under section 39 of the Insurance Act, in View of the proviso to sub-section (7). It is 9;

manifest that it does not apply to a nomination .......... .. .

Therefore, section 6 did not apply in this Case. alld the 510111111063 right was subject to the discharge of any liability of her husband.

1B:-ahmamma V. Venkarraniana Rae. .A.I.R. I957 A.P. 75.

Where, therefore, the wife was not made bene- '_ Married Women'.5' Property Act'. 1874 (Chapter 8.»-Instironce by Wit-'es and Husbands.l 8.36. In one Calcutta case', the nczrninzttior. in the endovmt-:11t' insurance policy of the deCea.scr;l was as i'otio'.v-:; "I uoni-in:1t-e my wife and my son-in--laW, the survivor or survivors. its the persons to receive the moneys under the above policy in the event of my prior death."

It was argued by the widow that nto-neggs payable to her under the terms of the above nomination did not form part of the estate of the deceased judg- ment--debtor- Th: Calcutta High Court held that section 39. insurance Act, conferred on the nominee the right to rec-;=.ivc the insurance money as between such nominee and the Insurance Company. but it did not provide for the title of ownership of that money in general. It was held:

".........5uch insurance moneys really belonged to the estate of the assured and coiatim.-ed to do so. It only providsd, in the event of the death occur- ring before the period of endowment was over. who should receive the money in pmce of the assured. The title to receive the money does not necessarily create. 21 title in rem. to that money which can be said to be good as against the whole world."

It was also held that th: terms of nomination in this case did not show that the policy was expressed on the face of it to be for the beneﬁt of the wife within the meaning of section 6, Married Women's Property Act. The terms of nomination here were held to be nr:m:'m1rn'on simplicirer, which comes under sec- tion 39. Insurance Act. Here the nomination was not for wife and} or children. but joint nominee, one being the wife and the other the son-in-law.

The court: explained why section 39,_ Insurance Act, did not apply to ' trusts created under section 5. Married 'Won1en°s Property Act. 'Such trusts are expressly said to he beyond the control of the policydlolder, and are expressly said not to form part of the estate of the policyhltolder. But the -policy- ltoldcr cannot have the best of both the worlds, n.-1II1ely----on the one hand. the policy-holder to have full right of disposition in spite of the "nomination" and, at the some time. the nominee to have title to the money. The couzrt. therefore. dismissed the application of the widow, who was a mere nominee.

_3.37. A nomination under section 39. Insurance Act. like a testarnentarir dis-

position, speaks only aster death; but the analogy ends there. No title to the policy Jnottej-'s passes?-a'r1 pmesei-tn' or in fut1.l1'e,----b}' the nomination. If the title passed to the nominee on the death of the policy-holder, his legal status would have been indistinguishable from' that of an assign-ee, or a legatee, the assignment or legady taking effect on the death of the policy-holder.' In the con- templation of the statute. the right of El nominee is a mere-'right to collect the proceeds of the policy, and the right has been given only to obviate the inconveni- ence of obtaining representation to the estate of the deceased policy-holder or a succession certiﬁcate."

iggmbglfgw V. Gm-igadhnr, AIR. 1955, Calcutta 275. 9L.I.C. v. E-'nixed Bank. A.l.R. 1970 Cal. 5E3, 516 (B.C. Mitre 8: S. K. Mukhcrjea!

11.}. ' ' 3L_.l'.C'. Limited v. United Bank. A.I.R. 1970 Cal. SE3. S16.

11;

Calcutta Mae.

.'_=_.Eect of nomina-

tzou.

Madras case.

Another Calcutta case.

Married Womenir Property Act. l8'?4 (Chapter 3.--Insin-once by Wives and Husbands.) 8.38. A Divisioii Bench of the Madras High Court in Mo.hcmaveiu Mudaiiar v. The Indiim Ir-I.mrr.rnci:= and Banking Corporcarion Lrn.'.,1 while noticing that dispo- sition of life insurance can be classed as (1) assignment, (2) nomination and (3) creation of a trust by reason of the provisions of the Married Women's Property Act. 187'-1, observed as follows:---

"If. by nomination. a trust is created. then the nominee becomes the bene- .

liciary, but the difficulty is to ﬁnd out, from the exact words used. what the intention was. because the terms 'nomination' and 'nominee' are not. strictly speaking, terms of art. 'Nominate' means only to name and it is in every instance a question of mixed law and fact as to what t.he inten- tion is. Thur, by the expressions used it has to be found out whether the nomination merely creates it payee or a beneﬁciary for whose protection' a trust is thereby created." ........................................ ....... .. If the construction placed upon the declaration is that a trust has been created under the provisions of the Married Women's Property Act, the beneﬁciary would take the assured amount free of all the liabilities of the insured and if it is construed as a mere nominuiiorz, the nominee would have no more right than to receive the amount sub,'-ect to all the liabilities as if the disposition was by means of a testamentary instrument."

"We may add that it is not every nomination that will have the ellect of creating a trust and it is necessary to make a distinction, as has been made in Macgiilivrays' [nsurance Law, between the creation of a trust and a simple contract between two persons for the beneﬁt of a third. Such a simple contract cannot. by itself, be interpreted as creating a. trust."

"Though the dividing line between the two classes of cases is thin. it is nevertheless real."

The facts of the case are of interest? The deceased M had taken out two life insurance policies of Rs. 5000 each. He had also become indebted to the I.l.&B. Corporation. The deceased had nominated his wifi: as the person en- titled to receive the moneys due under the policies. The Corporation had, in a suit against M, attached the policies. The wife had also died. and the daughters of the couple had ﬁled a petition that the policy moneys had become the assets of their mother," and were not liable for the decree debt against M. It was held by the Madras High Court that the nomination could only be construed as a testa- ment which would be subject to all the liabilities which the assured had to dis- charge and the claim of the daughter was dismissed. ' 8.39. In a Calcutta case'. the nomination made by assured in an insurance policy, was in these terms. "The wife, the nominee, i-f she be alive on the death of the assured and this nomination shall be still in force which failing to the assured or his executors. administrators, assignees or other "nominees." The High 'Court held that the "only reasonable interpretation is that the husband"

intended to preserve his right to cancel the nomination. In these circumstances. section 6, Married Women's Property Act. can have no application."

itwalrmziivciii Mridniior V. The Indian Insurmrce and Baniring Corporation Ln-1.,' (1956) 2 M.L.J. 476; l.L.R_ 1195?') Mad. 326; A.I.R. 1955' Mad. H5.

9Emphasis added.

3,-lfirdaiiar V. LI. & B. Corporatitlrr, A.l.R. 1957 Mad. 115, llh'. 'Siirufan Bewir V. Hem Chn.'.'dra, A.I.R. 1945 Cal. -"l-1.-.

Married Womerfs Property Act, 1874 (Chapter 8.---Insurance by Wives and Husbands.) 8.40. So much as regards a nomination in a policy. The result of this discus-' S101] is that a nomination confers on the nominee only a right to collect the amount, and confers no title. ~ An assignment of a policy, on the other hand, stands on a diﬁerent foot-

_ ing. Under section 38(5) of the Insurance Act, 1938, the effect of an assignment is tha.t the assignee is the only person entitled to beneﬁt under the policy, and such a person shall also be subject to all liabilities and equities to which the ~assignor was subject at the date of assignment. But a "nomination", as already stated' and as appears from section 39(1) of the Insurance Act, merely means that the person nominated is the one to whom inoneys payable under the policy shall be paid in thegevent of the death of the assured. Unlike an assignment--which is irrevocablerwa nomination may, at any time before the policy' matures' for payment, be cancelled or changed. In the event of the policy maturing during the lifetime of the assured. the nomination will have no effect and the policy money will. in that event, be payable to the assured. It follows that while an assignee is not merely entitled to receive but has a right to the policy-money itself, a nominee is no more than a person who is competent to receive the money if the assured did not survive the maturity of the policy. He has no title to the money due under the policy. ' 8.41; The meaning of the word "object" of the trust in section 6 is interesting. In a Madras case? the effect of a family arrangement and the consequent execu- tion of a release deed by the defendants who executed. it, was considered. It was contended that such a release is -invalid and inoperative, having regard to the fact that the express language of section 6 provides that so long as the obfecr of the trust remains, it can ncvergbecome the property of the plaintiff. A query was raised if the expression "object" in the section means the beneﬁciary or the pur- pose. The queryiwas not answered, as there was revocation of the arrangement by the beneﬁciaries.

8.42. On a careful consideration of all aspects of the matter, we have come to the conclusion that while the presentstatutory scheme as 'contained in the various .provisions mentioned above, may be complex, the complexity is primarily due _ to legislative anxiety to provide for the variety of results which, in actual life, persons taking out a life insurance may desire to achieve. The insured may wish merely to avoid a controversy as between his heirs and the insurer, without more. For him, nomination is a suitable device." He may desire to go further, and decide to transfer all rights under the policy. - He can then resort to assignment. Or. he may prefer the less elaborate machinery of section 6. if he wishes to create a trust governed by that section.

The statutory provisions are, thus as varied as the intentions of the insured. Hence the apparent complexity. Essentially, then, this complexity is unavoid- able. for the reasons mentioned above. However, it is possible to make one im-

'pi'ovement whereby it will be easier than at present to 'deeide,~in a particular case, whether the arrangement falls or does not fall under section 6. We have in mind the suggestion made in a judgment of the Madras High Court," to which we have already made a reference. We reiterate our recommendation' to carry out that suggestion.

1Para 8.37, supra.

9Ertaya2'ui'Iah v. Jeefarzee, A.I.=R. 1942 Mad. 136, 13-3, 139.

'A bhiramavaiii V. Oﬁicial Trustee, A.I.R. 1932 Mad. 222 (Para 3.29, supra}. 'See discussion as to point (c) (i), Para 8.29 and 8.3-0, supra.

8-1 LADHG ' ikssignrnent s.a.r.| mg on diﬁerent footing.

_Meaning of "ob-

tect" of l:rmt Recommendation to amend the In-

surance Act.

53--

Point (e)--Revoca-

tion of nonnnation and__ surrender of policy.

Point [f)--Whether contingent provi-

sion permissible, Mmwied Women's Property Act, 1874 (Chapter 8.--Insurance by Wives cmd Husbands.) To give statutory effect to the suggestion which We have referred to above, it would be convenient if a suitable provision is added in the Insurance Act, 1938, so that the number of controversies as to whether section 6 applies or does not apply, will be reduced' to the minimum. We are recommending insertion1 of a new section" in the Insurance Act. ' ' 8.43. Reverting to section 6 of the Act of 1874, we may state that the next question relates to the effect of revocation of nomination of a policy. It has been held in Calcutta' that a nomination by the husband on the insurance policy pre- serving the husband's right to cancel the nomination, takes the case out of sec- tion 6. There is also a Calcutta' ruling to the eﬁect that the policy cannot be surrendered after a trust is created under section 6.

These rulings do not seem to necessitate any amendment of section 6.

