Inheritance Rights of Christian Women since ‘Mary Roy’

Dr. Omana George

8 Dec 2014 7:37 AM GMT

  • Inheritance Rights of Christian Women since ‘Mary Roy’

    The Church and the patriarchal Christian Community found it hard to contain the Supreme Court ruling that repealed the Travancore Christian Succession Act 1916.  In Mary Roy v. State Of Kerala the Supreme Court declared that the Christians in the former State of Travancore are governed by the provisions in Chapter 11 of Part V of the Indian Succession Act 1925 since the extension of Part...

    The Church and the patriarchal Christian Community found it hard to contain the Supreme Court ruling that repealed the Travancore Christian Succession Act 1916.  In Mary Roy v. State Of Kerala the Supreme Court declared that the Christians in the former State of Travancore are governed by the provisions in Chapter 11 of Part V of the Indian Succession Act 1925 since the extension of Part B States (Laws) Act 1951. Consequently the Christians all over India are brought under the provisions of Section 37 of the 1925 Act which provides that the property of the intestate will be distributed equally among the children after deducting the 1/3 share of the widow. Obviously the Mary Roy verdict ensures equal inheritance rights to Christian women all over India. This article examines the impact of this verdict on the inheritance rights of Christian women in Kerala especially after the repeal of the 1916 Act which was highly discriminatory denying property rights to Christian women. The writer also examines the dubious methods adopted by the Christian Patriarchal Community to circumvent Mary Roy verdict. In order to understand the true impact of this verdict it is better to have a cursory glance on the historical background and the origin of the law relating to Succession of Christians in Travancore.

    Origin of Christianity and introduction of cannon law

    Christianity was brought to Travancore by St.Thomas the Apostle of Jesus Christ. The high caste Namboodiri families were converted to Christianity but continued their Hindu customs and practices.

    It is with the advent of Portuguese and the British, Canon laws were applied to the Christians in India after bringing the converted St.Thomas Christians into the fold of Rome, the headquarters of Roman Catholic Church. The source of Cannon Law can be traced to Bible. The Jews followed the inheritance rules prescribed in the scriptures. The Book of Genesis speaks of the bondage of marriage between husband and wife. Wife is given superior status in Genesis. The man shall leave his father and his mother.  This passage refers in fact to the married couple becoming one flesh.  However this religious concept was distorted to mean that a woman’s legal existence merges with that of her husband by marriage and it became a common law rule of coverture under which a woman becomes a non-entity. She cannot own property after marriage. Whatever she owned becomes that of the husband.  So a patriarchal society came into existence and it spread across the world through Cannon law and the Church.

    Travancore Christian Succession Act 1916

    Since there was no succession law for the Christians the Travancore Christian Succession law was enacted in 1916 .It was applicable to the Christians in Travancore. The 1916 Act did not make a distinction between self acquired and ancestral property or between men’s property and women’s property. It means that Christian law of Succession does not recognize coparcenary rights in property. The Act makes it clear that acquisition of property is only through inheritance. The property is inherited by the lineal descendants when the man dies intestate. As per Section 24 of the Act a widowed mother gets only a life interest terminable at death or remarriage over any immovable property to which she may become entitled under sections 16, 17, 21
    and 22.

    Section 28

    Section 28 is the most discriminatory provision under which son/sons shall be entitled to have the whole of the intestate’s property divided equally among themselves, subject to the claims of the daughter for streedhanam. The section provides: Daughters streedhanam and its value, the Streedhanam due to a daughter shall be fixed at one fourth the value of the share of a son, or Rs.5000/- whichever is less. This section reflects the Patriarchal tradition where only male members are entitled to inherit the father’s property. The provision that a woman is entitled to ¼ the value of the share of the son sheds light on the low status given to the women in the Christian community. Even the Christian committee in its draft bill proposed 1/3rd share of a son to the daughter which was opposed by the patriarchal Christian community.

    The Kerala High Court in Philip v. Ouseph held that Under the Travancore Christian Succession Act, admittedly if a daughter is given stridhanam she is not entitled to any further right in the property left by her father or mother. They relied on a full bench decision in Iyer Hariharasubramania v. Mathu Thresia [13 Travancore LJ 354(FB)]. There it had been laid down the reason for not giving share of the ancestral property if stridhanam is given to a daughter. The reason was that prior to the Christian Succession Act the daughter was not entitled to any share in the properties of the father or mother if a son was alive. Section 29 reads that female heirs are entitled to inherit intestate’s properties in the absence of male members/sons, in the family. This section also reflects the Patriarchal set up where daughters are not allowed to inherit if there are sons. In Mary Roy case, she challenged the Constitutional validity of Sections 24 and 28 as they are discriminatory against Christian women.  In spite of its discriminatory provisions the Act continued to be in force until it was repealed by the Supreme Court following the decision in Mary Roy case 1986 leaving irreparable harm to the Christian women in Kerala.

