Report No. 66

1.7. Need for widening section 7.-

Apart from the questions pertaining directly to the existing provisions, there are two matters on which we propose to make recommendations with a view to widening the scope and effect of section 7 of the Act. Our object in making these recommendations is to provide and clarify statutorily that all married women in our country, whatever be the religion they profess, are free to sue and be sued in respect of claims arising under contracts, torts or otherwise. Before we reached this conclusion, we examined the problem in depth and, as the discussion in the relevant portion of our Report shows1, we carefully considered the important judicial decisions bearing on the point.

1. Chapter 9, infra.

1.7A. English law applicable to persons of certain communities.-

We shall now briefly indicate, the background in which the Act of 1874, and other cognate provisions were enacted. Prior to January 1866, the law applicable in India, to persons who were not Hindus, Muslims, Buddhists, Sikhs or Jains, 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 women belonging to these communities. The position in this respect, as it prevailed before 1866, 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 limitations1. In fact, it is understood2 that in the conveyances by Parsi married women, executed prior to January 1866 that is, prior to the enactment of section 4 of the Indian Succession Act, 1865-the husband was made a party for the purpose of giving his consent to the alienation. This was, because, by a statutory provision3 it was provided that a married woman was empowered to dispose of her estate by deed acknowledged with her husband's concurrence; and it was also provided that no deed would be valid unless her husband concurred therein or in case of disability of the husband unless the deed was acknowledged before the judge of the Supreme Court.

(b) As regards moveable property belonging to the wife, the husband acquired, by marriage, a vested interest in moveable property in possession of the wife, and also acquired the right to reduce into possession the wife's outstanding personal choses in action.

1. Paruck Indian Succession Act, (1966), p. 33.

2. Paruck Indian Succession Act, (1966), p. 33.

3. Section 3 of the Act 31 of 1854 (The Conveyance of Land Act, 1854), repealed by the Repealing and Amending Act, 48 of 1952.