8.44. Another question that has arisen is whether there can be a contingent provision for the beneﬁt of the wife and children under section 6.

On this question there is a conflict of views. A Nagpur case' and and earlier Bombay case" take a narrow view on the question, namely, that section 6 does not apply if the beneﬁt is. contingent.

The contrary View has heenxtalren by the Calcutta' and Madras' High- Courts, and also in a later Bombay case," namely, that section 6 applies even if the beneﬁt is made contingent,--as, for instance. upon the death of the husband before the wife. The earlier Bombay case was not cited before the High Court in the inter case.

8.45. In the Calcutta' case", it was observed that all life policies, by their very nature. operate upon a contingency. In endowment policies, two contingencies i are involved, life of the assured at a certain point of rtime, or death before 'that; time, "An endowment' policy is wholly a contract of life insurance; a double' "

contract of life insurance, the event in one case being death and the event in; the other case being life." An Englishﬁ case was relied on. for this conclusion. The policy was held to be "on the life of the husband". and for the beneﬁt of L ' the wife, it being regarded as immaterial that it was an endowment policy. ' 1For another point concerning the Insurance Act, see para 8.53, infra. "See Para 15.7', infra. I 3Sare1':2n V. Kemclrcmder, A.I.R. 1946 Cal. 44. I _ Ushorir' Doss v. Gope! Chant}. A.I.R. 1915 Cal. 9, 10.

' -'Rabibai v. Retanlel, A.l.R. I938 Nagpur 321. _ , "Dinbai V. Bamansha, A.I.R. 1934 Born. 296, 299. .

. on re Ashalata Desi. A.I.R. 1940 Cal, 217, para 3.45. rjnira. '4 3(3) Abhiram Vcriii v. Oﬂicinl Trustee'. A.I.R. 1932. Mad. 220, see para 8.30. .

(b) Bengal Irtrurance Co. v. Vefayamwai, A.I.R. 1937 Mad. 571. 574 {FOHOWS Fife?" 5 wood': Policy---[l925]_1 Ch. 48); _ t

(c) Krishmm Ch-ettinr V. Veiayee Ammal, A'.I.R. 1938 Mad. 604,, 607.

IM_ A_ Rodrigues v. E. R. Baiiga, A.I.R. 1967 Born. 4-65.

"In re As-hetero Dassi, A.I.R. 1940 Cal. 217. 118. (Para 8-44. Mimi).

"Gould -.v. Gum'.-.0913) 3 K-3. 84.95."??-

'lithe section.

Mamied Womerfs Property Act, 13'i4 {Chapter 8.--Insurarzce by W iveis and Husbands.) A Madras case,' takes an intermediate view, holding that until the event happens, the husband can assign the policy. This interpretation, with respect, may defeat the section in many cases. [In this particular point, we prefer the view taken in a later Madras case," namely, that a trust is impressed from the very beginning.

8.46. Having considered all aspects. 'of the matter, we have come to the con- clusion that the wider view should be codiﬁed, by an express We recommend that the section should he so amended as to cover contingent trusts.

8.47. The next question arising out of section 6 is this. Can the statutory trust arising under Section 6 be revoked ?

In a Sind case," it has been observed that the trust under section 6 can- not be revoked. The case' was, however, one of assignment. The Court observed :

"This section is borrowed from the provisions of the English Act (Sec- tion 10. Married Women's Property Act, 1370], and there is a conflict in English law as to what the expression 'object' means. According to one view, the expression -""oIJjcct' means beneﬁciary; according to another view, it means purpose vr'de'(l930) 2 Ch. 37 and (1933) Ch. 126.5 "

"It seems to us that it is not necessary to deal with this oonﬁict in the view I am taking of the effect of the deed of release. Section 6, Married Women's Property Act, provides-that the policy money should not form part of the estate of the insured only so long as the object of the trust remains. But if the performance of -the trust. becomes im- possible or the trust fails or otherwise is satisﬁed or comes to an end.

the policy money will form part of the estate of the insured. In (1933) '_ Ch. 126" Ronier L. 1.. in construing section 11, Married Women's Property Act, 1832,--corresponding to section 6 of the Indian Act--- observed that the proviso meant that the policy rnoney's shall not form partof the estate of the insured or be subject to his or her debts until . the trusts have come to an end."

' "Therefore, the trust can come to an end by revocation of it. Section 73(3), Trusts Act, provides that a trust can be revoked where all the beneﬁciaries are competent to contract' by their consent. It was, there- fore, perfectly competent to the several defendants to revoke the trust created by the policies in their favour. Under section 58, Trusts Act. it is also clear that it is competent for a beneﬁciary to transfer his interest. The interest taken by the several defendants under the policies. though contingent. can be transferred. because the right created under the policies is not in the nature of a mere right to sue: vide 8 Range 8*. If the beneﬁciary is capable of transferring his interest. he can also release i "

1Lah'L'hambaI v. Guardian Ins. Co., A.I.R. 1937 Med. 645, 647. 3Kamtavai.'a1 V. Subbarayya,--A.I.R_ 1938, Mad. 413.

'Shamdas v. Savitribai, A.I.R. I937 Sind 181, 188.

'In re Collier, (1930) 2'Ch. 37:39 L.J. Ch, 2.4], 143 L.T. 329.

' For this point, see para 8.58.

5Cou.ra'm' V. Sun Life Assurance Society, (1933) Ch. 126:

'Cousins v. Sun Life A.r.ru-rance Society. (1933) Ch. 125. 'Mayor': v. Official Assignee, A.I.R. 1930 RC. 17: 8 Range 3: 57 IA 10 {P.D.].

102 L1. Ch. 114.

amendment of ' 55' Recommendation.

(2) Cancellation of statutory trust.

Recommendation

--No change.

(31) Person who can SUE-'.

Recommendation to make the po_-

licy-holrler ti -'.ru-

stee.

Point ti), suit by widow' without re

-ygo em or asmoe cial trustee.' "out recourse to the Oﬂicial Trustee.

Married Wot-nerfs Property Act, 1374 (Chapter 8.--1i1.rumm:e by Wives and Husozmds.) _8.48. We do not think that there is any need for amendment of the law as laid down in the rulings cited above.

8.49. Then, there is some diﬁculty as to the person who can sue when the policy falling within section 6 matures. and there are no speciﬁc trustees :--

(i) One 'view on the subject is that only the Oiﬁcial Trustee can sue."

Unless the Oﬁicial Trustee disclaims the trust_- the widow cannot sue, according to this view.

The second View is that to enforce the provisions of this section, the trustee must be appointed either by the deed by the husband in his lite-tirne or by the court under the Indian T rus-ts Act, and the court is not bound to appoint the Official Trustee." This view seems to be based on the principle that the Oﬂiciai Trustees Act. 1913, which (Ii) was passed later than the Married Won-ien's Property Act, 1874.

overrides section 6.

The third View is represented by a Madras judgment" and a Cal- cutta case', which hold that the trustee referred to in section 6 is not the corporation sole created by the Oﬂicial Trustees Act, 1913.

(iii) 8.51]. 1-t seems to us that this is a yital matter. on which uncertainty should be avoided. Apart from' the question of uncertainty, there is a matter of substance which should be considered. Is it necessary to-bring in the Oﬂicial Trustee at all? At the time when the Act was enacted (1874), the Indian Trusts Act. 1882 had not been passed, and the rights and liabilities of the trustees and beneﬁciaries had 'not been codiﬁed.

The position is diiferent now, and it will be more convenient to ntake the policy-holder or his heirs a trustee, in cases where the policy-holder does not appoint a person as a trustee. Such a provision exists in England," and this part of the English provision does not appear to have created any serious diﬂiculty. We, therefore, recommend that the section should be amended on' the lines indicated above. ' We notice that the question has arisen whether the widow can sue with- In Hari Dassi's case." Lord Williams I. of the Calcutta High Court 'observed:--

3.51.

' "At ﬁrst sight I was under the impression that the Oﬁicial Trustee '7 could not refuse a trust apparently imposed by section 6 upon him, b1_I.'..' after further consideration, it seems to me obvious that there are incon- sistencies between the provisions of section. 6, Married. Wome11's Property Act and -the Oﬂicial Trustees Act of 1913. Under section 7 of the latter Act. the consent of the official Trustee is required before any trust can be imposed upon him. He may act as a trustee only if he' thinks ﬁt, and under sub-section (iii) he may decline any' trust either absolutely or accept on such conditions as he may impose. Sub-section"

'Laxmi v. Sun Life Ass, Co. Lt'd.. A.I.R. 1934 Madras 254, 265.

23¢,' D35-Sf v_ Canadian -Insurance C0,. A.I.R. 1937 Cal. 379, 380 (infra). 3A.l.R. 1955 N.U.C. (Madras) 3395. _ _ ' 'In re Arhaiata, A.l.R. 1940 Cal. 159.. 170.

5Section 11, Married Won1en's Property ACL 1333 (Trig-J {AF*D¢ﬂdiX 3). Giiriri Dassi V. Canadian Insurance C'o.. AIR. 1937 CHL 330:

Mmied Wcmenisr Properry Act. [374 [Chopfer 3.--~Ii1.§£t?'E2fiCE by Wives mu.' Husbands.)

(vii) provides that he shall be the sole trustee. These provisions obvious» ly are. inconsistent with the provisions of section 6, Married Women's Property Act. because those provisions are mandatory, and with refer-

encefto any such sum as is the subject of the present suit. it is pro- vidcdithat he shall stand in the sarnepcs-ition as if he had been duly appointed 'trustee thereto by the I-ligh Court under. Act 17 of 1364. section 10'. that is to say. his consent is to be assumed. because it is to be assumed that he has been duly appointed trustee."

He also said that the Oiﬁcial Trustee Act referred to in section 6 was the Act of 1364, whereunder the position oi the Olﬁcial Trustee was diﬁerent from the sition under the 1913 Act. Hence, the reference to the Act of 1864 could not be read as :1 reference to the Oﬁicial Trustees Act of 1913.

$51. We have already made a recommendation' to revise -that portion of 'section 6 which refers to 'the Oiﬁcial Trustee. In View of this recorn1nenda--- tion, the controversy just now referred to will not survive. ' We many now' refer to section 396'}. Insurance Act, which reads :

"[l') The provisions of this section shall not apply to any policy of life insurance to which section 6 of the Married Women's Property Act, ' 1374, applies or has at any time applied:

Provided that where a nomination made whether before or after the commencement oi the Insurance (Amendment) Act, 1946, in favour 'of the Wife of the person who has insured his life or oi his wife and children or any of them is expressed, [whether or not on the face of the policy, as being mac's under this section the said section shall be deemed not to apply or not to have applied' to the policyf' 8.54. The proviso to section 39(7). Insurance Act, quoted above' may _ ate hardship in certain cases.' Where. by mistake, a person - creates both 5 1;. st under section 6 of the Act of 1874. and a nomination under section 39 of thdg Insurance Act, the question may arise, which of the two should prevail.

