Page 106 - Communication Processes Volume 3 Communication Culture and Confrontation

The Indian Legal System 81

Even in formal law (under the Bombay sub-school of Mitakshara) the
rights of daughters in sonless families were not restricted to limited
rights to property. For instance, a thirteenth-century inscription refers
to a woman selling land she had inherited from her father (Altekar
1956: 238–39).
Regionally, discrepancies between the shastras and local customs
on marriage, divorce and inheritance practices are argued to have been
less severe in the Deccan region and the south, and more in the north
and the east (Derrett 1968). Yet, even in the latter regions, Derrett
(ibid.: 221) argues that deviations from shastric rules were tolerated:
‘[T]he hard core of convenience stood out against theory, and to this day
some ancient customary elements have succeeded in defying Shastric
pronouncements—even those which were never compromised by dilu-
tion and customary material.’
Based on records from the nineteenth-century, legal scholars Derett
(ibid.), Mayne (1900) and Roy (1911) concluded that women’s property
rights customarily exceeded shastric prescriptions in southern and
western India. Mayne (1900: 41) notes, for instance, that a sister who
was excluded in the Benaras and Bengal sub-schools of Mitakshara
ranked high in the order of succession in Bombay Presidency, and
comments:

It seems probable that the doctrine, which prevails in other districts,
that women are incapable of inheriting, without a special text, has
never been received at all in Western India. Women inherit there,
not by reason, but in defiance, of the rules which regulate their ad-
mission elsewhere. In their case, written law has never superseded
immemorial custom.

Mayne insists that such variations are not due to the existence of
different schools of law, since the basic principles of the Mitakshara sub-
schools were the same; rather, they reflect variations of local customs.
Indeed, local customs coexisted with local royal courts and British
rulings. Strangely, British reforms concerning women do not seem to
have had an impact on court decisions by the end of the nineteenth cen-
tury. It is true that these reforms were not implemented for a long time.
What is interesting is to realize that in spite of the desire of the British
to modernize the position of women in Indian society, they reinforced