    Personal laws and the status of women

    Discrimination against women in the matter of inheritance has been an issue because of the continuance of the religion based personal laws despite the guarantee of equal status under Article 14 of the Constitution. The Indian Constitution while guaranteeing right to equality deliberately ignored and safely pushed it to the Directive Principles under Art 44.and has not dealt the problem of separate personal laws and the unequal status of women under different personal laws thereby ignoring women especially in the matter of property rights [Mrs.Indira Nair, “Discrimination against women,’’ Central Law Quarterly, Vol. IX:11,208,(1996)]. Consequently they are deprived of the Constitutional protection of Equality of Status. In the matter of succession alone plurality of provisions exists. There is one inheritance rule for Hindus, another for Christians and yet another for Muslims. The Indian Succession Act under Section 57 confers absolute testamentary capacity to the testator; whereas the Muslim personal law restricts the testamentary capacity to 1/3 of its property [Vinay Reddy, “Women and Succession Laws in India’’, A Critical Analysis”, Vol. 26, issue No.192,  19-28, Indian Socio Legal Journal( 2000)].

    The Constitution and hence the Judiciary followed the colonial policy of non-interference with the personal laws of communities except in the case of Hindus. The Supreme Court immediately after independence was reluctant to interfere in the personal laws. This was reflected in the landmark decision of Chief Justice Chagla and Js.Gajendra Gadkar in Narasu Appa Mali.  In Krishna Singh v. Madhura Ahir the Supreme Court even rejected the applicability of Part III to personal laws.

    The Indian Succession Act 1925

    The Indian Succession Act 1925 was enacted for governing the Succession matters of Indian Christians. However this Act was not extended to Travancore because of the saving clause contained under Section 29 of the said Act. The Christians in Malabar the 1925 Act was applied because Malabar was part of Madras presidency during the British rule. The 1925 Act has become outdated and antique.  Section 37 of the Act provides for equal distribution of the intestate’s property among the children after deducting the 1/3 share of the widow. The Patriarchal Christian community opposed the introduction of 1925 Act because of the above provisions under Section 37. Hence the Travancore Christian Succession Act 1916 continued to be in force even after the commencement of the Constitution until these discriminatory provisions were challenged by Mrs. Mary Roy in Mary Roy v. State of Kerala.

     In Mary Roy the Court held that Part B States (Laws) Act 1951 excluded

    the operation of the Travancore Christian Succession Act 1916.  Hence the court declared that the Travancore Christian and Cochin Christian Succession Acts stood repealed because of the extension of the Indian Succession Act 1925. It is pertinent to note in this context that the Supreme Court hesitated to declare the discriminatory Sections as unconstitutional. Even though the 1916 Act is repealed, the system of giving dowry to Christian women continued because the Patriarchal community was not willing to confer inheritance rights to the Christian women. Ever since Mary Roy verdict, the tendency to write Wills also steadily increased. The father can will away his property to the son/sons. The daughter/daughters are excluded from testament on the ground that they were given their share in the form of amount at the time of marriage.

    Response of the judiciary since Mary Roy

    Awareness about this historic judgment has not reached or awakened the Christian women of Kerala. The main reason is that the women have not been persuaded to fight for their rights either by men or by the Church or by themselves. Unless they come out of the grip of the Church and patriarchal community this decision would become part of history. Abraham Mathew v. Chacko Mary [1988(1)KLT 310] is an apt example for the fact that women were not sufficiently aware of their rights declared by the Supreme Court. In this case the decree holder was the sister of the revision petitioners before the High Court. The writ was filed for Rs.5000/- which the father had undertaken to pay to the daughter. At the time of his death he instructed his sons to pay it but they did not keep the word and they filed this suit. The contention of the revision petitioners was that their sister had filed this writ under Section 28 of the Travancore Succession Act 1916. Since it stood repealed with effect from 01.04.1951, the decree passed is a nullity. The Court held that after the coming into force of Part B States (Laws) Act 1951, the Travancore Christian Succession Act stood repealed and the Kerala Christians are thereafter governed by Chapter II, Part V of the Indian Succession Act 1925.