Obvioissly, Its a matter of policy, the trust should prevail, being more beneﬁ- cial asiugl effective so_ far as the wife and the chﬂdren are concerned. In regard to such'-.a situation. the rule enacted in the' present proviso to section 39(7) ghova'n1'not_ apply, and we are recommending the addition of a suitable proviso to section 39(7), in a later chapter' of this Report.

3.55. We now take up the next point concerning section ti. _Where the insur- ed has not created a trust in favour of his Wife or ch1ldren.__1t should be open to him to create it at any time subsequently during the subsistence of the policy. At present. section 6 does not seem to allow such a course. but we are of the opinjou that it should be allowed. having regard to the fact that by re- ason of a change of circumstances since the issue of the policy. it may be neces- sary for the insured to think about the matter again. ' 'See discussion under point fh), para B.S0, supra.

'See also para 5.5.. supra. , 'Para 8.53, supra.

*"l"l'u's point is in addition to the point in paragraph 8.4; supra. 'Ilurmtrnph l5.6, infra.

Recommendation as to ofﬁcial tru- ' stee.

Point (3') Section.

39['i"}----lnsurance Act.

Recommendation 'to add another arise to s. 39('.r'}.

nsuranoe A-ct.

Recommendation to amend section 6 to authorise creation of trust subsequently.

532

Point (1)--Section 6----Creation of trust----Recommen-

dation for verbal change in place of deeming provision.

Point (rn]v--Right of creditors--AIn-

endrnent recom-

mended.

Point {n)--Se-ction 6(l)--Word5 refer-

ring to "ohject"m~ Amendments re-

commended.

Section '6[2}---'v'a-

rious periods.

Married Women'.s Property Act. 181"! (Chapter 8.--Insarrmce by Wives and Husbands.) . Such necessity may arise not only where the insured was a bachelor at the time of the policy, but also where, though married, he did not avail himselr at the beneﬁcial provisions of the section.

We recommend that this should be provided.

356. We have already noted' that the English Act contains the words "shall dreare a trust in favour of the objects therein named." These .words make the trust more deﬁnite than merely "deeming" it to be a trust as in section 6 of' the Act of 1314. We are of the view that this wording should be adopted, and We recommend accordingly. ' 8.57. The nest Phint concerns the rights of creditors. We have noted" that under section 6, creditors would be entitled, in case of fraud, to a right against the (entire) proceeds of- any such policy, though the word "entire" is not used. Under the English Act. the creditors are entitled to receive. out of the moneys payable under the Policy, a sum equal to the premiums so paid. Therefore. in England the creditors would be entitled to alesser amount than they' would get in India.' We think that the English provision should be followed, being fair to both the creditors and the beneﬁciaries, and we recommend accorﬁngly.

' 3.53. It would appear that in section 6(1), the words "so long as any object of the trust remai_ns" are ambiguous. The corresponding words in the English Act? have also been commented upon, as was noticed in a sind case.' We think that opportunity should be taken of stating the position more deﬁnitely, in"

this regard. The re-draft which we are recommending in section 6(1) will, it* is hoped, solve the problem.' One result of amendment which we are proposing will be that, sub? jeot to any contrary intention, a named wife takes an absolute vested. interest';

,in the policy so that, if she dies before her husband, it forms part of her estate." This position was established in England after some controversy.' However. the husband of the woman would have a lien on premiums paid by him after her death, being payments made by a 'trustee to preserve __t'.ie trust property.' ' 8.59. This concludes our discussion of section 6(1) Section 6, sub-section (2), may appear to be complicated in view of the various periods mentioned in that; sub-se,ction; butit should be remembered that this has a history. The question whether section 6 applied or did not apply to Hindus. Muslims, etc. came' up,j.- in 1913, before a Full" Bench of the Madras High Com: and. by its judgment; dated 1st April, 1913." it answered the question in the aﬂirmative. It appears;

that in 1923, the legislature took a decision as a matter of policy to extend'tl1-eif I Muslims, etc. and while takingthat decision, the legislaturei the Presidency of Madras (as it then existed}, section to 1-lindus;

recognised the fact that in 1PaIa 3.12. point t2). supra-

=Pa1'a 8.12, supra. ' _ ssecﬁon 11, Married Women's Property Act. 1332, (Appendix 3}- *Shaind'as, Para s.47. ' 5See para 8.61, infra. A -

"Cousins v. Sun.Uf€ A-"'-""m"'7e Society.' (1933) Chancery 126' TR: Ki_nr1trz'ck'.s' Poiic)' Tim' (1965) 2 w'L'R' 1346' '3Re Smitlfs ésrarrz. U937} Chancery 536' gﬂrzlambo v. Krishrta)-yer, I.L.R. 37 Mad. 483; A.I.R._l9l4 Madras 595 {Full Bench] .¥ .

lifarrfed l'F'ornen.'.t.' Property Act. 1374 £Ch.:1prcr 8:---Insurarrce by Wives and Husbands.) had already been the position since 1913, r'.e., after the Full Bench decision. Accordingly, when section 6(2) was amended in 1923. it was provided that the provisions of sulzu-sec-"Lion (i'}r--that is, the substantive proVision~--shall apply. in the case of a policy of insurance such as is referred to therein which is eﬁected by any Hindu, Mahornmedan. etc. aﬁter the speciﬁed date. The period speciﬁed was, in relation to Madras, "after the 31st day of December. 1913"

and in relation to other areas, "aﬁter the ﬁrst day of April, 1923". In 1959. the Married Wornerfs Property (Extension) Act. 1959, eﬁective as from 1st March, 1960, was enacted -to extend «the Act to the whole of India except the State of Jammu and Kashmir. Consequently, it became necessary to amend section 6(2) again, by specifying a period for the operation of section 6 in regard to the territories -to which the Act previously did not extend. Accord- ingly, the section was amended in l959. not by meritioning any speciﬁc date assuch in this context. but by using a formula. referring to the commencement of the Extension Act of 1959. 'Thus. with reference to the application of the provisions of section 6 in various areas, three periods are now material. as follows: ' ti) Period after the 31st day of December. l9l3---in relation to Madras;

(ii) period after the 1st day of April. 1923+-in relation to other parts of British India: -- 1

(iii) period on or after the lst March 1960---in relation to the rest of India except the State of Jammu and Kashmir.

VIII. SUMMARY OF R'ECC'IVM--fEl\'DATI0l\'S IN THIS CHAPTER"

8.60. We may summarise the recommendations made in this Chapter as fol- Summary of ,3- commendations in lowmh" ' this chapter.

- (ii Endowment policies should be brought within section 6 by a clari- ﬁcatory amendrnent} -- '

(ii) The insurers should adopt, in the policy of life insurance. the formula used in section 6, where the assured intends that* section 6 should be attracted. Further, the insurance Act should he amend-

_ ed for the purpose.'°'a -

I, (iii) Children" should be brought within the beneﬁt of section 6.

(iv) Section 6 should be extended so as to allow oontingent trusts." 0;} 'j"he policy-holder or his heir should he the trustee.5 where no one is appointed "as a trustee. '

(vi) Where. in respect of the moneys payable under the policy of insu- rance. the irrstrred has created a trust under section 6 of the Married Women's Property Act, 13?4. and also made a nomination. then, the nomination. whether or not it refers' to section 39..shall be disregard- ed." The Insurance Act should be amended for the purpose by ad~ ' ding a second proviso to section 39(7) thereof.

1Par'a 8.22, supra.

'Pa.ra 8.30. supra.

"Para 3.41, supra.

"Para 8.33, supra.

'Para 8.46, supra 'Fara 8.50, supra.

"Para 3.54. supra.

-60 - Married Fl"on'icn'.r Property Act, 1874 (Chapter 8.--Inszrrance by Wives cred' Husbands.) i

(vii) Where the policy effected by a person is not, at the time when it is effected. expressed on the face of it to be for the beneﬁt of any of the persons mentioned in subsection (1). the insured should have 1 right too at any time subsequently during the subsistence of the policy, to create the trust.'

(viii) The English Act contains the words "shall create a trust in favour of, the objects ttherein nam ." These words make the trust more deﬁnite than merely "deeming" it to be a trust as in section 6. This wording should be adopted."

' (ix) Under section 6, creditors would be entitled, in case bf fraud, to a right against the {entire} proceeds of any such policy, though the word "entire" is not used. Instead. the creditors' should be entitled ' to receive, out of the moneys payable under the Policy, a sum equal to the premiums so paid." . '

(x) In section 6(1), t.he words "so long as any object of the trust remains"

are ambiguous. Opportunity should be taken of stating the position more deﬁnitely, in this regard. A re--draft is recommended.' One result of the amendment recommended will be that, subject to any contrary intention, a named wife will takelan absolute vested interest in the policy so that, if she dies before her husband, it will form part of her estate.' Re-draft of section 8.6]. In the light of the abcveldiscussi-on, we recommcnd5 that in place of sec-_ 5*" - tion 5(1), the following subsections should be substituted :_ "[1] A policy of insurance effected by any married man on his own life.

and expressed to be on the face of it for the benefit of his wife, or of his '-

children. or of his wife and children, or any of them, shalt create a trust for Jthe beneﬁt of his wife, or of his children or of his wife and children. ' or any of them, according to the interest so expressed. and the moneys payable thereunder shall not, so long as any object of the trust can be . performed and remains unperformed, form part of the estate of the in- sured or be subject to his debts:

at 5' I 1 English Provided that if it is proved that the policy was effected and the premiums Act of 1382. paid with intent to defraud the creditors of the insured, they site!!! be entitled to _ receive, our of the moneys poyabie under the Policy, a sum equal to the pre-

miums so paid.

(IA) Where the poIz'cy'e_ﬁecied by :1. person is not, at the :'irn;r'when it :3-

eﬁecred, expressed on the face of it to be for the beneﬁt of any. of the pergong , mentioned in sub-section (1). the insured may, at any time during the subs-is'1'eizce of the policy", intimate to the im'n!r£r_ in writing his decision that the policy should be for the beneﬁt of his wife or of his children or of his wife and children or pny of them; and, on receipt of such intimation by like inmrerihciprovﬁnﬁﬁ of this section shoii. as for as may be, apply. as they apply to a policy to which ' ' subsection (1) applies.

'Para 8.55, supra.

"Para 8.56, sirprai "Para 8.57, supra.

*Para 8.58, supra. I 'As to Insurance Act, see Chapter 15, infra. - .

'Some alternative wording to be borrowed from the Insurance Act can be eIl1lJ1DY9d instead of the word "sub5istenee", if found to be more a1JP1'0P1'13TB-

Married Women's Property Act, 1374 (Chapter 8.--insurance by Wives and Husbands. Chapter 9.e-Legal' Proceedings.) (IB) The insured may, by the poiicy or by any memorandum under his hand, appoint a trustee or trustees of the moneys payable under the policy, and from time to time appoint a new trustee or new trustees thereof, and may make provisions for the appointment of a new trustee or new trustees thereof and for the investment of the moneys payable under any such policy.

