Report No. 66

1.12. Position in India.-

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 employed was, no doubt, based on an equitable concept, namely, the doctrine of the wife's "separate property". But it served its purpose. The Act of 1874, however, did not abolish the doctrine of restraint on anticipation. In fact, because 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 transferred to a married man, but it can be attached in the case of property transferred to a married woman of the specified community. This, in brief, is the background of the Act.