    Under the Indian Succession Act 1925, the children inherit equally. That means female child is entitled to a share equal to that of her brother if the father dies intestate. So the decree holder gets only a less right than what is actually due to her. The decree was passed at a time when she was having a pre-existing right over the property the decree would not therefore a nullity. The daughter could have amended her plea for an equal share to that of the brother. The Court could grant only if she had claimed it. This throws light on the fact that women are not aware of their rights even after Supreme Court verdict in Mary Roy case.

    Again in V.M.Mathew v. Eliswa [1988 (1) KLT 310] and others the Cochin Christian Succession Act of 1921 was held to be repealed by the Part B States (Laws) Act 1951. The Court held that the parties were governed by the Indian Succession Act 1925. Here the plaintiffs and defendant were the children of Mariam and E.C. Verghese. The plaintiff’s daughters argued that the property devolved on them and the defendant in equal shares (1/3rd each). The defendant on the other hand contended that the plaintiffs were not entitled as they were given streedhanam as sovereign and cash. The lower Court held that the plaintiffs were entitled to 1/3rd share each and there was no evidence to show that any amount being paid by the defendant to the plaintiffs at the time of marriage. The defendant’s contention would have force only as long as the Act is in force. Under Section 37 of Indian Succession Act 1925, the parties are entitled to equal share, since the Cochin Christian Act 1921 had been repealed. Mariam died after the commencement of the Part B States Act 1951, and hence the law that is in force is the Indian Succession Act 1925. The High Court further held that there was no law which disqualified a daughter to inherit her parent’s property on the ground that she was paid streedhanam.

    It is evident from the cases discussed above that the Court’s approach drastically changed after the Supreme Court’s verdict in Mary Roy case. One can see a remarkable change in the Patriarchal mindset of the judiciary, a judiciary taking a different path during the 1986 period. The judiciary has also been inspired by the Supreme Court’s gender just decisions in Mary Roy, Shah Bano Begum, Gita Hariharan, Nargesh Mirza etc

    It is also to be noted that the Indian Succession Act 1925 under Sec.57 grants absolute testamentary capacity to the testator so that he can disinherit daughters. The same Act under section 37 provides for equal distribution of the intestate property if the father dies intestate. Further a Christian father can also partition his property. He can partition the property among son/sons excluding daughter/daughters on the ground that they were given stridhanam as their share. Above all to circumvent section 37, the Patriarchal community adopted the innovative device of getting release deeds from the daughters at the time of marriage. The daughters sign the release deeds without fully knowing its serious consequences that they are relinquishing their inheritance rights in the natal family forever. Moreover, the stridhanam given to the daughter is to be handed over to the husband or father-in-law at the time of marriage. The wife is not entitled to own property or assets. The community always wants to deprive the women of economic independence. They should remain obedient, subjugated and subordinate in the matrimonial home. Even the share allotted to the widow will be administered by the son because as per Manu’s dictates a woman never deserves financial freedom.


    The plight of Christian women is pitiable when compared to Hindu women. The Hindu women’s right to property was recognized under Section 14 of the Hindu Succession Act 1956. The 1956 Act was again amended in 2005 to confer birth right to Hindu women belonging to Hindu Mitakshara Joint family. The Act also removed the discrimination between married and unmarried women. The Christian women in fact undergo double discrimination because the State amendments to the 1956 Act conferred coparcenary status to Hindu women in the Southern States and Maharashtra. So Hindu women have been conferred gender equality in the matter of inheritance at least on paper. With respect to Muslim women the Quran assures them a share in the parental property when the father dies intestate.

    In spite of these unfortunate situations, Christian woman rarely goes to court claiming her share. She values more her ties with natal family than she gets from them. She gives priority to the emotional attachment to the natal family. This is because she thinks that the natal family is her last resort to come back in case her marriage breaks down.  Here also she is forced to live there as a destitute in the matrimonial home. There is no law to provide her right to residence as in the case of Hindu women. Her life in the matrimonial home also becomes undignified because whatever stridhanam she has brought would be appropriated by husband and in-laws because there is no law to protect her assets with her.


    1. Section 57 of the Indian Succession Act is to be amended in order to restrict the testamentary capacity of the testator.
    2. To protect the interests of married women Married Women’s Property Act is to be enacted so that women can own whatever they inherit or acquire from the parents at the time of marriage. This would undo the effects of coverture.
    3. The practice of family settlement is to be prohibited since it would enable the parents to exclude them from inheritance on the ground that they were given streedhanam at the time of marriage.
    4. The innovative method of getting release deeds from daughters at the time of marriage by the parents to circumvent Mary Roy verdict is also to be prohibited.

    Dr. Omana George is Principal at Saveetha School of Law, Chennai.
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