(IC) In default of any such appointment of a trustee, such policy, imme-

diately on its being eﬁedted, shalt vest in the insured and his legal representative. , in trust for the persons aforesaid. -

(ID) If. at the time of the death of' the insured, or at any time after- words, 'there shaii he no trustee, or it shalt be expedient 'to appoint a new trustee or a new trustees. a new trustee or new trustees may be appointed by any court having jurisdiction under the prouisions of the Indian Trusts Act, I8._82.

(IE) The receipt of a trustee or trustees duly appointed, or in default of any such appointment, or in defauit of' notice to the insurer. the receipt of the Iegai representatives of the insured, shait he a discharge to the insurer for the sum secured by the poiicy, or for the value thereof, in whole or in part, as the case may be.

(Explanations to be added).

Expianation l.~For the purposes of this section, an endowment poiicy is a policy of insurance on life.

Explanation 2.--The provisions of this section shaii apply whether or not the beneﬁt conferred in the manner speciﬁed in sub-section (1) is contingent.

Explanation 3.

[This should ensure thatpolicics under thc present Act also get 'the bcucﬁt of the new section]. E CHAPTER 9 LEGAL PROCEEDINGS 9.1. Legal proceedings by and against married women are dealt with in section 7, which reads:---

"7. A married woman may maintain a suit in her own name for the recovery of property of any description which, by force of the said Indian Succession Act, 1865. or of this Act, is her separate property; and she shall have, in her own .uan1c, the same rcmcdics. both civil and criminal against all persons, for the protection and security of such property as it she were unmarried, and she shall be liable to such suits, processes and orders in respect of such property as she would be liable to if she were unn:|arricd."

This section follows section 11 of the Married Women's Property Act. 1370 (33 ea 34 Vict, c. 93), that section was repealed by the Married Women's Property Act, 1832 (44 and 46 Vie. Chapter 75). 9--1 LAD}?-E Section 7.

G1 E2 Verbal Chan ges Ic-

commended.

Section 7, latter half Recommendation to make section 7 comprehensive as to liability.

Recommendation to extend section '.I' to Hindu and Muslim women.

Married Women's Property Act, 1374 (Chapter 9.--Le,g-at Proceedings.) 9.2. It would be convenient to indicate, at the outset, certain verbal changes that are required in the section. In the ﬁrst place. the reference in the section to the Succession Act, 1885, should be replaced by a reference to the Indian Succession Act, 1925. Secondly, the mentioning of "separate" (property) should be deleted. having regard to the changed scheme which we are recommending in this report. These changes will be required even if the present structure of sections 7 to 10 is maintained. However, we may mention that we are separately recommending' complete redrafts of sections 7 to 10 and if those redrafts are accepted, the section will appear in a different form aItogether----without. of --

course, aﬁecting the substance except as indicated below.

9.3. A diﬂicult problem is presented by the latter hat? of section 7 which begins with the words "and she shall be liable to such "suits, processes and orders in respect of such property as she would be liable to it she were un- married". This part of the section raises a problem of construction.

Or does it limit the suit. order or Presumably, the ﬁrst be made more Does it limit the property liable?

process to which the married woman is to be subject? construction was intended, but the wording could, in that case, clear by avoiding repestzition of the word "such".

Such case law as is available under section 7 has been examined'-", but it does not discuss this aspect at length, since the point was not material.

9.4. whatever he the true construction of the section as it is now worded. we are of the view that a married woman should, in respect of the matters dealt with in the section, be placed on the same footing as an unmarried woman, and that the section should be revised for the purpose. It is true -that no woman has ever been debarred from suing or being sued, but it is desirable to make the statement of the law comprehensive. The obsolete theory of unity of the spouse;'' should be put an end to, by an express provision. A married woman shouldﬁin all respects. be placed on the same footing as an unmarried woman. ' In coming to this conclusion, we have been impressed by the considera- tion that the common law concept of merger, on which the requirement about the joinder of the husband toelitigation against the wife is based, is out of date. The principle of unity of the spouses has been modiﬁed by the Act. but what remains of that principle, should be put an end to. That is our main reason for» recommending a change as above. -

9.5. We now come to another point concerning section 7. _It is obvious that section 7 and also sections 4 and 5--provide for exceptions to the conceptof the common law that the personality of the married woman mergeswith that "of her husband on her marriage and that, as such, she cannot; sue or be sued with- out impleading her husband even in respect of her separate property. The latter, ,. part of section 2 of the Act. however, provides that these provisions (sections 4,

-S and 7) do, not apply to certain married women speciﬁed in section 2--e.g., Hindu and Muslim women.

'Chapter 14, infra.

"Chapter 9.1. supra.

3Harn'.v v. Harris, (1375) I.L.R. 1 Cal. 235. _ I Edllamuddi V. Brahrm, E1877} I.L.R. 4 Cal. 140.

5In re : Marital, (1395) I.L.R. 18 Mad. 1.5. _ _ "Mrs. Gortdoin v. Venkaresan. (1907) I.L.R. 30 Mad. 3TB.

I Married Women': Property Act, 1874 (Chapter 9.----Legci Proceedings. Chapter lO.--Ji'ife's Liability for Post-Nuptiai _ Deb is.) We are of the view that a statutory provision to the eifect that the dis- ability does not apply to any married woman in India should, in suitable language, be inserted in the Act.

9.55:. No doubt, section 2 of the Act of 18?4 shows that Hindus and Muslims are. taken as governed by their personal law, which does not recognise the legal unity of the spouses. But, in our view, the principle incorporated in section it should be expressly extended to Hindus, Muslims etc. in order to avoid any arguments that women belonging to these communities are subject to the doctrine of unity.

We think that opportunity should be taken of making the section com- prehensive in this regard. .

In short-

(a) so far as women other than Hindu and Muslim womenare concern-

ed, the amendments recommended by us will make the provisions more comprehensive than at present;

so far as Hindu and Muslim women are concerned, the amendment recommended will re-state the position which is now accepted, not by virtue of the Act of 13?4, but by general law.

(bl The new provisions will, thus, avoid doubts in all respects as to the correct legal position in regard to the liability of married women in matters that could be raised in civil litigation.

CHAPTER 10.

WIFE'S LIABILITY FOR POST--NUPTIAL DEBTS 10.1. The liability of a wife for post-nuptial debts is dealt with in section 8, which reads-

"S. Wifeis liability for post-nuptial debt.-;--If a married woman {whether married before or after the ﬁrst day of January. 1866] possesses separate property, and if any person enters into a contract with her with reference to such property, or on the faith that her obligation arising out of such contract will he satisﬁed out of her separate property, such person shall' i be entitled to sue her, and, to the extent of her separate property, to recover against her whatever he might have recovered in such suit had she been unmarried at the date of the contract and continued unmarried at the execution of the decree:

"Provided that nothing herein contained shall :--

(a) entitle such person to recover anything by attachment and sap: or otherwise out of any property which has been transferred to a woman or for her beneﬁt on condition that she shall have no power during her marriage to transfer or charge the same of her beneﬁcial interest therein or

(b) affect the liability of a husband for debts contracted by his wife's agency expressed or implied." ' Extension of prin-

ciple of section 'F to Hindus, Mus-

lims etc. Section 8 64 Married Womerfs Property Act, 1874 (Chapter lO.«Wr'fe's Liability for Post-Nuprial Debts.) Recommendation. 10.2. In this section. the following changes are required:--

' (i) removal of the word "separate" occurring before the word "pro- pertyplll.

(ii) deletion of proviso (a), which relates to restraint on anticipation."

We recommend accordingly.

' _ 10.3. The proviso to section 3 was revised in 1929, and its history is interest- S_°°(§;':';' lE;N_1"'"°""° ing. While section 10 of the Transfer of Property Act: recognised the validity of a restraint on alienation in respect of married women belonging to certain Commllllitiﬂs. thﬂre Was. prcviously, no statutory provision laying down the law as to whether property in respect of which such a. restraint on alienation had been imposed could be attached in execution of a decree in satisfaction of liabilities of the married women. In England, it has been held3 that the pm. perty could not be attached. In India, because of the absence of a speciﬁc provision on this point, some High Courts--name]y, Calcutta' and Bombay"---

held that a creditor of the married woman could enforce his claim against pro-

perty which a married woman hadbeen restrained from alienating. In doing so, these High Courts mainly relied on sections 7 and 8 of the Married Women's Prc-penl;y Act as they then stood. Under section 7. a married woman may sue or be sued in her own name in respect of her separate property, and under section 8 (as it then stood) a person, entering into a contract with a married woman with reference to her separate property may sue and recover against her

-to the extent of that property. The Madras High Court, on the other hand.

held that these two sections of the Married Womerfs Property Act did not come in the way of the restraint on alienation being enforced to the extent of prevent-

ing attachment also. Accordingly to the Madras High Court, the legislature had not shown any intention to ignore such conditions. This view was taken ' by the Madras High Court in two cases'''-*. In- taking this view, the Madras High Court: relied also on the fact that after the Married Women's Property Act, 1374, the legislature had, in section 10 of the Transfer of Promrty Act, 1882, given statutory e-ﬂeet to the doctrine of restraint on anticipation. According to the Madras High Court, the restraint onanticipation is recognised and enfotcc- ahie in India and its operation is not aifected by section 8 of the Married Wome-n's Property Act. Decrees passed in accordance with section 8 against a separate property, if any. of a married woman in respect of her contracts could not be operative against property which she was restrained from alienating because to hold otherwise would render the restraint upon anticipation absolute- ly inoperative. Procedural rules authorising attachments could not also be read as authorising the attachment of property which. by a rule of substantive law.--- now embodied in section 10 of the Transfer of Property Act,----is incapable of being transferred or charged by the beneﬁciary. The' second Madras case"

cites a number of English cases; but it is unnecessary to discuss them here. The principal consideration which weighed with the Madras High Court was that any other view would render the restraint inoperative.

1See also Chapter 14, infra.

"See discussion as to "Restraint on anticipation", Chapter 15, infra. 3Chapman 1!. Biggs. (1883) ll Q.B.D. 2.7.

'ﬂippoiire v. Stuart, (1385) I.I...R. 12 Calcutta 522.

'Cursctii v. Rurromii. {I337} I-L-Fm 11 B0ﬂ1b3i-' 343- 6;" re Mama} and Mama! (1395) I.L.R_ 18 Madras 199.

7Gg[¢d0iﬂ v. Venimrasa Mudaiiy. (1907) l.L.R. 30 Madras 377, 378. sgomfgfn v, Vgtrtkiitasa Mudaiiy, (1907) I.L.R. 30 Madras 377, 380.

Eimended accordingly?

7--. 0.

Married Wome.-1's Property Act. 1874 [Chapter lCI.--Wife's Liability for Post-Naptial Debts. Chapter l1.---Ante- Nuprial Debts. Chapter l2.--Husband's Liability for W:'fe's Breach of Trust or Devastation.) 10.4. In view of this conﬁlict of decisions, legislative action became necessary. In 1929, the Legislature, while amending the Transfer of Property Act. also amended section 8 of the Married Womerfs Property Act. by expressly providing that decrees passed against a married woman under section 8 could not be executed by attachment or sale of the property which she was restrained from alienating during marriage.

We have discussed this history to show -the connection between section 8 of the Act of 1874 and section 10 of the Transfer of Property Act. We may state here that we _are recommending deleting of the proviso to section 10 of the Transfer of Property Act.' CHAPTER 11 ANTE-NUPTIAL DEBTS that the husband is not liable for the ante--nuptial I 11.1. Section Ellprovides debts of the wife. It reads:

"9. Husband not liable for wife's ante-nuptial debts.----A husband mar-

ried after the t.hirty--ﬁrst day of December, 1865 shall not. by reason only of such marriage, be liable to the debts of his wife contracted before marriage. but the wife shall be liable to be- sued for, and shall, to the extent of her separate property, be liable to satisfy such debts as if she had continued unmarried:

Provided that nothing contained in this section shall invalidate any con- tract into which a husband may, before the passing of this Act. have entered in consideration of his wife's ante-nuptial debts."

In this section, the expression "separate" should be deleted. and we re- We are also recommending restructuring of Sections CHAPTER 12 HUSBANITS LIABILITY FOR WIFE'S BREACH OF TRUST OR DEVASTATION-

12.1. The fiction of the unity of the husband and wife. led to several rules, and one of the rules pertained to the ﬁeld of liability of the husband for the wrongs committed by the wife. A species of such (civil) wrongs. is breach of trust or devastation. It was considered necessary to deal speciﬁcally with such liability. in section 10. The section reads---

"10. Where a woman is a trustee. executrix or administratrix. either before or after marriage, her husband shall not, unless he acts or inter-

- rneddles in the trust or administraltion, be liable for any breach of trust committed by her. or for any miapplication, loss or damage to the estate her, or for any loss to such estate of the deceased caused or made by arising from her neglect to get in any part of the property of the deceas-

ed."

In a sense, the section constitutes a is liable for the wife's wrongs.

negation'of the rule that the husband 1Chapter 15. infra.

'See also Chapter 14. inim-

Amendment 1929.

Section 9.

Section 10.

of 66 Married We-men's Property Act, 1374 {Chapter 12.--Husband's Liability for Wife's Breach of Trust or Devastation. Chapter 13.--0ther Matters.) 12.2. The principle of the section needs no change. However, we are recom- mending a restructuring of sections 7 to 10 of the Act'. which will render retention of section in the present form unnecessary.

Recommendation.

CHAPTER 13 OTHER MATTERS Suits between spo-- 13.1. Apart from questions arising out of the provisions of the Act of 1874, tgiagjiilig mfg there are certain other matters which indirectly relate -to the proprietary aspect tifesh arid dlifabi1}i1t_y of marriage. We propose to mention here three of them. in order to make our ° us 3" Or '9. discussion comprehensive. though it may not be feasible in this Report to wife': torts.

recommend amendment of the law on all of them.

(1) Suits between spouses.

In England, statute now provides that each of the parties to marriage has the same right of action in tort against the other as if 'the parties were not married.' There is one restriction in this regard. namely. when an action in tort is brought by one party to the marriage against the other during marriage, the Court may stay the action if---

(a) it appears that no.substa11tia1 benefit? would accrue to either party from continuance of the proceedings. or

(b) the question could be more conveniently disposed of under section

17. Married 'Women's Property Act. 1882. .

We do not propose to make any recommendation on the subject. as it is not concerned with the property of a married woman as such.

(2) Liability of :3 wife to 'third persons.

In England. under the Law Reform Act of 1935*, a married woman may be sued for her torts. and is subject to the law relating 'to bankruptcy and E0 the enforcement of judgments and orders in all respects as if she were a name' sate. Before that Act.-'

ii) any damages recovered against her would be levied only out of her separate property not restrained from anticipation. and

(ii) she could not be made bankrupt -unless she was carrying on a separate trade.

We are recommending the adoption of this section' in another Chapter since we ﬁnd the provision to be in harmony with modern notions.

I (3) Liability of a husband for his wife's 'starts.

Another change made by the Law Reform Act of 1935". may be noted. At common law. a husband was liable to be joined with his wife in all actions for torts committed by the wife during the subsistence of'the marriage.

lchgptcr 14, infra.

ssection 1, Law Reform (Husband and Wife} Act, 1962. (Appendix 6}.

35% 241 H_L, Debates, 5th Series, Col, 1104, for the meaning of "substantial". 4-section 1, Law Reform {Married Women's and Tort feasors} Act. 1935. (Appendix. 4), 5Chaptet' 14. iﬂf1'¢'- ' ssecﬁon 3, Law Reform (Married Women and Tort feasors) Act, 1935, (Appendix 6).

Married Womenfs Properly Act. 1374 (Chapter I3:--Other Matters. Chapter l4.e-Recommended Arrzendmenzs in Ike Act of 1874 by way of Simpliﬁcation in a few Sections.) The House of Lords decided that this liability had not been taken away by the Act of 1832. Now. the 1882 Ace had taken away the husband's interest in the wife's property. but he still remained liable for the wife's torts. This was unjust. In Newton v. Hordgrf for example, a woman plaintiﬁ recovered damages from the defendant for the enticement of the plaintiffs husband by the defendanfs wife. The Act of 1935 remedied this injustice.' We are separately recommending' "the adoption of this provision, in another Chapter since We ﬁnd it rational and in tune with modern notions.

CHAPTER 14 RECOMMENDED AMENDMENTS IN THE ACT OF 1374 BY WAY OF SIMPL-IFICATION IN A FEW SECTIONS 14.1. We have, in the preceding Chapters. made certain speciﬁc. recommenda- tions Eor amendment of the Act. Besides the speciﬁc amendments recom- mended in each Chapter, we may mention here that 'the drafting of some sections of the Act. in respect of which we have suggested removal of the word 'separa'te',_is capable of improvement and simpliﬁcation, and opportunity should be taken of simplifying them. We recommend that the following new sections should be substituted in place of existing sections 7 to 10. In consequence. sections 4 and 5 can be deleted.

Hence. our recommendations are as follows:

Exirtirrg sections 4 and 5 Existing sections 4 and 5 should be deleted, in view of the revised-sections ? to 10 recommended below.

Revised sections 7 to 10

7. Subject to the provisions of section 10, a. married woman shall-----

[a) be capable of acquiring, holding and disposing of, any property;

(b) be capable of rendering herself. and being rendered. liable in respect of any ton'. con-'tract, debt or obligation:

(c) be capable of suing and being sued. either in tort or in contract or otherwise: and (£1) be subject to the law relating to bankruptcy and to the enforcement of judgments and orders: .-

in all respects as if she were a fame sole.

8. Subject to the provisions of section 10. all property which----- (a.) immediately before the passing of this Act was the separate property of :1 married woman or held for her separate use in equity: or belongs at the time of her marriage to a woman married after the passing of this Act: or

(c) after the passing of this slot is acquired by or devolves upon a married woman. shall blong to her in all respects as if she were a frame sole " and may be disposed of accordingly.

(bl 1_N'e1-L-Ion v. Harris? (1933) 149 irr. 155. 3Section 3, Law Reform etc. Act, 1935.

'Chapter 14, infra.

5'?

Recommendations as to section 4 and '1' to 10.

Capacity -of mar-

ried women (Cf.

section I, English Act of 1935}. _ Property of mar-

ried women (Cf.

section 2. English Act of 1935}.

63' Abolition of bus-

band's liability for wife's torts and antenuptial con-

tracts, debts, and obligations, (Cf.

section 3, English Act of 1935}.

Savings.

Married Women': Property Act, 1374 (Chapter l4.--Recommendcd Amendments in the Act of 1374 by way of Simpliﬁ-

9. Subject to the provisions of section 10, cation in :2 Few Sections.) the husband of a married woman shall not, by reason only of his being her husband, be liablr-.---

la}

(b)

10.

(a)

(b)

-(c) in respect of any tort committed by her whether before or after the marriage, or in respect of any contract entered into, or debt or obliga- tion incurred, by her before the marriage; or ' to be sued, or made a party to any legal proceeding brought. in res- pect of any such tort. contract, debt or obligation, (1) Nothing in sections 7 to 9 shall-

during coverture which began before the .......... .. day of .......... ..' alfect any property to which the title (whether vested or contingent, and whether in possession, reversion or remainder) of a married woman accrued before that date, except property held for her sepa-

rate use in equity;

aliect any legal proceeding in respect of any tort if proceedings had been instituted in respect thereof before the passing of this Act;

enable any judgement or order against a married woman in respect of a contract entered into, or debt or obligation incurred. before the passing of this Act, to be enforced in bankruptcy or to be enforced otherwise than against her property. l

2. For the avoidance of doubts it is hereby declared that nothing in sec- tions 7 to 9- (=1)

(b)

(c)

(d) shall render the husband of a married woman liable in respect of any 'H / contract entered into, or debt or obligation incurred, by her after the marriage in respect of which he would not have been liable if this Act had not been passed;

shall exempt the husband of a married woman from liability in res- pect of any contract entered into, or debt or obligation {not being a debt or obligation arising out of the commission of a tort] incurred, by her after the marriage in respect of which he would have been liable if this Act had not been passed ;

shall prevent a husbandand wife from acquiring, holding, and dispos- ing of, any property jointly or as tenants in common, or from render- ing themselves, or being rendered jointly in respect of any tort, con- tract. debt or obligation. and of suing and being sued either in tort or in contract or otherwise. in like manner as if they were not married;

shall prevent the exercise of any joint power given to a husband 'and wife.

'Date of commencement of the Married Women': Property Act, 1874.

Married Women': Property Act. 13?4 - 59 CHAPTER I5 AMENDMENTS IN OTHER ACTS I. .'NTROD'UC_TORY.

151. In this Chapter, we shall discuss _bl'ieﬂ3«' the amendments that are requir- Introductory. ed in Acts other than the Act of 1874, I11 consequence of our recommendations in this Report. The Acts to be considered are 1

(i) the Transfer of Property Act. 1882:

[ii] the Indian Trusts Act, 1882'. -

(no the Insurance Act. 1933:

(iv) the Indian Succession Act. 1925.

In the last mentioned Act, we are not recommending any amendment, ' but we shall brieﬂy consider the question whether any changes are needed.

, - II. TRANSFER OF PROPERTY ACT, 1882.

15.2. We have earlier' referred to the proviso to section lO'of the Transfer Section in, 'Haas- of Property Act, 1882. under which property can be transferred to a rnarried kin 'i'f332_P'°P°"' woman who is not a Hindu or a Muslim, with a condition restraining her abso~ lutely from alienating it during marriage. This provision is in derogation of the general rule enacted by scetion 10 in its main pnragraphhprohibiting the impo~ sition of an absolute restraint on alienation. In our view, the proviso is not justified. in View of the growing social consciousness in the country. Christians and Parsis----to whom the proviso primarily applies,---are not less educated than others. There is no suohrestriction for other communities. The proviso is linked up with section 8, Married 3Women's- Property Act. In our new scheme, its deletion is unavoidable.

15.3. Having taken into account the social conditions of the present day and" Rg¢gmmenﬂ§_ﬁug- the considerations mentioned above," we are of the view that in section 10 of the to amend section-

Transfer of Property Act. the proviso relating to restraint on alienation should i,E;)p§:'t;"f{:t'_ °f now be removed. and we recornrne-nd accordingly.

III. INDIAN TRUSTS ACT. 1882.

15.4. Provisions concerning restraint on alienation occur also in the Trusts Ac-t. P1-mu-ion; in 11,, In an earlier Chapter.' we have recommended amendment of sections 56 and 53 TN" *'h°l--F-'-

of the Indian Trusts Act. 1382. _ co 5" "Mia" to '

8.!!!'-EH.

We recommend that in section 56 of the Trusts Act, the last paragraph should be deleted. and in sedtion 58 of that Act, the proviso should 'be deleted.

The revised sections will then read as under:

Revzired sedfions 56 cznd 53, Indian Trusts Aer, 1382.

"S5. The beneﬁciary is entitled to have the intention of the author of the trust speciﬁcally executed to the extent of the beneﬁciary's interest; _ spwiﬁ"

1Para 5.7. supra.

"Para 15.2. supra.

"See para 5.12, supra.

lﬁ--l LADH5 'Til Right to transfer of possession.

Right to transfer of beneﬁcial inter-

- est. Section 39(7), In-

surance Act, 1938.

Nomination and 111131'.

Married Women': Property Act, 1874 (Chapter l5.--Amendmem'.r :in Other Acts.) and, where there is only one beneﬁciary and he is competent to contract. or where there are several beneﬁciaries and they are competent to con?- tract and all of one mind, he or they may require the trustee to transfer the trust--1:-roperty to him or them, or to such personsas he or they may direct.

(Last paragraph of section 56 to be deleted) {Illustrations as at present}.

"53. The beneﬁciary, if competent to contract, may transfer his interest. but subject to the law for the time being in force as" to the circumstances and extent in and to which he may dispose of such interest.

(Proviso to be deleted).

IV. INSURANCE ACT, 1938.

15.5. In view of certain points discussed in this Report1 in connection viritli section 6. a few changes are required in the Insurance Act. 1938.' The ﬁrst point concerns section 39(7) of that Act, which reads: ' "(7) The provisions of this section shall not apply to any policy of life insurance to which section 6 of the Married'Wornen's Property Act, 1874.

applies, or has, at any time, applied:

Provided that where a nomination made. whether before or after the com-

mencement of the Insurance (Amendment) Act. 1946, in favour of the wife of the person who has insured his life or of his wife and children or any ' of them is expressed, whether or not,-on the face of the policy, as being . made under this section the said section 6 shall be deemed not to apply or not to have applied to the policy."

15.6. The point which arises out of the proviso to section 39(7) of the Insurance Act, quoted above,' may be thus stated. A person who decides -to create a trust under section 6 may, by misunderstanding of the law or through slip or ignorance, enter also a nomination--in the policy. In such a, case, what should prevail is the trust under section '6, and not the nomination. However, as the proviso to section 39(7) now stands. it is possible to take the view that the nomination overrides the trust.

[tom arising, and an amendment to section 39(7). proviso. Insurance Act. on this point is, in our opinion, desirable." ' -

' We are also of the view that it is desirable to insert, in the policy, a. speciﬁc note, impressing it upon the insured that if he creates in trust under"

In our opinion. it is desirable to prevent such a situation _.

section 6. he shall not make a nomination under section 39 of the Insurance Act? ' We are proposing a suitable provision on this point in the new section 39A.' Insurance Act' which we are recommending. ' Besides the points started just new. section 39(7) of .the.Insurance Act;_ will require another change so as to add a mention of 'children'. This change is§_ consequential onour recommendation to expand the scope of section 6 of the Act of 1874 so as to authorise a trust for children. ' 'Chapter 3. Suﬁ"-

'Para 15.5. supra.

ﬁsee also para 8.54, supra.

'see pan 15.1'. Infra.

amendment needed in that Act.

Married Wonzenir Property Act. 1874 (Chap£er'15.----Amendmen1.s in Other Acts.) To give eﬁect to the above propositions. we recommend that sub-section {7} of section 39 of the Insurance Act should now be revised as follows:

"{7} The provisions of this section shall not apply -to any policy of life. insurance to which section 6 of the Married We-_men's Property Act. 18.74, applies or has at any time applied:

Provided that where-a nomination made whether before or after the commencement of the Insurance (Atnendmenll'Act. I946. in favour of the wife of the person who has insured his life or of his fvife and children or his children or any of them is expressed. whether or not on the face of

-the policy, as being made under this section. the said section 6 shall be deemed not to apply or not to have applied to the policy." ' Provided. rﬁowever. Jhar where, in respect of the moneys payable under any policy of insurance. rho i'r1sr.cred has created a trust under section 6 of Ike Married Womerfs Property Act, 1374, and also made a nomina-

' Lion, than the rzomfnation. whether or not it refers to this section. shall prevail be disregarded."

15.7. So much as regards section 39(3) of the Insurance Act. There is another We have,' while dealing with section 6 of the Act of 1874. pointed out the need for inserting a speciﬁc provision in the Insurance Act as to life policies, in regard to the statement to be made as to whether the assured wishes to avail himself of section 6 of the Act of 1874. Accordingly, we recommend that a provision should be added in the Insurance Act. 193-8,--_~sa;.r, as section 39A,--as.t'ollows:-----

Section 3921. Insurance Act. 1933 {to be added] "39A. (1) Every policy of life insurance shall---

(201 contain a column or. paragraph wherein a statement could be made as to whether the person insured has decided to avail himself of the provisions -of section 6 of the Married Won_Jen's Property Act. 1874. and it the person insured has communicated to the insurer his decision to that effect. contain the following statement--- - * 'This policy is for the 1:-cueﬁt oi and the following

-persons are the trustees for the purposes of section 6 of the Married Women's Properly Act. 1874'. and lb) (C) if the person insured has not communicated to the insurer his decision to avail himself of the said section,6. contain a statement to that eﬁeet. ' (2) To the column or paragraph referred to in clause (:1) of sub-section (1), there shall be attached a foot-note indicating that where the insured ﬁlls up that column. by making, the statement referred to in clause {h} of sub-section (1), he shall not malcea nomination under section 39" -

Tara 3.4-2, supra.

'II.-

Section 39A. Insu-

rance Act, [New section be inserted).

1933

to 3'2 Sncoeuion Act.

Married Women': Property Act, 1374 (Chapter 1S.--Amendme.-us in Other-Acts.) i V. INDIAN SUCCESSION ACT, 1925.

(5.8. We now deal with the question whether any changes are needed in the Indian Succession Act, 1925. Our recommendations in regard to the Act of 1874 raise certain questions relating to sections 20, 21 and 22 of the Succession ' Act. (All -'these sections are conﬁned. practically, to non-Hindu and non-Mus- lims). The following points may be made in this connection. _

(a) In theory. section 20 could be repealed. in view of the proposed com prehensive provisions relating to property of the married women; but the subject dealt with in section 20 is also dealt with in section 21 (see below).

(b) Repeal or transfer of section 21 creates some diﬁiculties, because-

(i) it is itself referred to in section Z2.-Jwhich deals with marriage settles 1nents--~of diﬂerent topic'. and

(ii) section 21 contains a rule of private international law, more appro-

priate in the Succession Act.

(o) Section 22 deals with marriage settlements----which is a topic outside the scope of the present Report. ' In View of the above considerations. we do not propose to disturb these sections of the Succession Act, and we have come to the conclusion that they need not be repealed or amended. The over-lapping, if any. between section 20. -

Succession Act and new section 2 of the proposed Act (replacing the IST4 Act). is a very minor one. ' Married Women's Property Act, 1874 73 We would like tmplace on record our warm appreciation of the valuable assistance. we have received from Shri Bakshi, Member-Secretary of the Commission in the preparation of th1s Report.

P. B. Gajennlragadkar --------~-------Chaimﬂﬂ p_ K_ Trfpathi ............. ..Mcmher \ '!:|r| ...............MembeI:

S. S. Dha-...

...,.....-Member 1:. Sen-'--'arma ............Mcmb:r B_ (j_ Mikra. ' _ 'xx .~ ..,..,.........1\-Ietrubcr-Sacretary. 'P. M. E-aksh1 Dated thc i2th M337, E976 New Deihi Short title and ex-

tent.

Capacity of mar-

ried women. (Cf.

nection 1, English Act of 1935).

-Property of mar-

ried women_ {Cf.

section 2. English Act of 1935].' Abolition of hus-

band's liabelity for wife's torts and antenuptial con-

tracts, dehts and obligations. (Cf.

section 3. English Act of I935).

Savings. (Cf. En-

glish Act of 1935}.

APPENDIX 1 THE MARRIED WOMEN (PROPERTY IVIISCELLANEOUS PROVISIONS) BILL.

24"'...-

A Bill to declare and amend the law relating to married women, ;r Pm, ,..-' Whereas it is desirable to amend the law relati:-u_ ,0 the property', richts and nab}.

lities of married women who do not profess tl1e,.l§-,7,-,',;;'3-'E1: ]\.1u1-lammadaf Bujdhl-3t_ Sikh or r, .

Jaina religion ;' DOSES.

And whereas it is desirable to derzlare the law relating to suits and other legal pt'0~ csedings in respect of married women who profess the Hindu. Muharnrnadan, --Buddhist. Sikh or Jaina religion ;

_ And whereas. it is desirable to re--state the law relating to po],-'sic: of life insurance in relation to married women, {, Be it enacted by Parliament in the 3:331-"of :1-1.5 Rgpubljc of 1'1-.dia_ as follows:

1. (13 This Act may be called the Ma1_ied visions) Act, 1976.

(2) It extends to the whole of India exceptlthe Stat},-_ of Jammu and Kaghmil-_ Women (Property and Miscellaneous Pro-

'2. Subject to the provisions of section 5, a married woman sha1l'---

fa) be capable of acquiring, holding and disposing of. any property;

[b} be capable of rendering herself, and being rendered, liable in respect of any tort. contract, debt or obligation;

[cl bedcapable of suing and being sued, either in tort or in contract or otherwise; an id) be subie-ct to the law relating to insolvency and to the enforcement of judgements and orders :

In all respects as if she were unmarried.

3. Subject to the provisions of section 5, all property which-

{a) immediately before the day of .

property of a married woman or held for her separate use in equity; or (b] at the time of her marriage belongs to a woman married after the said date; or to) after the said date is acquired by or devolves upon a married women, shall belong to her in all respects as if she were unmarried and may be disposed of accordingly. --

4, subject to the provisions of section 5, the husband -of a married woman shall not, by reason only of his being her husband, be liable-

la) in respect of any tort- committed by her whether before or after the mar- riage, or in respect of any contract entered into, or debt or -obligation incurred, by her before the marriage; or

(b) to be sued, or made a party to any legal proceeding brought, in respect of any such tort, contract, debt or obligation.

S, For the avoidance of doubts, it is hereby declared that nothing in sections 2 to

4._.

la) shall render the husband _of a married -woman liable in respect of any con- tract entered into, or debt or oblImt1'on'inI:ur:_-ed. _bv her after the marriage In res- pect of which he would not have been liable If this Act had not been passed;

has to the word "Jaina", see Constitution, article 25, Explanation 2. _ _ 'Usual enacting formulate be used.

Hts to the past the existing Act of 1874 will take care; see section 6, Central Clause; 1897. ' '-Date of commencement of the new Act of 1976.

Act.

...l' was the separate '""~--a-nu!-

'\ > Married Women': Property Act, 1374 (Appendix I.--T!ie Married Women [Property and Miscellaneous Provisions) Bill. 1976'.) lb) shall exempt the husband of a married woman from liability in respect of any contract entered into, or debt or obligation {not being a debt or obligation arising out of the commission of a tort) incurred, by her after the marriage in respect of which he would have been liable if this Act had not been passed;

{cl shall prevent ii husband and wife from acquiring, holding, and disposing of, any property jointly or as tenants in cornmon, or from rendering themselves,

-* being rendered liable jointly in respect of any tort, contract, debt or obligation, """g and being sued either in tort or in contract or otherwise. in like ' were not married ;

-'he exercise of any joint power given to a husband and 5_ 'o any married' woman who at the time of her marriage' p_'_0_~_ '-1, lsuddhist, Sikh or Jaina religion or whose husband at the 11)..

{2} For the arm.

at the time of her 1'11:-.ll"fl£tg--._~.

religion or whose husband at I. any of those religions.

by declared that a married wornan who' fcfluhainmadan, Buddhi's;, Sikh or Jaina arriage professed any of those religionsi ilways to have been, capable of suing and 'hllb, clht]..- _ la) 5 a '3 an S 3 ;t or otherwise; and being sued. either in tort or in b [b} shall be, and shall be deemed always to have been, subject to the law relat- ing to insolvency and to the cntorcemcut of judgments and orders.

as if she were unmarried.

{3} For the avoidance of doubts, it is hereby also declared that the husband of any such married woman shall not, by reason only of his being her husband, be liable, or deemed ever to have been liable,---

la) in respect of any tort comi:nitted__rby her whether before or after the roar- riage; or

(b) in respect of any contract entered into, or debt or obligation incurred, by her before the marriage; or (c] to be sued, or made a party to_nny legal proceeding brought, in respect of any such tort, contract, debt or obligation. '

7. (1) A policy of insurance effected by any married man on his own life, and eit- pressed to be on the face of it for the beneﬁt of his wife, or of his r.'li_iloru:, or of his wife and children, or any of them, shall create a trust for the beneﬁt of his wife, or of his children, or of his wile and children, or any of them, according to the interest so e.r.pi'es-- sed, and Lhe moneys payable thereunder shall not, so long as any object of the trust con be performed and remains unpcrformeri. form part of the estate of the insured or be sub- ject to his debts:

Provided that if it is proved that the policy was etlected andﬂie premiums paid 'ilk intent to rtefroiid the creo'itors of the insured, they shall be entitled to receive, our F the moneys payable under the policy. a sum equal to the premium so pain'.

(2) Where the policy eﬂrcred by ill person 3': nor, at the time when it is effected.

,pr¢°5',s:!d on the face of it to be for the benefit of on} of the persons meu_rioi1.=:d_ir1_sii.lJ- ction [I]. the irisured may, at any time during the subsistence of the poncy', irizimote . the iiisurer in 'n-'ri'ti'rtg his decision that the policy should be for (lie lrcriie,-'u of his wife of his c'lzi'lt'lr.'.rr or of his wife and chi'lr.lrerI or any of riiem: and, on receipt' of such imatiori by the lrzsurer, the pros.-ilriorzs of this .rcc.'t_'rJr1 shall, as for as may be, apply as ' apply to a policy to wliicli sub-sectiori ti') applies.

(3) The insured may, by the policy or by any memora.-rdu_m under his 'hand, min: a trustee or .lrus'te'¢',5* of the moneys payable under rhr policy, and from nme to e appoint a new trustee or new trustees thereof, and may make provisions ft'-'V "*9 GP' immenr of a new trustee or new trustees' tltereof, and for the mve.tl'mcrl.r of the moneys yable under any such policy.

(4) _,[n-,'1,:,,-will of any such appointment of a trustee, such policy, immediately on

-. effected, persons aforesaid. 5 (5) ff af ;;,e\.¢i:ne of the death of the irrsrrred, or or any time ofierwards, thew:

shall be rronriisrec or "fr'i'.'.1~'-'£'£'-5. 6! Heb' N"-Sn"-I39 0?' HEW it'll'--51";-5' may 5? "P,I5'0"'"'f-'l ll)' WU' court having ,iiiri.srli'ciion i.-iin'c'.* the pi-ovisioris of the Indian Trusts Act. I882.

1Son1e alternative wording to be borrowed from the Insurance Act can be crnployed instead of the word 'subsistence', if found to be more appropriate.

is-hall vest in the irisiired and his legal reprc.u.-'n:a.rive.r, in trust for the _ 75 .-application of sec-

tions 2 to 5.

Policies of insur-

ance. (Existing sec-

tion 6].

Cr. section 1], En-

gush Act of 1382.

-'16 Power to exam!"-

Interests and powers not ac-

quirod nor lost by unrriage.

Effect of marriage ecu person domiciiod and one not domiciled in ndia.

S-ettlemnnt of mi-

nors' propcrty in contemplation ol marriage.

Married Womerfr Property Act, 18'i'4 (Appendix 1.---The Married Worn.-3:1 {Property and Miscellaneous Provisions} Eiii, l9'3"6. App.endr'.r 2.----Exirri.-rg sections 20 to 22, Indian Succession Act, 1925. Appendix 3.--Section Ii. Morried'Women'.r Properly Act. 1332 fEt1g.} 1'6) The receip.-* of o trrr.r.t.-2e or trustees duly crppoinreld, or in drfonit of any .5-rrciﬁ iappaintrrmnt, or in r2'e-,r'rnn't of notice to tire 1't$S5ﬂ'€F. the receipt of the 18,241? rEpre.ret1ta.f:I»'l of the i'rr.5'rrrr~.'o', shah' he a dircirorge to the insurer for the rum imured by the Boiler, or for the mine thereof, in whole or in part. or the care may be.

, Expianotiorr i.------£-'or the purpose: of this sqction. ari e-na'owmr"' of insurance on tife.

Emiaiiation 2.----The pr0'>'t'.s'iO!l.r of this section sign?! ' tit conferred in the mariner specified in so-b~.recrion U) "' Explionotion 3.--I:: reiotion to any p-oi'ir"' Ir'£t.!t Act to wharf: this section would have! app rion shoil apply in substitution of section I' ernent of . _rorcc, this sec' ﬁroperty Act, I874.

S. (1) The State Government may.

from the passing of this Act or prospec of the provisions of this Act the member sec: or tribe, to whom it may consider' it.. provisions. .

_ V2} The St"? C'0V°mﬂ'13|?|T 'T131' 3150 TEVG;-;e any such order, but not so that the nevov canon sh:-J1 have any retrospective o;-ffart. ' -

G t (3) All orders. and "revocation: under' this section shall be pi-abiished in the Otﬁciail 32¢ I¢.

order, either retrospectively' :1 the operation of ail or any sect or_t_rii:Ie, or part of a race.

. lnexpedicnt to apply such

9. Repeat of the Act of 1374--{Section not drafted).

10- Am""dm5'm' Of other Act?'-{Amending rbction not drafted).

APPENDIX 2 EXISTING SECTIONS 20 TO 22, INDIAN SUCCESSION ACT, 1925 20' U3' N0 PCFSUTI Shall hi' marriage acquire any interest in the property of the fr: whom he or she_rnarnes or become incapable of doing any act in respect of his or er own property which he or she could have done if unmarried.

(2) This soction- , 4 (33 i%%1é_nDl t-'P1315' to any tnajrriage contractcd. before the ﬁrs: -day of January, 9 [b} shall not apply, and shall be deemed never to have applied. to any maiﬁage 3:2:-of i%:t:m°m* "§?ti"of§3i§*§§ﬂg:*L'n?"° *1" °f or mam. we

21. If a. person whose domidi ' n t ' I d' ' ' ' my 3:=:ui:es°brlI:hcnrr];.r[r?:;§e:n;nrig: in 12:21:. "§r::;*; perry of the other party not comprised in a settiernent made previous to the mania 'Wi1iCi'.l he or she would not acquire Lhereby if both were dorniciiod in India at the ti} n.

of 'the marriage.

22. (U The pro' rty of a m'n r be tried I ' ' xrjded the settlemenitris rnade byittine nlﬂiilor wits; the afgpfcoxltsiatﬁikolil-i ﬁiﬁiiheofariiziloilfg-1'ra§;:herr' if the father is dead or absent trom India, with the approbation of the High court, ' (2) Nothing in this section o. in section 21 shall apply to any will made 01' ' they occurring before the first day of Ianuary, 1366 or to intestatc or testamentary 31 Slim 10 the Property 0f 3113* Hindu. Muhanimadanfﬂuddhist, Sikh or Iains.

: APPENDIX 3 SECTION 11, MARRIED 'W03-IEN'S PROPERTY ACT, 1882 {E._1}«iG.} 'M. "IL Moneys payable under Hair of sauraucc t t f .-' ' ~~ Ar iosurizd. A married woman may ......... ........ ..eﬂ'I3=::z ;i'oii3;5"i:;§is'"},";1';f'i,5f,§1"';;'1.=;- of ggzulgeaggﬂhgiggliﬁoband for her (own benefit}; and the same and all; awe?" thefeaf shan .4 demgdi-xisting word 'impossible' is considered unnecessary, and has. therefore, boon Eikmendme t t the In A-ct, th T sf f I' been indicatcdns:pa'1)'ateIy. iiiiigier 1.5 ofBth§mI'le;1or:)). ropcrty Act' Tl-um Act etc. ha"

tr.

Married Women's Property Act, 18'i4 [Appendix 3.--Scciion I1, ilwfarricci Women'.-r Property Act, 1882 (Eng). Appendix 4.-Law Reform (Married Women and Tortfeasors) Act, 1935 (Eng) ' A policy of assurance effected by any man on 'his own life, and expressed to be tor the beneﬁt of his wife, or of his children, or of his wife and children, or any of them, or by any woman on her own life, and expressed to be for the beneﬁt of her husband, or of her children, or of her husband and children, or any of them, shall create a trust in favour of the objects therein named, and the moneys payable under any such policy shall not so long as any object of the trust remains unperformed, from part of the estate of the insured or be subject to' his or her debts; Provided, that if it shall be proved that the policy was effected and the premiums paid with intent to defraud the creditors of the insured, they shall be entitled to receive, out of'the moneys payable under the policy, a sum equal to the premiums so paid. The insured may by the policy, or by any memo- 'andum under his or her hand, appoint a trustee or trustees of the moneys payable under the policy,.and from time to time appoint a new trustee or new trustees thereof, and may make provision, for the appointment of a new trustee or new trustees thereof, and for the investment of the moneys payable under any such policy. In default of any such ~ppointment of a trustee, such policy, immediately on its being eﬁected, shall vest in the turﬂd and his or her legal personal representatives, in trust for the purposes aforesaid. at the time of the death of the insured, or at any time aiterwards, there shall be no stee, or it shall he expedient to appoint' a new trustee or new trustees, a trustee or stees or a new trustee or new trustees may be appointed by any court having jurisdic- under the provisions of the Trustee Act, I350, or the Acts amending and extending . same. 'The receipt of a trustee or trustees duly appointed, or in default of any such appointment, or in default of notice to the insurance otﬁce, the receipt of the legal per- sonal representatives of the insured shall he a discharge to the oﬁice for the sum secured by the policy, or for the Value thereof, in whole or in part."

APPENDIX 4 'LAW KEFORM [MARRIED WOMEN AND TORTFEASORS) ACT, 1935 {ENGJ Capacity of married women Subject to thfprovisions of this Part of this Act a married tan shsIl---

' (a) be capable of acquiring, holding and disposing of, any property; and (in) be capable of rendering herself. and being rendered. liable in respect of any tort, contract, debt, or obligation; and

(c) be capable of suing and being sued, either in tort or in contract or other- llwise ', and id) be subject to the law relating to bankruptcy and to the enforcement of judgments and orders, in all respects as if she were a fame roie.

Property of married wome/it

2. (1) Subject to the provisions of this Part of this Act all property which---

(a) immediately before the passing of this Act was the separate property of a-

married woman or held for her separate use in equity; or (la) belongs at the time of her marriage to a woman married after the passing ' of this Act; or

(c) after the passing of this Act is acquired by or devolves upon a married woman, shall belong to her in all respects as if she were a fame sole and may be disposed of acordingly;

{Proviso and sub-sections'{2} and (3) repealed by Married Women (Restraint upon tticipation} Act, 1949 (c. 78), s. l, Sched. 2]. , rlition of husband': liability for wife in torts and ante-nuptial' contracts. debts and obligations Subject to the provisions of this Part of this Act, the husband of a married woman 'at' by reason only of his being her husband, be liable---_ 2;').-"f""f':§lj'_.€Ct of any tort committed by her whether before or after the mar- ﬁagm 0,." in 1-egP.EEf"¢3["q_l_1:,' contract entered JIIIO. or debt or obligation incurred, by i her before the marriage; 0?'

(b) to be sued, or made a party to any legal proceeding brought, in respect of any such tort, contract, debt, or obligation.

lwggﬁs 1-cpealcd by Law Reform (Husband and Wife) Act, 1962 (e. 48), 9.. 3(2), Sched.

Mmried Women': Propertygdcf. 1874 (Appendix 4.-----Law Reform (Married Women and Torifeasors) Act, 1935 (Eng.). Appergiix

5.--Mr.n-ried Women (Restraint upon Anticipation Act, 1949 (Eng) Savings'

4. fl) Nothing in this Part of this Act shall-

{a} during coverture which began before the first day of January eighteen hundred and eighty three, affect any property to which the title [whether vested or contingent, and whether in possession, reversion. or remainder) of a married woman accrued before that date, except property held for her separate use in equity;

(bl affect any legal proceeding in respect of any tort if proceedings had been instituted in respect thereof before the passing of this Act;

(c) enable any judgment or order against a married woman in respect of I. contract entered into. or debt or obligation incurred, before the passing of this Act.

- to be enforced in bankruptcy or to be enforced otherwise than against her property.

Ail) For the avoidance of doubt it is hereby declared that nothing in this Part 0! this ct-- .= t'_a) renders the husband of a married woman liable in respect of any contract entered into. or debt or obligation incurred, by her after the marriage in respoc' of which he would not have been liable if this Act had not been passed;

(1)) exempts the husband of a married woman from liability in respect of any contract entered into, or debt or obligation [not being a debt or obligation arising out of the commission of a tort) incurred. by her after the marriage in respect of which he would have been liable if this Act had not been passed; ' '

(c) prevents a husband and wife from -acquiring, holding, disposing of. any property jointly or as tenants in common, or from rendering themselves, or being rendered, jointly liable in respect of any tort, contract, debt, or obligation and of suing and being sued_either in tort or in contract or otherwise, in like manner as if they were not married;

id) prevents the exercise of any joint power given to a husband and wife.

Conseqiienriai amendments and repeals

5. (1) The enactments mentioned in the ﬁrst column of the ﬁrst Schedule to this Ar shall have eﬁect subject to the amendments speciﬁed in the second column of the Schedule.

[Sub-section (2) repealed by S.L.R. 1950.] 1'.

APPENDEX 5 MARRIED WOMEN {RESTRAINT UPON ANTICIPATION ACT. 1949 IENGJ. (12, 13 st 14 Geo. 6. c. 78) An Act to render inoperative any restriction upon anticipation or alienation attach-

ed to the enjoyment of property by a woman. I (16th December 19-19).

Abolition of res.-'rai'ni'- upon anticipation, and corireqiiemial amendments and repeal:

1. E!) No restriction upon anticipation or alienation attached, or purported to be attached, to the enjoyment of any property by a woman which could not have been attached to the enjoyment of that property by a man shall be of any effect after the pass-

ing of this Act.

(2) The preceding sub-section shall have effect whatever is ti-i_e_date of the passing, execution or coming into operation of the Act or instrument containing the provision by virtue of which the restriction was attached or purported to be attached, and accordingly in section two of the Law Reform {Married Women and Tortfcasors) iiict l93_l5, the_ pro- viso to sub-section (I) and sub-sections {2} and (3) (which make provision differentiating as to the operation of such it restriction between an Act passed before the passing of that Act or an instrument executed before the date mentioned in the said proviso on tb one hand and an instrument executed on or after that date on the other hand) are here' repealed.

(3) The enactments mentioned in the first column of the First Schedule to this shall have effect subject to the amendments speciﬁed in the second co1umn ien-

[Sub-section L'; :';p'sa'i.=.:i by S.L.R. 1953] ' Shari tide and extent'

2. _ {I} This Act may be cited as the Married Women [Restraint upon Anticipation) Act, 1949. ' ' ' - e , .

(2) This Act shall not extend to Scotland or to Northern Ireland.

I 6.--Lrzw Reform lfﬂurbarrd and Wife) Act'. I962 fEng.)) / SCHEDULES . _ V FIRST SCHEDULE CcJrt.requerrti'al A mendmcnfs he Married Women's Property Act, 1882 ' In section nineteen, the words from "or {45 & 46 Vict. C. 75). ' shall -interfe.-e" to "before marriage" shall be repealed, and the word "but" shall be substituted for the word "and" where it occurs immediately after the said repealed words.

[Paragraph repealed by Matrimonial Causes Act 1950 fc. 25}, s. 34, Scheil] SECOND SCHEDULE [Repealed by S.L.R. 1953] APPENDIX 6 L.-RW REFORM (Husband and Vlfife} ACT. [962 (ENG) (10 & ll ELIZ. 2, C. 48} T An Act to amend the law with respect to civil proceedings between husband and ' e. _ (let August 1962] Actions in tort between Fmsband and wife (I) _Subj_cct to the provisions of this section, each_of the parties to a marriage shall ...ve the like right of action in tort against the other as if they were not married.

(2) Where an action in tort: is brought by one of the parties to a marriage against re other during the subsistence of the marriage, the court may stay the action if it appears-

(a) that no substantial beneﬁt would accrue to either party from the continuation of the proceedings; or [bl that the question or questions in issue could more conveniently be disposed of on an application made under section seventeen of the Married Women's Pro- perty Act, I832 [determination of questions between husband and wife as to the title to or possession of property);

and without prciudice to paragraph [bl of this sub-section the court may, such an action, either exercise any power which could be exercised on an application under the said sec- tion seventeen, or give such directions as it thinks ﬁt for the disposal under that section of any question arising in the proceedings.

{3} Provision shall be made by rules of court for requiring the court to consider at an early stage of the proceedings whether the power to stay an action under sub-section (2.) 'of this section should or should not be exercised; and rules under the County Courts Act.

959 may confer on the registrar any jurisdiction of the court under that sub-section.

(4) This section does not extend to Scotland. Proceediiigs between husband and wife in respect of delici ' 2. (1) Subject to the provisions of this section. each of the parties to a marriage shall have the like right to bring proceedings against the other in respect of a wrongful or negli- gent act or omission, or for the prevention of a wrongful act, as it they were not married.

{2} 'Where any such proceedings are brought by one of the parties_to_a marriage against the other during the subsistence oi' the marriage, the court 'may dismiss the pro- ceedings if it appears that no substantial beneﬁt would accrue to either party from the continuation thereof; and it shall be the duty of the court to consider at an early stage- of the proceedings whether the power to dismiss the proceedings under this sub-section should or should not be exercised. -

(3) This section extends to Scotland only.

Short title, repeal', intorpretcriorr. saving and extent (1) Th-;L_$_1'-may be cited as the Law Reform [Husband and Wife] Act, 1952. J i-he enactments described in the Schedule to this Act are hereby repealed to the _ speciﬁed in the third column of that Schedule. _ {3} The reference in sub-section {1} of section one and sub-section (ll Of Section two this Act to the parties to a marriage include references to the persons who were parties

- a marriage which has been dissolved.

. (4) This Act does not apply to any cause of action which arose. or would but for Se subsistence of a marriage have arisen, before the commencement of this \ (5) This Act does. not extend to Northern Ireland.

i_n£.5'H'tIiI1I upon A.r:ri'cipar1'on Act'. 1949 (Eng.;i._ 3.. '_._ (A ye'! . o.---La.v Reform (Husband and Wife] Ace', 1962 (Eng, SCHEDULE ENA CT11/IENTS REPEA LED S.-ssion and Chapter I ' Short Title Extent of Repeal 45 & 45 Vicf, C. 75 25 & 36 G20, E. 30 i The M11-ricd Wom:ns's pro~ l l S:.;e1'ontw_-Iva. except so far as pa]-t)'Act,18S2 it re.-.[aI_cs to criminal proceedings S .'Cl10n tw-.-my-Lhrac_ iT|1.* Law R:furm (Married l 1, Wormn -.r1,['to;zf:a'sors Act, .

193:.

In sq-.!ion 011:3, the words "and subj.-ct, as mspects actions in 1 ton betwcpll husband and wife to 111: provisions of 5:.C=ion awcivc ! of the Marfi.-d Womenfspropcrty' : A.ct,]a8J."

I i G-IPN'--S2--1 L-4-D (ND)_f75-'5-3--77-'--:2 O50.

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Married Womens Property Act,1874